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View Full Version : Using the Commerce Clause For Good Instead Of Evil?


striker3
05-03-2006, 10:34 AM
I am just pasting a thread topic from Bartholomew Roberts, a moderator at www.thehighroad.org. There is a discussion of it going on there.

What do you guys think about his reasoning as it would apply here to California?

http://www.thehighroad.org/showthread.php?t=198504

As many of you may know, most federal gun control law is based on Congress's power to control interstate commerce between the states. This power has been sprinkled liberally over gun control laws to justify such things as the "Gun-Free School Zones Act" which clearly has nothing to do with commerce.

Under current law, there are the six basic principles of Congress's power under the commerce clause:

i)Congress may regulate local matters that have a substantial effect on interstate commerce - J&L, Darby, Wickard
ii)Congress has to have a rational basis to do so - Darby (this is an incredibly easy test to pass - Congress doesn't even have to show that their rationale will happen, just that it was reasonable to believe it might)
iii)Local effects may be aggregated to reach the substantial effects level - Wickard
iv)Congress may regulate items that cross state lines – Darby (older cases too)
v)Congress may regulate the instrumentalities of interstate commerce – Shreveport rates
vi)Congress may regulate items that facilitate commerce – are within the channels of commerce –Heart of Atlanta

In the 1990s, the Court finally begin to curtail this power (albeit with pretty minor changes). In United States v. Lopez, the courts ruled the Gun Free School Zones Act uncosntitutional under the commerce clause. Because 1960s era civil rights legislation had also relied heavily on the Commerce Clause to justify its federal authority, the Court had to act carefully to avoid invalidating those laws. The Lopez decision doesn't affect the last three principles (4,5&6); but it does change how the first three are applied.

In Lopez, the Court began distinguishing between commerical regulation under the Commerce clause and non-commercial regulation. Finding the Gun Free School Zones act to be non-commercial, the Court put new restrictions on the Commerce Clause. Under Lopez, non-commercial activities with local affects could no longer be aggregated under the Wickard test. The other big change is that Congress could no longer apply the rational basis test to justify their decision. They had to include more solid findings showing how the law would impact interstate commerce.

Within two years of finding this act unconstitutional, Congress passed the law again - this time meeting the test under Lopez.

However, there is another aspect to the Commerce Clause called the "Dormant Commerce Clause". This says that because Congress has the supreme power to regulate interstate commerce, states may not pass laws that interfere with interstate commerce.

Considering how much gun control law is based on the Commerce Clause, has anybody ever considered a Dormant Commerce Clause challenge to state gun control laws by arguing that laws requiring built-in internal locks, stricter than federal drop testing, etc. violate this clause by allowing a state to unfairly interfere with interstate commerce in firearms?

It seems to me such an obvious avenue to attack those laws that I am sure somebody has tried it; but I have been unable to find any case detailing that approach. Anyone out there have any ideas on this?

ohsmily
05-03-2006, 10:59 AM
That was a very good, albeit very basic, review of the Congress's power under the Commerce Clause, and the so-called "Dormant Commerce Clause" (I put it in quotes because, as the moniker would indicate, the DCC is not codified or part of federal statute. Rather, it flows logically from the Commerce Clause and reinforced historically, since the 1920's, by judicial review).

Congress has not indicated that it seeks to regulate ALL areas of gun control. Actually, quite the opposite. In order for a Dormant Commerce Clause argument to be viable, the plaintiff would have to show that the individual state's regulation of a particular area of guns violated a federal statute OR that it encroached on an area of law that Congress intends to regulate solely and wholly to seek national uniformity.

Every once in a while a gun owner with access to some basic legal information suddenly becomes a Constitutional scholar and comes up with the "novel" idea of challenging the states and/or the federal government based on some finer points of Constitutional law.

I am a lowly law student and don't claim to be an expert on Constitutional Law. However, having said that, 3 weeks of my Con Law I class and over 100 pages of very dense legal reading was dedicated to the the Commerce Clause and the Dormant Commerce clause; The substantive law in this area is far more complicated than that little excerpt would indicate. Highly educated and intelligent attorneys working for the NRA and other lobby groups are constantly looking at issues such as this, and laymen from gun forums aren't going to find a solution by looking at abridged legal concepts and basing their arguments and theories on that material for a legal challenge.

P.S. I posted this same info over at THR (I am a member there since middle of last year, but never post there).

hoffmang
05-03-2006, 11:25 AM
There is one ripe commerce clause claim as it relates to the field of firearms and I plan to bring it when I have a touch more liquidity.

In the 1994 Crime Act that created the federal assault weapons ban, Congress clearly stated their intention to occupy the field of commerce in high capacity magazines.

