Missouri's "Second Amendment Preservation Act" Misery

This thread isn't really about the 2nd Amendment and guns, at least not directly.   My reason for this post is to highlight  the ignorance of politicians.

Missouri has passed a 2nd Amendment Preservation Act, and it is going to be vetoed by the Governor, and they are discussing if they have the votes to override the veto. I got the story from The Blaze, "We Love Our Guns", which indicates:

• The legislation would make it a misdemeanor for federal agents to attempt to enforce any federal gun regulations that "infringe on the people's right to keep and bear arms." The same criminal charges would apply to journalists who publish any identifying information about gun owners. The charge would be punishable by up to a year in jail and a $1,000 fine.
  
  Nixon said the bill infringes on the U.S. Constitution by giving precedence to state law over federal laws and by limiting the First Amendment rights of media.
  
  The legislation is one of the boldest measures yet in a recent national trend in which states are attempting to nullify federal laws. A recent Associated Press analysis found that about four-fifths of the states have enacted local laws that directly reject or ignore federal laws on gun control, marijuana use, health insurance requirements and identification standards for driver's licenses. Relatively few of those go so far as to threaten criminal charges against federal authorities.

So here we have two concerns  1) Federal Laws being supreme over state laws, and 2) freedom of the press. 

My problem is I believe both of these "concerns" are actually from gross misunderstandings of the Constitution.

Federal Laws Supreme: As I've pointed out at least once on this forum, under the Constitution the federal government has no authority to write laws applicable to the states.  Federal statutory authority only applies to 4 areas: 1)  the 10x10 mile area known as D.C. 2) forts, arsenals and military bases 3) Federal lands such as national parks, and 4) prospective future state territories.   

Beyond that, The current status of Supreme Court cases indicate that the federal is prohibited from infringing on the right to keep and bear arms, but thus far this right has not bee said to be strictly applicable to the states.  In fact the 2nd Amendment is the only portion of the Bill of Rights not applicable to the states.     

So HOW would this be a constitutional violation for them to prohibit any federal dictation of the limit of the right to keep and bear arms in the state?  The assertion doesn't even make sense.

What this shows is a subservience to federal authority, presuming a supreme federal power that is nowhere implied by even the Constitution's Supremacy Clause, and yet Missouri legislators are ignorant of the Constitution!

Freedom of the Press:   Nowhere does the 1st Amendment freedom of the Press involve any indication of the absolute exclusion of limitations on the Press's conduct. (Unlike the 2nd Amendment, which does indicate that right shall not be infringed in any way.)

In fact all rights have limitations upon their exercise when their use causes harm to others.  Freedom of speech prohibits defamation, slander and libel. And the Press really have no legitimate business in posting personal information about what individual owns what guns, other than to cause harm to those individuals.


This is two counts of ignorance against Missouri legislators.

As an after thought, I wish whomever wrote the Blaze article, by Jason Howerton,  had the sense to add an editorial comments indicating these considerations. As it stands now,  the article is only promoting a false understanding of the Constitution. (This is another example of why I don't trust Beck's hands-on, applied consideration of the Constitution, which is slim to none generally anyway.)

At what point did the Federal Govt go from protector of States Rights, to usurper of said Rights?
It's a rhetorical question, but with Governors like this one?

Quote from: Solar on July 28, 2013, 06:21:37 AM
At what point did the Federal Govt go from protector of States Rights, to usurper of said Rights?
It's a rhetorical question, but with Governors like this one?

Recognizing that's a rhetorical question, my rhetorical answer would be "the Civil War".

;)

Quote from: Trip on July 28, 2013, 06:28:29 AM
Recognizing that's a rhetorical question, my rhetorical answer would be "the Civil War".

;)

I'm ready!

The entire constitution is written around state's laws overriding the feds, except in a handful of areas.

Apparently this no longer matters to any branch of the US government.  All that matters is socialism and the nanny state growing.

They laugh at the fact that the constitution dictates finding for the states in 9 out of ten disputes.

They just rule that the feds win in 10 out of 10, and don't care that you know it's unconstitutional.

One tea party focus should be on restoring the senate to it's constitutional role of representing states' laws and rights.

Wouldn't that be shocking.....senators fighting against federal intrusion in their states.

What a joke that the senate is now the biggest culprit in denying state independence, law, and rights.

Incidentally, for those interested, here's a quick summation of

Supreme Court 2nd Amendment decisions:

In 2008, District of Columbia v Heller, the first  time SCOTUS itself actually interpreted the 2nd amendment since 1939, the Court ruled that the Second Amendment confers an individual  right to possess a firearm for traditionally lawful purposes such as  self-defense.  It also ruled that two District of Columbia provisions,  one that banned handguns <yet still allowing other firearms> and one that required lawful firearms in the  home to be disassembled or trigger-locked, violate this right.   

