Institute on the Constitution Supports Controversial PA Police Chief's Actions to Nullify Gun Control Legislation

UPDATE: Kessler was suspended by his city council for using borough weapons for non-borough purposes. According to local media, Kessler’s supporters showed up armed to the teeth.
……….
Mark Kessler is the Chief of Police in Gilberton Borough, PA and is making some people nervous. Today, Change.org is promoting a petition to the mayor of Gilberton in opposition to Kessler. Kessler has garnered some national attention for his efforts to nullify any gun control legislation in his borough.
Someone who isn’t nervous about Kessler is Michael Peroutka, director of the Institute on the Constitution. Peroutka thinks Kessler’s efforts to nullify all gun control laws is just what the country needs:

On January 3rd of this year, Kessler drafted a “Second Amendment Protection Resolution” for his Pennsylvania town which, when passed by city officials a few weeks later, nullified every single gun control law in the nation.
“If you want to own a firearm,” Chief Kessler said, “the Second Amendment is your concealed carry permit, period. It has nothing to do with self-defense: it has to do with freedom from tyranny.”
Police Chief Kessler went on to say: “Nullification is the key. We just have to tell them, ‘that’s it’. I drew my line in the sand back on Jan 3rd. One person can make a difference: you just need to do something about it.”
Well, Amen.
Remember, when a law enforcement officer, like Chief Kessler, refuses to enforce an unconstitutional act, he is not breaking the law, he is upholding the law.
This is because unconstitutional acts of legislatures are NOT the law.

Thus, it is up to Kessler to decide what is constitutional or not and go by his own analysis. You don’t need a permit to carry a gun, you already have one Kessler opines. Thus, he is not going to enforce any gun control laws and the IOTC is fine with that.
Peroutka recommends support for an organization of like-minded police chiefs and sheriffs which promotes nullification.

We recommend that you give your support to the Constitutional Sheriff and Police Officers Association, whose mission is to equip sheriffs, peace officers and public officials with the necessary information and public support to carry out their duties in accordance with their Oaths of Office.

Peroutka, in a speech before the neo-Confederate League of the South, extolled the virtues of nullification and interposition and says his IOTC course is helping to create a consensus around nullifying laws. At 45:49 into the video, Peroutka describes how Carroll County in MD passed an ordinance forbidding any county resources for the use of implementing a MD gun control law. The sheriff pledged not to enforce the law there. Then at 47:33, speaking about the MD law, he says:

We don’t care what the legislature passes, it’s not valid, we don’t recognize it, and it’s not going to be enforced in Carroll County. And that’s the first step of nullification. The next step and what we really need is the step of interposition. Where we need the sheriff and the police to come out and the county executive to come out and say we not only are not going to enforce that but if somebody else comes into our county and tries to enforce it, we’re going to arrest them. That’s the step we need and some counties have done that.

Peroutka then explains the actions of Kessler and Gilberton Borough as being an illustration of nullification and interposition. He added that Kessler intends to arrest anyone who attempts to enforce a gun control law of any kind.
The oath of Kessler’s “Constitutional Security Force” sounds non-violent, but his videos (note the Confederate flag in this onestrike a more confrontational tone (NSFW – profanity) .
The concepts of nullification and interposition can be traced back to James Madison and Thomas Jefferson. See these two articles, first by Kevin Gutzman and the second published by the Heritage Foundation and written by Christian Fritz for conservative analyses of the concepts.
Gutzman points out that fans and opponents of nullification can use Madison as an authority because Madison took both sides at different times and for different causes. Toward the end of his life Madison noted that one state alone could not nullify federal law. Gutzman noted that at the end of his life, Madison said:

The advice nearest to my heart and deepest in my convictions, is that the Union of the States be cherished and perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened, and the disguised one as the serpent creeping with deadly wiles into Paradise.

In 1835, Madison also stated his opposition to John C. Calhoun appeals to Madison’s earlier writings on nullification. About a single state nullifying a federal law, Madison wrote the following:

But it follows from no view of the subject that a nullification of a law of the United States can, as is now contended, belong rightfully to a single State as one of the parties to the Constitution, the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy cannot be imagined. 

As Fritz documents, Madison did not consider nullification, in the sense Peroutka advocates, to be constitutional. In fact, I don’t know of anyone outside of the Confederates or neo-Confederates who consider nullification to be constitutional. Perhaps my readers will help out if there are others who make a constitutional case for nullification.
It remains to be seen what will develop from these nullification impulses and actions. What does seem clear is that Peroutka hopes that teaching the IOTC course will lead to more actions which Madison called “fatal inlet[s] to anarchy.”