California's ban on the importation of High Capacity Magazines is a violation of the commerce clause.

The beauty of this case is standing is not very hard to achieve, and magazines are just regular articles of commerce. All we'll need to do is find a willing California buyer and willing other 49 based seller.

So, yes, the commerce clause can be used for the protection of the rights of the people and the States.

ohsmily
05-03-2006, 11:29 AM
There is one ripe commerce clause claim as it relates to the field of firearms and I plan to bring it when I have a touch more liquidity.

In the 1994 Crime Act that created the federal assault weapons ban, Congress clearly stated their intention to occupy the field of commerce in high capacity magazines.

California's ban on the importation of High Capacity Magazines is a violation of the commerce clause.

The beauty of this case is standing is not very hard to achieve, and magazines are just regular articles of commerce. All we'll need to do is find a willing California buyer and willing other 49 based seller.

So, yes, the commerce clause can be used for the protection of the rights of the people and the States.

Is this the same Crime Act regulating "high capacity magazines" that 'sunsetted' in 2004??? There is no more federal regulation of high capacity magazines.

hoffmang
05-03-2006, 12:39 PM
But even sunset regulation shows Congress' intent to occupy a space. At worst that would then mean that this is now a dormant commerce clause case with actual legislation (not legislative) history of Congress inherent authority on this piece of commerce.

There is certainly no winning argument for the State of California that the sunsetting of regulation of an article of commerce means that there was a subsequent active delegation of the inherent commerce clause power.

ohsmily
05-03-2006, 2:20 PM
But even sunset regulation shows Congress' intent to occupy a space. At worst that would then mean that this is now a dormant commerce clause case with actual legislation (not legislative) history of Congress inherent authority on this piece of commerce.

There is certainly no winning argument for the State of California that the sunsetting of regulation of an article of commerce means that there was a subsequent active delegation of the inherent commerce clause power.

Another problem that you might run into is that the area that Congress regulated was the manufacture and importation (into the country, not various states) of "high capacity magazines" after a certain cutoff date, whereas the current CA legislation governs the sale, giving, lending, etc. I think the state could make a successful argument, combined with findings of Congress's legislative intent, that the field of regulating sale, giving, lending, etc is vastly different than regulating manufacture and importation (into the country).

I like your angle, but I don't believe you have a "slam dunk" by any means. Ask an attorney, I am only a lowly law student.

hoffmang
05-03-2006, 8:56 PM
Let me walk through this a bit more thoroughly.

1. When the Violent Crime Control and Law Enforcement Act of 1994 was passed in 1994 it stated:

SEC. 110103. BAN OF LARGE CAPACITY AMMUNITION FEEDING DEVICES.

(a) PROHIBITION- Section 922 of title 18, United States Code, as amended by section 110102(a), is amended by adding at the end the following new subsection:

`(w)(1) Except as provided in paragraph (2), it shall be unlawful for a person to transfer or possess a large capacity ammunition feeding device.

`(2) Paragraph (1) shall not apply to the possession or transfer of any large capacity ammunition feeding device otherwise lawfully possessed on or before the date of the enactment of this subsection.


That means that the US Congress exercised its commerce clause power to specifically legalize the transfer or possession of high capacity ammunition feeding devices manufactured before 1994.

If Congress had stated that States had the right to ban the transfer of high capacity ammunition feeding devices in interstate commerce, they could have.

A high capacity ammunition feeding device is a "legitimate article of commerce." A quick search on Ebay for "magazine" is pretty persuasive of this.

For a State to regulate interstate commerce in a legitimate article of commerce, congressional intent to allow the State to regulate that article of commerce has to be very clear. See:
South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 90 (1984) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=467&invol=82#90) (Especially that case's cites.)

If anything, the 1994 Act makes it clear that transfers, and thus interstate transfers were allowed explicitly by Congress. No new law has been passed delegating the ability for the states to control interstate commerce in high capacity ammunition feeding devices. In fact, firearms are delegated to the states, but a high capacity ammunition feeding device is not a firearm.

Sadly I didn't have time to prepare this challenge while the 1994 Act was still in effect, but either way, I think California (and later the other states that ban high capacity ammunition feeding devices) will have a hard time showing that Congress has delegated their dormant commerce clause power, especially in light of Congresses recent exercise thereof.

Interestingly, I do think that California has the right to ban the sale or transfer of HCAFD inside California. I don't think they can ban the possession or importation across state lines of them however. There are cases whose cites I forget relating to Chicago gun laws and the commerce clause that lead me to this interpretation.

Either way, this challenge needs to wait a short amount of time as I'd rather see listing first.