State law/federal law: Which prevails and why?

[R.H. Lee]

The federal government has spoken through it judicial agency, the US Supreme court. It has said that federal law prevails with regard to marijuana use, notwithstanding that the people of the state of California, for example, approved 'medical marijuana several years ago.

OTOH, federal law with regard to firearms possession is what it is, yet CA law prevails and overrides fed law. I don't get it. Who decides when state law trumps fed law, or is it just whichever is more restrictive and if so, who made that rule and when?

This is not intended to discuss the benefits/risks of mj use, so don't even start. I'm interested in how CA (and other states) can impose firearms laws that are more restrictive than federal law. If any state tried to limit any of the other BOR amendments, for example, they wouldn't get away with it.

 

[El Tejon]

Hi, Riley. The Second Amendment has yet to be incorporated to the states via the 14th Amendment as the Fresno Rifle and Pistol Club found out.

The Supremacy Clause of the Constitution allows federal law to trump state law. The Commerce Clause, that now big hammer of unlimited government, gives Congress the authority to do whatever it desires (not really but sure seems that way).

The remedy I have been call for, since '89, is federal preemption of firearms law.

 

[R.H. Lee]

ah, the 'equal protection' clause I keep hearing about. It says

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Bold text mine.

 

[El Tejon]

And where is the Equal Protection Clause found?

 

[R.H. Lee]

14th Amendment to the US Constitution, correct? So why/how can states get away with its flagrant violation by imposing restrictions on US citizens?

 

[El Tejon]

Short answer: because there is no federal right to apply to the states. The federal RKBA has not been "brought down" to the states.

After the Civil War, Congress grew concerned that the freedmen were still being oppressed by Southern action, state and private. After the Civil Rights Act of 1866 Congress sought to extend the BoR to the states.

Despite overwhelming evidence that the 14th Amendment was to extend the BoR (including RKBA) to the states, a Southern sympathetic Supreme Court went to an a la carte menu of rights. Rights would be extended one at a time those that fit in with a "well-ordered scheme of liberty".

To date, two rights have not been extended to the states, the right to a grand jury and the RKBA. This is the reasoning for the dismissal of the Fresno R&P Club's suit--no federal right as it had not been extended to the states.

Another reason why the judicial counterrevoloution against the Welfare State is so important.

 

[captain obvious]

While I would love the effects of that enaction of Federal Supremacy, It sill gives me the creeps - as does much that resulted from the [never properly ratified] 14th Amendment.

 

[El Tejon]

The creeps?

Wouldn't federal preemption be Congress acting to protect civil rights of citizens in CA, NJ, MA, IL, etc.? Just like Congress was doing to protect citizens in the South with the 14th Amendment.

I prefer a very strong Second Amendment ruling from the Supreme Court, however I understand that the Supremes can never rule for to do so would undermine the entire Welfare State.

 

[MFH]

My understanding at least with the state down to local level law is that whatever law is more restrictive is the one that prevails. So CA. law would prevail as it is more restrictive for firearms than federal law, but for marijuana, the state law is less restrictive so the federal will override state.

FWIW

MFH

 

[captain obvious]

Just like Congress was doing to protect citizens in the South with the 14th Amendment.

:banghead:

This is going to come to blows about the War, again, and another such discussion is exactly what THR needs.

I'm not so sure about your take on the 14th - especially when even New Jersey recinded its ratification of said amendment (not that it mattered to the feds, of course).

 

[El Tejon]

cap'n, the Congressional Record is crystal clear that the Framers of the Fourteenth Amendment wanted to extend all of the rights in the BoR to the states. The reason that Congress wanted to do this is because of the abuse of the freedmen in the South.

How is stating a historical fact "coming to blows" over anything?

I am unaware of any case holding the 14 Amendment to be unconstitutional. Of course, I am aware of arguments that the 16th Amendment is unconstitutional and that fringe on the flag means you can't prosecute me.

 

[captain obvious]

the Congressional Record is crystal clear that the Framers of the Fourteenth Amendment wanted to extend all of the rights in the BoR to the states. The reason that Congress wanted to do this is because of the abuse of the freedmen in the South.

So they did this by forcing the Southern States to ratify an amendment that wasn't even ratified by several northern states, and doing so in a manner not unsimilar to the actions of the Soviets in Hungary in 1956?

