"Alaska/Vermont Carry" makes us Federal violators?

[Matthew Carberry]

Something I ran into in a thread online.  I think my reasoning is correct and will apply to any other state that goes Alaska/Vermont.

Alaska doesn't require a permit to carry a loaded weapon, concealed or openly, on the body or in a vehicle. 

Federal law only allows for carry of loaded weapons, on the body or in a vehicle, within 1000 feet of a K-12 school with a state permit.

My AK CHL expired a few years back, I am now breaking federal law multiple times every time I drive through town.  Folks who open carry or carry in their car loaded weapons, for which a permit was never required, are also Federal scofflaws as they travel through town or even leave their own homes.
 
I am going to write a letter to the local Federal prosecutor and get his opinion on that.

Given that many more states allow permitless carry (usually openly) of loaded weapons now than in '86 when the Gun-free School Zone Act passed, it might be time to get our (and Vermont's and everyone else's) legislators angling to at least remove the 1000' nonsense and restrict "school zone" to mean "school property".

[Strings]

Ummm... I had been under the impression that the whole "gun free zone" of 1000' had been changed, as it would have caused severe problems for those living near schools...

[gunsmith]

idk, unloaded open carry is legal inCA but SF is so full of schools calguns says not to do it

[LAK]

They have no jurisdiction - unless it has been ceded or partially ceded by the state concerned.

[Jamisjockey]

They have no jurisdiction - unless it has been ceded or partially ceded by the state concerned.

Hasn't stopped the fed.gov from persecuting drug posession in states that have legalized it.

[Balog]

Hasn't stopped the fed.gov from persecuting drug posession in states that have legalized it.

Remember, the Commerce Clause means the Tenth Amendment is pretty much null and void.

[Matthew Carberry]

Before this drifts off into supposition. 

The USSC declared the 1990 GFSZ Act unConstitutional only because it failed to identify what gave Congress the right to regulate.

The Amended Act in '96 simply added that the .gov must prove the gun had travelled in interstate commerce (the "everything is Federally okay clause").

The "out", as stated, is that most Feds don't pull people over for traffic violations or what-not so it is unlikely that the violation will ever come to their attention, but they do have "jurisdiction". 

All it takes is a local or state prosecutor to refer a, say, speeding, otherwise law-abiding gun owner popped on a traffic violation to a Federal prosecutor and the fact they were 100% legal under their own state's laws will be meaningless.

The penalty is up to $5,000 and 5 years in prison.  That's right, Alaska-carry by a school, or just have a loaded gun in your car where no permit is necessary, and you could lose your gun rights forever.

Far-fetched?  Depends on where you happen to be and what that prosecutor decides.  Once it gets into the Feds' hands there is nothing a pro-gun state governor or legislator can do to help you.

[CNYCacher]

Before this drifts off into supposition. 

The USSC declared the 1990 GFSZ Act unConstitutional only because it failed to identify what gave Congress the right to regulate.

The Amended Act in '96 simply added that the .gov must prove the gun had travelled in interstate commerce (the "everything is Federally okay clause").

The "out", as stated, is that most Feds don't pull people over for traffic violations or what-not so it is unlikely that the violation will ever come to their attention, but they do have "jurisdiction". 

All it takes is a local or state prosecutor to refer a, say, speeding, otherwise law-abiding gun owner popped on a traffic violation to a Federal prosecutor and the fact they were 100% legal under their own state's laws will be meaningless.

The penalty is up to $5,000 and 5 years in prison.  That's right, Alaska-carry by a school, or just have a loaded gun in your car where no permit is necessary, and you could lose your gun rights forever.

Far-fetched?  Depends on where you happen to be and what that prosecutor decides.  Once it gets into the Feds' hands there is nothing a pro-gun state governor or legislator can do to help you.

I wonder if you plead guilty to speeding in a school zone could your ticket be used to prove you were there or is it protected under the fifth?

[Matthew Carberry]

Under Alaska law you are required to inform the police when contacted when carrying a gun.

Again, I don't see this being a huge issue, as far as I know no one has gone down in the situation described in either AK or VT, but our prosecutors like to keep their jobs and our Feds are pretty good.  That's why I want to ask the local Fed. office and get their take.

I'd also like to look at the change in the number of states since '90 that have provisions for permitless carry of loaded weapons, open or concealed.

