49ers Aldon Smith, CA Assault Weapons Law, and Interstate Commerce

[JimDandy]

49'ers Aldon Smith charged with illegal possession of assault weapons.
(emphasis mine)

“Smith purchased two of the assault weapons from a gun dealer in Phoenix, Arizona on December 10, 2011, the day before the 49ers played the Arizona Cardinals,” said the statement. “Such weapons, as configured, cannot be legally purchased in Arizona by residents of California. Even if purchased in Arizona by an Arizona resident, such weapons are illegal to possess in California.”

My question comes from the part I bolded. How can the State of California ban a resident of Arizona, from bringing their legal possessions into California. Is that not the complete definition of Interstate Commerce?

[Spats McGee]

No. The nutshell: every state has some inherent authority to determine what is legal or illegal within its own borders. The fact that it is legal in AZ does not trump CA's right to make it illegal inside of CA.

[JerryM]

Although I do not like a lot of the rules states make, I am for state's rights. He should have made sure of the law, and what was the dealer thinking?
I am glad I do not have to live in CA or other states where the govt thinks it knows so much more than the citizens of the state and passes such restrictive laws.

Jerry

[Glenn E. Meyer]

Not to divert, but the story has an interesting quote where the modern sporting rifle defense of assault weapons is not convincing to CA.

As Spats said, if CA thinks these are evil, buying evil elsewhere doesn't protect it when they enter CA.

[JimDandy]

I'm still not clear. If Interstate Commerce is the sole domain of the US Congress, and the Constitution says it is- I can understand California being able to do the "Made in California and never having left California" dance like the nullification laws from a bit ago tried to do, but I don't understand how they can ban something made in another state, allowed in that state (and the US as a whole to prevent the Pot comparison with WA and CO legalizing it) to me it just screams the Miller Decision. They took a Short Barreled shotgun across state lines and triggered the Interstate Commerce clause. How does the State of California get around a case directly on point where the State (in this case the Federal Government) claimed taking a firearm across State Lines was interstate commerce?

Edit to Add- I can also see California being able to prohibit THEIR citizens from purchasing in another state and bringing them home- But a resident of Arizona, buying in Arizona, and taking a vacation in San Diego... that's gotta be Interstate Commerce not?

[Destructo6]

It's not that CA, or any other state for that matter, can make an article illegal in all other states.

It's that a state can make an article illegal within its borders, regardless of whether it is legal in another state.

[Frank Ettin]

Originally Posted by JimDandy

...If Interstate Commerce is the sole domain of the US Congress, and the Constitution says it is...

That's not entirely accurate.

The Constitution (Article 1, Section 8, Clause 3) has given Congress the authority to:

...to regulate commerce with foreign nations, and among the several states, and with the Indian tribes...

Courts have indeed struck down state laws which were found to impose an undue burden or excessively interfere with interstate commerce, but in general a State may exercise its police powers to regulate conduct within its borders even if such may have an incidental or remote effect on interstate commerce.

Originally Posted by JimDandy

...I don't understand how they can ban something made in another state...

Because that's not what the California law does. The California law prohibits possession of a certain object by any person within the State. It doesn't matter where the thing, or the person, came from or how the thing, or the person, got to California. All that matters is that someone is in California and while in California is in possession of something that may not lawfully be possessed within California.

[JimDandy]

Ok Frank and how does the- and I may get the precise terminology wrong so I'm hoping I get close enough for you to understand me- the Dormant Commerce clause jibe with your reading of the commerce clause? If Congress regulates the commerce its been held to be a congressional power. If they don't it's been held they haven't ceded that power either.

What is the caselaw that says the states may exercise a police power on a federal jurisdiction?

[Frank Ettin]

Originally Posted by JimDandy

...If they don't it's been held they haven't ceded that power either. ...

But the California law involved isn't a law regulating commerce. It's a law regulating conduct (i. e., possession of a certain object) in California.

Originally Posted by JimDandy

...What is the caselaw that says the states may exercise a police power on a federal jurisdiction?

What is the legal authority saying that's what this is?

[Armed_Chicagoan]

Possessing an item isn't "commerce". California isn't regulating interstate commerce here.

Now, if a dealer r manufacturer was shipping a banned item from Arizona to Oregon through California, and California confiscated it or taxed it, then they would run afoul of the interstate commerce clause.

[TXAZ]

Had he "just engaged in Interstate commerce", he likely would never have been arrested.
But no, Mr. Genius decides to start shooting rounds into the air, with others following his actions. He chose to do so in a neighborhood, not the open expanses of Central California.

I'm all for responsible ownership and use, had this happened in my neighborhood, I would have turned him in.

Not good for us ladies and gentlemen.

[speedrrracer]

Originally Posted by Frank Ettin

But the California law involved isn't a law regulating commerce. It's a law regulating conduct (i. e., possession of a certain object) in California.

Originally Posted by Armed_Chicagoan

Possessing an item isn't "commerce".

How is preventing possession of an object not also preventing commerce relating to that object?

