Posted on 12/19/2014 10:16:21 PM PST by right-wing agnostic
Co-blogger Jonathan Adler and Vanderbilt law professor Robert Mikos have pointed out some of the flaws in the lawsuit filed by Nebraska and Oklahoma urging a federal court to invalidate marijuana legalization in neighboring Colorado. In the unlikely event that the plaintiff states prevail, they will also have set a very dangerous precedent – one that conservatives are likely to rue in other areas.
Nebraska and Oklahoma argue that Colorado’s decision to legalize marijuana under state law, in the face of continuing federal prohibition, harms neighboring states because it facilitates the flow of marijuana across their borders and may increase crime there. Liberal states with strict gun control laws raise exactly the same complaints about the flow of guns from neighboring conservative states with relatively permissive firearms laws. If Nebraska and Oklahoma can force Colorado to criminalize marijuana under state law because the federal government has done so under federal law, then Maryland can force Virginia to ban any gun sales that are restricted under federal law. Liberals have, in fact, advocated the enactment of stronger federal gun control laws for years. The same goes for conservative states that have less restrictive labor regulations or environmental regulations than neighboring states do.
(Excerpt) Read more at washingtonpost.com ...
The creeping cancer of federalization continues unabated.
This is the same guy who makes such great arguments for abortion, if you swing that way, do you swing that way?
Here’s the legal and logical problem with his argument between marijuana legalization in one state being equal to competing neighboring states respective gun laws.
Marijuana is still a controlled substance at the federal level. That’s a fact. That certain states are making it legal for recreational purposes doesn’t override the federal ban.
Therefore one state is taking a federally banned substance easily available in neighboring states due to non-existent interstate commerce laws that are strictly in the purview of the federal government by the constitution.
In the matter of competing gun laws the second amendment is absolute. One state with strict gun laws is acting in an unconstitutional manner having them on the books and interstate commerce of legal products cannot be compared to a federal ban of an illegal substance.
Apples and oranges.
Exactly.
Barry would love to try and float an imaginary ‘EO’ restricting gun rights, but the rights set forth in the 2nd amendment are fundamental rights: any ‘regulations’ (infringements) by state, local or the feral government on the right to keep and bare arms is subject to strict scrutiny by the courts.
Pot smoking and the 2nd? As you say, apples and oranges.
States are not mere administrative districts of FedGov. Guns are viciously restricted in some state, and not in others. New York and Texas are both compliant with all federal gun laws.
New York has always insisted that Virginia is the source of many of its illegal guns. They can even prove that the smuggling exists. But smuggling a legal product into New York doesn’t mean Virginians need their rights restricted.
In their zeal, the antiweed crowd suddenly is the champion of a strong central government. The prohibition of dope has hurt our society and our freedom more than the legal sales of it could have ever hoped to.
In Colorado you can easily avoid dope. You cannot easily avoid the change of the entire destruction the constitution.
Many guns are still prohibited at the federal level. That’s a fact. That certain states want to make these legal doesn’t override the federal ban.
I'm sure most people see the contempt expressed for the Second Amendment in that statement.
Do you not see the same contempt for the Tenth Amendment in yours?
CO is exercising its legitimate authority under the Constitution. Shouldn't the Tenth Amendment be as strongly supported as Second?
Its hard to imagine a worse concept for a conservative. That states should be able to sure to nullify state laws in other states. Are they so shortsighted that they think it will be Oklahoma types forcing leftist states to bend to their will?
When the concept gets ground in the federal courts, it’ll be Oklahoma being forced to adopt the gun control, Obamacare, environmental, fracking, and abortion rules of the leftist states. And don’t worry, they’ll _easily_ find ways the courts will accept for why each of those impacts their neighbors. It wold be legal child’s play.
I would think that individual police departments and county law enforcement would be all onto the money-making opportunity here. Get a drug-dog and start pulling over cars that cross the border from Colorado. Find weed? Offer the guy one opportunity to avoid jail by paying a $800 fine on the spot. A town could clear tens of thousands a week with just one drug-dog.
That’s a fine statist response! Lets start pulling over and have more dogs and lets start with “on the spot” fines. That’s just what America needs, more searching and intimidation, and cops, and dogs.
But thanks, that is a classic example of the wrongheaded thinking that the war on drugs inspires.
Earlier today I related a story of how I was offered 50 or even more, pounds of pot, for free, all I had to do was carry the trash bags of outside to my car from the pusher’s house.
By operation of the so-called ‘preemption’ doctrine, federal law supersedes state law.
The tenth reserves to the states all powers not delegated by the Constitution to the feral gov., or denied by the Constitution to the states.
Since federal law has preempted this area of law, under federal law, the cultivation, sale and use of whacky tobacco is generally illegal.
Since Colorado is one of the states, they are in violation of federal law.
‘Salutary neglect’ by the federales: laches, refusals to act (now this is what we expect from them), detrimental reliance, hardship, etc.—all equitable defenses, all of these things do not make Colorado’s actions legal.
The Bill of Rights expressly protects the keeping and bearing arms. In “legalizing” pot, Colorado simply told the ferals to ‘go pound sand’.
The answer is still ‘no’.
“The tenth reserves to the states all powers not delegated by the Constitution to the feral gov”
And where did the Constitution grant the authority over plants and drugs to FedGov? It didn’t, and that leaves it clearly to the states.
The writer makes very powerful pro abortion arguments as well, based on the constitution, be sure and mention those.
And where in the Constitution do the feds claim that power? Answer - the expansive Commerce Clause in place since Wickard.
The same expansive Commerce Clause has allowed fedgov control over health care, education, the environment etc. It is an expansion of federal power at the expense of the Tenth Amendment. How can you defend it?
Exactly. And the pro abort states will be happy to “prove” in court how Texas abortion law is negatively impacting other states. And the Federal courts will happily affirm their theories.
To stop a little pot escaping Colorado, we will run the risk of profound damage and of giving the fedgov even more power. Are you so deluded that you think it will be conservative states dictating the policies to the leftist states? In Federal courts? Think ahead just a little
And you are echoing Patrick Kennedy’s anti-marijuana arguements. Does that mean that you share Patrick Kennedy’s pro-abortion opinions? How about Patrick Kennedy’s pro-Obama-care ideas?
Can a law professor have different opinions on different issues and some of them be correct?
Or, since you seem to imply that if you agree with one opinion, you agree with them all, just how many of Patrick Kennedy’s opinions do you agree with?
Huh?
You think that a pusher goes to a state and buys abortion and brings it back to another state?
You think that a state can sit in the middle of other states and grow abortion, have planes fly in abortion, and then disperse it throughout the interstate freeway system and highways, airlines, bus systems and trains, across the borders into other states?
If you want to bring Patrick Kennedy’s articles to freerepublic, it is your choice.
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