The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools
Old March 17, 2013, 07:16 PM   #1
Come and take it.
Senior Member
 
Join Date: May 16, 2009
Location: Kentucky
Posts: 999
Nullification of gun laws

I understand that some of the arguments against state nullification go back a long ways to before the civil war. South Carolina took a stand to ignore federal laws on tariffs. Andrew Jackson responded with a show of military strength and threatened to invade South Carolina if they allowed goods without tariffs into the state.

They did however pass the law and fully intended to implement it, if not for the severe reaction by Andrew Jackson. It wasn't a symbolic measure at all.

On the other side we see Washington and Colorado pass Marijuana laws which have basically nullified federal laws. The federal government apparently is going to do nothing to these states or their citizens over this.

Keep in mind that both nullified tariff's (The federal government was allowed to levy taxes under the constitution), and legalizing marijuana are neither guaranteed to a citizen under the bill of rights....

Weapons are guaranteed to the citizen to keep and bear.

Why does the mainstream media consider these gun owners protection laws to be tongue in cheek measures without any real power behind them?

A state does not have the right to protect not only the US bill of rights but their own bill of rights as well?

I would think a nullification law on the grounds of protecting the second amendment by a state would be perfectly constitutional. It is not even in the constitutional authority of the US federal government to take action in this matter is it? especially if the weapons owned or manufactured in that state never leave that state.

Our local paper (Larue County Herald News, article writer - Linda Ireland) claims that the states nullification bill in Kentucky called the gunowners protection act is purely tongue in cheek and has no real power. This is a small town (only 4000 residents maybe) in a generally rural area. It is surprising she has voiced her opinion in such an area.
Come and take it. is offline  
Old March 17, 2013, 07:19 PM   #2
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 4,957
See my: Spats McGee’s Federal Constitutional Primer. In particular, you'll want to read the stuff on the Supremacy Clause.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old March 17, 2013, 07:55 PM   #3
Come and take it.
Senior Member
 
Join Date: May 16, 2009
Location: Kentucky
Posts: 999
If the states law expands (Bills of Rights) protection to the citizen it is constitutional...

Also if pertains to instructing its law enforcement on what not to enforce, as opposed to what to enforce.

It would only be subject to scrutiny if the law had addtional restrictions to federal law right?

Freedoms and restrictions as they pertain to the bill of rights.

Or am I just misinterpreting what I read?

Another way to look at it would be that on basic level the right to keep and bear arms would allow us to own any weapon and bear any weapon. The federal government has put restrictions on this freedom. If a state passes no gun owners protection act than it is subject to this law. However if it passes a law guaranteeing more freedom than that protection act would be perfectly constitutional.

Of course there has yet to be a supreme court decision on such a matter. Or would it even be subject to a Supreme court decision?

The only clash would of course be if a state refused to allow federal authorities to exercise law in their state that would violate that states protection acts.
Come and take it. is offline  
Old March 17, 2013, 08:37 PM   #4
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 4,957
What you wrote looks pretty close, with one exception:
Quote:
It would only be subject to scrutiny if the law had addtional restrictions to federal law right?
It's not a matter of whether the State law has "additional restrictions." What you're looking for is a conflict with federal law.

For example:
Federal law says "In order to buy a handgun from an FFL, you must be 21, a resident of the state in which the FFL does business, and a non-prohibited person." (I've simplified things, but let's take this example.)

Example 1:
A state passes a law that says "In order to buy a handgun from an FFL in this state, you must be 21, have been a resident of the state for 180 days preceding any handgun purchase; a resident of the state in which the FFL does business, and a non-prohibited person." State has passed a law that has an additional restriction, but there is no conflict with federal law.

Example 2:
A state passes a law that says "In order to buy a handgun from an FFL, you must be 18, a resident of the state in which the FFL does business, and a non-prohibited person." In this example, we have a conflict. Federal law says that only people 21 or older can purchase handguns from FFLs, but state law would allow it at 18. Result? Federal law trumps state law, and only those 21+ can purchase handguns from FFLs.

Yes, states attempting to prevent federal officials from enforcing federal law may find themselves in conflict with the federal gov't.

