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View Full Version : How in blazes is CFLC Federally constitutional?!


OC_Gunman
04-10-2009, 2:33 PM
The California Firearms Licensee Check (CFLC) http://ag.ca.gov/firearms/cflcoverview.php program attempts to assert California legal authority over Federal FFLs who are out of state. How can anybody think that will pass constitutional muster (Federal supremacy and interstate commerce-wise, not 2nd Amendment-wise)?

Please tell me this is being tested...

dustoff31
04-10-2009, 2:53 PM
I'm guessing that it hasn't been challenged. Although I doubt it would be ruled unconstitutional as it is merely an inspection or verification process and applies equally to all out of state dealers. Not that I'm in favor of it, mind you.

I used to encounter similar things by various states when I was in the trucking business. As long the laws applied equally and didn't descriminate, they were generally ruled legal.

sholling
04-10-2009, 2:58 PM
I'm not sure it is as it acts in restraint of interstate trade. Of course I'm not a lawyer. In reality the courts couldn't find the 10th Amendment if it bit them on the butt. 3/4 of what the federal government does is in direct defiance of the 10th and the courts can't seem to find that pesky amendment anywhere.

Whiskey_Sauer
04-10-2009, 3:22 PM
Not a constitutional question at all. Full faith & credit, etc. This is more of a jurisdictional question. However, California's jurisdictional statutes permit jurisdiction over crimes partially committed within the state, and also over crimes committed outside the state if the defendant formed the intent and committed any act within California in whole or partial execution of that intent. Penal Code section 778 states: "When the commission of a public offense, commenced without the State, is consummated within its boundaries by a defendant, himself outside the State, through the intervention of an innocent or guilty agent or any other means proceeding directly from said defendant, he is liable to punishment therefor in this State in any competent court within the jurisdictional territory of which the offense is consummated." See Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399 (holding that California had jurisdiction over an out-of-state doctor who "practiced medicine in California" without a license, when he directed his activities toward a resident of California.)

Here, the statute in question prohibits an out of state FFL from shipping a firearm to California unless the FFL obtains a "verification approval number" from the DOJ. If a FFL ships a firearm, he or she is in violation of California law. Pretty straightforward.

sholling
04-10-2009, 3:25 PM
This is simply because the courts refuse to look for that pesky 10th amendment.

Whiskey_Sauer
04-10-2009, 3:37 PM
This is simply because the courts refuse to look for that pesky 10th amendment.

How does that "pesky 10th amendment" affect long arm state jurisdiction, or otherwise prevent a state from enacting a statutory scheme that prohibits criminal activity from outside the forum state, directed toward the forum state?

sholling
04-10-2009, 4:15 PM
The commerce clause prevents a state from interfering with otherwise lawful interstate transactions. It also prohibits collecting any fee or tariff for allowing interstate commerce.

What next the state bans any firearm transaction anywhere in the country in if there is a possibility that the weapon might someday cross state lines? The courts ruling was quite mistaken. The State of California cannot be allowed to impose its laws on any activity that takes place out of state.

Whiskey_Sauer
04-10-2009, 4:33 PM
The commerce clause prevents a state from interfering with otherwise lawful interstate transactions. It also prohibits collecting any fee or tariff for allowing interstate commerce.

That is completely incorrect. The "commerce clause" is one of the powers expressly delegated to Congress in the Constitution. The commerce clause has been used in the 20th Century to justify federal regulation of virtually any activity which affects inter-state commerce. The commerce clause is therefore an enumerated power, not a clause limiting power. Nor does the commerce clause deal with the authority of individual states at all.

The Tenth Amendment only states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In other words, it recites the self-evident proposition that the power of Congress is limited to that which is stated in the Constitution. Nowhere does it deal with inter state jurisdiction at all.

What next the state bans any firearm transaction anywhere in the country in if there is a possibility that the weapon might someday cross state lines? The courts ruling was quite mistaken. The State of California cannot be allowed to impose its laws on any activity that takes place out of state.

