Luger_carbine
New member
Was there ever a challenge of the Clinton AWB on the basis that it violated a states right to regulate?
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Was there ever a state's right challenge to the Clinton AWB?
- Thread starter Luger_carbine
- Start date
vranasaurus
New member
You don't challenge as an infringement on state's rights. States, as in sovereigns, don't have rights they have powers. The term "state's rights" just bothers me. People have rights, sovereigns have powers. The power of the sovereign is limited by the rights of the people.
States have the power to regulate everything and anything unless the subject is the exclusive domain of congress. Congress has the power to regulate that which the constitution says they can. The tenth amendment strikes me as a superfluous provision what it states is patently obvious from the reading of Article I sections 8-10.
You would challenge it on the basis that congress lacks the power to do so under the constitution. The problem with this argument is that congress' power under the commerce clause has been interpreted very broadly since the mid 1930's. Congress only has those powers enumerated under the constitution. The gun free school zone act and the PPACA are two of the few federal laws held to exceed congress' power under the commerce clause.
The GFSZA was an easy one for the court since the state already had such a law. Therefore the ruling wouldn't have much effect other than forcing offenders to be prosecuted in state court. The PPACA though not upheld under the commerce clause was upheld under the taxing power.
The supreme court has not been all that receptive to arguments that congress has exceeded its authority. The court often goes out of it's way to find a reason to find that congress was well within it's authority. Not that I particularly agree with the courts approach but it is well settled that they get to say what the constitution means.
States have the power to regulate everything and anything unless the subject is the exclusive domain of congress. Congress has the power to regulate that which the constitution says they can. The tenth amendment strikes me as a superfluous provision what it states is patently obvious from the reading of Article I sections 8-10.
You would challenge it on the basis that congress lacks the power to do so under the constitution. The problem with this argument is that congress' power under the commerce clause has been interpreted very broadly since the mid 1930's. Congress only has those powers enumerated under the constitution. The gun free school zone act and the PPACA are two of the few federal laws held to exceed congress' power under the commerce clause.
The GFSZA was an easy one for the court since the state already had such a law. Therefore the ruling wouldn't have much effect other than forcing offenders to be prosecuted in state court. The PPACA though not upheld under the commerce clause was upheld under the taxing power.
The supreme court has not been all that receptive to arguments that congress has exceeded its authority. The court often goes out of it's way to find a reason to find that congress was well within it's authority. Not that I particularly agree with the courts approach but it is well settled that they get to say what the constitution means.
62coltnavy
New member
There is an argument that can be made, but for years it was an argument that appeared foreclosed by Miller v. US. Miller dealt with the constitutionality of a conviction for possession of a short barrelled shotgun under the 1936 Firearms Act, which it must be remembered, avoided 2A issues by being drafted primarily as a tax measure. Leaving those details aside for now, let's start with the original intent or purpose of the 2A as reflected in the text. The Framers were extremely leery of a powerful central government, an instrument they felt was too easily manipulated to become a tyranny. The original Articles of Confederation are a direct result of this belief ,as they created thirteen sovereign states and a "federated" government that was subservient to the will of the states and intended as an organ for speaking with a single voice to the rest of the world and for providing for the common defense against foreign threats and invasions. But at the same time, State supremacy was key: a standing army was prohibited to the federal government, and the power to make war, as in the current Constitution, was reserved to the states through their Senate representatives. (At the time, senators claimed primary allegience to their originating colonies/states, and were usually positions appointed directly by a state governor or legislature). The main weakness of this form of government is that the central government was too weak, and could not compel the individual states to contribute to the cost of governmental functions, including most notably the maintenance of the Office of the President and the outfitting of the Navy. Without funds or a means to raise them, the government failed.
So we move to the Constitution, in many ways the same as the Articles of Confederation, but providing for a more powerful national government. The principle parts of the document are the descriptions of the three branches of government, a structure again intended to balance the powers against each other such that no branch could usurp total power. This is why there are two houses of Congress, one representing the People and the other representing the states. Powers were expressly delegated from the People and the States to the Federal Government so that it could act and maintain itself; and powers not delegated were reserved.
