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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #1  
Old 08-24-2013, 11:40 PM
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Default "9th Circuit rules against Montana law bucking federal gun rules"

HELENA — A federal appeals court on Friday ruled against state laws designed to buck federal gun rules — but advocates welcomed the court's decision for leaving open the possibility of an appeal to the U.S. Supreme Court.

The 9th U.S. Circuit Court of Appeals on Friday agreed with a lower court's decision against the 2009 Montana Firearms Freedom Act, which also has been adopted in other pro-gun states. The laws attempt to declare that federal firearms regulations don't apply to guns made and kept in that state.


More at:
http://missoulian.com/news/local/th-...9bb2963f4.html

Although this is a Montana case, since it is being argued in CA9, it will affect us too.
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Old 08-24-2013, 11:59 PM
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Thanks for the post Paladin.
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Old 08-25-2013, 12:20 AM
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I hope they rule the same way on pot! After all its the same situation. Failure to respect federal law.
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Old 08-25-2013, 12:56 AM
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I hope they rule the same way on pot! After all its the same situation. Failure to respect federal law.
Sir,

They already did. That was the whole point of Gonzales v. Raich.
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Old 08-25-2013, 2:40 AM
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Behold:this is how the concept of states' rights dies.

Next,the Feds will say CCW permits should be regulated by DC,since permit holders could ***potentially*** cross a state border. Did I miss the repeal of the 10th Amendment ?
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Old 08-25-2013, 3:11 AM
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Originally Posted by SilverTauron View Post
Behold:this is how the concept of states' rights dies.

Next,the Feds will say CCW permits should be regulated by DC,since permit holders could ***potentially*** cross a state border. Did I miss the repeal of the 10th Amendment ?
Thank you SilverTauron for mentioning that -- right on. Please visit the Tenth Amendment Center online for more info.

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Old 08-25-2013, 7:02 AM
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Sir,

They already did. That was the whole point of Gonzales v. Raich.
Yep and what are they doing about it, ignoring the ruling. When politics get in the way, the Justice System is a paper tiger.
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Old 08-25-2013, 9:59 AM
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Gonzales v. Raich, decided June 6, 2005.

Quote:
Originally Posted by Raich
Held: Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. Pp. 6—31.
The above, from the Raich syllabus was indicative of yet another expansion of federal power, via the Commerce Clause. Justice Stevens wrote the opinion of the majority, in which Kennedy, Souter, Ginsburg, and Breyer, joined. Justice Scalia wrote a separate, but concurring opinion.

Two dissents were written. Justice O'Conner wrote a dissent, in which C.J. Rehnquist and Thomas joined. Justice Thomas wrote a separate Dissent.

Remembering that this was about the medical use of marijuana, it posed a huge question on the extent of federal power and the Commerce Clause.

What is interesting is that on January 17, a decision about another case came out. Gonzales v. Oregon. This case was about using using regulated (by the CSA) drugs by physicians in assisted suicides. Here the US AG claimed the authority (via that same Commerce Clause) to deny the use of said drugs, in assisting a suicide by physicians.

Quote:
Originally Posted by Oregon
Held: The CSA does not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide under state law permitting the procedure. Pp. 8—28.
Justice Kennedy, wrote the opinion of the majority, in which Stevens, O’Connor, Souter, Ginsburg, and Breyer joined. Justice Scalia, filed a dissenting opinion, in which Roberts, and Thomas joined. Justice Thomas filed a dissenting opinion.

These two decisions are in discord with each other and shows the political disarray of the Court in an extreme manner. This, in many ways, is what scares so many about bringing gun cases to the Court.
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Old 08-25-2013, 10:39 AM
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Great, informative post Al. Thanks.
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  #10  
Old 08-25-2013, 10:58 AM
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This is a great case - getting rid of the Supremes jurisprudence regarding the commerce clause would be a huge step towards freedom, not only for gun rights.

More info here:

http://www.wnd.com/2013/08/9th-circu...oo-rifle-plan/
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Old 08-25-2013, 11:09 AM
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Originally Posted by ewarmour View Post
This is a great case - getting rid of the Supremes jurisprudence regarding the commerce clause would be a huge step towards freedom, not only for gun rights.