So let me get this straight. Let's say California, in all of its wisdom, legalizes heroin. And I, as a California resident, decide to ship heroin to a distributor in Nevada, where it is still illegal. Are you saying that I could not be prosecuted for illegal shipment of narcotics under Nevada law? (Assume for this hypothetical that federal law is non-existent on the subject.)

Hypothetical number two: I engage in a murder for hire of a resident in Nevada. I conceive of the plan in California, and I call the would-be assassin from my home in California. Let's say that California does not expressly criminalize murders for hire. Are you saying that I could not be prosecuted under Nevada law for solicitation of murder?

Calguns2000
04-10-2009, 5:03 PM
The "commerce clause" is one of the powers expressly delegated to Congress in the Constitution. [SNIP]

The Tenth Amendment only states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."Since the commerce clause delegates the right to regulate interstate commerce to the United States, doesn't that mean that the state of California doesn't have the right to regulate interstate commerce? Isn't the CFLC really just regulation by the state of California of interstate commerce in firearms? :confused::confused:

dustoff31
04-10-2009, 5:14 PM
Since the commerce clause delegates the right to regulate interstate commerce to the United States, doesn't that mean that the state of California doesn't have the right to regulate interstate commerce? Isn't the CFLC really just regulation by the state of California of interstate commerce in firearms? :confused::confused:

I don't see how the CFLC is "regulating" commerce or restraining trade.

Let me go back to my trucking example, CA (and every other state)said if you want to do business here these are the rules. They apply to everyone, both CA companies and out of state concerns.

If they had said something like, you're from AZ so your road taxes are double what everyone else pays, or you can't come here if you also provide service to ID. Then that would not hold up.

Whiskey_Sauer
04-10-2009, 5:16 PM
Since the commerce clause delegates the right to regulate interstate commerce to the United States, doesn't that mean that the state of California doesn't have the right to regulate interstate commerce? Isn't the CFLC really just regulation by the state of California of interstate commerce in firearms? :confused::confused:

No, the commerce clause is an expressly-provided power of Congress to regulate inter-state commerce. It has been used to justify just about every federal law or regulation over the past 70 years. But the states also have inherent authority to regulate commerce or any commercial activity directed toward that state. (We're not talking about California attempting to regulate commerce between, say, New York and Florida.) It is well understood in every state in the Union that engaging in a commercial transaction towards an actor in that state subjects you to the laws and liabilities of that state. These are called "long arm statutes," and it is one of the most basic premises of jurisdiction in law.

Furthermore, this statute in question is a criminal statute - codified in the California Penal Code - which can confer jurisdiction for California courts hearing out-of-state crimes directed toward or culminating in California.

For example, if I engage in a telemarketing fraud for a time-share scam from Florida, and direct it toward an elderly resident of California, I could probably be held liable for telemarketing fraud here in California, be subject to fines, etc., and could also be sued by the elderly Californian in court here.

Sorry to say it, though. You and I might not like the ultimate outcome re restrictions of FFLs, but the jurisdictional question is quite sound, and there is no constitutional question at all.

Librarian
04-10-2009, 5:33 PM
Since the commerce clause delegates the right to regulate interstate commerce to the United States, doesn't that mean that the state of California doesn't have the right to regulate interstate commerce? Isn't the CFLC really just regulation by the state of California of interstate commerce in firearms? :confused::confused:

Feds generally require interstate transfer of firearms to go through an FFL.

California requires its FFLs to be on a central register; CFLC is the equivalent of BATF's FFL-check.

That's it.

CA can regulate its own licensees as it pleases. CFLC applies to in-CA ffl to ffl shipment, too.

Now the intent is clearly to discourage interstate shipments; note all the Gunbroker and other out-of-state sellers who don't want anything to do with CFLC numbers - it's working as intended.

Calguns2000
04-10-2009, 5:41 PM
Feds generally require interstate transfer of firearms to go through an FFL.

