Federal Legislation to roll back state laws

[Pizzapinochle]

There are some truly terrible state laws out there regarding gun. Mag limits, ban lists, SAFE Act, most of CA, etc.

Those states are probably not going to change any time soon.

Any ideas on federal legislation that could weaken the state laws?

The fed gov't can't directly tell states they can't pass these laws, so needs to be indirect.

It is also easier for the fed gov't to DO something/enact more regulation (frequently thru the commerce clause) than to say something can"t be done.

One idea is to use conditional money. Fed does this in many areas: "Here is 100 million dollars for your state, but you have to do X, Y, and Z to get it."

Any other methods come to mind?

 

[ilbob]

look at what the 14th amendment says. congress clearly has the power to legislate when it comes to enforcing civil rights.

 

[Ryanxia]

One thing we don't want to do is give the federal government more power, let's keep it at the state level as much as possible. I know some places have really bad laws but if it became a 'national standard' it would be on the stricter side. I don't want someone in Washington or California or New York further influencing my way of life.

 

[ChaoSS]

The problem is that that won't happen, not right now anyway. Gun control may have been wildly unpopular in this legislative season, but forcing states to do away with their own gun control laws would likely be even more unpopular. Doing it as a standalone bill simply will not happen, and a House Speaker who couldn't even hold the line on something as popular as a year long delay on the individual mandate for the AHCA simply would not have the backbone to force that sort of thing through as a rider to another bill, even if he wanted to, which I don't believe he does.


This board may frown on discussions of other politics, but there are many things that need to change on the right wing before that sort of thing has any chance of happening.

 

[AlexanderA]

The federal vs. state argument cuts both ways. If the pro-gun forces are strong on the federal level, then it's easy to say that antigun state laws should be preempted. But if the pro-gun side finds itself to be weak on the federal level, then it falls back on "states' rights" to protect its position in pro-gun states. These balances of power can change from one election cycle to another. The answer is simply to elect as many pro-gun politicians as possible, at every level.

 

[Radagast]

Congress has pretty much done zip to protect gun rights since the Firearms Owners Protection Act back in '86.
Not passing a new assault weapons ban does not count as rolling back laws in my mind, it was holding to the status-quo.
Congress does have the power to over ride state legislation, but it does not use it.

The current Democrat party platform is anti-gun. The Republican are waiting for their turn at the trough and are not willing to rock the boat on any issue. So forget about getting meaningful legislation through Congress in the next couple of years.

Currently the only successful route to removing state restrictions has been through law suits aimed at setting a Supreme Court precedent and by electing pro-gun state legislatures.
Heller & McDonald have been vital wins, leading to Illinois being forced to go shall issue and the Peruta case in San Diego will either stand and make Hawaii & California go shall issue, or be appealed to SCOTUS and give the pro-gun team another chance at getting a binding ruling on right to carry outside of the home.

 

[armoredman]

I agree - keep the feds OUT of state laws. Let the states, and the states populations decide, such as what happened to 3 state senators in Colorado. The last thing we need is more federal intrusion.

 

[vamo]

Something like that would probably pass the house, would die in the senate. Would probably still die in the next senate unless by some miracle theres a super majority of staunchly progun senators left when the smoke clears, and its certainly not getting signed by the current president.

People a quick google search will tell you whats legislatively possible. If more people just had a BASIC understanding of how our government functions and what parties control what bodies we'd avoid a lot of nonsense. Last years panic was the result of people just not knowing jack about the government no gun control was going to pass it should have been obvious. Likewise no major bills strengthening gun rights will pass any time soon.

 

[Torian]

It could easily backfire. At least within the states, there are multiple battlegrounds...so that if we lose one we can still fight in another.

Losing at the federal level at such a magnitude could be disastrous if it was a law that rolled back 2nd amendments rights instead of 2nd amendment restrictions.

 

[rbernie]

Any ideas on federal legislation that could weaken the state laws?

As a layperson, I would guess that the Federal Government could try to use the 14th Amendment via the Due Process or Privileges or Immunities Clause, as was mentioned in the McDonald v. Chicago SCOTUS ruling. Having said that, the Commerce Clause and the Taxing and Spending Clause in Article 1, Section 8 of the US Constitution would seem to also be likely vectors for increased Federal legislative involvement in RKBA issues, since the SCOTUS has recently ruled that both can be used to expand or defend Federal influence.

On a personal level, I'm uncomfortable with the notional of increased Federal involvement until such time as we have a more complete set of SCOTUS ruling that better enshrine what it really means when it says:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

I find it extraordinarily unlikely that we would ever see federal expansion/codification of the RKBA in any useful way, given that one of our two mainstream political parties has codified in its party plank the notion that the RKBA is to be restricted and gutted and not expanded or protected.

