The Gun Show Loophole

[mehavey]

"I claim it's legal to produce the items/material because the interstate commerce clause doesn't apply.
The federal government claims that they can regulate the production of the items/material (including criminally
prosecuting me) under the power of the interstate commerce clause."

My layman's impression has been that Wickard v. Filburn effectively gutted any attempt to
restrict federal control over purely intra-state commerce.
In effect, the feds can proclaim the flapping a butterfly's wings in downtown Chillicothe, Ohio
affects Interstate Commerce, and can therefore be regulated

Am I wrong?

[JohnKSa]

It has to be a substantial effect. But if they can argue that the cumulative effect is substantial, then Wickard will justify prosecuting in situations where the individual effect is essentially negligible.

[nuchie11]

Btw guys, if anyone here gets snagged for “illegal transfer” or smuggling based on vague technicalities, this group has experience dealing with ATF and DOJ, I think it may help somebody: https://federal-lawyer.com/import-ex...gling-defense/

[zukiphile]

Originally Posted by JohnKsa

I understand the ruling which is straightforward.

For a fellow who asserts “dodging” when observations are made about his scenario, your evasion seems lavish.

Whether you can find the part of the syllabus restating the holding is not responsive to a question about the difference between the authority upheld, the CSA, and the fact pattern. Would it help you to read the case?

Originally Posted by JohnKsa

They [the court in Raich] didn't rule on possession, they ruled on cultivation and use.

That is incorrect. Raich did not cultivate, but did possess. No action was taken against her for use. The Court ruled against her.

That the law upheld prohibited production does not mean that Raich was involved in production. Another case not involving production would be Heart of Atlanta.

Originally Posted by JohnKsa

My position is that you made a careless characterization of Wickard in your initial response to my comment…

Originally Posted by JohnKsa

Well, that was your first response, but it was the next one…

Sure.

Originally Posted by JohnKsa

The contradictory element is that the government claims they can regulate my production and I contradict those claims.

No, John, that is not the inherent contradiction in your scenario. I explained the contradiction in post #63. That a challenger would have a different view isn’t the contradiction noted.

If you’ve a pet theory about an underlying theme of commerce clause jurisprudence, I’ve very little interest in changing your mind. People reading this should understand that the text of Wickard squarely contradicts your theory in the language I quoted for you, and that you’ve been provided two of the progeny of Wickard in which federal action was upheld where the challenger hadn’t produced something or changed supply.

[zukiphile]

Originally Posted by mehavey

My layman's impression has been that Wickard v. Filburn effectively gutted any attempt to
restrict federal control over purely intra-state commerce.
In effect, the feds can proclaim the flapping a butterfly's wings in downtown Chillicothe, Ohio
affects Interstate Commerce, and can therefore be regulated

Am I wrong?

No, but I'd urge the following nuance to that view.

Before FDR and Wickard, the commerce clause was viewed as a substantial limitation of federal power. The policy mood shifted considerably with FDR with federal policy that exceeded prior limits. In Schechter Poultry, the Court in the syllabus noted

If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government. Indeed, on such a theory, even the development of the State's commercial facilities would be subject to federal control.

The Court hobbled his National Industrial Recovery Act; FDR accused the Court of having a "horse and buggy" concept of interstate commerce, and his threats about the Court's political independence weren't subtle enough to be missed.

The following era featured the Court finding very tenuous links to commerce and rejecting challenges to a far reaching federal power. For people here over 50, it is within our lifetimes that a lot federal control of trucking, airlines and rail were accepted as normal.

Renquist sought to save the commerce clause from being a dead letter, and by current standards his efforts may seem timid. The Gun Free Zones Act had no plausible real link to interstate commerce, and that challenge only won 5-4, but it was a recognition that the limit might be real.


All that is context to suggest that the breadth of the commerce clause limit is like a thermostat. It isn't always set at the same temperature and the setting may not even sensible.

[Aguila Blanca]

Originally Posted by zukiphile

Renquist sought to save the commerce clause from being a dead letter, and by current standards his efforts may seem timid. The Gun Free Zones Act had no plausible real link to interstate commerce, and that challenge only won 5-4, but it was a recognition that the limit might be real.

I forgot about the GFSZA, but that's an excellent example. Too many of us don't even remember that it exists, potentially making reciprocal recognition of home state carry permits a cruel joke, but even most who do know about the GFSZA either don't know or forget that as originally enacted it was found to be unconstitutional -- because of the interstate commerce clause.

So the Congress "fixed" it -- by tweaking the language to make the references to guns being in or affecting interstate commerce broader and more all-encompassing. From Wikipedia:

The Supreme Court of the United States subsequently held that the Act was an unconstitutional exercise of Congressional authority under the Commerce Clause of the United States Constitution in United States v. Lopez, 514 U.S. 549 (1995). This was the first time in over half a century that the Supreme Court limited Congressional authority to legislate under the Commerce Clause. [emphasis added]

Following the Lopez decision, U.S. Attorney General Janet Reno proposed changes to 18 U.S.C. § 922(q) that were adopted in section 657 of the Omnibus Consolidated Appropriations Act of 1997, Pub. L. 104–208 (text) (PDF), 110 Stat. 3009, enacted September 30, 1996. These changes required that the firearm in question "has moved in or otherwise affects interstate commerce." As nearly all firearms have moved in interstate commerce at some point in their existence, critics assert this was merely a legislative tactic to circumvent the Supreme Court's ruling.

And that pretty much seems to have set the stage for most laws enacted since then. Far too many laws I've reviewed start with a preamble that includes the now-obligatory "Because the Congress finds that purple left-handed pipe wrenches move in or otherwise affect interstate commerce, [blah, blah, blah]."

That's the trap. Grammatically, "or" is an exclusive term. When you say something "or" something else, it's a binary choice -- it has to be one OR the other, and doesn't have to be (and, in fact, cannot be) both. So either something moves in interstate commerce, "OR" it otherwise affects interstate commerce. Once the door is open to something that -- by definition -- does NOT move in interstate commerce otherwise "affecting" interstate commerce, you're into Alice in Wonderland logic.

[Edited: typo corrected]

[Armybrat]

I feel like I should apologize for Secretary Wickard’s bureaucratic overreach, since he was my paternal grandma’s 1st or 2nd (I forget which) cousin from Camden, Indiana.
They were both born in 1893.
At least her dad had the good sense to move his wife & five daughters to Missouri just prior to 1900.

[zukiphile]

Originally Posted by Aguila Blanca

And that pretty much seems to have set the stage for most laws enacted since then. Far to many laws I've reviewed start with a preamble that includes the now-obligatory "Because the Congress finds that purple left-handed pipe wrenches move in or otherwise affect interstate commerce, [blah, blah, blah]."

It seems a very modest victory that can be undone by a simple legislative finding to which a court will likely defer, but it was more than we had before Lopez.