16 thoughts on “Institute on the Constitution Supports Controversial PA Police Chief's Actions to Nullify Gun Control Legislation”

  1. Dr. Throckmorton:
    Would you please consider commenting on this op-ed by Nicholas Cummings about his success with reparative therapy?
    http://www.usatoday.com/story/opinion/2013/07/30/sexual-reorientation-therapy-not-unethical-column/2601159/
    In the early days of this blog, you discussed Cummings repeatedly and very favorably. You seem to endorse his record, even though there is no evidence of that record other than his own touting of it in USA Today. Since 2006-7, your views on reparative therapy have changed. Accordingly, I think you owe it to your blog readers and to future readers who may search the blog archives for information on Cummings, to make clear your current thinking on Cummings and his claim of success in changing homosexuals into heterosexuals.

  2. Warren, thank you for keeping me (us) updated on this… nonsense is too innocuous a word, but not sure what else to call it.
    It’s depressing, but I’m glad I know about it.

  3. “if somebody else comes into our county and tries to enforce it, we’re going to arrest them.”
    Well, speaking of “League of the South”: sounds a lot like Little Rock, Arkansas, in 1957 doesn’t it? [Spoiler alert: the U.S. Marshals, backed by the 82nd Airborne, won that one. Little Rock Sherriff/Arkansas National Guard, not so much!]

  4. Dr. Throckmorton:
    I, too, would like to join David’s and Teresa’s requests concerning Nicholas Cummings’ article, Reparative Therapy, etc.
    Thank you and God bless!
    Cielo

  5. Dr. Throckmorton:
    I, too, would like to join David’s and Teresa’s requests concerning Nicholas Cummings’ article, Reparative Therapy, etc.
    Thank you and God bless!
    Cielo

  6. Once again we see how the maniacal inmates (the Far Right) will never give up their futile attempts to take over the asylum (the USA).

  7. Warren,
    I’m going to second David’s request to explain Nicholas Cummings’ article in the USA Today, if you feel so disposed, in another Post, of course.
    Embedded in the Article is a link to a 2005 NARTH Conference speech of Cumming’s, which seems flawed in his presentation of percents of population with final outcomes, as well as not having definitions for ‘reorienting’. Does ‘reorienting’ mean chastity/celibacy, or simply marrying? Has there been a followup study for the 2,400 ‘reoriented’ individuals, to date?
    As you know, I disagree with not allowing SOCE, even for adolescents. I am, of course, non-supportive of the ‘snake oil’ variety of SOCE, which Richard Cohen is the chief exhibit. However, Cummings seems one to not dismiss so lightly as Cohen.
    Cummings states that there are as many varieties of homosexuals as there are heterosexuals, in the NARTH Conference link. Are bisexuals being missed in all this? Do we know the gender composition of the 18,000 persons? Are we to assume they’re all men?
    As David asked, would you be open to another Post on Cummings’ article?

  8. Once again we see how the maniacal inmates (the Far Right) will never give up their futile attempts to take over the asylum (the USA).

  9. Warren,
    I’m going to second David’s request to explain Nicholas Cummings’ article in the USA Today, if you feel so disposed, in another Post, of course.
    Embedded in the Article is a link to a 2005 NARTH Conference speech of Cumming’s, which seems flawed in his presentation of percents of population with final outcomes, as well as not having definitions for ‘reorienting’. Does ‘reorienting’ mean chastity/celibacy, or simply marrying? Has there been a followup study for the 2,400 ‘reoriented’ individuals, to date?
    As you know, I disagree with not allowing SOCE, even for adolescents. I am, of course, non-supportive of the ‘snake oil’ variety of SOCE, which Richard Cohen is the chief exhibit. However, Cummings seems one to not dismiss so lightly as Cohen.
    Cummings states that there are as many varieties of homosexuals as there are heterosexuals, in the NARTH Conference link. Are bisexuals being missed in all this? Do we know the gender composition of the 18,000 persons? Are we to assume they’re all men?
    As David asked, would you be open to another Post on Cummings’ article?

  10. “if somebody else comes into our county and tries to enforce it, we’re going to arrest them.”
    Well, speaking of “League of the South”: sounds a lot like Little Rock, Arkansas, in 1957 doesn’t it? [Spoiler alert: the U.S. Marshals, backed by the 82nd Airborne, won that one. Little Rock Sherriff/Arkansas National Guard, not so much!]

  11. Dr. Throckmorton:
    Would you please consider commenting on this op-ed by Nicholas Cummings about his success with reparative therapy?
    http://www.usatoday.com/story/opinion/2013/07/30/sexual-reorientation-therapy-not-unethical-column/2601159/
    In the early days of this blog, you discussed Cummings repeatedly and very favorably. You seem to endorse his record, even though there is no evidence of that record other than his own touting of it in USA Today. Since 2006-7, your views on reparative therapy have changed. Accordingly, I think you owe it to your blog readers and to future readers who may search the blog archives for information on Cummings, to make clear your current thinking on Cummings and his claim of success in changing homosexuals into heterosexuals.

