Continuously opining, intermittently publishing.
9
March

The Disarming Nature of the Wyoming Firearms Freedom Act

Posted by oshane | Leave a comment at the end of this post.

Here is my constitutional analysis of the Wyoming Firearms Freedom Act, published this month, March 2011, in the Wyoming Law Review.* Below is an excerpt (p. 238):

Although the Wyoming Firearms Freedom Act conflicts with existing federal law, the Act is a constitutionally valid exercise of state power. The Act is a manifestation of the doctrines of interposition and nullification espoused by James Madison and Thomas Jefferson in the early history of the United States. The Act is also a clear exercise of state sovereignty that comports with the historical development of the Tenth Amendment.


*O. Shane Balloun, Comment, The Disarming Nature of the Wyoming Firearms Freedom Act: A Constitutional Analysis of Wyoming’s Interposition Between Its Citizens and the Federal Government, 11 Wyo. L. Rev. 201 (2011).

3 Responses to “The Disarming Nature of the Wyoming Firearms Freedom Act”

  1. Chevas says:

    Nice work. Of course you wrote about guns.

  2. Hank says:

    Very good analysis.
    One thing I thought was lacking from your argument though (and sadly, to my knowledge) never actually argued is that among the “implied powers” excersized by the federal government historically is that of the Supreme Court to review the constitutionality of federal legislation. This function of the Supreme Court is NOT expressly given to the Court in the constitution! A very strong 10-A argument can be made that the right and duty to pass judgement on the constitutionality of federal law resides in the elected members of the State Governments, not in the lifetime-appointed SC justices.
    A simple logic argument augments this theory in that the logical extention of the republican form of government requires that the elected State officers are equally required (and where required, empowered) to “… preserve, protect and defend the constitution…” along with the justices of the SC. Any person taking that oath without the certain ability to make decisions regarding the constitutionality of laws is unfit to serve.
    Additionally, the argument that the ability and impulse of the federal government to limit its own powers (while a good one), falls just short of the mark. Not only does the federal government lack the ability and motivation to limit itself, the form of government under the constitution is one which requires the concurrance of 3/4ths of the STATES to make changes to its form/function – the implication of this (Art. 5) requirement combined with the 10th amendment and the lack of expressly delegated power to rule on matters of constitutionality regarding federal law is that the constitutionality of federal law is one of the powers retained by the states and nowhere probited from them by the constitution.

    Regarding the so-called “supremecy clause”, it is in the original text of the constitution, and subject to the modification of and subordination to ammendments added later – the 10th (when there is a conflict) should take precedence.

    • oshane says:

      Hank, thanks very much for reading the article. You make great points.

      Actually, I did point out that the founders were aghast that a document would be created giving or imputing to give the federal government exclusive jurisdiction to interpret its own authority. You are right that I did not go into detail with respect to the case, Marbury v. Madison, which the Supreme Court used to justify its ability to interpret the Constitution with finality (of course, the Court using implied powers to interpret the Constitution to say it has the ultimate power to interpret the Constitution is dubious and circular). On the other hand, this is not an argument I wanted to spend much time on, because it would have expanded the article significantly.

      I ran into some space limits for my comment. In fact, to that end, what is troubling sometimes about law review student authorship is that it is often required to be as narrow as possible.

      I do believe, as you suggest, that I should have touched on the fact that the 10th Amendment comes after the Supremacy Clause and therefore modifies and overrides it and any other clause that came before the 10th Amendment.

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