Is it possible

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raccol
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Is it possible

#1

Post by raccol » Wed Dec 03, 2008 7:33 am

for a state to pass a law that would render a federal law restricting intrastate gun sales and ownership void?

What is the impact of federal gun legislation that is counter to state constitutions with gun ownership rights guaranteed?
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Re: Is it possible

#2

Post by nitrogen » Wed Dec 03, 2008 7:48 am

In one word: no.

Other states have tried this in regards to marijuana law, and the courts have usually found such laws invalid.

It might be a fun exercise though.
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Re: Is it possible

#3

Post by seamusTX » Wed Dec 03, 2008 8:03 am

The U.S. Constititution, Article I, Section 8, says,
The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States,...
This is the infamous commerce clause.

Then we have Article VI:
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.
Finally we come to the 10th Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The flip side of this amendment makes it clear that if a power is delegated to the federal government, it is out of the hands of the states.

The way that the U.S. Supreme Court has interpreted these clauses over the years is that if Congress passes a law related to interstate or international commerce, any item that has been or could be traded in interstate commerce is subject to that law.

I rather doubt the founders intended the consequences, but we're stuck with them.

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raccol
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Re: Is it possible

#4

Post by raccol » Wed Dec 03, 2008 9:59 am

but what about a FTF sale within the state? since it's not interstate, the fed law shouldn't apply.

what about the state constitutions with RKBA rights enumerated? could/should a federal law override that?
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Re: Is it possible

#5

Post by seamusTX » Wed Dec 03, 2008 10:10 am

The catch is that even though a firearm was made and sold within one state, because it is a portable item, it could be used in interstate commerce.

The Supreme Court dropped this little stink bomb back in the 1930s. It has been held to support many federal laws that would not otherwise be within the enumerated powers of Congress. You don't see in Article I the power to regulate pot, food, prescription drugs, cars, airplanes, etc.

A state constitution can have a more explicit bill of rights than the U.S. Constitution. For example, a few state constitutions have a right to keep and bear arms without any association with a militia.

However, if a federal law has been passed and upheld by the courts, it overrides the state constitution. That's what Article VI says.

These issues have been litigated many times. For example, Texas law allows a convicted felon to have a firearm in his home after a period of good behavior. Federal law prohibits that, and that federal law is often prosecuted.

- Jim

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Re: Is it possible

#6

Post by Charles L. Cotton » Wed Dec 03, 2008 10:28 am

As Jim said, states cannot pass laws that nullify federal law. The primary challenge to a federal criminal law is that it exceeds the authority of the Commerce Clause, or that it invades the police powers of the state. The Commerce Clause argument almost always fails now and the police powers argument though still viable rarely prevails. Too bad we lost the civil war; the Tenth Amendment pretty much died in 1865.

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Re: Is it possible

#7

Post by Purplehood » Wed Dec 03, 2008 10:30 am

Charles L. Cotton wrote:As Jim said, states cannot pass laws that nullify federal law. The primary challenge to a federal criminal law is that it exceeds the authority of the Commerce Clause, or that it invades the police powers of the state. The Commerce Clause argument almost always fails now and the police powers argument though still viable rarely prevails. Too bad we lost the civil war; the Tenth Amendment pretty much died in 1865.

Chas.
That was a very interesting statement.
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Re: Is it possible

#8

Post by Charles L. Cotton » Wed Dec 03, 2008 10:39 am

Purplehood wrote:
Charles L. Cotton wrote:As Jim said, states cannot pass laws that nullify federal law. The primary challenge to a federal criminal law is that it exceeds the authority of the Commerce Clause, or that it invades the police powers of the state. The Commerce Clause argument almost always fails now and the police powers argument though still viable rarely prevails. Too bad we lost the civil war; the Tenth Amendment pretty much died in 1865.

Chas.
That was a very interesting statement.
I'm speaking purely from a states' rights viewpoint and in light of the exponential growth of federal power after the war.

