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View Diary: Brian Schweitzer signed into law legislation nullifying federal gun laws in 2009 (39 comments)

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  •  How about the tenth? (1+ / 0-)
    Recommended by:
    lorell

    The tenth amendment is a tricky thing - it sets down a list of who gets priority over whom, basically placing the people over the states and the states over the federal government except for those few powers that have been specifically given to the feds.

    Interstate commerce is one of those powers specifically given to the feds.

    Well, what happens if the 'commerce' isn't crossing state lines? It's not interstate commerce, and the federal government isn't granted the power of intra-state commerce. And according to the tenth amendment, powers such as intrastate commerce that are not granted to the Feds are then reserved to the states.

    Well, if a thing is made in montana, and is sold in montana, then it is intrastate commerce and is the purview of the state government - not the federal government.

    Let me expand.

    See, what most don't notice about the gun manufacturing business is that easier to follow one standard for the whole nation than deal with one state separately from the other 49. California smog standards are a good example of this business mantra "whatever is easiest" in action. It's a pain in the ass for Ford to make cars that are california compliant for just CA and lower standards for the rest of us, so when CA raises the bar then we get the benefits. That's progress, without the Feds involved in the slightest bit.

    Same mechanism for gun makers when it comes to the shipping laws. The feds require that interstate shipments of guns travel through their federal gun license program, and their federal license people have federal rules to follow. The whole structure is built on the bedrock of the interstate commerce clause, which isn't the situation if mossberg of connecticut is selling to someone inside connecticut. But it's just easier to use one system for everyone, it's more hassle to maintain two different lists of legal buyers - one for CT and another for every other state. So they just use the FFL system for everyone and avoid the unnecessary complexity.

    Well, guess what! A number of states are pointedly making it known that they are aware of that other 'in state' option. And I don't think they will be shut down either. There's too much precedent.

    Example of precedent: Buying a bunch of cartons of cigarettes while traveling through a state with lower prices before getting home to NYC. Before NYC went smokeless, I saw that happen a lot. Before I quit smoking, I did that back and forth between NJ and PA. People still do that along the NJ PA border with liquor - pop across from PA to NJ for personal use liquor and come home to PA.

    I do expect those midwest states to prevail. I do expect that people who want to buy a gun in those states to be subject only to state law.

    I expect this because inTRA state commerce is not a power granted to the congress, and the tenth amendment specifically reserves non-granted powers to the states/people.

    •  The 10th Amendment is meaningless. (0+ / 0-)

      "The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers."

      •  Not quite meaningless. (0+ / 0-)

        Where's the quote from? Not that I see it holding much legal weight outside of a scotus ruling.

        For one - yeah, the tenth is a statement of the relationship between federal / state / people. A statement that people really should have learned, and not need the tenth to tell them.

        For two - I see it also as a statement of trump, in the scenario of an issue that is being legislated by both feds and state. It looks like marijuana might be one of those. On one hand, the feds have us code claiming it is schedule 1. On the other hand, states have laws claiming otherwise.  Where it remains an intra-state issue, I believe the tenth would settle the conflict in favor of the states, as the state that is actively exercising a power over internal matters has plainly not delegated that power to the feds.

    •  where you go wrong is in this premise (1+ / 0-)
      Recommended by:
      notrouble
      Well, what happens if the 'commerce' isn't crossing state lines? It's not interstate commerce, and the federal government isn't granted the power of intra-state commerce.
      An item sold within a state as part of a market that extends between the states is still part of the commerce that extends across state lines, even if that particular sale does not.  "Commerce" here refers to the entire market, not to the particular individual sale.  Unless the entire marketplace is entirely located within the state, it is interstate commerce as interpreted under the US constitution.  (The basic reason for this is that this is the only interpretation that is workable, since otherwise states could pass all kinds of laws favoring their own in state producers, but that kind of discrimination in interstate commerce is prohibited to the states since it is the federal government that regulates the interstate commerce.)

      Touch all that arises with a spirit of compassion

      by Mindful Nature on Tue Apr 23, 2013 at 04:21:25 PM PDT

      [ Parent ]

      •  Except I'm not wrong, I have proof. (0+ / 0-)

        I think we can all agree that the automobile market extends not only nationwide, but also across international borders. We did, after all, see PLENTY of toyota trucks nicknamed 'technicals' in those pictures of the libyan people fighting off their military.

