49ers Aldon Smith, CA Assault Weapons Law, and Interstate Commerce

You would be mistaken Destructo. Commerce is a whole lot more than buying and selling, or even shipping for buying and selling things. Interstate Commerce is more than just those items that crossed state lines in one form or another, even previous to its manufacture.

The Miller case in 39 pointed out that even though they didn't sell their short barreled shotgun after crossing the state line, merely crossing the state line put them into interstate commerce.

You could be buck naked, squeaky clean and walking on air one step over the border so you don't even track dirt from one state to another, taking nothing but your body from one state to another and you are in interstate commerce.

Likewise, you could run the biggest chicken ranch in the world, never use anything- not feed, not butchering, nor even the gas in the truck you use to drive to market, nothing from out of state, nor sell your chicken out of state, and you could/would be in interstate commerce because your supply affects the demand for out of state chicken.

Interstate commerce is a fairly broad catch-all that has probably been over-broadly interpreted, but even the Founding Fathers knew it would be, and couldn't find a better way to handle it.
 
From 44 Amp:
"Guy buys the rifles in AZ (apparently legally). Fine."

Although the gun may be legal in AZ, is it legal to sell it to a resident of another state where it is illegal?

If this was bought from a dealer, I think someone messed up.
 
Now cite a case in which a court found that a State's exercise of its police powers to regulate possession of something within its borders constituted a regulation of commerce.
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That would be Brown v. Maryland - 25 U.S. 419 (1827) where the State of Maryland used it's police power to require a license for the importation and wholesale of " foreign goods by the bale or package, &c.".

Further, we have here a paraphrase or quote, I'm unsure which as I can't seem to find the text in an opinion, or even the case referenced,
In the very first decision under the commerce clause Chief Justice. Marshall established that a state police regulation in conflict with a congressional regulation of interstate commerce is void.
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AND we have 18 USC § 922

US Code said:
§922. Unlawful acts
(a) It shall be unlawful—
........
(p)
(1) It shall be unlawful for any person to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm—
(A) that, after removal of grips, stocks, and magazines, is not as detectable as the Security Exemplar, by walk-through metal detectors calibrated and operated to detect the Security Exemplar; or
(B) any major component of which, when subjected to inspection by the types of x-ray machines commonly used at airports, does not generate an image that accurately depicts the shape of the component. Barium sulfate or other compounds may be used in the fabrication of the component
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Between that, NFA, and other regulations we have ample examples of the Government exercising it's commerce power over which firearms are legal and not legal in interstate trade. The police power of California appears in conflict with that by being more restrictive.
 
JimDandy said:
Frank Ettin said:
Now cite a case in which a court found that a State's exercise of its police powers to regulate possession of something within its borders constituted a regulation of commerce.
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That would be Brown v. Maryland - 25 U.S. 419 (1827) where the State of Maryland used it's police power to require a license for the importation and wholesale of " foreign goods by the bale or package, &c."....
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Nope. That is a clear and direct attempt to regulate commerce (i. e., commercial activity). It has nothing to do with the possession by an individual of personal property for his own use.
 
Compounding things is the fact that apparently he did not register them in CA, either. Not sure how this applies, but the report specifically said they were unregistered. It might be that the particular rifles might have been legal to possess, had they been registered with the state (I rather doubt it, but I don't know).
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Registration of those things CA calls 'assault weapons' is currently impossible for non-LEOS. The last registration period ended Jan 1, 2001. (Penal Code 30900)
 
TXAZ said:
But no, Mr. Genius decides to start shooting rounds into the air, with others following his actions. He chose to do so in a neighborhood, not the open expanses of Central California.

I'm all for responsible ownership and use, had this happened in my neighborhood, I would have turned him in.
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There is enough question as to who did what first that neither he, nor his teammate who also fired into the air is being charged with anything about that (so far). There were apparently gang members of some kind at the party who fired at the players providing enough self-defense justification that prosecutors are using their discretion.

Frank Ettin said:
Nope. That is a clear and direct attempt to regulate commerce (i. e., commercial activity). It has nothing to do with the possession by an individual of personal property for his own use.
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Actually I think it was a clear and direct attempt to generate revenue off the backs of people with a "smaller" voice in state policy. The fact remains that licensing professionals Legal Dictionary is a police power. In this case licensing wholesalers and importers.

