Missouri recently narrowly avoided a dubious distinction: becoming the first state to enact a law drawn directly from the fantasies of the far-right antigovernment “Patriot” movement of the 1990s.
By only a handful of votes, the Missouri state Senate last week failed to override a governor’s veto of a bill that would have ostensibly “nullified” federal gun laws and their enforcement in the state, and would have directed local authorities to arrest federal officers who tried to enforce them. GOP leaders in the state cited concerns about hindering local law enforcement and infringing on free-speech rights.
The Missouri legislation was only the foremost example of a nationwide movement among conservative states to “nullify” federal laws with which those officials disagree — most notably, gun-control laws. A number of states have already passed gun laws that challenge federal power, led by Montana’s Firearms Freedom Act, which exempted guns manufactured in the state from federal regulations.
Those laws, as a New York Times story explained, were the brainchild of a longtime Montana gun rights advocate named Gary Marbut, who told the reporter that nullification laws were “a vehicle to challenge commerce clause power,” the constitutional provision regarding interstate commerce that has provided much of the legal foundation for many federal gun-control measures. As the story noted, the U.S. Court of Appeals for the Ninth Circuit struck down Montana’s law, calling it “pre-empted [by federal power] and invalid.”
Marbut surfaced on the national scene in 2009, when he appeared on a Glenn Beck show on Fox News promoting these same nullification concepts. But he has been on the radar of people who monitor far-right extremists for many long years, because he is in fact one of the founders and earliest proponents of the "militia" concept that is at the core of the Patriot movement.
Indeed, the emergence of the nullification strategy by a broad swath of the conservative movement has its origins in ideas promulgated by a number of figures on the extremist right. Besides Marbut, these include former Colorado legislator Charles Duke, former Oklahoma legislator Charles Key, and neo-Confederate ideologue Thomas Woods, whose 2009 book, Nullification: How to End Federal Tyranny in the 21st Century, is considered the Bible of the movement.
However, the movement itself precedes Woods’ book by half a century. As scholar Garrett Epps told the SPLC: "The ideology behind these new bills comes directly out of resistance to civil rights legislation in the 1950s. They claim it goes all the way back to Jefferson, but it's really grounded in the resistance to the federal enforcement of civil rights. I expect that to be the next wave of bills — to nullify the Americans With Disabilities Act or the Civil Rights Act of 1964. This is lunatic fringe stuff that's coming out of the shadows at a moment when people see an opportunity to take us back to the 1950s."
It resurfaced, notably, in the 1990s, as a product of the far-right ideology promoted by the Patriot/militia movement. Among the foremost of these promoters was Gary Marbut, who has run for office numerous times in Montana but has never won, in large part because of his history of radicalism.
Notably, Marbut in the 1990s tried organizing Patriot gun-oriented political-action groups, telling would-be members that they could form “gun clubs” under the guise of the more benign name of “neighborhood watches.” Marbut said firearms, along with "communications, organizations, and supply" could also be incorporated into these “watches.” In 1998, Marbut’s Montana Shooting Sports Association (MSSA) suggested Montana secede from the union because the federal government had banned the possession of assault rifles by civilians. Three years earlier, in 1995, the MSSA supported a resolution that would have legalized "unorganized militias," another term for groups like the Militia of Montana.
One of Marbut's columns, appearing in the January/February 1996 issues of extreme-right tabloid The Jubilee but attributed to the Patriot-movement organ Sierra Times, was a progenitor of his current nullification strategy: Marbut claimed the MSSA had drafted a successful bill declaring that the Montana Constitution guaranteed the right to keep and bear arms to all law-abiding adults, thus exempting them from the Gun Free School Zones Act — the federal law that made it a criminal offense to travel within 1,000 feet of a school while possessing a firearm. Marbut wrote that "the people of Montana remain protected from the silliness of the Congressional act by the intervention of the Montana Legislature." He also said the new law "pulls the rug out from under any would-be federal prosecution."
Marbut also actively promoted tax-resistance-style “jury nullification” in the 1990s. His MSSA website included a link to the Fully Informed Jury Association (FIJA), along with a note from Marbut saying FIJA is "the last peaceable barrier between innocent gun owners and a tyrannous government." FIJA promotes jury nullification, or the concept that individual jurors can judge the law itself — not just the evidence in a particular court case and how the law applies to that evidence, but the underlying law’s constitutionality. Numerous Patriot organizations, including the Militia of Montana, sold videos by such FIJA "experts" as the renowned anti-Semite, Martin “Red” Beckman of Billings.
