Federal Law Vs. State Constitution?

[Treo]

Colorado Constitution:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons

Yeah, I know that last line sucks but....

The above is from the Colorado Constitution. What I want to know is can a federal law override it in the state of Colorado?

 

[justice4all]

Federal law, in an area in which the feds have enumerated or implied power to act, trumps a state constitution. But the Second amendment limits the federal governments authority to do much about that particular aspect of CO's constitution.

 

[indoorsoccerfrea]

Federal Law takes precedence over any state law. States can pass laws to try to get around the law, but they cannot directly oppose any federal law

 

[sitrep]

I think an important point to add is that the S.Ct. has never held the 2nd amend as applying to the states via the 14th amend as they have for almost all the other BOR.

 

[M_Jagger]

...the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.

--D. C. v. Heller​

That's a signal the Court isn't going to apply the Second Amendment to the states.

 

[MGshaggy]

That's a signal the Court isn't going to apply the Second Amendment to the states.

No, not necessarily. Note the past tense verb; its a signal that so far the 2nd hasn't been incorporated, but that doesn't necessarily mean it won't in the future.

 

[legaleagle_45]

That's a signal the Court isn't going to apply the Second Amendment to the states.

Incorporation is not your forte, huh?

 

[armoredman]

Federal Law takes precedence over any state law.

Umm, 9th/10th Amendment, please? Not saying your wrong in PRACTICE, but the concept is wrong in theory.

 

[green country shooter]

The Constitution and federal law and treaties made under its authority are the supreme law of the land, according to the Constitution itself.

However, as pointed out above, that only applies in those areas in which the federal government is granted power under the Constitution, although our federal courts have been eager to find new such areas for about 100 years.

 

[legaleagle_45]

OK, I have done this numerous times before.... In the event of conflict the order of priority is as follows:

1.) The Constitution.

2.) Federal Laws and Treaties- these have equal priority-- as between conflicts between treaties and/or laws, the last in time is the first in right, thus a new law/treaty will supercede an old law/treaty. Niether of these can trump the Constitution and must be made pursuant to a valid power found in the Constitution.

3.) Federal regulations and executive orders-- as between conflicts between them the last in time is the first in right. These critters must be either authorized by valid federal law and/or treaty or made pursuant to a valid power found in the Constitution.

4.) State Constitutions

5.) State Laws*

6.) State regulations*

7.) Local Charters*

8.) Local laws*

9.) Local regulations.*

*priority of these may vary as between themselves based upon application of "home rule" laws which are found in some state laws and some state constitutions.

The above assumes an ACTUAL CONFLICT between two otherwise valid legal obligations and it further does not account for the supreme authority of Mrs. Legaleagle.

 

[Sebastian the Ibis]

Treo,

What is the context of your inquiry?

Firearms are involved (IMHO) the most important supremacy clause cases since the civil rights era- the cases that created the limits and exceptions to the chart Legaleagle listed above.

United States v. Lopez, 514 U.S. 549 (1995)- finally recognized a limit to the commerce clause as an extension of federal power, when SCOTUS ruled that the federal gun free school zone act was unconstitutional.

Printz v. United States 521 U.S. 898 (1997)- found that the background check provision of the Brady bill was unconstitutional, since Federal law cannot directly command state officials.

 

[M_Jagger]

If the Second Amendment is incorporated, the rule that "the Second Amendment right... is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose" comes with it, and gives state lawmakers a lot of leeway to ban guns.

 

[legaleagle_45]

If the Second Amendment is incorporated, the rule that "the Second Amendment right... is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose" comes with it, and gives state lawmakers a lot of leeway to ban guns.

It means our right to carry nukes is clearly in jeopardy.

 

[Treo]

Someone asked the scope of my original question, It's simple I want to know if the U. S. Goverenment can repeal the 2nd amendment in Colorado when our constitution specifically enumerates that right in much clearer language than the U.S. Constitution

 

[legaleagle_45]

It's simple I want to know if the U. S. Goverenment can repeal the 2nd amendment in Colorado when our constitution specifically enumerates that right in much clearer language than the U.S. Constitution

The clarity of Colarado's constitutional provision has nothing to do with whether the U. S. Goverenment can repeal the 2nd amendment in Colorado. The US Government can repeal the 2nd Amendment only through the amendment process outlined in the US Constitution.... but I do not think that is what you are really asking...

Let me give you an example which will answer the question that I think you are asking... Let us say, that under Colarado's constituional provisions, Colorado may not ban the so-called evil assualt weapons. Let us also assume, hypothetically of course, that some future, unnamed US administration is able to get passed a law banning so-called evil assualt weapons. Now further assume that some future US Supreme Court declares that the US law banning so-called evil assualt weapons is okey dokey under the 2nd Amend and is otherwise valid under other portions of the US Constitution.

Given that premise, I think your question is whether the US law banning so-called evil assualt weapons has any validity in Colorado due to Colorado's more elaborate protections contained in its Constitution. If that is your question, the answer is obvious...

The US law banning so-called evil assualt weapons would be valid and enforceable in Colorado regardless of the Colorado constitution.

 

[Phil Lee]

legaleagle_45 says (under the conditions stated):

Given that premise, I think your question is whether the US law banning so-called evil assualt weapons has any validity in Colorado due to Colorado's more elaborate protections contained in its Constitution. If that is your question, the answer is obvious...

The US law banning so-called evil assualt weapons would be valid and enforceable in Colorado.

A little history -- think "states rights" as proclaimed by George Wallace of Alabama resisting "Brown v. Board of Education".

However, at that point, the US law would bring a direct confrontation with the People to such a degree that it would render the Second Amendment a nullity. At which point a "right" to arms would pass into history unless redeemed by the resistance of the People.

Lawyers like to proclaim the Constitution is what the Supreme Court says it is. That may be true in law, but the People stand as ultimate arbiters of what the Constitution says -- even above the law.

At present, the fight for the Constitution is political and we have suffered a defeat in that political battle. The defeat doesn't mean the war is over.

If the enemies of RKBA advance too far and too fast with their efforts, their overreach may present a political opportunity to reverse their gains . . . but only if we prepare to resist politically in an intelligent way.

 

[legaleagle_45]

The Second Amendment was meant to be protection against a possible abuse by Congress. The right protected is really the right of a state to maintain an armed militia, or national guard, as we call it now. "

Cooke, right? Too bad not a single justice in Heller adopted this view.

M_Jagger, I have already destroyed this argument elsewhere and it is off topic to this thread. If you wish to proceed by starting an entirely new thread, fine by me. However, I suggest that you provide something better... a lot better.

 

[cbrgator]

To be precise, Yes. Federal Law overrides over State Law. It was established in Article VI, Section 2 of the Constitution and it reads,

"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."

It is known as the "Supremacy Clause" and was upheld in McCulloch v. Maryland.

 

[Jim K]

I see. "The people" doesn't mean the people, it really means the state. So only states can vote, only states have freedom of speech, only states have the right to a trial by a jury of states...

Nonsense.

Jim

 

[Treo]

I got news for you guys , the National Guard isn't the state militia. Colorado has it's own state militia. The Colorad State Defense Force (Provisional).