Gun decision could doom SB 1070
by Hugh Holub on Jul. 01, 2010, under border issues, politics, SB 1070
In one of the great ironies of life, the recent US Supreme Court decision on gun rights could doom SB 1070.
The gun rights decision focused on whether US Constitutional rights apply to state and local governments…in this case the Second Amendment.
The issue revolves around whether the 14th Amendment to the Constitution allows a “reach through” to apply federal laws and rights to states.
The US Supreme Court used the 14th Amendment to reach through and strike down state and local laws regulating guns in violation of the Second Amendment.
What we have in Arizona with SB 1070 is a state trying to meddle with what is clearly federal law…immigration.
Under the same legal theory used to strike down gun restrictions, federal courts may have an open door now to strike down SB 1070 as infringing on federally pre-empted authority.
I’ll bet gun rights advocates will be surprised that their victory reaches to a lot of places where federal pre-emption can be applied to state and local government protecting people’s federal rights and freedoms they didn’t see coming.
On a second level, another defect in SB 1070 is the attempt to dictate to local governments what their law enforcement priorities should be.
It is well settled law in Arizona that prosecutors have absolute discretion over which cases they prosecute and which ones they don’t. There are limited resources to enforce the law, so cops and prosecutors have to have discretion where they focus their resources.
What SB 1070 attempts to do, especially via the citizen suit provision, is to dictate to local jurisdictions that enforcing immigration law takes precedence over local decisions on where to use their law enforcement resources. My guess is the courts will strike SB 1070 down also on the basis that the legislature cannot divert police and prosecutorial resources to enforce a non-violent misdemeanor offense.
Opponents of illegal immigrants keep whining “but they violated the law”. Yes they did…and everyone violates laws all the time. All laws are not equally enforced because of the limitation on resources to do that…and that is reality. It is clearly a situation where Joe Arpaio and his buddies want to divert Arizona’s law enforcement resources to the immigration issue.
Too bad all the energy being spent to try and run illegal aliens out of the state couldn’t be spent on finding a way to create a legal path for workers to be here. The absence of any serious effort on the part of the anti-immigrant crowd to solve the problem with a legal path speaks volumes about the racist undertone to this fight.
My bet is the courts will make short work of SB 1070 because the state cannot get into the immigration issue, and the legislature cannot usurp police and prosecution discretion as to where to use limited law enforcement resources.
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[Note: I am an attorney and a former prosecutor.]
July 1st, 2010 on 7:05 am
Hey Hugh: Although I’m not a sitting appelate judge, I have stayed at a Holiday Inn Express on occasion, and in my learned opinion I believe that you’re delving into a bit of wishful thinking again. If you’d like to point out the case law, I’d be all ears. Your witness. Yer pal, the honorable Ferrari Bubba
July 1st, 2010 on 7:26 am
Your comparison between the 2nd Ammendment and immigration is weak at best. The 2nd Ammendment is finally applied as it was intended. The Arizona law is the same as the Federal law except it allows the State to enforce it. Your argument would be that states should not be able to enforce any Federal laws.
As far a racist undertone, I live on the Canadian border and the only way I can tell if a Canadian is here illegally is…well I can’t. So we just watch for individuals crossing the border illegally. That is not racist position just as Arizon’s is not a racist position. It simply a matter of law.
As far as diverting law enforcement to immigration and away from other tasks is wierd because it turns out that cleaning up the illegal aliens in an area reduces crime. Who would have thought that getting rid of illegal aliens would reduce crime because they are all so law abiding to start with.
Thanks for humerous article, we all need a good laugh now and then. Keep up the good work.
July 1st, 2010 on 8:08 am
Hugh made it fairly clear that the reason the Supreme Court ruling is important is because it’s legal implications actually have more to do with the 14th amendment rather than the 2nd amendment. Much to popular surprise, the federal governments relationship to states and cities is why this ruling is important rather than just protecting gun rights. The legal president that was set wasn’t your right to bear arms, but that local municipalities and states do not have the ability to enforce or change laws in the federal domain. Sure the immediate effect of the ruling was that Chicago can’t alter gun ownership in the way it did, but the more lasting effect is how federal and state laws can interact. That is why the ruling may have an effect on SB 1070 rather than just guns as you suggest.