California requires its FFLs to be on a central register; CFLC is the equivalent of BATF's FFL-check.

That's it.

CA can regulate its own licensees as it pleases. CFLC applies to in-CA ffl to ffl shipment, too.

Now the intent is clearly to discourage interstate shipments; note all the Gunbroker and other out-of-state sellers who don't want anything to do with CFLC numbers - it's working as intended.It may be worth reading up on the Dormant Commerce Clause jurisprudence, what CA is doing is NOT clearly constitutional, they just haven't been challenged on it. Ultimately its not a black and white issue--CA may be able to prove the benefits of the CFLC program (if there actually are any) exceed the burden on interstate commerce created by the program. The fact that it also applies to in-CA ffl to ffl shipment is probably designed to help the law withstand a commerce clause challenge (since it applies equally to in state and out of state actors).

remington
04-10-2009, 7:06 PM
As a FFL, requirement for getting the approval number even fo CA to CA FFL is ridicoulus. Furthmore, I am still gray on the area of FTF CA FFL to CA FFL. Some say you need an approval number and others do not. We are own worst enemies sometimes...

jamesob
04-10-2009, 7:48 PM
it is mot definitly messing with free trade, if one person refuses to become a part of the cflc, then its messing with it. california shouldn't have their grubby little fingers involved with an out of state dealer, its none of their business. california will and mark my words, use this cflc program to try and sue an out of state dealer because they sold a weapon and it was later used in a crime. just look at gunbroker, 75% or maybe more refuse to sell to us because of this program and our laws.

jamesob
04-10-2009, 7:49 PM
As a FFL, requirement for getting the approval number even fo CA to CA FFL is ridicoulus. Furthmore, I am still gray on the area of FTF CA FFL to CA FFL. Some say you need an approval number and others do not. We are own worst enemies sometimes...

yes you need a number for ftf.

dfletcher
04-10-2009, 8:41 PM
Feds generally require interstate transfer of firearms to go through an FFL.

California requires its FFLs to be on a central register; CFLC is the equivalent of BATF's FFL-check.

That's it.

CA can regulate its own licensees as it pleases. CFLC applies to in-CA ffl to ffl shipment, too.

Now the intent is clearly to discourage interstate shipments; note all the Gunbroker and other out-of-state sellers who don't want anything to do with CFLC numbers - it's working as intended.

I agree the effect is to reduce sales to CA residents, clearly a devious and incremental gun control method.

Maybe I'm reading this incorrectly, but since CA does not issue the FFL they are not regulating "its own licensees" - they are regulating the federal government's licensees. Or should I read it to mean "CA can regulate federally licensed FFLs doing business in CA"?

If the ATF's central FFL check exists and works, what is the purpose of CA's CFLC? It isn't to ensure the receiving FFL is valid. Seems to me the purpose of CFLC is to accomplish something else. Setting gun control or limiting the market aside - what purpose does it serve?

As I understand it, using CFLC allows the state to compile a listing of FFLs doing business & located in CA - do they then take this list and check for tax resale permits, business licenses, required insurance, etc. In effect, with every FFL to FFL transaction we're bird dogging for the state and their enforcement efforts.

hoffmang
04-10-2009, 8:55 PM
I've read extensively on the commerce clause. Anyone who thinks that CFLC can be attacked that way needs to read through how Chicago banned the import of all spray paint. If a city can flat ban a commodity, a state can regulate the import of firearms mildly as Congress has delegated to state law here.

-Gene

sholling
04-10-2009, 8:57 PM
No, the commerce clause is an expressly-provided power of Congress to regulate inter-state commerce. It has been used to justify just about every federal law or regulation over the past 70 years. But the states also have inherent authority to regulate commerce or any commercial activity directed toward that state. (We're not talking about California attempting to regulate commerce between, say, New York and Florida.) It is well understood in every state in the Union that engaging in a commercial transaction towards an actor in that state subjects you to the laws and liabilities of that state. These are called "long arm statutes," and it is one of the most basic premises of jurisdiction in law.
I respect your knowledge and practical experience on the subject but for the purpose of an academic discussion of the subject I'll disagree. The purpose of the farmers placing interstate commerce in the hands of the feds was to prevent states from enacting tariffs and trade barriers intended to discourage residents from buying out of state goods, and barriers that made it difficult to ship goods to another state. This was a serious problem prior to the constitution.

