CCW National Reciprocity

[Hugh Damright]

OF COURSE I can make a viable arguement that CCW is reserved to the States. We have centuries of judicial history which says that CCW comes under the police powers reserved to the States. And there are a number of cases which point out that the commerce clause does not transform our limited federal government into a national government ... I believe if you search on the term "new federalism" you can find some cases.

As for the supremacy clause, the US is supreme only within their limited jurisidiction which does not include CCW. When it comes to CCW, the States are supreme. Doesn't the Tenth Amendment mean anything to you?

What I don't understand is how you can attempt to misconstrue the commerce clause so as to remove the limits of federal government, and all the while claim to be respecting the Constitution. I find that confusing.

 

[shaggy]

As for the supremacy clause, the US is supreme only within their limited jurisidiction which does not include CCW.

True, but that doesn't apply if CCW is regulated pursuant to an area of exclusive federal jurisdiction like interstate commerce. Yes of course, CCW has traditionally been regulated under a state's police power, but that can be overruled if the federal government chooses to regulate under the guise of interstate commerce. Show me something - anything - that supports your tacit asstertion that CCW cannot be regulated pursuant to interstate commerce. Show me something -anything- that supports your assertion that the Supremacy clause does not apply to federal legislation that conflicts with a state's legislation, even if regulated under a state's police powers. Just because you can't conceive how something like CCW can be thought of as affecting interstate commerce, doesn't mean it isn't possible. It can and has.

And there are a number of cases which point out that the commerce clause does not transform our limited federal government into a national government ... I believe if you search on the term "new federalism" you can find some cases.

Cite me a case. We're not talking about transforming a limited federal government into a national government, however. We're talking about the federal government regulating actions which bear a significant nexus to interstate commerce. That's not creating a national government, thats an area of exclusive federal jurisdiction under the Constitution and our current CC jurisprudence. Its nothing new, the federal government can and HAS regulated weapons, and the possession, and carrying of weapons in the past through interstate commerce. Again, all I have to do is point to 926B. Care to reconcile that one for me?

 

[Hugh Damright]

First off, you keep admitting that CCW coming under the CC is a GUISE, but then you keep saying there is a valid nexus. There is no valid nexus and you know it, that is why you keep referring to it as a "GUISE".

As I said, look up "new federalism" if you want to find some cases. I have no desire to look them up for you when I don't think you will respect them anyway.

 

[shaggy]

As I said, look up "new federalism" if you want to find some cases. I have no desire to look them up for you when I don't think you will respect them anyway.

Since you're trying to proffer it as evidence, you can provide me a cite. I shouldn't have to do your homework for you.

First off, you keep admitting that CCW coming under the CC is a GUISE, but then you keep saying there is a valid nexus. There is no valid nexus and you know it, that is why you keep referring to it as a "GUISE".

Reading comprehension, my friend. First off, just because I call it a "guise" does not mean it cannot be a valid basis for legislation. For the umpteenth time, I don't like the expansive use of the Commerce Clause any more than you, I however, have learned to accept it as a fact of life that isn't going to change. Once again, I ask you to show me some evidence to the contrary. Call it an ageis, a guise, or a ham sandwich, it can still be a valid basis for federal legislation. The description does not change the substance. I'm still waiting for you to explain how its not possible in light of 926B.

 

[LAK]

Shaggy

Where state laws encroach or interfere with an area of federal jurisdiction, the federal law trumps the state

The legal boundaries of jurisdiction in this country are territorial. This goes for the States, as it does for the Federal government. In the cases where there are legal conflicts in matters reserved to either the States or the Federal government under the Constitution the cases are ultimately decided by the SCOTUS. But Federal law in and of itself is not binding throughout the territories under the exclusive jurisdiction of each of the fifty States.

See:

New Orleans v. United States, 35 U.S. (10 Pet.) 662, 737 (1836)

New York v. Miln, 36 U.S. (11 Pet.) 102 (1837)

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

Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 531, 5 S.Ct. 995 (1885)

James v. Dravo Contracting Company, 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)

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

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

S.R.A. v. Minnesota, 327 U.S. 558, 563-64, 66 S.Ct. 749 (1946)

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

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

Caha v. United States, 152 U.S. 211, 215, 14 S.Ct. 513 (1894)

American Banana Company v. United Fruit Company, 213 U.S. 347, 357, 29 S.Ct. 511 (1909)

United States v. Bowman, 260 U.S. 94, 97, 98, 43 S.Ct. 39 (1922)

Blackmer v. United States, 284 U.S. 421, 437, 52 S.Ct. 252 (1932)

Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575 (1949)

United States v. Spelar, 338 U.S. 217, 222, 70 S.Ct. 10 (1949)