(And unfortunately here I need to go work, so I'm going to add the half a thought I had running in VERY broad strokes so I can come back to it when I return to free time and not lose what I've already got down so far...) So for my own notes Passenger cases, Chief Justice Taney,
It is immaterial under what power duties on imports are imposed. That they are the principal means by which commerce is regulated no one can question.
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A ban is a duty that cannot be paid. Look for case law that states, or supports that idea... And get more into the power to permit = power to deny, GCA, NFA, Title 18, The first F in FFL is Federal, The feds require a local business license, but don't infringe on 10A grounds there...


If the power to permit, and the power to deny are opposite sides of the same police power coin, then a case where police power allowing something not trumping the Congressional power denying that commerce should also suffice.

As states are legalizing medical, and now, recreational marijuana, the prohibition against the transfer of firearms in interstate commerce to those individuals who partake remains. In fact, as has been pointed out in this forum numerous times, a State's permission does not trump the Federal denial, as the Constitution is the supreme law of the land.

Edit to add: Also revise and extend to include the Taking's clause.
 
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I think there's a bit of misapprehension some may have. While the Commerce Clause has been broadly interpreted to give regulatory authority over anything in or effecting interstate commerce, that does not meet states cannot regulate conduct inside the states that effect interstate commerce. There is a large area of overlapping authority between state and federal government.

The issue of overlapping authority sometimes comes up in court when there is a claim that a state cannot regulate certain conduct or certain things. The courts then go through a preemption analysis. A state is preempted from regulating conduct if the federal government expressly preempts state regulation in a certain area. There can also be implied preemption in two ways: (1) is there a conflict in federal and state laws such that one cannot obey the federal law without violating state law and (2) does the federal law so "occupy the area" as to leave no room for state regulation.

The federal government has not expressly preempted the entire field of firearm regulation. Nor has it so completely occupied the field that it leaves no room for state regulaton. There may be additional regulation by some states, such as a waiting period to purchase a firearm, but that does not result in breaking any federal law.
 
Now that makes sense, and I can wrap my head around that enough to move to the next question.. is there an appreciable difference between a waiting period that does not ban this commerce, and.. a ban on some part of this commerce?

To draw an analogy that I particularly dislike but don't see an easy way around: Could a State ban the Toyota Camry even if said Camry meets the federal highway standards, because their police power says the presence of the Camry induces auto theft in their state?

I ask this because I'm not sure/convinced the Federal Government hasn't fully occupied the laws on what may be possessed and how one may possess it. And if they can't ban the Camry, with less regulation...
 
As for the automobile, California has long had more stringent air pollution standards for autos than the rest of the country so they could ban the sale of an auto that didn't meet the standards. As to the waiting period, I think that is a perfect example of how the feds do not occupy the field of firearms sales. They only require a background check which doesn't provide a so-called "cooling off" period to prevent rash homicides or suicides.

Federal preemption can get to be fairly complex and a lot of good lawyers never deal with it because of the nature of their practice. I had occasion to deal with it a couple of times years ago because of my duties at the time. My first post, though, practically drained everything I remember about the topic. :) Oh, one minor addition -- the courts are more likely to say no preemption if a state is exercising its traditional police powers, but there's a lot of grey there.
 
And the bottom line is that if California's law prohibiting possession by individuals in California of certain types of semi-automatic rifles is going to be struck down by the courts, it will most likely be struck down on Second Amendment grounds -- not on Commerce Clause grounds.
 
