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Old January 12, 2013, 12:21 PM   #26
Frank Ettin
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Quote:
Originally Posted by Raven1776
You seem like you are all for State's rights but reading your post makes you sound like a "wolf in sheeps clothing"...
No, I'm a lawyer who understands how all this works in the real world. You apparently don't.

Quote:
Originally Posted by Raven1776
...First, if this law is passed, and any federal agent were to be prossocuted for it, Wyoming does not have to turn said agent over to the federal courts....
How do you know? Do you have any actually evidence to support that contention?

Quote:
Originally Posted by Raven1776
...This would be a State issue, not a Constitutional issue. The supreme court is only supposed to hear cases that pertain to the constitution. As any "gun ban/magazine ban" would not ba an amendment to our Constitution, only an un-constitutional law against the 2nd Amendment, the supreme court would not apply...
You continue to display your ignorance. See the Constitution of the United States, Article III, Section 2 (emphasis added):
Quote:
Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, ...to Controversies to which the United States shall be a Party;...
Among other things, any act by a state agent against a federal officer enforcing federal law raises issue under the Supremacy Clause (Article VI, quoted elsewhere in this tread). Any attempt by a State to supersede federal law also raises issues under the Supremacy Clause.

Quote:
Originally Posted by Raven1776
...People today do not realize that the States already have a trump on any and all federal laws that are not constitutional amendments or treaties with foriegn nations. It is called the 10th amendment! ...
Wrong again. See Gonzales v. Raich, 545 U.S. 1 (2005).

Quote:
Originally Posted by Raven1776
...The States just need to start standing up for themselves and our rights! "We the People" can do this!..
What you need very badly to do is go back to school and get a basic education in law, civics and history in the real world.
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Last edited by Frank Ettin; January 13, 2013 at 05:10 AM. Reason: correct typo
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Old January 12, 2013, 05:10 PM   #27
Raven1776
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So your a lawyer? What form of law do you practice?

Evidence: lets see, everything revolves around the supremacy clause which was basically over written by the 10th amendment.
"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."
Therefore, all laws created by the federal government, not given authority by the Constitution, are, by default, un-constitutional. Therefore, each State has the obligation to refuse to enforce said law, as well as procecute any federal employee whom tries to enforce said law.
I will agree, there is a problem with this. The States have, for years, given in to the federal authority. To the point that there is a precedence created over the years. This is difficult, if not nearly impossible to erase. But not completely impossible. (More on this later)

What exactly does article II have to do with this? An explanation would be great here as I have my Constitution directly in front of me. Sorry for my ignorance, you must have ment article III. Either way, this power has not been given to the federal government. See the 10th amendment! (People easily forget that the first nine amendments are amendments the fed was banned from delegating and the 10th amendment reaffirmed that!) "See ratification debates" The supremacy clause can only be used if said authority is delegated to the federal government by the Constitution. None of the first 10 amendments have been given to the fed through Constitutional amendment. Why do you think they are trying to pass the small arms treaty?

Good call on this case you gave me! This case shows a people content to be slave, as is the case with the California State legislature, as well as many, not all, people living in this State.
Case in point, the only reason the fed was involved was taxes. Had the persons in this case been buying the drug instead of growing it, none of this would have happened. As you see now, numerous States have legalized marijuana. The fed said they will not interfere. Why?
Also, this shows the gross misconseption of the commerce clause.
Article I Section 8, 2nd enumerated power; "To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes." The key word here being "among". If taken under original intent, this means between. Between the States! Not over the States as we see today.

Of course, my Constitutional studies are a bit rusty and typing is difficult with one arm. Feel free to reply back. I need a good debate.
As well, I did not mean to insult you. You seem like a knowledgeable person. In my humble opinion, most people have been mislead to believe the fed as the ultimate power in "These united States". This was far from the case. Early on anyway.
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Old January 12, 2013, 05:12 PM   #28
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Of course, history in the "real world" is a far cry from the original intent of the Constitution!
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Old January 12, 2013, 05:53 PM   #29
klyph3
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The application of the commerce clause in Raich only makes logical sense to statist lawyers. No sane person would say that an outright prohibition through a tax that was then made impossible to pay and purported for public safety could be justified by the power to regulate commerce between the states. Pages upon pages of legalese to explain the reasoning of something that blatantly makes no sense whatsoever does not alter the fact that it makes no sense whatsoever. The whole purpose of growing your own food, making your own medicine, manufacturing your own guns, etc is to remove yourself and seperate your acquisition of these items from commerce. The idea that Congress has the authority to regulate personally acquired items for personal use under the guise of regulating interstate commerce would definitely take several teams of lawyers to twist the English language into something that resembles logic but reeks of tyranny.
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Old January 12, 2013, 05:54 PM   #30
alan
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The following link takes one to an article dealing with this legislation.

http://www.infowars.com/wyoming-bill...rol-jail-feds/

You might have to paste it into your browser, that's what I had to do, then dig through some "chaff" that comes up. Looks as if things might get rather interesting re this proposal.

