Wyoming Firearm Protection Act

[kraigwy]

"Firearm Protection Act" HR 0104

Wyoming is going to make it illegal to enforce any more federal gun laws.


1 AN ACT relating to firearms; providing that any federal law
2 which attempts to ban a semi-automatic firearm or to limit
3 the size of a magazine of a firearm or other limitation on
4 firearms in this state shall be unenforceable in Wyoming;
5 providing a penalty; and providing for an effective date.

(d) Any federal law, rule, regulation or order
3 created or effective on or after January 1, 2013 shall be
4 unenforceable within the borders of Wyoming if the law,
5 rule, regulation or order attempts to:
6
7 (i) Ban or restrict ownership of a semi8
automatic firearm or any magazine of a firearm; or
9
10 (ii) Require any firearm, magazine or other
11 firearm accessory to be registered in any manner.
12
13 Section 2. This act is effective immediately upon
14 completion of all acts necessary for a bill to become law
15 as provided by Article 4, Section 8 of the Wyoming
16 Constitution.
17
18 (END)

http://legisweb.state.wy.us/2013/Introduced/HB0104.pdf

I love this part:

19 (c) The attorney general may defend a citizen of
20 Wyoming who is prosecuted by the United States government
21 for violation of a federal law relating to the manufacture,
22 sale, transfer or possession of a firearm, a firearm
23 accessory or ammunition owned or manufactured and retained
24 exclusively within the borders of Wyoming.

[BarryLee]

So, why is this different than the States that legalized marijuana? Mr. Obama has stated that the DEA would not enforce the Federal Marijuana laws in those States, so would the same theory apply here?

[Dr Big Bird PhD]

Obama will most likely issue an EO to enforce this law on Wyoming creating a legal battle

[btmj]

yeah but who is going to enforce it? Not the local police and sherrif's dept, not the state police. There is no Federal Police force, only investigative and regulatory enforcement agencies. The FBI and BATF will have a hard time enforcing anything without the cooperation of the state and local police.

I think it is wonderful

[stu925]

Kraig I may come join you in Wyoming, New York has lost it's mind. Here's an excerpt from NYS bill S01422 (edited for content and length):

S 5. Section 265.02 of the penal law, as amended by chapter 764 of the
9 laws of 2005, is amended to read as follows:
10 S 265.02 Criminal possession of a weapon in the third degree.
11 A person is guilty of criminal possession of a weapon in the third
12 degree when:
23 (5) (i)Such person possesses three or more firearms; or (ii) such
24 person possesses a firearm and has been previously convicted of a felony
25 or a class A misdemeanor defined in this chapter within the five years
26 immediately preceding the commission of the offense and such possession
27 did not take place in the person's home or place of business; or
31 Criminal possession of a weapon in the third degree is a class D felo-
32 ny.

By the way a class D felony carries a penalty of 2-7yrs in state prison.

Oh yeah and let's not forget this little gem:

33 S 6. Section 265.04 of the penal law, as amended by chapter 764 of the
34 laws of 2005, is amended to read as follows:
35 S 265.04 Criminal possession of a weapon in the first degree.
36 A person is guilty of criminal possession of a weapon in the first
37 degree when such person:

40 (2) possesses ten or more firearms; OR
41 (3) POSSESSES AN ASSAULT WEAPON; OR 42 (4) POSSESSES A LARGE CAPACITY AMMUNITION FEEDING DEVICE. 43 Criminal possession of a weapon in the first degree is a class B felo-.
44 ny

Class B felonies carry a penalty of 5-25yrs in a state prison
These would be considered violent felonies also. If this bill passes I'm packing my stuff and bailing out of this state, retirement be damned.

Anyone interested can read the full text athttp://assembly.state.ny.us/leg/?default_fld=&bn=S01422&term=&Summary=Y&Text=Y
Stu

[motorhead0922]

Property values in Wyoming just went up...

Yes it is a great state.

[Tom Servo]

Obama will most likely issue an EO to enforce this law on Wyoming creating a legal battle
Assuming such laws take place on the federal level, it should make things very interesting from a 10th Amendment standpoint.

I've little doubt the Supreme Court would find in favor of the federal government in such a situation. Enforcement? Remains to be seen.

[Al Norris]

The several States that have passed these Firearms Protection Acts (by that or any other name) are States that are challenging the Commerce Clause legislation of the Feds.

