SCOTUS denies cert on MT gun law


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patmccoy
January 15, 2014, 01:04 PM
http://helenair.com/news/local/high-court-declines-to-hear-mont-gun-case/article_25843ff2-7db2-11e3-b306-001a4bcf887a.html

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Ryanxia
January 15, 2014, 01:10 PM
So it appears there is one other petition sent in that has not been denied. You never know. It seems foolish the SCOTUS wouldn't hear this, it affects much more than firearms. Anything that stays in state shouldn't be subject to federal regulation.

tomrkba
January 15, 2014, 01:28 PM
Of course they denied it.

The Federal government is using the incorrect interpretation of the Commerce Clause to justify not only gun laws, but also just about everything else. A correct decision would destroy most of the Federal government's usurped authority.

I hope Montana takes the next step of withdrawing Federal law enforcement authorization, but I doubt they will.

Ryanxia
January 15, 2014, 01:54 PM
Of course they denied it.

The Federal government is using the incorrect interpretation of the Commerce Clause to justify not only gun laws, but also just about everything else. A correct decision would destroy most of the Federal government's usurped authority.

I hope Montana takes the next step of withdrawing Federal law enforcement authorization, but I doubt they will.
Exactly it, it could overturn the abuse the feds have been exercising for far too long. They weren't meant to be allowed to control everything just big things that affected multiple states.

Midwest
January 15, 2014, 02:01 PM
So it appears there is one other petition sent in that has not been denied. You never know. It seems foolish the SCOTUS wouldn't hear this, it affects much more than firearms. Anything that stays in state shouldn't be subject to federal regulation.
I understand and agree with the argument that if the item is made wholly from scratch from materials produced and assembled exclusively in Montana (and stays in Montana) then it shouldn't be subject to the commerce clause.

The Feds might use the excuse that even if the firearm is produced in state, the Feds could still claim jurisdiction because the firearm would travel on roads (like the interstate) maintained by the Feds even though said firearm stays in the state.

As they say stay tuned........

Charlie Horse
January 15, 2014, 02:19 PM
This brings the Ollie's BBQ case to mind. If I recall correctly from my Constitutional law class from back when dinosaurs roamed the earth, SCOTUS decided that since Ollie's BBQ received their meat through interstate commerce, that Congress could invalidate their policy of segregation based on the commerce clause. My prof said it best, "A noble idea brought about through really bad head work."

This also reminds me of the sport of "Calvin ball" from the "Calvin and Hobbes" comic strip. Basically, the rules were whatever Calvin said they were, at any time, whether they conflicted with the last sentence out of his mouth or not.

MagnumDweeb
January 15, 2014, 04:20 PM
Oh God Charlie you brought back memories of Constitutional Law Class. I thought I had escaped law school. My professor was an out and out Obama supporter and it was strange how he made his take on it as I remember basically stating if something so much as sneezes in the direction of a federally regulated building or structure, then the feds could regulate it. Making me wonder why the heck you would need state governments if you followed that logic to which he never really gave an answer.

The fact that Cert. got denied does not create precedent in and of itself on a national level but it could be interesting to see if another state moves for a Declaratory Judgment as to a similar move citing the case as good case law, albeit persuasive case law.

Mind you Con Law was one of my weaker subjects, that's why I'm a Medical Board Defense, Divorce, Foreclosure Defense, Contract Litigation, Construction Litigation, and Trust and Estate Attorney. I gave up criminal defense when I made more money elsewhere.

ConstitutionCowboy
January 21, 2014, 02:43 PM
What everyone appears to be overlooking is that any case involving a state must be brought to the Supreme Court directly. The Supreme Court has original jurisdiction in all cases where a state is involved. Anything decided in any court lower than the Supreme Court in a case involving a state is moot. People need to wake up to this reality. See Article III, Section 2, Clause 2.

Woody

ATLDave
January 21, 2014, 03:24 PM
NOT LEGAL ADVICE

This law appears to challenge the now well-established precedent that runs from Wickard. http://en.wikipedia.org/wiki/Wickard_v._Filburn

Regardless of what you think of that opinion, that has been the state of the law for ~80 years. The Supreme Court refusing to dramatically alter course in a law that would impact virtually every federal agency and almost every federal statutory scheme is not news.

It's good for all American citizens to read the Constitution and have opinions about what it means. But if you care about what the law says it means - and how it will be applied to you and others - you need to read more than the Constitution. People go to jail every single year because they think their clever-but-irrefutable reading of some provision or another of the Constitution exempts them from income taxes. Or some other provision of the law.

