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Gun Rights Groups Plan State-By-State Revolt
CBSnews.com ^ | 16 June, 2009 | Declan McCullagh

Posted on 06/17/2009 5:30:24 AM PDT by marktwain

Gary Marbut isn't aiming to eliminate federal gun laws. He just wants to make them much less relevant.

Marbut, president of the Montana Shooting Sports Association, is one of the leaders of a new grassroots movement that's seeking to invoke the principle of states' rights -- including states' own authority to regulate firearms -- to thwart what he and his allies view as an increasingly overreaching federal government.

Politicians in Washington have "assumed power that many of us believe was not authorized under the limits of the Constitution," Marbut said in an interview with CBSNews.com last week.

This modern-day federalist revolt began with a Montana state law recently signed by Democratic Gov. Brian Schweitzer. It says that firearms, ammunition, and accessories manufactured entirely inside Montana are not subject to federal regulation, including background checks for buyers and record-keeping requirements for sellers. They would remain subject to state regulation.

The law, which does not permit the manufacture of certain large-caliber weapons or machine guns, takes effect on October 1, 2009.

Montana is hardly alone: the Tennessee legislature has approved a nearly-identical bill, and others are pending in Texas, Alaska, Minnesota, and South Carolina. About 10 other states, including Florida and Arizona, are reportedly considering similar measures, and a Colorado state legislator has publicly pledged to follow suit.

Tennessee Gov. Phil Bredesen, a Democrat, said on Friday that he would let the bill become law without his signature. (Bredesen vetoed one gun rights bill last month; the veto was overriden.)

While this federalism-inspired revolt has coalesced around gun rights, the broader goal is to dust off a section of the Bill of Rights that most Americans probably have paid scant attention to: the Tenth Amendment. It says that "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."

Read literally, the Tenth Amendment seems to suggest that the federal government's powers are limited only to what it has been "delegated," and the U.S. Supreme Court in 1918 confirmed that the amendment "carefully reserved" some authority "to the states." That view is echoed by statements made at the time the Constitution was adopted; New Hampshire explicitly said that states kept "all powers not expressly and particularly delegated" to the federal government.

But a series of subsequent court cases have, in the eyes of the federal judiciary, narrowed the Tenth Amendment so it now has little legal force.

The states "never gave the federal judiciary permission to erase the Tenth Amendment from the Constitution," Marbut said. "We need to reacquaint them with the Tenth Amendment."

That will be no trivial task. In a letter last week to the Tennessee House of Representatives, Gov. Bredesen said the state's version of the bill had "clear constitutional deficiencies," and even scholars who tend to favor gun rights believe it will meet a frosty reception if it ends up in court. (A spokesman for the Brady Campaign did not respond to an interview request.)

"I think they probably should succeed and I think they probably won't," Nelson Lund, a professor of constitutional law at George Mason University who specializes in the Second Amendment, said in an interview, referring to the backers of the gun rights bills. "The Supreme Court has strong precedents that would render this statute invalid."

Two doyens of gun rights advocacy agree. David Kopel of the free-market Independence Institute in Golden, Colo., says supporters would be "foolish" to expect to win. Randy Barnett, a Georgetown University law professor, believes the federalism laws won't "stand up to scrutiny" and has been suggesting ways Texas and Utah could amend their pending bills to survive judicial review.

Barnett should know: he was a lead attorney in Gonzales v. Raich, in which the U.S. Supreme Court rejected similar claims involving medical marijuana. Angel Raich is a seriously ill patient who wanted to grow her own medical marijuana, which state law permitted her to do. But a federal law that the Justice Department claimed was based on Congress' constitutional authority to "regulate commerce" made it illegal.

In a 6-3 opinion written in 2005, the court said that someone growing marijuana for her own use could have a "substantial effect on interstate commerce" and therefore was able to be regulated by the federal government. (In an impassioned dissent Justice Clarence Thomas said that: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the federal government is no longer one of limited and enumerated powers.")

