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Thread: Groundbreaking SCOTUS decision on the Tenth Amendment

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    Founder's Club Member Jim675's Avatar
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    Groundbreaking SCOTUS decision on the Tenth Amendment

    It seems to me that this is going to be a huge boon to 2A rights activists.

    "...individuals have standing to challenge federal laws as violations of state sovereignty under the 10th Amendment. This decision is as radical in the direction of liberty as the New Deal was radical in the direction of socialism..."

    http://arizonateaparty.ning.com/prof...ater-institute
    http://reason.com/blog/2011/06/20/su...lows-10th-amen

    There's already a thread in the CT forum but I thought this was deserving of a wider audience.

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    This is a good ruling that strengthens the vertical separation of power (long-forgotten in favor of touting horizontal separation as though it were the only one). However, let's don't get too excited. This ruling could be very narrow in effect.

    To gain standing, must one be convicted of a federal crime, in lieu of a State offense? This ruling says that such would result in standing to raise a 10A question that must be considered. But can a citizen get standing to sue under the 10A if they have not been arrested and charged with a federal crime. Suffering the arrest and trial is not an outcome I would seek just to gain standing!

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    Regular Member Superlite27's Avatar
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    I'll apologize ahead of time.....

    ...but, maybe someone well versed in lawyerspeak could put this in laymen's terms for those of us who do not desire splitting headaches due to brain duty cycle?

    What effect could this possibly have on:

    1) Gun Free School Zone crap
    2) Post offices
    3) NICS
    4) NFA items

    For instance, since NFA items are legal in my state, yet a FFL is required by Federal Law, what happens if someone were to get arrested for having a SBR, or a suppressor in their possession without one? They're legal in my state. It's the feds that require the FFL, correct? Therefore, doesn't this ruling affirm 10th Amendment protection for an individual ? How does this work?
    Last edited by Superlite27; 06-21-2011 at 03:41 PM.

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    1) The Court might rule that GFSZs are not a federal matter, that State laws, if they exist, should be enforced to the exclusion of the federal law.

    2) Post offices are federal property. Federal law should hold sway. As a separate matter, the SCOTUS could find that the CFR barring carry in post offices is unconstitutional on other than 10A grounds.

    3) NICS decisions are not criminal adjudications, so this ruling should have zero effect on NICS. (BTW, I was a temporary victim of NICS earlier today. Crummy system.)

    4) NFA items: If one breaks both a federal and a State law in regards to possessing or using certain types of firearms, the federal prosecution should give way to State prosecution. If one is found not guilty under State law, prosecution under federal law could probably still proceed without it being considered "double jeopardy."

    IANAL, but this is what I think will happen.
    Last edited by eye95; 06-21-2011 at 11:00 PM.

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    Will this bring the 'birther' folks back into action? They were denied standing as a 'citizen'. This ruling appears to contradict that Court decision...

    Quote Originally Posted by eye95 View Post
    This is a good ruling that strengthens the vertical separation of power (long-forgotten in favor of touting horizontal separation as though it were the only one). However, let's don't get too excited. This ruling could be very narrow in effect.

    To gain standing, must one be convicted of a federal crime, in lieu of a State offense? This ruling says that such would result in standing to raise a 10A question that must be considered. But can a citizen get standing to sue under the 10A if they have not been arrested and charged with a federal crime. Suffering the arrest and trial is not an outcome I would seek just to gain standing!

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    Quote Originally Posted by jmlefler View Post
    Will this bring the 'birther' folks back into action? They were denied standing as a 'citizen'. This ruling appears to contradict that Court decision...
    Not at all. Again, this ruling merely stated that the 10A must be considered when determining whether to charge someone for a crime under federal or, alternatively, State law. [distraction] This will have ZERO effect on the birther movement, which should be dropped; it's getting really silly now. [/distraction]

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by eye95 View Post
    Not at all. Again, this ruling merely stated that the 10A must be considered when determining whether to charge someone for a crime under federal or, alternatively, State law. [distraction] This will have ZERO effect on the birther movement, which should be dropped; it's getting really silly now. [/distraction]
    No, what this ruling says is that federal overreach can be challenged by the citizen as well as the sovereign (state).

    It should help to put the behemouth back in the box. The other shoe dropping would be a legal definition of interstate commerce that approximates interstate commerce.
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    My first thought when I saw this was Montana's (and several others now) law about guns made by and for Montana folk. BATFE's hand should be slapped for reaching in there.

    A fix of the Commerce Clause is beyond my dreams. You might as well say we'll stop attacking other countries, bailing out corporations, and piling up debt. Crazy talk!

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    Good catch, eye95. It'll be a fun read tonight. Thanks for spotting these items, and for your thoughtful insights - I appreciate them.

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    An example of the kind of distinction one might make...