For example, if I engage in a telemarketing fraud for a time-share scam from Florida, and direct it toward an elderly resident of California, I could probably be held liable for telemarketing fraud here in California, be subject to fines, etc., and could also be sued by the elderly Californian in court here.
That's because when the victim responded to the scam the place of the crime shifted to California. Until that call is responded to with a check it's a Florida or federal problem.

Sorry to say it, though. You and I might not like the ultimate outcome re restrictions of FFLs, but the jurisdictional question is quite sound, and there is no constitutional question at all.
The courts have so tortured the constitution for so long that it's possible that the state can get away with it but that does not make it constitutional. Especially if any fee is collected for the right to ship an item to California, and if no fee were involved we wouldn't be having this discussion because everyone would still be shipping to California. I suspect that in a world where the constitution meant something that the list, because of the renewal fee to stay on the list would also bump up against the ban on interstate tariffs.

sholling
04-10-2009, 9:03 PM
I've read extensively on the commerce clause. Anyone who thinks that CFLC can be attacked that way needs to read through how Chicago banned the import of all spray paint. If a city can flat ban a commodity, a state can regulate the import of firearms mildly as Congress has delegated to state law here.

-Gene
Gene you're the lawyer here not me, but from my layman's perspective Chicago can ban the importation of spray paint - as long as they don't allow any to be manufactured and sold within the city. What they cannot do is charge any out of state company a fee for the right to ship spray paint to Chicago. Now once it's there they can charge Chicago residents as large of a spray paint tax as they choose as long as it doesn't discriminate about where it came from.

Edit: Of side interest is whether or not a constitutional right can be taxed out of reach of the average citizen. Say a $200 transfer tax on books, magazines, and newspapers.

KylaGWolf
04-10-2009, 9:05 PM
Well put Gene. Another point is state law can take precedence over a federal law if the state law is more restrictive if I remember correctly. I am too wiped out tonight to dig out my code books and look it up though.

hoffmang
04-10-2009, 9:20 PM
sholling,

A. I'm not a lawyer - just a very well educated layman.

B. A CFLC is required for any FFL to ship to a CA FFL, including other CA FFLs. They are being treated equally - which is usually where a commerce clause challenge can also come from. That's what happened with the win shipping cases.

-Gene

RomanDad
04-10-2009, 9:31 PM
That is completely incorrect. The "commerce clause" is one of the powers expressly delegated to Congress in the Constitution. The commerce clause has been used in the 20th Century to justify federal regulation of virtually any activity which affects inter-state commerce. The commerce clause is therefore an enumerated power, not a clause limiting power. Nor does the commerce clause deal with the authority of individual states at all.

The Tenth Amendment only states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In other words, it recites the self-evident proposition that the power of Congress is limited to that which is stated in the Constitution. Nowhere does it deal with inter state jurisdiction at all.



So let me get this straight. Let's say California, in all of its wisdom, legalizes heroin. And I, as a California resident, decide to ship heroin to a distributor in Nevada, where it is still illegal. Are you saying that I could not be prosecuted for illegal shipment of narcotics under Nevada law? (Assume for this hypothetical that federal law is non-existent on the subject.)

Hypothetical number two: I engage in a murder for hire of a resident in Nevada. I conceive of the plan in California, and I call the would-be assassin from my home in California. Let's say that California does not expressly criminalize murders for hire. Are you saying that I could not be prosecuted under Nevada law for solicitation of murder?
I was going to jump into this thread....

But youve got things well in hand....