If it has grown and is a significant number, it might be worth seeing if one of the pro-gun Congressmen could raise the issue and remove the 1,000 foot requirement or modify the law to say "as allowed by the state" as opposed to "with a state license that requires a background check.

In fact, how many states with licenses require a background check to get one? 

Here's the license exception.

http://www.gunlaws.com/Gun_Free_School_Zones_Act.pdf

(ii) if the individual possessing the firearm is licensed to
do so by the State in which the school zone is located
or a political subdivision of the State, and the law of
the State or political subdivision requires that, before
an individual obtain s such a license, the law
enforcement authorities of the State or political
subdivision verify that the individual is qualified
under law to receive the license;

[LAK]

JamisJockey

Hasn't stopped the fed.gov from persecuting drug posession in states that have legalized it

I do not know of any of the cases you speak of that have challenged the prosecution on the grounds of jurisdiction where the federal government had no jurisdiction.

Most people are "blissfully" unaware of the fact that jurisdiction is required, and that no one is required to tell them that before they enter a guilty plea, or their "defense" is defeated on other grounds.

Here are some SCOTUS cases where jurisdiction (state and federal) was challenged:

Reily v. Lamar, 2 Cranch 344 (1804)

United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818)

I would suggest reading Adams v. United States for the most straightforward rendering.

New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836)

Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845)

United States v. Erie Ry. Co., 106 U.S. 327, 333, 1 S.Ct. 223 (1882)

Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 5 S.Ct. 995 (1885)

Chicago, R. I. & P. Ry. Co. v. McGlinn, 114 U.S. 542, 5 S.Ct. 1005 (1885)

Benson v. United States, 146 U.S. 325, 13 S.Ct. 60 (1892)

Palmer v. Barrett, 162 U.S. 399, 16 S.Ct. 837 (1896)

Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864 (1897)

Hamburg American Steamship Co. v. Grube, 196 U.S. 407, 25 S.Ct. 352 (1905)

Battle v. United States, 209 U.S. 36, 28 S.Ct. 422 (1908)

Western Union Telegraph Co. v. Chiles, 214 U.S. 274, 29 S.Ct. 613 (1909)

Holt v. United States, 218 U.S. 245, 31 S.Ct. 2 (1910)

United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480 (1911)

Western Union Telegraph Co. v. Brown, 234 U.S. 542, 34 S.Ct. 955 (1914)

Omaechevarria v. State of Idaho, 246 U.S. 343, 346, 38 S.Ct. 323 (1918)

Rodman v. Pothier, 264 U.S. 399, 44 S.Ct. 360 (1924)

Colorado v. Toll, 268 U.S. 228, 45 S.Ct. 505 (1925)

Arlington Hotel Co. v. Fant, 278 U.S. 439, 49 S.Ct. 227 (1929)

United States v. Unzeuta, 281 U.S. 138, 50 S.Ct. 284 (1930)

Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455 (1930)

Standard Oil Co. v. California, 291 U.S. 242, 54 S.Ct. 381 (1934)

Murray v. Joe Gerrick & Co., 291 U.S. 315, 54 S.Ct. 432 (1934)

James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208 (1937)

Silas Mason Co. v. Tax Commission of State of Washington, 302 U.S. 186, 58 S.Ct. 233 (1937)

Atkinson v. State Tax Commission of Oregon, 303 U.S. 20, 58 S.Ct. 419 (1938)

Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 58 S.Ct. 1009 (1938)

Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442 (1939)

James Stewart & Co. v. Sadrakula, 309 U.S. 94, 60 S.Ct. 431 (1940)

Penn Dairies v. Milk Control Comm. of Pennsylvania, 318 U.S. 261, 63 S.Ct. 617 (1943)

Pacific Coast Dairy v. Dept. of Agriculture of California, 318 U.S. 285, 63 S.Ct. 628 (1943)

Adams v. United States, 319 U.S. 312, 63 S.Ct. 1122 (1943)

Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622 (1944)

Wilson v. Cook, 327 U.S. 474, 66 S.Ct. 663 (1946)

S.R.A. v. Minnesota, 327 U.S. 558, 66 S.Ct. 749 (1946)

Howard v. Commissioners of Sinking Fund of City of Louisville, 344 U.S. 624, 73 S.Ct. 465 (1953)

Offutt Housing Co. v. County of Sarpy, 351 U.S. 253, 76 S.Ct. 814 (1956)

Paul v. United States, 371 U.S. 245, 83 S.Ct. 426 (1963)

Humble Pipe Line Co. v. Waggonner, 376 U.S. 369, 84 S.Ct. 857 (1964)

United States v. State Tax Commission of Mississippi, 412 U.S. 363, 93 S.Ct. 2183 (1973)

McClanahan v. State Tax Comm. of Arizona, 411 U.S. 164, 93 S.Ct. 1257 (1973)

California Coastal Comm. v. Granite Rock Company, 480 U.S. 572, 107 S.Ct. 1419 (1987)

[De Selby]

LAK,

Jurisdiction is something that has to be alleged and proved in these cases.  99 percent of the time, that step is a formality because the jurisdictional basis is clear and has not been struck down by the court in which the prosecution occurs.  Because legislators and prosecutors are mostly lawyers, the laws and the prosecution strategies rarely fail to take account of the fundamentals like jurisdiction.  In the real world, the only realistically available defense for most crimes is the SODDI defense - Some Other Dude Did It.

Carebear nailed a mighty interesting issue here. 

[Jamisjockey]

JamisJockeyI do not know of any of the cases you speak of that have challenged the prosecution on the grounds of jurisdiction where the federal government had no jurisdiction.

Most people are "blissfully" unaware of the fact that jurisdiction is required, and that no one is required to tell them that before they enter a guilty plea, or their "defense" is defeated on other grounds.

http://www.guardian.co.uk/world/2008/aug/11/drugstrade.internationalcrime

http://www.csdp.org/news/news/ap_raich_060605.htm

Supreme Court Allows Prosecution of Medical Marijuana
Associated Press, June 6, 2005
As carried by CNN.com at http://www.cnn.com/2005/LAW/06/06/scotus.medical.marijuana.ap/ as accessed June 6, 2005.
Federal authorities may prosecute sick people who smoke pot on doctors' orders, the Supreme Court ruled Monday, concluding that state medical marijuana laws don't protect users from a federal ban on the drug.

The decision is a stinging defeat for marijuana advocates who had successfully pushed 10 states to allow the drug's use to treat various illnesses.

The Obama administration has actually backed off this policy. 

[Matthew Carberry]

I think that would be the most likely result, that Federal prosecutors, absent some other meaningful charge, aren't likely to use the GFSZA as a primary prosecution.  Just not worth their time, up here anyway.

Unless of course someone decides to OC and stand right next to the crossing guard on the sidewalk just off a school's physical property and make law enforcement take notice.

[LAK]

Shootingstudent

Jurisdiction is something that has to be alleged and proved in these cases

Actually, jurisdiction is assumed by the prosecution. It is the defense that must challenge jurisdiction. Usually an appeals court would either dismiss or uphold a challenge to jurisdiction in a lower federal court without it having to go to the Supreme Court which is one of the reasons the list of SCOTUS cases over jurisdiction is not that long over a 100 year+ period.

JamisJockey

ARTICLE: Lynch's lawyers argued that he had been told by a federal agent that local jurisdiction would prevail and he would therefore not be prosecuted by federal authorities, a legal principle known as entrapment by estoppel. But prosecutors - and the jury - dismissed the contention.

Taking into account that this is a news article aside, on face value;

QUOTE: "Local jurisdiction would prevail and he would not be prosecuted by federal authorities" ENDQUOTE is not a challenge to federal jurisdiction. What this implies is that the defendant thought that because of the state law the feds would not prosecute. Like I stated earlier, and in effect, a federal agent, prosecutor, can drag you before a federal court and charge you with anything they please. A jury may even be persuaded that they have jurisdiction. However, in an Appeals Court, and in the Supreme Court jurisdiction will examined under a prescribed set of rules, and be very cut and dry.

Read Adams v. United States. If the geographical location of the alleged offense was not federal property, state territory where the state has ceded jurisdiction, partial or in whole, giving the federal gov jurisdiction over the crime specified - it is going to get dismissed in the higher courts.

"We all felt Mr Lynch intended well," the jury forewoman, Kitty Meese, told reporters after the trial. "But under the parameters we were given for the federal law, we didn't have a choice.