United States v. First National City Bank, 321 F.2d 14, 23 (2nd Cir. 1963)

McKeel v. Islamic Republic of Iran, 722 F.2d 582, 589 (9th Cir. 1983) (upholding the Foreign Sovereign Immunities Act as territorial)

Meredith v. United States, 330 F.2d 9, 11 (9th Cir. 1964) (holding the Federal Torts Claims Act as territorial)

United States v. Cotroni, 527 F.2d 708, 711 (2nd Cir. 1975) (federal wiretap laws as territorial)

Stowe v. Devoy, 588 F.2d 336, 341 (2nd Cir. 1978)

Cleary v. United States Lines, Inc., 728 F.2d 607, 609 (3rd Cir. 1984) (federal age discrimination laws as territorial)

Thomas v. Brown & Root, Inc., 745 F.2d 279, 281 (4th Cir. 1984) (same as Cleary, supra)

United States v. Mitchell, 553 F.2d 996, 1002 (5th Cir. 1977) (marine mammals protection act as territorial)

Pfeiffer v. William Wrigley, Jr., Co., 755 F.2d 554, 557 (7th Cir. 1985) (age discrimination laws as territorial)

Airline Stewards & Stewardesses Assn. v. Northwest Airlines, Inc., 267 F.2d 170, 175 (8th Cir. 1959) (Railway Labor Act as territorial)

Zahourek v. Arthur Young and Co., 750 F.2d 827, 829 (10th Cir. 1984) (age discrimination laws as territorial)

Commodities Futures Trading Comm. v. Nahas, 738 F.2d 487, 493 (D.C.Cir. 1984) (commission's subpoena power under federal law as territorial)

Reyes v. Secretary of H.E.W., 476 F.2d 910, 915 (D.C.Cir. 1973) (administration of Social Security Act as territorial)

Schoenbaum v. Firstbrook, 268 F.Supp. 385, 392 (S.D.N.Y. 1967) (securities act as territorial)

 

[arcticap]

Hijacking The Issue

There are some very simple, basic principles regarding the excercising of political power within these United States that somehow seems to be lost and forgotten when discussing such an issue of legal, political, social and maybe most importantly, historical polarization. I think people need to think
outside the box not only in theory but in reality as well. The first principle that needs to be remembered stems from the original purpose of our national gov't. which is to serve the public interest. Laws serve to support and promote the public interest but are however inferior to it. Laws change, and their intents and interpretations can become so meaningless that even the Supreme Court can reverse and revolutionize itself as it seeks to serve &
protect the public interest by completely setting new or eliminating old precedents. Secondly, the Congressional determinations of the national public interest and their processes are rightly refered to as political questions and are not necessarily subjectable to legal review. Thirdly, the historical and evolutionary quest to modify the old/and reestablish any new public interest, and which leaves the current question left begging to be answered is which institution, in their exercise of infinite wisdom of creating, promoting & protecting the public interest, will be the most pivotal in this precedent (or should I say unprecedent) setting task of fulfilling the founder's promise of the 2nd Amendment? Is the issue about the losing of state's rights when we know that the ever increasing majority of them have identified CCW to be in the public interest? Or is the issue primarily about an individual's right to be free from unconscionable state prosecution which shall finally blossom it into being a national perogative?

" Ignore your rights and they will just go away " - Bumper

 

[CAPTAIN MIKE]

Police Powers of the State versus Fundamental Rights

While the states are Constitutionally afforded the 'police powers', the trumping of state law can be accomplished by a SCOTUS holding that the right to be armed for self-defense is as least equal to - if not more so - the previously recognized and protected 'fundamental rights' of travel and marriage.

Thus, if a good set of facts could be brought before SCOTUS, under which the issue was NOTHING OTHER THAN the individual right to be armed for self defense, we could probably once and for all get a 'fundamental rights' decision that would be 'the law of the land' permanently.

 

[shaggy]

Lak

Well you really did your homework. Unfortunately you failed miserably. I have little doubt you read any of those cases, otherwise you wouldn't have cited them. In the future, if you're going to cite cases, please try to at least skim through them, rather than merely rely on someone else's website to explain it to you. I don't like wasting my time for such nonsense. Here's a few I did read through before I got sick and tired of reading through cases which you do not understand since you obviously haven't read, or even skimmed through.

Here's a pair...
Pacific Coast Dairy v. Department of Agriculture of California, which stands for the blockbuster conclusion that a state cannot dictate the law on a federal enclave or in violation of the Supremacy Clause. Gee whiz, and here I've been saying all along that the Supremacy clause would cause an exclusive area of federal jurisdiction to trump a state law to the contrary.

