Montana Nullifies Gun Laws

[Hubbs]

Oh, I think I could make a logical case that there's a model of how the safety of an industry could be regulated by a single, national, entity, without a Federal Law and corresponding bureaucracy being created.

I point you at: Underwriter's Laboratories. (UL).

This (AFAIK) was an organization created, as the name suggests, by the insurance industry. (An industry which certainly has a financial interest in keeping buildings fron burning down.) Far as I know, it's a completely private, independent, organization. The only government involvement is that pretty much every local government has a law saying that you can't install any electrical device in your home or business that hasn't been approved by UL.

I think a case could be made that if, say, the FDA were declared unconstitutional, that an organization similar to UL would be quickly established (maybe by the health insurance industry?) that would certify the safety of drugs and medical equipment. Local jurisdictions could simply pass laws prohibiting the sale of drugs that aren't approved by whatever it is.

So I think a case could be made that the abolition of the FDA (to pick an example of the Feds using "interstate commerce" as an excuse to regulate something) wouldn't automatically, instantly, lead to people dropping dead from counterfeit pills.

OTOH, I could also easily imagine the local paper mill, or the power plant, paying the county commission to give them an exemption from all pollution laws, because "hey, we're the biggest employer in the county", and who cares how many people drink from that river, downstream?

We've had the debate before, and I'll assert again that IMO, the lower you get in the political hierarchy, the more subject the politicians are by the special interests.

Interesting, I hadn't heard of them.

That whole "special interests" thing is obviously another debate for another time, but what you described doesn't really sound much different from the current state of affairs.

[Hubbs]

Well, sometimes you give up.

You see, the enumerated powers are actually two: 1) regulating interstate commerce; and 2) anything necessary and proper to doing that.

It is certainly logical and conceivable that regulating intrastate commerce is necessary and proper to carrying out congress's enumerated power of regulating interstate commerce.

I gave the :doh: because it was pretty justified, and I'm just ****y these days about everyone thinking they are a constitutional law scholar by virtue of the fact that they are an american.

also, it wasn't an accurate point. It showed a lack of constitutional understanding, specifically with regards to what the necessary and proper clause is.

Seeing as there are very many legitimate Constitutional scholars who agree with him, I'd say you're making quite the pile of sweeping generalizations.

EDIT: On top of that, your entire "quoting a single clause is stupid" argument seems pretty flimsy when the most of the Constitution you've cited to refute him is... a single clause. Pulling out "necessary and proper" and then saying, "citing single clauses is for n00bs" is pretty unconvincing, to say the least.

[SnyderShrugged]

For those that say nullification is illegal and that this cant happen, what would you say if the Supreme Court upholds the Montana law just passed as Napolitano feels might actually happen?

[armstrong001]

It would become legal again, because of new precident.

[SnyderShrugged]

It would become legal again, because of new precident.

I'd challenge that it isnt illegal now.

[Larry]

For those that say nullification is illegal and that this cant happen, what would you say if the Supreme Court upholds the Montana law just passed as Napolitano feels might actually happen?

Fire and brimstone coming down from the skies! Rivers and seas boiling!

Forty years of darkness! Earthquakes, volcanoes...

The dead rising from the grave!

Human sacrifice, dogs and cats living together... mass hysteria!

Seriously, you really want people to make predictions as to what would happen if the federal government lost the ability to pass any nationwide legislation whatsoever?

[Burgundy Burner]

The myth that state governments are better equipped to handle problems than the federal government persists. YAY.

Mmmmm - tort reform.

[SnyderShrugged]

Fire and brimstone coming down from the skies! Rivers and seas boiling!

Forty years of darkness! Earthquakes, volcanoes...

The dead rising from the grave!

Human sacrifice, dogs and cats living together... mass hysteria!

Seriously, you really want people to make predictions as to what would happen if the federal government lost the ability to pass any nationwide legislation whatsoever?

I don't think it would cause the Government to lose the ability to pass any nationwide laws whatsoever at all.

Why would you think that? There are plenty of laws that the Feds can pass that are (dare I say) necessary and proper and still within their prescribed confines.

I honestly don't hold out much hope that the court would uphold it, mainly due to the expansive impact on federal power overall. But I do put a lot of weight on Napolitano's opinion on a lot of things related to constitutional law and it really suprised me that he thinks that they would uphold in either a 5-4 or 6-3 decision.

should be interesting.

[Larry]

I don't think it would cause the Government to lose the ability to pass any nationwide laws whatsoever at all.

Why would you think that? There are plenty of laws that the Feds can pass that are (dare I say) necessary and proper and still within their prescribed confines.

Because if this case goes to the Supreme Court, it won't be about the interstate commerce clause and whether it applies to commerce within a state.

1) That's already been argued. And it lost.

