Alabama senators need to come up with a cheaper way to issue press releases.
Their latest publicity stunt was labeled, “The Second Amendment Preservation Act.” The bill passed 24 to 6. Republicans have a supermajority, and only one Republican — not from this area — voted against it.
According to the two-page bill, “All federal acts, laws, orders, rules, or regulations regarding firearms are a violation of the Second Amendment.” Because every act of Congress relating to firearms violates the Second Amendment, the bill declares they “are invalid in this state, shall not be recognized by this state, are specifically rejected by this state, and shall be considered null and void and of no effect in this state.”
If the bill were constitutional, it would be frightening. It would nullify the federal ban on civilian ownership of machine guns, which have been restricted since 1934. It would invalidate the cursory background checks by gun dealers designed to keep convicted felons and those adjudicated mentally ill from buying handguns. It would prevent officials from adding felons and mentally ill individuals to the database used in background checks.
The bill, however, is not constitutional. However much state lawmakers may wish it were otherwise, the U.S. Constitution does not give them the power to overturn federal laws.
The young nation struggled briefly with the issue of who decides whether a law is constitutional after the Constitution was adopted in 1787. The issue was resolved conclusively in 1803, 16 years before the Alabama territory petitioned to join the union.
It is the U.S. Supreme Court — not the state legislatures, not Congress and not the president — that determines whether legislative acts conform to the Constitution.
The senators — many of whom are lawyers — of course know the bill is not constitutional. Indeed, it is unlikely they want it to be constitutional. The first machine-gun massacre would not go over well in their campaigns for reelection.
If the goal was simply to remind Congress that Alabama does not like gun control — as if Congress hasn’t figured that out — there are better ways to do it. The most obvious way is through the state’s federal elected officials. Indeed, both U.S. senators from Alabama recently helped defeat gun legislation. If that was not enough, state legislators could have passed a resolution declaring their fury at gun control.
The goal in passing the bill, though, was entirely political. They figure reelection is more likely in Alabama if voters see them attacking the federal government, even if those attacks are impotent.
As Alabamians have seen over and over since the 2011 legislative session, passing unconstitutional laws is expensive. People and organizations who don’t like the laws file lawsuits. The state has to defend the lawsuits. It has to pay lawyers and court costs. It then loses the lawsuits and sometimes gets stuck with the other side’s legal fees.
Voting for unconstitutional bills is a political luxury that minority parties can enjoy. The majority party, however, is tasked with the responsibility of governance. Republicans have had complete control of the state for almost three years. It is time for them to forego expensive political gimmicks and embrace the difficult chore of leadership.