Guns: State Preemption

[JohnRich 4]

Note: "State Preemption" means that a state government reserves for itself the right to make gun laws throughout the state, and that local municipalities may not enact their own laws different from the state. This concept prevents having a patchwork of local ordinances, all different from one another, which entraps innocent citizens in violations of the law through their innocent daily travels.

Two news stories, two wins for law-abiding gun owners:

#1:

Court shoots down law limiting gun purchases

A state appeals court yesterday struck down a controversial Jersey City law seeking to limit the number of handguns people can buy.

Jersey City's law had sought to keep people from buying more than one handgun every 30 days. The unanimous appeals panel said Jersey City exceeded its authority and didn't have a right to enact such a local law because state law already regulates the sale of handguns.

"Jersey City, via the ordinance at issue, seeks to impose a local standard in a subject matter area that has been rather comprehensively addressed by the state," wrote Appellate Division Judge Howard Kestin, who was joined by Judges Edwin Stern and Christine Miniman.

The decision noted New Jersey allows "an individual to have multiple handgun permits so long as the permits are obtained in compliance with strict guidelines" in state law...

Source: Star Ledger

#2:

Court again blocks Philadelphia's try for gun-control law

A Commonwealth Court ruled yesterday against the city's right to pass its own gun-control ordinances...

The Commonwealth Court, in its ruling, concurred with a long line of opinions that said only the state has the power to regulate guns.

City Council passed seven gun-control laws last year, which, among other things, sought to limit handgun purchases to one per month and require the reporting of lost or stolen firearms. In deference to the state, those laws required approval by the state legislature before they could take effect.

The legislature refused to approve the laws, and in October 2007 Council members Darrell Clarke and Donna Miller went to Commonwealth Court to seek validation of the local gun laws.

It was that suit that the court rejected yesterday...

Source: Philly.com

[kallend 1,620]

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Note: "State Preemption" means that a state government reserves for itself the right to make gun laws throughout the state, and that local municipalities may not enact their own laws different from the state. This concept prevents having a patchwork of local ordinances, all different from one another, which entraps innocent citizens in violations of the law through their innocent daily travels.

Two news stories, two wins for law-abiding gun owners:

#1:

Court shoots down law limiting gun purchases

A state appeals court yesterday struck down a controversial Jersey City law seeking to limit the number of handguns people can buy.

Jersey City's law had sought to keep people from buying more than one handgun every 30 days. The unanimous appeals panel said Jersey City exceeded its authority and didn't have a right to enact such a local law because state law already regulates the sale of handguns.

"Jersey City, via the ordinance at issue, seeks to impose a local standard in a subject matter area that has been rather comprehensively addressed by the state," wrote Appellate Division Judge Howard Kestin, who was joined by Judges Edwin Stern and Christine Miniman.

The decision noted New Jersey allows "an individual to have multiple handgun permits so long as the permits are obtained in compliance with strict guidelines" in state law...

Source: Star Ledger

#2:

Court again blocks Philadelphia's try for gun-control law

A Commonwealth Court ruled yesterday against the city's right to pass its own gun-control ordinances...

The Commonwealth Court, in its ruling, concurred with a long line of opinions that said only the state has the power to regulate guns.

City Council passed seven gun-control laws last year, which, among other things, sought to limit handgun purchases to one per month and require the reporting of lost or stolen firearms. In deference to the state, those laws required approval by the state legislature before they could take effect.

The legislature refused to approve the laws, and in October 2007 Council members Darrell Clarke and Donna Miller went to Commonwealth Court to seek validation of the local gun laws.

It was that suit that the court rejected yesterday...

Source: Philly.com

I agree with you.

...

The only sure way to survive a canopy collision is not to have one.

[Nightingale 0]

Honestly, since gun ownership is protected by the 2nd amendment (therefore making it a national issue), I'd like to see gun laws be mostly uniform throughout the nation, not just throughout a state. It just seems silly that I can buy a regular capacity magazine for my handgun across the border in Arizona, but bringing it here to California, which only allows limited capacity magazines, is illegal. Why should a citizen of Arizona have more rights than I do on a constitutional issue?

[normiss 620]

Too many in the magazine would make it an assault weapon, silly!

[AWL71 0]

I agree. And if the state of GA deems that I am fit to carry a concealed weapon then EVERY other state should allow me to as well. The 4th amendment should apply here.

The most terrifying words in the English language are: I'm from the government and I'm here to help.

[downwardspiral 0]

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Honestly, since gun ownership is protected by the 2nd amendment (therefore making it a national issue), I'd like to see gun laws be mostly uniform throughout the nation, not just throughout a state. It just seems silly that I can buy a regular capacity magazine for my handgun across the border in Arizona, but bringing it here to California, which only allows limited capacity magazines, is illegal. Why should a citizen of Arizona have more rights than I do on a constitutional issue?