During the ratification process, numerous amendments were proposed, which eventually were distilled into 12 amendments, each of which was intended to clarify the scope of the federal government and the rights maintained by the People and by the States. AS one scholar has noted, the ten eventually adopted are primarily voiced in the negative, i.e., specifying what powers the federal government does NOT have. (Art. I: "Congress shall make no law"; Art II: the "shall not be infringed"; Art.III: "No soldier shall..."; Art. IV: "The right of the People...shall not be violated"; Art. V:" No person shall be held..., nor shall any person..."; and see also XVIII. IS and S. The Tenth is critical: "The powers not delegated to the United States by the Consitution, nor prohibited to it by the States, are reserved to the States respectively, or to the People."
Now we get to the nitty gritty. Again, the federal government was not permitted to raise a standing army, and the states, through the Senate, reserved to themselves the power to make war. At the time, the idea was that the individual state militias would provide the troops, as necessary, to repel invaders etc, under the unified command of the President as Commander in Chief. (West Point was founded to provide the senior officer corps for this army of militia.) Under this structure, then it was foreseen, in fact absolutely necessary, that the individual militias have and maintain all such implements as were necessary for prosecuting wars, including but not limited to muskets, pistols, cannon, rockets, etc etc etc. To summarize, the People made up the Militias, the Militias made up the companies, battalions, divisions and corps, and they all came together under the unified command of the President of the United States.
Now take a look at the Second Amendment in the context of this historical background. The federal government being forbade an army, only the States could raise the troops, from the People, to make that army. And it was important that those militia be trained to avoid the hazards of war, as was most strikingly observed by Lafayette when he visited Valley Forge and agreed to train the rabble to face on its own terms the most powerful army on the face of the planet. "A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." The natural conclusion the Founders intended should be reached is that the federal government was not delegated the power to regulate firearms and implements of war; that power was reserved to the States and the Right to the People.
Bottom line? The logical conclusiuon is that the federal government does not have the authority delegated to it by the People or the States to regulate firearms, and all firearms bans, with the exception of "dangerous and unusual weapons (Miller v. U.S.) that inferentially were designed for nefarious ends and not for weapons of war or other proper uses, could be controlled.
The big caveat to the forgoing is that I haven't figured out the ramifications of the Civil War and the rise of federal sovereignty over the states as a result of and after that War, especially as promulgated through the commerce clause. This battle is still being fought today by states declaring that firearms manufatured locally are not subject to the commerce clause and federal control (in that the commerce clause on its face provides for the regulation of interstate commerce only). Then there is the fact that we do have a standing army, and navy and airforce, etc, and that the militia has in most part been replaced almost entirely in its function by the police and national guard. With these factors in mind, Can the federal government legitimately argue that the right to keep and bear arms is not infringed by the forbidding of interstate sales of particular types of weapons? Or is the better argument that the delegated power (commerce) cannot impair a right reserved to the people--that the balance between a retained power/right and a federal power must necessarily be decided in favor of the right?
So we move to the Constitution, in many ways the same as the Articles of Confederation, but providing for a more powerful national government. The principle parts of the document are the descriptions of the three branches of government, a structure again intended to balance the powers against each other such that no branch could usurp total power. This is why there are two houses of Congress, one representing the People and the other representing the states. Powers were expressly delegated from the People and the States to the Federal Government so that it could act and maintain itself; and powers not delegated were reserved.
During the ratification process, numerous amendments were proposed, which eventually were distilled into 12 amendments, each of which was intended to clarify the scope of the federal government and the rights maintained by the People and by the States. AS one scholar has noted, the ten eventually adopted are primarily voiced in the negative, i.e., specifying what powers the federal government does NOT have. (Art. I: "Congress shall make no law"; Art II: the "shall not be infringed"; Art.III: "No soldier shall..."; Art. IV: "The right of the People...shall not be violated"; Art. V:" No person shall be held..., nor shall any person..."; and see also XVIII. IS and S. The Tenth is critical: "The powers not delegated to the United States by the Consitution, nor prohibited to it by the States, are reserved to the States respectively, or to the People."
