Missouri Legislature Nullifies All Federal Gun Control

[Frank Ettin]

And that will be a question for the federal courts. See post 21.

I disagree.

Of course you do. But you're not a lawyer, and you don't understand how these things work in the real world.

 

[MJU1983]

Of course you do. But you're not a lawyer, and you don't understand how these things work in the real world.

That's the best you can come up with? A Red Herring / Ad hominem.

FWIW you are not taught "the Constitution" in law school. You will never study the actual Constitution, or its history, or the State ratifying conventions in your quest at becoming a "Constitutional Lawyer".

 

[Frank Ettin]

Of course you do. But you're not a lawyer, and you don't understand how these things work in the real world.

That's the best you can come up with? A Red Herring / Ad hominem...

It's a simple statement of fact. Your pretty rhetoric will not settle things. That and $2.00 will get you a cup of coffee at Starbucks.

Many of the Founding Fathers were lawyers and understood the role of the courts in deciding disputes. And that is why they assigned the judicial power of the United States to the federal courts and authorized the federal courts to exercise judicial power to decide, among other things, cases arising under the Constitution.

It's about achieving actual results in the real world.

 

[303tom]

It's a simple statement of fact. Your pretty rhetoric will not settle things. That and $2.00 will get you a cup of coffee at Starbucks.

Many of the Founding Fathers were lawyers and understood the role of the courts in deciding disputes. And that is why they assigned the judicial power of the United States to the federal courts and authorized the federal courts to exercise judicial power to decide, among other things, cases arising under the Constitution.

It's about achieving actual results in the real world.

Nullification is the legal theory that states have the right to nullify, or invalidate, federal laws which they view as being unconstitutional & the Constitution says our RIGHT to keep & bear arm shall not be infringed !................

 

[Ryanxia]

Way to go MO! Stand strong with Kansas and hopefully we will all join you.

 

[Frank Ettin]

Nullification is the legal theory that states have the right to nullify, or invalidate, federal laws which they view as being unconstitutional & the Constitution says our RIGHT to keep & bear arm shall not be infringed !...

It is not a legal theory recognized by the courts. It is a political theory that has never actually worked.

As I have cited in post 21, the Founding Fathers provided in the Constitution that federal law is supreme. Also as I've cited in post 21, the Founding Fathers provided in the Constitution that the federal courts will decide disputes arising under the Constitution and disputes in which the United States is a party.

These "firearm freedom" laws reflect a strong symbolism and might turn out to be meaningful politically. But it's highly unlikely that they will be fruitful in court.

In the meantime, the cornerstone of 21st Century Second Amendment jurisprudence was laid in 2008 in the Heller decision. The next stone was set in 2010 in McDonald. These results were achieved by people who understand how things actually work in the real world.

 

[semperfi63]

This whole idea of states "nullifying" federal law is, in itself, a nullity. All it amounts to is politicians trying to make cheap political points.

The Supremacy Clause of the Constitution provides that the federal constitution, laws, and treaties trump any state laws to the contrary. Even state-level law enforcement officers are sworn to uphold the (federal) constitution, so it would be against their oath to try to enforce purported state laws in conflict with it.

The last time nullification was seriously proposed was by John C. Calhoun in 1832. President Andrew Jackson made short work of that argument. Of course, the South Carolina nullifiers tried again, by seceding, in 1860, but we all know how that one turned out.

Really, this is a blind alley for the gun-rights movement. It would be wise not to go there.

I also don't see much chance of winning anything by nullification but your history is a little off. See Wisconsin 1854 -- state law nullifying Federal Fugitive Slave Act.

 

[NelsErik]

Jury Nullification sure seems to have worked in prohibition... I think I read somewhere it occurred approximately 60% of the time. Of course we have United States v Sparf which pretty much legalized tyranny at whole.

 

[Frank Ettin]

Jury Nullification sure seems to have worked in prohibition...

Jury nullification is an entirely different matter. It is merely recognition of the fact that under the constitutional prohibition on double jeopardy the prosecution may not appeal a jury verdict of acquittal in a criminal case. And since no one may intrude into the deliberations of a jury, if a jury is agreed that the law, as instructed by the judge, should not be applied for whatever reason, and returns a verdict obviously completely at odds with the judge’s instructions, nothing will happen to the jurors.