        So, according to you, a state such as california cannot pass laws regulating what sort of toyota vehicles are allowed to be sent from the toyota plant to their state, since toyota sends vehicles to the entire 50 state nation.

        Well, suck a lemon, because california has laws as to what vehicles can be registered there.

        Have fun perusing the details in my response comment below.

        •  Not according to me (1+ / 0-)
          Recommended by:
          notrouble

          According to the US Suprene Court.  Take a look at wickard v filburn

          Touch all that arises with a spirit of compassion

          by Mindful Nature on Tue Apr 23, 2013 at 11:01:15 PM PDT

          [ Parent ]

          •  Don't claim victory too quickly. (0+ / 0-)

            Wickard dealt with a larger market than guns, both in percentage of the population that participates and in percentage of the national gdp.

            Furthermore, the right to keep and bear wheat or anything from the land is not listed in the articles or amendments of the constitution. Wickard may have had a lower level of judicial review, but where the fundamental right described in the second amendment is concerned... you will be dealing with strict scrutiny.

            So you'll have to argue that interfering in intrastate gun commerce causes enough of a ripple across the nation to create a compelling government interest in a new law, and that law will have to be very narrow and also be the least possible restrictive option, before it can pass strict scrutiny muster.

            Guess what? Small time gun manufacturers don't make a national ripple, so you don't have that support.

            ALSO it is legal to make your own gun for personal use. There are entire shops that make what is usually a serial numbered part up to 80% complete, and you finish it off and then assemble your gun. No serial number, never touched a FFL logbook. And that doesn't ripple the market.

            So what you have is a precedent that illustrates how intrastate gun makers just don't measure up to the standards required for strict scrutiny.

            Have fun with that.

            •  Well (0+ / 0-)

              You can spin novel theories all you like, but what you are arguing simply is not the law.  So onto to s few points from commerce clause jurisprdence.  I would point out that wikard was raising his grain for personal comsumption and not selling at all.  The "national ripple" theory isn't the test that is applied here.  Rather it is whether there is a substantial burden (compelling interest is not the test for such laws, they only need a rational basis). Many of the relevant cases have involved city ordinances that give the local trash company a monopoly. Note also, the second amendment doesn't really play in here, and if it did, it would be an identical bar to states and the federal government alike since that is a right of the people. I am not aware that there is any case ruling that such items are treated any differently under the commerce clause.  You still have whatever rights you have regardless of who is regulating the market.  

              Take a look for a description of the dormant commerce clause since that should give you a good sense of the flavor of how courts apply this stuff

              Touch all that arises with a spirit of compassion

              by Mindful Nature on Wed Apr 24, 2013 at 07:55:59 AM PDT

              [ Parent ]

        •  Actually (0+ / 0-)

          Such a law would be patently unconstitutional as a burden on interstate commerce. Here you'd want to read the dormant commerce clause cases

          Touch all that arises with a spirit of compassion

          by Mindful Nature on Tue Apr 23, 2013 at 11:03:00 PM PDT

          [ Parent ]

    •  oh (1+ / 0-)
      Recommended by:
      notrouble

      and the California smog standards are a matter of federal law under the CLean Air Act.

      Touch all that arises with a spirit of compassion

      by Mindful Nature on Tue Apr 23, 2013 at 04:22:09 PM PDT

      [ Parent ]

      •  You are wrong. (0+ / 0-)

        http://dmv.ca.gov/...

        Note, that is the california state government department of motor vehicles.

        I'll bold the part that declares that california has stricter regs than the feds.

        If you are a California resident and acquire a new car, truck or motorcycle from another state, it must be certified to meet California smog laws in order to be registered here. This includes certain diesel powered vehicles. DMV cannot accept an application to register a vehicle in California that does not qualify for registration (Health and Safety Codes [H&SC] §§43150 – 43156.)
         What Is Considered a new Vehicle?

         California considers any vehicle with less than 7,500 miles on the odometer at the time of purchase or trade by a California resident or business to be a new vehicle. This holds true whether or not the vehicle has been registered in another state.
         Aren't all Vehicles California Certified?

         Not all new vehicles are manufactured to be sold in California residents or businesses. Many manufacturers make vehicles to be sold in the other 49 states. These vehicles (49-State) are made with smog equipment that meets federal emission standards, but not California standards. California certified (50-State) vehicles are made to be sold to California residents.

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