Will Michigan Nullify Federal Gun Laws?

[Andy]

Will Michigan Nullify Federal Gun Laws?

Posted on 12 August 2009

by Michael Boldin

Introduced in the Michigan House on August 11, 2009, the “Firearms Freedom Act” (HB-5232) seeks “to make certain findings regarding intrastate commerce; to prohibit federal regulation of firearms, firearms accessories, and ammunition involved purely in intrastate commerce in [the State of Michigan]; to provide for certain exceptions to federal regulation; and to establish certain manufacturing requirements.”

The bill was authored by Rep. Phillip Pavlov and currently has 44 co-sponsors.

While the HB5232’s title focuses on federal gun regulations, it has far more to do with the 10th Amendment’s limit on the power of the federal government. It specifically states:

The regulation of intrastate commerce is vested in the states under amendments IX and X of the constitution of the United States, particularly if not expressly preempted by federal law. Congress has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition.

Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.

Firearms Freedom Acts have already passed in both Montana and Tennessee, and have been introduced in a number of other states around the country. There’s been no lack of controversy surrounding them, either. The Tenth Amendment Center recently reported on the ATF’s position that such laws don’t matter:

The Federal Government, by way of the Bureau of Alcohol, Tobacco and Firearms expressed its own view of the Tenth Amendment this week when it issued an open letter to ‘all Tennessee Federal Firearms Licensees’ in which it denounced the opinion of Beavers and the Tennessee legislature. ATF assistant director Carson W. Carroll wrote that ‘Federal law supersedes the Act’, and thus the ATF considers it meaningless.

Constitutional historian Kevin R.C. Gutzman sees this as something far removed from the founders’ vision of constitutional government:

“Their view is that the states exist for the administrative convenience of the Federal Government, and so of course any conflict between state and federal policy must be resolved in favor of the latter.”

“This is another way of saying that the Tenth Amendment is not binding on the Federal Government. Of course, that amounts to saying that federal officials have decided to ignore the Constitution when it doesn’t suit them.”​

Advocates of these efforts say it doesn’t matter if the federal government disagrees, or even threatens states over funding, as they did recently with Oklahoma. Gary Marbut, author of the Montana Firearms Freedom Act, and founder of http://www.firearmsfreedomact.com/ took this position in a recent interview with the Tenth Amendment Center:

“We’re not depending on permission from federal judges to be able to effectuate our state-made guns bills. And, we’re working on other strategies to wrest essential and effective power from the federal government and put it where it belongs.“​

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

All across the country, activists and state-legislators are pressing for similar legislation, to nullify specific federal laws within their states.

A proposed Constitutional Amendment to effectively ban national health care will go to a vote in Arizona in 2010. Thirteen states now have some form of medical marijuana laws - in direct contravention to federal laws which state that the plant is illegal in all circumstances. And, massive state nullification of the 2005 Real ID Act has rendered the law void.

While many advocates concede that a federal court battle has a slim chance of success, they point to the successful nullification of the Real ID Act as a blueprint to resist various federal laws that they see as outside the scope of the Constitution.

Some say that each successful state-level resistance to federal programs will only embolden others to try the same – resulting in an eventual shift of power from the federal government to the States and the People themselves.

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

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[Abe Froman]

I can't wait for Oregon to hike up its skirt and take a stance.

 

[Cougfan2]

I can't wait for Oregon to hike up its skirt and take a stance.

Wishful thinking, but it will never happen with a crew like we have in Salem now.

It is fun however to think about Ginny Burdick stamping her little feet and holding her breath until she turned blue at the thought of pro-firearms legislation.

 

[torpedoman]

Don't be holding your breath the feds control the purse strings.Thats how they got the helmet law and the seat belt laws passed.

 

[CEF1959]

Wasn't there a situation a long time ago where some states unilaterally declared that federal law did not apply to them? Seems like it was in the 1860s. My recollection is that the federal government disagreed, resulting in some big fight. I forget how that turned out.

 

[el gringo loco]

CEF1959....I think I remember hearing something about that too.

I'm glad someone did the reality check on this thread.

 

[Jamie6.5]

These laws are meant to bring the issue of state's rights to a head before the SCOTUS. Personally I think it's a good thing,... If the states win.
So far we have Montana, Tennessee, with Utah and Michigan and I think Texas working on their versions. There won't be too many more until there is a formal challenge by the feds. Then it will hit the proverbial fan.

I have felt for years that despite what a president/senate may do about other things, SCOTUS appointments and their senate confirmation are the most important, for a variety of reasons.

So, if the issue is brought up before the court loses a conservative member (unlike losing Souter), we will probably be okay and these laws will stand, becoming precedent. If, for any reason the court shifts to an anti Constitution/10th amendment stance, they (the laws) will fail, and the mindset of those like Sotomayor/Ginsberg will prevail.