In passing, I expect that a number of people, possibly a large number of people here have read Unintended Consequences by John Ross. Think, that in this proposal, there are echoes of the situations depicted by Mr. Ross?
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Old January 12, 2013, 07:42 PM   #31
Art Eatman
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"The application of the commerce clause in Raich only makes logical sense to statist lawyers."

Well, okay, fine, but you're still stuck with it. You can have total unanimity from everybody at this website, but so what? You can have 99% of the US population in agreement with you, but again, so what? Once SCOTUS rules, the hunt is over.
_____

Much of the opening commentary of the Inforwars essay is Pi in the Sky BS. States can pass whatever laws or resolutions they want, but the feds have the bigger hammer. The only hope any state has in this BS is to file suit in federal court and go on up to SCOTUS--gun stuff, marijuana, or the legalization of mopery with intent to gawk. Newman's pipedream ain't worth the paper it ain't written on.

And to suggest that the romantic tale that's given in the second half of Ross' UC is anything other than a divertissment is foolish in the extreme--and tantamount to advocating breaking the law. Not real smart.
________

IANAL. But I've been around since before they hauled in dirt. Folks would do better to keep the pressure on their Congresscritters, in particular reminding any recalcitrant Representative that there's an election in two years. Nattering about nullification is about as useful as peeing in the whiskey.
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Old January 12, 2013, 08:16 PM   #32
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If a state tried to prosecute a federal agent for enforcing state law the agent could and would assert sovereign immunity. A state likely can't prosecute the federal government or it's agents(when acting within the scope of their duties) for a violation of state law. Idaho v. Horiuchi (ruby ridge case). (district court dismissed case, 9th circuit affirmed then reheard and reversed, and then was about to rehear the case again when Idaho dropped the charges)

I think in the case of a federal agent being arrested for simply enforcing federal law, it won't be as close of a call as Horiuchi.

The supremacy clause, sovereign immunity, and the supreme court's interpretation of the commerce clause in Raich renders this law nothing but symbolic.

The Constitution and Federal Law mean what the Supreme Court says they do. (Marbury v.s Madison) Until a federal law is held by a federal court to be unconstitutional it is the supreme law of the land.
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Old January 12, 2013, 09:41 PM   #33
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Quote:
Wrong again. See Gonzales v. Raich, 545 U.S. 1 (2005).
Sure but the Federal government does not follow "that" law anymore. Must be nice to pick and choose which laws they are going to enforce today.
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Old January 13, 2013, 05:32 AM   #34
Frank Ettin
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Quote:
Originally Posted by Raven1776
...the supremacy clause which was basically over written by the 10th amendment....
Cite a case in which the Supreme Court so ruled. Without a case on point, your opinion is just meaningless conjecture.

Quote:
Originally Posted by Raven1776
...To the point that there is a precedence created over the years...
The word is "precedent."

Quote:
Originally Posted by Raven1776
...What exactly does article II have to do with this? ...you must have ment article III...
Yes, I meant Article III. It was a typo. I've fixed it. I correctly referred to Article III in post 15.

Quote:
Originally Posted by Raven1776
Good call on this case you gave me! This case shows a people content to be slave, as is the case with the California State legislature, as well as many, not all, people living in this State. ...
Irrelevant twaddle. Gonzales says what it says and is the law.

Quote:
Originally Posted by Raven1776
...As you see now, numerous States have legalized marijuana. The fed said they will not interfere. Why?...
The federal government has said that for now it will not interfere in those States with recreational use. It's call prosecutorial discretion and is a well established concept. It's basically a policy decision to not use resources in that way at this time.

On the other hand, see --

Quote:
Originally Posted by Raven1776
...this [Gonzales] shows the gross misconseption of the commerce clause...
Again, that's up to the courts and not you.

Quote:
Originally Posted by Raven1776
Of course, history in the "real world" is a far cry from the original intent of the Constitution!
Real life takes place in the real world, not in your alternate universe. And in any case, you don't have the final say on what the original intent of the Constitution was.