Now we get to the nitty gritty. Again, the federal government was not permitted to raise a standing army, and the states, through the Senate, reserved to themselves the power to make war. At the time, the idea was that the individual state militias would provide the troops, as necessary, to repel invaders etc, under the unified command of the President as Commander in Chief. (West Point was founded to provide the senior officer corps for this army of militia.) Under this structure, then it was foreseen, in fact absolutely necessary, that the individual militias have and maintain all such implements as were necessary for prosecuting wars, including but not limited to muskets, pistols, cannon, rockets, etc etc etc. To summarize, the People made up the Militias, the Militias made up the companies, battalions, divisions and corps, and they all came together under the unified command of the President of the United States.
Now take a look at the Second Amendment in the context of this historical background. The federal government being forbade an army, only the States could raise the troops, from the People, to make that army. And it was important that those militia be trained to avoid the hazards of war, as was most strikingly observed by Lafayette when he visited Valley Forge and agreed to train the rabble to face on its own terms the most powerful army on the face of the planet. "A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." The natural conclusion the Founders intended should be reached is that the federal government was not delegated the power to regulate firearms and implements of war; that power was reserved to the States and the Right to the People.
Bottom line? The logical conclusiuon is that the federal government does not have the authority delegated to it by the People or the States to regulate firearms, and all firearms bans, with the exception of "dangerous and unusual weapons (Miller v. U.S.) that inferentially were designed for nefarious ends and not for weapons of war or other proper uses, could be controlled.
The big caveat to the forgoing is that I haven't figured out the ramifications of the Civil War and the rise of federal sovereignty over the states as a result of and after that War, especially as promulgated through the commerce clause. This battle is still being fought today by states declaring that firearms manufatured locally are not subject to the commerce clause and federal control (in that the commerce clause on its face provides for the regulation of interstate commerce only). Then there is the fact that we do have a standing army, and navy and airforce, etc, and that the militia has in most part been replaced almost entirely in its function by the police and national guard. With these factors in mind, Can the federal government legitimately argue that the right to keep and bear arms is not infringed by the forbidding of interstate sales of particular types of weapons? Or is the better argument that the delegated power (commerce) cannot impair a right reserved to the people--that the balance between a retained power/right and a federal power must necessarily be decided in favor of the right?
vranasaurus
New member
Again, the federal government was not permitted to raise a standing army, and the states, through the Senate, reserved to themselves the power to make war.
I suggest you read article I section 8:
Congress shall have the power...
To raise and support armies;
Congress has always had the power to raise a standing army. While most politicians of the day disfavored a standing Army the federal government was not prohibited from doing so.
Dangerous and unusual weapons was a line from Heller not Miller. And in my opinion the court mistated the common law prohibition. The common law prohibited the carrying of dangerous and unusual weapons in affray of the king's subjects. As noted by the North Carolina Supreme Court, in a case that I will gladly cite later, that all weapons are dangerous and the carrying of such are unusual but the mere carrying of a gun absent some intent to disturb the piece is no violation of the common law prohibition on carrying dangerous or unusual weapons. The common law prohibition is something akin to going armed with intent.
Luger_carbine
New member
Thank you for the clarification on state's powers.
I'm not sure if it's important that a state have a pre-existing law on the books that a new federal law would interfere with or infringe upon.
Since today we have several states with state laws that govern what types or models of firearms are available for sale to the public, it seems that a federal ban would infringe on that state's power.
Can any state bring forward a case claiming infringment on states' powers, even if the state filing the case doesn't specifically have a law that the federal law is interfering with?
For example, I wouldn't expect California to file a suit against a federal AWB, even though they do already have laws that govern this. Georgia or Texas might be inclined to file a suit challenging a federal AWB, but I don't think these states have existing state laws that ban or regulate what models or types of firearms its citizens can purchase.
I'm not sure if it's important that a state have a pre-existing law on the books that a new federal law would interfere with or infringe upon.
Since today we have several states with state laws that govern what types or models of firearms are available for sale to the public, it seems that a federal ban would infringe on that state's power.
