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Wyoming takes stand against Federal Gov't

Discussion in 'Legal' started by Trent, Jan 10, 2013.

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  1. tulsamal

    tulsamal Member

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    I'm absolutely not going to get into an argument about "the law" since I'm unarmed in such a conflict! However... is the law the issue or the enforcement of the law? That's where I think the legalization of pot (among other things) is relevant. I agree that the law in Colorado doesn't overturn or supersede the Federal law saying pot is illegal. But people in Colorado can go to a store and buy it. They can walk around with it and not worry about being arrested by state or local police. And the Feds aren't sending in truckloads of Federal agents to arrest people for violating the Federal law.

    Doesn't it remind you of some parts of the country during Prohibition? The law was so deeply unpopular in some areas that the local law enforcement refused to participate. The Feds were on their own. In a more limited way, same thing happened with the 55 mph national speed limit. At first it was being enforced. But as time went on, the popular opinion went against it. And the state and local police just kept increasing the "tolerance" level. In some areas of the country, you had to be driving over 70 mph to have any real fear of getting a ticket. Despite all kinds of threats from the Feds about holding back Federal highway money.

    Since I don't see much hope in individuals "fighting back" against LEO's in a worst case scenario, I'm much more inclined to support resistance by the state. By myself.... I can be portrayed in the media as some lonely and crazy nut. But if we stand up as an entire state, that's a whole different thing.

    Gregg
     
  2. Phatty

    Phatty Member

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    States are under no obligation to help the federal government enforce federal laws or provide any cooperation at all. What States cannot do is put up any hurdles to prevent the federal government from enforcing federal law.

    The marijuana legalization is confusing to a lot of people. I'll use Colorado as an example. Back in the day, Colorado had a state law that made possession of marijuana illegal. Possession of marijuana also happened to be a violation of federal law. So if you got busted with marijuana in Colorado, you could get prosecuted under either federal or state law (but not both for the same incident). Based on the simple fact that there was a lot more local Colorado police officers than federal agents in Colorado, and the few federal agents there were primarily focused on larger crimes, the vast majority of marijuana prosecutions were handled on the state level.

    Fast foward to today, and Colorado has repealed its law making marijuana possession illegal (ignore the various qualifications of the law for now). So if you are in possession of marijuana in Colorado, you are not breaking a state law any longer, but you are still breaking a federal law. There is still a risk of being prosecuted federally in Colorado if you are in possession of marijuana there, but most people are willing to take that risk. Prior to the change in the law, there wasn't much chance of getting busted, but if you did get busted it was by your local police department 99% of the time. So now, the risk of getting busted is even further diminished because you only have to worry about the slight chance of running across a federal agent. As long as you're not doing anything to get on the DEA's, BATFE's or FBI's radar, you probably have nothing to worry about.

    State legalization of guns that are illegal at the federal level cannot be compared to marijuana. The major difference is that guns are purchased at federally licensed dealers that are heavily regulated and monitored by the federal government. If a gun dealer tries to sell a federally banned gun in a state that makes that gun legal, he won't be in business for long and will find himself in jail. Also, I find it hard to believe that passionate gun owners will take the risk (even if slight) of a federal felony conviction by illegally possessing a federally-banned firearm, which would prevent them from ever owning any guns again.
     
  3. tulsamal

    tulsamal Member

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    That's true as far as it goes. But in the short term, most people are worried about what will happen to the guns and magazines that they already own I consider the whole "kicking down doors for confiscation" thing to be extraordinarily unlikely but... we'll see how unlikely nation wide registration seems fairly soon.

    I even look towards Canada. They have given up on their long gun registry now but when it was going, the official line was that only about 50% of the long guns in the country had actually been registered. Out West the law was widely despised and largely ignored.

    So if mandatory registration happened and I lived in Wyoming, personally I would feel much more comfortable than if I lived in the NE.

