"preemption" and McDonald

[pnac]

The article below illustrates why I have some reservation about the McDonald decision. I said in another forum that this could be hit against states rights, my argument being that, if the Congress passed a law banning a type of weapon, semi autos for instance, and the President signed it into law, what recourse would the states or the people have after McDonald.

This is not a discussion about whether or not you support the AZ law, it's just an illustration, but rather, is "preemption" a way to attack the 2nd Amendment.

http://www.washingtonpost.com/wp-dyn...l?hpid=topnews

By Jerry Markon
Washington Post Staff Writer
Tuesday, July 6, 2010
The Justice Department has decided to file suit against Arizona on the grounds that the state's new immigration law illegally intrudes on federal prerogatives, law enforcement sources said Monday.

The lawsuit, which three sources said could be filed as early as Tuesday, will invoke for its main argument the legal doctrine of "preemption," which is based on the Constitution's supremacy clause and says that federal law trumps state statutes. Justice Department officials believe that enforcing immigration laws is a federal responsibility, the sources said.

A federal lawsuit will dramatically escalate the legal and political battle over the Arizona law, which gives police the power to question anyone if they have a "reasonable suspicion" that the person is an illegal immigrant. The measure has drawn words of condemnation from President Obama and Attorney General Eric H. Holder Jr. and opposition from civil rights groups. It also has prompted at least five other lawsuits. Arizona officials have urged the Obama administration not to sue.

Etc. ...

[Brian Pfleuger]

After McDonald, I think we have a fighting chance. Before, not so much... NFA anyone? We may now have a chance to defeat even the NFA, at least in part.

[DogoDon]

Preemption doesn't apply to regulation of firearms. Preemption applies when a particular field is regulated solely by the federal government (e.g., the regulation of immigration, as in the Arizona situation). A state law regulating in that field would be invalid under the preemption doctrine.

Firearms regulation is not solely federal (in fact, firearms regulation falls mainly to the states), so preemption does not apply.

A federal firearms regulation could be challenged on constitutional grounds if it ran afoul of established constitutional requirements. Otherwise, the recourse would be at the legislative level (throwing out the bums who passed it, and then repealing or modifying it).

DD

[Sefner]

Originally Posted by DogoDon

Preemption doesn't apply to regulation of firearms. Preemption applies when a particular field is regulated solely by the federal government (e.g., the regulation of immigration, as in the Arizona situation). A state law regulating in that field would be invalid under the preemption doctrine.

This. The federal government, and now the States, will be held to the same level of scrutiny for any given regulation of firearms. The federal government still can't ban handguns as in OP's post simply because the ruling prohibits it.

For instance, if a State were to set a maximum speed limit, it cannot be overruled by preemption because the federal government cannot set a "national" speed limit (although the current interpretation of the Commerce clause may change that ).

[Bartholomew Roberts]

I said in another forum that this could be hit against states rights, my argument being that, if the Congress passed a law banning a type of weapon, semi autos for instance, and the President signed it into law, what recourse would the states or the people have after McDonald.

You realize that the federal government already did this in 1994 and the states had absolutely no recourse to stop it then despite the fact that the Second Amendment was not incorporated against them at that time?

The problem here isn't that the 14th Amendment applies the Second Amendment to the states, that has nothing to do with federalism or state's rights (unless you believe states have the right to deny fundamental civil rights outlined in our Constitution) and it doesn't allow the federal government to restrict the Second Amendment. Instead, it has everything to do with a too-broad application of the Commerce Clause; but the McDonald decision has nothing to do with the Commerce Clause.

[maestro pistolero]

I am not a fan of select fire. I think it is of very limited usefulness in any self defense situation I can imagine. But I have always contended that with the right case, a just ruling would determine that it cannot be banned outright, as it effectively is right now. $15,000 for an MP5, or 20k for an M16 that should cost 2-3K, is prohibitive for 95 percent of Americans.

The militia clause announces the only specifically enumerated purpose for the second amendment. Despite recent rulings that the amendment also protects a self-defense purpose, the militia clause has not been written out of the amendment. Whether is militia is dormant, or dead as one member here insists, the amendment is very much alive until, and unless, it is amended by the procedure specified elsewhere in the document.

If it is a small arm, and it has a militia or military purpose, it is entitled to 2A protection, subject to some regulation. The path to ownership must be achievable by person not prohibited by due process from the exercise of the right. Regulate, yes. Prohibit, not without running afoul of the militia clause.

Unless, of course, your name ends with the letters . .otomayor, . . tevens, nsburg, or . . . reyer.

[Old Grump]

What are you talking about and why would you want the militia clause written out of the 2nd amendment? We are the militia, not the army, navy, airforce, coast guard, national guard, none of them are the militia, we are the militia.

Confusing post and what does any of this have to do with select fire?

