Montana Nullifies Gun Laws

[Lombardi's_kid_brother]

But then why can't the state sue on the grounds that the federal government is violating its right to regulate commerce within its own borders? And couldn't the Supreme Court reverse its decision that the State cannot represent its citizens? I mean, they decided one way before. I don't see why they couldn't decide the other way now.

The issue of "within its own borders" has nothing to do with the commerce clause. The standard is streams of interstate commerce...which is essentially anything.

Yes...it is possible that the court in the next year will reverse two 90 year old landmark decisions that have never come close to being challenge.

It's all possible that I will hit the lottery.

[Lombardi's_kid_brother]

Andrew jackson was a nationalist who expressed an opinion on the matter. He had no constitutional power to determine law at that time.

I already cited a case which you choose to ignore that asserts the rights of the county sheriff.

(BTW, there is a really good book about Sheriff mack(sp?) on just how powerful the county sherriff is. I was stunned to learn it!)

You either don't understand that case or are intentionally misreading it. Every attorney on this thread has explained it to you.

[armstrong001]

The issue of "within its own borders" has nothing to do with the commerce clause. The standard is streams of interstate commerce...which is essentially anything.

It's not interstate' date=' it's specifically intrastate. The law specifically applies only to firearms manufactured, sold, and possessed inside the state. The commerce clause only applies to interstate commerce. The Montana law lays out a way to ensure that this commerce is not confused with interstate commerce (by requireing "made in Montana" to be stamped on the firearms).

Yes...it is possible that the court in the next year will reverse two 90 year old landmark decisions that have never come close to being challenge.

It's all possible that I will hit the lottery.

The Supreme court has done so in the past. Brown v. Board of Education overturned a 60 year old landmark decision. I'll be interested to see if depression era decisions will stand up to current thinking on the matter. Either way, I believe it should at least be heard.

[Larry]

I did with Printz vs USA (albeit a little cloudy, it appears!)

No, you showed a Supreme Court decision which says absolutely nothing about the subjects you're claiming.

A decision which rules that the federal government does not have the authority to compel a county sheriff to spend his own money enforcing a federal law. A decision which ruled that it's the fed's job to enforce their own laws.

And you've tried to somehow claim that this somehow translates into a ruling that the feds are powerless to enforce federal law unless the county sheriff gives permission.

And then flown even further off into LaLa Land, by claiming that this somehow "expressly authorizes" the county sheriff to send armed men to forcibly resist federal officers from enforcing federal laws?

Last I checked, there was a term for that. It's called "Treason". (You know, taking up arms against the lawful government of the United States?)

[SnyderShrugged]

Show me where in a case that you are reading correctly.

I can post some of Scalia's words on the case when he wrote the majority opinion if that helps..

Justice Antonin Scalia wrote the ruling for the Court' date=' in which he explained our system of government at length. The justly revered system of checks and balances is the key:

“. . . The great innovation of this design was that ‘our citizens would have two political capacities, one state and one federal, each protected from incursion by the other’” – “a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.” (P. 920)

Scalia quotes President James Madison, “father” of the Constitution: “[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” The Federalist, No. 39 at 245.

Again and again, Justice Scalia pounds the point home (page 921): “This separation of the two spheres is one of the Constitution’s structural protections of liberty: ‘Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.’. . .” Gregory, 501 U.S. at 458.

He quotes President Madison again: “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” (P. 922)

It might be easier though to refer to some other cases that are more claer on the point I was trying (and failing!) to make.

In 1997, in Nye County, Nevada, federal agents arrived to seize cattle that belonged to rancher Wayne Hage. The sheriff gave them a choice: skedaddle or be arrested. They skedaddled. The cows stayed where they were. Wyoming sheriffs have told federal agencies they must check with the respective sheriff before they serve any papers, make any arrests or confiscate any property.

In Idaho, a 74-year-old rancher shot an endangered gray wolf which had killed one of his calves. The U.S. Fish and Wildlife Service sent three armed agents to serve a warrant. Lemhi County Sheriff Brett Barslou said that was “inappropriate, heavy-handed and dangerously close to excessive force.” More than 500 people turned out for a rally in the small towns of Challis and Salmon to support the sheriff and the rancher and to tell the federal government to back off.

Now, these never made it all the way up to the SC (I dont think so anyway) but they are indicators that the Feds know deep down that they have less power than the Sherrif in his jurisdiction.

[SnyderShrugged]

No, you showed a Supreme Court decision which says absolutely nothing about the subjects you're claiming.

A decision which rules that the federal government does not have the authority to compel a county sheriff to spend his own money enforcing a federal law. A decision which ruled that it's the fed's job to enforce their own laws.

And you've tried to somehow claim that this somehow translates into a ruling that the feds are powerless to enforce federal law unless the county sheriff gives permission.

And then flown even further off into LaLa Land, by claiming that this somehow "expressly authorizes" the county sheriff to send armed men to forcibly resist federal officers from enforcing federal laws?