    Well.... I think we disagree on this. It's one thing to illegally possess an unregistered machine gun. Or even a sawed off shotgun. But if I legally own AR-15's and then the gov't says they are now illegal just because of their "type," I find myself wondering just how many people would turn them in for destruction. Especially if the gov't foolishly didn't offer market level compensation for them. And saying the market value is zero because of the very act of the gov't now trying to take them isn't going to fly either. If they are smart enough to give a thousand dollars for each one turned in... then we better get worried!

    Gregg
     
  4. Trent

    Trent Resident Wiseguy

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    [off topic material deleted]

    Anyway, back to the point at hand; Wyoming. (We seem to have drifted a bit.)

    If a State constitution grants citizens certain rights, and the Federal government violates those rights through legislation, is it not right and proper for the State to contest it?

    We've already learned that the Second Amendment of the US doesn't apply to states, but has been selectively incorporated to a narrower function.

    I don't believe the framers ever intended or foresaw the State vs. Federal contest on the constitutional level of each. When the constitution was framed the States and Federal government were more (or less) in lockstep with one another on viewpoint.

    Of course, I'm not a legal scholar by any stretch, just speaking from an uneducated perspective. It doesn't seem right that the Federal Government could unilaterally strip away part of the State's constitution, for those states which explicitly define a right to keep and bear arms.
     
    Last edited by a moderator: Jan 11, 2013
  5. Frank Ettin

    Frank Ettin Moderator

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    That was addressed by the Founding Fathers in the United States Constitution, Article VI, Clause 2 (emphasis added):

    In any case, there are various ways to "contest" something. While federal law may be supreme, if something is objectionable to enough people the political process offers a way to perhaps change federal law.

    I have no idea what you mean by "narrower function." With McDonald now in the books state governments are subject to the Second Amendment through the Due Process clause of the Fourteenth Amendment. That doesn't affect the scope or extent of the limitation imposed on state action by the Second Amendment, and such limitations will be co-extensive with those to which the federal government is subject.

    And if a state constitution were amendment to restrict the rights of Blacks or Methodists?
     
    Last edited: Jan 11, 2013
  6. Frank Ettin

    Frank Ettin Moderator

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    On the other hand, a primary reason that the Constitutional Convention was convened was that the Articles of Confederation with its much looser central government was proving unworkable.
     
  7. DMF

    DMF Member

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    That's absolutely not true. I suggest you research the concept of "separate sovereigns." While it's unlikely due to the Petite Policy it most certainly is possible to be prosecuted by the state the federal government for the same crime, and still not violate the 5th Amendment.
     
  8. Frank Ettin

    Frank Ettin Moderator

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    Good catch DMF. You're absolutely right, and I missed that member's comment entirely.
     
  9. tomrkba

    tomrkba Member

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    In this case, the Feds are abusing the Commerce Clause as a means to get around the Federal Second Amendment. While Wyoming cannot repeal a Federal law, the states can create laws that contradict Federal law. Remember, the entire basis for gun control is under the Commerce Clause. The basis for it to fall under Federal Commerce is (supposed to be) based upon whether or not the item crossed a state border.

    The state of Wyoming is sovereign and has the right to keep and bear arms in its constitution. They delegated power to the Federal government, but never gave it up. If a Federal law contradicts the Wyoming constitution, how is this supposed to be resolved? We look at the intent of the Commerce Clause and we find that it was never intended to be used as a means to reach into the states to control state action. The Feds even ruled that the Second Amendment does not affect state action. My best guess is that the states can prohibit Federal LE from enforcing a law inside the states; they just have not done so recently.
     
  10. DMF

    DMF Member

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    Well you really need to read the US Supreme Court decision in Raich v. Gonzales (2005), AND how that impacted US v. Stewart (2006) in the 9th Circuit. Both of those show your concept of the Commerce Clause is flat out wrong.

    Well, it would be settled in the Courts, federal courts, and they would be ruling based on Article VI of the Constitution of the United States, specifically the "supremacy clause."

    "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, anything in the Constitution or laws of any State to the contrary notwithstanding."

    Which means this statement from you:
    Is absolutely incorrect.
     