The restriction on high cap mags in California has absolutely no effect on criminals. What a ridiculously useless law.

www.FourWheelerHB.com

[JohnRich 4]

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Honestly, since gun ownership is protected by the 2nd amendment (therefore making it a national issue), I'd like to see gun laws be mostly uniform throughout the nation, not just throughout a state. It just seems silly that I can buy a regular capacity magazine for my handgun across the border in Arizona, but bringing it here to California, which only allows limited capacity magazines, is illegal. Why should a citizen of Arizona have more rights than I do on a constitutional issue?

You are correct. The same reasoning that makes "state preemption" a good idea to override municipalities, is also a good reason to make laws uniform nationwide. Your constitutional freedoms shouldn't be restricted just because some city council decides to do so, while everyone else living outside that city still has their freedoms.

Traveling from state to state with a gun can still get yourself in prison, if you're not careful. It would be nice if those state law differences didn't create those dangers. The only problem I have with this idea is that the Constitution doesn't grant the federal government the power to regulate guns - it's a matter for the states. However, that horse has already run way out of the barn, and he ain't coming back...

Imagine if you took this city-choice to the extreme, allowing every city to enact whatever laws they want, regardless of state or national laws to the contrary. It would be utter chaos. You could have muslim cities practicing sharia law, and so forth. If we're going to be unified as a nation, then we need to have uniform laws.

[DrewEckhardt 0]

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Traveling from state to state with a gun can still get yourself in prison, if you're not careful. It would be nice if those state law differences didn't create those dangers. The only problem I have with this idea is that the Constitution doesn't grant the federal government the power to regulate guns - it's a matter for the states.

Guns should only have been a matter for the states if there was no 2nd amendment and we had to rely on the 10th which leaves everything not specified to the states and people.

If gun regulation was unique among the bill of rights as something the states could regulate, the second amendment would have another phrase "except that the several states may pass laws as they see fit"

[Andy9o8 0]

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Honestly, since gun ownership is protected by the 2nd amendment (therefore making it a national issue), I'd like to see gun laws be mostly uniform throughout the nation, not just throughout a state. It just seems silly that I can buy a regular capacity magazine for my handgun across the border in Arizona, but bringing it here to California, which only allows limited capacity magazines, is illegal. Why should a citizen of Arizona have more rights than I do on a constitutional issue?

Because the only standard to the Federal Constitutionality of a state's gun laws is whether the state's law does or does not run afoul of the 2nd Amendment. As long as a state's gun laws are not deemed unconstitutional under the 2nd Amendment, the fact that that state's laws are more restrictive than another state's gun laws is, from a standpoint of Federal Constitutionality, immaterial.

[kelpdiver 2]

nonetheless, we don't have the same variation with other rights from state to state. Religion is consistent, speech (with a notable issue of 'community standards' for indecency), criminal proceedure, etc. But zealous, literal application of state laws can turn interstate travelers into felons without any intent on their part.

[Andy9o8 0]

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I agree. And if the state of GA deems that I am fit to carry a concealed weapon then EVERY other state should allow me to as well. The 4th amendment should apply here.

That's constitutionally incorrect. You're only thinking as far as the gun issue. The founding of this nation, and the US Constitution, are predicated on the principle of each state being able to enact its own laws, as long as they are not preempted by federal laws. And that means that states have laws that are inconsistent with the laws of other states all the time. But if one were to take your principl to its logical extreme, no state would be able to have any state law that was inconsistent with the law of any other state.

[downwardspiral 0]

And the it would be more likely the entire country would adopt California's gun laws rather than Texas or Florida....sadly

www.FourWheelerHB.com

[Andy9o8 0]

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nonetheless, we don't have the same variation with other rights from state to state. Religion is consistent, speech (with a notable issue of 'community standards' for indecency), criminal proceedure, etc. But zealous, literal application of state laws can turn interstate travelers into felons without any intent on their part.

Laws vary considerably from state to state all the time, for exaple re: drugs, alcohol, etc. Some states allow double-tandem tractor-trailers; other states ban them. Technically, if you drive your radar detector-equipped car from Maryland into Virginia, you've violated Virginia law.

[AWL71 0]

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I agree. And if the state of GA deems that I am fit to carry a concealed weapon then EVERY other state should allow me to as well. The 4th amendment should apply here.

That's constitutionally incorrect. You're only thinking as far as the gun issue. The founding of this nation, and the US Constitution, are predicated on the principle of each state being able to enact its own laws, as long as they are not preempted by federal laws. And that means that states have laws that are inconsistent with the laws of other states all the time. But if one were to take your principl to its logical extreme, no state would be able to have any state law that was inconsistent with the law of any other state.