Nowadays, Marbut remains very active on the Tea Party front, and uses that platform as a significant way of pushing his extremist ideas into the mainstream. In 2011, he co-hosted an appearance by Larry Pratt of the Gun Owners of America — another godfather of the militia movement — in an appearance before a “Tea Party” organization in Hamilton, Mont.
The post-civil rights era wave of nullification legislation, it should be noted, did not actually originate with Marbut, who is more than anything one of its more prominent and persistent advocates.
The laws, in fact, were first proposed in the 1990s by Charles Duke, then a Republican state senator from Colorado. Duke's blueprint has been picked up by all of these would-be legislative insurgents.
As an earlier SPLC profile explained: “Charles Duke was truly the militiaman's representative. Serving six years in the state House and almost four in the state Senate, the Republican from Monument was also honorary chairman of the National State Sovereignty Coalition, a Patriot outfit. He wrote a weekly column for a key Patriot publication, The Free American.”
Duke was well known for his headline-grabbing antics. He once asked a crowd how many in attendance believed the federal government was behind the 1995 bombing of the Murrah Federal Building in Oklahoma City. He warned, in The Wall Street Journal, that "an executive order is being prepared by President Clinton to suspend the Bill of Rights." He was also oddly paranoid, suggesting once that his home had been bugged by then-GOP House Speaker Newt Gingrich.
Most disturbing was how Duke went about promoting his proposals. As the Anti-Defamation League explained, Duke avidly promoted the militia concept. In July 1994, Duke told a gathering of Patriots: "We need some ability to get some firepower to protect the citizens. I would like to see a militia ... [the type] that functions as a sheriff's posse and has sufficient training." He attended a number of far-right conventions and frequently railed against “the tyranny” of the federal government.
Most notably, Duke found an ardent following with the white-supremacist Christian Identity movement, appearing on the movement's main shortwave radio program and submitting to interviews with its newspaper, The Jubilee. According to the ADL, “Duke was a featured guest on The Jubilee's shortwave program, ‘NewsLight,’ when he promoted the Tenth Amendment Resolution. … Duke was scheduled to be a featured speaker at The Jubilee's 1994 ‘Jubilation Celebration’ conference. He backed out at the last minute.”
Duke also was brought out to Jordan, Mont., in 1996 during the 81-day FBI standoff with the Montana Freemen to negotiate, since he was one of the few public officials the Freemen trusted. Duke failed, however, and wound up causing more disruption at the scene than in helping create a breakthrough, though of course the Freemen eventually surrendered peacefully anyway.
Eventually, Duke had an epiphany and announced that God had told him to drop out of politics and instead learn "how to survive in a country devoid of freedom."
A third major figure in promoting nullification among mainstream Republicans has been another far-right legislator named Charles Key, who appeared back in 2009 on Neil Cavuto's show on Fox News promoting the concept. Cavuto's segment featured a credulous interview with Key, an Oklahoma legislator who has been similarly involved with Patriot-movement radicalism since the 1990s.
For instance, Key was heavily involved in promoting conspiracy theories in the 1990s that claimed that the federal government was actually behind the 1995 Oklahoma City bombing that was in reality perpetrated by an adherent of Patriot movement ideology. He even convened a grand jury to investigate the matter, and when the resulting investigation completely debunked his theory, he denounced it.
Now, it's one thing to point out the radical origins of these "constitutional theories." But it's also important to understand where these far-right ideologues want to take us -- to a radically decentralized form of government that was first suggested in the 1970s by the far-right Posse Comitatus movement.
These radicals essentially argue for a constitutional originalism that would not only end the federal income tax, destroy all civil-rights laws, and demolish the Fed, but would also re-legalize slavery, strip women of the right to vote, and remove the principle of equal protection under the law.
That's the ideology that the seemingly mainstream Missouri legislators sponsoring and supporting nullification legislation have now aligned themselves with. Indeed, the Patriot movement is being mainstreamed before our very eyes.
For now, those legislators have admitted temporary defeat, but have vowed to return next year with the same legislation and make another attempt. And in the meantime, more nullification schemes loom in other states.
It’s a militiaman’s dream come true.