One possibility is is that the composition of the U.S. Supreme Court has changed enough in the last four years to make a repeat of Gonzales v. Raich unlikely; on the other hand, some justices that might have been sympathetic to a sick mother using medical marijuana may not be as willing to embrace federalism in the form of liberalized gun regulations.

Another possibility is that proponents can argue -- as Marbut plans to do -- that this case is different. In Gonzales v. Raich, the Supreme Court noted "it is not feasible to distinguish" marijuana that's "manufactured and distributed interstate and controlled substances manufactured and distributed intrastate." The Montana law, by contrast, says that all state-made firearms "must have the words 'Made in Montana' clearly stamped on a central metallic part, such as the receiver or frame."

Marbut says he plans a test case in federal court that would use the example of a Montana resident without a federal firearms license seeking to manufacture a made-in-Montana gun. "We can get this clarified," he said. "I do not want any Montana citizen to face federal prison time."

Even though this case is a legal long shot, federalism fans say it's worth pursuing. "It's great PR for us," says Alan Gottlieb, founder of the Bellevue, Wash.-based Second Amendment Foundation. "It's keeping gun owners across the country excited and energized. It's a way of taking the offensive when normally gun owners are on the defensive."

The stakes are higher, of course, than just gun rights. If the judiciary somehow breathes new life into the Tenth Amendment, and curbs federal regulation of commerce taking place entirely within a state, that would let states bypass innumerable federal rules on everything from pharmaceuticals to children's toys.

"It's a response to federal overreaching," Gottlieb says. "A lot of people supporting this cause couldn't care less about firearms. They don't want the Obama administration dictating what states can and can't do. It's a pushback against federal authority in general."

In other words, if the state-by-state efforts to enact laws citing the Tenth Amendment prove to be legally futile, they might still raise the visibility of the topic of state autonomy. And a host of governors signing laws expressing their support for the Tenth Amendment might make the Obama administration view political realities a little differently.

Says Lund, the George Mason professor: "To the extent they're working to get people to think for themselves about the Constitution, that's a good thing and could lead to some good results."


TOPICS: Constitution/Conservatism; Culture/Society; Extended News; Front Page News; Government; News/Current Events
KEYWORDS: 10th; 10thamendment; banglist; billofrights; consitution; donttreadonme; fubo; independenceday; lping; secondamendment; shallnotbeinfringed; states; statesrights
The Raich case was an abomination. In it Justice Scalia directly contradicted the decision he supported in Lopez, just 10 years earlier. The Raich case essentially says that everything is subject to federal regulation, and that federalism is a dead issue.
1 posted on 06/17/2009 5:30:25 AM PDT by marktwain
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To: harpseal; TexasCowboy; nunya bidness; AAABEST; Travis McGee; Squantos; Shooter 2.5; wku man; SLB; ..
Click the Gadsden flag for pro-gun resources!
2 posted on 06/17/2009 5:33:16 AM PDT by Joe Brower (Sheep have three speeds: "graze", "stampede" and "cower".)
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To: marktwain
There are several good things about this situation.

First, the patriotic Americans who are acting to preserve their God-given rights have both the 2nd and the 10th Amendments clearly on their side.

Second, they have a strong incentive to stand up for their rights because obama poses the greatest danger to freedom in the history of our country.

Finally, by protecting this one fundamental right, they will emphasize the limits to federal power over individuals and strengthen all of our fundamental rights.

I'll be cheering for the patriots every moment, even though the People's Republic in which I live is beyond their reach.

3 posted on 06/17/2009 5:36:13 AM PDT by TurtleUp (So this is how liberty dies - to thunderous applause!)
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To: TurtleUp

I love this two-pronged approach.

It’s not a far leap from “your federal gun laws do not apply in our state” to “your federal X laws, being outside of the authorization of Article I, Section 8, do not apply in our state”.

Then, when the feds withhold highway funds or some such, the state escrows federal taxes collected within the state.


4 posted on 06/17/2009 5:39:17 AM PDT by MrB (Go Galt now, save Bowman for later)
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To: marktwain

“Ensure the general welfare” and “regulate interstate commerce” are two of the most misinterpreted elements of Constitutional law, IMO. These two have been used to extend the federal tentacles so deeply into the lives and wallets of Americans that it will be very hard to undo. But, undo it, we must.

