The plan for police nullification

By Selwyn Duke

"I [sic] give my left n** to bang down your door and come for your gun," said the cop. This statement, made by Branford, Ct., police officer Joseph Peterson in a Facebook conversation earlier this month, created quite a blogosphere firestorm. Internet commenters from Sacramento to Saratoga struck a note of defiance and e-shouted the ancient words of Spartan King Leonidas, "Molon labe!" On the other side there's Ct. governor Dannel Malloy (D), who said to a gun owner at a March 13 town-hall meeting that the anti-Second Amendment set won and "you lost." But it occurs to me that in-your-face actions can go both ways.

Pondering this brings to mind yet another type of response to the (anti)Constitution State door-banger: from law-enforcement officers (LEOs) vowing not to enforce unconstitutional gun laws. One of them, a retired career detective responding to Officer Peterson's statement that his job is only to enforce the law – and that he must do so no matter what form it takes – called Peterson a "fool" and wrote, "Part of the filtering process in criminal justice IS the police choosing whether or not to enforce a law at a particular point in time on a particular person." This gets at an important point: the "good soldier" cop argument is bunk. No LEO tickets everyone driving 31 in a 30 zone, many laws are on the books but not enforced at all, and no moral cop would obey a command to round up all members of a certain ethnic group for extermination. Police use discretion all the time.

And, if our constitutional rights are to be secure, we need fewer Officer Petersons in the world and more, let's say, Sheriff Joe Arpaios. We don't need good-soldier cops – we need good-citizen cops.

The solution to this problem lies in the LEO selection process. If your area is electing a sheriff, there must be an explicit litmus test:

Will you protect constitutional rights?

And will you disobey unconstitutional orders, no matter their origin?

Any waffling or hesitation should disqualify the candidate. We need LEOs who won't just yes us to death, for electoral ambitions have a way of greasing the tongue. We need LEOs who are passionate about the issue, stout-hearted cultural and constitutional warriors. And while we can't read minds, remember this: if you want to know what a person wants you to believe he believes, listen to what he says. If you want to know what he really believes, listen to how he says it. While some people are A-list actors, it's hard to fake true passion.

But even this isn't enough. The candidate must also agree to incorporate as part of regular deputy training a comprehensive course on the U.S. Constitution. This course must reflect what is called a strict "originalist" view of the document, but what is really just the only lawful, correct view. (It would be silly to call someone who follows the rules of poker an originalist and someone who doesn't a "pragmatist." The latter is called a cheater.) It must emphasize that an unconstitutional law is no law at all.

This brings us to something else Gov. Malloy said to the gun owner at the town hall: "[W]e have courts. Courts are where the constitutionality of things are [sic] decided."

Actually, no, they're not.

Courts are where the courts' position on constitutionality is decided.

As for actual constitutionality, that's an objective reality that cannot be changed by cheaters who rationalize that rules can be "living" (which is convenient when you've assumed the power of life and death over them).

And "assumed" is the operative word. Nothing in the Constitution grants the courts the power to be the ultimate arbiter of the document's meaning. So who did grant the courts this power?

The courts themselves!

Chief Justice John Marshall took it upon himself to assert this right in the 1803 Marbury v. Madison decision. This started the transition from the rule of law to the rule of lawyers.

This is why the LEO Constitution course must also incorporate Thomas Jefferson's correct position on the courts' role. Our third president wrote in 1819 that he denied "the right they [the courts] usurp of exclusively explaining the constitution...," saying that if that right became status quo, "then indeed is our constitution a complete felo de se." That's Latin, of course.

It means "suicide pact."

And no American has an obligation to be party to a suicide pact.

Jefferson went on to explain, "For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this [judicial review] opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation." Quite right. And if the courts can unilaterally decide that they have ultimate-arbiter power, guess what?

We can unilaterally decide they don't.

Yes, in-your-face actions can go both ways.

As for law enforcement, what if you can't vote for your head LEO because you live in a city in which the mayor appoints a police chief? Then the litmus test a sheriff would have to pass must be applied to a mayoral candidate. If he's a Bolshevik Bill unwilling to appoint a Constitution-loving-and-fearing chief who will institute the aforementioned Constitution course, tell him sorry, but only true Americans need apply.

As first responders, LEOs can also be first persecutors or first protectors. What they actually will be is up to us.

© Selwyn Duke