Shorter version: This is not news. Anybody who has been to law school would have given you 30-to-1 odds on this result and laughed at anyone who took it.

alsaqr
January 21, 2014, 03:56 PM
Shorter version: This is not news.

Bingo!!!! This is the usual fate of state laws that fly in the face of federal law.

Gaiudo
January 21, 2014, 04:09 PM
Bingo!!!! This is the usual fate of state laws that fly in the face of federal law.

With the exception of drug laws and immigration, of course... cf. Colorado, California, etc.

Ryanxia
January 21, 2014, 04:28 PM
ATLdave this may not 'be news' in the sense it's never been challenged but to lay down and accept it forever would be the only other option. One that doesn't sit well. Even if there's a snowball's chance, have to try.

Heck if Chicago can get CCW ANYTHING can happen! :D

tomrkba
January 21, 2014, 04:52 PM
This is getting confusing. It seems to me that the system is designed to be confusing in order to encourage compliance.

With the exception of drug laws and immigration, of course... cf. Colorado, California, etc.

So...what happens if Montana decides that Federal officers have no jurisdiction/power to enforce a Federal law that violates the Montana law?

Can Montana sheriffs revoke Federal agents' ability to enforce the law in their counties? I think they have agreements in place to allow the Feds to come into their county, but I am not sure about that. This would be a good topic for a new thread...I will start it. The thread is here: http://www.thehighroad.org/showthread.php?p=9309527#post9309527

Colorado legalized marijuana use through their constitution. How can the Feds arrest anyone in Colorado for using it? This contradicts Federal law...and many states already have the right to keep and bear arms in their constitutions.

Furthermore, Congress knows how to write a law that applies to the states. It seems that GCA 1968 does not use that language, and therefore only applies to DC and other Federal territory--despite everyone pretending otherwise (out of ignorance, fear, or being told "that's the way it is"). So, if Montana were to say that GCA 1968 was never intended to apply to gun dealers in the states, how would Congress refute that considering the language used in the text of the law?

***

People go to jail every single year because they think their clever-but-irrefutable reading of some provision or another of the Constitution exempts them from income taxes.

Let's not include Federal income taxes in the argument. It muddies the waters too much.

pendennis
January 21, 2014, 05:19 PM
I'm not a lawyer, don't play one on TV, and I did not stay at a Holiday Inn Express last night.

I graduated with BS in finance/economics, and Wickard was covered extensively in econ, commercial law, and finance classes in the 1970's. To a person, my professors thought it was bad law and horrible logic in 1942, and even worse in the 1970's. That opinion has not changed in the ensuing forty-plus years.

ATLDave
January 21, 2014, 05:46 PM
ATLdave this may not 'be news' in the sense it's never been challenged but to lay down and accept it forever would be the only other option.

It has been challenged. Many times. Often by pro se litigants.

Also, I'm not saying that nobody should try. It's just not surprising in any way, shape, or form when someone tries and fails.

ATLDave
January 21, 2014, 05:49 PM
Let's not include Federal income taxes in the argument. It muddies the waters too much.

I'm not trying to include the income tax. That's just the most common place for people to decide they can read the law better than the thousands of judges that have previously rejected their theories.

And maybe they can. But since another judge will decide, it's unlikely that he/she will agree. One can try. One would be foolhardy, though, to expect the result to change on the 947,312th try.

Midwest
January 21, 2014, 06:10 PM
Back in the day I remember hearing that if a state did not raise their drinking age back to 21 they would lose Federal Highway funds. I believe the same thing occurred when states had to go to the 55 MPH limit they had to comply or lose their highway funding.

(Yes I know about the income tax claims and I also know Irwin Schiff allegedly went to jail for teaching you don't have to pay it. I have heard a few radio shows over the years on the subject.)

dogtown tom
January 21, 2014, 06:37 PM
tomrkba So...what happens if Montana decides that Federal officers have no jurisdiction/power to enforce a Federal law that violates the Montana law?
The State of Montana doesn't get to decide jurisdiction of Federal officers.



Can Montana sheriffs revoke Federal agents' ability to enforce the law in their counties?
No.




I think they have agreements in place to allow the Feds to come into their county, but I am not sure about that.
Seriously?:rolleyes: Federal agents don't need anyone's permission to enter a county/city/state.




Colorado legalized marijuana use through their constitution. How can the Feds arrest anyone in Colorado for using it?
Because they are in violation of FEDERAL law.
I'm getting the feeling you have no understanding of US government.