Oh but now you're going to say how Pacific Coast Dairy conflicts with Penn Dairies v. Milk Control Commission of Pennsylvania. A slight distinction you probably missed however; in Penn Dairies, the land was not federal land; it was LEASED. Additionally, even in Penn Dairies, the Court noted that the federal government, through Congress, could have set aside the state regulations if it wanted. The Secretary of the Army, however, didn't have this power, and in the absence of evidence to the contrary, the Court was not going to infer a Congressional intent to set aside the local regs.

Paul v. United States? Another case standing for the whopping proposition that a state cannot apply its taxes and regulations to an enclave of the federal government if there it is in conflict with a federal law or if Congress evidences an intent to exempt the federal government from the purview of the state regulation.

Of course, maybe you're just lifting dicta to suit your needs. Next time, try a holding.

S.R.A. v. Minnesota - Well thats a brilliant one. A private party cannot be exempt from a state realty tax merely because the US government holds the mortgage. The US government was not a party in interest. Wow.

US v. Spelar? The Federal Tort Claims Act does not apply to incidents in Newfoundland. Boy, who would have thought US law doesn't extend to Brittish leased land in Newfoundland? You really got me there.

Foley Bros. v. Filardo? A 1940 US law prohibiting more than an 8 hour workday (absent overtime pay) for contractors of the US government is inapplicable to a contractor working in Iran. Good Lord, why am I even wasting my time?

Cleary v. United States Lines and Thomas v. Brown & Root, Inc? The 1967 Age Discrimination Act does not apply to Americans employed outside the US? Oddly enough, around 1984 Congress amended the FLSA to make it applicable to US workers working outside the bounds of the US. Wow, did you just randomly pick cases without regard to what they mean? It would really help in our discussion if these cases had some bearing on the Commerce Clause or the Supremacy Clause.

I've done as much as I'm going to do. If you can't bother to read the cases yourself, don't cite them to me. I don't like wasting my time on such nonsense. Citing to irrelevant cases doesn't help make your point.

 

[LAK]

Shaggy,

It is on the principles of jurisdiction and separation of powers that you are in error. In every case the outcome was decided via the courts - not a legislative act concocted by the Federal legislature.

 

[shaggy]

It is on the principles of jurisdiction and separation of powers that you are in error. In every case the outcome was decided via the courts - not a legislative act concocted by the Federal legislature.

Oh for crying out loud LAK, thanks for the lesson in the blindingly obvious. What astute observation are you going to make next; that the judges spoke and wrote their opinion in English rather than Greek? Of course they were decided by the courts, they're court cases. Caselaw. By definition they are decided by the courts. Can you show me a court case that was decided by Congress? So what''s your point? Through various cases interpreting the Constitution and the Commerce Clause the courts (most notably the Supreme Court) has decided Congress has jurisdiction to legislate and regulate things in interstae commerce, the channels of interstate commerce and activities substantially affecting interstate commerce. Congress HAS jurisdiction in the area of interstate commerce.

 

[Hugh Damright]

The first principle that needs to be remembered stems from the original purpose of our national gov't. which is to serve the public interest.

The way I see it, we do not have a national government: We have a limited federal government. And our limited federal government has not been delegated power over the "public interest", nor could such a power be delegated without turning our limited federal government into a national government and thereby destroying the US Constition.

And I don't believe that the Founders' promise of the Second Amendment has anything to do with CCW. The Founders felt that self-government requires an armed people, but self-government does not require CCW. There are at least twelve State Constitutions which clarify that the RKBA is one thing and CCW is another. Here's a quote from a Supreme Court case "Robertson v. Baldwin":

the right of the people to keep and bear arms (article 2) is not infringed by law prohibiting the carrying of concealed weapons

The problem is that some of y'all are "gun law abolitionists". Your postition seems to be "screw the Constitution, screw the law, screw our form of government, and screw the States, I just want nationwide CCW and I think our runaway US Congress could give it to me".

In other words, the way I see it, some of y'all want to lie, cheat, steal, turn the Constitution on its ear, and ask what's wrong with that. It is a lie to say that the feds have authority over CCW. It is an attempt to circumvent the Constitution i.e. the rules i.e. it is an attempt to cheat. It is an attempt to steal CCW jurisdiction from the states. And it is an attack on what Jefferson called the foundation of the US Constitution: the Separation of State and Federal powers.

Maybe if y'all would just admit that you are "Gun Owners Against the Tenth Amendment", then I wouldn't have as much to say. It's the pretense that someone is respecting the Constitution as they defy it that I find offensive. And by the way, shaggy, you are on my ignore list.

 

[shaggy]

And by the way, shaggy, you are on my ignore list.

Oh gee-whiz, imagine my surprise. You haven't been able to answer any of the difficult questions I've posed so far; you just ignored the ones you didn't like or couldn't answer.

