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Thread: HB 4955 of 2017 Prohibit department from considering firearm possession in placement of a child in foster care or of an adoptee

  1. #11
    Administrator zigziggityzoo's Avatar
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    Quote Originally Posted by Shyster View Post
    This is a HORRIBLE bill. Yes it sounds good at first glance but what it actually does is chip away at field preemption.

    It is already illegal for agencies to consider firearms ownership under MCL 123.1101. This could easily harm rather than help us.
    MDHHS is a state agency, not a unit of local government. I don't understand.

    Is it because of the "field preemption" argument that we recently lost with the school districts? That only the state legislature should be able to regulate guns unless they explicitly allow it?

    So should we be suing MDHHS?
    "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." --Benjamin Franklin
    “No state shall convert a liberty into a privilege, license it, and attach a fee to it.” --Murdock v. Pennsylvania
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  2. #12
    Legal Forum Contributor / Super Moderator Shyster's Avatar
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    Quote Originally Posted by zigziggityzoo View Post
    MDHHS is a state agency, not a unit of local government. I don't understand.

    Is it because of the "field preemption" argument that we recently lost with the school districts? That only the state legislature should be able to regulate guns unless they explicitly allow it?

    So should we be suing MDHHS?
    Although 123.1101 et seq. do not directly apply the courts in the past have ruled that the legislature "occupies the field" of firearms regulation. This is why you can walk into a Secretary of State office and not see a sign banning firearms. Once you start enumerating what agencies are banned from regulating firearms it is an easy step for an anti-gun judge to rule that unlisted agencies must then possess the ability to do so.
    DISCLAIMER: The opinions expressed in my posts are my own and do not necessarily reflect the opinions, views, or official policies of Michigan Gun Owners. Any opinion I express on an issue should not be considered legal advice.

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  3. #13
    Administrator PhotoTom's Avatar
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    Quote Originally Posted by Shyster View Post
    Although 123.1101 et seq. do not directly apply the courts in the past have ruled that the legislature "occupies the field" of firearms regulation. This is why you can walk into a Secretary of State office and not see a sign banning firearms. Once you start enumerating what agencies are banned from regulating firearms it is an easy step for an anti-gun judge to rule that unlisted agencies must then possess the ability to do so.
    Good input! You should be a lawyer!

    I've seen similar instances where enumerated lists are used to justify "if not on the list, it doesn't apply" judgements…even when the list clearly states "including, but not limited to…"

    DISCLAIMER: The opinions expressed in my posts are my own and do not necessarily reflect the opinions, views, or official policies of Michigan Gun Owners.

  4. #14
    Administrator zigziggityzoo's Avatar
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    So should we be suing MDHHS or should we be advocating for more explicitly clear preemption?
    "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." --Benjamin Franklin
    “No state shall convert a liberty into a privilege, license it, and attach a fee to it.” --Murdock v. Pennsylvania
    NOTHING IN THIS POST CONSTITUTES LEGAL ADVICE. Please consult an attorney for all legal matters.
    ALL of the posts I make are my own, and do not speak for MGO as a forum or as an organization.

  5. #15
    Legal Forum Contributor / Super Moderator Shyster's Avatar
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    Quote Originally Posted by zigziggityzoo View Post
    So should we be suing MDHHS or should we be advocating for more explicitly clear preemption?
    MDHHS is already being sued by the Second Amendment Foundation in federal court.

    What we really need is some teeth in preemption but Snyder had indicated the only way he would sign something like that would be to give local governments the ability to opt out. Obviously that would be worse than we have now.
    DISCLAIMER: The opinions expressed in my posts are my own and do not necessarily reflect the opinions, views, or official policies of Michigan Gun Owners. Any opinion I express on an issue should not be considered legal advice.

    For those interested in establishing an NFA or Gun Trust click here. For my contact information click here. Follow me on Twitter @makowskilegal or my website www.makowskilegal.com

  6. #16
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    Quote Originally Posted by Shyster View Post
    MDHHS is already being sued by the Second Amendment Foundation in federal court.

    What we really need is some teeth in preemption but Snyder had indicated the only way he would sign something like that would be to give local governments the ability to opt out. Obviously that would be worse than we have now.
    wat?
    the only way we should penalize people for ignoring the law is if we give them the option to ignore the law?
    "Sec. 2. All persons who are commonly known as “Greasers” or the issue of Spanish and Indian blood, ... who go armed and are not known to be peaceable and quiet persons, and who can give no good account of themselves, may be disarmed by any lawful officer, and punished..." - Disarming of "Greasers", An Act to punish Vagrants, Vagabonds, and Dangerous and Suspicious Persons” California, passed April 30, 1855.

  7. #17
    Administrator zigziggityzoo's Avatar
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    I rather like Florida's preemption language:

    (1) Preemption.—Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.
    There's even penalties.

    http://www.leg.state.fl.us/statutes/...s/0790.33.html
    "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." --Benjamin Franklin
    “No state shall convert a liberty into a privilege, license it, and attach a fee to it.” --Murdock v. Pennsylvania
    NOTHING IN THIS POST CONSTITUTES LEGAL ADVICE. Please consult an attorney for all legal matters.
    ALL of the posts I make are my own, and do not speak for MGO as a forum or as an organization.

  8. #18
    Administrator zigziggityzoo's Avatar
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    Quote Originally Posted by Shyster View Post
    Although 123.1101 et seq. do not directly apply the courts in the past have ruled that the legislature "occupies the field" of firearms regulation. This is why you can walk into a Secretary of State office and not see a sign banning firearms. Once you start enumerating what agencies are banned from regulating firearms it is an easy step for an anti-gun judge to rule that unlisted agencies must then possess the ability to do so.
    It occurs to me that this is EXACTLY what we would want the legislature to do - dictate the rules a state agency can place upon guns. Is this not exactly what field preemption demands?

    The only way to improve it is to have some sort of nod toward preemption in the language.
    "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." --Benjamin Franklin
    “No state shall convert a liberty into a privilege, license it, and attach a fee to it.” --Murdock v. Pennsylvania
    NOTHING IN THIS POST CONSTITUTES LEGAL ADVICE. Please consult an attorney for all legal matters.
    ALL of the posts I make are my own, and do not speak for MGO as a forum or as an organization.

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