Congressional authority over entirely intra-state firearms markets?

[kraigwy]

I don't want to go off topic on the Post about School Zones so I'll start a new post.

Notice the wording:

Originally Posted by USC Sec 922 (q) 2
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone

From the LEOSA or HB 218:

§ 926B. Carrying of concealed firearms by qualified law enforcement officers

(a) Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).

All Federal Gun laws have similar wording. Why do they include that wording?

Now lets assume you live the State of X, and in this state, Gun Manufacture Y builds firearms. You buy a Y firearm and never leave the state with that firearm.

How do you fall under federal gun laws.

My son works for DHS, he is one of their firearms instructors and also is a supervisors. I presented this question to him.

He told me he had attended several DHS Schools over the years and in each, when dealing with federal gun laws, was cautioned to be careful in places where a gun is found in a state where it was manufactured, before one could be charged the government has to prove that gun left the state in "interstate commerce.

How does this apply to states like Wyoming, Montana, and others with the "made in state, stays in state" laws?

An interesting subject.

Depending on the state I would think the government would have a hard roll to hoe in getting a conviction.

They might pull it off with a jury in New Jersey, Mass or such state, but they would have a difficult time getting a conviction is gun friendly stats such as Wyoming, OK, Texas.

Hopefully a lawyer dealing in Gun Laws will chime in.

 

[zukiphile]

All Federal Gun laws have similar wording. Why do they include that wording?

Congress has authority to regulate interstate commerce. Caselaw interpreting, i.e. expanding, that authority would permit federal regulation of an intrastate firearm that has not itself been in interstate commerce but otherwise effects it, under the commerce clause.

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

Emphasis added.

 

[Brian Pfleuger]

Yep, and ever since Wickard v. Filburn (at least), it has been held that doing something specifically NOT for interstate commerce actually effects interstate commerce by virtue of NOT being interstate commerce when it COULD HAVE BEEN because if the NOT interstate commerce hadn't been done then the person would have engaged in actual interstate commerce. (more or less)

Yeah... there's a legal term for that.... "stupid".

 

[kraigwy]

Ok so lets say one (in a state where its legal) goes out to his garage machine shot. Builds for his own use, a shotgun, which he builds and uses for his own use, no intention of selling or giving away,

How is that inter or intrastate commerce.

If that is considered commerce, then why does the government need to include the above listed clause?

 

[Spats McGee]

An interesting subject, indeed!

. . . .All Federal Gun laws have similar wording. Why do they include that wording? . . . .

The (perhaps overly) simple answer: to bring the subject (firearms) under the umbrella of the Commerce Clause.

The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

. . . .Now lets assume you live the State of X, and in this state, Gun Manufacture Y builds firearms. You buy a Y firearm and never leave the state with that firearm.

How do you fall under federal gun laws.

The broad answer, and one that I would expect the federal government to make, is that the federal government, by virtue of the Commerce Clause, may regulate:

There are three broad categories of activity that Congress may regulate under its commerce power: (1) the use of the channels of interstate commerce; (2) the protection of the instrumentalities of interstate commerce or persons or things in interstate commerce; and (3) the regulation of those activities having a substantial relation to interstate commerce (those activities that substantially affect interstate commerce). United States v. Lopez, 514 U.S. 549, –––– – ––––, 115 S.Ct. 1624, 1629–30, 131 L.Ed.2d 626 (1995).

Goetz v. Glickman, 920 F. Supp. 1173, 1178 (D. Kan. 1996) aff'd, 149 F.3d 1131 (10th Cir. 1998)

The argument in support of federal firearms regulation is that the firearms industry "has a substantial relation to interstate commerce."

My son works for DHS, he is one of their firearms instructors and also is a supervisors. I presented this question to him.

He told me he had attended several DHS Schools over the years and in each, when dealing with federal gun laws, was cautioned to be careful in places where a gun is found in a state where it was manufactured, before one could be charged the government has to prove that gun left the state in "interstate commerce.

How does this apply to states like Wyoming, Montana, and others with the "made in state, stays in state" laws? . . . .

An excellent question. In that case, the Commerce Clause (& all of the case law that goes with it has to be read in conjunction with some other clauses, like the Supremacy Clause, which makes federal law superior to state law. One problem with the "substantially affecting interstate commerce aspect" is that if the subject of regulation is brought under that umbrella, it's not really necessary for the subject to have traveled in interstate commerce.