Can any state bring forward a case claiming infringment on states' powers, even if the state filing the case doesn't specifically have a law that the federal law is interfering with?
For example, I wouldn't expect California to file a suit against a federal AWB, even though they do already have laws that govern this. Georgia or Texas might be inclined to file a suit challenging a federal AWB, but I don't think these states have existing state laws that ban or regulate what models or types of firearms its citizens can purchase.
vranasaurus
New member
I'm not sure a state would have standing to challenge such a law. It would likely have to be a criminal defendant or a citizen who might face prosecution.
While congress did have the power to raise a standing army, it did not until it appeared that state militias were not equal to the basic task of fighting a war. Congress raised and equipped armies during the revolution, and even then, many of the troops were state troops. A basic problem not otherwise relevant to any of these issues was that some states were richer than other states, to put it plainly, and the poorer states had more of a struggle to equip their own troops. Of course, at the time, a so-called standing army did not have that ancient a history. Typically, armies were raised only when needed, which was more of a feudal practice, and there was a well-defined system in place to raise those armies when needed, although those armies were not large by today's standards.
During the later colonial period and on into the revolutionary war and afterwards, there were state troops that were essentially full-time soldiers in some states but I've seen very little recent references to any such troops. I mention this only because there is the assumption that the only state troops that existed were local (all militias are local in our sense) militias. But that does not seem to necessarily be the case.
In Virginia, for instance, which may be the only such case, there were troops stationed along the frontier. This I picked up from readings in very old books that I was not reading for anything about militia history but for other reasons. Those troops, which I believe may have been called rangers, apparently did not exist in large numbers, nor did they operate in anything like a company sized unit. But up and down the Allegheny Front and beyond, there were large numbers of settlements built around forts. The troops seems to have just been there to supplement the settlers when there were troubles with Indians and those troubles seem to have been constant in those areas up until the 1790s.
Some of those attending the constitutional convention, all politicians in a way, were involved in the militia in one way or another, the best known being Washington.
During the later colonial period and on into the revolutionary war and afterwards, there were state troops that were essentially full-time soldiers in some states but I've seen very little recent references to any such troops. I mention this only because there is the assumption that the only state troops that existed were local (all militias are local in our sense) militias. But that does not seem to necessarily be the case.
In Virginia, for instance, which may be the only such case, there were troops stationed along the frontier. This I picked up from readings in very old books that I was not reading for anything about militia history but for other reasons. Those troops, which I believe may have been called rangers, apparently did not exist in large numbers, nor did they operate in anything like a company sized unit. But up and down the Allegheny Front and beyond, there were large numbers of settlements built around forts. The troops seems to have just been there to supplement the settlers when there were troubles with Indians and those troubles seem to have been constant in those areas up until the 1790s.
Some of those attending the constitutional convention, all politicians in a way, were involved in the militia in one way or another, the best known being Washington.
Another reason no challenge appeared might have been the sunset provision in the AWB. Short of a re-authorization by Congress, in 2004, it would go away.
Considering the previously mentioned difficulties a State would have bringing a case (proving harm to the state), plus the time, and the cost (also applying to an individual or class action case),combined with the sunset provision made it really a pointless endeavor, outside of the principle involved.
Why spend years and likely hundreds of thousands of dollars (all inclusive) and either a) fail -get the case tossed on a technicality, or simply refused to be heard by the High Court, or b) win the case, 8 months before the law expires anyway? (ok, 8mo is just a random choice, but you get the idea)
Considering the previously mentioned difficulties a State would have bringing a case (proving harm to the state), plus the time, and the cost (also applying to an individual or class action case),combined with the sunset provision made it really a pointless endeavor, outside of the principle involved.
Why spend years and likely hundreds of thousands of dollars (all inclusive) and either a) fail -get the case tossed on a technicality, or simply refused to be heard by the High Court, or b) win the case, 8 months before the law expires anyway? (ok, 8mo is just a random choice, but you get the idea)
Double Naught Spy
New member
Some of those attending the constitutional convention, all politicians in a way, were involved in the militia in one way or another, the best known being Washington.
