Bartholomew Roberts
Moderator
As many of you may know, most federal gun control law is based on Congress's power to control interstate commerce between the states. This power has been sprinkled liberally over gun control laws to justify such things as the "Gun-Free School Zones Act" which clearly has nothing to do with commerce.
Under current law, there are the six basic principles of Congress's power under the commerce clause:
i)Congress may regulate local matters that have a substantial effect on interstate commerce - J&L, Darby, Wickard
ii)Congress has to have a rational basis to do so - Darby (this is an incredibly easy test to pass - Congress doesn't even have to show that their rationale will happen, just that it was reasonable to believe it might)
iii)Local effects may be aggregated to reach the substantial effects level - Wickard
iv)Congress may regulate items that cross state lines ? Darby (older cases too)
v)Congress may regulate the instrumentalities of interstate commerce ? Shreveport rates
vi)Congress may regulate items that facilitate commerce ? are within the channels of commerce ?Heart of Atlanta
In the 1990s, the Court finally begin to curtail this power (albeit with pretty minor changes). In United States v. Lopez, the courts ruled the Gun Free School Zones Act uncosntitutional under the commerce clause. Because 1960s era civil rights legislation had also relied heavily on the Commerce Clause to justify its federal authority, the Court had to act carefully to avoid invalidating those laws. The Lopez decision doesn't affect the last three principles (4,5&6); but it does change how the first three are applied.
In Lopez, the Court began distinguishing between commerical regulation under the Commerce clause and non-commercial regulation. Finding the Gun Free School Zones act to be non-commercial, the Court put new restrictions on the Commerce Clause. Under Lopez, non-commercial activities with local affects could no longer be aggregated under the Wickard test. The other big change is that Congress could no longer apply the rational basis test to justify their decision. They had to include more solid findings showing how the law would impact interstate commerce.
Within two years of finding this act unconstitutional, Congress passed the law again - this time meeting the test under Lopez.
However, there is another aspect to the Commerce Clause called the "Dormant Commerce Clause". This says that because Congress has the supreme power to regulate interstate commerce, states may not pass laws that interfere with interstate commerce.
Considering how much gun control law is based on the Commerce Clause, has anybody ever considered a Dormant Commerce Clause challenge to state gun control laws by arguing that laws requiring built-in internal locks, stricter than federal drop testing, etc. violate this clause by allowing a state to unfairly interfere with interstate commerce in firearms?
It seems to me such an obvious avenue to attack those laws that I am sure somebody has tried it; but I have been unable to find any case detailing that approach. Anyone out there have any ideas on this?
Under current law, there are the six basic principles of Congress's power under the commerce clause:
i)Congress may regulate local matters that have a substantial effect on interstate commerce - J&L, Darby, Wickard
ii)Congress has to have a rational basis to do so - Darby (this is an incredibly easy test to pass - Congress doesn't even have to show that their rationale will happen, just that it was reasonable to believe it might)
iii)Local effects may be aggregated to reach the substantial effects level - Wickard
iv)Congress may regulate items that cross state lines ? Darby (older cases too)
v)Congress may regulate the instrumentalities of interstate commerce ? Shreveport rates
vi)Congress may regulate items that facilitate commerce ? are within the channels of commerce ?Heart of Atlanta
In the 1990s, the Court finally begin to curtail this power (albeit with pretty minor changes). In United States v. Lopez, the courts ruled the Gun Free School Zones Act uncosntitutional under the commerce clause. Because 1960s era civil rights legislation had also relied heavily on the Commerce Clause to justify its federal authority, the Court had to act carefully to avoid invalidating those laws. The Lopez decision doesn't affect the last three principles (4,5&6); but it does change how the first three are applied.
In Lopez, the Court began distinguishing between commerical regulation under the Commerce clause and non-commercial regulation. Finding the Gun Free School Zones act to be non-commercial, the Court put new restrictions on the Commerce Clause. Under Lopez, non-commercial activities with local affects could no longer be aggregated under the Wickard test. The other big change is that Congress could no longer apply the rational basis test to justify their decision. They had to include more solid findings showing how the law would impact interstate commerce.
Within two years of finding this act unconstitutional, Congress passed the law again - this time meeting the test under Lopez.
However, there is another aspect to the Commerce Clause called the "Dormant Commerce Clause". This says that because Congress has the supreme power to regulate interstate commerce, states may not pass laws that interfere with interstate commerce.
Considering how much gun control law is based on the Commerce Clause, has anybody ever considered a Dormant Commerce Clause challenge to state gun control laws by arguing that laws requiring built-in internal locks, stricter than federal drop testing, etc. violate this clause by allowing a state to unfairly interfere with interstate commerce in firearms?
It seems to me such an obvious avenue to attack those laws that I am sure somebody has tried it; but I have been unable to find any case detailing that approach. Anyone out there have any ideas on this?