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March 14, 2014, 08:50 AM | #1 | ||
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Congressional authority over entirely intra-state firearms markets?
I don't want to go off topic on the Post about School Zones so I'll start a new post.
Notice the wording: Quote:
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Now lets assume you live the State of X, and in this state, Gun Manufacture Y builds firearms. You buy a Y firearm and never leave the state with that firearm. How do you fall under federal gun laws. My son works for DHS, he is one of their firearms instructors and also is a supervisors. I presented this question to him. He told me he had attended several DHS Schools over the years and in each, when dealing with federal gun laws, was cautioned to be careful in places where a gun is found in a state where it was manufactured, before one could be charged the government has to prove that gun left the state in "interstate commerce. How does this apply to states like Wyoming, Montana, and others with the "made in state, stays in state" laws? An interesting subject. Depending on the state I would think the government would have a hard roll to hoe in getting a conviction. They might pull it off with a jury in New Jersey, Mass or such state, but they would have a difficult time getting a conviction is gun friendly stats such as Wyoming, OK, Texas. Hopefully a lawyer dealing in Gun Laws will chime in.
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March 14, 2014, 09:19 AM | #2 | ||
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March 14, 2014, 09:36 AM | #3 |
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Yep, and ever since Wickard v. Filburn (at least), it has been held that doing something specifically NOT for interstate commerce actually effects interstate commerce by virtue of NOT being interstate commerce when it COULD HAVE BEEN because if the NOT interstate commerce hadn't been done then the person would have engaged in actual interstate commerce. (more or less)
Yeah... there's a legal term for that.... "stupid".
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March 14, 2014, 09:43 AM | #4 |
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Ok so lets say one (in a state where its legal) goes out to his garage machine shot. Builds for his own use, a shotgun, which he builds and uses for his own use, no intention of selling or giving away,
How is that inter or intrastate commerce. If that is considered commerce, then why does the government need to include the above listed clause?
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March 14, 2014, 09:44 AM | #5 | |||||||
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An interesting subject, indeed!
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For example, in Wickard v. Filburn, in 1942, Mr. Filburn owned a farm, and grew wheat for himself and to sell in the area, but not to sell in interstate commerce. ("The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption; and to keep the rest for the following seeding." Wickard v. Filburn, 317 U.S. 111, 114, 63 S. Ct. 82, 84, 87 L. Ed. 122 (1942)). By federal law, he was assessed a penalty (IIRC) for producing too much wheat, and the Secretary of Agriculture assessed a penalty against him. The trial court granted Filburn an injunction, which SCOTUS reversed, saying (by quoting an older case): Quote:
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March 14, 2014, 09:47 AM | #6 |
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Brian I love reading your posts you are always very direct and often provide a (common sense) point of view. And yes that legal term would be STUPID!
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March 14, 2014, 09:56 AM | #7 | |
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If that sounds tortured to you, you understood it perfectly.
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March 14, 2014, 09:59 AM | #8 | ||
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March 14, 2014, 10:04 AM | #9 |
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Commerce implies trade.
If no trade is involved or anticipated how can any part of the commerce clause apply. Simply stating that "it could" be used in commerce wont cut it. You can't charge someone who "could" do something. If that's the case we're all in trouble. A good example of that is "destructive devices" or bombs. We cant make bombs, but all of us have the means to do so. I doubt there is a household in this country where a destructive device couldn't be made with common kitchen products. Any one has the ability to make bombs, but until they do so, they've committed no crime. Anyone can make a product, but until that product is used in trade, its not commerce.
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March 14, 2014, 10:11 AM | #10 | |
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Congress and SCOTUS don't view it as "could affect" interstate commerce. They view it as an activity that has affected interstate commerce. zuikiphile posted an excellent example:
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March 14, 2014, 10:20 AM | #11 | |
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But we can, and do it all the time. Everytime we catch a "terrorist" before they set off a bomb. Fed sting ops catching would be bombers, when the actual explosives (provided by undercover officers) are actually inert... Conspiracy laws can also charge people for crimes that were not commited, only planned.... "charging" us, or counting us guilty before the fact is the rational behind virtually ALL gun control. Sorry, you can't have that assault weapon/Saturday night special/30 bullet per second clip or the shoulder thing that goes up...because of what someone might do with it.... The list is large, and not limited to guns...
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March 14, 2014, 10:23 AM | #12 |
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Now that is really pushing it.
That's like saying I fall in Ag Laws. If laws say watermelons used in commerce have to be inspected that I cant grow watermelon to eat at my own table because if I grow my own watermelon I'm not buying water melons from the neighboring farmer. Or closer to reality, I cant build a wind generator to generate electricity because I wouldn't be buying electricity that is covered by commerce. Where do we draw the line.
