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Old May 7, 2009, 08:20 AM   #1
CowTowner
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Could this really be legal?

OK, I hope this doesn't come off as a drive-by.
But the article linked to below, discusses a proposed Texas law taking "sovereignty" to a level I'm not sure would pass any federal legal challenge.
Can the State of Texas really enact legislation that permits the manufacture, distribution and sale of firearms, ammunition and parts without the feds being involved in any way? Even if these activities are only for intrastate commerce?

Here's the news story:
http://www.star-telegram.com/legisla...y/1355073.html

I'm not a lawyer or even a highly educated man. But this doesn't seem to pass any smell test I can come up with.
Any help in understanding this is greatly appreciated.
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Last edited by CowTowner; May 7, 2009 at 08:37 AM. Reason: grammer correction
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Old May 7, 2009, 08:24 AM   #2
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There's a couple of other state's (Montana, Alaska IIRC) that are trying it too.

I like it.....but the problem is this, it'll end up like California and their "legal pot" system. California says you can get a cannabis card and go to their distribution center (regulated by the county), pick up some pot, go home and smoke it. Federal law says this is a big no no. So now, these people who are "legally" smoking pot get picked up and arrested by DEA under Federal drug laws. The feds will enforce the laws of the federal government regardless of what the state says is ok.
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Old May 7, 2009, 08:51 AM   #3
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I also like it and say 'nice try' but...

I believe we've already slid too far into the hole of an all controlling centralized government. A majority of the VOTING public recently decided they want a federal government that controls virtually every aspect of our lives. I often wonder why we even still have state borders when you consider that the feds trump state law in virtually every situation that matters.
Also, as hoytinak pointed out it's just too easy for the feds to roll in and enforce their law thumbing their noses at state law.
The libertarian in me really hope that Texas could make a case for manufacture of firearms in state work but the realist in me knows it will only be a noise muffled out by the din of the Orwellian centralized government.
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Old May 7, 2009, 08:53 AM   #4
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Good analogy. The pot clinics used to get raided now and again, I'm not sure how frequently. The current administration has said that would stop and I haven't seena ny headlines otherwise. I'm sure they would love to raid some "outside the federal law gun stores/manufacturers/etc" now and again.
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Old May 7, 2009, 09:02 AM   #5
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As mentioned above it will pretty much end up like the california pot scheme.

Where the DEA goes in and raids distributors and growers because they are violating federal law.

The thing I remember about Montana's statue is that it requires the state AG to go into federal court and seek a declaratory judgement regarding this statute. That way no one has to get arrested by the ATF in order to test the law. But as said above no judge is going to let this stand.
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Old May 7, 2009, 10:14 AM   #6
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It is absolutely legal.

Whether or not the Feds allow it and what the states choose to do about the Feds trampling their rights is the real question. I hope it's the beginning of a new movement to restore our system to what it was supposed to be.

At least that way we can have the excrement piled on us by the state government instead of the feds.
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Old May 7, 2009, 10:19 AM   #7
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I'm proud to live in a state like Texas that still holds dear essential concepts like states sovereignty and limited central government.
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Old May 7, 2009, 10:25 AM   #8
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A lot of the Federal government's power comes from a liberally-interpreted commerce clause in the Constitution. Courts have consistently ruled in favor of the broad powers of Congress.

There are several "ifs" in play here.
  • If all the component parts are made in Texas -
  • If the manufacture, sale, and delivery are all made in Texas -
  • If FFL dealers don't ship and sell the guns out of state -
- then it may be able to be pulled off.

But then, if BATFE would sue in Federal court, would the state of Texas be able to bear the cost of a lengthy court fight?

Texas has the Tenth Amendment on its side - "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."
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Old May 7, 2009, 10:41 AM   #9
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Quote:
I'm proud to live in a state like Texas that still holds dear essential concepts like states sovereignty and limited central government.
OTOH it's hard to say how likely it is that this proposal will make its way into law, thanks to our somewhat dysfunctional state legislative system. I'm not sure if Rep. Berman holds any committee positions that would help move this idea along.*

It's also hard to say whether TX is anxious to pick a fight with the Feds. For better or for worse, this isn't MT.