More info here:

http://www.wnd.com/2013/08/9th-circu...oo-rifle-plan/
That's the way I saw this. Seeing the way that the Supreme Court ruled on Obamacare and it being a tax and not allowed by the commerce clause, I think they left themselves room to get rid of the overreach of the commerce clause...at least that's what I hope.
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Old 08-25-2013, 11:11 AM
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...
Quote:
“The Supreme Court’s Commerce Clause jurisprudence has improvidently altered the very form of American government, reading out dual sovereignty and stripping from the states all independence of policy or action,” he said in his brief.

His said he knew the 9th Circuit couldn’t overturn Supreme Court precedent, and the judges agreed.

“Whether or not Marbut is correct in his critique of that jurisprudence, we are not free to disregard it. To his credit, Marbut acknowledges as much, recognizing that this court’s ‘hands are tied’ with respect to binding precedent.”
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Old 08-25-2013, 1:14 PM
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Originally Posted by SilverTauron View Post
Behold:this is how the concept of states' rights dies.

Next,the Feds will say CCW permits should be regulated by DC,since permit holders could ***potentially*** cross a state border. Did I miss the repeal of the 10th Amendment ?
You didn't miss a repeal of the 10th Amendment. Repealing the amendment would require considerable effort. The Gonzales case very effectively undermined the amendment to the point that repealing it isn't necessary.

Why do things the hard way?

I would encourage you to make your CCW argument a little differently. It really doesn't matter if CCW holders cross a state border. Many federal laws were written to incorporate elements of "crossing a state line" in order to clearly trigger the commerce clause. Under Gonzales, that's not necessary anymore. It's only necessary to show some minimal effect on commerce. I read one article where the author did a good job of showing how my morning shower affected interstate commerce (the power to heat the water came from an interstate power grid, water is limited commodity. By using the water, I've denied its use to others affecting commerce. See where this is going?)

You could easily show that CCW holders affect interstate commerce because the currency used to purchase the CCW weapons has been removed from circulation. You don't even gotta get near a state line.

Justice Thomas wrote a really outstanding dissent to Gonzales. It's worth a close read.
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Old 08-25-2013, 1:25 PM
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I find it disgusting that Obama and Holder can selectively enforce or not enforce federal laws at their whim but when a state challenges something that they believe to be unconstitutional then the libby 9th court jumps right in to say stop it.
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Old 08-25-2013, 2:22 PM
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Originally Posted by RickD427 View Post
You didn't miss a repeal of the 10th Amendment. Repealing the amendment would require considerable effort.
The decision to bring a 10th Amendment federal jurisdiction challenge via a marijuana case was an incredibly stupid one. First it ignored the statist-rightwing of the court's deeply ingrained prejudice against pot, and it ignored the statist-leftwing's unwillingness to trust the judgement of what they see as the great unwashed and befuddled masses that voted to legalize medical marijuana. To the Progressives on the court all wisdom can only flow from the very highest levels of government, and therefore the final say on everything and anything must reside in DC.

A states rights gun-freedom case has a better chance of being used by the conservatives on the court as a tool to undo some of the damage that Wickard v. Filburn did to the US Constitution, but it's far-far-far from a sure thing. In my layman's opinion it'll take an agriculture case such as a price support "takings" case as an intermediate step before the court will go that far out on a public relations limb and protect states rights to trump federal regulation of gun manufacturing.

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That's the way I saw this. Seeing the way that the Supreme Court ruled on Obamacare and it being a tax and not allowed by the commerce clause, I think they left themselves room to get rid of the overreach of the commerce clause...at least that's what I hope.
See above. There is a school of thought that Roberts would like to start dismantling the damage done by Wickard v Filburn and the decisions that have flowed from that travesty, but I'm not sure that he has the goodies to do it through a gun case.

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Originally Posted by lavey29 View Post
I find it disgusting that Obama and Holder can selectively enforce or not enforce federal laws at their whim but when a state challenges something that they believe to be unconstitutional then the libby 9th court jumps right in to say stop it.
It's likely going to take states ignoring the court and trucking federal agents directly to prisons to make the point that they are serious. Whether or not the governors have the goodies to just do it is the $64,000 question. IMO it's unlikely to happen unless a new Feinstein plan federal AWB somehow happens, but a new federal AWB just might be enough.
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Old 08-25-2013, 5:18 PM
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Originally Posted by sholling View Post


It's likely going to take states ignoring the court and trucking federal agents directly to prisons to make the point that they are serious.