For example, in Wickard v. Filburn, in 1942, Mr. Filburn owned a farm, and grew wheat for himself and to sell in the area, but not to sell in interstate commerce. ("The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption; and to keep the rest for the following seeding." Wickard v. Filburn, 317 U.S. 111, 114, 63 S. Ct. 82, 84, 87 L. Ed. 122 (1942)). By federal law, he was assessed a penalty (IIRC) for producing too much wheat, and the Secretary of Agriculture assessed a penalty against him. The trial court granted Filburn an injunction, which SCOTUS reversed, saying (by quoting an older case):

The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. * * * The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.

Wickard v. Filburn, 317 U.S. 111, 124, 63 S. Ct. 82, 89, 87 L. Ed. 122 (1942)

Depending on the state I would think the government would have a hard roll to hoe in getting a conviction.

They might pull it off with a jury in New Jersey, Mass or such state, but they would have a difficult time getting a conviction is gun friendly stats such as Wyoming, OK, Texas.

Hopefully a lawyer dealing in Gun Laws will chime in.

I see the question as slightly different. I don't think it's a matter of a State being "gun friendly" so much as "State's Rights friendly."

 

[kilotanker22]

Brian I love reading your posts you are always very direct and often provide a (common sense) point of view. And yes that legal term would be STUPID!

 

[zukiphile]

Ok so lets say one (in a state where its legal) goes out to his garage machine shot. Builds for his own use, a shotgun, which he builds and uses for his own use, no intention of selling or giving away,

How is that inter or intrastate commerce.

If that is considered commerce, then why does the government need to include the above listed clause?

You know that shotgun he would have purchased from interstate commerce if he hadn't built one? That shotgun was in interstate commerce, and since he didn't buy it, he has had an effect on interstate commerce.

If that sounds tortured to you, you understood it perfectly.

 

[Spats McGee]

If that is considered commerce, then why does the government need to include the above listed clause?

Because it wants to "pack the record" so that a particular law will withstand a constitutional challenge. The GFSZA was passed once, declared unconstitutional, and then passed again. The essential reason that it was declared unconstitutional the first time:

The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.


To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.

United States v. Lopez, 514 U.S. 549, 567, 115 S. Ct. 1624, 1634, 131 L. Ed. 2d 626 (1995)

Congress then turned around, re-enacted the statute, and packed the record with findings connecting guns at schools to interstate commerce. I think someone took it back to SCOTUS, and it was affirmed the second time around, but I'm having trouble locating the case.

 

[kraigwy]

Commerce implies trade.

If no trade is involved or anticipated how can any part of the commerce clause apply.

Simply stating that "it could" be used in commerce wont cut it. You can't charge someone who "could" do something.

If that's the case we're all in trouble. A good example of that is "destructive devices" or bombs. We cant make bombs, but all of us have the means to do so. I doubt there is a household in this country where a destructive device couldn't be made with common kitchen products.

Any one has the ability to make bombs, but until they do so, they've committed no crime.

Anyone can make a product, but until that product is used in trade, its not commerce.

 

[Spats McGee]

Congress and SCOTUS don't view it as "could affect" interstate commerce. They view it as an activity that has affected interstate commerce. zuikiphile posted an excellent example:

You know that shotgun he would have purchased from interstate commerce if he hadn't built one? That shotgun was in interstate commerce, and since he didn't buy it, he has had an effect on interstate commerce.

 

[44 AMP]

You can't charge someone who "could" do something.

You'd think so, wouldn't you...

But we can, and do it all the time. Everytime we catch a "terrorist" before they set off a bomb. Fed sting ops catching would be bombers, when the actual explosives (provided by undercover officers) are actually inert...

Conspiracy laws can also charge people for crimes that were not commited, only planned....

"charging" us, or counting us guilty before the fact is the rational behind virtually ALL gun control.

Sorry, you can't have that assault weapon/Saturday night special/30 bullet per second clip or the shoulder thing that goes up...because of what someone might do with it....

The list is large, and not limited to guns...

 

[kraigwy]

Now that is really pushing it.

That's like saying I fall in Ag Laws. If laws say watermelons used in commerce have to be inspected that I cant grow watermelon to eat at my own table because if I grow my own watermelon I'm not buying water melons from the neighboring farmer.

