THELAW.TV

States Look To Trump Federal Gun Control Proposal



In the wake of December’s shootings at Sandy Hook Elementary School in Newtown, Conn., Americans on both sides of the gun control issue are fighting hard for what they believe is right.

President Obama has introduced new federal legislation that would reinstate a ban on assault weapons that expired in 2004 as well as limit ammunition magazines. In response, many state, county and city governments are adopting legislation that they hope will counteract any gun control measures Congress passes.

Each such piece of state and local legislation is slightly different, but virtually all carry the same name: Second Amendment Preservation Act. This legislation declares that any law Congress passes that limits the right of U.S. citizens to bear arms is a violation of the U.S. Constitution and, therefore, unrecognized by that particular state, county or city. Lawmakers in states such as Texas, Missouri, Indiana and Oklahoma have introduced the Second Amendment Preservation Act, and some counties – like Franklin County, Ind. – have already passed a version of the measure.

Republican State Rep. Jim Pitts, who authored the Texas legislation, says he simply wants to uphold what the authors of the Constitution believed. “The 2nd amendment was written with the tremendous foresight of our founding fathers and has endured for over two centuries as a necessary protectorate of a citizen’s right to bear arms. I intend to stand up for that right,” Pitts said.

However, even if states and local governments pass the Second Amendment Preservation Act, there is some doubt as to whether the legislation will have any teeth in the face of federal law.

“The issue of whether state law can trump federal law has been around for as long as our country has, and in the end if the federal government decides to do something, the states usually don’t have much power to stop it,” says attorney Martin Sweet of legal website THELAW.TV.

This battle is also being fought on a smaller level. Several state governments are trying to make sure their county and city governments don’t infringe on a person’s right to bear arms. States such as California, Florida and Arizona have what are known as “pre-emption” laws, which make it illegal for local governments to pass gun control legislation. The state pre-emption laws are, in many cases, decades old and were passed at the urging of the National Rifle Association.

An interesting gun control fight is going on right now in Tucson, Ariz., where former Rep. Gabrielle Giffords was shot and nearly killed two years ago. The city is considering a measure that would require background checks on all gun sales on city property and regulate sales at the Tucson Convention Center. However, gun control opponents will most likely sue to invalidate the legislation under Arizona’s pre-emption law – a battle those opponents have won several times in the past.

So the gun control legislation dance continues across America, as it has for decades. The federal government wants to control what the states do, and the states want to control what their local governments do. Meanwhile, we’ll have to wait and see whether the White House is able to win the fight. If it does – as is so often the case when federal law is passed – what the states and municipalities want might be rendered moot.

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