*For the benefit of non-Texans, the TX legislature only holds a regular legislative session once every other year, and the session is very short, so it tends to become a mad dash to pass piles of legislation in a very short time. Hence, only 2 categories of legislation are guaranteed to pass: (1) vital legislation that affects an issue that is threatening to become a crisis, or (2) pet bills of the higher-ups in powerful committees that determine which bills will get a floor vote. (In fact, #1 sometimes gets passed over in favor of #2.) This system concentrates so much power in the hands of the committee chairs and Speaker of the House that it's often nearly impossible for an individual legislator who holds no influential committee positions to get a bill passed. Don't get me started. Wait, I already started.
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Old May 7, 2009, 10:56 AM   #10
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Quote:
* If all the component parts are made in Texas -
* If the manufacture, sale, and delivery are all made in Texas -
* If FFL dealers don't ship and sell the guns out of state -
None of those things really matter in terms of commerce clause legal reasoning. Look at the Raich case. Locally cultivated and used cannabis that was never sold is subject to federal regulation because Congress might rationally conclude that allowing medical users under state supervision would allow cannabis to "leak" into the illegal market. As Kozinsky wrote in the (remanded) Stewart decision:

Quote:
Wickard v. Filburn and the later
cases endorsing its reasoning foreclose” “the claim that a
locally cultivated product that is used domestically rather than
sold on the open market is not subject to federal regulation.”
Id. at 2215.
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Old May 7, 2009, 11:05 AM   #11
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Quote:
OTOH it's hard to say how likely it is that this proposal will make its way into law, thanks to our somewhat dysfunctional state legislative system. I'm not sure if Rep. Berman holds any committee positions that would help move this idea along.*

It's also hard to say whether TX is anxious to pick a fight with the Feds. For better or for worse, this isn't MT.
Well, I wouldn't be so certain that TX isn't willing to stand its ground in this fight:

http://www.youtube.com/watch?v=KTWKp_ucGLM
http://www.youtube.com/watch?v=0LHrIxc-QyE
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Old May 7, 2009, 11:08 AM   #12
csmsss
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Quote:
None of those things really matter in terms of commerce clause legal reasoning. Look at the Raich case. Locally cultivated and used cannabis that was never sold is subject to federal regulation because Congress might rationally conclude that allowing medical users under state supervision would allow cannabis to "leak" into the illegal market. As Kozinsky wrote in the (remanded) Stewart decision:
I guess one could argue whether that is "reasoning" or "rationalization" of a pre-existing, intransigent prejudice toward federalization.

If one extends the argument to its logical extreme, it gives Congress the authority to regulate ANYTHING because virtually anything can presumably find its way across state lines. It certainly assumes an extraordinarily expansive - nay - preposterous definition of what constitutes interstate commerce.

Last edited by csmsss; May 7, 2009 at 11:33 AM.
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Old May 7, 2009, 11:11 AM   #13
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The DEA raids on Medical Marijuana houses are a pathetic misappropriation of government resources. Those few minutes of screaming and AR15-pointing pose more of a hazard to those people than a lifetime of pot smoking. Government absurdity at it's finest.

It's prohibition, one mo' time, and the Cartels just keep getting bigger, stronger, and more dangerous.
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Old May 7, 2009, 11:20 AM   #14
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The commerce clause is regulatory between the states, not "intra-state". Cannabis/Marijuana is a controlled substance, and the states' claims to regulate may very well end up in the Supreme Court.

However, the comparison of manufactured products (gun or otherwise) to marijuana is an apples and oranges comparison.

Unless a company engages in interstate commerce, the Feds have historically been kept out of intrastate business. Corporation laws are primarily state functions. There are only a few Federally-chartered corporations (Boy Scouts of America, Federal Reserve Banks). Banking laws are the same. State chartered banks are not subject to Federal banking laws.
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Old May 7, 2009, 11:25 AM   #15
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I'd say it could go the otherway for some states, "Well if the state has the right to decide that, we're going to decide to disarm our flock of sheep for their safety" It'll end up in SCOTUS. Question is....which way will it be leaning by then.
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Old May 7, 2009, 11:32 AM   #16
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Quote:
I'd say it could go the otherway for some states, "Well if the state has the right to decide that, we're going to decide to disarm our flock of sheep for their safety" It'll end up in SCOTUS. Question is....which way will it be leaning by then.
This was actually the Founders' intent - a federal government of narrowly defined authority, with the states sovereign and empowered to regulate and restrict activities within their borders as they saw fit.
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Old May 7, 2009, 11:36 AM   #17
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The only thing is the fat cats forgot all the foundations of the country.
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Old May 7, 2009, 11:41 AM   #18
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The only thing is the fat cats forgot all the foundations of the country.
That's because we, as a citizenry, became seduced by promises of free money and rights without obligations.
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Old May 7, 2009, 12:46 PM   #19
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Just another good reason I should move to texas!
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Old May 7, 2009, 02:13 PM   #20
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The thing is that the Montana, Texas and other laws directly challenge the Federal government on the issue of interstate commerce; because despite limiting the situation to intrastate commerce, these laws directly challenge the Supreme Court rulings in Raich, Stewart and Wickard.

