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Eyeplink45
January 2, 2013, 01:27 AM
If individual states can decriminalize a federally controlled substance like marijuana, then would it be possible for states to do the same with federally restricted firearms?

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2RCO
January 2, 2013, 01:30 AM
Montana had an Act that passed some time ago doing basically what you are saying with Montana made firearms.
I haven't really followed up on it to see how far the envelope has been pushed.

Ragnar Danneskjold
January 2, 2013, 02:32 AM
The problem is that individual states as of right now can't actually do that. Even with marijuana. We just happen to have an administration and federal Justice Department that chooses not to prosecute marijuana cases. But as the law stands right now, they can if they choose to. The Supreme Court has already upheld that the Commerce Clause gives them the authority. Basically their argument relies on not being able to tell the difference between marijuana grown in one state vs. another, so it all can be regulated.

Unfortunately the Supreme Court has pretty much set a precedent that the federal government can control anything they want under the Commerce Clause. Because so many components, ingredients, and complete products are traded back and forth between states, it's just currently accepted in the legal community that the federal government can shoehorn the control of anything under the Commerce Clause.

Should the law under its original intent be interpreted this way? No. But right now it is. And any state that tries to loosen firearm laws by trying to keep things in their own border, is going to have the fist of the federal government come down on them whether it's justified or not.

Yes, Montana has passed a law that allows firearms that are produced, sold, and possessed entirely within their own borders to have looser restrictions than the federal government allows. So far however, no one that I know of has actually tried testing it. And if they did, I guarantee they would be prosecuted by the federal Justice Department. And not only would they lose, but the Supreme Court would probably up hold the conviction. "States Rights" is a fantasy the federal government allows us to have as long as we don't get too uppity.

Frank Ettin
January 2, 2013, 09:37 AM
If individual states can decriminalize a federally controlled substance like marijuana, then would it be possible for states to do the same with federally restricted firearms?

The Constitution provides (Article VI, Clause 2):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.If something is illegal under federal law (like marijuana), it is still illegal, even if it is not illegal under state law. This simply means that you will get arrested by the FBI, ATF, U. S. Marshall or DEA, instead of the local police or sheriff; you will be tried in federal court instead of state court; and you will go to a federal prison instead of a state prison.

aeriedad
January 2, 2013, 09:56 AM
This simply means that you will get arrested by the FBI, ATF, U. S. Marshall or DEA, instead of the local police or sheriff; you will be tried in federal court instead of state court; and you will go to a federal prison instead of a state prison.

If there is probable cause, you will be arrested and tried. If the evidence proves guilt beyond a reasonable doubt, you will go to prison. Even the federal government is bound by the principles of probable cause and reasonable doubt.

Ragnar Danneskjold
January 2, 2013, 10:20 AM
True, but that's nitpicking semantics that have nothing to do with the point of this thread.

Frank Ettin
January 2, 2013, 11:18 AM
This simply means that you will get arrested by the FBI, ATF, U. S. Marshall or DEA, instead of the local police or sheriff; you will be tried in federal court instead of state court; and you will go to a federal prison instead of a state prison.

If there is probable cause, you will be arrested and tried. If the evidence proves guilt beyond a reasonable doubt, you will go to prison. Even the federal government is bound by the principles of probable cause and reasonable doubt.Yes, the probable cause, etc., requirements still apply.

However, to be clear, it should have been apparent that I was identifying the differences between something being illegal under state law and something being illegal only under federal law. Hence the terminology "...[federal]...instead of...[state]...." A requirements of probable cause for an arrest and proof of guilt (satisfactory to the trier of fact) beyond a reasonable doubt for conviction are not differences. They are the same whether something is illegal only under state law, state and federal law, or only under federal law.

txnative1951
January 2, 2013, 11:32 AM
Well, when the Feds violate their own laws (i.e. the Constitution), I don't see any reason why we should follow their laws. The Supreme Court is not infallible and their MISinterpretation of the Commerce Clause is just one example of it.

Frank Ettin
January 2, 2013, 11:53 AM
Well, when the Feds violate their own laws (i.e. the Constitution)...Only if a court has so ruled. Your opinion doesn't really control.

...I don't see any reason why we should follow their laws... If you violate federal law you can go to prison (and generally lose your gun rights for the rest of your life).


THR is (http://www.thehighroad.org/announcement.php?a=20)...an online discussion board dedicated to the discussion and advancement of responsible firearms ownership... Responsible gun owners follow the law. Advocating or condoning illegal acts is unacceptable on THR.