"It was a tough decision for all of us because the state law and the federal law are at odds," she said.

It appears, on face value here, that Lynch was sold out by his attorney representation, or that the jury was persuaded by federal prosecutors regardless.
I say this because of the QUOTE: "But under the parameters WE WERE GIVEN FOR THE FEDERAL LAW.." [Emphasis mine]. Now that could only have come from one of two places; the fed prosecutor(s) - or the judge. But someone was not giving the jury a straight deck of cards.

Unless the feds have some jurisdiction by right of territory or some other specific act with the cooperation of the state, all Lynch has to do is go to an appeal process specifically over jurisdiction and nothing else.

[De Selby]

LAK,

Jurisdiction is not "assumed" where the jurisdictional hook is an element of the offense - as it is in most of these sorts of federal crimes.  Every element of an offense has to be proved beyond a reasonable doubt.

This advice:

Read Adams v. United States. If the geographical location of the alleged offense was not federal property, state territory where the state has ceded jurisdiction, partial or in whole, giving the federal gov jurisdiction over the crime specified - it is going to get dismissed in the higher courts.

Is plainly false.  See Lopez v US, which tested an earlier incarnation of this exact law and elaborated where the federal government has jurisdiction under the commerce clause.

Federal jurisdiction is not dependent on territory.  Jurisdiction was ceded by the states when they ratified the constitution, and it's been that way since the beginning.

You are confused by the Adams case because you are not distinguishing between the general police power, which the Federal government only has in relation to specific pieces of territory, and the power to legislate around enumerated powers and duties, which the Federal government has anywhere in the US.  That was a case about the general police power over members of the military and how it relates to crimes on land that is within the boundaries of a state.

That analysis is irrelevant to a crime where the statute comes from, as with the gun law in question, an enumerated Federal power (commerce clause). 

[LAK]

Jurisdiction is not an element of a crime; jurisdiction is the authority of the court concerned to try and rule on cases within specified geographical territory.

In the case of federal courts, federal territory, property etc. Also in territory of ceded state jurisdiction, or partially ceded where the federal courts have jurisdiction over specified cases. Then there are cases crossing state jurisdictions, between states etc etc etc.

When I say jurisdiction is assumed, this is, apparently, the attitude of many federal agencies and prosecutors. And they do assume the federal courts have jurisdiction often outside it. This can be clearly demonstrated in the number of such cases they pursue. It is only brazen assumption on their part - or real ignorance.

It is evidently also assumed by a great many people in this country; that somehow federal jurisdiction has some all-reaching legal authority - regardless of what or where an alleged offense occurred.

Ask the federal prosecutor in the Lynch case to juxtapose Adams v. United States, with Mr Lynch's case - and explain it away. The only way he/she can do that is if the actual geographical ground where Lynch's alleged crime was federal territory, property - or the state has properly ceded jurisdiction over such cases to the federal courts. Or the ruling of the SCOTUS in  Adams v. United States i a complete fabrication. As are all the other SCOTUS rulings in similar cases where jurisdiction of the court - federal or state - was in dispute.

Without getting into the blatant abuse of the so-called commerce clause - it brings certain regulation within the jurisdiction of the federal government. It is not a blanket legal authority for the federal court to prosecute alleged crimes regardless of what piece of ground the act takes place.

Federal jurisdiction is not dependent on territory.  Jurisdiction was ceded by the states when they ratified the constitution, and it's been that way since the beginning

This is nonsense and supposes that all those SCOTUS cases I listed are pure fabrications.

Adams was brought before a federal court for a specified alleged crime. The SCOTUS ruled it had no jurisdiction to try the case because of a technicality in the ceding of state jurisdiction on the piece of ground concerned, It is as simple and clearly stated in the ruling as that.

[De Selby]

Jurisdiction is an element of the crime where the statute says it is- that is why it has to be proved in many federal cases.

Again, Adams is about jurisdiction over military bases and personnel.  There is an entirely distinct body of law on that subject, because it inolves a general police and legislative power of the fed gov. 

Ask a prosecutor and he will give you the same advice, as will a defense attorney.

Try this as an experiment - find a federal complaint of any kind where jurisdiction is not specifically alleged. 

That will be tough to do, as it's a form requirement on every form of process in the federal system.  And it gets argued all the time...

