Comments: Raich and Stewart

This sounds like a great opportunity to nullify any state gun law that is more restrictive than the federal gun laws:

To quote the June 7, 2005 L.A. Times article…

“The Constitution makes the laws of the United States the ’supreme law of the land,’ and ‘if there is any conflict between federal and state law, federal law shall prevail,’ Justice John Paul Stevens said for the court.”

Posted by Me at June 7, 2005 11:44 PM


Unfortunately that's not how it works. "Conflict" does not mean "difference." There is no inherent conflict between a state law prohibiting, for example, concealed carry, and federal law standing silent on the issue. The state enforces its law, and the federal government enforces federal law. There is a conflict when the two laws cannot possibly coexist, not merely when they're different. That a state may punish conduct that the federal government does not is entirely consistent with the Framers' vision of the relationship between the federal and state governments. (By the same token, the states are not required to punish behavior that the federal government does. E.g., my example of Idaho, which has no state law specifically regulating possession of machine guns, even though there is such a law at the federal level.)

The Constitution does impose some limits on state power; this is known as the doctrine of preemption. There are two kinds of preemption: Express and implied. Express limits include those provisions of the Bill of Rights that have been incorporated against the States by the 14th Amendment; e.g., states cannot pass laws that conflict with the First Amendment (although for a long time they could pass such laws). The Supremacy Clause is a form of preemption, but operates in fairly narrow circumstances. Implicit preemption can occur when a state law frustrates a federal purpose in exercising one of the powers granted to the federal government under the Constitution. It also can occur when the federal government has implicitly "occupied the field" with respect to a particular area of law that it has constitutional authority to regulate. Another form of implied preemption is the "dormant Commerce Clause" doctrine. State laws that impact interstate commerce -- for example, by discriminating against out-of-state goods -- can run afoul of Congress's power to regulate interstate commerce (which was given to Congress specifically to prevent economic warfare among the states). Many of the implied preemption doctrines are very closely related; e.g., the dormant Commerce Clause to me just seems to be a specific application of the "frustration of purpose" doctrine. And more than one of them may come into play in a particular case.

At any rate, the bottom line is that state laws that regulate possession, use, transfer, manufacture, etc., of firearms are not per se preempted by the federal government. I seem to recall that that argument has been tried a number of times in various courts, and has always failed. (If I recall correctly, the specific argument was that the feds had occupied the field.)

Posted by Matt at June 8, 2005 07:39 AM
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