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April 20, 2013, 11:53 AM | #1 |
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Con Law 101: Commerce Clause and State level AWBs
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 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? |
April 20, 2013, 12:26 PM | #2 |
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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.
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April 20, 2013, 12:38 PM | #3 | |
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The Interstate Commerce Clause says
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April 20, 2013, 12:44 PM | #4 | |
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As a reasonably related question, I was also pointed to Article I, Section 9 where I read:
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April 22, 2013, 01:16 PM | #5 |
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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.
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April 22, 2013, 02:34 PM | #6 |
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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. |
April 22, 2013, 02:51 PM | #7 |
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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." |
April 22, 2013, 03:01 PM | #8 | |
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April 22, 2013, 03:12 PM | #9 | ||
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For example, the passport thing we were looking up in Kent V Dulles, 357 U.S. 116 (1958). 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... Quote:
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April 22, 2013, 06:40 PM | #10 | |
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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 --
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April 23, 2013, 01:58 AM | #11 | |
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April 23, 2013, 08:31 AM | #12 |
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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.
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April 23, 2013, 08:56 AM | #13 | |
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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? |
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April 23, 2013, 09:07 AM | #14 |
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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".
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April 23, 2013, 09:21 AM | #15 | |
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April 23, 2013, 01:01 PM | #16 |
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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? |
April 23, 2013, 01:11 PM | #17 |
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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)
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. |
April 23, 2013, 01:21 PM | #18 | |
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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."
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April 23, 2013, 01:36 PM | #19 | |
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Quote:
http://en.wikipedia.org/wiki/Gonzales_v._Raich
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April 23, 2013, 01:36 PM | #20 | ||
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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.
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April 23, 2013, 02:10 PM | #21 | |
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April 23, 2013, 02:14 PM | #22 | |
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April 23, 2013, 03:27 PM | #23 |
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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. |
April 29, 2013, 03:49 PM | #24 |
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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.
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