On Federal Preemption

It’s hard to work through the news of the day to find something to write about waiting for the Verizon guy to run the fiber connection into our bay. But typing a post out on the iPad I can do. A topic that was discussed with some of the academic folks at NRA Annual Meeting is saving the folks in Blue America using the federal government. At this point, it’s mostly wishful thinking. National reciprocity is the only preemptive measure NRA has put on the table, but that is a measure that benefits Red America more than Blue America. In the long term, as I’ve said in a previous post, we can’t tolerate two Americas.

There are several powers of Congress under which this can be accomplished. The familiar ones are the commerce clause and Congress’ Section 5 power of the 14th Amendment. But the Supreme Court has slowly been taking a more narrow information of the commerce clause, and any exercise of the 14 Amendment power runs squarely into the case of City of Boerne v. Flores, which essentially says that the federal courts, and not Congress get to determine the scope of a right.

But when it comes to preempting state bans, and other state restrictions, I think there maybe a power of Congress upon which such an action may most firmly rest:

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

I would argue that it is both necessary and proper for Congress to execute laws that preempt state laws that prohibit or frustrate the ability of ordinary citizens to own, transport, and practice with ordinary small arms, such as, but not necessarily limited to, the AR-15, Beretta 92F, M1911, etc. Congress needs individuals familiar with arms and shooting, in order to have an effective militia from which it may draw to raise an army. I even think in this age of terrorism, National Reciprocity could be plausibly based on Congress’ militia powers.

We ought to be skeptical of federal power, which can used for ill as readily as good, but I don’t see any other means to prevent the spread of this cancer of ignorance. Either we restore a healthy shooting culture to Blue America, or we watch the cancer slowly spread. Colorado was a real wake-up call that we may need to rethink our priorities. If they can beat us in Colorado, it won’t be long before we start losing in other swing states. It wouldn’t be long before they had the votes to screw the rest of us federally anyway. It’s something to think about.

14 thoughts on “On Federal Preemption”

  1. I would like and support the idea, of course, but there seems to me to be an attitude anymore that ridicules the notion that it is necessary for people to come to the service with any pre-existing martial skills. People think that kids join up and get martial skills like marksmanship along with the their immunization injections, and those can be turned off the same way, when they leave the service.

    In plain words, I think the idea that the population needs to be a pool of ready-to-fight militia would be laughed at anymore. Society operates in many dream worlds these days.

  2. CO was going left long before it went anti-self defense. Now that they have control, there is a long list of radical left stuff they are doing.

  3. Red States, Blue States?

    A choice of Red State vs. Blue State would be great, if Red State was defined only by our gun issue. But those of us who dislike the authoritarianism of the right as badly as the authoritarianism of the left don’t see it as being much of a choice; no more so than the blend of the two we are forced to live with now.

    Any more, the states that would appeal most to me personally would be those whose physical natures lent themselves to enabling me to do as I damn saw fit without being detected. I can remember over 50 years ago, when Bucks County’s “conservative” population was as big a pack of busybodies as its “liberal” population is today. The only advantage was that it was easier to stay out of their sight. As long as the technology exists and is applied, to keep an eye on what we’re doing, Red v. Blue will be a distinction without a difference.

    1. I’m using Red/Blue mostly in a partisan-leaning context, given the current trend for Democrats to move away from support for gun rights, and the Republicans getting somewhat better on the issue than they traditionally have been. We’ll have a real problem protecting gun rights in states, which, for whatever other reason, may be voting Democratic.

      A lot of our current troubles stems from the fact that I think the GOP is on the wrong side of history on a number of non-gun issues, and we’re, unfortunately, reaping the crap sandwich of some of that weakness. It’s enabled the Democratic Party to go farther left on the gun issue without as much perceived fear.

      One of my reasons for supporting this kind of drastic measure is that I think if a gun culture can be kept alive in these “blue” states, it opens the door for the possibility of creating a pro-gun insurrection within the Democratic Party. If there was a serious pro-gun faction within both parties, that was willing to really vote on the issue, I don’t think we’d ever, practically, have many worries.

      1. “Wrong side of history,” in your opinion. Subjective terminology. I believe the cultural issues you are referring to, when looked at through the lens of history (and not just U.S. history), shows that the GOP is right to stick to their guns. Just as quickly as the GOP can turn its back to gun owners can happen to any other GOP base constituency group.

        However, I also have yet to read an idea of how a pro-gun insurrection can take hold within the Democrat party when gun rights seems to be framed as a partisan issue. Listening to Cam and Company sort of demonstrates this when matters dealing with economics come up, for instance. I’d be interested in your thoughts on that one.

        1. Really?
          By 2020, about 30 states will have marriage access for same sex couples. Where’s the “lens of history” in light of the fact that the sole reason the GOP lost Colorado entirely in the 2012 elections was the because of a social conservative fundamentalist House Speaker kept blocking a Civil Union vote even though there was enough votes to pass it on the floor?
          If he had allowed it to pass, you wouldn’t have had tens of thousands of people and their allies agitating issues and pushing the state to flip. The unfortunate side effect is that gun control more easily passes because Democratic leadership going after guns is like a putting an narcotic right to the face of an addict when nationwide tragedies occur. Can you blame the folks pushing civil unions to vote against their own interests

        2. Given the generation gap that exists on gay marriage, I think that issue is lost, and young people are voting on that issue. That’s not good news for the future of the GOP.

          The difficulty you’re going to have in getting an insurrection, so to speak, in the Democratic Party, is that Democrats are increasingly not gun owners, and even when they are, they probably aren’t voting the issue. You could still mount primary challenges, even with a smaller cadre of people willing to vote the gun issue in primary elections, even if they end up supporting the Democrat in the general despite the record on guns. That would help. But the problem, I think, is that people willing to vote on the gun issue are increasingly voting Republican.

