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.
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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 one) strike 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.”