PARALLEL: If Fed law preempts AZ’s illegal alien law then the 2nd Amendment preempts state RKBA laws

[jody]

RKBA (Right To Keep and Bear Arms)

While the brouhaha over Arizona’s illegal alien law is still volcanic and its critics shout federal law preempts state law, it’s appropriate to also consider the Second Amendment that SCOTUS said protects an individual’s right to keep and bear arms on federal property, e. g. Heller in D.C.

SCOTUS has heard arguments in McDonald v. City of Chicago claiming the Second Amendment should be incorporated through the selective incorporation process under the 14th Amendment.

If incorporated that would mean Federal law preempts state and local law on RKBA as is true for other rights enumerated in the first eight Amendments.

Anyone who argues that Federal law preempts state law on illegal aliens is surely hypocritical if they do not also accept the argument that the Second Amendment preempts state and local laws on RKBA.

On behalf of all pro-RKBA Democrats I welcome to our cause all those who have taken a position that Arizona’s illegal alien law is preempted by Federal law.

Welcome :hi:

[X_Digger]

1. Oooh, evil.. me like! n/t

[rrneck]

2. Souds like the law of unintended consequences has come into play. nt

[Warren Stupidity]

3. rights are not laws

However the supreme court has long held that states cannot remove rights guaranteed by the constitution. That was settled after the civil war.

Your joy may be somewhat mitigated by the fact that this is a two edged sword. If we accept your premise, then stricter federal regulation of firearms, for example a national registry of gun owners or more prohibitions on specific classes of weapons, as long as they passed constitutional muster, would trump less restrictive state laws.

Still quite as ecstatic?

[jody]

4. SCOTUS said RKBA is a pre-existing right and does not depend upon our Constitution for legitimacy.

SCOTUS says on enumerated rights in general that Government can infringe upon an inalienable/unalienable right only if society has an overwhelming interest.

In any case, the McDonald case before SCOTUS should answer the question.

[Warren Stupidity]

6. That may be true but is not relevant to your thesis.

Which was that the Supremacy Clause would prohibit state regulation of guns. It would also prohibit state deregulation of guns, if we accept your thesis.

[jody]

7. You said "3. rights are not laws" but our Constitution is the supreme law of the land as are rights

enumerated in that document.

SCOTUS has incorporated most of the enumerated rights under the 14th with the exception of the 7th and 2nd however SCOTUS will probably incorporate the 2nd when it rules on McDonald.

I've read the Constitution several times and fail to find any portion of it that acknowledges illegal aliens having pre-existing or inalienable/unalienable rights either enumerated or unenumerated.

[east texas lib]

5. I can hear the screams of outrage now from the Cafeteria Constitutionalist Contingent...

You've just told the Emperor that he has no clothes. Again.:thumbsup:

[virginia mountainman]

8. Very Good Jody!! nt

[rhett o rick]

9. So you think this would be the first case where Federal law preempts state laws?

Your logic is a little twisted. The question isnt whether the Second Amendment "preempts" state laws re. guns, the question is do the state laws regulating guns violate the Second Amendment? Not at all related to the case you quoted.

[TPaine7]

10. Judges have ruled that the Second Amendment doesn't apply to the states.

That question is before the Supreme Court right now.

[jody]

11. Understand, that's why the OP cited McDonald. I pointed out the similarities in fed law preempting

state law.

[jazzhound]

13. Yes --- very good jody!

Wonder how many chickensh*t drive-by unrecs you've received here by virtue of the danger your thesis presents to the controllers.

[jody]

12. My logic is not twisted but perhaps you do not understand the parallel I pointed out. n/t

[DissedByBush]

16. Not preempt, just not their constitutional job

The Constitution gives all issues of borders, naturalization and dealings with foreign powers to the federal government.

Arresting illegals for being illegal is in no way a power delegated to the states. It is federal, period.

Nothing in the Constitution supports the crazy claim I've heard from AZ's guv, "If the feds won't do it, then we will."

(best Dr. Cox) Reeeeeeaaaaaaaly. So if you don't like fed monetary policy you'll print your own money?