Quote:
Originally Posted by Alabama Shooter
Quote:
Wrong again. See Gonzales v. Raich, 545 U.S. 1 (2005).
Sure but the Federal government does not follow "that" law anymore. Must be nice to pick and choose which laws they are going to enforce today.
It's not about not following the law. The law doesn't say that a crime must be prosecuted. There is such a thing as "prosecutorial discretion." A prosecuting authority gets to decide when, where and how to enforce criminal laws. So a prosecuting authority, like the United States Justice Department may decide as a matter of policy to go easy on something like recreational or medical marijuana use in States that have legalized it, at least under some circumstances. However, I guess you haven't been keeping up on current events; for example see --

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Last edited by Frank Ettin; January 13, 2013 at 11:24 AM. Reason: correct typo
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Old January 13, 2013, 12:09 PM   #35
Raven1776
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Frank,

What form of law do you practice? You seem to know all there is about Constitutional law. You also seem to have the time and resources to look up each case pertaining to the Constitution.

There is a little thing called original intent which has been used many times in the past for the Constitution. I do not have the time today to look up these cases. Sorry, I don't live for these forums.

Sorry, precedent. I stand corrected.

Irrelavent twaddle? Try quoting the rest of what I said on that issue! Typical lawyer, only using what you deem relevant.

You have a serious misconception! If you think that what you see today, not only from the State but the people as well will not effect what happens in congress or the supreme court, you are sadly mistaken! "We the People" have made changes in the past! See the 17th, 18th, and 21rst amendments! If you honestly believe we cannot effect change today, you are the one living in a fantasy world! Also see the sagebrush rebellion. Everyday citizens effected change!

Last edited by Al Norris; January 13, 2013 at 01:19 PM. Reason: edited paragraphs, for clarity
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Old January 13, 2013, 12:14 PM   #36
Willie Sutton
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^^^^ Raven:

Frank is a well known and well respected expert here. He is thoughtful, insightful, understands the difference between "the way things are" and "the way things would be if we were able to have it the way we want it".

He's described things the way they are and are likely to stay.

You're describing a fantasy view of the way you (and probably a lot of us) *wish* they would be.


Failing a "second american revolution" over this (which, frankly, is about as likely as having flying pigs that self-convert to chocolate covered bacon when shot), you're barking at the moon.


Really... with four posts to your, er... "credit"... sit back and watch and enjoy the forum here for a while before further embarassing yourself.



Willie

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Old January 13, 2013, 12:17 PM   #37
Alabama Shooter
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Quote:
However, I guess you haven't been keeping up on current events; for example see --
From your Rolling Stone article:

Quote:
What I can say is, 'Use your prosecutorial discretion and properly prioritize your resources to go after things that are really doing folks damage.' As a consequence, there haven't been prosecutions of users of marijuana for medical purposes."
And

Quote:
Angel Raich's physician has stated that, without marijuana, Angel's life is threatened by excruciating pain. California was one the states that allowed medicinal use of marijuana. California's Compassionate Use Act allows limited use of marijuana for medicinal purposes.
The case cited was about medical MJ. Medical MJ is no longer being pursued.
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Old January 13, 2013, 01:44 PM   #38
Al Norris
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Raven, you really should heed the advice from Mr. Sutton.

I think that Frank will be the first to admit that he doesn't know [b]all[/i] there is to know, in the field of Constitutional Law. However, there are certain subjects about the law that apply in general about all judicial procedures.

One of those is that the Supreme Court is the last word on what is deemed constitutional and what is not. We may not like it, but this is the real world that we live and work in.

As much as it might rankle you, it is the real world we deal with, here at TFL.

I am not an attorney, of any kind. I have not formally studied the law. Yet through the years, I have learned a thing or two. Which is why you won't see too many disagreements with how I report on the various cases.

What Frank has written, in this thread, is general interpretation of the rules and statutes that govern the applicable law. He is not wrong, here.

What Wyoming is doing, is really a symbolic act. It has no real consequence if ever applied to federal agents. The only game changer would be if 38 States all passed the same type of statutes. I'll let you figure out why.
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Old January 13, 2013, 01:45 PM   #39
Frank Ettin
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Quote:
Originally Posted by Alabama Shooter
...The case cited was about medical MJ. Medical MJ is no longer being pursued....
Users are apparently not currently being prosecuted for their use. However, Reich was decided in 2005, and the various articles I linked to in post 34 relate to federal law enforcement actions against medical marijuana dispensaries and a farm during the period June, 2012 to September, 2012.

Quote:
Originally Posted by Raven1776
...You seem to know all there is about Constitutional law...
No, I don't know all there is about constitutional law, but this is all real basic stuff. In any case, I sure seem to know a good deal more about the constitutional law, and law in general, than you do.

Quote:
Originally Posted by Raven1776
...I do not have the time today to look up these cases...
Then you can hardly expect anyone to take you seriously.

Quote:
Originally Posted by Raven1776
...You have a serious misconception! If you think that what you see today, not only from the State but the people as well will not effect what happens in congress or the supreme court,...
And it looks like you didn't read post 18:
Quote:
Originally Posted by Frank Ettin
Quote:
Originally Posted by Al Norris
...All of these State laws are aimed at restricting the reach of Raich, in that the regulation of interstate commerce has gone too far when it explicitly interferes with a States police power...
Al, I agree, and symbolically these laws contain a powerful political message.