Whether or not the governors have the goodies to just do it is the $64,000 question. IMO it's unlikely to happen unless a new Feinstein plan federal AWB somehow happens, but a new federal AWB just might be enough.
This is the exact, unspoken reason why Obama did not enact nationwide gun control via executive order.

Consider for a moment: the idea that Obama would retreat after Congress failed to enact the Toomey-Manchin bill on account of due process is akin to a scumbag disarming at the door of a school because of a "Gun Free Zone" sign. Our POTUS does not respect the law, as evidenced by his actions via Fast and Furious among others.

Rather, his reason for retreating on the issue-and his subsequent TV temper tantrum-is founded on the practical reality that even if he did enact a national AWB via Executive Order, most states would ignore it. I know the folks in the Black Hills would tell Mr. Sortero to go fly a kite-including the county Sheriff. He doesn't have enough Federal LEOs to pacify a Western United States populated by angry taxpayers with .50 caliber rifles.

As the old saying goes, if the idea is to ignore the laws we don't like, two can play that game.
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Old 08-25-2013, 6:35 PM
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Originally Posted by RickD427 View Post
It's only necessary to show some minimal effect on commerce.
I would have less of a problem with the rulings if this were all. But the rulings say the Commerce Clause rules even when minimal effect cannot be shown. The rulings make it clear the Commerce Clause rules if there is a possibility (in the opinion of some rich idiots in robes who wouldn't know an economics degree from their sex toys) of some minimal effect on such commerce.
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Old 08-25-2013, 8:51 PM
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I do not see how this does California gun owners any good. Somehow, I think the liberal California gun control fanatics might use the same argument to ignore our 2nd amendment right to bear arms, guaranteed through the 14th as applying to the states, as decided in McDonald v. Chicago. In fact, California will continue to ignore our right to bear arms when they pass SB374, SB47.... And so on. The unintended consequences of various court cases can wreck California's gun owners.
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Old 08-26-2013, 8:47 AM
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Originally Posted by fireguymfd View Post
I do not see how this does California gun owners any good. Somehow, I think the liberal California gun control fanatics might use the same argument to ignore our 2nd amendment right to bear arms, guaranteed through the 14th as applying to the states, as decided in McDonald v. Chicago. In fact, California will continue to ignore our right to bear arms when they pass SB374, SB47.... And so on. The unintended consequences of various court cases can wreck California's gun owners.
Yes, clearly. Strong protection of states' rights to regulate guns (and other things) would result in states becoming more different. Montana would let me buy and carry a nice new Glock 18, while California would be free to say that the 2A only applies to flintlocks. Or something.

That's all hypothetical. The court has already ruled in the Raich case, and Wickard before that, that the 10th Amendment is a dead letter.
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Old 08-26-2013, 11:12 AM
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Case: MT Shooting Sports Assn [Marbut] v. Holder
Issue: Montana Firearms Freedom Act (MFFA): Can State nullify Federal Regulation of locally produced firearms that never leave the State?

Trial Court: D. Mont.
Case No.: 9:09-cv-00147

Appellate Court: 9CA
Case No.: 10-36094

Status: Loss before 9CA panel; decide whether to petition en banc.
8/23/2013 - 9CA panel Opinion (Panel: TASHIMA, CLIFTON, BEA).
3/4/2013 - Oral Arguments (Audio).

Aforementioned case regarding applicability of interstate commerce clause to home production of weed for solely personal use: Gonzales v. Raich, 545 U.S. 1 (2005) (Wikipedia).
Similar issue with wheat: Wickard v. Filburn, 317 U.S. 111 (1942) (Wikipedia).

