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Wed Dec 19, 2012, 12:53 PM

How can State ban a Federal Law?

While I am referring to States (R) proposing legislation to ban the 1994 Gun Free Zones (specifically in schools) so teachers can be armed, this post is a legal question really. Supremacy Clause. If the state passes these bans, wouldn't it subject teachers and anyone else carrying on school grounds to Federal criminal prosecution?

Wouldn't this have to be repealed, or modified, by Congress, not by a state?

I know these are Republican legislators, and governors, who are proposing bills like this. Florida is one of the states, which also tried to amendment the state constitution to ban ACA. Illegal. Supremacy Clause.

Wouldn't these bans be illegal in the first place?





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Arrow 24 replies Author Time Post
Reply How can State ban a Federal Law? (Original post)
HockeyMom Dec 2012 OP
mysuzuki2 Dec 2012 #1
slackmaster Dec 2012 #2
marybourg Dec 2012 #3
Recursion Dec 2012 #4
kelly1mm Dec 2012 #5
jmg257 Dec 2012 #6
jody Dec 2012 #7
white_wolf Dec 2012 #10
jody Dec 2012 #12
white_wolf Dec 2012 #13
jody Dec 2012 #17
white_wolf Dec 2012 #21
jody Dec 2012 #22
white_wolf Dec 2012 #23
jody Dec 2012 #24
hack89 Dec 2012 #8
HockeyMom Dec 2012 #9
hack89 Dec 2012 #11
HockeyMom Dec 2012 #16
hack89 Dec 2012 #18
HockeyMom Dec 2012 #19
hack89 Dec 2012 #20
jmg257 Dec 2012 #14
JustABozoOnThisBus Dec 2012 #15

Response to HockeyMom (Original post)

Wed Dec 19, 2012, 12:58 PM

1. They can't. This issue was dealt with 150 years ago.

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Response to HockeyMom (Original post)

Wed Dec 19, 2012, 12:59 PM

2. They can't, no more than they can really legalize marijuana

 

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Response to HockeyMom (Original post)

Wed Dec 19, 2012, 12:59 PM

3. Yes.

But of course some publican legislatures thinks it's macho to defy the federal gov't. They gets their public'ty, don't matter nohow if it gets struck down later.

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Response to HockeyMom (Original post)

Wed Dec 19, 2012, 01:01 PM

4. Wasn't it overturned in Lopez? (nt)

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Response to HockeyMom (Original post)

Wed Dec 19, 2012, 01:02 PM

5. because it was rul;ed unconstitutional by the USSC in US v. Lopez. nt

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Response to HockeyMom (Original post)

Wed Dec 19, 2012, 01:03 PM

6. If you read the Gun Free Zone laws, you will see provisions that allow states to override the

federal law for various reasons. Clear as mud but the wiggle room is already there in many cases.

For instance in NY, where CCW is licensed, the rules change and it eventually comes down to the head school administrator.

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Response to HockeyMom (Original post)

Wed Dec 19, 2012, 01:26 PM

7. That's the issue Jefferson & Madison attacked in their KY & VA Resolutions. At the heart is whether

 

our Constitution is a compact between states or an instrument creating an all powerful central government.

The Tenth Amendment is a focus for the debate since it declares our central government is not all powerful
The Preamble to The Bill of Rights
Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
* * * * * * * * * * * * * * * *
Amendment X

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.

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Response to jody (Reply #7)

Wed Dec 19, 2012, 02:19 PM

10. The 10th amendment does not grant the power of nullification.

Justice Story, in his commentaries on the Constitution, pointed out that the 10th amendment merely reserves certain powers to the states. Powers that they had under the Articles of Confederation that were not granted to the federal government. The 10th can't grant them the power to overturn federal law because they did not have that power under the Articles since the federal government did not exist. That has been the consistent opinion of the Supreme Court since John Marshall's day.