July 3rd, 2010 on 12:42 am
It’s not the federal law just applied to the states. Because prior to this law states could enforce immigration without any additional state laws. Under the old way states would find illegal immigrants and turned them over to federal ice agents. This law makes it a state crime, which is where the constitutionality issue comes in. The state could now act on it’s own without the federal government. The constitution explicit gives this power to the feds, so the states have no constitutional rights to do what they are doing. This is why people keep complaining about the feds not doing their job.
July 1st, 2010 on 9:18 am
Amnesty will be given to the undocumented for one reason only. “They deserve it and the country needs them”.
July 1st, 2010 on 9:56 am
Wow. Talk about not understanding constitutional law. I would have expected such half-baked reasoning and a misguided interpretation constitutional decisions from the average columnist trying to sell a story, but from an attorney? Submit this column to your constitutional law professor and he or she will revoke your passing grade!
I would suggest you actually read Justice Alito’s opinion in McDonald (focusing on the selective incorporation arguments) before you further embarrass yourself with such ridiculous predictions. Then, read SB 1070. And then the U.S. Constitution, Art I, Sec. 8, which states only that Congress has the authority “To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.” Granting the federal legislature the power to establish “uniform rules” does not, by itself, cede all enforcement authority to the federal government, nor does it bar the states from enacting state laws criminalizing behavior that is already criminalized by the U.S. Code. And that is all SB 1070 has done.
@ Seth, you wrongly assume that the door swings both ways. Selective incorporation under the 14th Amendment does not, by itself, bar states from enforcing federal law (or enacting and enforcing parallel laws), nor does the McDonald opinion speak to that issue. The concept of selective incorporation does bar states from infringing on rights granted under the U.S. Constitution to the same extent to which the Federal government is barred. As an example, Justice Alito makes perfectly clear in his opinion, states can, and will, continue to enact restrictions on ownership of firearms by felons, mentally ill people, etc., despite the fact that they are citizens and have an individual “right” to keep and bear arms. The judicial scrutiny used to evaluate such laws will almost certainly change, however.
July 1st, 2010 on 10:07 am
El Presidente Obamao (Maobama), John McCain and even good old Jim Ward, whose running in Arizona, share the amnesty mindset. Jim Ward even called for an “immersion program” that “prepares them to be U.S. citizens” on the June 17 Barry Young Show, on KFYI 550 AM.Quote: “It’s a time-based test… in order to become a citizen you have to learn the English language… understand our culture… learn our banking system – they don’t even know how to open a bank account… it’s got to be a program that prepares them to be U.S. citizens and see whether or not they want to be U.S. citizens.”VOTE OUT ALL POLTICIANS THAT ADAVANCE AMNESTY!WE ARE IN A TERRIBLE GREAT RECESSION, ALMOST DEPRESSION!WE SIMPLY CANNOT AFFORD MORE FOREIGN WORKERS AT THIS TIME!
July 1st, 2010 on 11:25 am
There are already multiple paths for illegal aliens to come clean. Guillermina Jasso pointed this out in a 2009 April 8 forum at the NY Times:
http://roomfordebate.blogs.nytimes.com/2009/04/08/do-we-need-foreign-technology-workers/#more-2989
which also included Vivek Wadhwa, Norm Matloff, Ron Hira, Mark Heesen, and John Miano.
She said that it is not unusual for people to go from being an illegal alien to legal visitor/student/guest-worker, etc.
It’s quite clear that Obama never intended to keep his oath of office, and neither have Sotomayor, Pelosi, or Reid. And Kagan has already testified that she does not intend to fully adhere to the US constitution and laws (the Declaration of Independence is the very first part of Title 1 of the US Code).