The Heller decision does not support some person's contention requiring the full denial of the right to both keep or bear all arms for it to be "infringed".  Quite obviously the banning of handguns, or the use of trigger locks/disassembly  is infringing on the right to keep and bear arms.

The Heller Case was preceded by Parker v.  District of Columbia (2007), in which the Supreme Court considered amicus briefs by 67 friends of the court, and resolved by a 5-4 decision that the Second Amendment confers an individual  right to keep and bear arms, and that the D.C. provisions banning  handguns and requiring firearms in the home disassembled or locked  violate this right. In the majority opinion authored by Scalia, the Court found that the operable phrase of the 2nd Amendment, "the right of the people to keep and bear Arms, shall not be infringed", guarantees an individual right to possess and carry weapons, and that the preceding inoperable, subordinate phrase regarding "well regulated militia", does not limit that clause, in contrast to 19th century decisions <to follow>.

The minority dissent in Parker took two forms.  Justice Stevens went with the 19th century interpretation regarding the militia, seen below, and Justice Breyers indicted that the District of Columbia offered permissible forms of regulation, which seemed to me to be based on personal inclination, and not any direct interpretation of the Constitution.

19th century Supreme Court cases indicated that the 2nd Amendment applied only to the federal government, and not to the states, again not using your fabricated definition.  In United States v.  Cruikshank (1875) the Court stated that the Second Amendment  "has no other effect than to  restrict the powers of the national  government"; in Presser v. Illinois (1886) the Court reiterated that the Second  Amendment "is a  limitation only upon the power of Congress and the  National government, and not  upon that of the States." Although most of  the rights in the Bill of Rights  have been selectively incorporated into the rights guaranteed by the Fourteenth Amendment   and thus cannot be impaired by state governments, the Second Amendment has not been recognized as such by the SCOTUS.

In United States v. Miller (1939), Jack  Miller and another were indicted for transporting an unregistered  sawed-off shotgun across  state lines in violation of the National Firearms Act  of 1934.  Miller  argued, among other  things, that the section of the National Firearms  Act regulating the interstate  transport of certain firearms violated  the Second Amendment.  The U.S. District Court for the Western  District  of Arkansas agreed with Miller.  When appealed, the  Supreme Court reversed the  district court, and did so by reading  the Second Amendment in conjunction with the Militia Clause in Article 1, Section  8    of the Constitution, and concluded that "n the absence of any  evidence  tending to show that possession or use of a [sawed-off]  shotgun . . . has some  reasonable relationship to the preservation or  efficiency of a well regulated  militia, we cannot say that the Second  Amendment guarantees the right to keep  and bear such an instrument." 

This 20th century Miller decision conspicuously ignores the fact that the National Firearms Act of 1934 is in fact federal legislation, and is in conflict with preceding 19th century court precedent. Also the decision  conflicts with the clear the clear positive mandate in the 2nd Amendment, as well as the fact that the A1S8 reference only applies to the organized militia.  Individual citizens are part of the "unorganized militia" and there is no authority expressed, or implied, to regulate those individual citizens rights to both keep and bear arms.

The Heller case leaves one area conspicuously undecided,  whether the Second Amendment restricts and even prohibits State from directly regulation of firearms,  and what standard to apply to other laws which less-directly  impact that Second Amendment right.  Conspicuously the entirety of the Bill of Rights is now deemed to be applicable to the several States, with the exception of the 2nd Amendment (but no reason is given why this might be so).

Quote from: Trip on July 28, 2013, 06:11:04 AM
Federal Laws Supreme: As I've pointed out at least once on this forum, under the Constitution the federal government has no authority to write laws applicable to the states.  Federal statutory authority only applies to 4 areas: 1)  the 10x10 mile area known as D.C. 2) forts, arsenals and military bases 3) Federal lands such as national parks, and 4) prospective future state territories.   

You're reading that wrong.

There's something like 20 enumerated powers of the federal government.

One of those is what you're referring to, Fed's have absolute law-making authority in certain geographic areas.  They can regulate almost anything there.

All the other enumerated powers are not limited to a geographic area.  One of which is the power to regulate interstate commerce.  That's been widely interpreted and used to write all kinds of laws. 

Article 6 is what makes those laws under the commerce clause the supreme law of the land and makes them override state laws.

Quote from: mhughes on July 29, 2013, 07:37:59 AM
You're reading that wrong.

There's something like 20 enumerated powers of the federal government.