But since I know curiosity will get the better of you and you're still reading, I'll respond anyway.

How many times in this discussion have I said I don't like or agree with the current expansive use of the CC as a basis for federal legislation? Unfortunately, however, its here to stay and although I've asked you numerous times to show me something to the contrary - anything that indicates we are heading to a curtailment and reversal of the use of CC you haven't been able to produce one shred of evidence. Not one iota.

Yes, the use of the CC as a basis for federal jurisdiction over areas traditionally reserved to the states is wrong, but its not going to change. We've crossed that line and rung that bell. It cannot be "unrung" now. There are far too many interests, both individual and institutional, that will not allow it to change now. As I've said before in our discussion, the federal government is not going to cut its own throat. You can continue to believe it may happen, but you might as well be asking your fairy godmother to give you the winning Powerball ticket. Reality, my friend. It hurts sometimes, and often it isn't fair or right, but you have to deal with it. You want us to blow sunshine and happiness up your arse, and say the CC isn't a valid basis for such legislation, we can, but thats not reality. It IS a valid basis for legislation, and in reality, its the only way we'll see anything resembling a nationwide CCW, rather than a state by state patchwork of permits.

Here's a question (which I know you'll dodge, but I'll ask anyway) - what happens in that patchwork of state permits if various states don't have statewide preemption of gun laws, or create exemptions to the state preemption like in NY? How long will it be before some unwitting gun owner walks into the wrong county in a foreign state where his license is generally valid, but not applicable in certain counties or municipalities?

And I'll ask you once again to tell me about 926B which under the "guise", "ageis", or "ham sandwich" of interstate commerce allows current and retrired LEO's to carry nationally? I suspect you'll dodge that question once again also - not like I haven't asked it of you before.

Despite your well meaning protestations, the CC as a basis for federal legislation is here to stay. You can do something productive and try to make it work for your benefit or you can cry about something you can't change. I'll take the former.

And as to the 2nd Amendment, I do believe it DOES include CCW. Unfortunately, the 2nd was never held incorporated through the 14th, nor has it been held a 'fundamental right'. Additionally there has never been a case determining the standard of review for the 2nd Amendment. Much as I'd like to think it would get a strict review, I'm not foolish enough to truly believe it would get anything more than rational basis review. And there's the difference between you and me in a nutshell - I deal in reality and the positive questions of "what is". You are dealing with theory and the normative question of "what should be". Unfortunately there is a world of difference between theory and reality and "what should be" is often very different than "what is" or "what can be".

 

[arcticap]

Fed's Deputize pilots, Dick 'n Jane Too!

Y'all, maybe the Fed's can just deputize the entire national population and everyone can just carry as LEO's, or at least every citizen who "qualifies".
Yes, our nation's "national" government is federal in nature.

 

[LAK]

Shaggy,

Don't know what your insult beef is with me; my point from the beginning was that a piece of Federal Legislation does not in and of itself "trump" state law. I explained why. Fact; the Juduciary, Legislature and Executive are subject to a separation of powers. Fact; Federal jurisdiction is limited, by territory and Constitutional restriction.

You have run from one arguement and tangent to the next, and do not seem to be able to objectively follow anything within the bounds of specifics and principles to a conclusion. This, as it happens, mirrors the way our Judicial, Legislative and Executive branches and their counterparts in the States have wandered in, out and around their mandates and legal boundaries.

Continuing down that road is pure folly; as surely as being guided by something akin to "the ends justifies the means".

Please, in sound principle and logic, explain how the "commerce clause" can be bent far enough to bring "the carry of concealed handguns by private persons in all the 50 states" under the jurisdiction of the Federal Congress.

I am all ears.

 

[Windage & Elevation]

Captain Mike, Helllllp!

Gentlemen, Gentlemen, please! Was this thread designed to be a litigational duelling ground? Or was it merely an opportunity to either support or speak against the proposed legislation? Granted, I am new to the board, but if ya'll can shoot as well as you can argue, I'm scared of you! I am proud to see there has been no name calling or aspersion casting, and I congratulate you all on that. Captain Mike - were you looking for quorum on this, or is this where you wanted this thread to go? I am in awe of the depth of arguments seen here thus far - Whew!
I hope you are all still friends!

 

[shaggy]

Lak

My apologies if you feel I insulted you - I do admit I can get a bit
zealous in the defense of my positions. Nevertheless, some of those
cases you cited were really in left field and had little, if any
bearing on our discussion.

Now on with the show...

my point from the beginning was that a piece of Federal
Legislation does not in and of itself "trump" state law. I explained
why. Fact; the Juduciary, Legislature and Executive are subject to a
separation of powers. Fact; Federal jurisdiction is limited, by
territory and Constitutional restriction.