I hope the Federal Constitutional Primer was of some help.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old March 18, 2013, 06:29 AM   #5
Come and take it.
Senior Member
 
Join Date: May 16, 2009
Location: Kentucky
Posts: 999
Than how can a law legalizing marijuana cause the federal government pause in enforcing federal law in Colorado and Washington.

They could but why haven't they? Could we expect the US government to also not enforce federal law in states refusing to recognize future federal gun laws. Are there previous cases where state passed laws with additional protection of rights was considered unconstitutional?

According to the primer I read, where in the primer does it mention that expanded protection under one of the Bill of Rights would contradict Federal law which gives more restriction and not more freedom.

The part in the primer on Federal law brought up examples of where state laws passed which contained restrictions going beyond federal restrictions.

More specifically the Kentucky bill, puts a penalty on its own law enforcement if they aid federal agencies in the execution of any new laws (after January 2013). Wouldn't it be perfectly constitutional for a state to exercise authority over its own law enforcement?
Come and take it. is offline  
Old March 18, 2013, 07:09 AM   #6
TimSr
Senior Member
 
Join Date: March 8, 2013
Location: Rittman, Ohio
Posts: 437
In a bit of irony, the Arizona state law to ID illegal aliens was challenged by the US Justice Dept arguing that states did not have the authority to enforce federal laws.
TimSr is offline  
Old March 18, 2013, 08:02 AM   #7
elDiabloLoco
Member
 
Join Date: December 18, 2012
Location: USA
Posts: 77
General Disgust

Quote:
For example:
Federal law says "In order to buy a handgun from an FFL, you must be 21, a resident of the state in which the FFL does business, and a non-prohibited person." (I've simplified things, but let's take this example.)
So, at what point does an additional restriction become an unconstitutional infringement?

Example #3:
"In order to buy a handgun from an FFL, you must be 21, a resident of the state in which the FFL does business, and a non-prohibited person, and have a permit from the county Sheriff."

Seems like all law abiding citizens have clearly had their 2A rights infringed in this example, since only the Sheriff's Select or criminals can exercise their rights. It is no longer a right, but a licensed privilege. {Real world NC}

200+ years of Emanating Penumbras have generated much general disgust with the machinations of leviathan and its apparatchiks in over complicating otherwise plain language.
elDiabloLoco is offline  
Old March 18, 2013, 12:04 PM   #8
speedrrracer
Senior Member
 
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 259
Quote:
Originally Posted by Come and take it
Could we expect the US government to also not enforce federal law in states refusing to recognize future federal gun laws.
Expect? No. Is it within the realm of possibility? Absolutely.

Quote:
According to the primer I read, where in the primer does it mention that expanded protection under one of the Bill of Rights would contradict Federal law which gives more restriction and not more freedom.
It doesn't. Remember, it's just a primer, and will not give you an in-depth understanding of constitutional law. It's just to get you started. Constitutional law is a field of study to which one could easily devote their entire life. Look at SCOTUS -- it's their only task, and most would agree they screw it up from time to time.

Quote:
The part in the primer on Federal law brought up examples of where state laws passed which contained restrictions going beyond federal restrictions.
Yup, and this was explained to you above. Additional is OK, as long as there is no conflict. In the example already provided to you, residency was used to illustrate the point. Fed law requires you must be a resident. A state law requires you be a resident for a minimum of 180 days. There is no conflict, yet the state law has additional restrictions.

Now imagine the Fed law was thus:
"You must buy from a licensed FFL, be at least 21 years of age, a resident of the state in which the FFL is licensed to do business, not a prohibited person, and no other restrictions are permissible."

Then the state law in the example would be in conflict, and the Feds could act.

Quote:
More specifically the Kentucky bill, puts a penalty on its own law enforcement if they aid federal agencies in the execution of any new laws (after January 2013). Wouldn't it be perfectly constitutional for a state to exercise authority over its own law enforcement?
Yes of course, again, provided there is no Federal law requiring cooperation.
speedrrracer is offline  
Old March 18, 2013, 12:11 PM   #9
speedrrracer
Senior Member
 
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 259
Quote:
Originally Posted by elDiabloLoco
So, at what point does an additional restriction become an unconstitutional infringement?
When the court says so.