One of those is what you're referring to, Fed's have absolute law-making authority in certain geographic areas.  They can regulate almost anything there.

All the other enumerated powers are not limited to a geographic area.  One of which is the power to regulate interstate commerce.  That's been widely interpreted and used to write all kinds of laws. 

Article 6 is what makes those laws under the commerce clause the supreme law of the land and makes them override state laws.

You're making up things wrong.

The Supremacy clause DOES NOT make the laws, the supreme llaws of the land, but declares the Constitution itself to be the Supreme law of the land, with all other laws and treaties having to be "pursuant" to that Constitution.  Nowhere does the federal government have ANY authority whatsoever to make laws applicable to the States themselves.

Nowhere in the enumerated powers in Article 1, Section 8 is there any authority to write laws that are applicable to the several States.   No they cannot make regulate anything anywhere. 

The powers specifically given to the federal government are those that the states could not carry out themselves, but necessary for a central authority to regulate act for the states collectively, and these include treaties, piracy,  coining currency, raising an army,  and the power of naturalization - which never included immigration, as the federal government has no territory in which to immigrate into.

There is no plenary power to "regulate" interstate commerce, at least not as we use the term "regulate" today,  not to ply it with regulations, but rather to regularize the commerce between the states so that there would be no imbalance and cause for warfare between the states.  In fact it was the federal government's violation of this obligation to regularize trade between the States which was the primary cause of the Civil War.

Commerce Clause:

A hint of the meaning and intent of the Article 1 Section 8 Commerce clause can be divined by from Article 1, Section 9, Prohibitions to Congress:

• "No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another."
  

Here the obvious intent is to prohibit one state, or Congress itself,  from legislating any benefit to any particular state, thereby  prejudicially giving benefit to any state. The only indication of "duties" is on entry to the country, with the further application of duties from interstate traffic being prohibited.

This is further supported by Article 1, Section 10, "Limits on States":

• No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
  

This not only prohibits any states from any imposts or duties without the Consent of Congress, but removes any profit incentive from t he practice by having any proceeds from these the property of the U.S. Treasury. Thus, there is further evidence that the ability to "regulate" commerce is intended to prohibit any imbalance between the states - to "make regular".

The historical record establishes that the word "commerce", as used by the Founders during the framing and ratification process , as the exchange of goods between between point A and B. In effect Congress was given the power in question to insure free trade among the States --- an uninhibited transportation of goods among the states and prevent one state from taxing another state's goods as they passed through its borders.. or "make the trade regular".

Gonzales v. Raich, 545 U.S. 1 (2005) hinted at the original intent of the Commerce Clause in its decision:

• The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible.

The real problem resides not just with the state legislation, but with the expansion of federal legislation, when it really had no authority to apply that legislation under the "interstate commerce" clause.

Prior to the "first century" the U.S. Congress was already abusing its obligation to "make trade regular" between the states by introducing a series of tariffs and embargoes over more than 20 years that were prejudicial against agriculture, and preferential to budding industry, particularly textiles, giving rise to the Civil War. But the real abuse of the Interstate Commerce clause began after the Civil War, with the Interstate Commerce Act (1887), and then gross abuse later under the Progressive's expansion with the New Deal (1936) under Roosevelt.

Madison clarified the original intent of Interstate Commerce in Federalist #42:

• "A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility."
  

Once again we see the intent of the Interstate Commerce clause being to "make regular" the commerce between the states, so as to prohibit hostility between them, even preventing a cause for war. As previously noted, this was not the case with the federal government's own actions, which breached its constitutional limitations and obligations, and actually led to the Civil War, and has increased hostilities even now.

What we see after the first century of this country, is the Congress and Court abusing federal authority and distorting the clear intent of the Constitution, by only focusing on the limited phrase "regulate interstate commerce" and ignoring the entirety of the Constitution which establishes the relevancy of that phrase --- just as you yourself are doing.

By the terms of the Constitution, the federal government has no authority to write laws applicable to within the state territories themselves, with these federal laws being limited to U.S. territory in only 4 areas:  1) The 10x10 square mile area we know today as D.C., 2) forts, arsenals and bases, 3) federal lands such as national parks, and 4) territories that are future prospective states.

So your argument isn't really about the supremacy clause at all.  It's that nearly all federal laws are not constitutional.

Quote from: mhughes on July 30, 2013, 10:27:25 AM
So your argument isn't really about the supremacy clause at all.  It's that nearly all federal laws are not constitutional.

That's the basic 10th Amendment absolutist position, yes. Individual states more closely follow the input from their citizenry. We can actually find the pols who irritate us. That makes them more circumspect, or at least that's the optimistic theory.