But legally, the only way the reach of Raich can be restricted is by the federal courts or by federal statutes limiting their preemptive effect. In effect either the federal courts will need to find bases upon which to retreat from their expansive application of the Commerce Clause, or Congress will need to decide that excessive encroachment on state prerogatives is bad public policy.

And of course there are tradeoffs, and we in the gun community have our own ambivalence. On one hand we complain about the expansion of the Commerce Clause and applaud state laws like this one in Wyoming purporting to restrict that expansion. On the other hand, in other contexts we rail at the confusion created by a hodgepodge of state gun laws.

And of course the 10th Amendment tension goes far beyond firearm laws. Do we want to see "states' rights" again surface as a justification for discrimination against blacks, Asians, Jews, or guys named Al or Frank?
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Last edited by Frank Ettin; January 13, 2013 at 02:26 PM. Reason: correct typo
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Old January 13, 2013, 02:02 PM   #40
Al Norris
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I see we cross-posted, Frank!
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Old January 13, 2013, 02:27 PM   #41
Frank Ettin
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Originally Posted by Al Norris
I see we cross-posted, Frank!
A silly minute apart. Just caught a couple typos I had to fix. I was up too late last night.
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Old January 13, 2013, 02:39 PM   #42
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Watching a new poster try to take on Frank in a law debate was like watching the Discovery channel. You see the polar bear behind the happy little seal, but the seal doesn't.

Heck, I'm a second-year law student and I learn something from just about everything Frank posts. Al too, for that matter, who might not have formal legal education but puts an impressive amount of primary source research together, especially on court cases and pending legislation.

Humility matters. Understanding reality as it differs from ideology matters too.
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Old January 13, 2013, 02:46 PM   #43
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If AWB is passed and signed into law I will be moving to Wyoming regardless of financial losses.
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Old January 13, 2013, 02:48 PM   #44
Willie Sutton
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Nobody wants flying pigs that self convert to chocolate covered bacon when shot?

Pity...


Frank and Al are definately our "go-to" guys for this stuff. A moment of thanks offered from old Willie before we resume our normally scheduled rant.


Best,

Willie


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Old January 13, 2013, 02:55 PM   #45
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Ya know Willy, I like pretty much "chocolate-anything." Chocolate covered bacon?... Hm, got any I could try?
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Old January 13, 2013, 03:13 PM   #46
Willie Sutton
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The next time I see one of those flyin'-pigs 'round these parts I'll have a shot and let you know. I'm headed out into the desert now with a loaded 1860 Army Colt, and hope springs eternal for both flyin' pigs and Wyoming succeeding in succession. Texas too while we're at it. Fur their size flyin'-pigs I'll load up the Walker Colt. Everythin's bigger in Texas.


Willie


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Old January 13, 2013, 03:22 PM   #47
Frank Ettin
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Thanks, guys.

Al really knows his stuff, and I marvel that he has the patience to keep as current as he does.

And personally I prefer to keep my chocolate and bacon separate. And if anything is going to cover anything, I'd like my bacon covering a cheeseburger.

No flying pigs, but I got a few flying pheasants the week before last.
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Old January 13, 2013, 08:13 PM   #48
klyph3
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Having supreme court justices appointed by the executive branch seems to me to be the source of such skewed perspectives that are outside of the will of the people and a literal interpretation of the constitution. Why aren't federal judges elected? We elect the members of the other branches, why does the branch that most directly interacts with the citizens rely on appointment?
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Old January 13, 2013, 09:07 PM   #49
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Quote:
Nobody wants flying pigs that self convert to chocolate covered bacon when shot?
Tell me more of these chocolate pigs, for I am intrigued.

Quote:
Having supreme court justices appointed by the executive branch seems to me to be the source of such skewed perspectives that are outside of the will of the people and a literal interpretation of the constitution.
Let's remember that Justices aren't appointed via rubber stamp. Article II states that they are appointed "by and with the Advice and Consent of the Senate." We do have a say, however indirectly, who gets on the Court.
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Old January 13, 2013, 11:41 PM   #50
Luger_carbine
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So my understanding is, that if a federal AWB was enacted, Wyoming probably could not challenge it directly - because they'd have no standing correct?

But part of their law also includes defending a Wyoming citizen charged under any type of federal ban. So... wouldn't that amount to Wyoming challenging a federal ban, and couldn't or wouldn't they challenge it on 10th Amendment grounds? I'm not saying they'd win, I'm just trying to undertand the possible way it could play out.
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