Write slowly and use smaller words so us dinosaurs can keep up.

[Frank Ettin]

Originally Posted by pnac

...The article below illustrates why I have some reservation about the McDonald decision. I said in another forum that this could be hit against states rights,...

McDonald has absolutely nothing whatsoever to do with federal preemption, and the McDonald decision does not affect federal preemption, one way or the other, in the slightest.

Federal preemption is based on Article VI of the Constitution:

"...This Constitution, and the laws of the United States which shall be made in pursuance thereof; ..., 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...."

There are a number of reasons why a particular state law in conflict with federal law will not be found to be preempted, and there is a good deal of decisional law on the subject. But in any case, the 14th Amendment and the incorporation of rights enumerated in the Bill of Rights have nothing to do with the matter.

As Bartholomew Roberts stated,

Originally Posted by Bartholomew Roberts

...The problem here isn't that the 14th Amendment applies the Second Amendment to the states, that has nothing to do with federalism or state's rights ...and it doesn't allow the federal government to restrict the Second Amendment. Instead, it has everything to do with a too-broad application of the Commerce Clause; but the McDonald decision has nothing to do with the Commerce Clause.

[Brian Pfleuger]

The difference, I think, is not in the theory of applying the law but in that actual recognition that the 2nd Amendment is "real". The 2nd has been on life support for DECADES in both state and federal courts. In fact, it's been dead for decades in some places. McDonald and Chicago have essentially resurrected it as a "real" right.

It may not technically be "preemption" but I think that we finally have a chance for the 2nd to "preempt" all of these nonsense laws.

[BillCA]

Generally speaking.... for a gov't entity to declare "preemption" of an area of law, it must first have indicated it's desire to regulate that entire field of legistlation. For example, the state of California has indicated its intent to occupy the entire realm of firearm regulation for the state. That means "lower" jurisdictions - cities & counties - cannot make firearms regulations that conflict with state laws.

As to Arizona's immigration law, I think DOJ will have a hard time claiming the AZ violates preemption when it merely overrules any "local" rules that prohibit enforcement of federal immigration statutes. In essence, AZ has "preempted" its cities from being sanctuary cities and/or ordering authorities not to enforce immigraion laws. But AFAIK, the AZ law does not seek to change federal authority or jurisdiction over illegal immigrants.

As others have pointed out, states regulate firearms more than the Feds. This means the Feds don't have a case on a "preemption" basis for firearms laws at all.

[maestro pistolero]

What are you talking about and why would you want the militia clause written out of the 2nd amendment? We are the militia, not the army, navy, airforce, coast guard, national guard, none of them are the militia, we are the militia.

Confusing post and what does any of this have to do with select fire?

Write slowly and use smaller words so us dinosaurs can keep up.

Easy there cowboy! Perhaps reading slowly would help.

I do NOT want the 1st clause written out of the amendment. I am pointing out that, despite all the recent focus on the self defense aspect of 2A, that the militia clause is still in full force and effect.

Therefore, I am contending, that military-type small arms, including select-fire, ought to be the MOST protected arms, because their particular purpose is the only purpose actually mentioned in the the amendment.

[Tom Servo]

I said in another forum that this could be hit against states rights, my argument being that, if the Congress passed a law banning a type of weapon, semi autos for instance, and the President signed it into law, what recourse would the states or the people have after McDonald.

First off, incorporation of a right is a different matter from federal power pre-empting state powers.

Furthermore, states do not have rights. No government has "rights." They are delegated powers. "States' rights" is a misnomer from a dark and shameful part of our national past.

Pnac isn't the first person to bring up the idea that expanded 14th Amendment protections would somehow threaten federalism. I've not seen a convincing argument for the idea, and it splits the ranks for no good reason.

[gc70]

Originally Posted by Tom Servo

Pnac isn't the first person to bring up the idea that expanded 14th Amendment protections would somehow threaten federalism. I've not seen a convincing argument for the idea, and it splits the ranks for no good reason.

Here is the government's definition of federalism:

The U.S. Constitution establishes a government based on "federalism," or the sharing of power between the national, and state (and local) governments. Our power-sharing form of government is the opposite of "centralized" governments, such as those in England and France, under which national government maintains total power.

Under the U.S. Constitution, both the national and state governments are granted certain exclusive powers and share other powers.

Whenever the courts apply national laws to the states under the 14th Amendment, power is shifted from the states to the national government. That shifting results in less power-sharing and more centralization of power in the national government.

[Al Norris]

Some of you folks are doing nothing more than regurgitating the arguments made by Justice Miller in the Slaughterhouse Cases.

With the adoption of the 14th amendment, Federalism changed. It changed in one important and fundamental manner. The Congress now has the explicit authority (power) to uphold the civil rights of United States Citizens over the State and Local Governments, regardless of what civil rights those States wished to protect (or deny) of their own citizens. Those privileges or immunities of federal citizenship are the least the States may protect. If then, the Congress does not pass sufficient legislation to protect those PorI, the Courts, through judicial review, can provide that protection by striking down laws that violate this constitutional standard.