When are you going to establish embassies in foreign countries where the fed has done a poor job of establishing relationships?

Start your own navy?

Why not? You supposedly can do anything you want if you don't think the fed is doing it right!

[mvccd1000]

18. Federal, period?

You wrote: "Arresting illegals for being illegal is in no way a power delegated to the states. It is federal, period."

So states are not allowed to make arrests under any federal laws (gun-free school zones, kidnapping, etc.)?

I'm interested in hearing more about this postulation of yours.

[DissedByBush]

19. Those are just laws

They are not constitutionally assigned powers.

[PavePusher]

22. If the Feds abandon their delegated power...

or refuse to enforce their laws, than I think it arguable that those powers revert to the States/People via the 9th and 10th Amendments.

[Jim Lane]

14. You're completely wrong about how federal pre-emption works.

Your logic appears to be an extremely simplistic formula: Anyone who believes that one federal law pre-empts related state laws must therefore believe that every federal law pre-empts every related state law. That's simply not how federal pre-emption has been applied in the course of American federalism.

Congress has the general power to pre-empt state laws as part of a valid Congressional enactment. That doesn't mean that Congress always chooses to exercise that power, though. When the Congressional statute is silent on the point, the courts ask whether and to what extent Congress intended to pre-empt state laws and regulations. That usually involves determining what state actions, if any, would be inconsistent with the overall statutory scheme established by Congress. There've been numerous decisions over the years; some find pre-emption, some reject pre-emption, depending on the facts of each case.

So, no, it is not "surely hypocritical" to say that some areas are pre-empted and some aren't. That is, in fact, a correct statement of the law.

Anyway, as others in this thread have pointed out, this whole analysis is misplaced when you're talking about a provision of the Bill of Rights.

[jody]

15. Why then is SCOTUS considering in the McDonald case whether the 2nd Amendment is incorporated in the

14th Amendment?

The question is whether Chicago can enforce laws that infringe upon an individual's right to keep and bear arms for self defense when SCOTUS has already answered that question for federal property in the Heller case?

If SCOTUS incorporates the 2nd then state laws can not infringe upon RKBA just as state laws can not infringe on other rights incorporated in the 14th.

Any way one views that, if the 2nd is incorporated the end result is the same as the following:

"State powers can also be limited by the Supremacy Clause. Article VI, section 2 of the United States Constitution states: 'This Constitution, and the Laws of the United States which shall be made in Pursuance there of: and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not withstanding.' This clause is commonly referred to as the Supremacy Clause."

[Jim Lane]

17. You're still missing the distinction between incorporation and pre-emption.

Your OP included this correct statement: "SCOTUS has heard arguments in McDonald v. City of Chicago claiming the Second Amendment should be incorporated through the selective incorporation process under the 14th Amendment."

If an enumerated right in the Bill of Rights is made applicable to the states by the Fourteenth Amendment, then it's a right that protects every individual within its scope, regardless of what Congress or anyone else says.

Pre-emption, by contrast, means that Congress, expressly or impliedly, has prohibited the states from legislating in that area.

Consider this example: Congress can pass laws against securities fraud and yet allow the states some room to regulate the area as well. By contrast, no Congressional enactment could empower the states to employ cruel and unusual punishment. The right against cruel and unusual punishment is guaranteed to individuals by the Eighth Amendment, which has been incorporated through the Fourteenth Amendment to apply to the states.

Your OP argued that it was "hypocritical" for anyone to argue for pre-emption in one area but not another. That's clearly wrong. There's nothing inconsistent in saying that the issuance of securities can be regulated by the federal government and by the states but that immigration and nationality are subjects exclusively for the federal government, with no state-level role. Similarly, one can consider the Arizona law unconstitutional (on grounds of pre-emption) and also believe that the Fourteenth Amendment did not incorporate the Second Amendment, and that the states therefore retain complete power to regulate firearms. The standards for Fourteenth Amendment incorporation do not relate to the issue of pre-emption.