Then there is the fact that we do have a standing army, and navy and airforce, etc, and that the militia has in most part been replaced almost entirely in its function by the police and national guard.
Specifically, the militia acts that were regulations to the Constitution (2nd amendment) and that recognized state militias were replaced in 1903 by the Militia Act of that year which formed the National Guard. So origiinal militia considerations and arguments largely died with the formation of the National Guard, which is fortunate that the 2nd is recognized as an individual right and not a state or militia right.
Perhaps, but the national guard are still state troops (most of the time!). You might even say they are your neighbors. There's probably an armory in your hometown. That's where they hold dances. You know, where the girls dance with each other and the boys stand around outside and smoke cigarettes.
D.W. Drang
New member
States may "have powers, not rights", but in common usage the theory is still referred to as "Sates' Rights." No unreconstructed rebel claims the "Recent Unpleasantness" was fought over states' powers, after all...
As for judicial challenges to the AWB of '94, how quickly they forget! See, for example, posts Tamara made @ The View From The Porch* about how, if you were able to talk to your 1995 self, younger you would not believe that 49 of 50 states had CCW, and most of them were "shall issue", that the SCOTUS had rules that the Second Amendment did apply to individual rights to keep and bear arms, and had been incorporated to apply to the states.
No such challenge was even contemplated.
*I'd link if I could figure out what to search for and find the posts/s.
As for judicial challenges to the AWB of '94, how quickly they forget! See, for example, posts Tamara made @ The View From The Porch* about how, if you were able to talk to your 1995 self, younger you would not believe that 49 of 50 states had CCW, and most of them were "shall issue", that the SCOTUS had rules that the Second Amendment did apply to individual rights to keep and bear arms, and had been incorporated to apply to the states.
No such challenge was even contemplated.
*I'd link if I could figure out what to search for and find the posts/s.
Hugh Damright
New member
The term "States' rights" has been in Websters Dictionary since the 1913 edition, not as something archaic or improper, but as a proper term in the english language.
Double Naught Spy
New member
Yep, and 99% of us aren't in the National Guard and the militia/National Guard arguments against the AWB don't really work given the Militia Act of 1903.Perhaps, but the national guard are still state troops (most of the time!).
The term "States' rights" has been in Websters Dictionary since the 1913 edition, not as something archaic or improper, but as a proper term in the english language.
Being in the Webster's dictionary doesn't make the term a legal definition, however. Using your vague refernece, I pulled it up online.
http://www.merriam-webster.com/dictionary/states' rights
It seems the phrase (not "term") dates to 1839 and the Southern states opted to claim the right of cecession and it was pointed out to them that it wasn't a state right.
BlueTrain said:Perhaps, but the national guard are still state troops (most of the time!).
I honestly don't know how anyone can say that, with a straight face.
Who paid for their training (boot camp and Schools)? Who paid for all the equipment? Who pays for their weekend drill? Who pays for their summer training? Who allows the State Governor to retain "command" when not called into active service?
The answer to each of those questions, is the same: The National Guard are Federal Troops.
Perhaps, but the national guard are still state troops (most of the time!). You might even say they are your neighbors. There's probably an armory in your hometown.
Not anymore ...... they, like most everything else, have been consolidated for more efficiency (and easier control, methinks) .....
Who paid for their training (boot camp and Schools)? Who paid for all the equipment? Who pays for their weekend drill? Who pays for their summer training? Who allows the State Governor to retain "command" when not called into active service?
The answer to each of those questions, is the same: The National Guard are Federal Troops.
"If you take the King's schilling, he gets to call the tune."
I don't even want a farthing, thankee......
I would content they are a hybrid Al. When I see the Guard helicopters circling Mount Rainier looking for lost climbers, I don't suspect Uncle Sam is the one doing the searching. At that task, they are a state agency. They may do it with federal funding, but there are a vast number of state agencies that do at least part of their task with federal funding.
Luger_carbine
New member
Well I think I know what state would challenge the constitutionality of a federal ban. Wyoming for sure...
Double Naught Spy
New member
They didn't last time. I don't see them making any great headway this time.