Call it PorI or call it SDP. I don't much care at this point in time. The fact is, that a positive law was enacted with the 14th amendment and the authority rests with the Federal Government to protect those rights.

Miller and the Slaughterhouse Five were wrong. And so are those of you saying such authority doesn't exist, or that federalism hasn't changed, are also wrong.

[Old Grump]

Okay I see what you are saying, our difference is in interpretation of militia. Mine isn't the modern interpretation of militia in common usage but the original term when the constitution was written.

The select fire comment was superfluous to that end. In my dinosaur opinion every gun law after the Black Acts in the 1860's should be rescinded, taken off the books forever. A well regulated militia means a militia armed, The militia is every able bodied man and he had a duty to defend the security of the state so his rights to bear arms shall not be infringed. You cannot take the word militia out of the amendment without changing the entire meaning of the amendment. The security of the state wasn't just from foreign invaders but outlaws and hostiles from any and every source be it gangs of highway men, pirates or hostile indians.

If your chosen arm for defending self and neighbor is a single shot 12 gauge that is your choice, just make sure you have shells for it or you are not well regulated. If your choice is a mini-uzi be sure to have a goodly supply of magazines and a few cases of 9X19 ammo for it. I hate it whey a feller runs out in the middle of a hard day of fighting off marauders. Old dinosaurs like me are likely to show up with a 1940 built M1 Garand and a couple of bandoleers of loaded en bloc clips. Stupid way of feeding a lovely gun but it makes my heart wiggle with joy to shoot it. My neighbor will show up with his Mossberg bolt action 7MM-08. Still regulated, still ready to defend his and yours from a common enemy.

I don't care what gun you have, just have one. I think what we do agree on is that there should be no limitations on our choice of arms.

[KyJim]

Furthermore, states do not have rights. No government has "rights." They are delegated powers.

This is true. A number of courts have recognized, for example, that governmental entities have no constitutional right to due process.

[Hugh Damright]

Furthermore, states do not have rights. No government has "rights."

Then how do you explain the Articles of Confederation declaring that each State retained its rights, and the federalist papers referring to the rights of the state governments?

[gc70]

Originally Posted by Tom Servo

Furthermore, states do not have rights. No government has "rights." They are delegated powers. "States' rights" is a misnomer from a dark and shameful part of our national past.

Again, I do not know how or when this particular form of linguistic purity arose, but it is not helpful in understanding the roots of federalism. Writings during the founding era mentioned both government powers and rights, often interchangeably.

The Articles of Confederation, Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

[raimius]

The RTKBA is a negative liberty--i.e. the 2nd tells the government what it cannot do.

I really don't see how people think protecting a negative liberty would lead to more government power...

[44 AMP]

States do have rights. Not like they did before the Civil War, but they still do have rights.

These are not rights in exactly the same sense as the rights of the individual, but they are rights, something the state has simply by existing. Other wise, here would be no use for the state.

Its a bit complicated, and I may not do a good job of explaining it, but here goes.

States have powers, granted by the people as part of the social contract that creates a state, its Constitution. They are not natural rights, such as each citizen has, but legal rights. The distinction is sutble, and lost on some people, including, sadly, some people in public office.

States have rights (among them the right to use the powers granted) which come into play when dealing with other states, and the Federal Government.

The word "right" has numerous popular definitions, and a few legal definitions. It is one of the most overused and incorrectly used words common today. Don't confuse someone's improper or incorrect usage of the word with fact.

[gc70]

Originally Posted by raimius

I really don't see how people think protecting a negative liberty would lead to more government power...

Equal treatment (don't discriminate) is a right that seems to fall within your meaning of a "negative liberty". To achieve equal treatment in education, the federal courts assumed powers to order student busing, school staffing and funding, and school construction and renovation. Such powers had previously been local and state in nature.

Most local schools are funded by property taxes and local residents either vote on school funding or elect representatives who vote on school funding. However, I have lived in a city whose schools were under federal court supervision and a federal judge simply ordered an increase in local taxes to provide more money for the schools. Thus, protecting the "negative liberty" of anti-discrimination led to the rather unpleasant exercise of government power to impose taxes without representation.

[brickeyee]

A state law regulating in that field would be invalid under the preemption doctrine.

In many cases only to the extent it conflicts with the Federal law.

There are numerous laws that are imposed at both the state and federal level (think drug laws as a very common example).

The status of the person proffering charges can determine under what law tey are prosecuted.

The fact the Obongo (like his predecessors) have refused to uphold the laws is an issue here.

Arizona has not declared anything new, just decided to pass a state law that parallels the federal law that is NOT being enforced.