Yeah, and I suppose they were doing this for the children, too.

 

[El Tejon]

The African-American children, yes.

"The United States shall guarantee to every State in this Union a Republican Form of Government."

Moral of the story: don't commit treason against the United States and don't disregard the civil rights of its citizens. The moral should be taught in DC again.

 

[captain obvious]

Moral of the story: don't commit treason against the United States and don't disregard the civil rights of its citizens. The moral should be taught in DC again.

:banghead:

All I want to say for now is for being such a statist, centralist A**hole, Lincoln sure did use the Declaration of Independence (A SECESSIONIST DOCUMENT) to is advantage quite a bit.

If "treason" means not putting up with tyranny from afar (as the Southern States DID NOT in 1861), then the Continential Army of the American Revolution would have far more morally correct in becoming the Continental Suicide Squad.

I don't understand how one can praise the Secession of the 13 Colonies and decry the secession of the Southern States in the same breath, and mantain a straight face - It's almost as humorous as the argument that Lincoln had to invade the South and destroy the 10th Amendment in order to preserve a Union of "Free" States.


EDIT:

The first part of your moral is certainly understood in DC today - as the Linconian stateist legislation, and moreover, Gonzalez v. Raich, prove very clearly.

 

[El Tejon]

cap'n, the Southern states declared war on the United States to preserve their right to own slaves. The War of Independence was fought to "re-establish our rights as Englishmen."

The tragic irony is that the sin of slavery continues to ring into this century as it limits our rights, specifically our RKBA, today, even in states that had no slavery.

 

[R.H. Lee]

I understand the states' limitation on RKBA historically as it relates to slavery, however, what is the tie-in to the current welfare state?

 

[El Tejon]

Riley, the hard-core Left understands that an armed people will be able to resist them just like Lenin and Trotsky said.

 

[captain obvious]

cap'n, the Southern states declared war on the United States to preserve their right to own slaves. The War of Independence was fought to "re-establish our rights as Englishmen."

WRONG

The order events was South Carolina, then several other states seceeded, followed by Lincoln calling for a 75,000 man army to "crush the rebellion," then Virginia seceeded, in response to the call to arms by the feds against the southern states.

So, as far as i'm concerned (in VA) it had nothing to do with slavery.


If you are going to beat the same point over and over, please make sure you have your facts correct.

 

[2nd Amendment]

Tejon has been corrected on this so many times it's nuts. He has his opinion and, like a gun-grabber mentality, facts don't change it because, I assume, changing it would require altering too many other beliefs.

 

[Henry Bowman]

If you are going to beat the same point over and over, please make sure you have your facts correct.

Ah, you forget that the victor get to write the history books.

 

[gaston_45]

Sorry El Tejon, it was not about slavery! Congress passed a huge tarrif on the export of cotton... which of course was grown in the south to try to force them to do what the north wanted, i.e. get rid of slavery and subsidize expansion of northern industry. The southern states, seeing a terribly unfair tax leveled upon them (tea... cotton, starting to see the connection?) decided that they had had enough and used their right to scede from the union. Any contract can be broken if the original terms are not met. Lincoln didn't see it that way I guess. Can't continue to increase federal powers if the people you are enforcing them against just up and leave can you?

Slavery was a tangential issue to the sucession, kinda like the war on terror is now being used as the buzz word to destroy search and siezure and trial rights today. It's to protect the homeland afterall.

 

[pax]

We're NOT going to re-fight the Civil War here yet again, are we?

No, we're not.

Wouldn't it be nice if, just once, the opening topic remained the topic of the thread throughout its entire life?

Yes, it would.

And there aren't going to be any more personal comments about other members?

No, there won't. Or the thread will be closed.

pax

 

[R.H. Lee]

Please don't start with the Civil War again. Everyone involved is long dead and unable to have any influence over current events.

CA law says I can have pot but no AK's. Federal law says I can have AK's but no pot. There must be thousands of conflicts between state and federal law all over the country. How are these conflicts reconciled, that's the question.

 

[El Tejon]

These sorts of conflicts usually arise out of criminal cases, but can be seen in civil ligitation (even family law or probate).

The exact "how", a judge, or group of judges rule. As I said earlier, your questions focuses on why judicial appointments are so critical.

 

[captain obvious]

thanks, 2A - much relieved now