[LAK]

Shootinstudent,

Jurisdiction is an element of the crime where the statute says it is- that is why it has to be proved in many federal cases.

The nature of a criminal statute does not determine jurisdiction. Jurisdiction, the authority given to courts to try cases etc, is prescribed by the sovereign law (in our case the U.S. Constitution) of a nation.

Again, Adams is about jurisdiction over military bases and personnel.  There is an entirely distinct body of law on that subject, because it inolves a general police and legislative power of the fed gov.

You obviously have not read, or not understood Adams v. United States.

Military personnel are subject to the Uniform Code of Military Justice and Courts Martial. At issue in Adams v. United States was whether the federal court had jurisdiction on the property to prosecute a crime under the United States Code.

The SCOTUS ruled it did not.  The state court still had jurisdiction because the federal gov had not completed a technical formality of acceptance for the property. That is all.

I have been a military policeman; worked on bases with military (UCMJ) jurisdiction, federal jurisdiction, partial and concurrent jurisdiction with a state - and a foreign country for that matter, With civilians, state local and federal employees (some with police powers) thrown in the mix. Jurisdiction is always a matter of territory, and any ceded or partially ceded jurisdiction over specified cases and matters by agreement between the sovereign entities.

If you examine the SCOTUS cases where the jurisdiction was the issue at hand, you will see that reflected in the rulings and opinions.

[De Selby]

I'm actually an attorney- I'd lose my license if I ran the defense you are proposing here.

I did read Adams, and I can see why you are confused.  It isn't confusing if you have a basic knowledge of the fed courts, though.

Carebear, any response?

[LAK]

Shootinstudent,

I am not confused at all. The entire case is in english, as are all the others I have listed.  The occasional use of a latin word here and there do not obscure these things even to someone who is completely unfamiliar with them.

Attorney? I know several personally, some who have been practicing long enough to have gray hair.

Evidently you do not understand - or are avoiding why - the cases I listed were before the SCOTUS in the first place, and why the rulings were pronounced as they were. Your exact words in reply to mine indicate this this. You do not seem to know the application of the UCMJ as opposed to the United States Code on federal property, military bases, military personnel, civilians etc, nor have any knowledge of the interaction of local jurisdiction even on some federal properties. A plethora of state cases demonstrate the principle.

In Kuerschner v. State, 493 P.2d 1402 (Okl.Cr.App. 1972), the court held that the state had jurisdiction of a drug offense on an Air Force base. Why? Because the defendant failed to even attempt to prove the feds had jurisdiction.

Anytime someone claims to be this or that on a web forum I take it on face value. So I am not saying you are not a legal professional, or have not been to law school. But it is odd that you do not know the the legal definition of the word jurisdiction.

Even the federal gov itself has studied these issues and come to the same conclusions (not surprisingly).

SEE: Jurisdiction Over Federal Areas Within The States: Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States, Part II (1957):

It scarcely needs to be said that unless there has been a transfer of jurisdiction (1) pursuant to clause 17 by a Federal acquisition of land with State consent, or (2) by cession from the State to the Federal Government, or unless the Federal Government has reserved jurisdiction upon the admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, such jurisdiction being for exercise by the State, subject to non- interference by the State with Federal functions, (Id., at 45)

The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State (Id., at 46).

On the other hand, while the Federal Government has power under various provisions of the Constitution to define, and prohibit as criminal, certain acts or omissions occurring anywhere in the United States, it has no power to punish for various other crimes, jurisdiction over which is retained by the States under our Federal-State system of government, unless such crime occurs on areas as to which legislative jurisdiction has been vested in the Federal Government, (Id., at 107).

Let's see a few more:

The laws of Congress in respect to those matters do not extend into the territorial limits of the states, but have force only in the District of Columbia, and other places that are within the exclusive jurisdiction of the national government.

Caha v. United States, 152 U.S., at 215 (1894)

It is axiomatic that the prosecution must always prove territorial jurisdiction over a crime in order to sustain a conviction therefor.

United States v. Benson, 495 F.2d 475, 481 (5th Cir. 1974)

There are STACKS of cases at federal and state level that demonstrate this clearly, consistently, over and over again. The references I have - the case titles and dates - would fill a whole thread of several pages. All over jurisdictional questions.