 

[ChaoSS]

It could easily backfire. At least within the states, there are multiple battlegrounds...so that if we lose one we can still fight in another.

Losing at the federal level at such a magnitude could be disastrous if it was a law that rolled back 2nd amendments rights instead of 2nd amendment restrictions.

Oh you mean like every other gun law on the federal books?

It's not as if this sort of thin would open up pandora's box here, the only issue is that is simply isn't feasible right now.

 

[gc70]

One idea is to use conditional money. Fed does this in many areas: "Here is 100 million dollars for your state, but you have to do X, Y, and Z to get it."

Expanding acts of legalized bribery or extortion by the federal government is not the answer.

 

[huntsman]

I WANT my RKBA to be a states rights issue, it's best way for me to be represented and the only chance to preserve them.

 

[Nickel Plated]

I WANT my RKBA to be a states rights issue, it's best way for me to be represented and the only chance to preserve them.

The Constitution is not a state's rights issue. Civil rights apply throughout the country. Not just in states that feel like recognizing them.
While we all agree that the powers and duties delegated to the Federal government are limited, ensuring that all citizens of the United States have the same rights, and ensuring the states abide by the contract they signed when they joined this Union IS one of their jobs. Whether they currently want to do it or not is a different matter.

 

[Charlie Horse]

Before you decide this is a good idea, research Federalism.

The fed gov't can't directly tell states they can't pass these laws, so needs to be indirect.

Absolutely untrue. Any state law can be held up to the U.S. Constitution, and if found to be in conflict, it can be struck down as unconstitutional. The idea that Fedgov should be spending money to coerce states is full of bad things too. This time it might get you something you want, but before it is over, I will guarantee it will be used against you.

Let's say that I find a piece of ground, spend billions of my vast personal fortune for it to become a U.S. territory. I then spend the money and campaign and boom, we're the new state of Charlievania or some such. (I understand that we cannot do this on Guam because of the danger that it might tip over...) I then decide that since "its well known that blondes are not as smart as others" they will not be allowed to drive, own a business, posses a firearm, or hold public office" since such regulation would be "common sense'" Well, being the father of my new state, the legislation is on my desk in record time, and I sigh it. Anyone with a stopwatch would be able to see how fast the Feds strike it down.

The problem is that too many times we've accepted, or allowed for a bad premise to be accepted in these arguments. The Federal government, as well as the state governments are all constrained under the Constitution. That means that they all agree that the "RKBA shall not be infringed." The problem is that what has become part of our national psyche over better than 100 years to put "reasonable limitations" on an inalienable right. Since those of us born after things like NFA came down the pike, its much easier to get the younger generations to accept it, since its "always been that way." It's like that game "I have a secret." One person whispers a "secret" to the person next to them, and by the time it goes around the room, its substantially different that what started out.

While the whims if the people may change from time to time, the wording of the Constitution largely has not. (i.e. prohibition) The states are obliged to support the 2A, but have been allowed to deviate from it. This is one of the reasons that history is so important. It is the anchor that keeps us from being swept away by the currents of fads.

 

[denton]

Gun rights will not be on the Congressional agenda any time soon. There are too many issues that are more pressing.

Strings tied to state funding are the federal government's main method of social engineering in places they can't pass laws. I don't know the figures for other states, but here in Utah over half the state's spending is federal money.

The main way we will win on a federal level is through the courts. We still have a couple of decades of litigation ahead of us following Heller and McDonald. The good thing about that is that wins in the Supreme Court are more or less permanent. They have the power to bind the other two branches, and only very rarely change a previous ruling, even if they think it was not exactly right.

 

[Pizzapinochle]

Let me clarify a bit.

Federal law sets the "floor" and "ceiling" for state law. Between the floor and ceiling, states have discretion.

In terms of guns, the ceiling is NFA, background checks for FFL sales etc. States can't pass a law saying FFLs don't have to do background checks. Repealing federal legislation could raise the ceiling.

The floor has mostly been defined by court review of constitutionality. States can restrict until they run afoul of the 2A.

I understand that further SCOTUS rulings could raise the floor.

What i was looking for were legislative suggestions that could raise the national floor.

 

[Frank Ettin]

...Federal law sets the "floor" and "ceiling" for state law. Between the floor and ceiling, states have discretion....

I'm sorry, but that is a gross oversimplification, and consequently a misstatement, of the area of federal preemption and choice of law (where the laws of multiple jurisdictions could be applicable). This is a huge and complex subject, and one really won't get anywhere if he starts his journey from that point.

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.

So if you want federal law to preempt state laws, you will first need to be able to draft the law in such a way that it can be enacted by Congress within the scope of Congress' constitutional powers. Second, you will want the law to expressly state that it is intended to occupy the field and regulate the subject on a uniform basis nationally.

And of course whether any such law is good for us or good for our opposition will depend on our respective political strengths.