Links:
Firearms Freedom Act Case Tracker: http://firearmsfreedomact.com/montana-lawsuit-updates/

Last edited by fizux; 08-26-2013 at 3:07 PM..
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Old 08-26-2013, 11:32 AM
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I can't imagine any court having the courage to overturn Wickard, a case where a farmer wanted to grow wheat for use on his own farm and was told he couldn't, any wheat he grew has an impact on interstate commerce so he needed to do it through the government-controlled wheat market. Raich reaffirmed this in the context of growing and consing cannabis. The court relied on similar logic when upholding Obamacare. If any court overturned Wickard, it would throw into question a trillion dollars a year of Federal programs. It would basically dissolve the Federal government in its present form. That's the consequence of what Montana is asking for in this case. It's beyond imagination.

The only way I can see something like this happen is like the end-days of the USSR or the Ottoman empire, where the central power simply ran out of resources to enforce its positions. That's beyond the scope of the court, and is in the scope of economics and budgets.

As for why California gun owners would like to see a return of states rights, even though it would mean the end of gun ownership in California: we would be so happy to have truly 100% free states available that we would all move to Montana or some place like that. The reason some of us are not doing it now is because we know that, ultimately, we can lose at the Federal level and therefore moving elsewhere might be a short-term or medium-term fix at best.

(A return of state's rights would mean California would go full-socialist, with a total gun ban, totally open borders, single payer healthcare for everyone regardless of immigration status, every other dream like that. It would be effectively a South American style third-world country, with a hyper-rich white elite living in Palo Alto and Beverly Hills, a faux middle class of non-white state union workers, and a massive, violent non-white underclass. That's the Democratic vision of the future. Obviously, everyone on Calguns would probably abandon the state immediately.)
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Old 08-26-2013, 11:36 AM
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Old 08-26-2013, 12:22 PM
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(A return of state's rights would mean California would go full-socialist, with a total gun ban, totally open borders, single payer healthcare for everyone regardless of immigration status, every other dream like that. It would be effectively a South American style third-world country, with a hyper-rich white elite living in Palo Alto and Beverly Hills, a faux middle class of non-white state union workers, and a massive, violent non-white underclass. That's the Democratic vision of the future. Obviously, everyone on Calguns would probably abandon the state immediately.)
Except the point of a Constitutional Republic is to protect certain individual liberties as sacrosanct, regardless of the "balancing test" used by the state legislature. Californians like state's rights when it suits them, but scream and yell when a place like Texas wants to require a 1-page form before an abortion.
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Old 08-26-2013, 1:19 PM
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Was ANYONE really surprised by this?
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Old 08-26-2013, 1:29 PM
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Was ANYONE really surprised by this?
No one with any sort of basic legal education.
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Old 08-26-2013, 1:37 PM
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Behold:this is how the concept of states' rights dies.

Next,the Feds will say CCW permits should be regulated by DC,since permit holders could ***potentially*** cross a state border. Did I miss the repeal of the 10th Amendment ?
States' rights began being attacked almost immediately after the ratification of the Constitution, long before the Civil War. (Whether slavery was right or wrong was not the main issue. The concept of state powers vs. federal powers was the issue). The fight continues today. The underlying issues have changed.
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Old 08-26-2013, 1:42 PM
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so if gun rights advocates win this and SCOTUS says it's a state's rights issue, couldn't anti-gun states say the same thing and try to enact more gun control laws? I see this being a double edged sword....
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Old 08-26-2013, 1:56 PM
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so if gun rights advocates win this and SCOTUS says it's a state's rights issue, couldn't anti-gun states say the same thing and try to enact more gun control laws? I see this being a double edged sword....
Good point. However, we still have a little something. The McDonald case ruled that 2A is a fundamental right. Heller stated that some options are off the table. So the states are limited in what they can do. Where those limits are however...
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Old 08-26-2013, 8:03 PM
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... There is a school of thought that Roberts would like to start dismantling the damage done by Wickard v Filburn and the decisions that have flowed from that travesty, but I'm not sure that he has the goodies to do it through a gun case. ...
Let's hope this is the case. But perhaps Roberts while trying to maintain the reputation of SCOTUS by crossing ideological lines for ObamaCare, lost his big time gamble that a population angered over a tax would elect Romney, not Obama. He lost that gamble; hopefully we get something in return.
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Old 08-26-2013, 9:58 PM
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I do not see how this does California gun owners any good. Somehow, I think the liberal California gun control fanatics might use the same argument to ignore our 2nd amendment right to bear arms, guaranteed through the 14th as applying to the states, as decided in McDonald v. Chicago. In fact, California will continue to ignore our right to bear arms when they pass SB374, SB47.... And so on. The unintended consequences of various court cases can wreck California's gun owners.
Some here seem to misunderstand states rights and the US constitution. A reduction of federal power via a reinvigorated Commerce Cause and 10th Amendment would not mean a loss of constitutional rights. It simply limits the power of the federal government to regulate firearms while the 2nd and 14th Amendments limit the power of the states to infringe upon our rights - it's a win-win for us.
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Old 08-26-2013, 11:09 PM
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Originally Posted by sholling View Post
Some here seem to misunderstand states rights and the US constitution. A reduction of federal power via a reinvigorated Commerce Cause and 10th Amendment would not mean a loss of constitutional rights. It simply limits the power of the federal government to regulate firearms while the 2nd and 14th Amendments limit the power of the states to infringe upon our rights - it's a win-win for us.
That's very logical, and I understand it, but in practice, if Wickard / Raich were overturned, a trillion dollars in Federal programs would be challenged (successfully) and the blow to Federal power would be such that DC would be eviscerated and it would struggle to assert any authority. It would be total chaos. Would welfare survive? What about the DEA? Most of the Federal law enforcement system? All of that would be thrown into question. We would revert to a pre-1930s Federal government, something which is unimaginable to most Americans.

