Old Supreme Court case about Butter vs Margarine

[Aguila Blanca]

This part may be of possible interest:

The general rule to be deduced from the decisions of this court is that a lawful article of commerce cannot be wholly excluded from importation into a State from another State where it was manufactured or grown. A State has power to regulate the introduction of any article, including a food product, so as to insure purity of the article imported, but such police power does not include the total exclusion even of an article of food.

And:

But in Leisy v. Hardin, 135 U.S. 100, 125, the New Hampshire case was overruled, and it was stated by the present Chief Justice, in speaking for the court, that "whatever our individual views may be as to the deleterious or dangerous qualities of particular articles, we cannot hold that any articles which Congress recognizes as subjects of interstate commerce are not such, or that whatever are thus recognized can be controlled by state laws amounting to regulations while they retain that character; although, at the same time, if directly dangerous in themselves, the State may take appropriate measures to guard against injury before it obtains complete jurisdiction over them. To concede to a State the power to exclude, directly or indirectly, articles so situated, without Congressional permission, is to concede to a majority of the people of a State, represented in the state legislature, the power to regulate commercial intercourse between the States by determining what shall be its subjects, when that power was distinctly granted to be exercised by the people of the United States represented in Congress, and its possession by the latter was considered essential to that more perfect union which the Constitution was adopted to create."

So ... "assault weapons"?

"High (or "large") capacity" magazines?

 

[johnwilliamson062]

if the legislature is satisfied that oleomargarine is unwholesome, or that, in the tubs, pots or packages in which it is commonly offered for sale, it looks so like butter, that the only way to protect the people against injury to health, in the one case, or against fraud or deception, in the other, is to absolutely prohibit its sale, it is within the constitutional power of the legislature to do so.

I'm wondering if, in a place like Connecticut, where products are manufactured and exported, if this could be used to force the allowance of import. Not exactly direct relation, but 'if you are going to prohibit as unsafe for consumption, you can not then export.' That probably just pushes the few manufacturers still in those states out if successful.

 

[zukiphile]

Now that we have it, could it apply now?

Allow me to offer an unresearched, off-the-cuff and rudimentary reaction.

The issue involved in the margarine cases is whether a state is free to engage in bans where Congress has already regulated a matter. Congress is given authority to regulate interstate commerce by the interstate commerce clause in the Constitution. This ability of congressional regulation to displace state regulation is why one's employment retirement benefits are federally regulated; Congress passed ERISA.

It is beyond any reasonable argument that Congress has regulated the interstate sale of firearms. To invalidate a state regulation for conflict with a federal regulation, you would want that state regulation to be in conflict with the federal regulation. If Missouri were to require every household to be equipped with one fully automatic rifle and were to specifically prohibit any kind of background check on any member of the household, you would have a very clear conflict in an area on which Congress had already spoken.

State regulations with which I am familiar appear to focus on use and possession, transfer of stolen goods, or sales to felons. That is not precisely the same matter as taxation or transfer amongst and by federal licensees.

It is true that federal regulation does not prohibit, for instance, 30 round rifle magazines, and also that some states have prohibited sales of those same magazines. That gives rise to the issue of whether there is any conflict between the laws, or whether that state is just regulating around the edges of a federal matter and within the confines of its legitimate police power.

The police power of a state is vast and wide, much more robust and requiring less justification than the relatively modest police powers of the federal government. Where state makes a case for a peripheral firearms regulation on the basis of its exercise of police power it may be able to pull the issue away from the sort of commercial considerations that dominate the margarine cases.

Even as a matter of interstate commerce, the scope of federal regulation then is not what it is now. We now have a labyrinth of federal food and food labeling regulation that is so far beyond the issue of protecting consumers from "fake butter" that those margarine cases are unlikely to be seen as a strong precedent.

That doesn't even get to the sort of visceral antagonism one would expect from some numbers of the judiciary who would observe that margarine does not "spray bullets" or kill cops (at least directly and immediately), or that an individual right to arms is simply different and inferior.

 

[Armorer-at-Law]

if the legislature is satisfied that oleomargarine is unwholesome, or that, in the tubs, pots or packages in which it is commonly offered for sale, it looks so like butter, that the only way to protect the people against injury to health, in the one case, or against fraud or deception, in the other, is to absolutely prohibit its sale, it is within the constitutional power of the legislature to do so.

This quote comes from the dissent, not the majority opinion.

 

[zukiphile]

The other nontrivial problem with relying on congressional regulation as a protection of one's right to buy a specific sort of arm is that the protection it self can be erased by an act of Congress.

 

[barnbwt]

if the legislature is satisfied that oleomargarine is unwholesome, or that, in the tubs, pots or packages in which it is commonly offered for sale, it looks so like butter, that the only way to protect the people against injury to health, in the one case, or against fraud or deception, in the other, is to absolutely prohibit its sale, it is within the constitutional power of the legislature to do so.

Though it be a dissent...where have I seen this argument before?

The other nontrivial problem with relying on congressional regulation as a protection of one's right to buy a specific sort of arm is that the protection it self can be erased by an act of Congress.

Exactly, a single bill at the federal level legitmizes a zillion local bans.