  12. Peroutka describes how Carroll County in MD passed an ordinance forbidding any county resources for the use of implementing a MD gun control law.
    Contrary to a common perception, legal authority does not devolve from national>state>local. The states have the final word with localities–under federalism, if Washington DC is the daddy, the states are mommy, and a co-equal in raising the kids.
    So in Colorado, we have state-office recall elections against anti-gun politicians, which is fine. But localities are not free to disobey their states, and further, even conservative originalist Justice Antonin Scalia recognizes that the Second Amendment isn’t absolute–states have the right to regulate guns.
    http://www.nationaljournal.com/politics/why-liberals-should-thank-justice-scalia-for-gun-control-20130119
    But as for James Madison opposing “nullification” by the states, when it came to civil rights, he and Jefferson endorsed it!
    Encyclopedia Britannica:

    Virginia and Kentucky Resolutions, (1798 and 1799), in U.S. history, measures passed by the legislatures of Virginia and Kentucky as a protest against the Federalist Alien and Sedition Acts. The resolutions were written by James Madison and Thomas Jefferson (then vice president in the administration of John Adams), but the role of those statesmen remained unknown to the public for almost 25 years.
    Generally, the resolutions argued that because the federal government was the outcome of a compact between the states, all powers not specifically granted to the central authority were retained by the individual states or by the people*. For this reason, they maintained that the states had the power to pass upon the constitutionality of federal legislation.
    The Virginia and Kentucky Resolutions were primarily protests against the limitations on civil liberties contained in the Alien and Sedition Acts rather than expressions of full-blown constitutional theory. Later references to the resolutions as authority for the theories of nullification and secession were inconsistent with the limited goals sought by Jefferson and Madison in drafting their protests.

    *Tenth Amendment
    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    1. James Madison opposed nullification and never endorsed it. In the Virginia Resolutions Madison wrote about interposition, not nullification. Nullification is and has always been unconstitutional. No federal court has ever stated otherwise. The 10th Amendment does not and has never been interpreted to mean it superseded the Supremacy Clause of the US Constitution.
      There’s a lot of 10th Amendment advocates out there that seem to think that it does do that, but they are wrong. Their argument for state’s rights is somewhat laughable because state’s rights is the defense mechanism of the party that is not in power no matter what party it is. Once a party gains control of the federal government they go about using federal power to legalize their platforms or to remove the other party’s legislation. That in itself does not fit the state’s rights doctrine at all.
      In effect, state’s rights is nothing more than a red herring.

  13. Warren, thank you for keeping me (us) updated on this… nonsense is too innocuous a word, but not sure what else to call it.
    It’s depressing, but I’m glad I know about it.

  14. Peroutka describes how Carroll County in MD passed an ordinance forbidding any county resources for the use of implementing a MD gun control law.
    Contrary to a common perception, legal authority does not devolve from national>state>local. The states have the final word with localities–under federalism, if Washington DC is the daddy, the states are mommy, and a co-equal in raising the kids.
    So in Colorado, we have state-office recall elections against anti-gun politicians, which is fine. But localities are not free to disobey their states, and further, even conservative originalist Justice Antonin Scalia recognizes that the Second Amendment isn’t absolute–states have the right to regulate guns.
    http://www.nationaljournal.com/politics/why-liberals-should-thank-justice-scalia-for-gun-control-20130119
    But as for James Madison opposing “nullification” by the states, when it came to civil rights, he and Jefferson endorsed it!
    Encyclopedia Britannica:

    Virginia and Kentucky Resolutions, (1798 and 1799), in U.S. history, measures passed by the legislatures of Virginia and Kentucky as a protest against the Federalist Alien and Sedition Acts. The resolutions were written by James Madison and Thomas Jefferson (then vice president in the administration of John Adams), but the role of those statesmen remained unknown to the public for almost 25 years.
    Generally, the resolutions argued that because the federal government was the outcome of a compact between the states, all powers not specifically granted to the central authority were retained by the individual states or by the people*. For this reason, they maintained that the states had the power to pass upon the constitutionality of federal legislation.
    The Virginia and Kentucky Resolutions were primarily protests against the limitations on civil liberties contained in the Alien and Sedition Acts rather than expressions of full-blown constitutional theory. Later references to the resolutions as authority for the theories of nullification and secession were inconsistent with the limited goals sought by Jefferson and Madison in drafting their protests.

    *Tenth Amendment
    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    1. James Madison opposed nullification and never endorsed it. In the Virginia Resolutions Madison wrote about interposition, not nullification. Nullification is and has always been unconstitutional. No federal court has ever stated otherwise. The 10th Amendment does not and has never been interpreted to mean it superseded the Supremacy Clause of the US Constitution.
      There’s a lot of 10th Amendment advocates out there that seem to think that it does do that, but they are wrong. Their argument for state’s rights is somewhat laughable because state’s rights is the defense mechanism of the party that is not in power no matter what party it is. Once a party gains control of the federal government they go about using federal power to legalize their platforms or to remove the other party’s legislation. That in itself does not fit the state’s rights doctrine at all.
      In effect, state’s rights is nothing more than a red herring.

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