The 0bamunists must be stopped, while we still have a country to save.


5 posted on 06/17/2009 5:40:43 AM PDT by PubliusMM (RKBA; a matter of fact, not opinion. 01-20-2013: Change we can look forward to.)
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To: marktwain
But a series of subsequent court cases have, in the eyes of the federal judiciary, narrowed the Tenth Amendment so it now has little legal force.

BS more legislation from the Bench.

6 posted on 06/17/2009 5:41:00 AM PDT by Texas Fossil (Once a Republic, Now a State, Still Texas)
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To: MrB
Then, when the feds withhold highway funds or some such, the state escrows federal taxes collected within the state.

Imagine: Constitutional government in the United States again. That would be wonderful!

7 posted on 06/17/2009 5:42:01 AM PDT by TurtleUp (So this is how liberty dies - to thunderous applause!)
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To: marktwain

Count me in.


8 posted on 06/17/2009 5:46:09 AM PDT by DustyMoment (FloriDUH - proud inventors of pregnant/hanging chads and judicide!!)
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To: TurtleUp

It would be the total end of collectivist schemes.

They wouldn’t be able to hold free individuals hostage under their system. Free individuals move to free states, away from collectivist states. Collectivist states collapse due to too many folks in the wagon and not enough pulling the wagon.

Leftists instinctively know this. That’s why their heads spin around and pea soup spews from their orifices when state sovereignty is mentioned.


9 posted on 06/17/2009 5:46:18 AM PDT by MrB (Go Galt now, save Bowman for later)
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To: marktwain
But a series of subsequent court cases have, in the eyes of the federal judiciary, narrowed the Tenth Amendment so it now has little legal force.

"The [tenth] amendment states but a truism that all is retained which has not been surrendered." United States v. Darby, 312 U.S. 100, 124 (1941)

-- The Raich case was an abomination. In it Justice Scalia directly contradicted the decision he supported in Lopez, just 10 years earlier. --

The entire federal court system, Scalia, Thomas, Roberts and Alito included, are hostile to the RKBA as envisioned by the founders. They prefer a RKBA where licensed people can keep guns and pen-knives at home, for self defense. Anything so long as THEIR power is not threatened.

The Heller case is an abomination too.

10 posted on 06/17/2009 5:47:59 AM PDT by Cboldt
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To: PubliusMM
The 0bamunists must be stopped, while we still have a country to save.

People have to stand up and tell it like it is. And then take action.

A Fourth of July Tea Party Speech

11 posted on 06/17/2009 5:53:50 AM PDT by Noumenon (As long as I have a rifle, I STILL have a vote...)
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To: marktwain

heh...

The people and state governments promoting and passing these laws MUST be willing to ignore the marxists in the judiciary and enforce them anyway.

How stupid is it to push this only to buckle when the entity you claim has usurped power says “you cant do this”???

Seriously, f-— ‘em... Its time to go “all in” and do something about this little problem we have with our federal government. Its time to do what we should have done a LONG time ago and make these bastards understand that the federal government has its place and the states are going to put it back there.


12 posted on 06/17/2009 5:56:21 AM PDT by myself6 (.)
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To: marktwain
Another possibility is that proponents can argue -- as Marbut plans to do -- that this case is different. In Gonzales v. Raich, the Supreme Court noted "it is not feasible to distinguish" marijuana that's "manufactured and distributed interstate and controlled substances manufactured and distributed intrastate." The Montana law, by contrast, says that all state-made firearms "must have the words 'Made in Montana' clearly stamped on a central metallic part, such as the receiver or frame."

That argument addresses only the "did this item travel in interstate commerce" point. Federal Court precedent allows the feds to assert force when an item can AFFECT interstate commerce.

There are FEDERAL bomb threat cases (kids closing the school) where the caller and recipient were in the same building. The feds "overrode" state laws criminalizing bomb threats by taking the defendant out of the state's control. The argument giving feds superiority over the states was that telephones CAN BE used in interstate fashion.

