Federal Gun Control vs States Rights

[Praxidike]

Under what law or precedence can the Federal government require universal background checks in all 50 states? When it comes to firearms, do states have any rights that the Federal government can't supersede?

I ask because I'm no legal scholar, but it seems that with every shooting some politicians from antigun gun, progun coltrol states have in the past or are currently trying to enact blanketed laws that all states must follow. What happened to states having Rights? I get that the Federal government can enact an de facto ban on some guns via the Commerce Clause, but how can they have any saUnder what law or precedence can the Federal government bypass states rights to require universal background checks in all 50 states regardless of existing stats laws?

 

[vamo]

I would say primarily the commerce clause. Though you could make an argument for widespread federal authority elsewhere in the constitution.

 

[CoalTrain49]

Consider this;

In 1998, the Court again ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997)). The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Justice Antonin Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the act "forced participation of the State's executive in the actual administration of a federal program", it was unconstitutional.

From
https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution

Given that, I would say that congress could pass a UBC but some states just aren't going to pay the freight to enforce something like that. Some states would probably pass legislation to prohibit any state resources to be used in the enforcement of a UBC. On the other hand some states that don't have a UBC would probably ask the fed for money to help enforce it. I think it could end up like the federal law that makes pot illegal while the DOJ has just turned away from prosecutions in states where there is no state statute making it illegal.

10 states already have UBC's and more are likely to get them given the amount of AG money available to buy legislators and initiatives. 10 million was made available here to make sure I-594 passed.

To answer your question I don't think there is any recent legal precedent to keep congress from passing a UBC or to keep the FBI from trying enforce it.

Personally, I don't think there is any real desire in congress to tackle another UBC but it could happen. The president and people running for the office like to talk about it but it's mostly just a dream. The fed is broke and they have bigger problems to deal with.

 

[Frank Ettin]

Under what law or precedence can the Federal government require universal background checks in all 50 states? When it comes to firearms, do states have any rights that the Federal government can't supersede?....

First, the correct word is "precedent", the plural is "precedents." That might seem pedantic (since we constantly play the "magazine/clip" game), but the law is a technical subject in which precise communication is important. So using the correct words and using words correctly are important.

Second, this can be a very complicated subject. Some basic concepts --

1. Federal law can supersede state law. That follows from the Constitution (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, anything in the Constitution or laws of any State to the contrary notwithstanding.

   And that raises another complex question of when or to what extent federal law preempts (completely displaces) state law. For example --
   
   
   • There is first the question of whether the Congress had the constitutional power to enact it. Then there can be the question of what the limits of the application of that federal might be within the confines of the scope of Congress' constitutional power. That for example was the sort of question addressed in Wickard v. Filburn, 317 U.S. 111 (1942) and Gonzales v. Raich, 545 U.S. 1 (2005), where the federal laws were clearly within Congress' power under the Commerce Clause; but the constitutionality of the application of those laws to particular activities was in question.
     
     
   • Also, if the particular issue addressed by the state law is also addressed by the federal law, there's the question of whether the particular federal law was intended to "occupy the field", i. e., be the final word on the subject. In that case the federal law preempts the state law and applies instead of the state law.
     
     
   • On the other hand, if a court decides that the federal law did not reflect an intent to occupy the field, in order to decide if federal law or state law applies a court will need to decide if the state law is consistent a federal policy concern or would, on the other hand, frustrate the federal policy furthered by the law.
     
     
   • Sometimes federal law will be explicit about how a conflict between federal law and state law is to be resolved. An example which comes immediately to mind involves the confidentiality of medical information regulation under HIPAA. Those regulations expressly provide that they don't supersede state laws to the extent providing great protection of an individual's confidentiality interests.
     
     
   • On the other hand a federal law could be found to preempt state law if either expressly or by inference the federal law was intended to promote national uniformity with regard to a particular issue.
   
   
2. However, as alluded to above, the power of the federal government is circumscribed by the Constitution. Congress may pass laws only with regard to matters authorized by the Constitution. Of course, given the extent to which Commerce Clause has been stretched, as a practical matter Congress has fairly broad powers.
   
   
3. On the other hand, under basic legal principles States, as an inherent attribute of sovereignty, have what is known as broad police power:

   The inherent authority of a government to impose restrictions on private rights for the sake of public welfare, order, and security.

   
   The authority of States/Commonwealths is acknowledged (not conferred) by the Tenth Amendment to the United States Constitution:

   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.

   
   
4. Each State/Commonwealth has its own constitution as well. And since in the United States each State or Commonwealth has its own government in the form of a representative democracy, the people in each have the opportunity to influence what laws are adopted and how they are implemented.
   
   
5. Of course since the adoption of the Fourteenth Amendment and as the doctrine evolved of applying the Bill of Rights to the States through the Due Process Clause of the Fourteenth Amendment, that is yet another limiting factor on the exercise by States of their police power.
   
   
6. So applying those principles to the question of requiring background checks for any transfer of possession of a gun --
   
   
   • For the federal government to implement some form of such a universal background check system, it would need to find a way to justify it under the Commerce Clause. While the Commerce Clause has become very elastic, it may be that that current arrangement of requiring background checks on transfers of firearms through dealers and requiring interstate transfers of guns, in most cases, go through dealers is about as far as the Commerce Clause can be stretched.
     
     
   • On the other hand, States certainly are free to exercise their police power to adopt some form of universal background check system on the transfer of firearms. California and a few other States have have some form of such an arrangement for some time. Washington State and Oregon have recently implemented universal background checks.
     
     
   • The primary curbs on a State's power to implement universal background checks or similar restrictions on firearm transfers would be (1) the political climate in the State; (2) judicial challenge on state constitutional grounds; and (3) judicial challenge on Second Amendment grounds.

 

[Frank Ettin]

...In 1998, the Court again ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997)). The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Justice Antonin Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the act "forced participation of the State's executive in the actual administration of a federal program",....

Good catch. While that doesn't necessarily prevent the federal government from implementing a program, it does constrain how they might be able to do it.

 

[lemaymiami]

Thanks, the last two posts are the clearest explanation of this topic that I've ever seen....

 

[pdsmith505]

Mr. Ettin, a retired (?) lawyer, does us a great service by breaking down legal concepts and explaining them in layman's terms.

 

[OilyPablo]

Excellent answers. I, for one, encounter people who get stuck on this one. Handy reference right here!