By Karen MacNutt,
Contributing Editor

Many gunowners breathed a sigh of relief when the federal "assault weapons" law (AWB) was not renewed. The law was one of a growing number of laws that have a "sunset" provision. A sunset provision means that when the law was passed, Congress stated that the law would be in effect up to a specific date. On the set date, the law would expire unless the legislature re-enacted it. When AWB recently expired under its sunset provision, Congress did not renew the law. This lifted the federal ban on certain guns and magazines that fell within the federal definition of "assault weapons" or "large capacity magazines." By reason of the definitions contained in the federal statute, machineguns were not considered assault weapons. There has been no change in the laws governing machineguns.
The end of the AWB, however, is not the end of the assault weapons ban story. A number of states, and some cities, have enacted their own laws. Among the states with "assault weapons" restrictions or bans are California, Connecticut, D.C., Hawaii, Illinois, Massachusetts, New Jersey, and New York. Laws in those states are not affected by changes in federal law.

Although most Americans think that the United States is one nation, it is, in fact, 50 sovereign nations united by one governing document, the Constitution. The Constitution gives limited power to federal or central government. When the American Revolution began in 1775, there was no United States. The original thirteen colonies each became independent nations. Each of the former colonies had all of the powers that nations customarily have. They could raise an army. They could put import duties on the products of other American states. They could print their own money. Although Congress raised an army to fight for independence, it could not lay direct taxes. It had to ask the individual states for money. In addition to the first states, three other states were sovereign nations when they applied to become members of the United States: Texas, California and Hawaii.

The Constitution gave our central government limited powers. Among those powers were the power to raise an army and wage war; the power to make treaties; the power to regulate commerce between the states (not within a state), with foreign nations, and the Indian tribes; to coin money and regulate its value; to provide for bankruptcy and uniform laws about naturalization; to create copyright and patent laws; to punish piracy and violations of the laws of nations; and the power to tax. These were all areas that were necessary to national survival or areas in which the nation had to speak with one voice if trade and commerce were to flourish.

The Constitution prohibited states from entering into treaties or waging war unless invaded. They could not keep troops in time of peace. States could not levy import or export duties except as absolutely necessary for executing inspection laws (that would relate to health and public safety). States could not print money, pass any bill of attainder or ex post facto law or grant titles of nobility. All powers not given to the federal government or forbidden to the states, were retained by the states or by the people.

States, for the most part, continued to be sovereign in those areas that impacted on individuals residing within their boarders. State law governed marriage and divorce, the probating of estates and the transfer of land. States licensed professionals within the state and provided for public peace with laws against murder, rape, assault and other such crimes. There is no general federal law on any of these subjects. For the most part, federal criminal law covers crimes against the federal government, the things over which the federal government has control (such as commercial regulations) or the employees or officers of the federal government. The so-called police power was reserved to the states.

Placing the Second Amendment aside, nowhere in the list of powers given to the federal government is there power to make any particular type of gun or any other thing illegal. How does Congress justify making laws regulating both the lawful and unlawful sale of drugs, guns, tobacco, and automobiles? How does Congress justify laws governing wages, labor standards, business practices, the environment and hundreds of other areas?

Congressmen want their constituents to think that they are doing something about a public concern. If there is a spectacular crime, Congressmen want to pass a law. It looks good at election time. Over the years Congress has intruded into areas that were at one time thought to be controlled by the states. Congress did this by either linking its laws to some specific grant of power given by the Constitution or by coercing states into passing laws by giving or withholding money. The first federal gun law was a tax on the sale of machineguns. That is why the Treasury Department, not the Justice Department, has usually enforced federal gun laws.

One of the most common excuses used to justify federal expansion is Congress's power to regulate commerce. Just about anything we use has traveled in interstate commerce at some time. Even if something was manufactured in our own state, the raw material probably traveled in interstate commerce
At some level everything we do impacts someone else. It is easy to see how the power to regulate commerce can be expanded to rationalize the broad power the federal government assumes today. Within the last decade, the federal courts have started to limit Congress's expansive reading of the commerce clause. This may be motivated more by the federal court's distaste for assuming the role of a local police court than it is by a commitment to state's rights.

If there is a conflict between federal and state law, federal law supersedes state law. State law, however, cannot be ignored just because federal law also covers the activity. Both federal and state law can govern the same activity at the same time if it is not clear that Congress intended to exclude state control over an area. For example, federal law has established a federal bankruptcy code. State law, however, often governs which of the debtor's assets are exempt from being taken to satisfy a debt. If you obtain a homestead exemption under state law to protect your home from creditors, a federal bankruptcy court will recognize the state created exemption.

This dual aspect of federal and state laws sometimes leads to results that our Founding Fathers would find upsetting. The Constitution says you cannot be tried twice for the same crime. This is called double jeopardy. If, however, you rob a federal bank, you can be tried under state law for robbery and under federal law for robbing a federally chartered bank. Logic would say this is being tried twice for the same crime. The courts held it is not the same crime because two different laws were violated-one state and one federal.

If the federal law fully occupies a field, state laws become a nullity. A number of years ago the federal government passed legislation governing employee pensions. It indicated that it intended to fully occupy that area of the law. State laws governing the same issues became unenforceable.
When it comes to firearms laws, the federal government often shares jurisdiction with the states. In most instances gunowners must comply with the most restrictive aspects of both laws. If federal law is more lenient than state law, you are not excused from complying with state law. For example, federal laws do not require a gunowner to be licensed, but if the state law requires it, the gunowner must be licensed or he or she will be in violation of the state law. On the other hand, some people who qualify for a state license may be disqualified from owning guns under federal law. If such people own guns, even though they have a state license, they can be prosecuted for violation of the federal law. The more restrictive federal law governs.

There are some areas in which federal law has superseded state firearms laws. 1. A person acting under federal authority in performance of his or her duty does not need state permission to carry an issued gun. Example: Members of the Armed Forces in performance of their duty. 2. Under the Firearms Owner's Protection Act a gunowner may travel from one state to another without being subject to laws of the states he or she is passing through if his or her gun is unloaded and locked in the trunk of the car and if he or she could legally possess the gun where the journey began and where it ends. 3. A law enforcement officer who is authorized to carry a firearm by his or her own agency may carry that firearm into another state without regard to that other state's laws. Under certain circumstances a retired law enforcement officer may also carry his or her firearm into another state if he or she meets the standards set out in the statute. Among other things, the retired officer must have the proper identification as to his status and needs a certification that he or she has, within the last year, met the firearms training qualifications for active police officers.

A gun or magazine which is now lawful in one state because of the ending of the federal AWB may not be lawful in a different state. As there are no assault weapons bans in most states, people who obtain guns or magazines lawfully in some states risk prosecution if they take their property into a state with restrictive laws. Before bringing a semi-automatic or large capacity gun or magazine into one of the restricted states, a gunowner should check the laws of that state for two reasons. First, the definition of what is an "assault weapon" is not consistent in those states with separate assault weapon legislation. Second, there may or may not be a way to lawfully bring the high capacity gun or magazine into the restricted state.

As time goes by, pre-ban and post-ban magazines will cause problems in those restricted states that have grandfather clauses that allowed people to continue to own high capacity guns or magazines acquired before the federal ban. Identifying such magazines is not always easy. In states with outright bans on high capacity magazines this is not a big problem because the magazines are banned no matter when produced.

With the current makeup of Congress, it is unlikely that another assault weapons bill will pass in the immediate future. We can expect anti-gun forces to attempt to panic local governments into passing assault weapons legislation. The fact the federal AWB had little impact on crime will be ignored. Large capacity guns, especially rifles and shotguns, are seldom used in crimes. Anti-gun forces will talk about how the crime rate dropped when the assault weapons legislation passed but they will ignore the fact that crime was dropping across the board at that time. They will ignore the fact that the right of the average citizen to carry a handgun concealed was expanding at that time. Proponents of assault weapons bans will talk about terrorists. Terrorists rely more on explosives than guns. Terrorists have extensive international networks that are not dependent upon sporting goods stores where they are subject to identity checks.

People fear the unknown. We can expect that those who do not like guns will attempt to tap into that fear. As always, education is the best cure for prejudice. We must all be alert to efforts to panic the general public and be prepared to counter them with the truth.