The feds are not going to give up turf. Period.

All this huffing and puffing by state legislatures is for show. Assuming a federal court takes the "test case," and the outcome is as dictated by Raich and other cases, what will the reaction of the state legislators be? "We tried, now re-elect us."

13 posted on 06/17/2009 6:05:48 AM PDT by Cboldt
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To: marktwain

Seems like it is set up for defeat from the get-go...It’s the attitude...

I would think that to go before the group that usurped your rights with your tail already between your legs is a recipe for failure...


14 posted on 06/17/2009 6:08:18 AM PDT by Iscool (I don't understand all that I know...)
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To: myself6
-- The people and state governments promoting and passing these laws MUST be willing to ignore the marxists in the judiciary and enforce them anyway. --

AFAIK, that has never happened.

-- Its time to do what we should have done a LONG time ago and make these bastards understand that the federal government has its place and the states are going to put it back there. --

ROTFL.

15 posted on 06/17/2009 6:08:43 AM PDT by Cboldt
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To: MrB

out
standing!


16 posted on 06/17/2009 6:10:45 AM PDT by woollyone (I believe God created me- you believe you're related to monkeys. Of course I laughed at you!)
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To: Iscool
-- I would think that to go before the group that usurped your rights with your tail already between your legs is a recipe for failure... --

Yep.

The state COULD, by use of force, prevent (or attempt to prevent) federal authorities from taking physical control/possession of a defendant. E.g., Texas could have stood between the feds and David Koresh. The federal offense charged there was a firearms possession offense, of EXACTLY the same kinds of firearm that Texas now claims it aims to PROTECT from federal control.

While believing that the proponents of these "states rights" measures are earnest, I can't help but laugh at their naivete. These legal measures are destined to fail, and basically "buy time" while a new generation of subjects, meek subjects, replaces the anti-government revolutionaries who believe in freedom.

17 posted on 06/17/2009 6:18:37 AM PDT by Cboldt
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To: Joe Brower

We should do what the left has been doing for years. Just sieze power, throw a few laws on the state books, and go on from there. If anyone objects, simply say, “It’s the law.”


18 posted on 06/17/2009 6:31:11 AM PDT by TheOldLady
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To: Abathar; Abcdefg; Abram; Abundy; akatel; albertp; AlexandriaDuke; Alexander Rubin; Allerious; ...
Politicians in Washington have "assumed power that many of us believe was not authorized under the limits of the Constitution," Marbut said ...

Damn skippy.



Libertarian ping! Click here to get added or here to be removed or post a message here!
(View past Libertarian pings here)
19 posted on 06/17/2009 7:22:54 AM PDT by bamahead (Few men desire liberty; most men wish only for a just master. -- Sallust)
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To: marktwain; bamahead; Travis McGee

Gary Marbut isn't aiming to eliminate federal gun laws.


Why not? Let's call them what they really are - federal infringements.

20 posted on 06/17/2009 7:36:29 AM PDT by EdReform (The right of the people to keep and bear Arms shall not be infringed *NRA*JPFO*SAF*GOA*SAS*CCRKBA)
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To: TheOldLady

That’s what the switch from natural law to common/case law did.

Instead of “that law is not authorized by the Constitution/Bible”,
it became “in the case of Nose v Ear, the judges ruled X, so that’s the law”.


21 posted on 06/17/2009 7:38:26 AM PDT by MrB (Go Galt now, save Bowman for later)
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To: marktwain

The entire US Constitution has been supplanted by brain-dead interpretations of the Commerce Clause and the Necessary and Proper Clause. We may as well get rid of the rest.

Patrick Henry (before the dementia kicked in, circa 1797) was proven correct by history - these two minor components of the US Constitution have served to nullify the remainder of the document. Hamilton (and Madison, for the most part) succeeded in birthing the tyrannical government they wished upon America (a nation led by an elected king, without any watery wenches back-story)


22 posted on 06/17/2009 7:42:09 AM PDT by M203M4 (A rainbow-excreting government-cheese-pie-eating unicorn in every pot.)
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To: marktwain

Good idea- but unfortunately, like the teaparties, noone in washington is goign to listen- Obama and hte dems are goign to do what they want regardless of what the people want or how it might hurt this coutnry.