His is part of those commentaries:


It is plain, therefore, that it could not have been the intention of the framers of this amendment to give it effect, as an abridgment of any of the powers granted under the constitution, whether they are express or implied, direct or incidental. Its sole design is to exclude any interpretation, by which other powers should be assumed beyond those, which are granted. All that are granted in the original instrument, whether express or implied, whether direct or incidental, are left in their original state. All powers not delegated, (not all powers not expressly delegated,) and not prohibited, are reserved.4 The attempts, then, which have been made from time to time, to force upon this language an abridging, or restrictive influence, are utterly unfounded in any just rules of interpreting the words,



Link: http://www.constitution.org/js/js_344.htm

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Response to white_wolf (Reply #10)

Wed Dec 19, 2012, 02:37 PM

12. I don't know anyone who claims the 10th grants nullification. Jefferson & Madison et al presented

 

their arguments and many states at various times have found themselves at odds with the federal government contending it exceeded its authority.

That is obvious with the disagreement over marijuana.

Many states have legalized medical marijuana and CO & WA legalizing recreational marijuana. Those state actions are incidents of states nullifying federal laws.

The topic has been the focus of several books and many articles and is still contentious.

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Response to jody (Reply #12)

Wed Dec 19, 2012, 02:42 PM

13. Your sig claims you support it.

There may be some debate, but legally it is all but done. The Supreme Court has consistently ruled that federal law overturns state law as long as the federal law is constitutional.

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Response to white_wolf (Reply #13)

Wed Dec 19, 2012, 03:04 PM

17. My sig does not say "The 10th amendment grants the power of nullification." You add the caveat "as

 

long as the federal law is constitutional" but that is precisely the point.

Who is to say a particular law is constitutional?

Clearly every state that has laws legalizing medical marijuana or recreational marijuana disagrees with the federal government.

SCOTUS, part of the federal government, says federal laws prohibiting marijuana are constitutional and many states say they aren't and have passed laws nullifying federal laws.

Apparently Obama, a constitutional scholar, agrees with those states and has ordered Holder to not enforce federal laws in CO and WA. His action puts the executive office in the position of supporting CO & WA's actions to nullify federal law.

Feel free to try to redefine Obama's order as not approving state nullification of federal marijuana laws but facts are facts.

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Response to jody (Reply #17)

Wed Dec 19, 2012, 03:18 PM

21. No, but your sig claims you support nullification.

Which is nothing more than a right-wing pipe dream. State's rights in general are right-wing dream. As for "who is to say a particular law is constitutional?" The courts are to say. From a legal and political standpoint that issue was decided over 200 years ago. The courts decide what is constitutional and what isn't.

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Response to white_wolf (Reply #21)

Wed Dec 19, 2012, 03:32 PM

22. Please read Jefferson & Madison on the issue. CO & WA nullified federal law on marijuana and that's

 

no pipe dream.

If you want to claim Jefferson & Madison are the creators of a "right-wing pipe dream", be my guest but they also created the Democratic Party of which I am a life long member.

IMO their arguments supporting their KY & VA Resolutions and the resolutions themselves are pure democracy protecting individuals and imposing state governments as protectors of their citizens against those who would impose an all-powerful federal government.

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Response to jody (Reply #22)

Wed Dec 19, 2012, 03:37 PM

23. Jefferson and Madison are wrong.

Legally they are wrong. Jefferson didn't even believe in the principle of Judicial Review. He was outraged over the decision in Marbury V. Madison. Jefferson and Madison got a lot right, but on those two issues they were dead wrong. State's rights is a right-wing pipe dream that has been used to justify everything from slavery to Jim Crow laws. A pity Lincoln didn't go further after the Civil War and push for the repeal of the 10th amendment. This country would be better off without it.

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Response to white_wolf (Reply #23)

Wed Dec 19, 2012, 03:41 PM

24. "Legally they are wrong" is your opinion shared by many but other scholars disagree. You and I

 

aren't going to resolve the question nor add anything to the arguments pro and con I've read over the years.

Thanks for the discussion and I'll see you on another topic.

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Response to HockeyMom (Original post)

Wed Dec 19, 2012, 01:32 PM

8. The law allows licensed gun owners to carry guns on school property

(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

(B) Subparagraph (A) does not apply to the possession of a firearmó


(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;

(v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;


http://en.wikipedia.org/wiki/Gun-Free_School_Zones_Act_of_1990

States have all the leeway they need.

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Response to hack89 (Reply #8)

Wed Dec 19, 2012, 02:10 PM

9. Two requirements you left out

It is be unloaded or in safe, locked container. That would mean it could not be carried on the person loaded.