  11. Frank Ettin

    Frank Ettin Moderator

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    None of which means anything unless the federal courts buy it. Why would you think they would? That line of argument didn't work for marijuana (Gonzales v. Raich, 545 U.S. 1 (2005)).

    See the Constitution of the United States, Article VI, Clause 2 (emphasis added):

    It appears that the Supreme Court disagrees with your view of the intent of the Commerce Clause, and its opinion trumps yours.

    No, under McDonald States are subject to the Second Amendment.

    A pretty lousy and uninformed guess considering Gonzales v. Raich.
     
  12. Citizen_soldier22

    Citizen_soldier22 Member

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    I'm not even going to get into this law debate, but rather just say I'm very proud of the state I live in. A couple weeks ago I wrote my Congressman and both replies were very encouraging in that they clearly agreed that restricting guns would solve nothing. I'm happy there are at least some politicians with a half decent head on their shoulders still and really hope this bill passes.
     
  13. Frank Ettin

    Frank Ettin Moderator

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    As do I. (Surprised you, didn't I?)

    The thing is that for the various reasons I've outlined, these Firearm Freedom laws are unlikely to have any significant effect in court. But the symbolic and political value can be substantial. These laws can be powerful messages to the federal government.

    It's important to understand, however, the differences between symbolically/politically useful and practical/legal useful.
     
  14. JohnM

    JohnM Member

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    I was talking with some friends yesterday about this.
    They keep up more with just what those guys we send to Cheyenne are thinking than I do.
    The feeling is that this bill stands a very good chance of being passed and that if it does the Governor will sign it, the Feds be damned.
    Almost half the land in our state is federally owned and controlled. Everyone feels the heavy boot of federal regulations in everything we want to do and everywhere we want to go.
    Everyone in state government from the governor on down is incensed over the treatment we've received over the problems of control of introduced wolves.
    Wyoming has always been a strong advocate of states rights and what we see as further infringement on 2nd Amendment rights is another blow.
     
  15. RetiredUSNChief

    RetiredUSNChief Member

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    Since we're on the subject of good catches on prosecution...let's not forget what this also means for servicemembers.

    Any violations which may be covered by the UCMJ (Articles 77 through 134) can also be prosecuted by the military as well.

    Potential triple whammie.

    :(
     
  16. gym

    gym member

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    I am retired, if Florida attempt to enforce any such bans, I am out of here. Already told my wife, moved here because I had to give up my carry in NYC, "no business, no license". I will leave FL if they attempt to enforce any proposed legislation.
     
  17. tomrkba

    tomrkba Member

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    Again, the Founders never intended for the system as it exists today. Macdonald modified the long standing decision stating the 2A does not affect state action. The trend is for the Feds to rule in their favor when it comes to power.

    Many of the above comments seem to reflect a very negative attitude overall and a negative attitude for state power over Federal power. I find this sad since the Feds are very much against individual liberty.
     
  18. Silverado6x6

    Silverado6x6 Member

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    Up here in Alaska it was announced a couple of days ago that federal spending on the portion of the Alaska Highway on the Canada side before entering Alaska will cease, the feds have been paying for road upkeep for many years though its all done by Canadian workers, its the roughest section of the Alcan.

    Talk is its a shot across the bow knee jerk reaction to scare Alaska from resisting federal laws.
     
  19. Frank Ettin

    Frank Ettin Moderator

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    How do you know?

    The Founders did indeed intend the United States Constitution and federal law to be the supreme law of the land, because that's exactly what they wrote in the Constitution. The Founders did intend the judicial power of the United States to be exercised by a Supreme Court (and other, lower federal courts) and for that judicial power to extend to deciding cases under the Constitution; and they understood what that meant because many of them were lawyers.

    The Founders must have expected there to be disagreements about what the Constitution meant in a particular situation and how it applied. And so they no doubt expected those disagreements to be resolved through the judicial system the Constitution established. They would have expected such questions to be resolved by the courts because, since many of them were lawyers, they understood that was how those sorts of questions had in the past been resolved under the Common Law.