This type of restructuring of America is beyond the court's purview, and they will not touch it. As I said, this type of change only happens when it is forced by economic circumstances, as in the USSR and Ottoman Empire.
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Old 08-26-2013, 11:13 PM
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Montana should pass a law restricting federal LOE to 1 round magazines.
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Dude give it up. The election is was months ago. Hillary is toast. Her political career is over.

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Old 08-26-2013, 11:27 PM
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Montana should pass a law restricting federal LOE to 1 round magazines.
They are free to do it! Let them try to make an arrest or take any enforcement action, that will not go over well...
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Old 08-27-2013, 8:31 AM
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Yes but it would also lead to the total tax base fleeing to freedom and Bankruptcy of the all the local governments, even the hyper-rich would leave as they are never willing to bear the tax burden that the middle class puts up with California borrowing costs would go through the roof and it would become a federal wasteland.



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(A return of state's rights would mean California would go full-socialist, with a total gun ban, totally open borders, single payer healthcare for everyone regardless of immigration status, every other dream like that. It would be effectively a South American style third-world country, with a hyper-rich white elite living in Palo Alto and Beverly Hills, a faux middle class of non-white state union workers, and a massive, violent non-white underclass. That's the Democratic vision of the future. Obviously, everyone on Calguns would probably abandon the state immediately.)
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Old 08-27-2013, 9:25 AM
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That's very logical, and I understand it, but in practice, if Wickard / Raich were overturned, a trillion dollars in Federal programs would be challenged (successfully) and the blow to Federal power would be such that DC would be eviscerated and it would struggle to assert any authority. It would be total chaos. Would welfare survive? What about the DEA? Most of the Federal law enforcement system? All of that would be thrown into question. We would revert to a pre-1930s Federal government, something which is unimaginable to most Americans.
So you would prefer the Progressive nanny state and the continuing loss of freedom (including gun rights), prefer an all powerful fascistic state, to a federal government limited to its constitutionally limited role? Personally I don't see the dismantling of the welfare state as the end of civilization, in fact I see a federal government limited to the roles defined by the founding fathers as a good thing and a worthy goal. Any other course of action eventually leads to the US becoming little more than a new version of East Germany. One where an American Stasi monitors the communications of citizens, one where the right to keep an bear arms is constantly under attack and it's only a matter of time before there is a new federal AWB and handgun ban, one with a lawless Department of "Justice" that supports vote fraud. Preserving the current lawless system run amok can only lead to a failed and bankrupt government and a dissolution of the union. Embrace freedom, you might just find that you like it.

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This type of restructuring of America is beyond the court's purview,
Incorrect - it's what they get paid for. It's their job, and their only legitimate reason for drawing a paycheck. Their job is to enforce the US Constitution according to the plain public meaning of the actual words and phrases at the time of ratification. It is not their job to rubberstamp unconstitutional laws and fascism.
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Old 08-27-2013, 10:15 AM
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Originally Posted by sholling View Post
Incorrect - it's what they get paid for. It's their job, and their only legitimate reason for drawing a paycheck. Their job is to enforce the US Constitution according to the plain public meaning of the actual words and phrases at the time of ratification. It is not their job to rubberstamp unconstitutional laws and fascism.

