Magistrate Recommends Dismissing States’ Gun Suit

AP ^ | September 1, 2010 | Matt Gouras

[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.

[marktwain]

The States explicity say that the guns have not moved in interstate commerce.

[rockinqsranch]

"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.

[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.

[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.

“.... Shall not be abridged”

[Pearls Before Swine]

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.

[Joe Brower]

These actions are not surprising -- how else would one expect Leviathan to behave?

[P-Marlowe]

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.

[ZULU]

The next step is nullification.

[Loyal Sedition]

“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!

[Still Thinking]

Federalism/10A ping!

[Still Thinking]

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.

[wardaddy]

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

[ForGod'sSake]

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

[silentreignofheroes]

You’re right..

After that,,,Lock and Load.

[Still Thinking]

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.

[ForGod'sSake]

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.

[djf]

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!

[Lancey Howard]

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.

[wardaddy]

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

[Still Thinking]

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.