July 1st, 2010 on 12:08 pm
Path to citizenship and amnesty is just rewarding illegal behaior. Can I go rob a bank b/c my 3 small children are hungry and homless?When I’m arrested I can say, “But I only wanted a better life for me and my family. We have such a hard life and no food, no place to sleep. I’ll do ANYTHING for my family.Please dont send me to jail, you’ll separate me from my children years and tear apart my family!” Would I just be released b/c of pity? Would the police or judge say, “OH we are sorry. Its okay that you broke the law. You had a good reason to.” Maybe I’ll just get a little slap on the hand so I can go out and rob another bank? NO! NO! NO amnesty! NO immigration reform! Obama is a treasonist and is only out to harm the U.S. Enforce the existing Federal laws and any law such as SB1070 and clean up this ILLEGAL activity!
July 3rd, 2010 on 12:45 am
I guess that is why Reagan gave illegals amnesty in the 80′s. He wanted to reward them.
I have never understood how conservatives forgive Reagan for doing this.
July 1st, 2010 on 1:26 pm
Those advocates of unsecured open borders and unlimited immigration agree with your pipe dream 100%. I doubt that real Americans sitting on high court benches actually will.
July 3rd, 2010 on 12:47 am
No one is advocating for an unsecured border. In fact, everyone republicans and democrats want the border secured. The debate is on amnesty or not.
The real pipe dream is that people think that every illegal will be deported. That is naive to think that will happen, because even under Bush we weren’t deporting that many people.
July 1st, 2010 on 1:26 pm
I agree with Chuck. This article shows a very poor understanding of constitutional law. The McDonald decision dealt with whether and to what extend the 2nd Amendment applied to the states via the due process and the privileges and immunities clauses of the 14th Amendment. This has very little to do with the Supremacy Clause and Art. sec. 8, which are at the heart of the anti-SB1070 arguments.
July 1st, 2010 on 1:26 pm
I agree with Hugh. BTW, The childishly sulky and bad-tempered approach (namely, “NO! NO! NO amnesty! NO immigration reform!”) by Hoosier Woman is precisely what polarizes the discussion of immigration. Faulty logic and racial prejudice is clearly read between the lines of her/his rant. No one denies illegal immigration shouldn’t be penalized -that’s a given- the question really should be, what do we do with the people whom we acknowledge it or not contribute to the economy one way or another. How can they make restitution for their offense? I too anticipate that SB 1070 will be strike down -it’s utterly ridiculous.
July 1st, 2010 on 2:07 pm
@abe So your going to call me a racist? I am a caucasion woman with a 20 year old Hispanic son who was born in Tucson Arizona. His father was born in Tucson too and his family LEGALLY immigrated to the U.S. a few generations ago. I kissed, hugged, touched, licked, caressed, and made love to a hispanic man and had his child and your calling me a RACIST? My son has NO problem with carrying and showing his driver’s license and birth certificate to prove his legal residence. Your faulty logic and pro open borders agenda makes it easy for illegals to come across into the U.S. How about you just pack up your bags and go to Mexico…illegally…and see if they welcome you with open arms! If anyone is the racist IT IS YOU! This law has NOTHING to do with race! It has EVERYTHING to do with abiding by the law! There is no restitution that they can pay to give them an easy pass to citizenship, therby taking cuts in front of other immigrants who are abiding by the law and doing things the right way. They need to go back to their own country, and come to the U.S. the right way! NO REFORM! It didnt work in 1986 with The Immigration Reform and Control Act (IRCA), and it WONT work now. It will mean that even MORE illegals will come across just trying to buy time until we get yet another clueless president to give them “amnesty”!
July 1st, 2010 on 5:42 pm
Amen Hoosier Woman,
I am married to a woman who was BORN in Mexico, her mother is a LEGAL resident alien from Mexico. Her father is an American of non-Hispanic origin.