...The Supreme Court is not infallible...Perhaps not, but it is where the question of the constitutionality of a law is finally decided.

A court's opinion on a matter of law, such as whether a law is or is not constitutional, affects the lives and property of real people in the real world. Your opinion on such things does not.

Why do the courts get to decide such thing? Well, the Constitution authorizes them to do so (Constitution of the United States, Article III):

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,....

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

And, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....

Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus there was Common Law precedent, as no doubt understood by the Founding Fathers, for the invalidation of a law as unconstitutional being within the scope of the exercise of judicial power. (And English cases continued to be cites by courts of the United States for many years after Independence.)

And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.

So the bottom line is that whether or not a law is constitutional will be up to the court, not you.

txnative1951
January 2, 2013, 05:12 PM
So the bottom line is that whether or not a law is constitutional will be up to the court, not you.

I seem to remember that the Court ruled at one time that slavery was constitutional also. They are mere men and subject to the prevailing prejudices of their time. Just because the current ensemble says that something is not Constitutional, it doesn't mean that they are right. If a person stands up for his Constitutional rights and they imprison him for violating an unconstitutional law (regardless of what The Supremes might say), he is a political prisoner, just like what we see in other governments that abuse their powers. If you had asked the first Supreme Court whether the 2nd Amendment was absolute, I'm pretty sure that they would have said yes. But then again, if they wanted a clarification on the intents of the Founding Fathers, all they had to do was *ask* them. :)

Can the government restrict the religion that a person practices? As long as he does not hurt anyone else in the practice of that religion, I think that everyone would agree that they can't do that. And even if they do hurt anyone in the practice of their religion, it is the *hurting* that is illegal, not the *religion*. I don't agree with some of the religions out there, but I recognize their Constitutionally guaranteed right to believe whatever they want to with regards to an afterlife (or lack thereof). As long as a person is not hurting anyone else with my firearms, that same thing should apply. And if that person is hurting others with his firearms, then the act of hurting is already covered under various laws and we do not need to address the tools that he might have used to facilitate the hurting action.

We need to quit giving tacit acceptance to the views of the liberals by suggesting that *some* gun control laws might be "reasonable". It's time to stand up and say, "I'm not going to take it anymore". If we do not speak out against this usurping of our 2nd Amendment rights and point out that ALL of these laws are unconstitutional since they INFRINGE upon our right to bear arms, all that will happen is that we'll have even more of our rights stolen from us.

Frank Ettin
January 2, 2013, 05:59 PM
...We need to quit giving tacit acceptance to the views of the liberals by suggesting that *some* gun control laws might be "reasonable". It's time to stand up and say, "I'm not going to take it anymore". If we do not speak out against this usurping of our 2nd Amendment rights and point out that ALL of these laws are unconstitutional since they INFRINGE upon our right to bear arms, all that will happen is that we'll have even more of our rights stolen from us. Once again, we follow the rule of law here at THR. One may object to a law and urge the use of the peaceful processes built into our system.

But if one posts here urging that people disobey the law or go beyond the available peaceful processes available to challenge or change the law, his tenure here will not be long.

armoredman
January 2, 2013, 06:39 PM
A bit of good news, buried in the bad.
Unfortunately the Supreme Court has pretty much set a precedent that the federal government can control anything they want under the Commerce Clause. Because so many components, ingredients, and complete products are traded back and forth between states, it's just currently accepted in the legal community that the federal government can shoehorn the control of anything under the Commerce Clause.
No longer true - the ObamaCare decision decided ObamaCare individual mandate exceeded the Constitutionality of the Commerce Clause, the first time Congress got that hand slapped in the cookie jar, so it CAN happen again.

pendennis
January 2, 2013, 07:30 PM
While I'm well aware of Marbury v. Madison, and the abject hijacking of the U.S. Constitution, there has been no scholar since then who can find any language in the original document, nor in such illuminating documents such as "The Federalist".

I would submit, that contrary to the popular myth, Marbury has become a shield behind which the excecutive and legistlative branches hide. It's much easier to use Marbury as an excuse, than to wage political war against a co-equal branch of government.

The justices who sit on the U.S. Supreme Court, are not gods who've come down to earth, dispensing justice and wisdom along the way. And as far as that goes, none of the appellate justices nor Federal judges bring any sort of vast legal wisdom to the bench. They're political animals, and they feed on the fear they generate among the other two branches of government. Judges and justices are nearly immune from anwering to anyone. Power breeds thirst for power.

