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

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  •  where you go wrong is in this premise (1+ / 0-)
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    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

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    •  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

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        •  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

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      •  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 ]

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