[jody]

20. Read the OP very carefully again. I did not use "preemption" as you try to twist my statement.

I used "preempts", a verb meaning "To have precedence or predominance over".

That is the issue before SCOTUS in McDonald whether the 2nd Amendment has precedence over Chicago laws.

I understand your use of the Supremacy Clause but that is out of context for my statement.

SCOTUS will soon decide whether the 2nd is incorporated and probably rule on Arizona's law that was written to be preemption-proof, as you used preemption, by using federal definitions and using state law enforcement officials to aid in enforcing federal law.

If SCOTUS says yes in both cases then federal law has precedence or predominance over state laws.

That is the issue I raised in the OP nothing more or less.

[Jim Lane]

21. You made a pro-RKBA argument by analogy to immigration law....

Immigration law is a matter of pre-emption, whether you call it that or not. The issue in the McDonald case, by contrast, has nothing to do with pre-emption, but rather with incorporation.

You write, "If SCOTUS says yes in both cases then federal law has precedence or predominance over state laws." That's correct. To avert confusion, though, I'll add that if SCOTUS says no in either or both of these cases then it's still true that federal law has precedence or predominance over state laws. That's a basic tenet of federalism. It won't be affected by how these two specific issues are resolved.

You did use the word "hypocritical" to argue that anyone arguing for pre-emption of Arizona's law must forthwith adopt a pro-gun stance. My point is that your parallel is simply wrong as a matter of American constitutional law.

Where someone stands on McDonald would depend on whether he or she considers the Second Amendment to have been incorporated as against the states by virtue of the Fourteenth Amendment. Where someone stands on the legality of the Arizona bill would depend on whether he or she considers the federal regulation to pre-empt the field or instead believes, as you suggest, that the Arizona bill should stand because it's not inconsistent with federal regulation.

Because these are different issues, the answers are unrelated. It would be quite consistent for one person to support the state law in both cases, or to find the state law illegal in both cases, or to support Chicago's gun-registration law while considering the Arizona law to be invalid, or to deem the Chicago law a violation of the federal Constitution while holding the Arizona law valid and enforceable. Each of those four positions is consistent and can be supported by an argument that's at least colorable.

So, the bottom line is that the people who believe that Arizona overstepped its bounds are not thereby constrained to join you "pro-RKBA Democrats".

[jody]

23. Nice statement with which I disagree. The issue is still whether federal law trumps state law

regardless of which twist you put on it.

Those who contend that federal law trumps state law in the Arizona case IMO are indeed hypocritical if they then assert that federal law does not trump state law involving the right to keep and bear arms.

I see we've both stated our positions and no need to recycle the same assertions.

Have a good day. :hi:

[Jim Lane]

24. I won't "recycle the same assertions" but I seek clarification on one point....

The Seventh Amendment guarantees jury trials in civil (i.e., non-criminal) cases where more than $20 is at issue. The Supreme Court held in 1916 that that right was not incorporated against the states through the Fourteenth Amendment (see ). I'm no big Seventh Amendment maven but I think that's still good law.

Does that mean that a pro-RKBA Democrat, who believes the Supreme Court should overturn the Chicago gun ordinance at issue in McDonald, is being hypocritical if he or she then asserts "that federal law does not trump state law involving the right to" a civil jury?

On my view, of course, there's no hypocrisy or inconsistency. You simply apply the standards for incorporation and conclude that one amendment is incorporated and the other isn't. By contrast, it seems that your interpretation of your stance on McDonald would constrain you to call for overruling the decades-old precedents concerning civil juries. I wonder if you agree that that's a consequence of your views about gun control.

[jody]

25. Re 7th, in my state businesses include pre-dispute binding arbitration clauses in sales documents

however automotive dealers nationwide lobbied congress and had passed a law that made those same clauses illegal in contracts between an automobile manufacturer and a dealer. Bush signed it early in his administration.

I understand pre-dispute binding arbitration would not be possible if the 7th were incorporated in the 14th.

You might wish to scan "The Evils of Binding Arbitration In Consumer Contracts" by Jere Locke Beasley, a prominent attorney in Alabama.