Stewart
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Shaggy
Not asking for legal advice here but wondering if you could explain your understanding of how the commerce clause grants the fed. gov. the ability to control certain arms?(ie 1934 NFA?)
Not asking for legal advice here but wondering if you could explain your understanding of how the commerce clause grants the fed. gov. the ability to control certain arms?(ie 1934 NFA?)
Gun laws, like any other law passed by Congress, must be based on some Constitutionally granted authority or power of Congress to legislate. The power to tax and the power to regulate interstate commerce are two such Constitutionally granted powers. Congress just can't make a law because it wants to; it has to show where the Constitution gives Congress power to create law. For example, there is NO federal police power under which Congress can pass laws regarding guns, drugs, or any kind of criminal behavior. Laws designed at reaching such behavior have to be based on some other power of Congress, and most often it is found in the Commerce Clause. The end is often the same, but the justification has to be based on a Constitutionally granted power.
Under the Commerce Clause (Art. I, Section 8, Clause 3 of the Constitution grants Congress the power "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes) and the cases interpretating the Commerce Clause, it has long been held that any item passing in interstate commerce (such as guns) can be subject to legislation by Congress as commerce in those items has an effect on interstate commerce - to which Congress is specifically empowered to regulate.
The NFA of '34 was premised on the taxing power - which is why there's that $200 tax on everything other than AOW's. That isn't in question in Stewart. The CGA '68 and GOPA '86 (which precluded new manufacture of MG's) were based on the interstate commerce power. That is the heart of the matter in Stewart. Basically, 18 USC 922(o) precludes even civilian possession of a MG made after May 19,1986, but there's questions as to whether mere possession of a MG has any nexus to interstate commerce.
Under the Commerce Clause (Art. I, Section 8, Clause 3 of the Constitution grants Congress the power "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes) and the cases interpretating the Commerce Clause, it has long been held that any item passing in interstate commerce (such as guns) can be subject to legislation by Congress as commerce in those items has an effect on interstate commerce - to which Congress is specifically empowered to regulate.
The NFA of '34 was premised on the taxing power - which is why there's that $200 tax on everything other than AOW's. That isn't in question in Stewart. The CGA '68 and GOPA '86 (which precluded new manufacture of MG's) were based on the interstate commerce power. That is the heart of the matter in Stewart. Basically, 18 USC 922(o) precludes even civilian possession of a MG made after May 19,1986, but there's questions as to whether mere possession of a MG has any nexus to interstate commerce.
too many choices!?
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Thanx for the prompt reply!
Very concise and easy enough for me to read. Now with that having been said congress' power to tax should not extend to anything that did not travel between states(interstate).As an example: So if a person made an mp-5 from a semi auto hk94(without an approved form 1) no interstate commerce would have been effected if the sear was made intrastate. The semi auto Hk 94 would have already had all taxes due paid on it before being possesed by the owner. Is this basically the stewart case? If I could pick your brain for one other question please. This one is a matter of opinion. What do you believe the ramifications of a not guilty finding for Stewart could be? If it is found that congress has overstepped it's granted power then what could happen? Since new manufactured Mg are not sold to the general public any longer Stewarts possesion of the same could not effect interstate commerce. Meaning since no one can buy one how is his making one effecting interstate commerce? Same with an sbr. If I wanted to make an sbr for myself and bought a manufactured upper from bushmaster in sbr configuration I can see the commerce clause as okay. If I was to cut the barrel on my ar15 to 12 inches all taxes have been paid before Ireceive the gun and all parts should no longer be subject to the commerce clause. Or is my lack of understanding showing here?