Carry on.

dfletcher
04-10-2009, 9:47 PM
sholling,

A. I'm not a lawyer - just a very well educated layman.

B. A CFLC is required for any FFL to ship to a CA FFL, including other CA FFLs. They are being treated equally - which is usually where a commerce clause challenge can also come from. That's what happened with the win shipping cases.

-Gene

I think the difference between that hypothetical and our CFLC is that on the business of shipping & receiving spray paints, the federal government is mostly silent while in the case of FFLs, the federal government has specifically created and managed a licensing system, and set standards; that the federal government in effect occupies this territory.

I know many folks endorse the concept of a national CCW. Were one to be created, based on CFLC & CA's Type 03 (C & R) restrictions on handguns, CA could simply deny the national CCW's use for all while in CA?

Would Heller incorporation have an impact on CFLC?

hoffmang
04-10-2009, 10:29 PM
I think the difference between that hypothetical and our CFLC is that on the business of shipping & receiving spray paints, the federal government is mostly silent while in the case of FFLs, the federal government has specifically created and managed a licensing system, and set standards; that the federal government in effect occupies this territory.


You miss a very important point. At exactly the same time that Federal Law creates a Federal Licensing scheme it then makes it specifically subservient to State law. Witness for example that an FFL may not sell to a resident of another state unless that other state allows him to.

The CFLC is a small restriction compared to the larger restrictions directly contemplated in Federal Law (for now - see Alan Gura's non resident citizens case.)

-Gene

Librarian
04-10-2009, 10:50 PM
I agree the effect is to reduce sales to CA residents, clearly a devious and incremental gun control method.

Maybe I'm reading this incorrectly, but since CA does not issue the FFL they are not regulating "its own licensees" - they are regulating the federal government's licensees. Or should I read it to mean "CA can regulate federally licensed FFLs doing business in CA"?

If the ATF's central FFL check exists and works, what is the purpose of CA's CFLC? It isn't to ensure the receiving FFL is valid. Seems to me the purpose of CFLC is to accomplish something else. Setting gun control or limiting the market aside - what purpose does it serve?

As I understand it, using CFLC allows the state to compile a listing of FFLs doing business & located in CA - do they then take this list and check for tax resale permits, business licenses, required insurance, etc. In effect, with every FFL to FFL transaction we're bird dogging for the state and their enforcement efforts.

Actually CA requires its own set of paperwork to become a firearms dealer, so it's both - but CA would argue it's a requirement of doing business in CA. What are California's licensing requirements for firearms dealers?

California firearms dealers must obtain and maintain the following:

1. A valid FFL,
2. A valid Seller's Permit issued by the State Board of Equalization,
3. A valid COE issued by the DOJ,
4. Any regulatory business license, or licenses, required by local government,
5. A local license granted by the duly constituted licensing authority, valid for one year from the date of issuance, and in one of the following forms:
1. In the form prescribed by the Attorney General;
2. A regulatory or business license that states on its face, "Valid for Retail Sales of Firearms" and endorsed by the signature of the issuing authority; or
3. A letter from the licensing authority stating that the jurisdiction does not require any form of regulatory or business license or does not otherwise restrict or regulate the sale of firearms. After obtaining the above licenses, an Application for Centralized List and appropriate fees are submitted to the DOJ. Upon approval of the application, the dealer will be given a CFD number and placed on the Centralized List of firearms dealers.
6. A listing on the DOJ Centralized List of Firearms Dealers.

For more information on dealer licensing or to obtain an Application for Centralized List of Firearms Dealers, contact the Firearms Licensing and Permits Unit at (916) 227-3694.

(PC section 12071(a))
http://ag.ca.gov/firearms/dlrfaqs.php#1G

Trader Jack
04-11-2009, 10:26 PM
:mad:As a FFL, requirement for getting the approval number even fo CA to CA FFL is ridicoulus. Furthmore, I am still gray on the area of FTF CA FFL to CA FFL. Some say you need an approval number and others do not. We are own worst enemies sometimes...


Your in California now boy. The rest of America don't mean jack s---:mad: