Con Law 101: Commerce Clause and State level AWBs

[JimDandy]

How does a state law that: bans the import of _________ into the state not run afoul of the Interstate Commerce Clause?

California State Law on Importation of Assault Weapons (http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=30001-31000&file=30600-30675)

As is being discussed in previous Posts, the Interstate Commerce Clause is both King of the Mountain, and in fact the only player allowed to be ON the mountain at all. I don't believe it's constitutional for any state to ban the import of any good from another state, or foreign nation, even in a Dormant or Negative Commerce Clause doctrine situation, right?

Thus if the Federal Government does not have an AWB, the states may not prohibit the import or sale of firearms that are federally legal, given all the precedent that says the Feds are not only responsible for all the regulation of this trade, but can't use State level resources even when they wanted to and tried to, when they lost in Printz v United States?

[Crazy88Fingers]

As far as I know there are no laws on the federal level that require states to import assault weapons. So a state should be able to control what enters its own borders from another state, as long as it doesn't contradict any federal laws (which don't exist in this case). International imports may be another story.

But then, I'm no big city lawyer.

[JimDandy]

The Interstate Commerce Clause says
Article I, Section 8, Clause 3:
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes

And because Congress has the power, under the Dormant or Negative Commerce Clause doctrine, that power does not devolve to the States if the Congress chooses to not so regulate.

[JimDandy]

As a reasonably related question, I was also pointed to Article I, Section 9 where I read:

No Tax or Duty shall be laid on Articles exported from any State.

Other than the appellants version of prosecutorial discretion making it such that no one wants to be seen petty enough to challenge it, how does that interact with the excise tax on all the bows, rifles, handguns and so on and so on placed by the Pittman-Robertson Act to fund state conservation, and shooting ranges (depending on the goods excised)

[Vibe]

Jim
One would think that the "P AND I" clause you've mentioned elsewhere, as well as the 14th Amendment would (or should) provide means of sanctions against States that have so abridged these clauses.

[JimDandy]

P And I would/coul get involved tangentially- for those who/travel move from a permissive to a restrictive state-

Corfield v Coryell suggests we have a right to, and FULL USE OF, the property we own. So moving from one state where you can have a Colt AR-15 model LE6920 for example, to a state where you can't- would/could bring P And I into play, but the driving force would still be (Dormant) Interstate Commerce, as most of those state laws prohibit the importation of such firearms, which like all commerce does not require a transaction.

[speedrrracer]

I'm with Crazy88Fingers.
First, it's legal because no one has challenged it (and won).
Second, who's to say the Federal govt wouldn't be, "Yes, it's our domain, but we're cool with what CA is doing in this case, so they may continue."

[Vibe]

First, it's legal because no one has challenged it (and won).
Same as the NFA '34 - US v Miller would have knocked a big hole in it.....Had there been any defense present to present the "missing" evidence showing a short barreled shotgun was "of use to the Militia". The fact that every Militia action in modern history has used it in some form or another wasn't good enough without a defense to present that fact to the court.

[JimDandy]

Second, who's to say the Federal govt wouldn't be, "Yes, it's our domain, but we're cool with what CA is doing in this case, so they may continue."

I think they could be- and they COULD delegate that sort of power to the states. But they'd have to do it legislatively, and without specific legislation that allows this, the states are overstepping, and can be slapped down. (I think)

For example, the passport thing we were looking up in Kent V Dulles, 357 U.S. 116 (1958) (http://supreme.justia.com/cases/federal/us/357/116/case.html). Passports are somehow actually a congressional function that Congress has delegated to the State Department in the executive branch... This is legal, but subject to even more stringent review than if Congress itself did it. Or something like that...

(e) If a citizen's liberty to travel is to be regulated, it must be pursuant to the lawmaking functions of Congress, any delegation of the power must be subject to adequate standards, and such delegated authority will be narrowly construed. P. 357 U. S. 129.

[Frank Ettin]

How does a state law that: bans the import of _________ into the state not run afoul of the Interstate Commerce Clause?...The short answer is that it's a lot more complicated than that.

The Commerce Clause gives Congress a certain authority to enact legislation.

On the other hand, when a State's exercise of its police powers results in an impermissible "undue burden on interstate commerce" depends on a lot of factors. There are examples of a State's exercise of its police power permissibly inhibiting or burdening interstate travel or commerce. For example --

States have permissibly imposed agricultural quarantines and prohibited the importation of certain produce.


States may refuse to recognize certain professional licenses issued by other States. Thus someone licensed as a physician in one State can't simply move to another and open a practice.


States may, to some extent, regulate the weight and size of trucks permitted to use their roads.

[Hugh Damright]

I don't believe it's constitutional for any state to ban the import of any good from another state, or foreign nation, even in a Dormant or Negative Commerce Clause doctrine situation, right?
I'm not sure that I see what "import" has to do with it ... if a State wants to ban something e.g. fireworks then doesn't it follow that they are banning the importation of fireworks into their State? Are we to interpret the commerce clause to mean that no State can ban anything?

[Vibe]

And since the US Constitution does not recognise a Right to Keep and Bear fireworks, then any State that bans those is not infringing upon any of the P or I of the citizen by banning them.

[JimDandy]

if a State wants to ban something e.g. fireworks then doesn't it follow that they are banning the importation of fireworks into their State?

It's the flip side of those symbolic laws passed in Wyoming, and such.

They can ban any fireworks made wholly in their state that will not leave the state, and enter interstate commerce.

If the State has to jump through all those hoops to end up with a symbolic and toothless law protecting their residents from a national ban, doesn't it follow that other states should have to jump through the same hoops to get the same toothless and symbolic law to ban them in the lack of a federal ban?

[Brian Pfleuger]

One would think that banning an entire product line from being imported would certainly be an impermissible burden on interstate commerce.

Interesting that the commerce clause uses that same word from the 2A... "regulate"... which we know from previous discussions didn't mean then what we think it means now....

The word would be more like "to put in good order" than "to control on a level that makes a micro-manager look like a disinterested 3rd party".

Imagine if we read it as:
[The Congress shall have Power] To put in good order Commerce with foreign Nations, and among the several States, and with the Indian tribes.

Hm. "Organize" rather than "dictate".

[JimDandy]

Now Honey you can't blame her, for what her mama gave her

That's the precedent the courts have decided to give us. Wouldn't it be nice to use it FOR us for a change?

[rajbcpa]

Does the Commerce clause say the federal government cannot regulate inter-state commerce - say a transaction between two citizens of NY or two citizens of California or two citizens of Florida?

If that is "YES" than how would a federal law require background checks in NY, or California, or Florida? In other words, a federal law to require background checks would violate the Commerce Clause; right?

[JimDandy]

They CAN regulate such a transaction IF such transaction would affect interstate commerce. This is sort of covered by (Assuming I understand it correctly as a layman) the basis for the some of the precedent in Heart of Atlanta Motel v. U.S. (379 U.S. 241, 1964) (http://www.americanbar.org/groups/public_education/initiatives_awards/students_in_action/atlanta.html)

There is probably a case that's better on point... But for now, this example will work- Because the Heart of Atlanta Motel was just off the Interstate, and likely to do business with non-state residents based on both location and type of business, the Civil Rights Act of 1964 applied to the motel.

Or something like that.

[Brian Pfleuger]

Does the Commerce clause say the federal government cannot regulate inter-state commerce - say a transaction between two citizens of NY or two citizens of California or two citizens of Florida?

If that is "YES" than how would a federal law require background checks in NY, or California, or Florida? In other words, a federal law to require background checks would violate the Commerce Clause; right?


That would be INTRA-state commerce... "within" a state. INTERstate is BETWEEN states, from one to another.

The absence of a prohibition... "Congress shall not..." is not construed as permission. The Constitution is a system of enumerated powers. The powers belong to The People (as endowed by our Creator) and The People have contracted together to lend SOME of the powers to the government that is formed by, for and of them. The Congress (and others so named) have only those powers that are spelled out in the Constitution AND NO OTHER powers.

Prohibitions are, therefore, along the lines of "Just in case it's not clear and you ever get the slightest inkling..."

So, because it says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." doesn't mean "If we hadn't put this here they would have had the power."

What that really means, under the context of enumerated powers and ONLY enumerated powers is "Congress will NOT pass pro or con religious laws and will have no such power, just in case it isn't obvious enough everywhere else where it's not specifically spelled out."

The BoR is basically, "They don't have the power anyway but these things are so important that we don't to leave it to chance so we'll spell it out real nice and clear like."

[Vibe]

Does the Commerce clause say the federal government cannot regulate intra-state commerce - say a transaction between two citizens of NY or two citizens of California or two citizens of Florida?

If that is "YES" than how would a federal law require background checks in NY, or California, or Florida? In other words, a federal law to require background checks would violate the Commerce Clause; right?
That was what the Raich case was about, and SCOTUS upheld the commerce clause ruling.

http://en.wikipedia.org/wiki/Gonzales_v._Raich

[Frank Ettin]

Does the Commerce clause say the federal government cannot regulate inter-state commerce - say a transaction between two citizens of NY or two citizens of California or two citizens of Florida?...What the Commerce Clause says, exactly is (Article I, Section 8, Clause 3):Section. 8.

The Congress shall have Power ...

To ...

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;...And what that means in application to varying situations has been, is, and will be decided, as the question comes up, by the federal courts.

[csmsss]

And what that means in application to varying situations has been, is, and will be decided, as the question comes up, by the federal courts.Suffice to say that ALL branches of the federal government tend toward a rather expansive interpretation of powers enumerated under the commerce clause, further inflated by "necessary and proper" in Article 1. If the gummint sticks its nose under the tent and declares that something is interstate commerce, the judiciary tends to agree.

[JimDandy]

the judiciary tends to agree. They do seem to have finally reached a limit though, and now I've forgotten the case...

[csmsss]

Me too - but if memory serves Raich v. Gonzalez followed it and basically slammed the door shut on it.

Funny thing is that aside from it being the springboard from whence innumerable pieces of legislation have emitted, the definition of "interstate commerce" would/should be of no contention or argument. It's just that the stakes are so high and now we've litigated ourselves into what is essentially the old "how many angels can dance on the head of a pin" argument.

[JimDandy]

In some ways, I'm actually ok with the Interstate Commerce Clause. I think they've had to get too ridiculous in some cases, but they didn't get an effective way of legislating nationwide to keep some states or regions toeing the line.