23 posted on 06/17/2009 7:58:10 AM PDT by CottShop (Scientific belief does not constitute scientific evidence, nor does it convey scientific knowledge)
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To: marktwain
Read literally, the Tenth Amendment seems to suggest that the federal government's powers are limited only to what it has been "delegated,"

There's no other way to read the 10th.

L

24 posted on 06/17/2009 8:27:04 AM PDT by Lurker (The avalanche has begun. The pebbles no longer have a vote.)
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To: marktwain; 2A Patriot; 2nd amendment mama; 4everontheRight; 77Jimmy; A Strict Constructionist; ...
[T]he Tennessee legislature has approved a nearly-identical bill, and others are pending in Texas, Alaska, Minnesota, and South Carolina.

South Carolina
Ping

Send FReepmail to join or leave this list.

25 posted on 06/17/2009 8:37:12 AM PDT by upchuck (In memory of my Hero, my Dad. 08/13/17 - 05-31-96 I miss you every day.)
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To: MrB

So isn’t that how we switch back? The way they illegally made the switch? The only difference is that our laws will be constitutional.

They’ve been tyrannizing us with their brass-balled moles in our judiciary for decades while we follow the “rules” they hand down. It’s time we grew a pair ourselves and reinstated the Constitution. Does any Conservative believe our Constitution should not be followed? Fight fire with fire.


26 posted on 06/17/2009 8:47:15 AM PDT by TheOldLady
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To: marktwain
The stakes are higher, of course, than just gun rights. If the judiciary somehow breathes new life into the Tenth Amendment, and curbs federal regulation of commerce taking place entirely within a state, that would let states bypass innumerable federal rules on everything from pharmaceuticals to children's toys.
Exsqeeze my ignorance but I'm 99.995% sure the Rehnquist Court over turned a lot of laws just because of that. In effect they told Congress, "The Commerce Clause doesn't pertain to everything." (iirc that was in regards to Di-Fi's Gun Free School Zone Law they overturned).

And in this article Justice Thomas basically says the same thing: ""If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything."

27 posted on 06/17/2009 8:52:42 AM PDT by Condor51 (The difference between stupidity and genius is that genius has its limits)
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To: Condor51
-- In effect they told Congress, "The Commerce Clause doesn't pertain to everything." (iirc that was in regards to Di-Fi's Gun Free School Zone Law they overturned). --

In its Lopez decision, SCOTUS told Congress how to write a gun-free-school-zones act that would survive SCOTUS scrutiny. Congress followed the advice, and DiFi's Gun Free School Zone Law is currently on the books and enforceable.

SCOTUS is not at all friendly to the RKBA, nor is it at all friendly to diminution of federal power against the states, or against the individual.

28 posted on 06/17/2009 9:10:28 AM PDT by Cboldt
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To: marktwain

Sigh. :(


29 posted on 06/17/2009 9:40:11 AM PDT by Tzimisce (No thanks. We have enough government already. - The Tick)
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To: marktwain

The manufacture of machine guns and large caliber rifles is the whole gist of it. Going back to the first ones, the Jim Crow Laws were illegal. So were NFA ‘34, GCA ‘68, FOPA ‘86, AWB ‘94, I mean come on.

I would hope that at least Texas will go for the whole shebang.


30 posted on 06/17/2009 10:09:40 AM PDT by wastedyears (Rock and roll ain't worth the name if it don't make ya strut)
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To: marktwain
a federal law that the Justice Department claimed was based on Congress' constitutional authority to "regulate commerce" made it illegal.

To clarify the idiocy involved in Raich:

SCOTUS ruled that because Ms. Raich's activity decreased demand in an illegal interstate market, the feds could regulate her activity into oblivion. Got that? Because growing the stuff at home made her LESS likely to engage in ILLEGAL interstate commerce, the feds could stop her.