No, federal legislation does not automatically trump state law, but if
there is a conflict between the two, the federal law most certainly
does. Once again, I direct your attention to the Supremacy Clause.
And again, you are correct in that Federal jurisdiction is limited by
Constitutional restriction. The Constitution, however, gives the
federal government exclusive jurisdiction in the area of regulating
interstate commerce, which includes items in the stream of interstate
commerce, the channels of interstate commerce and activities
substantially affecting interstate commerce (see Wickard, Lopez,
etc.) As far as territorial restrictions go, federal law can apply to
federal agencies, possesions, and lands, but it can also apply
generally throughout the entire United States, affecting all persons on
any lands or territories regardless of whether the act in question
occurs on federal, state, municipal, or privately owned property.

Now I'm going to reference a post you made in another thread so I can
hopefully blow this idea of territorial restrictions out of your head.

You posted:

Read Meredith v. United States and tell us all that Federal
jurisdiction for the Federal Torts Claims Act is "not territorial".
Read United States v. Cotroni and tell us all that Federal jurisdiction
for Federal wiretap laws is "not territorial". Read Cleary v. United
States Lines, Inc and Thomas v. Brown & Root, Inc and tell us all again
that "Federal law" just rules everywhere it flows, like some magic
wand.

I have to wonder if you read these cases. Cleary v. United States
Lines, Inc and Thomas v. Brown & Root, Inc both stand for the whopping
conclusion that federal law does not automatically extend outside the
bounds of the United States to US actors in foreign countries.
Gee-whiz, who would have guessed US law didn't apply in Iran? They
weren't about whether the FLSA was applicable within the US or the
states (it was), but rather whether it was applicable outside the
bounds of the US or any state - as in foreign countries. And as I
correctly noted, after Cleary & Thomas Congress stepped in to extend
the jurisdiction to protect US workers working in foreign countries
also, so its not as if that jurisdiction could be extended either.

Similarly, I'd recommend a better reading of Cotroni, Meredith and many
of the similar cases you probably picked up from those tax-protestor,
anti-government, militia, tin-foil hat websites do (no, it didn't take
me too long to figure out where you got your info). Those websites only
tell half the truth, if that much.

Since you haven't been able to express it yourself, let me explain the
basis of their misguided argument. They believe Art.I Section8
Paragraph 17 of the Constitution limits the jurisdiction of the federal
government to federal enclaves on federal land and federal possessions:

To exercise exclusive legislation in all cases whatsoever, over such
District (not exceeding ten miles square) as may, by cession of
particular states, and the acceptance of Congress, become the seat of
the government of the United States, and to exercise like authority
over all places purchased by the consent of the legislature of the
state in which the same shall be, for the erection of forts, magazines,
arsenals, dockyards, and other needful buildings​

This, however, is not a limitation on the jurisdiction of the US
government, it is merely one area of EXCLUSIVE federal jurisdiction.
It is co-existant with other areas of exclusive federal jurisdiction
and areas of non-exclusive federal jurisdiction. Just because Congress
has exclusive jurisdiction over a federal enclave or a federal property
(like Washington DC, a military base, federal building, etc.) does not
mean it has no jurisdiction over other non-federal property and
possessions.

With equal force of Art. I section 8, paragraph 17 on which your
argument relies, Art. I section 8 paragraph 3 gives Congress
jurisdiction over interstate commerce. Cases like Wickard and Lopez
extend that jurisdiction to all things in the stream of interstate
commerce, the channels of interstate commerce and activities bearing a
substantial relation to interstate commerce. Unlike Art. I section 8,
paragraph 17, the Commerce Clause (Art. I section 8 paragraph 3) is not
restricted to the geographical boundary of a federal enclave or federal
property - it extends to all persons on federal, state, local, and
privately owned lands throughout the entire United States.

Here's an experiment for you to try...

Make a machinegun in violation of the National Firearms Act and 922(o)
in your home. Call up the BATFE, tell them what you've done and give
them your name and address. If, as you assert, it cannot be enforced
because the criminal activity didn't take place on a federal land or
enclave, you should have no legal troubles, right? Please let us know
how that works out for you.

Here's another experiment for you to try...

Don't pay your taxes. Art.I Section 8 paragraph 1 confers the power to
tax on Congress. Again, if you are correct that federal criminal jurisdiction only applies on federal lands or enclaves, the IRS shouldn't be able to prosecute you if you're not on federal lands, right? Again, let us know how that works out for you.

 

[LAK]

Shaggy,

You are dodging - again. And are making a meal out of something that was discussed a long way back on this thread, and related ones on this subject; the difference between exclusive, partial (or concurrent) jurisdiction, where States have ceded or partially ceded jurisdiction .... and the "commerce clause".