[tyme]

Pushing cases like Raich to their logical conclusion, it might well be that the federal government can, by the same logic, prohibit states from banning items that the federal government has decided are okay, since they are in the habit of prohibiting states from allowing items that the federal government has banned.

However, that's not the way the current tortured logic of the legal system works. Things can be banned in one state and not in another until the Supreme Court or your local federal circuit court says otherwise.

[Frank Ettin]

Originally Posted by speedrrracer

How is preventing possession of an object not also preventing commerce relating to that object?

Because, essentially, the effect on commerce is only incidental. It may affect one's ability to buy something from another State (commerce); but it also affects one's ability to bring something with him (not commerce), as well as, potentially, one's ability to possess something already in his possession at the time continued possession became illegal (also not commerce).

A general legal definition of commerce is:

The exchange of goods, products, or any type of Personal Property. Trade and traffic carried on between different peoples or states and its inhabitants, including not only the purchase, sale, and exchange of commodities but also the instrumentalities, agencies, and means by which business is accomplished. The transportation of persons and goods, by air, land, and sea. The exchange of merchandise on a large scale between different places or communities....

[JimDandy]

But the California law involved isn't a law regulating commerce. It's a law regulating conduct (i. e., possession of a certain object) in California.

Well for starters, we have Title 29, or the National Labor Relations Board Act using this turn of phrase to describe

Originally Posted by The US Government

the intent or the necessary effect of burdening or obstructing commerce by

among others:

Originally Posted by The US Government

(c) materially affecting, restraining, or controlling the flow of raw materials or manufactured or processed goods from or into the channels of commerce, or the prices of such materials or goods in commerce; or

A state banning an object legal in many if not all of the other 49 states, especially with an incredibly high percentage of the population of the Unites States, is going to materially affect and restrain the flow of that manufactured good into the channels of commerce.

It is also materially affecting and controlling the price of those goods. Here we have a California legal Colt LE6920MP-B for nearly $1300. And Here we have the same rifle in a non-California Legal build for just under 1100.

In an NLRB case here N.L.R.B. v. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1 (1937) We get this little tidbit:

Originally Posted by The Supreme Court

It is a familiar principle that acts which directly burden or obstruct interstate or foreign commerce, or its free flow, are within the reach of the congressional power.

The opinion is not "those acts designed to directly burden or obstruct interstate or foreign commerce" but those acts which DO so.

To further that line of argument, we can hop laterally to Roe v Wade - there may be a better case to make my point, but this had a passage I was familiar with-

Originally Posted by The Supreme Court

3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy

These state laws were not designed to invalidate the Due Process Clause of the Fourteenth amendment. However, the mere fact that they did was enough to rule them unconstitutional.

For more supporting arguments, I'd like to direct you to Katzenbach v. McClung 379 U.S. 294 the companion case of Heart of Atlanta Motel, Inc. v. United States 379 U.S. 241

Where the court states:

Originally Posted by The Supreme Court

As to the Commerce Clause, the court found that it was

an express grant of power to Congress to regulate interstate commerce, which consists of the movement of persons, goods or information from one state to another,

and it found that the clause was also a grant of power

to regulate intrastate activities, but only to the extent that action on its part is necessary or appropriate to the effective execution of its expressly granted power to regulate interstate commerce.

And further, for regulating local activities:

Originally Posted by The Supreme Court

5. The Power of Congress to Regulate Local Activities
Article I, § 8, cl. 3, confers upon Congress the power "[t]o regulate Commerce . . . among the several States" and Clause 18 of the same Article grants it the power [p302] "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. . . ." This grant, as we have pointed out in Heart of Atlanta Motel, extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.

From the Concurring Opinion in Gibbons v Ogden 22 U.S. 1

. And since the power to prescribe the limits to its freedom necessarily implies the power to determine what shall remain unrestrained, it follows that the power must be exclusive; it can reside but in one potentate, and hence the grant of this power carries with it the whole subject, leaving nothing for the State to act upon.

[Frank Ettin]

Originally Posted by JimDandy

Well for starters, we have Title 29, or the National Labor Relations Board Act using this turn of phrase to describe...

All of those cases and the statute relate directly to commercial activity -- "commerce" as defined in post 14.

Now cite a case in which a court found that a State's exercise of its police powers to regulate possession of something within its borders constituted a regulation of commerce.

Of course, if you want to argue that it is, and have the time and money, the courts are open for business.

[JimDandy]

I don't have the money, or I'd take a flyer at it if I could hire a brain that could pull it off.

You're suggesting that the Hypothetical State of Grumpy Old Men could ban the possession of full face-obscuring masks after seeing a Jason/Halloween Marathon followed by the Dead Presidents from Point Break leading them to believe those types of masks lead to high crimes, and this wouldn't be unconstitutional when applied to a busload of Muslim women in their hijabs.

Likewise that would imply that it's permissible for a State actor to require the surrendering of one right, to exercise another. In this case, the right to travel interstate (contained in both the Interstate Commerce Clause, and the Privileges and Immunities), and the right to bear arms.

