Federal Preemption of State Laws

[LubeckTech]

Could a properly written Federal Law stop states from banning guns and magazines?? I realize such a law would probably not pass and I am certain it would be vetoed if it did so the reason behind my question is to determine if it is within the Federal Government's power to do this.

 

[jpruitt]

If the Constitution can't do it, I'm even less confident a Federal statute could.

 

[Phatty]

Could a properly written Federal Law stop states from banning guns and magazines?? I realize such a law would probably not pass and I am certain it would be vetoed if it did so the reason behind my question is to determine if it is within the Federal Government's power to do this.

Yes, the federal government likely has the power to do this under the Commerce Clause.

 

[JRH6856]

If the Constitution can't do it, I'm even less confident a Federal statute could.

The Constitution is a statement of general principle. Statute law is a more detailed application of the guiding general principle. The principle is open to interpretation until specifically applied to the law by the courts. The law, OTOH, is specifically applied to facts and federal law is superior to state law. But only in the areas where Congress has authority to legislate.

In the case of firearms, Congress has historically asserted authority under the Commerce clause due to the fact that almost all firearms move in interstate commerce. Congress could find that state laws interfere with interstate commerce for any number of reasons and prohibit state action. But it would still, in all probability, require SCOTUS to make the final decision as to authority.

 

[tyeo098]

Yes, the federal government likely has the power to do this under the Commerce Clause.

No, Congress does have the power to do so under the Supremacy clause.

However, since they're in the process of trying to ban magazines, etc themselves... I highly doubt the opposite bill would even be introduced.

 

[joeschmoe]

Could a properly written Federal Law stop states from banning guns and magazines??

Yes. It's called the 2nd Amendment to the Constitution. It is already the law of the land. States cannot ban guns and magazines. Read Heller/McDonald.

 

[USAF_Vet]

I heard on the radio this morning that SCOTUS ruled against the federal gov't in a case that would allow the Feds to over rule state laws. A major blow against the ever encroaching powers of the federal government.

 

[zoom6zoom]

Could a properly written Federal Law stop states from banning guns and magazines??

It would be more likely they'd try to do it the other way around to get states to do something they want no part of.

 

[k_dawg]

Thanks to CJ Roberts, they can do anything as long as they call it a 'tax'.

 

[cbrgator]

I heard on the radio this morning that SCOTUS ruled against the federal gov't in a case that would allow the Feds to over rule state laws. A major blow against the ever encroaching powers of the federal government.

What case?

 

[USAF_Vet]

What case?

Arizona v. United States.

This was the case where SCOTUS ruled in favor of Arizona in which the Fed.gov tried to over rule the enforcement of the state of Arizonas immigration law.
While three of the four provisions were turned down by SCOTUS majority, one provision remained:

All justices agreed to uphold the provision of the law allowing Arizona state police to investigate the immigration status of an individual stopped, detained, or arrested if there is reasonable suspicion that individual is in the country illegally. However, Justice Kennedy specified in the majority opinion that state police may not detain the individual for a prolonged amount of time for not carrying immigration documents; and that cases of racial profiling are allowed to proceed through the courts, if such cases happen to arise later on.

 

[mgkdrgn]

Could a properly written Federal Law stop states from banning guns and magazines?? I realize such a law would probably not pass and I am certain it would be vetoed if it did so the reason behind my question is to determine if it is within the Federal Government's power to do this.

Federal law can do what ever the courts say it can do.

The chances of the current courts saying "Yea" to this is thinner than frog piss on a rock. (to quote LBJ)

 

[MSgtEgress]

Yes. It's called the 2nd Amendment to the Constitution. It is already the law of the land. States cannot ban guns and magazines. Read Heller/McDonald.

This is assuming the Constitution is "incorporated" which it is not. The Constitution are constraints on the federal government only. "Congress shall make no law" States can do what they damn well please. If you don't like the laws in your state, move

 

[Frank Ettin]

This is assuming the Constitution is "incorporated" which it is not....

Wrong.

The United States Supreme Court ruled in McDonald v. Chicago, 561 U.S. 3025 (2010) that the Second Amendment is incorporated and applies to the States through the Fourteenth Amendment.

 

[MSgtEgress]

Then why are citizens still forbidden to own a handgun in Chicago?

 

[Cosmoline]

It could be done, provided the law was clear enough. Congress would be taking over all aspects of firearm regulation, leaving nothing for the states. One example would be maritime law, which typically leaves little or no room for state law.

 

[joeschmoe]

This is assuming the Constitution is "incorporated" which it is not. The Constitution are constraints on the federal government only. "Congress shall make no law" States can do what they damn well please. If you don't like the laws in your state, move

The 2nd Amendment has been incorporated under the 14th Amendment to apply to the states. It is a federally protected right enforceable on the states just like the 1st, 4th, etc. States can't ban religion, books, arms or ammo. States will get some latitude in how exactly they enforce or infringe, but an outright ban is not going to pass challenge.

We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.
http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

“It is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty... The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States.”
http://www.cga.ct.gov/2010/rpt/2010-R-0314.htm

Second Amendment Incorporated Against States
McDonald v. Chicago http://lawprofessors.typepad.com/co...nd-amendment-incorporated-against-states.html

 

[Frank Ettin]

Then why are citizens still forbidden to own a handgun in Chicago?

Sigh!

1. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago 561 U.S. 3025 (2010)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
2. But as is the case with any litigation, Heller and McDonald only directly affected the particular laws being challenged in those cases.
   
   
3. Any gun control or gun laws now in force or later enacted by Congress or by any State would be subject to judicial challenge. But until challenged (or changed or repealed) those laws will remain in effect and enforced.
   
   
4. Also, there is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
5. There are three prongs to the strict scrutiny test, as follows:
   
   
   • The regulation must be justified by a compelling governmental interest; and
     
     
   • The law or policy must be narrowly tailored to achieve that goal or interest; and
     
     
   • The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).
   
   
6. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
7. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.

 

[joeschmoe]

The courts move slow, they're supposed to. Their decisions reverberate for many decades to come.
IMO, most of these recent draconian provisions of NY and CO laws will be tossed as unconstitutional.

 

[Bill_Shelton]

Could a properly written Federal Law stop states from banning guns and magazines?? I realize such a law would probably not pass and I am certain it would be vetoed if it did so the reason behind my question is to determine if it is within the Federal Government's power to do this.

I would never underestimate the power of the Federal Government. When the Federal Government got tired of "States Rights", then they sent down some guys (i.e., General William Sherman, et. al.) to the south to remind the southerners that their "States Rights" to Slavery meant "Squat". And they burned down a lot of Southern cities and shot lot of Rebels and sympathizers to make the point. It made for some good entertainment for the North.

Then...one-hundred years later they took on and slaughtered the Vietnamese peasants with the world's mightiest military machine and then got humiliated by those same peasants...but that's another story.

 

[rodinal220]

Isn't that what the Second Amendment does??You know,the Bill of Rights??

It pains me when I see and hear that "a law" that is subordinate and clearly an infringement is taken as the gospel and the poor Second Amendment is shown no respect.

 

[Frank Ettin]

Enough