    What's important to understand is that this is not a question of "vertical separation of power". Under the Constitution, the U.S. is on a par with each state government, and both are subordinate to the people. The concept of limited sovereignty relates to the segmentation of functions. I often tell people that it's like we took George III and chopped him up into chunks, and divided the chunks up between two kinds of entities.

    So, for example, the United States has pre-eminent and exhaustive power to regulate interstate commerce, so the U.S. can regulate the interstate sale of firearms and there's not a thing anyone else, state or individual, can do about it. On the other hand, the states have the pre-eminent power to regulate the ownership, possession, and use of firearms within their boundaries, to the exclusion of the United States. Since Sen. Lautenberg's "gun free school zones" amendment is essentially a regulation of possession, a state, under the Tenth Amendment, could pre-empt that statute. Same thing with possession of a firearm after having been convicted of a felony, being subject to a protective order, etc. Restrictions on the sale of a firearm to such persons are valid under the power to regulate interstate commerce, but not on the ability of such persons to own or possess firearms.
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    A bit OT, but if someone were to buy a gun from another private individual and both people were residents of the same state, could the feds regulate that under "interstate commerce?" The way I see it is that the initial sale of the gun might have been interstate commerce, but once the first person goes to sell his weapon to another individual from the same state, that particular sale is now intrastate commerce.

    It also makes me wonder if a FFL were receive a gun from a state resident (either by buying it from them or through a trade) and were to then sell that gun to another state resident would that not be intrastate commerce as well given that when person B receives the gun from person A it never crosses state lines, and once person B sells it to person C it still doesn't cross state lines.

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by Aknazer View Post
    A bit OT, but if someone were to buy a gun from another private individual and both people were residents of the same state, could the feds regulate that under "interstate commerce?" The way I see it is that the initial sale of the gun might have been interstate commerce, but once the first person goes to sell his weapon to another individual from the same state, that particular sale is now intrastate commerce.

    It also makes me wonder if a FFL were receive a gun from a state resident (either by buying it from them or through a trade) and were to then sell that gun to another state resident would that not be intrastate commerce as well given that when person B receives the gun from person A it never crosses state lines, and once person B sells it to person C it still doesn't cross state lines.
    As we've seen over the years, the Feds seem to be able to regulate whatever they want under the guise of interstate commerce. At least this ruling gives us individuals standing to use the 10A to challenge the constitutionallity of federal legislation and in that is a great win.

    I'm sure there are some people out there right now trying to find a way to challenge many of these laws without putting anyone in legal jeopardy. For instance, in a state like Vermont (which I don't believe issues carry permits?) one may be able to challenge the federal GFSZ on 10A grounds.

    Not to mention we could challenge based on the fact that you have to be a resident of the state that issued you the permit to be immune from the federal GFSZA. That would be a great challenge!
    Last edited by Brass Magnet; 06-27-2011 at 04:29 PM.
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    Quote Originally Posted by Aknazer View Post
    A bit OT, but if someone were to buy a gun from another private individual and both people were residents of the same state, could the feds regulate that under "interstate commerce?" The way I see it is that the initial sale of the gun might have been interstate commerce, but once the first person goes to sell his weapon to another individual from the same state, that particular sale is now intrastate commerce.

    It also makes me wonder if a FFL were receive a gun from a state resident (either by buying it from them or through a trade) and were to then sell that gun to another state resident would that not be intrastate commerce as well given that when person B receives the gun from person A it never crosses state lines, and once person B sells it to person C it still doesn't cross state lines.
    The feds seem to believe that, if a gun (or any in its lot) has ever moved (or even may move) in interstate commerce, they have carte blanche to regulate it. I believe the Framers intended that the feds exercise control only over the immediate transactions involving interstate movement of goods--and only to the extent that such regulation keeps products moving unimpeded by State laws and taxes.

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    Quote Originally Posted by Superlite27 View Post
    I'll apologize ahead of time.....

    ...but, maybe someone well versed in lawyerspeak could put this in laymen's terms for those of us who do not desire splitting headaches due to brain duty cycle?

    What effect could this possibly have on:

    1) Gun Free School Zone crap
    2) Post offices
    3) NICS
    4) NFA items

    For instance, since NFA items are legal in my state, yet a FFL is required by Federal Law, what happens if someone were to get arrested for having a SBR, or a suppressor in their possession without one? They're legal in my state. It's the feds that require the FFL, correct? Therefore, doesn't this ruling affirm 10th Amendment protection for an individual ? How does this work?
    ???

    Federal law does not require someone to hold an FFL to own NFA items such as fully-automatic firearms. At least, to own transferable fully-automatic firearms.

    Do you have a link to the text of Federal Law that gives you this impression?
    Last edited by wrightme; 06-29-2011 at 12:42 PM.
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