Very concise and easy enough for me to read. Now with that having been said congress' power to tax should not extend to anything that did not travel between states(interstate).As an example: So if a person made an mp-5 from a semi auto hk94(without an approved form 1) no interstate commerce would have been effected if the sear was made intrastate. The semi auto Hk 94 would have already had all taxes due paid on it before being possesed by the owner. Is this basically the stewart case? If I could pick your brain for one other question please. This one is a matter of opinion. What do you believe the ramifications of a not guilty finding for Stewart could be? If it is found that congress has overstepped it's granted power then what could happen? Since new manufactured Mg are not sold to the general public any longer Stewarts possesion of the same could not effect interstate commerce. Meaning since no one can buy one how is his making one effecting interstate commerce? Same with an sbr. If I wanted to make an sbr for myself and bought a manufactured upper from bushmaster in sbr configuration I can see the commerce clause as okay. If I was to cut the barrel on my ar15 to 12 inches all taxes have been paid before Ireceive the gun and all parts should no longer be subject to the commerce clause. Or is my lack of understanding showing here?
You're catching on quick Grasshopper. 
There's a few basic cases interpreting the Commerce Clause though - and once I explain the first, I'm sure you'll see the problem.
The first major case in Commerce Clause jurisprudence is Wickard v. Filburn. Basically, the Congress passed a law regulating wheat production based on the Commerce Clause. A farmer grew more wheat than allowed under the law. When the case went to court his argument was that the excess was that it was his own wheat, grown on his farm, for his own personal consumption. In essence, the wheat he produced never travelled in interstate commerce and couldn't be regulated under the law based on the Commerce Clause. The Supreme Court disagreed. According to the Court, his wholly INTRAstate production of wheat was still subject to the law because if many people did the same thing, it would negatively affect interstate commerce. IOW, by producing wheat on his own farm, for his own use, and never crossing a state line he STILL had an effect on interstate commerce because such home use would be that much less wheat in demand on the interstate market.
(Do you see where this is going?)
If you look at the '34 NFA and the '86 GOPA as an attempt to limit and regulate interstate commerce in machineguns on the civilian market, it should become clearer. The artificially inflated prices for full autos are an effect of the Congressional attempt to limit and regulate interstate commerce in machineguns. By throwing open the doors to make new machineguns, even for home use (never to transfer or cross state lines) it would have the same effect on the interstate market for machineguns as the farmer's home grown wheat in Wickard. It would cause the prices of transferable machineguns to drop as people wouldn't pay those enormous sums for registered sears - they'd just make one at home. And by doing so, they would nonetheless depress the interstate market and affect interstate commerce.
There's a few basic cases interpreting the Commerce Clause though - and once I explain the first, I'm sure you'll see the problem.
The first major case in Commerce Clause jurisprudence is Wickard v. Filburn. Basically, the Congress passed a law regulating wheat production based on the Commerce Clause. A farmer grew more wheat than allowed under the law. When the case went to court his argument was that the excess was that it was his own wheat, grown on his farm, for his own personal consumption. In essence, the wheat he produced never travelled in interstate commerce and couldn't be regulated under the law based on the Commerce Clause. The Supreme Court disagreed. According to the Court, his wholly INTRAstate production of wheat was still subject to the law because if many people did the same thing, it would negatively affect interstate commerce. IOW, by producing wheat on his own farm, for his own use, and never crossing a state line he STILL had an effect on interstate commerce because such home use would be that much less wheat in demand on the interstate market.
(Do you see where this is going?)
If you look at the '34 NFA and the '86 GOPA as an attempt to limit and regulate interstate commerce in machineguns on the civilian market, it should become clearer. The artificially inflated prices for full autos are an effect of the Congressional attempt to limit and regulate interstate commerce in machineguns. By throwing open the doors to make new machineguns, even for home use (never to transfer or cross state lines) it would have the same effect on the interstate market for machineguns as the farmer's home grown wheat in Wickard. It would cause the prices of transferable machineguns to drop as people wouldn't pay those enormous sums for registered sears - they'd just make one at home. And by doing so, they would nonetheless depress the interstate market and affect interstate commerce.
It's interesting that the purpose of the '34 NFA and '86 FOPA was to create a negative effect to the interstate commerce of a particular product. In addition, the '86 FOPA even has the negative effect of decreasing tax revenues by the federal government.
So the commerce clause is being used exactly opposite to its original intent.
So the commerce clause is being used exactly opposite to its original intent.