This contradicts Federal law...and many states already have the right to keep and bear arms in their constitutions.
What states have in their constitutions has no bearing on Federal law. If there is a conflict, federal takes precedence.



Furthermore, Congress knows how to write a law that applies to the states. It seems that GCA 1968 does not use that language, and therefore only applies to DC and other Federal territory--despite everyone pretending otherwise (out of ignorance, fear, or being told "that's the way it is"). So, if Montana were to say that GCA 1968 was never intended to apply to gun dealers in the states, how would Congress refute that considering the language used in the text of the law?
Utter nonsense.

Arizona_Mike
January 21, 2014, 06:54 PM
I don't think one enforcement model for Federal law in marijuana (and assisted suicide) cases and another model for guns is sustainable politically long term.

Mike

tomrkba
January 21, 2014, 06:58 PM
dogtown,

That is what I thought. I keep hearing all this stuff but never any actual implementation.

Gaiudo
January 21, 2014, 10:35 PM
Colorado legalized marijuana use through their constitution. How can the Feds arrest anyone in Colorado for using it? This contradicts Federal law...and many states already have the right to keep and bear arms in their constitutions.

Feds can enforce federal law, with or without local support. The drug questions in CA and CO are happening because this current administration doesn't consider it an 'enforcement priority' and aren't tasking any of their Federal officers to the job of enforcement. But they could still enforce this if their "priorities" change.

However, Feds can not force local or state LEOs to enforce federal law. And similarly, for federal officials to enforce state (non-federal) law they require jurisdictional agreement. Often that's given, but in some cases (e.g., http://sacramento.cbslocal.com/2013/06/21/el-dorado-county-sheriff-strips-forest-service-of-state-law-enforcement-power/) that right has been stripped by the local sheriff. Neither of those apply, however, to enforcing NFA laws. That being said, without local support I'd be highly doubtful that .fed would be greatly effective in enforcing NFA laws on the typical joesmoe who isn't on the federal radar.

Frank Ettin
January 21, 2014, 11:20 PM
Colorado legalized marijuana use through their constitution. How can the Feds arrest anyone in Colorado for using it? This contradicts Federal law...and many states already have the right to keep and bear arms in their constitutions.

Feds can enforce federal law, with or without local support. The drug questions in CA and CO are happening because this current administration doesn't consider it an 'enforcement priority' and aren't tasking any of their Federal officers to the job of enforcement. But they could still enforce this if their "priorities" change...And that is absolutely correct.

We've discussed the relationship between state and federal marijuana laws, especially with reference to firearms possession, most recently here (http://www.thehighroad.org/showthread.php?t=723158), here (http://www.thehighroad.org/showthread.php?t=738931) and here (http://www.thehighroad.org/showthread.php?t=739373).

The bottom line is that:

Under federal law (the Controlled Substances Act, 21 USC 801, et seq.), marijuana is a Schedule I controlled substance which may not, therefore, be lawfully prescribed or used. Therefore, any user of marijuana, even if legal under state law, is, under federal law, an unlawful user of a controlled substance.


Any user of marijuana would have to answer "yes" to question 11e on the 4473, because under federal law his is an unlawful user of a controlled substance.


Under federal law, a person who is an unlawful user of a controlled substance is prohibited from possessing a gun or ammunition (18 USC 922(g)(3)). Therefore, any one who is a user of marijuana, even if legal under state law, is a prohibit person and commits a federal felony by possessing a gun or ammunition.


Being a prohibited person in possession of a gun or ammunition is punishable by up to five years in federal prison and/or a fine. And since it's a felony, conviction will result in a lifetime loss of gun rights.


It appears that current federal policy is to forbear from prosecuting cases of medical (or recreational) marijuana use where legal under state law. That is a matter of prosecutorial discretion and may change at anytime. And there is no reason to assume that forbearance will extend to marijuana users for unlawful possession of firearms or ammunition.

Gaiudo
January 21, 2014, 11:25 PM
Any user of marijuana would have to answer "yes" to question 11e on the 4473, because under federal law his is an unlawful user of a controlled substance.
. . .
[T]here is no reason to assume that forbearance will extend to marijuana users for unlawful possession of firearms or ammunition.

That's an excellent point, and not one I'd thought of before. Would be interesting to see Denver Law Enforcement engage with two people, both possessing weed, but one with a concealed weapon permit, and see how Denver treats them. My money would be on the concealed permit holder getting bit hard on just this point. Pro weed, but anti gun, that's a dangerous combination for local law enforcement.

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