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Magistrate Recommends Dismissing States’ Gun Suit
AP ^ | September 1, 2010 | Matt Gouras

Posted on 09/04/2010 9:14:26 AM PDT by marktwain

Helena, Mont. (AP) - A federal magistrate is recommending dismissal of a lawsuit filed by eight states seeking freedom from federal gun laws.

The recommendation now goes to the federal judge hearing the case.

The states argue they should decide which rules would control the sale and purchase of guns and paraphernalia made inside their borders.

The federal magistrate sided Wednesday with the U.S. Department of Justice and gun control advocates who say the courts have already decided that Congress can set standards on such items as guns through its power to regulate interstate commerce.

The states in the lawsuit are Montana, Utah, Alabama, Idaho, South Carolina, South Dakota, Wyoming and West Virginia.

(Excerpt) Read more at cnsnews.com ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Front Page News; Government; News/Current Events
KEYWORDS: 10thamendment; banglist; commerceclause; constitution; democrats; dojisajoke; gun; guncontrol; liberalfascism; shallnotbeinfringed; statesrights
The States explicity say that the guns have not moved in interstate commerce.
1 posted on 09/04/2010 9:14:29 AM PDT by marktwain
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To: marktwain
"The States explicity say that the guns have not moved in interstate commerce."

But the power hungry Left says that's precisely why it comes under the control of Congress as interstate commerce, Because it doesn't move in interstate commerce.

2 posted on 09/04/2010 9:19:19 AM PDT by rockinqsranch (Dems, Libs, Socialists, Call 'em what you will. They ALL have fairies livin' in their trees.)
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To: marktwain
Another biased judge who thinks that people don't understand the difference between intrastate and interstate, or the Constitution and the King. The interstate commerce clause is just that, not the loophole that allows the Federal government to overrule States on every issue and make any law they like.
3 posted on 09/04/2010 9:26:31 AM PDT by Rashputin (Obama is already insane and sequestered on golf courses or vacations so you won't know it)
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To: marktwain
Since the second amendment was passed after the constitution was ratified, the second amendment supersedes the commerce clause and thereby limits Congress’ powers under the Commerce clause.

“.... Shall not be abridged”

4 posted on 09/04/2010 9:29:26 AM PDT by P-Marlowe (LPFOKETT GAHCOEEP-w/o*)
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To: P-Marlowe
Since the second amendment was passed after the constitution was ratified, the second amendment supersedes the commerce clause and thereby limits Congress’ powers under the Commerce clause.

In other words, the last is first. A similar interpretation of later superseding earlier can be found in the Koran. As Mohammed got older and crazier, and became a much more successful conqueror, his utterings grew more violent and uncompromising. So, the later sayings ("kill the infidel") supersede the earlier, more moderate ones.

I'm just noting the coincidence, although I agree that the commerce clause has little to do with, and certainly shouldn't be twisted to dominate, Second Amendment concerns.

5 posted on 09/04/2010 10:41:03 AM PDT by Pearls Before Swine
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To: harpseal; TexasCowboy; nunya bidness; AAABEST; Travis McGee; Squantos; wku man; SLB; ...
These actions are not surprising -- how else would one expect Leviathan to behave?

Click the Gadsden flag for pro-gun resources!

6 posted on 09/04/2010 11:08:18 AM PDT by Joe Brower (Sheep have three speeds: "graze", "stampede" and "cower".)
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To: Pearls Before Swine

The Bill of Rights was enacted to specifically limit all of the enumerated powers of Congress in the body of the Constitution. So the Commerce clause cannot be used to in any way abridge the right of the people to keep and bear arms.


7 posted on 09/04/2010 11:09:51 AM PDT by P-Marlowe (LPFOKETT GAHCOEEP-w/o*)
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To: Joe Brower

The next step is nullification.


8 posted on 09/04/2010 11:22:40 AM PDT by ZULU (God, guts and guns made America great,)
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To: marktwain

“The federal magistrate sided Wednesday with the U.S. Department of Justice and gun control advocates who say the courts have already decided that Congress can set standards on such items as guns through its ABUSE OF THE MISAPPLIED power to regulate interstate commerce”.

CORRECTED!


9 posted on 09/04/2010 12:42:38 PM PDT by Loyal Sedition
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To: marktwain; ForGod'sSake; bamahead

Federalism/10A ping!


10 posted on 09/04/2010 3:28:39 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: marktwain

Although if any state is going to feel bound when a federal court rules against them in a case against the feds remains to be seen.