This would mean that a parent, with a license by the state, could only bring it onto the property unloaded, or in the car.

This would apply to teachers as well unless SPECIFICALLY stated in their contracts. The school district would have to amend the teachers contracts to state they would be allowed, or required, to carry licensed loaded guns. If the school district did not do this, they could not carry loaded guns. They definitely have to word that contract very, very carefully, and you can be sure the School Districts and Unions would be reviewing the contracts. Potential for lawsuits.

Yes, loopholes, on both sides. There was legislation introduced in congress in 2011 to repeal the law. It is still in House Committee.

Maybe this law needed to tweeked again. If these laws aren't followed specifically, they are a federal crime and their gun license could be revoked. This was still passed under the Interstate Commerce Law, not 2nd Amendment.

Not an attorney, again, but fascinated by the law.



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Response to HockeyMom (Reply #9)

Wed Dec 19, 2012, 02:20 PM

11. You misread the law

You only have to meet one criteria not all.

By your logic, law enforcement officers acting in their official capacity would also have to put their weapons in locked box or unload it.

The Federal GFSZA prohibits unlicensed carry by making it a federal crime for an unlicensed individual to travel into a "Gun Free School Zone.


By extension and by the wording of the law, licensed individuals are not in violation of the GFSZA

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Response to hack89 (Reply #11)

Wed Dec 19, 2012, 02:59 PM

16. Lsw Enforcement?

Of course. I have seen armed law enformement on school grounds in 2 different states over 15 years. I didn't state that because it's a given. Who doesn't know THAT?

So you are saying that licensed teachers, under this Gun Free Zone, if they are LICENSED they can carry right NOW???? Oh, my. Why don't they then?

Maybe you should call the Naples, Florida (very anti-gun state), School District and tell them this because at Employee Orientation they told us we would be FIRED immediately, and prosecuted, if anyone brought a gun, license or not, onto school property. Florida allows people to keep a gun at work in their locked cars. Take your gun to work law they call it. I guess the schools missed that one too?

So what the hell is everyone talking about with Gun Free Zones? Why aren't they carrying NOW? ROFL

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Response to HockeyMom (Reply #16)

Wed Dec 19, 2012, 03:05 PM

18. Perhaps you should simply read the text of the law

because then you won't miss sections like this:

(4) Nothing in this subsection shall be construed as preempting or preventing a State or local government from enacting a statute establishing gun free school zones as provided in this subsection.


The law is designed to give maximum flexibility to the states. People are not carrying in schools because states and local governments have passed laws.

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Response to hack89 (Reply #18)

Wed Dec 19, 2012, 03:14 PM

19. Summary of Florida Gun Laws

http://crime.about.com/od/gunlawsbystate/p/gunlaws_fl.htm

This is a very brief summary. So many anti-gun laws in Florida? They keep giving more and more gun rights. There is legislation to ban Gun Free Zones. Licenses? WHAT licenses? You don't need a license to own a gun in Florida, only background check and waiting period.

This state is very extreme in the OTHER direction. Gun Free Zones is probably the last holdout of gun control here.

This is also why I asked the legal question of Federal versus State Laws.

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Response to HockeyMom (Reply #19)

Wed Dec 19, 2012, 03:18 PM

20. You need a permit to carry a handgun in public in Florida

very few states require licenses to own a gun - they all require one to carry in public.

But what does this have to do with the OP? I am just pointing out that as the Federal Law is written, states have the power to allow properly licensed teachers to carry guns in school.

That's all.

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Response to HockeyMom (Reply #9)

Wed Dec 19, 2012, 02:50 PM

14. "This was still passed under the Interstate Commerce Law, not 2nd Amendment."

Which in itself is kind of fascinating. Each of those rights enumerated in the Bill of Rights IS AN AMENDMENT, which means they over-ride everything that came before them in the Constitution.

The notion that the interstate commerce clause can be used in any way to infringe the right to bear arms, pretty much shows why the 2nd doesn't seem all that hard to circumvent.

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Response to HockeyMom (Original post)

Wed Dec 19, 2012, 02:57 PM

15. You mean like the prohibition against marijuana?

The Feds win. It's up to the Feds whether they enforce their law over the state non-law.

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