As others (txnative1951) have mentioned, the Supreme Court narrowly defined that slavery was legal in the Dred Scott decision.


They ruled that Separate but Equal was legal doctrine in Plessy v. Ferguson.
A Supreme Court ruled, in 1942, in Wickard v. Filburn, that Filburn's home-grown feed crop could be destroyed because he did not buy cattle feed on the open market, therefore affecting interstate commerce. (Try understanding the end-to-end logic there).
Justice Thomas Jackson rules that a "wall of separation" existed between church and state. There is no legal precedence for this; only a vagure reference in a letter between Thomas Jefferson and the Danbury Baptist Association (1802).
Citing "public accommodations", the Supreme Court ruled in Brown v. Board of Education, that private property (restaurants, schools, etc.) was really public, overturning Plessy v. Ferguson.
In 1910, in Heller v. Washington D.C., the court rules that 2nd Amendment is an individual right. Two years later, Obama care is upheld, citing government's near-unlimited taxing ability.


The above are but a microcosm of the inane logic used by individuals who supposedly are immune to the body politic.

vamo
January 2, 2013, 08:37 PM
Marijuana is still very much illegal at the federal level and you could be prosecuted under federal law even where it is legal at that state level. The current admin has decided to not enforce federal marijuana prohibition in Washington and Colorado, or more accurately to only semi-enforce it. You better believe though that they will fully enforce any federal firearms laws, and you will be in just as much trouble for breaking said laws in a firearm friendly state as in a control state.

CharlieBT
January 2, 2013, 09:05 PM
Well, if the US Constitution, statutes and case law say it is illegal, for instance, to run a stop sign (substitute use/possess/transport/sell marijuana for running a stop sign), and a state adopts a law that legalizes the running of all stop signs within its geographic boundries, Frank is correct that the Supremacy Clause would dictate in a court contest over the two laws that the federal law would control the state law. No law exists but for the consent of the governed. Citizens know when law breakers run stop signs. It is plain to see. It is also plain to see when politicians throw in with them. I think what citizens see, think, say and do in response to open disregard for our nation's laws is of utmost political consequence to our nation's well being. Worse, being told that citizens' opinions don't matter a wit is not only incorrect insofar as how laws are administered, it is gravely dangerous when it comes to defending 2A interests. Opinions DO matter, that's why certain voters are being rewarded by this administration of federal drug laws, trumped, in practical effect, by state laws.

The same could occur in the 2A context. Grist for the mill: my town, known as Guntown USA, mandates that every household have a firearm and occupants be trained in the use thereof. Liberty is up, crime is down, for about two decades. (Search Guntown or Kennesaw on this site for more.) Imagine the 67 percent of free State's adopting such laws. This cannot help but have a dampening effect on designs for national gun control driven largely by representatives from DC, California, Illinois and the northern Eastern Seaboard. It could speak volumes in political circles, shape how executive branches enforce laws and in the end give effect to Joe Lunchbox's opinion, which is vital. If 67 percent of state officials REFUSE to enforce federally mandated gun control measures, based on the will of their electorates, do the Feds have the will and the armament to take such territory back? They've caved on pot in just two states.

We are the CEO's of our own destiny, not Congress and not the courts. Members of this forum have different opinions THAT MATTER, IMHO.

Frank Ettin
January 2, 2013, 09:09 PM
While I'm well aware of Marbury v. Madison, and the abject hijacking of the U.S. Constitution, there has been no scholar since then who can find any language in the original document, nor in such illuminating documents such as "The Federalist"...Nonetheless, in the real world that is beside the point.

First, there are no doubt others who would disagree with you regarding your various "colorful" opinions (e. g., "hijacking the Constitution", "popular myth", "Marbury as an excuse", etc.). You might have some lively discussion over such theories, and of course never reach any useful conclusion. However, in any event such matters are of no help or relevance to our discussions here.

Our focus is reality and the operation of the legal system in real life. We strive to understand how decision have been and will be made to both be better able to make more appropriate real world decision regarding how and what we do in real life and to better understand how we can actually effect change in real life.

The thing is that what courts do will affect real life. A decision of a court will result in some going to jail, or not, in someone owing someone else money, or not, in someone owning a particular piece of property, or not. On the other hand, your gnashing of teeth and rending of garments over your perceived theoretic missteps and errors of the courts does not affect the real world result.

And for every action by a court you feel was a "hijack of the Constitution" or some other type of grievous and fundamental doctrinal or ideological error, there is someone else who thinks it exactly right. Choosing one side or another is what courts do; and in that particular case, a court didn't take your side. But one important point is that the path the court took decided a real dispute resulting in a real effect in the real world. Another important point is that the decision of that court in that matter was based on prior decisions of courts in other dispute and will be applied in future decisions in yet other disputes.