One of the many reasons to look hard at a candidate's record on Constitutional compliance! Not to mention the advisers he surround himself with. They all take the oath to protect and defend, but then there is the "living document" types,...

 

[Oro]

I'm glad someone did the reality check on this thread.

And apparently that wasn't you or CEF1959, before taking a dump in Andy's thread...

Montana, Texas, and Tennessee have already passed the same legislation. This isn't some fantasy-land issue. It's real, and it is already law in a few states and a growing trend.

 

[The B]

These laws are meant to bring the issue of state's rights to a head before the SCOTUS

and the more states that man-up and pass similar laws, the more likely the SCOTUS is to hear the case, and the more likely they are to support states' rights.

this is very real, and very relevant.

 

[armedandsafe]

Wasn't there a situation concerning the 55mph law where the feds withheld moneys and some state stopped sending that amount forward from its collections of fed taxes? Memory is fuzzy, nowadays.

Pops

 

[fingolfen]

I can't wait for Oregon to hike up its skirt and take a stance.

Wishful thinking, but it will never happen with a crew like we have in Salem now.

It is fun however to think about Ginny Burdick stamping her little feet and holding her breath until she turned blue at the thought of pro-firearms legislation.

Maybe she'd pass out... I would say that she could get brain damage from a lack of oxygen to the brain, but it's MUCH too late for that...

 

[CEF1959]

and the more states that man-up and pass similar laws, the more likely the SCOTUS is to hear the case, and the more likely they are to support states' rights.

this is very real, and very relevant.

Man up? Ahem. Bear with me while we discuss what it means to man up in this context.

As y'all undoubtedly know from your careful study of Article III of the US Constitution, to get the issue before any federal court, let alone the Supreme Court (which has discretion to hear or not hear whatever cases it wants), you have to have a live "case or controversy." That means that somebody has to intentionally violate federal firearms law and subject himself to a civil or criminal penalty, invoking the conflicting state law. Only then will his challenge to the statute be ripe. But I know you know this, being so involved in SCOTUS challenge issues.

So where are the brave champions of the Second Amendment and States' Rights lining up in all these states to intentionally subject themselves to felony convictions for violating federal law? If this has passed in multiple states already, the people in those states all look like pansies to me. Not one single person has manned up to do what's necessary to challenge the statute -- get himself arrested. 20 year old leftists get themselves arrested on principle to challenge laws from time to time. People supporting these statutes look like big gas bags by comparison.

If this were passed in Oregon, which one of you is volunteering to be busted by the BATF, have your home and business raided by tactically-equipped teams of federal agents, have your house and business searched while the wife and kids cry on the sofa and your boss looks on skeptically, get taken away in handcuffs, thrown in jail after a complete body cavity search, tried and convicted of a felony forever barring you from firearm possession, and sentenced to federal prison, where you will languish while your case makes its way slowly to the Supreme Court, where you will likely have your conviction upheld based on longstanding precedent?

Not one single person in a state that has passed this sort of statute has shown the cajones. How about you if it's passed in Oregon or Washington? Got the brass? If not, your talk of how relevant a statute like this is amounts to nothing.

In other words: These statutes are silly nothingness, going no where. But they make people feel good and garner votes for supporting politicians from voters naive enough to think any of it matters.

 

[gunnoob75]

Seems to me, doing it by force is better.

If everyone banded together, the federal government wouldn't be ABLE to come in and raid house, arrest, etc.

 

[fromotoc]

Man up? Ahem. Bear with me while we discuss what it means to man up in this context.

As y'all undoubtedly know from your careful study of Article III of the US Constitution, to get the issue before any federal court, let alone the Supreme Court (which has discretion to hear or not hear whatever cases it wants), you have to have a live "case or controversy." That means that somebody has to intentionally violate federal firearms law and subject himself to a civil or criminal penalty, invoking the conflicting state law. Only then will his challenge to the statute be ripe. But I know you know this, being so involved in SCOTUS challenge issues.

So where are the brave champions of the Second Amendment and States' Rights lining up in all these states to intentionally subject themselves to felony convictions for violating federal law? If this has passed in multiple states already, the people in those states all look like pansies to me. Not one single person has manned up to do what's necessary to challenge the statute -- get himself arrested. 20 year old leftists get themselves arrested on principle to challenge laws from time to time. People supporting these statutes look like big gas bags by comparison.

If this were passed in Oregon, which one of you is volunteering to be busted by the BATF, have your home and business raided by tactically-equipped teams of federal agents, have your house and business searched while the wife and kids cry on the sofa and your boss looks on skeptically, get taken away in handcuffs, thrown in jail after a complete body cavity search, tried and convicted of a felony forever barring you from firearm possession, and sentenced to federal prison, where you will languish while your case makes its way slowly to the Supreme Court, where you will likely have your conviction upheld based on longstanding precedent?