    Yes, in 1833, as I've pointed out, the Supreme Court ruled that none of the Bill of Rights applied against the States. The Fourteenth Amendment was adopted in 1868 to change that, and the court began to use the Fourteenth Amendment in that way beginning at the end of the 19th Century. McDonald is just the latest in the more than one hundred year history of applying the Bill of Rights to the States.

    Nope. Many of the comments here reflect a better understanding of reality and law than you (and some others) seem to have.

    As the federal government was against individual liberty when States were routinely supporting the deprivation of individual liberty to persons of color?

    The federal government isn't necessarily for or against individual liberty. It depends on who makes up the federal government. Just as whether the government of a State is for or against individual liberty depends on who makes up that government.
     
  20. DMF

    DMF Member

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    Sorry, but that is not correct. Double jeopardy would apply if a person were charged in Federal District Court of a violation of the US Code and in the military under the UCMJ, for the same criminal incident, as both are part of the federal government and are NOT separate sovereigns.
     
  21. RetiredUSNChief

    RetiredUSNChief Member

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    I don't think this is entirely accurate.

    Here is some information on the matter:

    The fact that an accused is subject to trial by court-martial does not eliminate the possibility of trial by another jurisdiction, either in addition to or in lieu of court-martial. Under the United States Constitution, a person may not be tried for the same misconduct by both a court-martial and another federal court. Such an act would violate the Constitution’s double jeopardy clause.

    Source: http://www.ucmjdefense.com/Military Jurisdiction.html

    While it is true that a servicemember cannot be tried for the same misconduct by both the military court and a federal court, this doesn't mean that the servicemember cannot be subsequently tried for related, or lesser included offenses.

    Generally, however, jurisdiction is decided between the affected authorities with respect to the charges.


    For example, let's take the case of murder.

    A servicemember may indeed be tried for murder in a federal court instead of a military court. Let's say the outcome of that is "not guilty".

    At this point in time, he may not be tried again for the same offense.

    However, that doesn't mean that the military cannot take the servicemember to courts-martial over the following if he was not charged with them in the federal court. And some of them he CAN'T be charged with in civilian court, because the offenses apply exclusively to the military:

    Art. 80: Attempts
    Art. 81: Conspiracy
    Art. 86: AWOL
    Art. 87: Missing Movement
    Art. 90: Assaulting or willfully disobeying superior commissioned officer
    Art. 102: Forcing a safeguard
    Art. 111: Drunken or reckless operation of vehicle, aircraft, or vessel
    Art. 114: Dueling
    Art. 119: Manslaughter
    Art. 120a: Stalking
    Art. 124: Maiming
    Art. 128: Assault
    Art. 133: Conduct unbecoming an officer and gentleman
    Art. 134: General article ("Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.")


    :eek:
     
  22. Frank Ettin

    Frank Ettin Moderator

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    This has been an interesting side trip down the road of double jeopardy, and I hope it's been useful for some people who might not understand the subtleties and complexities of the issue.

    However, it is off topic for this thread, so let's discontinue the discussion please.

    I hope anyone who is interested in more knowledge on the subject will make use of other available resources.
     
  23. Trent

    Trent Resident Wiseguy

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    So, the verdict here (if one can be decisively found) is that...

    Wyoming's posturing won't hold up to any serious test.

    (Despite the fact that it tickles the heck out of me to see a State stand up to the Federal government in a pro-gun fashion.)
     
  24. shinyroks

    shinyroks Member

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    Doesn't the Arizona illegal alien mess create somewhat of a precedent for believing that local authorities are not responsible for, or allowed to enforce federal laws? In saying that it was unconstitutional for the state to create laws allowing the state to prosecute illegal aliens as a federal crime? Could this not apply to federal restrictions at other levels as well...
     
  25. tomrkba

    tomrkba Member

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    It won't hold up if the state submits to Federal jurisdiction. It all depends upon how far the legislature and the governor are willing to go. If Wyoming officials are willing to face down Federal agents, then it'll have teeth. If not, then we'll be in the same predicament where we have the Feds violating the Second Amendment using a variety of legal shenanigans.
     
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