2) The feds, as the defendant in the case, wouldn't have to justify why the interstate commerce clause applies. For example, they could argues that federal gun laws are justified under the general welfare clause. The plaintiff would have to prove that the federal laws are not justified by any part of the Constitution.

And if your hopes are justified, and the courts do rule that interstate commerce doesn't apply here, the result isn't to give states the right to exempt themselves. The result is that the court would then have to issue a litmus test that any legislation must pass to be considered interstate commerce, and any federal legislation that doesn't pass that litmus test is declared invalid, nationwide, on the spot.

If this case goes to court, the issue will be whether a state legislature has the authority, by a simple majority vote, to declare that federal legislation doesn't apply within their state.

They don't.

And if there were ever granted that authority, the result would be that the federal government loses the authority to pass any nationwide legislation whatsoever, unledd the legislatures of the 50 states unanimously agree with the legislation.

----------

IMO, if the state of Montana really wants to challenge federal authority on this matter, what they should do is pass a resolution, or perhaps even budget some funds, to have the state AG argue against the law applying in these specific circumstances. Or simply file suit, and make it a case of "Montana v. United States".

[twa]

Larry, Won't the act of passing and enforcing the nullification result in a suit anyway?

Or the feds gonna just send in the shock troops?:evilg:

[Larry]

Larry, Won't the act of passing and enforcing the nullification result in a suit anyway?

Or the feds gonna just send in the shock troops?:evilg:

1) No, the feds are simply going to continue enforcing federal law, as they are Constitutionally empowered to do. If Joe Montana violates a federal law, then the ATF will arrest him. Just like they would have done, yesterday.

And if somebody wants to claim that the feds are exceeding their authority to enforce that law in that circumstance, then they could have done so without the state passing any legislation whatsoever.

And the federal courts will rule on the federal law, without any reference to any state laws, as they are Constitutionally empowered to do. Both because they lack the authority to interpret state laws, and because federal laws supersede state laws, therefore any state law is irrelevant.

2) WTF do you mean "enforcing the nullification"? You visualizing, maybe, county cops showing up to attempt to forcibly prevent federal officers from enforcing federal law?

[SnyderShrugged]

1) No, the feds are simply going to continue enforcing federal law, as they are Constitutionally empowered to do. If Joe Montana violates a federal law, then the ATF will arrest him. Just like they would have done, yesterday.

2) WTF do you mean "enforcing the nullification"? You visualizing, maybe, county cops showing up to attempt to forcibly prevent federal officers from enforcing federal law?

Federal officers don't have greater juridiction than county sherriffs.

There is precident.

Printz V. USA

It's a great example of the supreme court upholding the 10th ammendment.

Facts of the Case:

The Brady Handgun Violence Prevention Act (Brady Bill) required "local chief law enforcement officers" (CLEOs) to perform background-checks on prospective handgun purchasers, until such time as the Attorney General establishes a federal system for this purpose. County sheriffs Jay Printz and Richard Mack, separately challenged the constitutionality of this interim provision of the Brady Bill on behalf of CLEOs in Montana and Arizona respectively. In both cases District Courts found the background-checks unconstitutional, but ruled that since this requirement was severable from the rest of the Brady Bill a voluntary background-check system could remain. On appeal from the Ninth Circuit's ruling that the interim background-check provisions were constitutional, the Supreme Court granted certiorari and consolidated the two cases deciding this one along with Mack v. United States.

Question:

Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require state CLEOs to regulate handgun purchases by performing those duties called for by the Brady Bill's handgun applicant background-checks?

Conclusion:

No. The Court constructed its opinion on the old principle that state legislatures are not subject to federal direction. The Court explained that while Congress may require the federal government to regulate commerce directly, in this case by performing background-checks on applicants for handgun ownership, the Necessary and Proper Clause does not empower it to compel state CLEOs to fulfill its federal tasks for it - even temporarily. The Court added that the Brady Bill could not require CLEOs to perform the related tasks of disposing of handgun-application forms or notifying certain applicants of the reasons for their refusal in writing, since the Brady Bill reserved such duties only for those CLEO's who voluntarily accepted them.

Decisions

Decision: 5 votes for Printz, 4 vote(s) against

Legal provision: 18 U.S.C. 922

http://www.oyez.org/cases/1990-1999/1996/1996_95_1478/

[Prosperity]

You can't talk like that to a lawyer...you heathen

well it's a legal matter isn't it? Leave it to a Texan to think he's an expert on everything

[Larry]

Federal officers don't have greater juridiction than county sherriffs.

Gee, and if this case had anything whatsoever to do with the federal government issuing orders to county sheriffs, or state legislatures, telling then to do something, then that case would be relevant.

Unfortunately, federal law enforcement agencies do have the authority to enforce federal law. Nationwide. And they don't need permission from the county sheriff.

[twa]

Leave it to a Texan to think he's an expert on everything

I'm glad you are coming around to recognizing the obvious:cool2:

[Larry]

I just had this image, in my mind.