 

[Tony k]

ilbob posted

look at what the 14th amendment says. congress clearly has the power to legislate when it comes to enforcing civil rights.

Nickel Plated Said:

The Constitution is not a state's rights issue. Civil rights apply throughout the country. Not just in states that feel like recognizing them.

I don't mean to derail the discussion, but I take issue with calling RKBA a "civil right." Civil rights are granted by governments. The RKBA is an inalienable human right reserved, enshrined, and protected by the 2A. That's an important distinction, but I digress and have nothing else of substance to add

 

[Mike OTDP]

"Any person who shall make, attempt to make, enforce, or attempt to enforce a law pertaining to the purchase or possession of firearms, firearm accessories or ammunition other than as provided for in Federal law shall be imprisoned for not less than three years and not more than ten years."

And it's a damned good idea.

 

[Frank Ettin]

"Any person who shall make, attempt to make, enforce, or attempt to enforce a law pertaining to the purchase or possession of firearms, firearm accessories or ammunition other than as provided for in Federal law shall be imprisoned for not less than three years and not more than ten years."...

A cute fantasy, perhaps. Now demonstrate by reference to valid and applicable legal authority that (1) such a law would be within the power of Congress to enact; and (2) such a law would not violate the Ninth and Tenth Amendments.

If no one has anything worthwhile to contribute to this thread soon, I'll just close it. No sense wasting time.

 

[Mike OTDP]

United States Constitution, Article I, Section 8. "The Congress shall have Power...To provide for organizing, arming, and disciplining, the Militia."

United States Constitution, Amendment 14. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

Technically, no legislation is necessary, merely enforcement of existing criminal law.

18 U.S.C. § 241 : US Code - Section 241: Conspiracy against rights. "If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured - They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."

References provided.

 

[Frank Ettin]

United States Constitution, Article I, Section 8. "The Congress shall have Power...To provide for organizing, arming, and disciplining, the Militia."

United States Constitution, Amendment 14. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

Technically, no legislation is necessary, merely enforcement of existing criminal law.

18 U.S.C. § 241 : US Code - Section 241: Conspiracy against rights. "If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured - They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."

Nope, Mike, doesn't work for a number of reasons, including:

• Your proposed statute has nothing to do with a militia. You need to create an nexus.
  
  
• Privileges and Immunities is off the table unless The Slaughterhouse Cases get overruled.
  
  
• It's clear under applicable case law that limited regulation by the States and by the federal government of constitutionally protected rights is permissible. The full scope and extent of permissible regulation of the rights described by the Second Amendment is a long way from being decided.

 

[Pizzapinochle]

I was hoping for some more creative positive responses. Frequently i see pro-gun advocacy limited to:

- winning court cases
- fighting for repeal of bad laws
- fighting to prevent passage of bad laws

All good things, but not many suggestions for POSITIVE federal legislation.

Obviously Mike's suggestion is not realistic.

Any other suggestions?

 

[Frank Ettin]

I was hoping for some more creative positive responses...

I think that the difficulty with your original question is that you were looking for a silver bullet -- some federal law that would fix everything. Things like that really don't exist in a federal system that is an association of political subdivisions (States) each with a certain degree of sovereignty. Nor would such exist in a democratic republic in which individuals have some measure of say as to who makes the laws.

The hodgepodge and confusion is an inherent byproduct of the sort of system we have. And that's a good thing. Mike's suggestion would work just fine in a absolute monarchy -- if the king were willing to so decree. If he decided to go the other way, we'd all be in serious trouble.

Giving political power to the States and to the people is messy. While tyranny is much neater, I'd prefer to live with the mess.

...not many suggestions for POSITIVE federal legislation...

Now that's a different question. And there are a variety of things that really need to be done legislatively at a federal level (besides repealing all the laws).

One that comes to mind would be some clean up to the FOPA regarding interstate transportation of guns. Some court decisions in the Second Circuit have read the law as applying only to transportation of guns in a vehicle, resulting in the application of onerous state laws in New Jersey and New York to person traveling with guns through airports in those States and having to take temporary physical possession of those guns if changing planes or is diverted. Fixing the language of that law to avoid that result would be a fine idea -- and perhaps even doable.

The federal Gun Free School Zone law (establishing a "no guns" zone within a 1,000 feet of a school) has an exception for persons with a concealed weapons permit issued by the State in which the school is located. That exception would appear not to apply to someone passing within a 1,000 feet of a school lawfully carrying a gun concealed with a permit recognized in that State, but issued by another State. It could also trip up the guy out for a walk lawfully carrying a gun openly who just happens to pass within 1,000 feet of a school.

There are probably a bunch of other things that would be positive for the RKBA that could be done with federal legislation (maybe revitalizing the CMP). But that doesn't mean that there's any "ultimate fix."