        3. http://ballotpedia.org/wiki/index.php/Initiated_constitutional_amendment

          So, legislatively passed marriage equality will be passed this year in Illinois. Same in New Jersey by 2014. Hawaii will also legislatively pass in 2014.

          Pennsylvania, unfortunately for gunnies in that state, doesn’t have an initiative statute or initiative constitutional amendment, which means only` supportive Legislature & Governor can accomplish the goal there. If Corbett & the PA GOP were smart, they would pass a marriage equality bill right now. New Mexico will likely pass by Legislature if not by state constitutional lawsuit.

          The next phase for gay & lesbian activists pushing for marriage is to follow what happened in 2002-2006 for marriage bans, which is essentially repeal/replace of the bans with marriage equality with regards to the gender of the applicants.

          By 2016, activists can propose comfortably in Arizona (54.6% support), Colorado (52%-58%), Oregon (54%) Ohio (52% support), Michigan (55%), Nevada (59%).

          By 2020, activists can propose comfortably in Oklahoma (51%), Missouri (56%), South Dakota (56%), North Dakota (51.2%-57.7%), and Florida (59.3%).

          By 2020, assuming the Supreme Court doesn’t end the marriage discrimination by the states, a majority of states will have marriage equality (29). That’s over 200 million people covered.


          Illinois 13
          California 14
          New Jersey 15
          Hawaii 16
          New Mexico 17
          Oregon 18
          Colorado 19
          Pennsylvania 20
          Nevada 21
          Ohio 22
          Arizona 23
          Michigan 24
          South Dakota 25
          North Dakota 26
          Missouri 27
          Florida 28
          Oklahoma 29

          Why do you propose that GOP to continue committing political suicide over this issue, when in a decade unless than 20 states will have it illegal? The folks pushing for marriage are not the cocktail party cheese & wine crowd. The only group that’s more singly organized now than gun owners are the folks pushing for marriage access.

          The best thing for gun owners would be to have the Supreme Court strike down all of the bans, nationwide, in June 2013. It would be a gift to the GOP for that to occur, instead of encouraging this slow destruction & death of the conservative brand, such as it is. The backlash against such a ruling would honestly be limited, and with marriage bans no longer commanding an Article V Majority of States as of the end of the month, federal constitutional DOMA is dead.

    2. Of course, this would likely mean the last thing the GOP will ever want to do is preempt the blue states… so I don’t pretend this would be easy. Probably why National Reciprocity is currently the only sort of preemption measure we’re close to.

      1. ” the possibility of creating a pro-gun insurrection within the Democratic Party.”

        We may be able to gauge the potential for that as a political phenomenon, by whether something similar happens within the Republican Party, on the issues it seems hell-bent over using to commit political suicide; those “wrong side of history” issues you alluded to.

        The chances of that occurring would require too much “thinking out loud” speculation, to engage in here, or right now.

  4. A possible framework for exercising these militia powers already exists in the form of the CMP.

    It seems fairly straightforward for a pro-2A rep in the House to put forward an amendment to must pass legislation, like, say, the NICS re authorization act with something along the lines of:

    1) The congress finds that the CMP’s Service Rifle & Service Pistol training and competition programs form a valuable system for disciplining both the organized and unorganized militia.
    2) No state shall enact any legislation which in any way criminalizes participation of any person not prohibited per the GCA of 1968 as amended (insert reference to prohibited person lists) in these events.
    3) States are specifically prohibited from bans on the purchase, manufacture, possession, or transportation of any equipment utilized in Service Rifle or Service Pistol training, matches, or other events including but not limited to firearms, magazines, ammunition, or other accessories.

    Then it would need some teeth to allow citizens to sue in federal court and recover costs from states that drag their feet.

    CMP isn’t perfect but it is a federally chartered organization that already has a curriculum which is generally regarded as “sporting” and would by definition protect current and previous military arms such as the Beretta 92/1911 and AR-15/M1A/M1, which are the ones most in need of protection.

  5. Another thing is Colorado shows that a healthy shooting culture is not enough for a “blue state”. It helps, I’m sure CO would have gone worse if not for their shooting culture, but that just means they’ll be back again.

    The democrats had both chambers of the legislature and the govenor. And thus they rammed their gun control through.

    It remains to be seen if the gunnies in CO can reverse this at the ballot box next year. (More to get the gun control repealed and to punish those that voted for it than help the GOP).

    1. ‘Another thing is Colorado shows that a healthy shooting culture is not enough for a “blue state”.’

      I have not been to Colorado very often, so I have no real “feel” for the culture of the state, but I’m thinking its problems may be analogous to what we have here in Pennsylvania; the old cliche’ about “Pennsylvania is Philadelphia and Pittsburgh, with Alabama in between.” That is somewhat true geographically as well as culturally.

      One thing I recall being cited as a problem with trying to organize pro-gun activism in Pennsylvania, I remember someone stating as “All the good ole’ boys are back in the hills shooting the M-16s and AKs they brought home from ‘Nam, and that they’ve gotten away with it for years has convinced them that legislation only affects the city folk. So, they see no practical need to get involved with politics.” I remember that attitude somewhat, even here in Bucks County when I was growing up, when we regarded adherence to things like hunting seasons and license requirements as sort of desirable and virtuous, but otherwise optional, when they became inconvenient.

      Anyway, I wonder if that “not our problem” attitude may exist among the rural residents of Colorado, and they won’t wake up until they really get their noses rubbed in it.

  6. With any luck, we’ll find out that Democrats have overplayed their hand in a few of these states…

    I have a feeling this is the case, and they’ll pay for it on election day.

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