11 posted on 09/04/2010 3:30:00 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: marktwain

this is important for felons who have completed prison time and parole and used to be a 5 year wait time period and then could apply for ATF waiver...this was a provision in the 68GCA which first prohibited felons federally

GOP defunded this 16 years ago and it was up to states which created a conflict

state says ok...but feds get you and it costs instant 3 years and up with no good time to speak of


12 posted on 09/04/2010 4:26:37 PM PDT by wardaddy (effed up times..)
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To: 17th Miss Regt; 2001convSVT; 2ndDivisionVet; A_Former_Democrat; A_Tradition_Continues; ...
Thanks Still Thinking!

I'm not altogether clear how a "federal magistrate" fits into this picture and I'm too lazy to find out. In any case, just another reason why the states should consider NOT going to the feral government with a complaint against -- the feral government. An update on a Firearms Freedom Act action.

One branch of the feral government favoring another branch at the expense of the states and the people. Imagine that!





Please ~ping~ me to articles relating to the 10th Amendment/States Rights so I can engage the pinger.

I've stopped monitoring threads and unilaterally adding names to the ping list, so if you want on or off the list just say so.

Additional Resources:

Tenth Amendment Chronicles Thread
Tenth Amendment Center
Firearms Freedom Act
Health Care Nullification

CLICK HERE TO FIND YOUR STATE REPRESENTATIVES

13 posted on 09/04/2010 7:34:39 PM PDT by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
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To: ZULU

You’re right..

After that,,,Lock and Load.


14 posted on 09/04/2010 7:38:15 PM PDT by silentreignofheroes
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To: wardaddy

Actually, I think ATF honors the state reversal, as long as it’s across the board. AK I think it is reverses on long arms but still prohibits handguns, and ATF says if the state still prohibits ANYTHING, the feds prohibit EVERYTHING, so people end up falling through this crack.


15 posted on 09/04/2010 7:45:17 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: marktwain
Some additional grist for the mill I had forgotten about from HERE:

~snip~

[author of the FFA]Marbut claims even if they do not make it to the Supreme Court, there is a backup plan in place, the Sheriff's First Bill.

"Sheriff's First would make it a Montana state crime, for a federal officer to arrest, search, or seize, in Montana, without the advanced written consent of the elected county sheriff," says Marbut.

16 posted on 09/04/2010 7:45:53 PM PDT by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
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To: marktwain

I think it’s time to sue all the clowns.
You know, especially the ones with those stupid shoes and big noses.

We’re scheduled for court next week.

The clown-martial folks will be there to keep peace and order.

Presiding judge Bozo has promised us a fair trial.
And we are absolute ignoramuses enough to believe him!


17 posted on 09/04/2010 7:46:30 PM PDT by djf (They ain't "immigrants". They're "CRIMMIGRANTS"!!!!)
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To: marktwain

It doesn’t matter.. Congress can regulate guns for “the general welfare”. Yeah, that’s the ticket.

Those sick scumbags have absolutely no use for the US Constitution.


18 posted on 09/04/2010 7:56:03 PM PDT by Lancey Howard
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To: Still Thinking

that is news to me...i would be very certain given the drac mandatory sentencing in place

here’s a legal reference;

http://www.hwylaw.com/lawyer-attorney-1492102.html

i already knew all the black powder and antique weapon exclusions


19 posted on 09/04/2010 9:30:59 PM PDT by wardaddy (effed up times..)
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To: wardaddy
Right. That reference confirms what I thought. The federal gotcha when the state restoration is less than total is described in (5) and (6)

2. Federal law contains an explicit statutory exception which provides that the federal criminal offense of firearms possession is inapplicable to persons who have had their civil rights restored on the predicate state felony conviction.

3. Whether a person has had his or her civil rights restored for a state conviction is determined by state and NOT federal law.

4. However, (this "however" is the first of two elusive parts of the analysis) federal law requires that for federal law to recognize the state restoration of rights, the state restoration must include the right to vote, the right to seek and hold public office, and the right to serve on a jury.

5. If the state restoration of rights includes the three aforementioned rights the federal law contains an additional federal "unless" clause which looks to state law to see if the state imposes any restriction on the right of the convicted felon to possess a weapon (e.g., some states such as North Carolina prohibit the subsequent possession of a handgun but would allow the individual to possess a rifle or shotgun).

6. If there is some added firearms restriction under state law then (and here is the second elusive part of the analysis) the federal "unless" clause is triggered to make the possession of any firearms unlawful under federal law notwithstanding the state's restoration of civil rights. Thus, if the state says that a restored-rights felon may possess a shotgun but not a pistol, the state has allowed the felon to possess the shotgun under state law BUT, because the state has created some firearm restriction for a convicted felon, this means that the federal prohibition applies with full force notwithstanding a state restoration of rights. Thus, in the shotgun-pistol example, that person could be convicted under federal law for possession of the shotgun even though it would be perfectly lawful under state law.


20 posted on 09/04/2010 9:58:56 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: Pearls Before Swine; P-Marlowe

LIBs claim that under the Commerce clause, they can pass anything. WRONG! WRONG! WRONG! It is impossible for one clause to override an entire document.

Amendments are additions to the Constitution,so in a sense the last is first. Comparing the US Constitution to the Koran is like comparing a diamond to a piece of glass or gold to mica. Equivocation is best left to LIBs, the better for us to attack them.

On the subject of a federal judge ruling against the states, what should we expect? They have ruled consistently against the Constitution, sometimes overturned by the Supreme Court. States would be better off ignoring federal law.


21 posted on 09/05/2010 2:07:57 AM PDT by NTHockey (Rules of engagement #1: Take no prisoners)
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To: marktwain

http://www.mtstandard.com/news/national/article_21631b8a-cf51-561e-9312-f0fdd443409d.html


22 posted on 09/05/2010 4:21:25 AM PDT by Bushbacker1 (I miss President Bush greatly! Palin in 2012! 2012 - The End Of An Error! (Oathkeeper))
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To: Pearls Before Swine
In other words, the last is first. A similar interpretation of later superseding earlier can be found in the Koran. As Mohammed got older and crazier, and became a much more successful conqueror, his utterings grew more violent and uncompromising. So, the later sayings ("kill the infidel") supersede the earlier, more moderate ones

According to the Constitution itself, amendments modify prior language. There is no vagary or middle ground, there is only choosing to correctly read the Constitution or not.

23 posted on 09/05/2010 5:05:29 AM PDT by Brass Lamp
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To: NTHockey
Amendments are additions to the Constitution,so in a sense the last is first

They're even called "amendments" for God's sake, so even if the body of the Constitution said "we can infringe on the RKBA all we want" or even "the RKBA SHALL be infringed" 2A would still govern. How would the lefties like it if we analyzed the 16th, 17th, 19th or 26th for conformity with the rest of the document?

24 posted on 09/05/2010 9:29:57 AM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: NTHockey
On the subject of a federal judge ruling against the states, what should we expect? They have ruled consistently against the Constitution, sometimes overturned by the Supreme Court. States would be better off ignoring federal law.

Precisely. What if you were suing an individual and the judge and jury turned out to be your opponents employees? And then when the decision comes, it's "Our boss is right -- you lose"? Would you feel bound by that?

25 posted on 09/05/2010 9:33:13 AM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: marktwain

Interesting. There’s a couple states party to the suit that haven’t passed a FFA as far as I (or firearmsfreedomact.com) know (AL and SC), and a couple that have (AZ and AK) that aren’t plaintiffs.


26 posted on 09/05/2010 9:37:36 AM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: Still Thinking
I find it interesting that AP does not name the federal magistrate.

The federal magistrate sided Wednesday with the U.S. Department of Justice and gun control advocates who say the courts have already decided that Congress can set standards on such items as guns through its power to regulate interstate commerce.

Big brother says you serfs just go back home and forget about these ideas of freedom and intrastate commerce.

27 posted on 09/05/2010 11:00:05 AM PDT by TYVets
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To: Still Thinking; Joe Brower; Squantos; Travis McGee
that person could be convicted under federal law for possession of the shotgun even though it would be perfectly lawful under state law.

federal statutes trump state on this as exhibited in the clause I highlighted.

states can grant all the gun rights to felons they like (and I think they should in qualified cases ) but the feds don't do that and if they catch you they will charge you federally and you will do serious time in a high level facility it being a gun crime (no FCC camp at Eglin) and a more lenient state statute will be no excuse

i don't think the states challenging the federal jurisdiction on gun laws will prevail in courts..it will be hard for the USSC to say federal constitutional protections void municipal gun restrictions and then turn around and say state leniency gun laws trump federal law...at least to me

it would sure turn things upside down if the states win...some good and some not so good...depends on where you live

loosening federal restrictions period would be the most effective means..a tall order admittedly

28 posted on 09/05/2010 11:48:23 AM PDT by wardaddy (Shane.)
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To: wardaddy
federal statutes trump state on this as exhibited in the clause I highlighted.

Read it again. That scenario occurs in a scenario where the state has restored his right to have a shotgun but not a handgun, which is the specific issue I mentioned in my original post. The state restoration has to be "across the board" for the ATF to honor it, as I said in the first place. Your reference says the same thing I am.

29 posted on 09/05/2010 12:25:41 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: wardaddy
i don't think the states challenging the federal jurisdiction on gun laws will prevail in courts..it will be hard for the USSC to say federal constitutional protections void municipal gun restrictions and then turn around and say state leniency gun laws trump federal law...at least to me

The distinction is that the states are saying this leniency applies only to weapons not traded in interstate commerce. For the moment they're not challenging the power of the feds to regulate weapons at all, per se.

30 posted on 09/05/2010 12:27:33 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: TYVets

“Suck it” — serfs


31 posted on 09/05/2010 12:45:26 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: Still Thinking

you are correct and that by the way is a change from when I looked into this some time ago (2001 or so)

and I know this law firm personally

thanks for the heads up


32 posted on 09/05/2010 4:34:36 PM PDT by wardaddy (Shane.)
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To: wardaddy

No problem. I didn’t realize it wasn’t always the way it is now, or at least since they stopped processing federal petitions. Thanks yourself for the heads up on that one.


33 posted on 09/05/2010 4:42:40 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: Bushbacker1
Marbut of MSSA: "Truly we need to overturn a half century of Commerce Clause precedent and only the Supreme Court can do that."

In a nutshell. And hopefully one day still within most of our lifetimes, it will happen.

34 posted on 09/05/2010 7:22:46 PM PDT by Clinging Bitterly (We need to limit political office holders to two terms. One in office, and one in prison.)
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To: TYVets
I find it interesting that AP does not name the federal magistrate.

There's a reason for that. I am not a lawyer but I have had dealings in US District Court as a plaintiff in a civil suit against the Federal government. As it was explained to me by my lawyer at the time, a magistrate cannot hear a case. There's a little trick they do when a judge is first assigned to a case. They call both parties in before a magistrate. This meeting is held in private in the magistrates chambers and he (the magistrate) does his damnedest to get the parties to settle before the time and expense of a trial. During that meeting he offers his candid, and hence off the record, opinion on the case. In my case the magistrate told the US Attorney that there was no way he could see the judge ruling in their favor. They settled then and there. I suspect that this was a similar meeting. They need to hang tough and get before a judge.

35 posted on 09/06/2010 12:23:41 PM PDT by atomic_dog
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To: marktwain

The fact that NRA has previously taken a stand against the cause of theses states, in favor of Federal power. Its not enough for them just to preserve some limited form of Gun rights they have to impose it from Washington D.C. down everyone’s throat.

Meanwhile compromising our true victory for real gun rights at the state level.

All that being said Subjecting ourselfs to the Federal Governments own self-appointed courts on a matter of THEIR limitations is not exactly asking for a trail.

So go ahead and dismiss us, just as we should dismiss you right back. But don’t you dare try to extent your authority to intrastate affairs!


36 posted on 09/06/2010 8:58:02 PM PDT by Monorprise
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To: P-Marlowe

The same Federal court out of “necessity” has poked so many holes in the 2nd amendment that article of the constitution like much of the rest is now as worthless as the paper its written on. Thats what happens when you put the Fox(Federal Government’s own courts) in charge of the Constitutional hen house.

Hence the necessity of State nullification as being the final word on the meaning of the Federal Constitution.


37 posted on 09/06/2010 9:08:34 PM PDT by Monorprise
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To: wardaddy

” i don’t think the states challenging the federal jurisdiction on gun laws will prevail in courts..it will be hard for the USSC to say federal constitutional protections void municipal gun restrictions and then turn around and say state leniency gun laws trump federal law...at least to me”

And that’s just part of the reason why the McDonald cases was a horrible mistake.

But in any case USSC has never been generally inclined to rule against the boundless acts of their appointing masters.

The president and the Federal elected(thus self-serving politician) senate are not inclined to appoint judges that will in anyway limit their power. Just as judges are not inclined to limit their own arbitrary power as judges.

“it would sure turn things upside down if the states win...some good and some not so good...depends on where you live”

The States won’t win this is in the Federal Government’s own courts. This is largely a show trial for the Federal government to insist upon its absolute and unrestricted(unconstitutional) powers to impose its will.

It’s almost unheard of for them to actually rule against themselves, against their own power.

“loosening federal restrictions period would be the most effective means..a tall order admittedly”

Somehow I don’t think that will happen and even if it did the democrats will come right back in and impose even harsher restrictions.

If you want Gun freedom we have to put the Federal Government back into its place. That requires someone other then the folks appointed by the same power hungry Federal politicians enforcing the Constitutional limits of the same politicians authority.

The Doctrine of State Nullification fits the bill about as well as anything can.

