A Better State Approach to Gun Control Nullification

It is clear the Biden administration intends to significantly ramp up its attempt to suppress private gun manufacturing and ownership by using the ATF's regulatory authority to redefine millions of existing parts and weapons as illegal. Their whimsically detailed spreadsheets and twelve-part "what is a gun, anyway" multifactor tests notwithstanding, there is no good faith attempt to inject clarity into exactly what they consider legal, but rather introduce maximum vagueness so they have maximum freedom to arbitrarily punish their political and ethnic enemies. Needless to say, passing legislation to do this is purportedly unnecessary.

Understandably, there has been backlash. Particularly, on the state legislative level, there have been numerous attempts to end-run the ATF and exempt some categories of arms or people from federal regulation. Some of these are more promising than others, but most so far have been token efforts doomed to failure.

Let me explain what won't work. Legislation that relies on arguments that the federal government oversteps its authority by regulating intrastate arms is dead on arrival. Texas is trying nonetheless, even after Kansas tried an identical approach and was shot down. 10th Amendment and Commerce Clause arguments approximately never work, and when they do it is so rare that they don't form a corpus of law that can actually be used as precedent. We have established that the feds can't ban guns in a school zone on Commerce Clause grounds, but that is apparently the only thing they cannot do. They can totally ban you from growing and consuming wheat on your own property, or filling in a pond you dug in your own field, or doing the wrong kind of cryptography in your living room.

There is a far better approach, supported by the historical record and yet historically untried in the courts, that has the advantage of throwing the disingenuous prog reading of the second amendment in their faces.

The prog reading of the second amendment is that it solely applies to federal regulation of state militias. What is a "state militia"? It cannot be a standing force, since the constitution specifically forbids states from "without the Consent of Congress... keep[ing] troops... in time of peace". Historically, and contemporaneously with the founders, it was some local assemblage of civilians who could be called out by the state or local governments in emergencies, with a mix of their privately acquired and held weapons and some local stockpiles.

The specific historical event that caused the first outbreak of fighting in the American Revolution was the British government attempting to disarm these state-blessed militias by seizing their weapons stockpiles. The specific fear that led to the passage of the Second Amendment (besides its broader historical context in the English Bill of Rights and the historical Anglo-Saxon and Scots traditions of private weapons ownership and self defense), was that the newly established federal government would mirror these abuses and attempt to disarm (or take responsibility for arming and then neglect their duty) the militias, which were explicitly intended to balance and deter the federal armies, as well as being obviously necessary for security in the context of genocidal frontier warfare, domestic insurrections against weak state governments, and long coastlines and borders vulnerable to foreign attack.

The tack for an ambitious state governor is clear: define your state militia, and what weapons you wish them to be equipped with should you need to call them out (a variant of the standard infantry rifle of the US armed forces for the last fifty years would probably be a good start, but of course hearing protection is also important). If need be, open a limited state arms store in the same way some run state liquor stores. The idea that the federal government could substantively obstruct this (eg by ruinously taxing, requiring months-long waiting periods, or forbidding altogether) is unsupportable in historical context, as long as it has the explicit legislative blessing of the state as being necessary for their security.

Most states have been unfortunately staid in their gun control pushback, usually detailing what the state will not do while allowing the federal government to impede their citizens' ability to arm themselves. To the extent they have filed legal briefs or brought cases, it has been in support of the conception of the second amendment as an individual right they wish to preserve for their citizens, rather than as guarding the ability of the state to secure itself. Given the infiltration of cartel influence on the periphery (better armed at the high end than the federal government allows for their own citizens) as well as the threat of violent insurrection domestically, everything old is new again and the concerns of the founding generation are newly relevant.