Some hooker gets busted in New York, and argues that, since recent Supreme Court rulings have ruled that all commerce is interstate commerce, therefore the State of New York lacks the jurisdiction to regulate prostitution.

[Madison Redskin]

Gee, and if this case had anything whatsoever to do with the federal government issuing orders to county sheriffs, or state legislatures, telling then to do something, then that case would be relevant.

Unfortunately, federal law enforcement agencies do have the authority to enforce federal law. Nationwide. And they don't need permission from the county sheriff.

I am still trying to figure out why SnyderShrugged cited that case.

[Predicto]

But I do put a lot of weight on Napolitano's opinion on a lot of things related to constitutional law ...

Why? As far as I can tell, his views are way out of the mainstream, and he has no standing as a legal scholar. He is a New Jersey trial judge who hosted a version of the "People Court." This of course makes him an "expert" as far as Fox News is concerned, but he's not really an expert.

[Hubbs]

Seriously, you really want people to make predictions as to what would happen if the federal government lost the ability to pass any nationwide legislation whatsoever?

*scratches head*

How does "interstate commerce actually means interstate commerce" equal "no nationwide legislation whatsoever"?

EDIT: I see you already answered that... kind of. I say "kind of" because, from the off-the-top-of-my-head knowledge of these cases, one of the main reasons interstate commerce is upheld for in-state transactions is because the goods are indistinguishable from those same exact goods in another state, and therefore it's impossible to tell what commerce has actually been kept in-state and what hasn't. That's why Montana included the provision for stamping "Made in Montana" on all of its guns. That's not to say that the other side couldn't/won't argue that the guns won't be brought over state lines and sold illegally all over the place, or even that they'd be sold in, say, Idaho, then brought back into Montana ten years later and sold again. But this law does adapt to precedent set in previous rulings.

As for using other clauses, I find it hard to believe that the SC would agree that Montana simply rejecting some gun control laws in favor of others would be good enough for "general welfare" to stick. I can definitely see that argument working for specific things Montana could decide to allow, like, say, rocket launchers. But we already accept the practice of the states having wildly different gun laws; for the feds to argue that theirs establish an empirically proven "bare minimum" of general welfare, even accounting for the scenario of Montana guns being smuggled into other states (that happens all the time because of different gun laws right now), sounds flimsy at best.

[SnyderShrugged]

Unfortunately, federal law enforcement agencies do have the authority to enforce federal law. Nationwide. And they don't need permission from the county sheriff.

again, Printz V. USA says otherwise. The county sherriff answers to noone and may enforce their local laws whcih take precidence over Federal.

[SnyderShrugged]

I am still trying to figure out why SnyderShrugged cited that case.

sorry you can't see the bearing.

I'll try to explain...

In that case, Feds were trying to enforce a Brady law and force the county sherriff to take part in the Federal enforcement.

The sherriff objected and the SC agreed that the Feds could not, in fact, force the sherriff to do so.

This case is often cited as a 10th ammendment reaffirmation case.

It has bearing due to it's impact on Federal limitations of enforcement.

[SnyderShrugged]

Why? As far as I can tell, his views are way out of the mainstream, and he has no standing as a legal scholar. He is a New Jersey trial judge who hosted a version of the "People Court." This of course makes him an "expert" as far as Fox News is concerned, but he's not really an expert.

Last I knew, being "mainstream" has zero bearing on constitutional scholarship and deep understanding.

Don't let your hate for Fox news get in the way of reality. Do you have examples to offer of when he has been wrong, in a legal sense?

Not saying he never was, only that in my experience, I havnt seen him go astray yet.

[Madison Redskin]

It has bearing due to it's impact on Federal limitations of enforcement.

I understand the holding of the case, but the holding is pretty much irrelevant to this discussion. The feds aren't trying to force local law enforcement officers to do the work of the federal government. The state is trying to tell the feds that federal law enforcement officers can't enforce federal law within Montana.

[Larry]

again, Printz V. USA says otherwise.

It says absolutely nothing of the sort. It says that the federal government cannot order local governments to do something on the Fed's behalf.

The county sherriff answers to noone and may enforce their local laws

Absolutely true, and undisputed in this thread.

whcih take precidence over Federal.

Utter BS. Not only untrue, but completely opposite of the truth.

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.

[Thiebear]

Not knowing crap about the above goobledeegook.

A farmer can't grow something on his land because if he didn't he'd have to buy it (supposition that he would then eat whatever he was growing?)

From someone else which then 'could' make it interstate?

We don't even allow that much stretching in the tailgate threads here as seen on this page. Though i would agree that Fed takes precedence over state in laws, there are some that should be challenged. (Made in Montana might not be my first choice). The farm one i would push.

*Note* This seems to be State and Federal fighting it out on who is correct... Seems to me everything is working as intended.