Last I checked, there was a term for that. It's called "Treason". (You know, taking up arms against the lawful government of the United States?)

as I feared, you totally misread my point, why bother trying to explain when you want to read what you want anyway.

I get that i did a poor job explaining myself though, so bash away my grumpy friend!

[SnyderShrugged]

You either don't understand that case or are intentionally misreading it. Every attorney on this thread has explained it to you.

Guess I'll have to wait to see if that case is ever cited as I think it could be interpreted then.

I believe it asserts 10th ammendment rights on behalf of the sherriff. If our local atty's disagree, my feelings arent hurt.

[Lombardi's_kid_brother]

It's not interstate, it's specifically intrastate. The law specifically applies only to firearms manufactured, sold, and possessed inside the state. The commerce clause only applies to interstate commerce. The Montana law lays out a way to ensure that this commerce is not confused with interstate commerce (by requireing "made in Montana" to be stamped on the firearms).

That's not the traditional definition of interstate commerce. That's an alternative definition that has been shot down repeatedly.

And if you change that interpretation of the commerce clause, you basically change 1/3 of a Con Law textbook in one fell swoop.

Literally tens of thosands of laws would be unconstitutional tomorrow.

The Supreme Court has never done anything that dramatic in its history.

[Lombardi's_kid_brother]

Guess I'll have to wait to see if that case is ever cited as I think it could be interpreted then.

I believe it asserts 10th ammendment rights on behalf of the sherriff. If our local atty's disagree, my feelings arent hurt.

Hint: It won't be.

[armstrong001]

That's not the traditional definition of interstate commerce. That's an alternative definition that has been shot down repeatedly.

And if you change that interpretation of the commerce clause' date=' you basically change 1/3 of a Con Law textbook in one fell swoop.

Literally tens of thosands of laws would be unconstitutional tomorrow.

The Supreme Court has never done anything that dramatic in its history.[/quote']

How does it affect that much when we are only talking about commerce that only exists completely in one state? I don't see how this throws everything out the window. Only specific instances where certain criteria are met. All other firearms dealings will continue on the way they have been. All other commerce that extends across borders will continue on. Hell, even commerce that cannot be distinguished as interstate or intrastate would likely continue on. I can't see how it affects that much.

[Lombardi's_kid_brother]

How does it affect that much when we are only talking about commerce that only exists completely in one state? I don't see how this throws everything out the window. Only specific instances where certain criteria are met. All other firearms dealings will continue on the way they have been. All other commerce that extends across borders will continue on. Hell, even commerce that cannot be distinguished as interstate or intrastate would likely continue on. I can't see how it affects that much.

Is someone staying in a hotel intrastate commerce or interstate commerce?

[armstrong001]

Is someone staying in a hotel intrastate commerce or interstate commerce?

I don't know. I could probably argue it both ways. Which is why I stated that commerce that could not be distinguished probably stays the same. Something like Montana is doing does not appear to me to have any grey areas. It's made in, sold in, and possessed in Montana.

[Lombardi's_kid_brother]

I don't know. I could probably argue it both ways. Which is why I stated that commerce that could not be distinguished probably stays the same. Something like Montana is doing does not appear to me to have any grey areas. It's made in, sold in, and possessed in Montana.

What if the person moves?

[armstrong001]

What if the person moves?

Then it becomes a federal issue again:

Sections 4 and 5 of the Montana law:

Section 4. Prohibitions. A personal firearm' date=' a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce.[/b'] This section applies to a firearm, a firearm accessory, or ammunition that is manufactured in Montana from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state. Generic and insignificant parts that have other manufacturing or consumer product applications are not firearms, firearms accessories, or ammunition, and their importation into Montana and incorporation into a firearm, a firearm accessory, or ammunition manufactured in Montana does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the legislature that basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in Montana from those materials. Firearms accessories that are imported into Montana from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in Montana.

Section 5. Exceptions. [section 4] does not apply to:

(1) a firearm that cannot be carried and used by one person;

(2) a firearm that has a bore diameter greater than 1 1/2 inches and that uses smokeless powder, not black powder, as a propellant;

(3) ammunition with a projectile that explodes using an explosion of chemical energy after the projectile leaves the firearm; or

(4) a firearm that discharges two or more projectiles with one activation of the trigger or other firing device.

They aren't covering anything that moves outside the state, and nothing under the Gun Control Act.

[Madison Redskin]

I did with Printz vs USA (albeit a little cloudy, it appears!)

Your understanding of the holding in Printz is shaky at best. That case does not stand for the proposition that a local law enforcement officer has a duty or right to "protect" local citizens from federal law enforcement officials who are attempting to enforce a purportedly unconstitutional law. Don't let ideology muddy your interpretation of cases.

[Predicto]

Well, Jefferson and Madison thought it was a proper recourse for states who opposed the Alien and Sedition Acts. I know it's uncouth to cite those old, dead guys' opinions, but there it is.