So why not quit pretending that those are not already under the bridge in this discussion and follow a cohesive and objective line to a logical conclusion.

The jurisdiction of governments is territorial. The Jurisdiction of certain specifics by our Federal Congress over matters within States are specific and limited.

As you already know, just because the recent and or current Congress "step in" to "change the law" doesn't in and of itself impress me either. The United States Congress can not "extend the jurisdiction of the United States" onto foreign soil. That is a globalistic misconception, as it fundamentally dissolves the order of national borders and sovereignty - a concept in and of itself hostile to the United States Constitution. In other words, for Congress to endorse such a thing and still claim to "defend and uphold" our Constitution - is an oxymoron. Marbury v. Madison applies here.

Now I am well familiar with extra-territorial jurisdiction - so let's not go off on yet another tangent with it. Suffice to say that the perverted legal "interpretations" used to continually expand the "commerce clause" can be applied to anything.

Just think Shaggy - a designer jurisprudence! Because .... it can "be anything you want it to be!" Wait until Ruth Bader Ginsburg and Co have that slogan on a plaque over their Bench.

The "supremacy clause" does not alter jurisdiction; it merely means that when two laws collide in the same shared jurisdiction one prevails over the other. If Federal law overrode State law in any jurisdiction and all cases - the Federal Congress could legislate the States into one Federal State in a single day.

On the subject of the magic band otherwise known as the BATF; incidently there was a recent case where a prosecution failed to secure a conviction for a homemade submachinegun - think it was a Nevada man recently. The court found that the piece had not travelled in interstate commerce. Think there is a thread or two about it on this forum.

On the subject of "anti-government" sites you are displaying some common ignorance driven by some popular notions. Those cases are all over the web, and not on any anarchist websites that I know of. But then again I do not frequent anarchist websites so I would not know. They are on the "Case Law" and "Find Law" sites, universities, and others.

"Tax protester" is a similarly contrived and popularly injected term which I find very amusing these days. It is akin to saying if you openly oppose and resist being robbed - you are a "robbery protester".

You should have been in the courtroom in Memphis last year for United States v. Vernice Kuglin. You could have rushed to the aid of the IRS and waved Art.I Section 8 paragraph 1 in the face of those present and consigned that "tax protestor" Kuglin to bitter defeat, humble pie - and being robbed of the fruits of her labor. Gosh, you would have been a hero - maybe even a statue in your honor next to some Federal building. I looked for the case on the web, and alas, the first place I find a transcript is one of those "anarchist" websites:

http://www.constitution.org/tax/us-ic/kuglin/kuglin.htm

Shaggy

... Make no mistake, I'm not happy about the expansion of federal regulatory power through the Commerce Clause, but I'm a realist and know its not going to change ....

This highlights the gross and obvious error in your position and reasoning. You say you are a "realist". Well, ask yourself these questions; by whom, why and how was the "commerce clause" skewed with the sole purpose of advancing Federal regulatory power? A subversive agenda, conducted by subversives. Are you naive enough to think that those who would pervert a key and fundamental legal clause in the Constitution for their own corrupt ends are going let you and other gun owners basically join their club and dance with them to this tune and eat dinner with them as well? It is a trap.

You can not dance with the devil ... and then walk away. If this matter is ceded to the Federal Congress willingly by those who know better, we may as well hang it up. This is not simply a battle to get some people to agree to let some people to carry firearms on their terms - any terms - and with their permission only. It is an ideological battle. If we will not fight on an ideological basis we are going to inevitably lose this fight.

So, for the third time, I ask you to please articulate a reasonable, logical and tangible connection between "interstate commerce" .... and .... "some privileged folk carrying concealed handguns outside their home states where it is otherwise prohibited by local State law."

 

[arcticap]

Case Closed!

I'm not the one who believes that the ends justify the means. The Supreme Court and Congress does. Just look at the difference between how the Fed's treat the possession of Pre-1898 pistols to Post-1898 pistols. Look at how the Constitutional Gold Standard has been completely scrapped and ignored.
The simple fact that there are Constitutional rights contained within the 2nd
Amendment that have yet to be recognized serves to illustrate that non-believers are everywhere among us and need to be exposed for just what they are. There is no gray here, only black & white. One either believes or one doesn't, case closed!

 

[shaggy]

So why not quit pretending that those are not already under the bridge in this discussion and follow a cohesive and objective line to a logical conclusion.

The jurisdiction of governments is territorial. The Jurisdiction of certain specifics by our Federal Congress over matters within States are specific and limited.

Oh for God's sake, LAK, the territory under which acts regulated under the aegis of interstte commerce are the Unites States and every piece of land in it - regardles of wherther it is federal property, state property, or private property. Again, if you think otherwise, please explain why you pay your taxes. I'm just dying to hear your answer to that...

