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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #1  
Old 04-04-2019, 9:49 AM
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Default Interstate Commerce Argument?

I'm wondering if all of these standard capacity magazines flowing into California from Free America could be useful for future litigation?

Specifically, when addressing any type of ban or restriction involving firearms and accessories, could bans be attacked using Interstate Commerce grounds?

Seems like there is a LOT of interstate commerce happening since Friday....

.
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Old 04-04-2019, 10:02 AM
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From my observations over the past 10 years, that has been an argument sometimes made in court but it has lost every time just like the 14A argument on every gun case since 2010.

I don’t know if it loses because guns, or if the legal argument behind it is solid. It seems to be a real loser in the courts though. It’s a bit annoying though because it seems the federal government can claim interstate commerce on many issues and win.
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Old 04-04-2019, 10:21 AM
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I'm not sure this quite fits in the commerce clause. My understanding is that the commerce clause generally only comes into play when the law at issue favors in-state businesses at the expense of out-of-state businesses (or maybe vice versa). That's not the case here, because under PC32310 both in- and out-of-state businesses are treated the same: "regular" California residents can't buy.
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Old 04-04-2019, 1:43 PM
command_liner command_liner is offline
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Quote:
Originally Posted by choprzrul View Post
I'm wondering if all of these standard capacity magazines flowing into California from Free America could be useful for future litigation?

Specifically, when addressing any type of ban or restriction involving firearms and accessories, could bans be attacked using Interstate Commerce grounds?

Seems like there is a LOT of interstate commerce happening since Friday....

.
It will be an interesting discussion. Lots of people get excited about Commerce Clause arguments. There has been lots of ink spilled.

Thrice recently the CC went to the USSC and lost. Twice with the Raisin Board case, and once with Obamacare. Therein the chief justice told all there are limits on the CC analysis.

Can the CC ever be used to restrict traffic in arms? Obviously not, as the 2nd is superseding law. It was written AFTER the CC. Reasoning about the CC wrt to arms will almost always infringe. This is obvious when reading the plain text of the Constitution. So obvious that it has never been litigated.

If the left wants to open up a discussion about using the CC against the 2nd, then the NFA '34 and GCA '68 are in danger. Even the authors of the NFA '34 made this clear enough -- you can read there testimony in the 1934 Congressional Record.

This angle is "not unknown" to the left. Only the stupid ones will start to beat that drum. But there are plenty of stupid ones, so perhaps they will kill these horrible anti-civil-rights laws by their own efforts.

Go! Go! Go! Nuisance and Basura for the win!
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Old 04-04-2019, 2:50 PM
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It's been discussed. The problem is you can't get the votes at SCOTUS, because Thomas doesn't like this angle (it's called "Dormant Commerce Clause doctrine"), and has said he will no longer support dormant CC in SCOTUS decisions. Without him, you don't have 5 votes, even if Roberts votes on your side, and as mentioned above, the Commerce Clause, after enjoying infinite power and scope for decades, has fallen from favor with SCOTUS in recent years.

So you have to figure out a way to make a 2A case, or a case where you're hoping for a combination of Commerce Clause votes and votes from a 2A perspective. The 2A angle is a tough call, because you don't know how Roberts will vote, and because it's virgin territory. Some 2A scholars have opined that mag restrictions are Constitutionally valid, and Heller didn't go anywhere near mag capacity.
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Old 04-04-2019, 8:25 PM
command_liner command_liner is offline
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Originally Posted by speedrrracer View Post
It's been discussed. The problem is you can't get the votes at SCOTUS, because Thomas doesn't like this angle (it's called "Dormant Commerce Clause doctrine"), and has said he will no longer support dormant CC in SCOTUS decisions. Without him, you don't have 5 votes, even if Roberts votes on your side, and as mentioned above, the Commerce Clause, after enjoying infinite power and scope for decades, has fallen from favor with SCOTUS in recent years.
Dormant Commerce Clause doctrine is one thing, but not the one I am thinking about. My argument is not exactly de novo, but the argument goes like this.
1) superseding law is controlling law
2) the 2nd supersedes the Commerce Clause
3) the Feds cannot control the trade in arms via Commerce Clause
4) neither can the states (Heller, McDonald)

It is very instructive to read the debates and testimony that led to the NFA '34.