[Frank Ettin]

Originally Posted by JimDandy

...You're suggesting that the Hypothetical State of Grumpy Old Men could ban the possession of full face-obscuring masks...

I'm laying out the reality that doing so, as doing a whole lot of things, isn't necessarily prevented by the Commerce Clause. Whether such nonsense might be vulnerable to attack on other bases or might not be politically likely are other questions.

States can do a whole lot of stupid stuff without necessarily violating the Commerce Clause, or even that are otherwise unconstitutional. That's why being politically active can be important. That's why we have checks and balances.

[Destructo6]

Also, if I'm not mistaken, once the consumer purchases the article, it is no longer, "in commerce."

This bozo wasn't legally set up to be engaged in firearms commerce in CA, so he is a consumer.

By contrast, Riflegear.com, is a dealer in CA and sells online all sorts of fun stuff that is not legal for sale inside of CA.

[44 AMP]

I did notice a couple of things in the linked report, first, as usual the report makes no distinction between assault rifles and assault weapons.

Second was that part that implies that while the State does recognize that assault weapons have sporting use, that use is overwhelmed by their potential for harm, and that's why they are banned.

Guy buys the rifles in AZ (apparently legally). Fine. When he brings them into CA, he has just broken CA law. Compounding things is the fact that apparently he did not register them in CA, either. Not sure how this applies, but the report specifically said they were unregistered. It might be that the particular rifles might have been legal to possess, had they been registered with the state (I rather doubt it, but I don't know).

He has a party with gang members in attendance. Shots get fired, in the air, and into a couple people. Police come, find illegal guns.

I don't see where this has anything to do with commerce. OR a CA citizen's right to keep and bear some arms.

[JimDandy]

You would be mistaken Destructo. Commerce is a whole lot more than buying and selling, or even shipping for buying and selling things. Interstate Commerce is more than just those items that crossed state lines in one form or another, even previous to its manufacture.

The Miller case in 39 pointed out that even though they didn't sell their short barreled shotgun after crossing the state line, merely crossing the state line put them into interstate commerce.

You could be buck naked, squeaky clean and walking on air one step over the border so you don't even track dirt from one state to another, taking nothing but your body from one state to another and you are in interstate commerce.

Likewise, you could run the biggest chicken ranch in the world, never use anything- not feed, not butchering, nor even the gas in the truck you use to drive to market, nothing from out of state, nor sell your chicken out of state, and you could/would be in interstate commerce because your supply affects the demand for out of state chicken.

Interstate commerce is a fairly broad catch-all that has probably been over-broadly interpreted, but even the Founding Fathers knew it would be, and couldn't find a better way to handle it.

[2ndsojourn]

From 44 Amp:
"Guy buys the rifles in AZ (apparently legally). Fine."

Although the gun may be legal in AZ, is it legal to sell it to a resident of another state where it is illegal?

If this was bought from a dealer, I think someone messed up.

[JimDandy]

Now cite a case in which a court found that a State's exercise of its police powers to regulate possession of something within its borders constituted a regulation of commerce.

That would be Brown v. Maryland - 25 U.S. 419 (1827) where the State of Maryland used it's police power to require a license for the importation and wholesale of " foreign goods by the bale or package, &c.".

Further, we have here a paraphrase or quote, I'm unsure which as I can't seem to find the text in an opinion, or even the case referenced,

In the very first decision under the commerce clause Chief Justice. Marshall established that a state police regulation in conflict with a congressional regulation of interstate commerce is void.

AND we have 18 USC § 922

Originally Posted by US Code

§922. Unlawful acts
(a) It shall be unlawful—
........
(p)
(1) It shall be unlawful for any person to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm—
(A) that, after removal of grips, stocks, and magazines, is not as detectable as the Security Exemplar, by walk-through metal detectors calibrated and operated to detect the Security Exemplar; or
(B) any major component of which, when subjected to inspection by the types of x-ray machines commonly used at airports, does not generate an image that accurately depicts the shape of the component. Barium sulfate or other compounds may be used in the fabrication of the component

Between that, NFA, and other regulations we have ample examples of the Government exercising it's commerce power over which firearms are legal and not legal in interstate trade. The police power of California appears in conflict with that by being more restrictive.

[Frank Ettin]

Originally Posted by JimDandy

That would be Brown v. Maryland - 25 U.S. 419 (1827) where the State of Maryland used it's police power to require a license for the importation and wholesale of " foreign goods by the bale or package, &c."....

Nope. That is a clear and direct attempt to regulate commerce (i. e., commercial activity). It has nothing to do with the possession by an individual of personal property for his own use.

[Librarian]

Compounding things is the fact that apparently he did not register them in CA, either. Not sure how this applies, but the report specifically said they were unregistered. It might be that the particular rifles might have been legal to possess, had they been registered with the state (I rather doubt it, but I don't know).

Registration of those things CA calls 'assault weapons' is currently impossible for non-LEOS. The last registration period ended Jan 1, 2001. (Penal Code 30900)