Looking at the voting breakdown for Raich, Kennedy went with the majority and Scalia wrote a concurrence that gave even broader authority over intrastate commerce that affects interstate commerce than the majority result. The dissenting votes were O'Connor (gone), Rehnquist (gone) and Thomas.

Realistically, I would love to see the states assert more of their rights; but they will absolutely lose this one in the current Court.
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Old May 7, 2009, 03:29 PM   #21
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Lose, win or draw the point is some states are ready to challenge the fed and fight for their rights under the constitution.
The more press these issues get the more informed the sheep become and maybe, just maybe a few of them will wake up to realize the fed has over stepped their bounds.
IMO as long as your optimistic and keep fighting regardless of how many times you get knock down, you have a chance.
It's when you give up and stop being optimistic and stop taking the fight to them, you might as well turn your guns in and crawl over in the pen with the sheep.

Can I get an Amen?????????
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Old May 7, 2009, 03:33 PM   #22
publius42
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Quote:
Originally Posted by csmss
If one extends the argument to its logical extreme, it gives Congress the authority to regulate ANYTHING because virtually anything can presumably find its way across state lines.
That's almost exactly what Clarence Thomas said in his dissent in the Raich case. Notice he said it in a dissent.

Quote:
Originally Posted by pendennis
The commerce clause is regulatory between the states, not "intra-state". Cannabis/Marijuana is a controlled substance, and the states' claims to regulate may very well end up in the Supreme Court.

However, the comparison of manufactured products (gun or otherwise) to marijuana is an apples and oranges comparison.
I wish you were right, but you just need to catch up on some recent case law. As Kozinski said when the Supreme Court made him rewrite the Stewart decision:

Quote:
when Congress makes an interstate omelet, it is enti-
tled to break a few intrastate eggs.
That's the state of the law. If your activity is so miniscule in scale that it could not possibly affect interstate commerce, that doesn't matter because the combined effects of many, many people just like you could affect interstate commerce. Similar logic applies to activities that are confined to one state: if they can, in the aggregate, affect other states, they can become a federal matter.

As for marijuana precedents being of a different character from those on manufactured goods, again, you need to look at the recent cases. The Supreme Court ordered Stewart (homegrown machine guns) reversed and reconsidered in light of Raich (homegrown cannabis plants). You may see them as different, but the law does not.
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Old May 7, 2009, 03:41 PM   #23
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Quote:
It is absolutely legal.

Whether or not the Feds allow it and what the states choose to do about the Feds trampling their rights is the real question.
It was tried once back in the 1860's. The federal government had no qualms about ingoring the constitution or states rights back then.
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Old May 7, 2009, 03:57 PM   #24
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In that controversial report that came out not to long ago from DHS. Wouldn't a state wanting a smaller centralized government be considered terrorist activities?
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Old May 7, 2009, 11:10 PM   #25
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Quote:
In that controversial report that came out not to long ago from DHS. Wouldn't a state wanting a smaller centralized government be considered terrorist activities?
I'm ok with that.
Look everyone I am a patriot terrorist that believes in the founding fathers vision.
There was a small group of men that brought their families across the ocean in search of a better life and freedom.
This same small group of men defeated the worlds largest standing army of the time.
Freedom and liberty is paid for with the blood of tyrants and patriots.
It could be that there are patriots out there today willing to take that stand.
Look at the people on this forum. We all share some of the same basic beliefs and objection to today's political atmosphere.
Ask yourselves based on the political atmosphere of today; could I be a patriot terrorist by [redacted] and his gaggle of stogies ideologies?

Ok, rant over before I really tick some one off.
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