Just as we cannot argue that the removal of poll taxes (in an amendment in living memory) cannot be construed to be governed by some abstract argument about the Commerce Clause, neither can the 2nd. Does some Commerce-Cause-centric argument regulating the inter-state commerce in arms infringe on the arms envisioned by the framers of the 2nd? Then such a law is null and void. The blanket statement about infringement in the 2nd contains no exception for Commerce Clause things like dunnage, tariffs at state borders for cannon, etc.

The development of the FCC has a good parallel: cable TV broke the stranglehold because it used a different transmission medium.
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What about the 19th? Can the Commerce Clause be used to make it illegal for voting women to buy shoes from another state?
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  #7  
Old 04-05-2019, 12:40 PM
longrifle1 longrifle1 is offline
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It seems like it should apply to buying ammo on line
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Old 04-05-2019, 4:42 PM
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Doubt it will ever fly.

Out of state vendors are still allowed to sell all the 10 round magazines they want as well as on-roster guns, so the argument can be made that there is no obstruction of interstate commerce.
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Old 04-05-2019, 5:34 PM
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It seems like it should apply to buying ammo on line
It does.

Most retailers aren't shipping ammo to California because they are afraid, not because of any laws.

There are retailers that still ship ammo to private addresses in California. It's up to California to enforce state law, not the out-of-state retailer.
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Old 04-05-2019, 5:37 PM
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This last week was exciting and interesting.

Some retailers started taking orders immediately while others waited but eventually almost all of them got on board.

What's to stop any of them from completing orders placed after 5 pm today? It's not a federal crime, and how is California going to enforce it?
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Old 04-05-2019, 5:41 PM
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I looked at a bunch of websites around 2 pm today and ALL showed sold out of glock mags, 10/22 mags, FN five seven mags, etc.

I got a few emails 1 hr before 5pm stating they still had some AR mags left.

The number of magazines sold this week to California must be in the millions!
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Old 04-05-2019, 5:50 PM
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Originally Posted by smittty View Post
This last week was exciting and interesting.

Some retailers started taking orders immediately while others waited but eventually almost all of them got on board.

What's to stop any of them from completing orders placed after 5 pm today? It's not a federal crime, and how is California going to enforce it?

CA will sue them. This is probably pretty deterring to a small operation because the state has deep pockets and can ruin your life financially without ever being awarded a judgement.
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Old 04-05-2019, 8:55 PM
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Originally Posted by command_liner View Post
Dormant Commerce Clause doctrine is one thing, but not the one I am thinking about. My argument is not exactly de novo, but the argument goes like this.
1) superseding law is controlling law
2) the 2nd supersedes the Commerce Clause
3) the Feds cannot control the trade in arms via Commerce Clause
4) neither can the states (Heller, McDonald)
You're going to have to break this down further

Superseding law controls, but only in the event of a conflict. If there's no conflict then there's nothing to supersede, and each law remains supreme in its own domain. The 1A does not supersede my local jaywalking ordinance. There is no conflict in evidence between the CC and the 2A, you'd have to establish that, and that's not a given.

Same with your assertion that the Feds can't control the trade in arms via the CC -- says who? Show me your cites. Heller made it very clear that machine guns weren't protected by the 2A, yet machine guns are arms, so the Feds can clearly control the trade in machine guns, neither of us can dispute that. You need to get 5 Justices to buy some some argument that the RKBA is being broken, yet you're making no argument (that I can discern, please spell it out more clearly if you are).

Remember, the Feds can't just be tickling the 2A, they have to be breaking it. No right is unlimited, no right is untouchable, and can never be regulated in even the slightest way. You can't tell SCOTUS a 10 round mag is just sub-optimal, you have to show SCOTUS how allowing me 10 round capacity instead of 15 or whatever is actively breaking my RKBA.

Then you ask a question that needs a basis in reality

Quote:
Does some Commerce-Cause-centric argument regulating the inter-state commerce in arms infringe on the arms envisioned by the framers of the 2nd?
Perhaps some theoretical CC argument might infringe on the RKBA, but that doesn't mean any actual CC argument in use today infringes. Put forth some CC argument on which you believe the government depends, and then show how that infringes on the 2A.

And NFA debates hold no water before SCOTUS. We put a brief before SCOTUS which says "Some guy named Fred testified before Congress back in 1933 that...." we'd never even sniff cert. You'll have to explain to me how any NFA testimony matters at all.