We can deal with the 12+million of illegal aliens (Not all of them want to immigrate, and they are a lot more than undocumented workers) after we have secured the border so that more do not come.
I think they SHOULD all be deported. I think they SHOULD NOT get any social benefits, such as food stamps, health care, or education. I would not be bothered at all if we simply adopted the same immigration laws as Mexico.
I also realize that will not happen. That eventually some sort of compromise will have to be made and that many of the illegal aliens here now will get some sort of legal status.
However that point is moot until we can actually say that we control who is coming into our country. After we have that we can then answer the questions on how long they can stay, who can and can not immigrate, etc.
July 1st, 2010 on 9:09 pm
Actually, what they decided was the states cannot deny our rights ie it ruled that most Americans can have a handgun in their homes for self-defense. Arizona’s law simply mirrors Federal Law (that wasn’t and still isn’t being enforced). If your Second Amendment scenario were used, its like AZ making a law that allows its citizens to have handguns for self-defense. Even if you struck down the law, there is still the federal law. Now we are back to the original problem…the fed is NOT enforcing the law. They seem to feel as if we owe the illegal aliens something. Hopefully we get the liberal idiots out of congress before Hussein grants immunity for millions of criminals that broke our laws and slipped into America.
K-ROD
Patriot and Second Amendment guy
July 3rd, 2010 on 12:51 am
How do you conservative idiots forgive Reagan for granting immunity to millions of criminals in the 80′s?
I am thankful that we took our country back from the conservative idiots who ran it into the ground by doubling our deficit, 2 unfunded wars, and removal of our freedoms, and violation of our privacy with the patriot act. Thank god we kicked the republican bums out.
July 16th, 2010 on 11:02 am
Matthew
If you can’t see your freedoms dispating under this administration your blind as a bat. I have no faith in any political party as they are nothing more than Organized Crime rings.Look at our governments latest attempts to register internet users with so called (smart cards) in there words to save us from the evil ones- yea right. Wake up buddy!!
July 1st, 2010 on 9:31 pm
the law is on the federal books illegal means the same thing federal state city inforce the laws we have no need to keep writing new ones that say the same thing if your here illegally get the hell out of here and come to this great country the right way .and become an AMERICAN speak and drress and walk like an AMERICAN.
July 4th, 2010 on 3:18 pm
…AMERICAN speak and drress and walk like an AMERICAN.
This means you’ll have to learn to mangle English as effectively as your good friend Dave does above.
July 2nd, 2010 on 2:39 pm
An “attorney” by which I imaging you mean to say “lawyer” and a former prosecutor you may be, but you’re not clear at all about what, in the context of 14th Amendment law, was novel in the McDonald decision.
July 4th, 2010 on 2:56 pm
Never forget that we the people in Arizona are armed.
If the government wont protect the borders, we will.
Not there yet but its getting closer.
Do NOT tread on me…………………….
July 4th, 2010 on 3:19 pm
The land of the free and the home of the half-wit with a gun.
July 16th, 2010 on 10:54 am
Not the same,Chicago was circumventing Federal Law and Arizona is mirroring Federal Law.Arizona is simply enforcing Federal Law not changing it.It doesn’t take a lawyer to figure that one out.
July 18th, 2010 on 8:23 am
Though I grew up in Tucson, luckily I’ve left the herb-smoked news environment of the little valley of the Sun long since behind.
Everyone else has said it same as I. The gun ruling is simply applying the edict that states shall not make a law superseding a constitutionally granted “right”. It has nothing to do with “laws” per se.
If they attempt to say that states cannot enforce a “law” that is the same as a Federal Law, then all any state need do is pass a law that mirrors a Federal Law to raise the ire of the Feds? So, no state can enact banking regulation, healthcare, indigent relief? … seriously?
The Feds are treading deeply into “unequal application of the Law” in opposing SB-1070, and furthermore, to apply the same logic as the gun issue, you are attempting to say that foreign born “invaders” have a “right” to citizenship that supersedes all else… something the constitution simply cannot allow.