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March 14, 2014, 10:25 AM | #13 | |
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Actually, conspiracy charges are based on what someone has done, not what they could do. Take a "conspiracy to commit armed robbery" charge. If I sit around and discuss committing an armed robbery, I'm unlikely to be charged (IMHO). On the other hand, if I bribe a bank teller into selling me information on guard rotation at the bank; or steal a car for the getway, or make arrangements to launder the money, then I've got a conspiracy charge coming my way.
ETA: An example: Quote:
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March 14, 2014, 10:37 AM | #14 | |
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Don't take that as patronizing. You are asking questions about how something makes sense, but strictly speaking it doesn't and wasn't really supposed to. The idea central to Wickard is a fiction that justifies an act. I think you might enjoy Thomas' dissent in Raich. http://www.law.cornell.edu/supct/html/03-1454.ZD1.html Summary: "Commerce" means buying and selling. "Interstate" means amongst the states. Therefore, growing your own MJ for your own use in your own state isn't "interstate commerce".
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http://www.npboards.com/index.php Last edited by zukiphile; March 14, 2014 at 11:30 AM. |
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March 14, 2014, 11:12 AM | #15 |
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First let me assure everyone that I'm not building any rifles or any other guns to push the issue. Nor am I growing any watermelons (tried that, didn't pan out).
I just got to thinking after reading the other post regarding the Safe School Act. Per the LEOSA I can carry just about anywhere I want to go, as far as what I do at home, Wyoming doesn't care. In short my mind gets to wondering when I get bored between dry fire sessions and waiting for the ice to go out so I can get my boat in the water. But yes I am a Federalist. I read Madison and Mason and dream about how it was, how is use to be, and how our founding fathers intended.
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March 14, 2014, 11:33 AM | #16 |
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A couple of quick points:
1. On conspiracy, there is normally a requirement that one of the conspirators take a substantial step or engage in actual conduct in furtherance of the conspiracy. 2. The line of cases which broadened what "affects interstate commerce" has provided oxygen to fuel the federal government's expansive growth over the decades. It really started in the Great Depression and continues. |
March 14, 2014, 11:51 AM | #17 | |
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My chapter meets a block from my office and I've met brilliant and interesting people, including Alan Gura and a fellow mounting several current challenges to the ACA. Speakers almost always explain their topics in an easy to understand way. I have yet to be bored at one. There will be lots of attorneys there, but the material isn't geared for specialists.
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March 14, 2014, 02:45 PM | #18 |
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As Zukiphile mentioned the Raisch case, it should also be mentioned that this case actually broadened the commerce clause powers. It now includes any economic activity that might affect interstate commerce, even if such an effect was incidental to actual activity. Because of this case, the effects no longer have to be substantial, just tangential.
Justice Scalia wrote a concurring opinion. To further confuse the issues, the common sense notion that once I buy a thing (and therefore own it), that thing is no longer in commerce. In other words, buying an item removes the item from any and all commercial activity. Not So! say our courts. Once in commerce, always in commerce, hence the application of such laws as the GFSZA, to "things" that the common man thinks are his own property and under his sole control. |
March 14, 2014, 11:26 PM | #19 | |
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Even if you made it yourself, entirely from materials mined or grown on your own land, thanks to our court's decisions, it not really yours to do with as you see fit. That's not a slippery slope, its a jump right off a cliff into quicksand... The fact that this happened long ago, and most still remain ignorant of it today, and its potential abuses and repercussions only makes it worse.
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March 14, 2014, 11:37 PM | #20 | |
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March 15, 2014, 12:04 PM | #21 |
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It's been my (lay) understanding of the current interstate commerce interpretations (Law?):
If it may ever be possible that you become involved in any activity that may have, or may ever have the possibility of, crossing a state line then you are engaged in interstate commerce. Thus, each of us, from birth to death (if those are, indeed, limits), are perptually, waking or sleeping, involved in interstate commerce. Sleep well. Will
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March 15, 2014, 06:14 PM | #22 |
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Congress has built such a house of cards around the "expansive" interpretation of the interstate commerce clause (Wickard case especially) that many people are extremely hesitant to disturb the current state of things.
Overruling the interpretation created in Wickard would have VERY far reaching effects, and I'm not sure any current justices are really willing to go for it and see what happens. Right or wrong, I think we are pretty much stuck with it. |
March 16, 2014, 06:47 AM | #23 | |
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It is pushing it. IMO, the Wickard case gives the government a better case to regulate your watermelon or generator example than to regulate firearms within a state. But that's not the way it's been interpreted in courts since then. |
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March 16, 2014, 06:55 PM | #24 |
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Essentially the Commerce Clause has become the catch-all to allow the Federal government to regulate a very great many things that were intended to be under the purview of the states.
I am very much a Federalist. I'm quite convinced that the founder's would be appalled to see what we have made of the Republic. |
March 18, 2014, 09:18 PM | #25 |
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Wait....so can I grow watermelon or not?
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