31 posted on 06/17/2009 10:41:16 AM PDT by ctdonath2 (John Galt was exiled.)
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To: Joe Brower

Be Ever Vigilant!


32 posted on 06/17/2009 12:27:05 PM PDT by blackie (Be Well~Be Armed~Be Safe~Molon Labe!)
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To: Iscool

I saw these folks on Glenn Beck and I don’t think they have a defeatist attitude, they have a plan and I pray it works!


33 posted on 06/17/2009 3:23:40 PM PDT by snippy_about_it (Looking for our Sam Adams)
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To: marktwain

Creative strategy! FYI: There is no NEED for the Supremes to consider 2nd Amendment “Incorporation”! FACT: The 2nd Amendment is SELF-incorporated to all government entities at every level. It is MORE ABSOLUTE than the 1st Amendment, or any of the others, because the wording forbids not only CONGRESS, but ANYONE from infringing on it. The 1st says “Congress shall make no law...”. The 2nd say “shall NOT be infringed!” Period! End of debate!


34 posted on 06/17/2009 9:23:47 PM PDT by 2harddrive (then)
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To: marktwain

Anyone Posted THIS?

In Border States, BATFE Asks: “May We See Your Guns?”

Friday, June 19, 2009

NRA-ILA has recently received several calls from NRA members in border states who have been visited or called by agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives. In some cases, agents have asked to enter these people’s homes, and requested serial numbers of all firearms the members possess.
In each case, the agents were making inquiries based on the number of firearms these NRA members had recently bought, and in some cases the agents said they were asking because the members had bought types of guns that are frequently recovered in Mexico.
This kind of questioning may or may not be part of a legitimate criminal investigation. For example, when BATFE traces a gun seized after use in a crime, manufacturers’ and dealers’ records will normally lead to the first retail buyer of that gun, and investigators will have to interview the buyer to find out how the gun ended up in criminal hands. But in other cases, the questioning may simply be based on information in dealers’ records, with agents trying to “profile” potentially suspicious purchases.
On the other hand, some of the agents have used heavy-handed tactics. One reportedly demanded that a gun owner return home early from a business trip, while another threatened to “report” an NRA member as “refusing to cooperate.” That kind of behavior is outrageous and unprofessional.
Whether agents act appropriately or not, concerned gun owners should remember that all constitutional protections apply. Answering questions in this type of investigation is generally an individual choice. Most importantly, there are only a few relatively rare exceptions to the general Fourth Amendment requirement that law enforcement officials need a warrant to enter a home without the residents’ consent. There is nothing wrong with politely, but firmly, asserting your rights.
If BATFE contacts you and you have any question about how to respond, you may want to consult a local attorney. NRA members may also call NRA-ILA’s Office of Legislative Counsel at (703) 267-1161 for further information. Whether contacting a local attorney or NRA, be sure to provide as many details as possible, including the date, time, and location, agent’s name, and specific questions asked.


35 posted on 06/20/2009 6:23:43 AM PDT by bravotu (Have a Nice Day !)
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To: marktwain

Yes. I was disgusted with the majority in Raich, and especially disappointed with Scalia. This is one of the reasons I think Thomas is the best justice on the court. He sticks to sound principles of limited government power without regard to whose ox is getting gored on a particular day.


36 posted on 06/25/2009 4:43:11 PM PDT by Still Thinking (If ignorance is bliss, liberals must be ecstatic!)
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To: Texas Fossil
But a series of subsequent court cases have, in the eyes of the federal judiciary, narrowed the Tenth Amendment so it now has little legal force.

Too bad. Let them go get their eyes checked if needed. Our liberty is not theirs to take.

37 posted on 06/25/2009 4:44:58 PM PDT by Still Thinking (If ignorance is bliss, liberals must be ecstatic!)
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To: Still Thinking

Correcto!


38 posted on 06/25/2009 5:36:21 PM PDT by Texas Fossil (Once a Republic, Now a State, Still Texas)
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