It's not uncouth, it's just irrelevant. Jefferson and Madison's conception of federal-state authority started dying about 15 minutes after they expressed it. Hamilton's contrary view gradually prevailed over the next two centuries.

Sure, it is theoretically possible that all of that is going to suddenly be reversed and the Supreme Court will find that Montana can nullify federal laws, but I wouldn't put any money on it. In fact, it is overwhemingly likely that the Court will never bother to take such a case.

[Predicto]

I already cited a case which you choose to ignore that asserts the rights of the county sheriff.

No one ignored it. It doesn't say what you think it says.

[Larry]

No one ignored it. It doesn't say what you think it says.

I've been dying to quote Princess Bride for about four pages.

[JohnLockesGhost]

It's not uncouth, it's just irrelevant. Jefferson and Madison's conception of federal-state authority started dying about 15 minutes after they expressed it. Hamilton's contrary view gradually prevailed over the next two centuries.

Sure, it is theoretically possible that all of that is going to suddenly be reversed and the Supreme Court will find that Montana can nullify federal laws, but I wouldn't put any money on it. In fact, it is overwhemingly likely that the Court will never bother to take such a case.

I'm not arguing, nor would I presume to argue, the legality of nullification. In fact, I'll concede your point about nullification's illegality. I don't know legal minutia as I'm not illuminati.

My point would be political and even theoretical, and here Jefferson and Madison have plenty of relevance. I'd contend that in any political union, you can't allow Party A to be the sole arbiter concerning its relationship with Party B. If that's allowed then clearly Party A will interpret any codified agreement to its benefit and Party B's detriment. Eventually, Party A will be seen as an unjust, abusive master by Party B.

Party B needs to have some recourse against this. It needs to be able to exercise its own power to interpret the relationship, be it nullification of specifics acts or just divorce between the parties.

[Larry]

I'm not arguing, nor would I presume to argue, the legality of nullification. In fact, I'll concede your point about nullification's illegality. I don't know legal minutia as I'm not illuminati.

My point would be political and even theoretical, and here Jefferson and Madison have plenty of relevance. I'd contend that in any political union, you can't allow Party A to be the sole arbiter concerning its relationship with Party B. If that's allowed then clearly Party A will interpret any codified agreement to its benefit and Party B's detriment. Eventually, Party A will be seen as an unjust, abusive master by Party B.

Party B needs to have some recourse against this. It needs to be able to exercise its own power to interpret the relationship, be it nullification of specifics acts or just divorce between the parties.

So, your proposal is to allow all 50 states to have their own interpretation of the US Constitution?

Would have come in handy, back in the 60s, if, say, Alabama were allowed to interpret the equal protection clause of the 14th Amendment, and whether it applied to schools which only existed within state lines.

[JohnLockesGhost]

So, your proposal is to allow all 50 states to have their own interpretation of the US Constitution?

Would have come in handy, back in the 60s, if, say, Alabama were allowed to interpret the equal protection clause of the 14th Amendment, and whether it applied to schools which only existed within state lines.

Not mine, Thomas Jefferson's and James Madison's. Jefferson was very concerned with the monopolization of Constitutional interpretation, as we have today.

[Larry]

Not mine, Thomas Jefferson's and James Madison's. Jefferson was very concerned with the monopolization of Constitutional interpretation, as we have today.

I don't like a lot of the Supreme Court's decisions. But it's pretty clear to me that they have the exclusive authority to do so. And I approve of that.

[JohnLockesGhost]

I don't like a lot of the Supreme Court's decisions. But it's pretty clear to me that they have the exclusive authority to do so. And I approve of that.

I approve of the Supreme Court being the final word of the Federal Government, but if a decision offends a state enough that they wish to protest, it should have that ability.

[Lombardi's_kid_brother]

I approve of the Supreme Court being the final word of the Federal Government, but if a decision offends a state enough that they wish to protest, it should have that ability.

Then, it is not the final word.

Larry raised a good point. If Alabam disagreed with Brown v. Board, what should it have done?

(Actually, schools in the South weren't fully desegreated until the 1980s so there is actually a historical record of what they did...they ignored it until they were forced to by federal judges).

[JohnLockesGhost]

Then' date=' it is not the final word.[/quote']It's the final word for the Federal government. According to the principle of federalism and its American manifestation there is more than just the one party that may have an opinion on a subject. If we're going to have just one, over-arching power instead of separate and distinct powers, let's just end the pretense and throw away the Constitution.

Larry raised a good point. If Alabam disagreed with Brown v. Board, what should it have done?

(Actually, schools in the South weren't fully desegreated until the 1980s so there is actually a historical record of what they did...they ignored it until they were forced to by federal judges).

That would be up to the State of Alabama. Of course, it makes your side look uber-virtuous when you pick an issue nearly everyone agrees with the Federal government's actions and interpretations.

I'd asked, what should Oregon do if the Federal Government continues to assume it has the authority to ban medicinal marijuana? Because it's clear to my mind, the Federal Government has no such authority even if our Supreme arbiters insist they do.