Whether or not you think that all is right, that is how things are happening in the real world.

I really like the way Sam put it in a post in another thread (http://www.thehighroad.org/showpost.php?p=8610535&postcount=20):...The only value of our opinions on Constitutionality is in what they encourage us to do politically -- from voting and badgeing our representatives up to running for office ourselves to try and make changes. So those opinions have only a miniscule and secondary bearing on truth and reality.

Constituntionality is really not just an ephemeral concept (like love or honor or hope) which means something unique to every individual. It is a specific legal parameter which is decided by those appointed to do so. The Court decides whether something is Constitutional or not, and then is IS SO for whatever period of time that decision prevails. It is a fact, like (and analogous to) the question of whether a specific act is legal or not....

...Judges and justices are nearly immune from anwering to anyone...Which is as the Founding Fathers intended (Constitution, Article III, Section 1):Section 1. ...The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Frank Ettin
January 2, 2013, 09:19 PM
...Opinions DO matter,...Not quite. As Sam1911 noted (I quoted him in my post, above), our opinions matter insofar as they affect political actions we take. But our opinions on the legal question of whether or not a law is constitutional still don't matter. The legal question is the province of the federal courts as authorized by the Founding Fathers to exercise the judicial power of the United States to decide, among other things, cases arising under the Constitution.

CharlieBT
January 2, 2013, 09:33 PM
As a trial lawyer for the last couple decades, I get what you are saying. I also respect what Sam and you are saying. I would like to suggest it is a forest for the trees kind of argument, IMHO, recognizing it is your house and I'm a guest (hopefully a respectful one at that).

Or borrowing from the old philosophy saw about a tree falling in the forest, if a prosecutor refuses to prosecute facts that citizens plainly see as crimes, were crimes committed at all? We could be the beneficiaries of this practical federal reality if we put strong state laws in place that miraculously cause multitudes not to see or hear trees falling in the forest. Those who see them, well their opinions won't matter, cause it is only the federal judiciary that counts per the founders's design.

Sometimes you are the windshield, and other times the bug. The Tenth Amendment is an avenue to shape the federal administration of justice -- as a modern, practical reality and regardless of what the founders thought or intended. No court papers necessary. Heresy, perhaps, but it is simply the other side of the coin Sam and you have discussed.

Frank Ettin
January 2, 2013, 09:58 PM
...if a prosecutor refuses to prosecute facts that citizens plainly see as crimes, were crimes committed at all? We could be the beneficiaries of this practical federal reality if we put strong state laws in place that miraculously cause multitudes not to see or hear trees falling in the forest...Of course that begins to focus on a basic issue with the doctrine of prosecutorial discretion. Declining to prosecute what enough people think are crimes can diminish respect for the law. On the other hand, prosecutors need to decide how to use limited resources.

In some cases a policy decision to back off of certain types of crimes might be driven by a conclusion that enough people, particularly among the current administration's constituency, find the conduct relatively benign. That might not be the case with other matters.

To put some flesh on those bones, I can see the appeal to the current administration of soft peddling recreation marijuana prosecutions in State which have decriminalized it. And I can accept that the current administration could reasonably conclude that it has adequate political cover to support that policy decision. But if the subject were a matter about which the current administration's constituency was likely to feel differently, e. g., guns, I don't think we could count on the same level of prosecutorial forbearance.

aeriedad
January 2, 2013, 10:01 PM
Or borrowing from the old philosophy saw about a tree falling in the forest, if a prosecutor refuses to prosecute facts that citizens plainly see as crimes, were crimes committed at all? We could be the beneficiaries of this practical federal reality if we put strong state laws in place that miraculously cause multitudes not to see or hear trees falling in the forest. Those who see them, well their opinions won't matter, cause it is only the federal judiciary that counts per the founders's design.

Sometimes you are the windshield, and other times the bug. The Tenth Amendment is an avenue to shape the federal administration of justice -- as a modern, practical reality and regardless of what the founders thought or intended. No court papers necessary. Heresy, perhaps, but it is simply the other side of the coin Sam and you have discussed.

I like the way you think, Charlie. I've been reading a bit on Natural Law and Natural Rights of late, and you sound a little like a guy named John Locke today. I'm probably going to start a thread here on this soon.

