Is there a way to hoist Congress on their own interstate trade petard?

J

JimDandy

New member
Not being a lawyer, all I have are ephemeral concepts of these ideas here... But it seems to be if some guy can be engaged in interstate trade in 1939 just by taking a shotgun from one state to another, not even attempting to sell it, but just by crossing state lines with it...

It seems to me through incorporation, equal protection, and interstate trade there has to be some way to turn all of this stuff back on them...
 
The commerce clause has been interpreted very broadly since the mid 1930's. You can't just throw a bunch of legal principles out there. Absent an about face by the Supreme Court or a constitutional amendment congress will continue to exercise considerable authority under the commerce clause.
 
The Obamacare loss might be a major victory in the long run. That opinion expressly limited the commerce clause in some new ways.
 
The commerce clause has been interpreted very broadly since the mid 1930's. You can't just throw a bunch of legal principles out there. Absent an about face by the Supreme Court or a constitutional amendment congress will continue to exercise considerable authority under the commerce clause.
Click to expand...

Right. I'm not saying anything about rolling the commerce clause back. Just wondering if it's possible to apply other decisions in such a way to the commerce clause that we get something out of the interpretation of said clause out there already.
 
Probably not. The commerce clause is an enumerated power of the government in the Constitution. So, it's sort of on the same level as your rights as an individual.

So the courts are going to protect it in a VERY meaningful way.

If the govt starts using the commerce clause to prevent you from exercising free speech or going to church, OK, sure, SCOTUS will slap them down a notch, but only far enough to carve out the space necessary for you to go to church or speak or whatever.

If the govt were to use interstate commerce to put a de facto ban on ammunition, sure, the courts would probably step in, but again, it would be another carveout to protect ammo suppliers / mfrs / delivery, etc, not a sweeping restriction on the govt, because the govt must retain their enumerated power just as much as you must retain your right to go to church or have a gun for lawful purposes.
 
I don't think I'm being clear... I mean can't we flip it on it's ear... if Congress passes a law that says something is federally legal.. can't we use interstate commerce to incorporate such a finding into a jurisdiction for those people engaging in interstate commerce by traveling from a jurisdiction it's legal to a jurisdiction it's illegal by state/local law? Essentially preempting those state/local laws for non-residents?
 
OK, maybe I'm seeing a bit of the light...let's test my understanding

So Federally, there's the NFA. It's theoretically possible to get certain weapons / accessories only under it's auspices.

Here in CA; however, pretty much all NFA stuff is illegal, with a coupla minor exceptions. So you are saying that if I were "engaged in interstate commerce", then I could, theoretically, find sympathy from a court if I were to have an otherwise-legal NFA weapon here in CA?

Not saying that's a great scenario, but is that somewhat demonstrative of what you're trying to accomplish?
 
Yeah more or less....Assuming you are not a CA state resident, and thus engaged in Interstate trade, like Miller was with his Shotgun... had Miller been legally in possession of that shotgun...
 
If lawful CCW holders from 48 states can not travel to NY or IL to conduct business, it would seem to me that those states are interfering with interstate trade..... In the same way that southern states were interfering with interstate trade by mandating segregated hotels 50 years ago.

Particularly egregious is the unplanned airline stop in NY or Chicago by a traveler who has a handgun in checked baggage.
 
Already been said. The commerce clause is broad and even more widely (mis?)interpreted. Nothing we can do about it except pick wisely at election time.
 
I doubt it. The concept of local authorities making more restrictive laws is fairly widely accepted (with the exception of enumerated rights).
I doubt the court would be willing to open up that kind of flood gate for a right they haven't even set a level of review for.
 
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