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Re: Is it possible

#9

Post by seamusTX » Wed Dec 03, 2008 10:49 am

What happened from 1865 through 1932 was dwarfed by the expansion of federal power from 1933 to 1945, but that's all a done deal now.

The lesson that too many people fail to learn is that when one grants the federal government the power to do something that seems like a good idea at the time, one also grants the federal government the power to work great mischief.

- Jim


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Re: Is it possible

#10

Post by raccol » Wed Dec 03, 2008 11:09 am

Charles L. Cotton wrote: the Tenth Amendment pretty much died in 1865.

Chas.
ain't that the truth!
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Re: Is it possible

#11

Post by Purplehood » Wed Dec 03, 2008 11:13 am

Charles L. Cotton wrote:
Purplehood wrote:
Charles L. Cotton wrote:As Jim said, states cannot pass laws that nullify federal law. The primary challenge to a federal criminal law is that it exceeds the authority of the Commerce Clause, or that it invades the police powers of the state. The Commerce Clause argument almost always fails now and the police powers argument though still viable rarely prevails. Too bad we lost the civil war; the Tenth Amendment pretty much died in 1865.

Chas.
That was a very interesting statement.
I'm speaking purely from a states' rights viewpoint and in light of the exponential growth of federal power after the war.

Chas.
Thanks for the clarification. I was taking it as a much narrower focus...
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Re: Is it possible

#12

Post by Pinkycatcher » Wed Dec 03, 2008 6:08 pm

seamusTX wrote:What happened from 1865 through 1932 was dwarfed by the expansion of federal power from 1933 to 1945, but that's all a done deal now.

The lesson that too many people fail to learn is that when one grants the federal government the power to do something that seems like a good idea at the time, one also grants the federal government the power to work great mischief.

- Jim
True, but it was only allowed to happen because of the massive changes between 1865 and 1932. See what happens when you economically ruin half the country, is the other half runs it, and when one group is pretty much in power they like to grow it (see even Bush did it, I'm not hostile to him, but I kind of wish the Repubs didn't go crazy making new government agencies and what not)

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Re: Is it possible

#13

Post by seamusTX » Wed Dec 03, 2008 6:22 pm

History is pretty complicated. I barely understand it.

After the South ousted the carpetbaggers, who were mostly Republicans (as Lincoln was), the South was so solidly Democratic that each town had to nominate one token Republican that they could hassle. :lol:

The Democratic majority in Congress that existed through much of the 20th century necessarily included powerful Southern Democrats like Sam Rayburn and Lyndon Johnson. (I'm still puzzled why they did some of the "liberal" things that they did.)

I've said this before: I think the slow dismantling of the RKBA was due more to urbanization and immigration of people who did not have a tradition of firearms ownership or armed self-defense of any kind.

Also, after the War of 1812 and the Mexican War, the U.S. was an indisputable power that had nothing to fear from foreign enemies. That changed in 1914, when fear of the "Hun" gave the country a common enemy, and even more so in 1941 where a very legitimate fear of Japan meant that rights gave way to urgent needs.

- Jim


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Re: Is it possible

#14

Post by aardwolf » Wed Dec 03, 2008 9:28 pm

raccol wrote:but what about a FTF sale within the state? since it's not interstate, the fed law shouldn't apply.
Your assuming the supreme court cares about the constitution instead of saving their cushy jobs. That illusion was shattered when they ruled a farmer growing crops to feed his own family was interstate commerce. :banghead:
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Re: Is it possible

#15

Post by seamusTX » Wed Dec 03, 2008 9:44 pm

Why do they have to worry about their jobs? They are appointed for life and can be removed only by impeachment, by the same process as the president. The last time it was tried was 1970, aimed at Justice William O. Douglas. (It failed).

Even if a Justice is removed and replaced, the Court will follow stare decisis on most issue.

I don't know why the Supreme Court rules the way that it does, outrageous as some of its rulings are to those of us who can't do anything about them.

- Jim

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