Jury nullification can be a two edged sword. Some may look on it as a check on government by permitting a jury to acquit someone who might be considered a victim of government excess. But I suspect that during some of the "bad old days" of the post Reconstruction South and some of the early days of the Civil Rights Movement, juries regularly practiced nullification to let off various murders of Blacks, participants in lynch mobs and the like. We've certainly seen perversion of jury nullification -- at times when no White jury would convict a White man of a crime against a Black (or Native American or Asian or Hispanic) no matter what the law or the facts were.

 

[Outlaw Man]

I like seeing states pass these laws and wish mine would, also. While I agree that it is mostly political grandstanding, so were a lot of the things the colonies did leading up to the Revolution. I'm not saying we're headed there, but I am saying to wait on final judgement of its merits until the dust settles.

I am curious, though. If this were to eventually result in a Supreme Court case over the validity of the interstate commerce clause as it pertains to NFA/GCA, and the court ruled that intrastate firearms were, in fact, exempt from these laws, what has to happen for these laws to be deemed unconstitutional, rather than just N/A if it stays within the state? In other words, is there a scenario under which SCOTUS throws the act out completely?

 

[taliv]

Your pretty rhetoric will not settle things. That and $2.00 will get you a cup of coffee at Starbucks.

so it's worth what, $4?


i hold with those who say it will have some effect.

 

[rduchateau2954]

The whole idea, as put forth in the Constitution, that the states rights are superior to the federal rights just doesn't apply. Too bad, cuz the reason states rights were supposed to be above federal rights was to prevent the federal government from gaining too much power (sorts the reason we got rid of the king in the first place

Treading lightly here, but isn't that exactly what the civil war was about?

 

[Cosmoline]

It's political, not legal. The feds can and will still arrest and convict you in their courts for violation of federal gun laws. They don't need the state's permission to do it.

So applaud it all you want, but don't make the mistake of thinking it's going to be a get out of federal prison free card.

 

[rookorami]

Exactly. Its mostly political, may reduce chances of local LEO acting but its still a felony. Even if it is representative will no real world affect. I am hoping it will spur the kind of conversation that we want. It may just be a statement but statements can start or advance movements. Take for instance the legalization of pot in a few states. Lets just hope it advances what we want.

 

[SharpsDressedMan]

Come on Frank, you know IN THE REAL WORLD a judge, be it federal or local, sometimes favors the lawyer/presentation he likes best, the law be damned. It's a crapshoot, and either side might get the favorable judgment. Missouri may as well give it a shot!

 

[Cosmoline]

I think some folks may be misunderstanding the nature of federalism. State legislatures cannot overrule federal statutes. States may well be able to instruct their OWN law enforcement to not cooperate with the feds, but they cannot keep the feds from enforcing federal law. Nor would they have any opportunity to do so. If an AFT agent arrests a person in that state for violation of federal gun law, the case would be tried in federal court. There is no state involvement. The state is not a party. The court does not need the state's blessing to proceed.

A more interesting question is what impact a bar on state cooperation might have, though that's a two way street. The feds can shut down state access to everything from federal backup to the critical crime labs.

 

[taliv]

cosmoline, sure, but instructing the locals not to assist would still have some effect. and further, since the feds are notoriously uneven in their enforcement, individuals officers may decide to look the other way and not press the issue because they want to avoid a state conflict.

besides, it does keep up the momentum, and keep it in the news.

 

[lloveless]

Maybe I am confused. What it looks like on the ground to me: If an Federal officer comes to Missouri, arrests someone on a federal gun charge, then the officer just committed a felony in Missouri by state law. That officer could then be tried and convicted of a felony by the state of Mo. YES or NO??
LL

 

[Frank Ettin]

Your pretty rhetoric will not settle things. That and $2.00 will get you a cup of coffee at Starbucks.

so it's worth what, $4?

Nope. Around here one can get a regular coffee (Tall) for under $2.00.

i hold with those who say it will have some effect.

I know that many people share that belief. I just haven't seen anyone state a solid basis for that belief, at least with regard to an action in the courts, under the law. But maybe it can have a political effect.

Come on Frank, you know IN THE REAL WORLD a judge, be it federal or local, sometimes favors the lawyer/presentation he likes best, the law be damned. It's a crapshoot, and either side might get the favorable judgment...

No, actually I know no such thing. Having earned a good living practicing law for over thirty years, I know that is not true.