Article IV, Section 1 of the United States Constitution, commonly known as the Full Faith and Credit Clause, addresses the duties that states within the United States have to respect the "public acts, records, and judicial rulings" of other states.

In my earlier post I said 4th amendment when I meant Article 4 above. I believe this "full faith and credit" should extend to concealed carry in all 50 states.

The most terrifying words in the English language are: I'm from the government and I'm here to help.

[Andy9o8 0]

Strictly from a standpoint of legal analysis, I think an argument can be made that there is no constitutional restriction to the Federal govt enacting nation-wide gun-regulation legislation. How? All Congress has to do is declare, in its legislative history, and in the preamble to the legislation, that regulation of firearms is necessary to the Federal govt's regulation of, for example, interstate commerce, or homeland security, etc.

In other words, if Congress wanted to pass sweeping Federal gun laws, it could do so (and then that power would probably be decided by the Supreme Court).

If you're a conservative, and you'd like to have a national gun-law standard, be careful what you wish for, because you just might get it. And the result, almost certainly being a compromise, would probably be a legal scheme that is more restrictive than the laws in states like Texas or Florida.

[Andy9o8 0]

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I agree. And if the state of GA deems that I am fit to carry a concealed weapon then EVERY other state should allow me to as well. The 4th amendment should apply here.

That's constitutionally incorrect. You're only thinking as far as the gun issue. The founding of this nation, and the US Constitution, are predicated on the principle of each state being able to enact its own laws, as long as they are not preempted by federal laws. And that means that states have laws that are inconsistent with the laws of other states all the time. But if one were to take your principl to its logical extreme, no state would be able to have any state law that was inconsistent with the law of any other state.

Article IV, Section 1 of the United States Constitution, commonly known as the Full Faith and Credit Clause, addresses the duties that states within the United States have to respect the "public acts, records, and judicial rulings" of other states.

In my earlier post I said 4th amendment when I meant Article 4 above. I believe this "full faith and credit" should extend to concealed carry in all 50 states.

You're misunderstanding the effect of the Full Faith and Credit clause. It means that my civil judgment against you in Wyoming can be enforced against you and your property in Ohio. It means a transfer of property, or the entering into a contract, or a divorce, or an adoption, etc. which occur in New York and are deemed legal under New York law must be regarded as legal and enforceable in Maine even if those events would not have originally been deemed legal under Maine law had they occurred in Maine.

However, a state still has the right to prohibit certain acts within its own borders, even if those acts are not prohibited by other states. But a state does NOT have the power to deem what is permitted or prohibited outside its own borders. For example, let's say Oregon allows Ed to possess 2 grams of pot for personal use, but Utah does not. If Ed gets prosecuted in Utah, under Utah state law, for criminal possession of 2 grams of pot, it will not be a defense that Ed obtained the pot in Oregon, where it was legal; once he entered Utah with the pot, he violated Utah law.

[Nightingale 0]

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Strictly from a standpoint of legal analysis, I think an argument can be made that there is no constitutional restriction to the Federal govt enacting nation-wide gun-regulation legislation. How? All Congress has to do is declare, in its legislative history, and in the preamble to the legislation, that regulation of firearms is necessary to the Federal govt's regulation of, for example, interstate commerce, or homeland security, etc.
.

That's like saying congress could enact nation-wide religious regulation by stating that the regulation of religious texts crossing state lines is necessary to control interstate commerce. The supreme court would call bullshit on both those arguments. The commerce clause doesn't trump the second amendment any more than it trumps the first amendment.

Using the commerce clause to regulate where people could take firearms was pretty much already shot down by the Supreme Court in US. v. Lopez. " In Lopez, the Court, in an opinion written by Chief Justice William H. Rehnquist, declared unconstitutional a 1990 congressional statute that had made it a federal crime to possess a gun on school property. The chief justice emphasized "first principles" and federalism and concluded that the possession of a gun in a local school zone was not an economic activity that might, through repetition elsewhere, "substantially affect" interstate commerce. Rather, he argued, the statute in question was an attempt by Congress to exercise a nonexistent national police power over a subject—criminal law—that was primarily of state and local concern." (case summary quoted from answers.com)

[Andy9o8 0]

The Commerce Clause, of course, does not trump any part of the Constutution. And while Lopez dealt largely with the Commerce Clause issue, that's because that was the issue preserved in the courts below. Congress, having been shot down on one particular statute whose supporters invoked the Commerce Clause to defend it, might try a different tack with another statute, and find a different legislative rationale for the statute, for example, national security. My point is, there's a notable grey area, and not a bright line, between what areas Congress may enact laws to regulate, and what powers are reserved exclusively to the states. One example of this off the top of my head would be the fairly wide network of Federal drug laws, which exist concurrently with each of the individual states' respective drug laws. Sometimes, of course, the issue ultimately hinges on the complexion of the Supreme Court at any given point in time. So a case in which state's rights are upheld in one year might very well be decided differently in a Supreme Court whose newest crop of justices are those appointed by President Obama.