The United States Congress can not "extend the jurisdiction of the United States" onto foreign soil.

And yet YOU were the one who cited to Cleary and Thomas. The act of Congress which wextended the FLSA did so for US citizens working in foreign countries, pursuant to contracts in the US.

Now I am well familiar with extra-territorial jurisdiction - so let's not go off on yet another tangent with it. Suffice to say that the perverted legal "interpretations" used to continually expand the "commerce clause" can be applied to anything.

No, I doubt you're familiar with much of anything - at least you haven't shown it here. How many times do I need to say it to get it through that tin foil helmet you're apparently wearing. The territorial jurisdiction of Congress is limited to the geographical boundaries of federal properties and possession only when dealing with Art I Section 8, para.17 . For legislation enacted under the Commerce Clause, the territorial (geographic) limitation is anything within the Unitd States - including federal, state, local, or privately owned property.

And of course the Comerce Clause can be applied to almost anything - thats the whole freaking point, in case that got lost in the tin foil also. We've known that since Wickard and its not going to change - did you just figure this out? Have you even read Wickard? Congress HAS been using and abusing the Commerce Clause for decades as a basis to legislate and regulate everything under the sun. The existance of entire federal agencies and departments are premised on the Commerce Clause, the vast majority of Title 18 of the US Code is premised on the Commerce Clause, and you think thats going to change? We have a far better chance of seeing the 2nd Amendment incorporated through the 14th Amendment and held applicable to all the states, declared as fundamental as the right to free speech, and given the most stringent standard of review. Again, if you think otherwise, show me some evidence of a reversal or curtailment of the use of the commerce clause.

On the subject of the magic band otherwise known as the BATF; incidently there was a recent case where a prosecution failed to secure a conviction for a homemade submachinegun - think it was a Nevada man recently. The court found that the piece had not travelled in interstate commerce. Think there is a thread or two about it on this forum.

Of for God's sake, you don't even know the facts of Stewart? I suppose I shouldn't be surprised - you've already shown a penchant for citing to cases which you obviously haven't read and don't fully comprehend.

Let me clue you in here: The name of the case is US v. Stewart. I briefly mentioned it in post # 28, but apparently you didn't read that or understand it - I guess I shouldn't be surprised. In Stewart, a writ of cert. has been filed in the US Supreme Court to hear the case and have it disposed in the same manner as a pending marijuana (sp?) case. As hopeful as many are in the NFA community the concensus is that its a dead issue. The Supremes will find mere possession to have a significant effect on interstate commerce and reverse and remand. Mark my words.

In Stewart the law was found to be generally applicable to Bob Stewart (even though it happened on his own property, not federal property), but his defense is that the parts he used to make his machinegun never travelled in interstate commerce and his act of manufacture had no effect on the interstate market (since he was a felon, he could not legally buy a machinegun or partake in the interstate market for firearms, much less machineguns). Interesting to note, however that the provisions of the National Firearms Act (which are based upon Congress' power to tax were not challenged and completely valid against Mr. Stewart even though he built it on his own property. What was that about territorial limitations again?

Thus in the Stewart case you have a situation where a felon would be able to make a machinegun (if the parts were completely homemade) but a non-felon couldn't because the non-felon could legally purchase one on the interstate market and thus affect interstate commerce. (see, there's that sticky Wickard thing again...)

And you think the Supreme Court is going to let felons make their own machineguns? Righ after they eviscerate most of the federal drug laws based upon possession. Don't hold your breath waiting for that, chief.

Of course, I don't know why you'd be concerned - since it didn't happen on federal property, there shuoldn't be jurisdiction, right? Funny how every court so far has found there to be federal jurisdiction...

You should have been in the courtroom in Memphis last year for United States v. Vernice Kuglin....

LAK - now you're just being a dolt. You just can't look at the outcome of a case and assume it validates your position. WHY the court did what it did is important. Just because Vernice Kuglin got off does not mean she proved the tax code invalid for lack of jurisdiction. She got off for a lack of criminal intent. Apparently the jury thought she honestly believed the tax code did not apply to her, so she lacked the necessary level of criminal intent to be convicted of the crime of non-filing and non-payment.

Kuglin had NOTHING to do with the jurisdiction of the federal government to tax an individual. Were there not jurisdiction based upon Art.I Section 8 paragraph 1 there wouldn't have even been a court hearing - it would have been dismissed on motion long before anyone got into the courtroom and we'd all be jumping for joy in the streets at not having to pay any income taxes.