Quote:
Example #3:
"In order to buy a handgun from an FFL, you must be 21, a resident of the state in which the FFL does business, and a non-prohibited person, and have a permit from the county Sheriff."

Seems like all law abiding citizens have clearly had their 2A rights infringed in this example, since only the Sheriff's Select or criminals can exercise their rights. It is no longer a right, but a licensed privilege. {Real world NC}
This is currently under challenge by SAF. See the Kachalsky thread.

Quote:
200+ years of Emanating Penumbras have generated much general disgust with the machinations of leviathan and its apparatchiks in over complicating otherwise plain language.
I think most people agree with you, at least intellectually. The problem is that laws are passed emotionally. Politicians with agendas use tragedies as leverage to get an emotional public to vote to restrict their own freedoms. There is no one to blame except human nature.

In this recent Sandy Hook tragedy, many gun lovers were suckered in by the emotion of the event. I knew people who were initially thinking magazine capacity limits seemed like a reasonable thing. Those same people, with the sober perspective of time and discussion, now realize what a huge mistake magazine capacity restrictions actually are.
speedrrracer is offline  
Old March 18, 2013, 12:29 PM   #10
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,531
Quote:
Originally Posted by Come and take it.
Than how can a law legalizing marijuana cause the federal government pause in enforcing federal law in Colorado and Washington.
  1. It's all about the doctrine of prosecutorial discretion. Prosecutors generally can decide how to use limited resources.

    In some cases a policy decision to back off of certain types of crimes might be driven by a conclusion that enough people, particularly among the current administration's constituency, find the conduct relatively benign. That might not be the case with other matters.

    To put some flesh on those bones, I can see the appeal to the current administration of soft peddling recreation marijuana prosecutions in State which have decriminalized it. And I can accept that the current administration could reasonably conclude that it has adequate political cover to support that policy decision. But if the subject were a matter about which the current administration's constituency was likely to feel differently, e. g., guns, I don't think we could count on the same level of prosecutorial forbearance.

  2. And looking at the marijuana issue, the Obama administration might have a policy not to vigorously enforce federal controlled substance law with respect to recreational marijuana use. That doesn't mean that the Obama administration isn't going to vigorously enforce federal gun laws with regard to persons who are unlawful users of a controlled substance and who are unlawfully, under federal law, in possession of a gun.

  3. A a month or so ago I did a quick search of federal appellate court decisions in a legal data base I subscribe to and quickly found more than 50 cases apparently involving convictions for being an unlawful user of a controlled substance in possession of a gun. Those were just appeals, and there were probably more; but I didn't see any point to spending any more time on it.

  4. Gun control is also on pretty much everyone's radar. There is considerable public pressure for increased gun control and enforcement of existing laws -- especially among Obama's core constituency.

  5. And the fact that there's a current policy to "soft peddle" federal prosecution of recreational marijuana use doesn't necessarily mean that will be the policy tomorrow.

  6. And in any case there has been considerable recent federal activity in connection with the dispensing and cultivation of marijuana under state medical marijuana laws. See --


Quote:
Originally Posted by Come and take it.
...More specifically the Kentucky bill, puts a penalty on its own law enforcement if they aid federal agencies in the execution of any new laws (after January 2013). Wouldn't it be perfectly constitutional for a state to exercise authority over its own law enforcement?
There is some legal authority for the proposition that the federal government may not require state authorities to enforce federal law or policy. So that Kentucky law would not appear to offend the U. S. Constitution. I can't say whether or not it would be an issue under the Constitution of the Commonwealth of Kentucky.

Of course all that means is that if you violate a federal law you'll be arrested by a federal officer rather than a local cop. And in any event you'd be tired in federal court and sent to federal prison.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old March 18, 2013, 01:52 PM   #11
Come and take it.
Senior Member
 
Join Date: May 16, 2009
Location: Kentucky
Posts: 999
I am interested in what has come of state nullification laws in the past.

Andrew Jackson was ready to go to war over it but was there ever a real solution?

South Carolina got tariffs lowered over time in an agreement to repeal its law. Notice this meant that their law was never ruled unconstitutional as it was never challenged in a court.

As I said both tariffs and marijuana are not specifically in the 10 bill of rights. Not even slavery. As the declaration of independence clearly said that all men are created equal.

Weapons are a protected right. I would like to see if there has ever been a precedant for this where a state had less restriction than the federal government over one of the bill of rights.

What exactly would we be looking at if Federal agents were denied to operate in a county with a sheriff who will not comply? Would the issue go before a court or would they simply push the sheriff aside to go in?
Come and take it. is offline  
Old March 18, 2013, 02:22 PM   #12
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 4,957
Quote:
Originally Posted by Come and take it.
. . . . Weapons are a protected right. I would like to see if there has ever been a precedant for this where a state had less restriction than the federal government over one of the bill of rights. . . .
The problem with finding precedent is that the 2A wasn't fully incorporated until 2010, so 2A challenges to state laws are still in their infancy.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old March 18, 2013, 02:30 PM   #13
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,531
Quote:
Originally Posted by Come and take it.
...What exactly would we be looking at if Federal agents were denied to operate in a county with a sheriff who will not comply? Would the issue go before a court or would they simply push the sheriff aside to go in?
It would probably depend on what was happening and how it was happening. If a state or county office tried to physically, by force block a federal officer's execution of his duties, and time was a factor, we might see federal officers forcing the issue. If time were not a factor, the federal authorities might take the matter to federal court first.

Remember --
  • in 1960 when U. S. Marshals escorted a black girl to school in New Orleans, Louisiana.

  • in 1963 when George Wallace attempted to block the desegregation of the University of Alabama. He was confronted by federal marshals, Deputy Attorney General Nicholas Katzenbach, and the Alabama Army National Guard and forced to step aside.

  • in 1963 when Wallace again attempted to stop four black students from enrolling in segregated elementary schools in Huntsville. Then the intervention of a federal court in Birmingham got the four students enrolled.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old March 18, 2013, 02:38 PM   #14
JimDandy
Senior Member
 
Join Date: August 8, 2012
Posts: 2,346
Quote:
Yes of course, again, provided there is no Federal law requiring cooperation.
Which I understand would be pretty tough to do. They couldn't even require participation in the NICS system via the Brady Bill. It would violate state Sovereignty to require the state to do something. They have to carrot and stick them into compliance.

Last edited by JimDandy; March 18, 2013 at 03:37 PM.
JimDandy is offline  
Old March 18, 2013, 02:54 PM   #15
David White
Member
 
Join Date: September 15, 2012
Posts: 88
Nullification of gun laws

The last I checked, we don't live in a Democracy, we live in a Constitutional Republic.
How can the emotions of many be deemed valid enough to pass legislation?
Democracy only comes into play during elections, not when passing laws.
David White is offline  
Old March 18, 2013, 04:00 PM   #16
speedrrracer
Senior Member
 
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 259
Quote:
Originally Posted by Come And Take It
I am interested in what has come of state nullification laws in the past.
There was this thing called the Civil War, and that kinda settled it for big issues.
For smaller issues, there has been the civil rights movement (as mentioned above) and some abortion-related issues, which are ongoing.

Firearms-related stuff is a very new field, since it's only been 2+ years since the Second Amendment even applied to the various States. That's still got afterbirth on it in legal terms. It wasn't until recently that there were enough hand-wringing holplophobes in America to overcome this nation's origins as a gun-friendly republic.

Quote:
What exactly would we be looking at if Federal agents were denied to operate in a county with a sheriff who will not comply? Would the issue go before a court or would they simply push the sheriff aside to go in?
No one has a crystal ball. The full bell curve of possibilities are in play.

Quote:
Originally Posted by David White
How can the emotions of many be deemed valid enough to pass legislation?
Democracy only comes into play during elections, not when passing laws.
Not true. Politicians care about only one thing: getting re-elected. If they feel passing law X will aid that end, then that law gets passed.

Last edited by speedrrracer; March 18, 2013 at 04:10 PM.
speedrrracer is offline  
Old March 18, 2013, 06:57 PM   #17
horatioo
Senior Member
 
Join Date: November 15, 2008
Posts: 332
Quote:
I hope the Federal Constitutional Primer was of some help.
The Supreme Court lies about what the constitution says. Look at the commerce clause, take out interstate, and the supreme court would read it the exact same way.
horatioo is offline  
Old March 18, 2013, 06:59 PM   #18
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 4,957
Quote:
Originally Posted by horatioo
Quote:
Originally Posted by Spats McGee
I hope the Federal Constitutional Primer was of some help.
The Supreme Court lies about what the constitution says. Look at the commerce clause, take out interstate, and the supreme court would read it the exact same way.
Those are pretty big claims. You got any proof to back them up?
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old March 18, 2013, 07:33 PM   #19
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,531
Quote:
Originally Posted by horatioo
The Supreme Court lies about what the constitution says....
And after all, the Founding Fathers assigned to the federal court the the judicial power of the United States and the role of deciding, among other things, cases arising under the Constitution. See Article III, Sections 1 and 2:
Quote:
Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old March 18, 2013, 07:39 PM   #20
Come and take it.
Senior Member
 
Join Date: May 16, 2009
Location: Kentucky
Posts: 999
What if there were a Supreme Court decision that changed the interpretation to the 2nd as meaning a government run militia?

Than laws were passed to disarm americans as we really had no right to own them in the first place.

So we would simply comply and believe what the court says, and hand over our guns?
Come and take it. is offline  
Old March 18, 2013, 07:48 PM   #21
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 4,957
What we would do if there were such a SCOTUS and if such-and-such laws were later passed gets further into conjecture than we really need to go. That will be for each of us to decide if and when such time comes.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old March 18, 2013, 10:38 PM   #22
Come and take it.
Senior Member
 
Join Date: May 16, 2009
Location: Kentucky
Posts: 999
Thanks for your time and responses.
Come and take it. is offline  
Old March 23, 2013, 10:09 PM   #23
TimSr
Senior Member
 
Join Date: March 8, 2013
Location: Rittman, Ohio
Posts: 437
Quote:
The last I checked, we don't live in a Democracy, we live in a Constitutional Republic.
How can the emotions of many be deemed valid enough to pass legislation?
I believe it was Dianne Feinstein who said "The Constitution has no relevance to what we do in the senate. It is up to the courts to decide if what we pass is constitutional." I believe she was responding to Ted Cruz's questions concerning the constitutionality of her proposed gun ban bill.
TimSr is offline  
Old March 24, 2013, 08:46 PM   #24
Boomer58cal
Senior Member
 
Join Date: February 18, 2013
Location: closer than you think
Posts: 968
When it comes to the second amendment all gun laws that limit access to weapons of any kind(not just guns. Arms) is unconstitutional. The founders chose the word infringed for a reason. The government may not touch out right to have the means to protect ourselves, our families and our country in anyway what so ever. This includes back ground checks, restricting felons( because if the did their time they paid their debt), age restrictions, and when and where we bare them. Our rights are not granted to us by the government( though they'd like to think so) or the bill of rights. The bill of right is simply the recognition of our rights and the promise not to interfere with those rights. Our rights come from whatever god you believe in and the founders said so. Guns are in fact the teeth of our rights. There are two reasons for the second amendment. The first is to protect ourselves against a corrupt government. The second is to protect ourselves and our country against foreign invaders. Hunting would have been there also but they thought feeding your family was obvious. I guess not. Feeding your family is not poaching in my opinion. I'll stop now. Thanks for letting me get that out.

Boomer
__________________
The number one cause of death in the 20th century. 290,000,000 citizens were first disarmed and then murdered by their own governments. This number does not include those killed in war.
We're from the government, we're here to help
Boomer58cal is offline  
Old March 24, 2013, 09:27 PM   #25
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,531
Quote:
Originally Posted by Boomer58cal
When it comes to the second amendment all gun laws that limit access to weapons of any kind(not just guns. Arms) is unconstitutional. The founders chose the word infringed for a reason....
You are free to have that personal opinion and it may influence your political activities. But in the real world such matters are subject to dispute and will ultimately be decided by the federal courts.

That is also consistent with the expectations of the Founding Fathers. See the Constitution of the United States, Article III, Sections 1 and 2:
Quote:
Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...
The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 11:55 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.13586 seconds with 9 queries