Or closer to reality, I cant build a wind generator to generate electricity because I wouldn't be buying electricity that is covered by commerce.

Where do we draw the line.

 

[Spats McGee]

Actually, conspiracy charges are based on what someone has done, not what they could do. Take a "conspiracy to commit armed robbery" charge. If I sit around and discuss committing an armed robbery, I'm unlikely to be charged (IMHO). On the other hand, if I bribe a bank teller into selling me information on guard rotation at the bank; or steal a car for the getway, or make arrangements to launder the money, then I've got a conspiracy charge coming my way.

ETA: An example:

a) Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.

18 U.S.C.A. § 373 (West)

 

[zukiphile]

Commerce implies trade.

If no trade is involved or anticipated how can any part of the commerce clause apply.

Simply stating that "it could" be used in commerce wont cut it. You can't charge someone who "could" do something.

If that's the case we're all in trouble.

Emphasis added. I love witnessing the birth of another federalist.

Don't take that as patronizing. You are asking questions about how something makes sense, but strictly speaking it doesn't and wasn't really supposed to. The idea central to Wickard is a fiction that justifies an act.

I think you might enjoy Thomas' dissent in Raich.

http://www.law.cornell.edu/supct/html/03-1454.ZD1.html

Summary: "Commerce" means buying and selling. "Interstate" means amongst the states. Therefore, growing your own MJ for your own use in your own state isn't "interstate commerce".

 

[kraigwy]

First let me assure everyone that I'm not building any rifles or any other guns to push the issue. Nor am I growing any watermelons (tried that, didn't pan out).

I just got to thinking after reading the other post regarding the Safe School Act.

Per the LEOSA I can carry just about anywhere I want to go, as far as what I do at home, Wyoming doesn't care.

In short my mind gets to wondering when I get bored between dry fire sessions and waiting for the ice to go out so I can get my boat in the water.

But yes I am a Federalist. I read Madison and Mason and dream about how it was, how is use to be, and how our founding fathers intended.

 

[KyJim]

A couple of quick points:

1. On conspiracy, there is normally a requirement that one of the conspirators take a substantial step or engage in actual conduct in furtherance of the conspiracy.

2. The line of cases which broadened what "affects interstate commerce" has provided oxygen to fuel the federal government's expansive growth over the decades. It really started in the Great Depression and continues.

 

[zukiphile]

But yes I am a Federalist. I read Madison and Mason and dream about how it was, how is use to be, and how our founding fathers intended.

Just a suggestion: If there is a Federalist Society chapter near you, join and go to meetings. See if you like it.

My chapter meets a block from my office and I've met brilliant and interesting people, including Alan Gura and a fellow mounting several current challenges to the ACA. Speakers almost always explain their topics in an easy to understand way. I have yet to be bored at one.

There will be lots of attorneys there, but the material isn't geared for specialists.

 

[Al Norris]

As Zukiphile mentioned the Raisch case, it should also be mentioned that this case actually broadened the commerce clause powers. It now includes any economic activity that might affect interstate commerce, even if such an effect was incidental to actual activity. Because of this case, the effects no longer have to be substantial, just tangential.

Justice Scalia wrote a concurring opinion.

To further confuse the issues, the common sense notion that once I buy a thing (and therefore own it), that thing is no longer in commerce. In other words, buying an item removes the item from any and all commercial activity.

Not So! say our courts. Once in commerce, always in commerce, hence the application of such laws as the GFSZA, to "things" that the common man thinks are his own property and under his sole control.

 

[44 AMP]

Not So! say our courts. Once in commerce, always in commerce,

SO, essentially, no matter what you and I believe, in the eyes of the courts, we don't own anything?

Even if you made it yourself, entirely from materials mined or grown on your own land, thanks to our court's decisions, it not really yours to do with as you see fit.

That's not a slippery slope, its a jump right off a cliff into quicksand...

The fact that this happened long ago, and most still remain ignorant of it today, and its potential abuses and repercussions only makes it worse.

 

[JimDandy]

Commerce implies trade.

You would think so, but no, apparently it doesn't. According to legal definitions on the internet and other research (for example US V Miller, the NFA case) commerce doesn't require trade. As near as I can tell, you could strip bare-butt naked, walk across the state line from A, to B, and back across to A, and you will have been in interstate commerce.