On the automobile emissions law id think that we have to remember that the federal government explicitly granted the state of CA the authority to regulate emissions on its own. other states can sign on to CA’s higher system or to the base model federal but can not create their own systems. difference here with firearms is there is a constitutional amendment, and then there is a regulatory scheme that defines dangerous and unusual, the regulatory tax stamp system for states to regulate or ban it and courts have accepted/created in common use definition…..so then looking at the various laws GCA, NFA etc, unlike the clean air act the feds didn’t carve out and grants states extra authority to create new classes of weapons beyond dangerous and unusual and in common use. they gave them the authority to regulate NFA tax stamp weapons… dangerous and unusual like SBR’s, Full auto, cannons etc. since semi automatic or the mechanically identical sporting rifles most likely meet the in common use criteria, the states trying to regulate it via creating some new classification that lack mechanical differences and instead are trying to regulate cosmetics are walking a thin line.
with cars its its not a right its just comers with firearms the right exist, there is something defining a low water mark…. the federal nfa and tax stamps for dangerous an unusual anything below the low water mark the states can choose to allow or deny on the grounds of granting a stamp or not but the high water mark is in common use. if a state tries to lower the bar on the in common use or not dangerous and unusual it seems they are trying to infringe. commerce or not it is the only innate object that is protected in some way shape pr form but its still being hashed out.

Don’t get me wrong I’m not trying to insert myself as an expert like some of the above posts but aren’t most federal firearms laws claiming authority via the taxing power (NFA) and also over commerce (NFA & GCA) of those….. anyways after reading above I’m still a little fuzzy and probably missed it.

Since the rifle was purchased and not home manufactured it appears commerce and in this interstate commerce was engaged in….. doesn’t it…. just asking.
 
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Just look at the mish mash over magazines try taking a Hicap mag into New York or CA. Same difference.
Or try carrying hollow point bullets in your ccw in New Jersey.
 
There are some dry counties in states such as Mississippi where not only the purchase of alcohol is illegal, but the possession and transport as well. Your Arizonian taking a bottle of hooch through one of them will be afoul of the law, the same as if he carried what was defined as an illegal assault weapon into California.
 
ddestruel said:
...Since the rifle was purchased and not home manufactured it appears commerce and in this interstate commerce was engaged in….. doesn’t it…. just asking.
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Well so far three lawyers have explained in various ways the this is not a Commerce Clause issue. And I seriously doubt that Smith's lawyer will raise the Commerce Clause.

In any case, Smith bought the rifle (apparently legally) in Arizona. He merely took it to California as his property. That is not "commerce." See post 14 for a definition of "commerce."
 
Stiofan said:
There are some dry counties in states such as Mississippi where not only the purchase of alcohol is illegal, but the possession and transport as well...
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That's a poor example. A number of States directly regulate interstate commercial activity involving alcoholic beverages though their regulation of the buying, selling and commercial transportation of such products; but such regulation by a State is expressly permitted under the 21st Amendment.

The best answer is that --

  1. The possession of something in a State by any person in that State for that person's own use is not "commerce" and has only an incidental effect on interstate commerce.

  2. As KyJim pointed out in post 27, there are many areas in which a State and the federal government may have overlapping authority.
 
You pretty much just defined supplier and consumer for me, thanks.

Sounds like you want to argue this to absurdity, so please continue.
 
The possession of something in a State by any person in that State for that person's own use is not "commerce" and has only an incidental effect on interstate commerce.
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unless you are growing wheat....:rolleyes:
 
44 AMP said:
The possession of something in a State by any person in that State for that person's own use is not "commerce" and has only an incidental effect on interstate commerce.
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unless you are growing wheat....:rolleyes:
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Except that Wickard dealt with the scope under the Commerce Clause of federal law -- not whether a potential incident affect on commerce of a state law encroached on Congressional authority.

The fact that the Commerce Clause has been interpreted broadly enough to permit federal regulation of certain matters does not mean that a State may not also regulate those matters within its borders.
 
I understand the charged of possession of an illegal weapon by state law. I don't understand being charged with possession of an unregistered weapon when the weapon is illegal by state law and can't be registered with the state. Wouldn't/shouldn't possession of an unregistered weapon be covered by the illegal weapon charge?
 
Frank Etten said:
That's a poor example. A number of States directly regulate interstate commercial activity involving alcoholic beverages though their regulation of the buying, selling and commercial transportation of such products; but such regulation by a State is expressly permitted under the 21st Amendment.
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Actually Frank I was not talking about interstate commercial activity at all. There are counties that prohibit mere possession. Just like California prohibits mere possession of certain firearms. Buy alcohol somewhere else and just drive through the indicated dry county and you will be in violation.
 
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