In a nutshell, these States are saying that the Courts have gone too far in what it has allowed the Congress to legislate, in the name of "Interstate Commerce."

[Tom Servo]

The several States that have passed these Firearms Protection Acts (by that or any other name) are States that are challenging the Commerce Clause legislation of the Feds.
IIRC, Wyoming was one of them. I've yet to see a court challenge, though.

Interestingly enough, H.R. 21, the first gun control bill of this session, cites the Commerce Clause as its authority.

[Al Norris]

I feel rather dumb for having made the previous comment.

Having now read the bill, if it passes, it puts some teeth into the previously passed Wyoming Firearms Freedom Act, and it serves as a warning to all of the Congress that should it pass legislation purporting to ban firearms or ammunition or that provides for registration, all federal law enforcement personnel who attempt to enforce these purported federal laws may be prosecuted under State law for a felony.

Now I have to see if my Idaho legislature is following suit!....

[Dr Big Bird PhD]

Having now read the bill, if it passes, it puts some teeth into the previously passed Wyoming Firearms Freedom Act, and it serves as a warning to all of the Congress that should it pass legislation purporting to ban firearms or ammunition or that provides for registration, all federal law enforcement personnel who attempt to enforce these purported federal laws may be prosecuted under State law for a felony.
Didn't we do this 150 years ago?

Do these politicians not learn?

Edit: I'm on Wyoming's side

[FrankenMauser]

Now I have to see if my Idaho legislature is following suit!....
I've been sending emails, to get the same thing going in Utah, since December 18th. Unfortunately, the new session doesn't start until the end of January, and they only have about 8 days to get new bills introduced. (Sounds like a lot... but the legislature seems to waste about 7.9 of them. :rolleyes:)

[HiBC]

When I was looking for an organization to join to fulfill a CMP requirement,I chose a lifetime membership in the Wyoming State Shooting Association.

I live in Colorado,but I chose the WSSA because I recognise and respect the work they have done in regard to handgun carry in the state of Wyoming.

I still do not live in Wyoming,but I feel real good about joining the WSSA.

[Spats McGee]

I try very hard not to type in all caps, as I don't like "shouting" on the internet. That said,

GO WYOMING!

[Frank Ettin]

Before we all get too excited, it's extremely doubtful that this would get anywhere in federal court.

Remember that the Founding Fathers provided in the Constitution (Article VI, Clause 2, emphasis added): 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; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Founding Fathers also provided in the Constitution (Article III):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,...

And with regard to the reach of the Commerce Clause, see Gonzales v. Raich, 545 U.S. 1 (2005).

[Wyoredman]

I am writing my State Rep and Senator in support of this legislation.

Edit: Here is a link to the Wyoming Legislature Represenative locator page. http://legisweb.state.wy.us/LSOWEB/LegInfo.aspx

Use it and support Wyoming sovereignty!

[Al Norris]

Frank, I agree with what you wrote. I would also point out that should a Federal Agent be prosecuted, that trial would be removed to Federal Court and qualified immunity would then be attached. However....

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.

Let's all remember that the Federal Government has no inherent police power and that it has only been through the commerce clause that such power has attached and eroded the 10th amendment.

[Frank Ettin]

...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?

[LockedBreech]

As a Wyoming resident I like the law. I'm under no illusion it'd do much but I like the message.

[kraigwy]

The way I see it, if it passes, the worse case is at least the feds wont have any help from the County & Statel LE officers.

It ain't like the feds will be able to go door to door..........the doors are too far apart and they'd probably get lost.

[Isk]

Kraigwy, that's hilarious.

This seems to be an interesting trend. Are we seeing the country turn back toward federalism after all these years of handing power over to the feds? A lot of states are starting to stand up for themselves...

[HisDudeness]

Why is this getting zero play in the mainstream media? I guess they are still trying very hard to keep this argument as one sided as possible.

[Alabama Shooter]

Why is this getting zero play in the mainstream media? I guess they are still trying very hard to keep this argument as one sided as possible.

Wyoming is the least populous state in the US. Any media play would be negative so why bother?

[Wyoredman]

If this bill makes it out of committee, and is passed on the floor of the Wyoming State House, I suspect it will make some news headlines.

I can see it now: "Wyoming Crazy for Assualt Weapons" - NewYork Times - written by a journalist who has never been to the Cowboy State!

Keep your fingers crossed that this one passes. I hope our Governor will sign it if passed, he most likely will, but his is an ex-federal prosecutor.

[Raven1776]

Frank,
You seem like you are all for State's rights but reading your post makes you sound like a "wolf in sheeps clothing". 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. 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.
Second, I would personally like to see our great State change this bill from a law to an amendment to the State Constitution, adding it to the Wyoming Freedom of Firearms amendment already passed.
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! Yes, the Constitution and said treaties with foriegn nations, according to the Constitution are the supreme law of the land. This is why the fed is trying to get the small arms treaty passed. They know an amendment to the constitution would fail to be ratified. This is were the States can pick apart federal law. The States just need to start standing up for themselves and our rights! "We the People" can do this!
Call your State representatives! Tell your family and friends to do the same!! Continue to call everyday! They need to hear from The People!!

[Frank Ettin]

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.

...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?

...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):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.

...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).

...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.

[Raven1776]

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.

[Raven1776]

Of course, history in the "real world" is a far cry from the original intent of the Constitution!

[klyph3]

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.

[alan]

The following link takes one to an article dealing with this legislation.

http://www.infowars.com/wyoming-bill-would-nullify-obama-gun-control-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?

[Art Eatman]

"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.

[vranasaurus]

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.

[Alabama Shooter]

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.

[Frank Ettin]

...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.

...To the point that there is a precedence created over the years...The word is "precedent."

...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.

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.

...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 --

"Obama Explains Increasing Medical Marijuana Crackdowns, Raids..." (http://www.huffingtonpost.com/2012/04/25/obama-marijuana-raids-rolling-stone_n_1451744.html)


"U.S. raids L.A. marijuana shops..." (http://articles.latimes.com/2012/sep/26/local/la-me-medical-marijuana-20120926)


"Southern Oregon medical marijuana farm raided by federal drug agents..."
(http://www.oregonlive.com/health/index.ssf/2012/09/southern_oregon_medical_mariju.html)

"2 Anaheim pot shops raided,..." (http://www.ocregister.com/articles/marijuana-369162-federal-owners.html)


"Sacramento marijuana dispensary latest target of federal crackdown"
(http://www.sacbee.com/2012/06/12/4554830/sacramento-marijuana-dispensary.html)

...this [Gonzales] shows the gross misconseption of the commerce clause... Again, that's up to the courts and not you.

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.

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 --


"Obama Explains Increasing Medical Marijuana Crackdowns, Raids..." (http://www.huffingtonpost.com/2012/04/25/obama-marijuana-raids-rolling-stone_n_1451744.html)


"U.S. raids L.A. marijuana shops..." (http://articles.latimes.com/2012/sep/26/local/la-me-medical-marijuana-20120926)


"Southern Oregon medical marijuana farm raided by federal drug agents..."
(http://www.oregonlive.com/health/index.ssf/2012/09/southern_oregon_medical_mariju.html)

"2 Anaheim pot shops raided,..." (http://www.ocregister.com/articles/marijuana-369162-federal-owners.html)


"Sacramento marijuana dispensary latest target of federal crackdown"
(http://www.sacbee.com/2012/06/12/4554830/sacramento-marijuana-dispensary.html)

[Raven1776]

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!

[Willie Sutton]

^^^^ 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

.

[Alabama Shooter]

However, I guess you haven't been keeping up on current events; for example see --

From your Rolling Stone article:

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

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.

[Al Norris]

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.

[Frank Ettin]

...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.

...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.

...I do not have the time today to look up these cases...Then you can hardly expect anyone to take you seriously.

...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:...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?

[Al Norris]

I see we cross-posted, Frank! ;)

[Frank Ettin]

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.

[LockedBreech]

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.

[BGutzman]

If AWB is passed and signed into law I will be moving to Wyoming regardless of financial losses.

[Willie Sutton]

Nobody wants flying pigs that self convert to chocolate covered bacon when shot?

Pity... :p


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


.

[Al Norris]

Ya know Willy, I like pretty much "chocolate-anything." Chocolate covered bacon?... Hm, got any I could try? :p

[Willie Sutton]

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


.

[Frank Ettin]

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.

[klyph3]

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?

[Tom Servo]

Nobody wants flying pigs that self convert to chocolate covered bacon when shot?
Tell me more of these chocolate pigs, for I am intrigued.

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.

[Luger_carbine]

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.

[Willie Sutton]

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.



Can you *imagine* popularly voted supreme court justices?

It's bad enough that "the people" get to vote on a President. At least *he* cannot destroy the constitution, at least not directly. But supreme court justices? Whoever promised more bacon (chocolate covered or plain) to the "masses" would win.... and where does anyone think *that* would get us?


And for you also, behold:

http://en.wikipedia.org/wiki/Chocolate-covered_bacon



Willie

.

[mrbatchelor]

Well, I'm certainly no lawyer, so I'm not taking on Frank.

I would ask his opinion on this analysis from the Cato institute regarding a state's capacity to resist federal intervention.

Note that this link has a further link to a PDF at the bottom of the page for the whole article.

http://www.cato.org/publications/policy-analysis/limits-federal-supremacy-when-states-relax-or-abandon-marijuana-bans?utm_source=Cato+Institute+Emails&************=371487743b-An_Inexorable_March_to_Legalization&utm_medium=email&mc_cid=371487743b&mc_eid=b8816b9b58


While the original premiss is about Marijuana the author makes reference to the fact that this line of reasoning may hold for other areas as well. This was written well before the current national non-discussion on gun control started.

[Tom Servo]

Whoever promised more bacon (chocolate covered or plain) to the "masses" would win

http://upload.wikimedia.org/wikipedia/commons/a/a8/Chocolate_covered_bacon_from_Minnesota_State_Fair.jpg

Ermagherd...shut up and take my guns! ;)

Can you *imagine* popularly voted supreme court justices?
It would be a disaster. As it is, they're rightfully insulated from the electoral process, but not entirely immune to it.

[armoredman]

Only one tiny point to interject, then we can get back to flying chocolate covered bacon...

Once SCOTUS rules, the hunt is over.
Not totally correct, for the Court can reverse itself in later decisions, I believe, similar to Dredd Scott? I might be wrong.

[geetarman]

I love bacon and I love chocolate, but I have to say chocolate bacon does not do much for me.

[Tom Servo]

Not totally correct, for the Court can reverse itself in later decisions, I believe, similar to Dredd Scott?.
The major provisions of Dred Scott v. Sanford were effectively nullified by the 13th and 14th Amendments (and the Taney Court was none too happy about that). While historians (and some later Justices) acknowledged the poor wisdom of the decision, it was not overturned.

The most famous reversal would be Brown v. Board of Education, but that took over five decades to happen. We don't want to be stuck with that sort of time scale with the 2nd Amendment.

[Spats McGee]

. . . .Can you *imagine* popularly voted supreme court justices? . . . .
I can do better than that. Our Arkansas Supreme Court Justices are elected.

[Alabama Shooter]

Texas too.

[Frank Ettin]

Most state court judges are elected. Federal judges are not. It's a balancing act either way and a matter of tradeoffs.

Well, I'm certainly no lawyer, so I'm not taking on Frank.

I would ask his opinion on this analysis from the Cato institute regarding a state's capacity to resist federal intervention...Only had a chance to glance at it so far. I'll read it when I get some time and post my thoughts.

[zukiphile]

Note that this link has a further link to a PDF at the bottom of the page for the whole article.

http://www.cato.org/publications/pol...eid=b8816b9b58


While the original premiss is about Marijuana the author makes reference to the fact that this line of reasoning may hold for other areas as well. This was written well before the current national non-discussion on gun control started.

I would take very little comfort from that article. Cato is generally an excellent source and I do not personally agree with the majority in Gonzales v. Raich.

The author's thesis is largely uncontroversial; the scope of marijuana use means that federal resources for enforcement against users can not result in a meaningful ban of marijuana use. Further, Congress does not have the authority to treat a state as a mere administrative unit and compel state resources to enforce the federal marijuana ban.

So what? Neither of these observations would serve as a defense against federal prosecution. By analogy, you would not stand under a tree during a lightning storm just because the risk was slim though appreciable.

Others may take another meaning from this article, but because I see not even an argument that there is protection from federal prosecution in permissive state law, I would draw no sense of security from such law.

[Alabama Shooter]

Most state court judges are elected.

Just under half. 23 States.

[klyph3]

So the people can't be trusted to elect federal judges, but they can elect the people who appoint the judges? I still don't see the logic. What is the purpose?

[zukiphile]

The purpose is the isolation of the judiciary from popular whim. Courts are ideally correct, not popular.

In practice, all judges are elected, with some elected by fewer people than others.

[jmortimer]

"We don't want to be stuck with that sort of time scale with the 2nd Amendment."

The most probable way we will have the Second Amendment eroded is when the SCOTUS Justices distinguish the "new" case from the old case. So they will not have to overturn "precedent" or "super-precedent", they merely have to find a fact or two or so and "distinguish" the new case from Heller and McDonald and so it will go.

[klyph3]

Popular whim? Is that what they call we the people these days? Isolating them from our whims seems to have also isolated them from logically interpreting the constitution.

[armoredman]

The most famous reversal would be Brown v. Board of Education,
OK, so I'm right, then.
Got Dredd Scott mixed up, that's why I added the caveat.

[Al Norris]

Klyph, if you take offense at that, I wonder how you would view what the Founders called it?

Our system of federal government was originally set up to protect both the interests of the whimsical populace, but also the interests of the States themselves.

Sadly, the people were conned into giving up any State representation with the passage of the 17th amendment which gave us Senators, elected by the whimsy of the rabble.

[klyph3]

I'm no political scholar, and perhaps my anger is misdirected, it just seems that power has been centralizing since the republic was founded and there's no end in sight. Corporate personhood really drove a nail in the coffin.

[Frank Ettin]

...Isolating them from our whims seems to have also isolated them from logically interpreting the constitution. Yes indeed.

Of course, whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests.

There has been, and probably always will be, a huge negative reaction by a large number of people to every important to the pubic Supreme Court decision. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.

[vranasaurus]

Ideally you want judges to decde cases based upon the law. Since judges are people that doesn't happen in practice.

[pnac]

Here's what T. Jefferson had to say about Supreme Court justices. Seems to be the situation we're in today.


You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

[zukiphile]

Popular whim? Is that what they call we the people these days? Isolating them from our whims seems to have also isolated them from logically interpreting the constitution.

As others have suggested above, whether isolation from popular whim is a good idea depends largely on whether one's own positions coincide with that whim. For instance, we only need to rearrange a few recent dates to imagine a popularly driven catastrophe.

If the question in Heller had been presented to a court popularly elected within the weeks following Sandy Hook, do you think the case might have been decided differently?

You made reference to the Supreme Court decision in Citizens United. You frame the current political issue, as many others do, in terms of corporate personhood. Yet, that is not the basis of the decision. The First Amendment notes that "Congress shall make no law" abridging the freedom of speech. The identity of the speaker is not a component of competent First Amendment analysis. However, in Citizens United Congress made a law abridging the freedom of speech.

If the worst I could tell you about the history of Supreme Court decisions was that they correctly apply precedent and the language of the Constitution without regard to popular will, I would be far more sanguine about the state of the court.

[zukiphile]

The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Judicial power is the power to decide cases and controversies.

[Frank Ettin]

Some posts have disappeared. Let's stay on topic or this thread will be closed.

[klyph3]

"Shall hold their offices during good behavior"
Who decides when they've crossed the threshold into "bad behavior"? Would a judgment clearly violating the constitution be considered bad behavior?

[JimDandy]

It'd be hard to point to clearly violating the constitution as they basically define/interpret the constitution as an inherent job description. I'd be more interested in what the process is for removing them for bad behavior. It's never been done that I'm aware of, and I'm not sure there's even an aparatus in place.

[Alabama Shooter]

"Shall hold their offices during good behavior"
Who decides when they've crossed the threshold into "bad behavior"? Would a judgment clearly violating the constitution be considered bad behavior?

When you get "bad" decisions the legal recourse is Article 5.

[Frank Ettin]

Who decides when they've crossed the threshold into "bad behavior"? ...I'd be more interested in what the process is for removing them for bad behavior. It's never been done that I'm aware of, and I'm not sure there's even an aparatus in place. The process is impeachment, and it has been done (http://articles.latimes.com/2010/sep/21/nation/la-na-judge-impeach-20100921) with federal judges.

And according to Wikipedia (http://en.wikipedia.org/wiki/Impeachment_investigations_of_United_States_federal_judges), there have been 63 investigations for impeachment.

[Luger_carbine]

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.

I'm not wondering about Wyoming arresting federal agents. I am wondering if Wyoming because of this act, can get a case before the courts that challenges federal firearms law.

[Dr Big Bird PhD]

Texas is second in line to propose a Firearms Protection Act

http://radio.woai.com/cc-common/mainheadlines3.html?feed=119078&article=10700507

[Frank Ettin]

When you get "bad" decisions the legal recourse is Article 5. Of course one question will always be whether it was a bad decision insofar as it really didn't comport with the law and precedent or a bad decision insofar as that law as thus properly applied did not achieve a satisfactory result.

In any case, amendment of the Constitution is not the only recourse. Sometimes when the law as applied by a court doesn't achieve a satisfactory result, a legislature can change the law -- checks and balances at work.

One fairly recent example that comes immediately to mind involves 18 USC 922(q), the federal Gun Free School Zone Act. The U. S. Supreme Court ruled that the law as originally enacted was unconstitutional (United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995)). Thereafter, Congress reenacted the law revised in a manner intended to overcome the objections of the Supreme Court.

More recently there was the case of Kelo v. City of New London, 545 U.S. 469 (2005). It was a ruling on a matter of eminent domain law (specifically involving the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those States' eminent domain laws to avoid a Kelo result.

[Frank Ettin]

...I'm not wondering about Wyoming arresting federal agents. I am wondering if Wyoming because of this act, can get a case before the courts that challenges federal firearms law.Why would Wyoming even want to bother. Such court challenges can be, and are regularly, pursued by private litigants. Both Heller and McDonald were brought by private litigants.

There are currently over 70 major RKBA cases brought by private litigants pending at various stages in various federal courts around the country. Many of these cases are part of an organized litigation strategy designed to begin to add clarity and dimension to the ruling in Heller and McDonald.

[Luger_carbine]

An individual has a case under the Second Amendment, but what I am asking is - couldn't Wyoming defend any Wyoming citizen charged under some new federal AWB, under the 10th Amendment? Defend based on the claim that the complaint against the defendant violates State's Powers ?

[zukiphile]

I'd be more interested in what the process is for removing them for bad behavior. It's never been done that I'm aware of, and I'm not sure there's even an aparatus in place.

When I was in school, Alcee Hastings was impeached and removed for perjury and accepting bribes. That was about 25 years ago, and there may have been a couple since.

http://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm

[Wyoredman]

It appears that this bill is stalled at introduction. It hasn't been assigned to a commitee as of today.

I just wrote the Speaker of the Wyoming House, Represenative Lubnau, and pressed my suport for getting this bill moving. His email address is [email protected] if anyone else from Wyoming would like to rattle his chain a bit. BTW he is the rep for Wyoming House District 31 in Gillette.

[Frank Ettin]

An individual has a case under the Second Amendment, but what I am asking is - couldn't Wyoming defend any Wyoming citizen charged under some new federal AWB, under the 10th Amendment? Defend based on the claim that the complaint against the defendant violates State's Powers ?No. As I pointed out early on, federal law trumps Wyoming law.




Sent from my iPad using Tapatalk HD

[JimDandy]

The process is impeachment, and it has been done with federal judges.

Huh... then who presides when the Chief Justice is the one being impeached? Isn't he supposed to preside over impeachment proceedings?

[Frank Ettin]

Huh... then who presides when the Chief Justice is the one being impeached? Isn't he supposed to preside over impeachment proceedings?

I suspect that if it ever actually happens they'll figure something out.

Oh, and no the Chief Justice doesn't preside over the impeachment. He presides over the trial on the articles of impeachment (the charges).

[Luger_carbine]

http://blog.tenthamendmentcenter.com/2013/01/missouri-bill-proposes-jail-time-for-feds-violating-the-2nd-amendment/

Missouri Bill Proposes Jail Time for Feds Violating the 2nd Amendment

“Any official, agent, or employee of the federal government who enforces or attempts to enforce any act, order, law, statute, rule, or regulation of the federal government upon a personal firearm, a firearm accessory, or ammunition that is owned or manufactured commercially or privately in the state of Missouri and that remains exclusively within the borders of the state of Missouri shall be guilty of a class D felony.”

A class D felony in Missouri carries a prison sentence of up to 4 years.

[Frank Ettin]

And the Missouri law will have no real effect, as already discussed in connection with Wyoming. It can have, however, some symbolic benefit.

[JimDandy]

IF

Barack Obama and John McCain(just to cover both parties as this is a theoretical/philosophical question, not party bashing) are arrested by the FBI and/or ATF on their way to a rifle range in Wyoming, for having 30 round magazines....

And IF

Wyoming had their own laws on the books that said possessing these 30 round magazines was a misdemeanor punshable by 5 seconds of community service... OR alternately demand such a standard of proof in their state courts that noone could ever be found guilty..

THEN
Couldn't the state of Wyoming demand they be tried in a Wyoming state court as it was their jurisdiction, double jeopardy attaches, end result slap on the wrist obviously aimed at nullifying Federal Law?

[vranasaurus]

JimDandy,

The state and feds our separate sovereigns and each may prosecute without violating double jeopardy.

[JimDandy]

Really? That logic would imply that if Mother Theresa were to succumb to road rage and plow right over the top of Yitshak Rabin on I-90 in the Seattle City limits, Seattle/WA could try her, and if they failed, the Feds could then try her as it was a federal road?!

[Al Norris]

Jim, both the State and the Feds could try her at the same time. Theoretically. But... (just using your supposed lawbreaker) Have you really ever seen anyone try to prosecute a ghost? ;)

[JimDandy]

Yeah I picked ridiculous names on purpose.

[Isk]

I guess we need to add Alaska to the list:

http://www.adn.com/2013/01/16/2755382/federal-agents-would-face-arrest.html

While these, as discussed, are really symbolic gestures, it is nice to see the states putting forth some effort.

[wyobohunter]

I like the idea and am not going to get wrapped up in it with Mr. Ettin... Who has proven himself genuinely worthy of the title "Lawyer" in my book.

[JimDandy]

When discussing someone's field that has an immediate and profound affect on your continued living or quality of life, you don't have to like him, but you better damn well listen to him. And don't look a gift horse in the mouth either. You're getting free legal advice. But like everything else you get what you pay for too.

He's not saying it's not great, he's saying don't take this to mean you go strolling down mainstreet in Cheyenne with Ma Duece and a LAWS rocket. Its a black eye, not an amputation.

[Strafer Gott]

Allow me to say I have seen people serve state time and federal time for the same crimes.

I'd like to take the opportunity to thank our professionals for offering advice. I find their words calming, and an anchor to reality.

[Frank Ettin]

Jim,

Let me just confirm that vranasaurus and Al Norris are correct about double jeopardy. One can be tried both for a state criminal charge and a federal criminal charge without violation double jeopardy, even if each charge is based on the same facts.

You might remember the Rodney King incident in the early 1990s. The four police officers who were involved in his beating were charged under state law with various "excessive force" crimes, tried in state court and acquitted (well, one drew a hung jury as to one charge). They were subsequently tired in federal court on federal charges involving the same incident and facts, and two of the officers were convicted and sent to federal prison.

[vranasaurus]

Another good example is Timothy Hennis. Acquited of capital murder in NC but 20 years later recalled from retirement and tried by court martial. He is now on death row in the USDB.

The question is usually what do the feds charge them with.

[JimDandy]

Well I know that people can serve state and federal time for the same crime and facts, but I though they usually involved a rather convoluted path in some cases.. i.e. Michael Vick got nailed in the state courts for the stuff that happened in the state, then got nailed in federal court for stuff incidental to the dog fighting... without knowing the specifics and not having followed it closely enough to know, my presumption was things like using the mail to promote the dog fighting, or acquire flea and tick shampoo used on fighting dogs that resulted in the feds being able to backdoor their way in that way...

[wyobohunter]

Does anyone know if this has passed? I was under the impression that it passed the Senate but was still in the House... That was quite some time ago.

[WyMark]

Does anyone know if this has passed? I was under the impression that it passed the Senate but was still in the House... That was quite some time ago.

It's a house bill and not a senate file, so the Senate hasn't seen it yet. Still sitting in a House committee.


http://legisweb.state.wy.us/2013/Digest/HB0104.htm

H.B. No. 0104


Firearm Protection Act.



Sponsored By: Representative(s) Kroeker, Baker, Burkhart, Jaggi, Miller, Piiparinen, Reeder and Winters and Senator(s) Dockstader and Hicks



AN ACT relating to firearms; providing that any federal law which attempts to ban a semi-automatic firearm or to limit the size of a magazine of a firearm or other limitation on firearms in this state shall be unenforceable in Wyoming; providing a penalty; and providing for an effective date.





1/7/2013 Bill Number Assigned

1/9/2013 H Received for Introduction

1/25/2013 H Introduced and Referred to H01

[wyobohunter]

Thanks.

[Wyoredman]

The Wyoming House has advanced the bill. It looks like it is getting some real consideration in Cheyenne.

http://www.foxnews.com/politics/2013/01/31/wyoming-house-votes-to-block-proposed-federal-firearms-regulations/?test=latestnews

[Dr Big Bird PhD]

Glad to hear it.