FRANKFORT — Those who love American history and the history of the U.S. Constitution may have enjoyed Monday’s debate in the Kentucky Senate.
Or maybe they would’ve been frustrated – depending on their point of view.
The Senate passed a bill sponsored by Sen. Jared Carpenter, R-Berea, “to prohibit the enforceability of any new federal law, rule, regulation, or order relating to the ownership or registration of certain firearms, magazines, or other firearms accessories.”
Carpenter said the bill was in response to the administration of President Barack Obama, which he said is “openly attacking our Second Amendment rights” in the wake of the mass killing of school children in Sandy Hook, Conn.
It wasn’t much of a contest. The bill passed 34-3 with only three Democrats opposing the bill: Kathy Stein of Lexington, Gerald Neal and Morgan McGarvey, both of Louisville. All three spoke against the bill and said it is clearly unconstitutional.
Even some who voted for the bill conceded the bill contradicts Article VI of the U.S. Constitution, the so-called “primacy clause.”
Sen. Ray Jones, D-Pikeville, a co-sponsor, made a lengthy floor speech in support of the bill, saying gun ownership “is a way of life in Kentucky and a way of life in rural America.”
But Jones also said: “We are all aware of supremacy (clause in the U.S. Constitution) and we all respect the Constitution.”
The second paragraph of Article VI of the U.S. Constitution reads:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Sen. Julian Carroll, D-Frankfort, said he understood the clause and that Carpenter’s bill is unconstitutional but he voted yes to communicate his position on the Second Amendment.
Stein said fears that the federal government is “coming for our guns” are groundless.
“I believe in the Second Amendment,” Stein said. “I believe there are limits on the Second Amendment just as there are limits on the First Amendment.”
Obama and some members of congress have proposed universal background checks for all gun sales and limits on so-called assault rifles and ammunition magazines of more than a proscribed amount of rounds. Polling indicates wide support for background checks and majority support for some of the other measures.
The U.S. Supreme Court has ruled the Second Amendment does not allow prohibition – even by local jurisdictions – of firearm ownership but most legal scholars say the right is not unlimited.
Like Stein, Neal and McGarvey raised the history of “nullification,” the theory that individual states can choose to nullify or ignore federal laws they find unconstitutional. There have been several nullification debates and crises in U.S. history, beginning in 1796 when Kentucky and Virginia passed resolutions decrying the Alien and Sedition Acts.
The question arose again in the 1830s over tariffs and in the 1850s over slavery and eventually led to the Civil War which most constitutional scholars say settled the question.
McGarvey said Monday the U.S. Supreme Court has “expressly held the principle of nullification shall be unconstitutional” and he even offered a solution for the Kentucky Senate.
McGarvey suggested the Senate pass a resolution expressing “our sentiment” about the Second Amendment and asking Kentucky’s Congressional delegation to read that resolution on the floor of the U.S. House and U.S. Senate rather than pass a law which the courts are certain to strike down.
But the political risks are clear in a conservative state where Obama is widely unpopular – that’s why so many Democrats voted for the bill.
Jones said, “Sometimes you have to vote the wishes of your district,” noting that most people in Pike County do think the federal government is inimical to basic gun rights.
The bill goes now to the Democratic-controlled House where its fate is uncertain. It could die in committee but, should the bill reach the floor, opponents would probably have a hard time defeating the bill.