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View Full Version : Order of Application of Law Fed Law vs State Constitution


meaty-btz
01-29-2011, 5:32 PM
Lets say a state (not calif) amended its Constitution to include the right to Bear F/A NFA etc and even High Caps and then the federal gov passed a law that said that you cannot own mags over 10. Does the Federal Law superceede the Stats Constitution (not law, as in constitution specificly)?


Order of law as it is supposed to be...perhaps not how practiced.. I see..

Fed Constitution, State Constitution, Federal Law, State Law, Municiple Law.

Patrick-2
01-29-2011, 5:43 PM
Generally Feds will supersede provided they have jurisdiction. And under the monsters born of the interstate commerce clause, they can do just about anything allowable by the constitution ( I am avoiding 2A for your question because I don't think you were asking for opinions on mag bans...only what the Feds could do with something that passes).

See recent theory on ObamaCare's plan to force individuals to purchase something from a private party: under the commerce clause they say they can force this because at some point every human in the US will eventually need health care. This has a "butterfly effect" on the entire market. Therefore, by not engaging in commerce, you are plainly engaging in commerce.

I cannot make this stuff up.

meaty-btz
01-29-2011, 5:46 PM
Indeed, I was more supposing from a standpoint of legal challenges. You cannot just pass a law and serrupticiously (?) superceed a State Const. That just plain does not sound right. I.E. the State could refuse to enforce the law or even help the Federal Authorities Enforce the law as the law is Unconstitutional in said state. Course that gets into a pissing contest but I've never seen a state constitution vs federal law.. only state law vs federal law. SO I am dubious to how it would play out. I also think that this is the tact that some states are right now persuing concerning Obama Care.

Patrick-2
01-29-2011, 5:50 PM
See Montana, Utah, Wyoming and several other who are challenging federal prohibitions and regulations regarding firearm manufacture. There have got to be threads in here on it. Basically these states are claiming their residents can completely manufacture firearms within the borders of their states and disregard federal firearms provisions. They claim a constitutional collision of the type you are curious about.

meaty-btz
01-29-2011, 5:56 PM
See Montana, Utah, Wyoming and several other who are challenging federal prohibitions and regulations regarding firearm manufacture. There have got to be threads in here on it. Basically these states are claiming their residents can completely manufacture firearms within the borders of their states and disregard federal firearms provisions. They claim a constitutional collision of the type you are curious about.

Those are exactly what got me thinking about this. I don't think any of them have been "tested" yet in court. Leaves me curious. I think the last Constitutional Collision resulted in the Civil War.

Patrick-2
01-29-2011, 5:58 PM
Those are exactly what got me thinking about this. I don't think any of them have been "tested" yet in court. Leaves me curious. I think the last Constitutional Collision resulted in the Civil War.

Heck no. We have them all the time. The states usually lose. Well, at least since the Civil War, they have. :rolleyes:

meaty-btz
01-29-2011, 6:01 PM
Do you have any links to actual Constitutional Collisions? I have been trawling the net and not getting much in that regards. I know we've lost every law vs law but information regarding the other has been somewhat scarer.

Are you thinking the Civil Rights era stuff? I don't recall any of them being the case of federal law vs a state constitutional amendment (rather than just your run of the mill state laws).

I am having trouble formulating a more clear image of the nature of this in my mind and need more historical facts, etc. It concerns me. My googlefu is failing me.

kf6tac
01-29-2011, 7:17 PM
Do you have any links to actual Constitutional Collisions? I have been trawling the net and not getting much in that regards. I know we've lost every law vs law but information regarding the other has been somewhat scarer.

Are you thinking the Civil Rights era stuff? I don't recall any of them being the case of federal law vs a state constitutional amendment (rather than just your run of the mill state laws).

I am having trouble formulating a more clear image of the nature of this in my mind and need more historical facts, etc. It concerns me. My googlefu is failing me.

You might try searching for cases on federal preemption, but no guarantees that any cases actually exist regarding conflict of a federal statute against a state constitution.

For what it's worth, the Supremacy Clause of the Constitution pretty explicitly states that federal statutes enacted according to the federal constitution are part of the supreme law of the land, notwithstanding anything in the constitution of any state.

fiddletown
01-29-2011, 8:04 PM
"...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." (Constitution of the United States (http://www.law.cornell.edu/anncon/index.html), Article VI, Section 2, emphasis added)

So the U. S. Constitution and federal law will trump state constitutions and state law.

meaty-btz
01-29-2011, 8:22 PM
"...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." (Constitution of the United States (http://www.law.cornell.edu/anncon/index.html), Article VI, Section 2, emphasis added)

So the U. S. Constitution and federal law will trump state constitutions and state law.

That is pretty much what I was able to conclude. In essence the State Constitutions are worthless as they can be superceeded by any whim of the federal government.