It also happens to be the historic truth of the matter.


38 posted on 09/06/2010 9:24:32 PM PDT by Monorprise
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To: Rashputin

“Another biased judge who thinks that people don’t understand the difference between intrastate and interstate, or the Constitution and the King. The interstate commerce clause is just that, not the loophole that allows the Federal government to overrule States on every issue and make any law they like.”

All Federal judges by nature of their Federal appointers are biased in favor of Federal power and against both the people and their States.


39 posted on 09/06/2010 9:29:58 PM PDT by Monorprise
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To: Monorprise
The Doctrine of State Nullification fits the bill about as well as anything can.

I'm unsure whether a presumptuous federal mandate even deserves the respect of an official nullification passed in a statehouse. When a bratty child acts up beyond their proper station, the best course isn't always to sit them down and rationally explain why they're out of line. Sometimes it is, but not always.

40 posted on 09/07/2010 7:43:20 AM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: atomic_dog
Thanks for the information and the great explanation.

I too want to see the states have their day in court.

IMHO "Interstate Commerce" has been abused over and over by the federal government.

41 posted on 09/07/2010 7:58:46 AM PDT by TYVets
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To: Joe Brower

It’s kind of like your cheating me and then you allowing me to ask you to determine if you really cheated me.


42 posted on 09/07/2010 8:06:25 AM PDT by from occupied ga (Your most dangerous enemy is your own government,)
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To: Still Thinking

“I’m unsure whether a presumptuous federal mandate even deserves the respect of an official nullification passed in a statehouse. When a bratty child acts up beyond their proper station, the best course isn’t always to sit them down and rationally explain why they’re out of line. Sometimes it is, but not always.”

You right, but nullification is not an act of the state per say its a notification of the State of illegitimate and unlawful nature of a Federal act. A legally binding Notification. The Next step is interposition, as the Feds will no doubt ignore that notification, therefore it is necessary that force them to confront facts rather then oppress our citizens.

All that being said asking for redress from the Federal Government’s courts is a logically fair first step. We did the same with King George.


43 posted on 09/07/2010 2:58:49 PM PDT by Monorprise
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To: from occupied ga

“It’s kind of like your cheating me and then you allowing me to ask you to determine if you really cheated me.”

It’s not like that it IS that.

Who ever first got the idea that we could have Constitution of Civil Government when the Final word on the enforcement of that constitution is held by the very same people who are binded by that constitution has got to be either obscenely corrupt or a madman.

If your going to put the Fox in charge of guarding the Hen House you might as well not have a Hen House.


44 posted on 09/07/2010 3:02:33 PM PDT by Monorprise
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To: Monorprise

Sure. I agree that you have to play the game out by the rules first. I suppose there’s the remote chance they might even rule correctly.


45 posted on 09/07/2010 6:56:38 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: wardaddy

“loosening federal restrictions period would be the most effective means..a tall order admittedly”

Loosen Federal restriction that by the letter of the Constitution are entirely unauthorized to exist in the first place is not only a tall order its an imposable order.

We just ceded to the criminals half our house, and now you want to talk em into only taking a qurtor of our house?

This madness has gone on far enough, its time the criminal leave all together and we stop putting up with their nonsense.

first The state should nullify the federal law.
2nd: we extract an iron clad promus that the next republican to run MUST and i do say MUST square to fire all federal ATF and FBI agents from his service declaring their job to be in violation of the authorized powers.

Liberals will not like it and indeed this may preclude a president from getting elected, if he can’t get passed us with it and past the general with out it. But we can know one thing. Eventually the center will cave, as the left continue to go crazy.

Its time we start pushing them back, stop accepting the lost territory in compromise, we’ve been doing that for 100+ years and where as it gotten us?

Once the Federal Government has been disarmed, then it wont matter what the Federal magistrates say, they won’t be able to enforce their edicts.

All they will be able to do is let criminals go free. And thats not a problem as far as maintaining gun rights.

The best part of this plan is we don’t got far to go.
The Feds have little to no domestic enforcement assets to start with.


46 posted on 09/09/2010 1:30:06 AM PDT by Monorprise
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To: Still Thinking; Monorprise

I looked into it further....TN bans handguns but allows scatterguns and rifles in their state restoration statute which makes it vulnerable for any felon fed-wise to own any modern smokeless firearm period...classic catch22 with draconian consequence

also under review:

is a state pardon which restores gun rights applicable in another state and hence an inoculation against Fed issues

answer so far:..a big fat negatory


47 posted on 09/09/2010 6:54:22 AM PDT by wardaddy (Shane.)
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