[kelpdiver 2]

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nonetheless, we don't have the same variation with other rights from state to state. Religion is consistent, speech (with a notable issue of 'community standards' for indecency), criminal proceedure, etc. But zealous, literal application of state laws can turn interstate travelers into felons without any intent on their part.

Laws vary considerably from state to state all the time, for exaple re: drugs, alcohol, etc. Some states allow double-tandem tractor-trailers; other states ban them. Technically, if you drive your radar detector-equipped car from Maryland into Virginia, you've violated Virginia law.

We're talking about constitutional rights in the Bill of Rights, not pretty laws about radar detectors. Proper or not, the application of the 2nd varies far more from state to state than the others, though if you have counterexamples, they would contribute to the discussion.

[Andy9o8 0]

This is starting to get circular. I do understand your point. I've given some examples I can think of off the top of my head (maybe not the best repository, but it is what is). I'm not sure how one could test your proposition - how can one measure gradations of variance in states' laws from one subject to another?

[Andy9o8 0]

Bear something else in mind. Preemption has many faces, and it works both ways.
State-law preemption of municipal ordinances is only a good thing if it's not your ox that's getting gored. Take a state that has fairly restrictive gun laws; for example, New Jersey. Now let's suppose Camden, New Jersey passes an ordinance saying that any adult has the unrestricted right to carry a firearm on his person, as long as it's not to carry out a criminal purpose, anywhere within the borders of the City of Camden. The very same principle of preemption that was just used to strike down the Philadelphia ordinance would also be invoked to strike down the Camden ordinance: because the ordinance was preempted by state law.

[warpedskydiver 0]

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Strictly from a standpoint of legal analysis, I think an argument can be made that there is no constitutional restriction to the Federal govt enacting nation-wide gun-regulation legislation. How? All Congress has to do is declare, in its legislative history, and in the preamble to the legislation, that regulation of firearms is necessary to the Federal govt's regulation of, for example, interstate commerce, or homeland security, etc.
.

That's like saying congress could enact nation-wide religious regulation by stating that the regulation of religious texts crossing state lines is necessary to control interstate commerce. The supreme court would call bullshit on both those arguments. The commerce clause doesn't trump the second amendment any more than it trumps the first amendment.

Using the commerce clause to regulate where people could take firearms was pretty much already shot down by the Supreme Court in US. v. Lopez. " In Lopez, the Court, in an opinion written by Chief Justice William H. Rehnquist, declared unconstitutional a 1990 congressional statute that had made it a federal crime to possess a gun on school property. The chief justice emphasized "first principles" and federalism and concluded that the possession of a gun in a local school zone was not an economic activity that might, through repetition elsewhere, "substantially affect" interstate commerce. Rather, he argued, the statute in question was an attempt by Congress to exercise a nonexistent national police power over a subject—criminal law—that was primarily of state and local concern." (case summary quoted from answers.com)

Excellent point!


you are as smart as you are beautiful

[mnealtx 0]

While I see your point, I disagree - a concealed carry license would be a public record of the state issuing it, would it not? Think driver's licenses - I don't have to get a driver's license for each state I drive through if I go to see where I spent my childhood in Wisconsin.

A number of states already have reciprocal agreements to honor concealed carry licenses - this would just make that agreement a Federal one and not a state issue.

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[birdlike 0]

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And the it would be more likely the entire country would adopt California's gun laws rather than Texas or Florida....sadly

Even though it's obvious, since 40 states have passed shall-issue concealed carry, that the majority supports the right and not the restriction?

I have more confidence than that.

Spirits fly on dangerous missions
Imaginations on fire

[birdlike 0]

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Bear something else in mind. Preemption has many faces, and it works both ways.
State-law preemption of municipal ordinances is only a good thing if it's not your ox that's getting gored. Take a state that has fairly restrictive gun laws; for example, New Jersey. Now let's suppose Camden, New Jersey passes an ordinance saying that any adult has the unrestricted right to carry a firearm on his person, as long as it's not to carry out a criminal purpose, anywhere within the borders of the City of Camden. The very same principle of preemption that was just used to strike down the Philadelphia ordinance would also be invoked to strike down the Camden ordinance: because the ordinance was preempted by state law.

I am not certain that preemption works in reverse, and keeps a city or town from making things LESS stringent than state law makes them. Can you verify that it would? You are the one, after all, making the assertion.

Spirits fly on dangerous missions
Imaginations on fire