Quote:
Just as we cannot argue that the removal of poll taxes (in an amendment in living memory) cannot be construed to be governed by some abstract argument about the Commerce Clause, neither can the 2nd.
To me, this seems like comparing apples and oranges. Voting is not a commercial act. Buying something (cars, clothes, guns, ammo) is a commercial act. Of course the CC therefore has applicability to guns and ammo. The burden is on you to show how it breaks the RKBA.

An example might be food. Even an originalist like Scalia would agree that the 9A covers natural law, such as your right to grow food or hunt to feed your family, and we both agree the 9A would supersede the CC if there was a conflict, so are you saying that taxing food and crops and limits on hunting and creating the Food and Drug Administration are all unconstitutional acts? Wickard v Filburn is more recent than the NFA....
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Old 06-27-2019, 6:57 AM
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https://www.nytimes.com/2019/06/26/u...iquor-law.html

A lot in there that would seem to impact or apply to Pena and the ammo restrictions. Many similar arguments of background checks and necessary state control to influence consumption through less competition and higher pricing ..... the court ruled against
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Old 07-03-2019, 4:56 PM
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Regarding the new ammo laws, I think the out-of-state vendors might have a shot, no pun intended.

Hunt v. Washington State Apple Advertising Commission


Note that in Hunt, other states' apple growers could still ship apples into NC, but had to overcome the burdens of more stringent inspections (but still prevailed because that regime was discriminatory). Out of state ammo vendors, OTOH, have no recourse to ship into California.
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Old 07-05-2019, 6:59 AM
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the question i have is does the state have the authority to regulate commerce outside of its boundaries? its restricting its citizens from engaging in commerce outside of its state line. then depriving them of the property or the right to possess it upon re-entry into the state boundaries.

The transaction (commerce) has already occurred outside of the state yet the state is forcing you to surrender your property upon entry and engage in a secondary transaction within the state lines. itd be akin to when you purchase a vehicle out of state, driving it to the border forcing you to surrender it to a dealer inside the state for a secondary sale before you could possess it.

How far does the states control or reach extend once you own property? even if acquired outside of the state how then can the state force you to surrender it or force you to buy it a second time within the state. the implications of this in my eyes goes far further than just ammunition and id be curious how this could put a leash on many other unnecessary and authoritarian property and import laws in CA and other states.
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Old 07-05-2019, 10:56 AM
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Quote:
the question i have is does the state have the authority to regulate commerce outside of its boundaries? its restricting its citizens from engaging in commerce outside of its state line. then depriving them of the property or the right to possess it upon re-entry into the state boundaries.
Ever buy fresh produce in another state and then try to drive it over the border to CA?
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Old 07-05-2019, 11:02 AM
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Default Equal Protection?

If the 2nd Amendment is the right of a U.S. citizen, why does that right increase or decrease when a U.S. citizen goes from one State to another? If there is regulation shouldn't it be Federal so all citizens are treated the same? Shouldn't the Federal government fully occupy the subject?
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Old 07-05-2019, 4:26 PM
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Quote:
Originally Posted by CWL View Post
Ever buy fresh produce in another state and then try to drive it over the border to CA?
Yes risk to a commercial crop/industry and temporary inspection. You can buy certified fruits and Vegi’s.

https://law.justia.com/cases/califor...d/104/505.html


And the threat of importing ammo or a tv or a car into the state is?

Multiple states inspect commercial trucks for agg. Even washinton used to have signs on 395 for domestic apple transport and pull over for pest inspections around wallawalla

But that gets to the point what justifies them saying you can’t import ammo. What is the demonstrable risk. What next. You can’t import a tv. Or a toilet or lifghtbulb bought out of state without taking it to a ca licensed dealer. Paying a fee ect
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Old 07-06-2019, 9:42 AM
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Originally Posted by Dirtlaw View Post
If the 2nd Amendment is the right of a U.S. citizen, why does that right increase or decrease when a U.S. citizen goes from one State to another? If there is regulation shouldn't it be Federal so all citizens are treated the same? Shouldn't the Federal government fully occupy the subject?
People have made this argument with CCW reciprocity, i.e., pass a federal law for one standard. But keep in mind, we're all one election away from President Banguns and a Democrat Congress. Once the feds get their noses under the tent, who knows what mischief they can wreak later?

I think the best hope is a Trump reelection and a few SCOTUS justices get replaced. 2020 is everything.
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