Nullification of gun laws

[Come and take it.]

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.

 

[Spats McGee]

See my: Spats McGee’s Federal Constitutional Primer. In particular, you'll want to read the stuff on the Supremacy Clause.

 

[Come and take it.]

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.

 

[Spats McGee]

What you wrote looks pretty close, with one exception:

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.

 

[Come and take it.]

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?

 

[TimSr]

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.

 

[elDiabloLoco]

General Disgust

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.

 

[speedrrracer]

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.

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.

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.

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]

So, at what point does an additional restriction become an unconstitutional infringement?

When the court says so.

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.

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.

 

[Frank Ettin]

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 --
   
   
   • "Obama Explains Increasing Medical Marijuana Crackdowns, Raids..."
     
     
   • "U.S. raids L.A. marijuana shops..."
     
     
   • "Southern Oregon medical marijuana farm raided by federal drug agents..."
     
     
   • "2 Anaheim pot shops raided,..."
     
     
   • "Sacramento marijuana dispensary latest target of federal crackdown"
     

...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.

 

[Come and take it.]

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?

 

[Spats McGee]

. . . . 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.

 

[Frank Ettin]

...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.

 

[JimDandy]

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.

 

[David White]

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.

 

[speedrrracer]

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.

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.

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.

 

[horatioo]

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.

 

[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?

 

[Frank Ettin]

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:

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,...

 

[Come and take it.]

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?