Not one single person in a state that has passed this sort of statute has shown the cajones. How about you if it's passed in Oregon or Washington? Got the brass? If not, your talk of how relevant a statute like this is amounts to nothing.

In other words: These statutes are silly nothingness, going no where. But they make people feel good and garner votes for supporting politicians from voters naive enough to think any of it matters.

So would you rather them not make these laws? Seems the point of making these laws is so they are laws, legal within the state. And to challenge federal power. So you can legally make yourself a suppressor in Montana or Michigan LEGALLY without having to get a tax stamp, etc.. as long as you make it in the state and it stays within the state. Doesn't seem like silly nothingness to me. Actually, it sounds GREAT! So you only have to fear federal agents of the BATFE and possibly other federal agencies, and I don't see too many of them walking around.

And I think it's safe to say that being averse to intentionally committing a felony doesn't bar you from talking about how relevant this is. It certainly didn't stop you.

 

[CEF1959]

So would you rather them not make these laws? Seems the point of making these laws is so they are laws, legal within the state. And to challenge federal power. So you can legally make yourself a suppressor in Montana or Michigan LEGALLY without having to get a tax stamp, etc.. as long as you make it in the state and it stays within the state. Doesn't seem like silly nothingness to me. Actually, it sounds GREAT! So you only have to fear federal agents of the BATFE and possibly other federal agencies, and I don't see too many of them walking around.

And I think it's safe to say that being averse to intentionally committing a felony doesn't bar you from talking about how relevant this is. It certainly didn't stop you.

Correct. I'm not in favor of pointless gestures made by people without the courage of their convictions to carry through. If the point is to get a states' rights challenge to the SCOTUS, it's not going to happen unless proponents have the brass to get themselves arrested. If they don't (and they don't), it's just another pointless gesture invented by politicians to sucker gullible mouth-breathers into thinking they are actually doing something useful.

The point is that unless someone is willing to get arrested, this kind of legislation IS irrelevant. So far the manly men of 3 states have gotten this passed and not ONE has had the guts to challenge the feds. Not a single one. So much for brave patriots of principle.

 

[fromotoc]

Thats just it- it IS useful. It's a basis for the reform to happen. And it's democracy happening. It's like medical marijuana. The people of the state chose it. The DEA was raiding dispensaries in California. They don't now, because of Obama not allowing it. And we are on the path to having marijuana eventually legalized, key word eventually. Before Obama was elected, he stated that he was pro-legalization. But he switched sides quickly. The point is that once one state does it, others usually follow suit. It's not just going to be automatically taken to the Supreme Court, no one here is saying that. But these are all steps towards reform. The reform wouldn't be possible if the small things didn't happen to get the ball rolling. As far as people intentionally breaking the law to challenge it, I don't think that's likely to happen. But it doesn't mean we can't discuss it. It's exciting. And those laws are definitely NOT pointless or meaningless. I just recognize it as a step in the right direction that wasn't taken yet, not an all out everything has changed type scenario.

 

[CEF1959]

People broke the law in California in support of their Medical Marijuana principles. People subjected themselves to arrest and jail. Still they lost, and many good people are still in jail for their convictions. But at least the stoners have brass. The gun rights people of Tennessee (and the other states where this legislation has passed) are pansies by comparison.

That's the difference here that I keep pointing out.

So Fromotoc: If this passes in Oregon, will you publicly declare yourself willing to test the federal authority by getting arrested on felony federal gun charges?

Anybody want a piece of that?

Who's ready to go to jail for the principle?

Anyone?

Bueller?

No? Then it's a silly waste of time, like a party of drunks declaring their living room an independent nation.

 

[Sawdust]

CEF,

So you think that just because no one has been arrested YET that they are ALL "pansies". Strong words. You seem to be missing the larger statement from the states. - We have the authority to regulate our ourselves - Below is a quote from a page that you might want to just look at (link provided).



While the resolution is not legally binding, supporters say it’s an important first step to “serve notice” to the federal government that it’s exercising powers not delegated to it by the People in the Constitution. They say that state-level nullification of federal laws is the next step, and efforts have already begun on this in a number of states.

<broken link removed>

<broken link removed>​

 

[gunnoob75]

If I go do it, will you stop slamming people?

I have no problem standing up for what I believe, no matter what.

But there will be no arrest and trial.

 

[Jamie6.5]

No one has to be arrested, or become the sacrificial lamb. If the BATF decides the situation creates an unenforcible situation they will step in, violating that state's sovereignty.
At that point it becomes the state vs the fed, as the BATF is an agency of the fed.

But following your scenario I can see a celebrity gun advocate like say the Nuge doing it. He has the $$$ to pay for the lawyers over and above what the NRA would provide.
Or it may be a savvy lawyer/gun owner that steps up. Who knows.
But I'll bet the fed will be the first to take action, with a sacrificial lamb or not.