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Old 08-27-2013, 1:59 PM
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I can't imagine any court having the courage to overturn Wickard, a case where a farmer wanted to grow wheat for use on his own farm and was told he couldn't, any wheat he grew has an impact on interstate commerce so he needed to do it through the government-controlled wheat market. Raich reaffirmed this in the context of growing and consing cannabis.

(A return of state's rights would mean California would go full-socialist, with a total gun ban, totally open borders, single payer healthcare for everyone regardless of immigration status, every other dream like that. It would be effectively a South American style third-world country, with a hyper-rich white elite living in Palo Alto and Beverly Hills, a faux middle class of non-white state union workers, and a massive, violent non-white underclass. That's the Democratic vision of the future. Obviously, everyone on Calguns would probably abandon the state immediately.)
Wickard and the Slaugherhouse cases did more to undermine states' rights than any other single factor, but ever since the Feds have had the power to tax income the writing has been on the wall. Power comes from where the money flows.

The ****ty thing about Wickard is that the majority opinion is based on a hypothetical that is *already* illegal. Same with the marijuana and Montana cases: interstate trafficking of them is clearly illegal and well within the rights of the Feds to regulate.

FWIW, nothing prevents CA from creating a single-payer health system now. And overturning Wickard wouldn't remove the incorporation of the 2nd against the states. I feel it would have limited direct effect except to prevent instituting policy based on really terrible reasoning.
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Old 08-29-2013, 4:08 AM
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Default Putting "Commerce Clause" back in it's place.

I'm not a lawyer, but in all honesty I don't see much if any difference between guns manufactured in the state and marijuana grown in a state.

The "Raich case" had 3 out of 5 Supreme court justices ruling the correct way and had Justice Scalia and Kennedy sided with the Constitution, they had an opportunity to restore the "Commerce Clause" back to original intent and they could give credit to the Marijuana folks for achieving a "major Conservative agenda".

Unfortunately Justice Scalia and Justice Kennedy had their own issues and maintaining the "Marijuana Prohbition" had a higher priority than restoring the proper balance of constitutional authority.

Like it or not, there will be another "MARIJUANA CASE" on "COMMERCE" and hopefully this time we can find 5 justices who will rule for the Constitution.

We dont' have control of this issue, the people who do have every intention of going back to the US Supreme court because they intend to fight until the Marijuana prohibition is over.

Some people are predicting that the Marijuana prohibition will be over by 2019

Public opinion has drastically shifted on "Medical Marijuana" and the behavior of all branches of government is a big **** you to the wishes of the voters.

Public opinion is shifting and numerous states will probably vote for outright legalization in the 2014/2016 cycles where voters can bypass the legislature and vote directly.

The Marijuana folks don't just cry about unfair laws, they ignore them and while there is the risk of criminal and civil penalties for doing so, they set an example of asserting one's rights against an out of control government.

We need to pay attention to where Pro Gun elected officials and candidates stand on marijuana related issues because we need candidates who are not wrong on other issues that voters in their respective issues do care about.

The Montana effort was a good one and perhaps the case may bear fruit at the US Supreme court. Hopefully it won't be another one of these, denied cert cases.


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Old 08-29-2013, 7:06 AM
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The commies will divide us from them...
When corruption of the Constitution is the standard in the highest US court, there will be either succession, or a US-wide overruling and most Democrats are defenseless...
http://www.naturalnews.com/039795_gu...stitution.html

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Old 08-29-2013, 8:35 AM
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Originally Posted by SilverTauron View Post
Behold:this is how the concept of states' rights dies.

Next,the Feds will say CCW permits should be regulated by DC,since permit holders could ***potentially*** cross a state border. Did I miss the repeal of the 10th Amendment ?
I'm increasingly in favor of an Article V convention to slap that down good and clear up a lot of other issues, as well. Don't agree with all of them but Levin's Liberty Amendments seem like a great start.
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