If the feds could prosecute people for wearing or carrying firearms near schools they ought to come to the neighborhoods here in Houston where residences border right outside school properties. And people regularly handle, wear, carry whatever way you want to phrase it in and outside their homes. See if they can make any federal charges stick against a jurisdictional challenge.

Good luck

[Matthew Carberry]

On the other hand, while the Federal Government has power under various provisions of the Constitution to define, and prohibit as criminal, certain acts or omissions occurring anywhere in the United States, it has no power to punish for various other crimes, jurisdiction over which is retained by the States under our Federal-State system of government, unless such crime occurs on areas as to which legislative jurisdiction has been vested in the Federal Government, (Id., at 107).

From LAK's post.

This exception is the one I presume they are using to assert jurisdiction as they do with all Federal gun crimes not on Federal property.  Note that the original '95 GFSZA was deemed unConstitutional because it did not explain by what authority the Government could criminalize non-State-permitted loaded carry within the 1000' limit.

After the revision of '96 which cited everyone's favorite "provision of the Constitution", the Commerce Clause, which has apparently put all guns in existence anywhere in the country under Congressional purview, it apparently met Constitutional scrutiny.  I am unaware that the Act has been challenged since.

I believe that would be the rationale for the Feds asserting sovereignty, that this law only "defines and prohibits a behavior involving a product which has moved in interstate commerce" and thus clearly falls under Congress' right to regulate.

I assume a defense if charged under the Act for an Alaskan or Vermonter (or any other state that allows permitless carry, open or concealed) would involve an assertion that the regulation is both an unreasonable infringement of the right to self-defense under the 2nd and an unreasonable infringement on the state's right to determine what constitutes "lawful carry"; since Alaska law specifically only makes such permitless carry lawful for those not forbidden to possess arms under federal and state law.

Faced with such a challenge, the current administration would be faced with defending a Federal law that imposes on states' and cities' right to define whether such permitless carry (or permitted carry without a background check) is suitable for them.  A contradiction of their position that cities like Chicago and New York and states like Wisconsin and Illinois should be free under the 2nd to determine "reasonability" of carry restrictions.

Schadenfreude anyone?

[Matthew Carberry]

On my list of things to do since I have the time is to assemble a comprehensive list of all the states that allow for permitless carry of loaded weapons, open or concealed.

I'd like to also get the data from '95 as well to show the trends.

That would provide evidence that Congress is actually out of step with the several states on the issue of weapons carry and should therefore rescind at least the 1000' limit.

Better would be to also replace "state permit with background check" with simply "authorized by the state".

As a practical manner I don't see them getting rid of physical school ground restrictions, but htose changes would leave it up to the states to decide if they want to allow law-abiding adults to carry on school grounds.

Information on which states now allow "lawful carry", by whatever definition, on school property (for example in vehicles while picking up kids) would also provide support.

But, instead of doing that data gathering, I'm on here, with you jokers.

 

[CNYCacher]

Is "authorized by the state" really what you want to go for?  As far as I know, states that have open carry or permitless carry as such because of a lack of laws making it illegal, not by any specific act that "authorizes" the carry.

[Matthew Carberry]

Well, that's more of a pragmatist thought, baby steps and all.  In Alaska the permitless carry, in any fashion, is specifically authorized by law.

Perhaps "as not otherwise forbidden by the state"?

Still puts the onus on the states to make the call.

[LAK]

Carebear

The Federal gov has extension of it's regulatory power under the Commerce Clause. Extra-territorial jurisdiction over drug offenses for example occurs when the Fed gov enters into a treaty with a foreign power, and have limited police powers and jurisdiction in places like Colombia over certain offenses in the so-called Drug War.

For a most recent example of a SCOTUS case which deals with the issue at hand by all means see Lopez v, United States. In this case the SCOTUS sensibly shot down the federal gov attempt to invoke the Commerce Clause.

SEE:
http://www.law.cornell.edu/supct/html/93-1260.ZS.html

People brought up on pop TV shows and other Hollywood creations have been about brainwashed into acceptance that the Fed gov has some all reaching power. The application - and abuses by the lower courts - of the Commerce Clause evidently has the Bar about brainwashed to the same end. Thank goodness, despite some issues, the SCOTUS has a reasonably consistent history on this one.