Like most of what you come up with LAK, however, that website with the info on the Kuglin case only tells half the story, if that much. The link you provided only has transcripts and the case wasn't even notable enough to get reported. There's a lot of exhibits which aren't shown on the link you provided, so its impossible to tell if there was some irregularity there which may have also swayed the jurors. In addition to not showing any of the exhibits produced at trial, there were no filings on your link, there were no copies of motions, there were no briefs, there wasn't even a copy of the jury instructions, for crying out loud. Just a transcript of a JURY trial were she got acquitted for lack of intent since she was so stupid. Notice how at the end of the Kuglin trial, even though she gets off of the criminal charges, she still has to pay the fines and clear up the back taxes? Its because the jury found her lacking in criminal intent, not because there wasn't jurisdiction under Art.I Section 8 paragraph 1. Now that she's been to court once, she won't have the intent defense the next time (since she now knows she has to file and pay) and she still has to clear up her back taxes and filings. Good Lord, LAK, you just can't look at a result you like and assume it validates your position. You have to understand the logic of why it got to that result.

This highlights the gross and obvious error in your position and reasoning. You say you are a "realist". Well, ask yourself these questions; by whom, why and how was the "commerce clause" skewed with the sole purpose of advancing Federal regulatory power? A subversive agenda, conducted by subversives....

Ahh yes, the subversives. Better strap on my tin foil helmet.

Not subversives, politicians. Its just part in parcel of the "buy a vote" program. The more that can be regulated under the commerce clause, the more power a politician wields, the more government jobs he can dole out, the more votes he gets. Ironically though, the whole slide into this mess was caused by the ruling in Wickard (have you read that yet?) which has been upheld and expanded upon for decades. As I've mentioned before its not going to change. This is something FAR more entrenched in our system of government than social security, defecit spending, welfare, and income taxes. Its not going to change. The best we can do is to play the hand we have been dealt by Congress and the judiciary.

So, for the third time, I ask you to please articulate a reasonable, logical and tangible connection between "interstate commerce" .... and .... "some privileged folk carrying concealed handguns outside their home states where it is otherwise prohibited by local State law."

I already explained it in post #30 of this thread, but again, you apparently didn't read it or understand it. Then again, that was a whole 2 pages ago, so maybe you forgot by now. Go back and re-read.

 

[LAK]

Shaggy

LAK, the territory under which acts regulated under the aegis of interstte commerce are the Unites States and every piece of land in it - regardles of wherther it is federal property

Bull! See United States v. Adams. What you say is simply, factually, not true.

I "pay taxes" because they are taken at source. If not, believe me I would not willingly give up ONE CENT. You may have the slave mentality Shaggy - I do not. The income tax is a constructive fraud. It is theft.

The Cleary case clearly demonstrated a territorial basis for jurisdiction. Fact. If you read the case, you will know that extending it extra-territorially was, accrding to the court, dependent on the scope of intention of Congress when the law was passed. The fact that this is recognized is not something I am in agreement with. Like your "commerce clause" - Congress could simply rubber stamp "all laws" as having the intent of extending extra-territorially.

Why don't you just go work for the U.N.? They are right up your alley; no borders, "no limits" to their jurisdiction. It is the apex of your concept.

We've known that since Wickard and its not going to change - did you just figure this out

"We"? Speak for yourself. You're wearing the hat pal - not me. You have the condescending attitude of those who are steadfastly intent on disarming us. Why don't you change clothes or come out of the closet altogether?

It will change, or this country as an independent sovereign nation is finished. It is one or the other. It is not going to hover forever between "both".

The Supremes will find mere possession to have a significant effect on interstate commerce and reverse and remand. Mark my words

Yep, that will not surprize me. But they may not hear the case, or it may not go as you and I believe is likely. When it does, why don't you file a "Friend of the Court" brief supporting the relevence of the "commerce clause" in Stewart's case?

RE: Kuglin

Were there not jurisdiction based upon Art.I Section 8 paragraph 1 there wouldn't have even been a court hearing

No - wrong again. See United States v. Adams. Just because the Federal government is trying to run a prosecutiuon outside of their jurisdiction does not mean they are correct in their assumption - or are able to prove their case.

She got off for a lack of criminal intent

Gosh Shaggy, you mean if I can prove "I had no criminal intent" I can get off any Federal charge? You are really stretching credibility now. I know intent is a crucial element in securing a conviction; how many major Federal cases has that blocked a major Federal case in the last forty years Shaggy? The jury found Kuglin not guilty as charged. Fact.

Hmmm, the case was not featured on CNN, ABC, CBS, NBC - or the front page of the NY Times. I wonder why that is Shaggy.

Let me guess; it is fake? The case does not exists? Kuglin was really convicted and they won't cover stories that are untrue? Or perhaps

Give me a break. And that ends my discussion on this one.

Join your true friends Shaggy. They have lots of work for you and I am sure they will pay you well.