Of course, there are some poor judges, but it's been my experience that the vast majority of judges (and lawyers) take their roles in the legal system very seriously and try very hard to reach proper conclusions based on the law and facts. Apparent unpredictability flows from the reality that sometimes the law is not clear, especially in certain applications, and often the facts are uncertain.

...If an Federal officer comes to Missouri, arrests someone on a federal gun charge, then the officer just committed a felony in Missouri by state law. That officer could then be tried and convicted of a felony by the state of Mo. YES or NO??

No. See The Constitution of the United States, Article VI.

 

[Ignition Override]

For those who believe that a state could nullify a specific federal law, doesn't that mean that they could also modify any ATF regulations that they decide to change?

As certain states have had tighter gun regs than the majority of states, apparently no state can have Looser regs than the Feds, for example to allow purchase of a select-fire gun via laws under which could be only a state process.

 

[Akita1]

Posted by Frank Ettin
Apparent unpredictability flows from the reality that sometimes the law is not clear, especially in certain applications, and often the facts are uncertain.

This is a ton of noise over a moot point, but agreed Frank. Some/Many (take your pick) laws are drafted intentionally "unclear" to let the courts figure out the practical application of the intent - especially on the Federal level. Also, note that any law is effectively a statement of intent without "clearly" drafted regulations to enact it - that is never a given.

And $2 in San Fran, really?

 

[Frank Ettin]

...Some/Many (take your pick) laws are drafted intentionally "unclear" to let the courts figure out the practical application of the intent...

Again, I know from my professional experience, which has included helping to write laws, that this is not true. I've spent many hours with legislative staff hammering out language in an effort to promote clarity in likely applications. The thing is that things happen which could not have been anticipated.

In any case, we're getting off topic. Let's get back to the real subject of this thread.

 

[Akita1]

Again, I know from my professional experience, which has included helping to write laws, that this is not true. I've spent many hours with legislative staff hammering out language in an effort to promote clarity in likely applications. The thing is that things happen which could not have been anticipated.

In any case, we're getting off topic. Let's get back to the real subject of this thread.

OK, but you're not the only one here that has done that (helped draft and pass both laws and regulations). I have personally been in drafting sessions where the words "let the courts decide that/we're not going there" were used in more than one instance. I am not saying your experience is the same, but it certainly does exist.

Hammering out language may be very well-intentioned but, as you state repeatedly above, the "real world" gets in the way because human behavior has very little to do with drafting and intent. You can never imagine each and every scenario that will apply because the world is not a static place. To your point, it took a long time/all the way until Heller and McDonald to "apply" 2A to the States.

Done being off topic as you instruct and will give you, as the mod, the last word. As always, thanks for your guidance.

 

[303tom]

And The Tenth Amendment says; 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.

 

[MJU1983]

It is not a legal theory recognized by the courts. It is a political theory that has never actually worked.

It's a legal theory recognized by Thomas Jefferson and James Madison. The Virginia and Kentucky Resolutions of 1798 spell it out clearly. James Madison said the states were “duty bound to resist” when the federal government violated the Constitution.

That's not true. The Principles of ’98 were in fact resorted to more often by northern states than by southern, and from 1798 through the second half of the nineteenth century were used in support of free speech and free trade, and against the fugitive-slave laws, unconstitutional searches and seizures, and the prospect of military conscription, among other examples. And nullification was employed not in support of slavery but against it.

As I have cited in post 21, the Founding Fathers provided in the Constitution that federal law is supreme. Also as I've cited in post 21, the Founding Fathers provided in the Constitution that the federal courts will decide disputes arising under the Constitution and disputes in which the United States is a party.

You are reading the Supremacy Clause like this: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.” The key part to the Supremacy Clause is "in pursuance thereof."

Which part of the Constitution indicates that? Judicial review is not in the Constitution. It was a precedent set by Marbury v. Madison (1803). In the same way, why can’t states nullifying federal laws set a precedent? According to anti-nullifiers’ own logic, nullification would have to be acceptable.

These "firearm freedom" laws reflect a strong symbolism and might turn out to be meaningful politically. But it's highly unlikely that they will be fruitful in court.

In the meantime, the cornerstone of 21st Century Second Amendment jurisprudence was laid in 2008 in the Heller decision. The next stone was set in 2010 in McDonald. These results were achieved by people who understand how things actually work in the real world.

Again, why would a state care about a federal court? They are finally realizing that the 9th and 10th amendments are just as important as the rest of them. And that I L-O-V-E!