CharlieBT
January 2, 2013, 10:02 PM
Well said, and I agree.

pendennis
January 2, 2013, 11:49 PM
I'm quite sure that there are others who will disagree with my statement(s); just as I'm quite positive that there will be many who agree with me. I'm also quite sure that I did not plow new ground in my description of the upshot of Marbury. And even in the real world, my comments are exactly the point. And since a large number of people, especially jurists, subscribe to the infallibility of Marbury, it is rightly referred to today as a "popular myth". And the effect of this myth, must be included in any practical application of the law.

While you cite Article III, Section 1, it was expected that justices, being appointed by the executive, would be reviewed and approved by a Senate which was loyal to the several states, and giving the states some power over the judiciary. With the passage of the 17th Amendment, that power of the states has gone by the wayside. The Founding Fathers never intended to cede unchecked power to the judiciary. Thus, besides Marbury, the very Senate which was intended to be the gatekeeper, has also been irrevocably corrupted.

Whether I describe Marbury as an "abject hijacking" or an unconstitutional usurpation of the original document, it still leads to the modern conclusion that court decisions have led the country far astray of the Founders' intent.

One can't maintain that "Our focus is reality and the operation of the legal system in real life", and not also discuss those concepts that have brought us to this reality. Part of the problem today in the application of the law, is the ignorance of those foundations which are the basis of our laws.

As the great philosopher and political theorist, Edmund Burke so eloquently stated - "Those who don't know history are destined to repeat it."

Especially in the modern judicial era, there is no substitute for original constitutional statement and intent. Judges have fallen to using "stare decisis" as a legal crutch. I'm well aware that the concept is used in law to keep from having to plow old ground. But it's also the tool of lazy jurists; and the term has been corrupted to mean little more than a parlor game in which a sentenced is passed from person to person, until at the end, it has completely lost its original meaning or intent.

Frank Ettin
January 3, 2013, 12:09 AM
...As the great philosopher and political theorist, Edmund Burke so eloquently stated - "Those who don't know history are destined to repeat it."...While I'm sure that you are interested in your excursions into theoretical jurisprudence, and others might be also, these discussion are off topic for this thread and need to be discontinued.

Perhaps you can find somewhere else to discuss your theories, but this isn't the place.

gbw
January 3, 2013, 12:32 AM
[QUOTE]....our opinions matter insofar as they affect political actions we take. But our opinions on the legal question of whether or not a law is constitutional still don't matter. [/QUOTE

In the long run it's not that simple. Federal and many state and local judges are political apointees, and the politicians who select them are elected by people with opinions. Other judges are elected directly. So predictably with Bush we got Alito & Roberts, with Obama Kagen & Sotomayer, and this has been how it works. So it seems wrong to dismiss opinions so easily, or to state categorically that individual opinions, when there are enough of them, still don't matter. As long as two 'learned' judges can read the same text and history and come to diametrically opposed meanings, when it's time to select the judges the opinions that elect them or that placed the selecting politicians matter very much indeed, as I fear we are soon to learn. Again.

Malamute
January 3, 2013, 09:42 PM
....Yes, Montana has passed a law that allows firearms that are produced, sold, and possessed entirely within their own borders to have looser restrictions than the federal government allows. So far however, no one that I know of has actually tried testing it. And if they did, I guarantee they would be prosecuted by the federal Justice Department....


I'm interested to see if/when anyone tries the Wyoming law. They added a clause to be able to arrest, prosecute and jail any federal officer that tries to enforce the federal law in contradiction to Wyomings Fireams Freedom Act. I beleive it also makes it unlawful for any state or local law enforcement officer to assist a federal officer in pursuing an arrest in the state that the Firearms Freedom act seeks to make unenforcible.

A clip from a news bit,

- Legislation asserting that firearms made, sold and kept only in Wyoming are exempt from all federal gun laws is set to become law after it easily cleared the Wyoming Legislature on Wednesday.

But although supporters say the bill is mainly a symbolic shove against the federal government, it remains to be seen whether the fight will carry over to the courts or even to Wyoming streets.

The Wyoming Firearms Freedom Act passed the state Senate without objection on Wednesday. Gov. Dave Freudenthal has indicated that he'll sign the bill into law; two other states, Tennessee and Montana, have previously enacted similar laws.

Wyoming's Firearms Freedom Act, though, is harsher than those laws, as it states that any state or federal official who tries to enforce any federal gun law on a firearms made and sold in Wyoming could face a $2,000 fine and up to a year in prison

The Wyoming law was intended to mainly symbolic, but the time may come when it needs to be decided how serious they truly were.

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