I suppose the point I was seeking to refine in my own mind is based on some discussions I have had recently concerning the enshrining of 2A in various state constitutions. It isn't, was my argument. The federal government can revoke the right as they have done in the past decades. So while it might serve to help prevent abuse internally it does not offer protection from a federal government who cares very little for the COTUS as is. However the Federal Government cannot restrict States excepting for very limited windows. The abuse of the Commerce Clause has been over the top and some states are starting to rebel against it. Minus the Commerc Clause the federal government cannot enact a magazine ban. It can ban the interstate transfer of standard capacity magazines but they cannot ban ownership within the state.. at least while being Constitutionally correct. They really dont care one whit so I don't see that as protection merely a means by which Gura can rake them over the coals if needed. My argument is we need to "reeducate" the federal government at this juncture because it must be prevented from causing far reaching damage with its abuse of the Constitution. Most recently, Obama Care.
The issue perhaps is the one called "constitutional carry". Some states have it, others do not, however if the Federal Government stepped in, the current dominating culture would enable them to just FU to gun owners and ban Constituional Carry. Such an act would recind any protection in the state constitutions that have it. By the same vein however, they could enact legislation that forced Reciprocity in CCW (Thune Amendment) that would have states like california and NY and NYC (in their own little world), etc screaming foul. Hell they could pass legislation providing the same protections as some states constitutions and thus force california to end its unconstitutional restrictions (oh boy you could hear the howls till the end of the world). My stance though is that the federal government is largely more akin to California in attitudes than Arizona. This being the case, all Rights provided for by the COTUS are under threat. Not just our 2A.

This is sort of the full thought that I didnt express earlier but was fishing for some focus on.

wildhawker
01-29-2011, 8:28 PM
Why do you think Congress cannot prohibit possession of something it considers contraband (ignore 2A for the purpose of this discussion)?

Also, why do you think that CC is Congress's only tool for regulating firearms and related?

meaty-btz
01-29-2011, 9:14 PM
I don't mind the argument.

My stance was that Congress Can (ignoring the 2A) and has done, therefor State Constitutional Protections are only internal checks against State/County/City Lawmakers and provide no protection vertically on the food chain.

Lets ignore 2A here and look at Marijuanna Legalization in California. We could have passed it this year but Marijuanna would still be illegal to grow and posses under Federal Law. This is essentially the californian version of saying FU to a government ban on +10Rnd Magazines. Most people have noted that if the local authorities do not enforce the law it remains a law but has no teeth. Even though it didn't pass this year, for an extended time people have been able to have it for medicindinal purposes which is NOT recognized by Federal Law. By and large, they have not been visited by the DEA. The DEA is lacking in the manpower to deal with this effectivly, so it is ignored. The DEA operates in California, so obviously they have a presence. What they do target is the criminal grows, something the local LEA are involved in as well. Now the federal government can use strong arm tactics through funding cuts or restrictions but that does not stop a local LEO from simply ignoring them. A quota system might work but it would be disgruntled help and create very bad blood over time. Politically not a very smart move. So, dispite it being illegal on a federal level, because here in california it is legal currently to grow with permit for medicindinal purposes and even sell the Federal Law has been superceeded by the State Law by means of non-enforcement. A pick your battles sort of thing. This dispite the SCOTUS ruling in Gonzales v. Raich that said that the DEA could raid the Medical Pot Grows.

Turning this back to 10rnd Magazines, if the government were to ban greater than 10rnd magazines but the state had enshrined in its constitution an allowance, would it be the same as with the Medical Marijuanna movement (note that early on, it got messy but later on the Feds conceeded)? Firearms is such a hot-button topic that it makes me wonder. Libs like marijuanna but hate guns. The liberal mind set has been farily dominant on the federal level so perhaps it is logical they would conceed a point they support. From an enforcement position, it would be difficult to enforce for reason of the many magainzes already in circulation. It would however be easier to enforce because firearm sales are already an estabilised regulated system with all the system already in place. Making a change in a system that is already legal is actually easier than using LEAs to control an underground blackmarket. One is intrinsicly hard to control the other is already controled, when something is controled it is more easy to make adjustments to it.

Going further we run into how the government has managed to regulate even things given to the States by the Constitution, all rights and powers not mentioned herein are given to the States/People. The Federal Government only has its (in theory) Constitutionally enumerated rights. The big one they use to meddle is the Interstate Comerce Clause. A clause that is neccisary because the States don't actually like eachother much and had to be forced to play nice. The only way the Federal Government found that it could regulate a thing was when it could Tax a thing, the door for that Tax was through the ICC. This was used to regulate controled substances, such as now illicit drugs. First a tax, then with their foot in the door, they said.. well we can tax it therefor we can regulate it, therefor we can ban it. This exact method was actually used to regulate firearms. Preceeding that, the States decided this. I am too tired to cite cases even though I know I should be. SO please forgive that, though it makes my argument less persuasive. Right now the state of Montana is playing a game of chicken with the nuances of regulation through the ICC. I think it remains to be seen how that will play out. Other stats are playing chicken with the ICC and Obama Care, again, the results are pending. How both situations play out will decide I think for this Century.

Merle
01-29-2011, 9:36 PM
Y'all would think that this would apply: "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."

jtmkinsd
01-29-2011, 9:58 PM
Y'all would think that this would apply: "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."

It's all a mess...there are instances where the States can tell the Feds to go pound sand...but the Feds then say "NO FEDERAL MONEY FOR YOU!" like some ridiculous soup nazi.