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Old October 12, 2010, 08:30 AM   #1
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Thoughts on FAFA, LESA, and Commerce Clause

I was reading the Nullification Topic which got me to thinking, but I didn’t want to hijack the thread so I started this one.

The Firearms Freedom Act, or Made in Montana, Wyoming, or whatever state basically says If it’s made in (Montana, Wyoming, etc) and stays in that state, it doesn’t come under federal firearm laws because it isn’t affected by the commerce clause.

OK that can be argued forever. But what does Congress think? How would they handle that ideal in passing other laws that affect gun laws and the commerce clause?

Before the Firearm Freedom Act(s) came about, Congress passed a law, basically voiding many of the State’s Gun Laws. This is the Law Enforcement Safety Act or often known as HR 218. This law, as we know, allows LE officers active and retired to carry concealed in any state regardless of the states laws.

So how did what did they use as a means to use the commerce clause to void state laws? Simple, they put limits on what guns these active and retired officers could carry. Congress said this law only affects firearms that came under the Commerce Clause.

Now understand this law was passed before any FAFA:



`Sec. 926B.

`(a) Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).
(note: that quote was in the LESA twice, once for Active and once for Retired officers, I felt no need to insert it twice)

My question is why did Congress feel the need to add the last sentence in the Law Enforcement Safety Act?
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Old October 12, 2010, 08:10 PM   #2
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A lot of laws have a section that justifies them under the commerce clause.

Technically the law would not apply to someone carrying concealed a weapon in the state it was manufactured, assuming it had remained in the state.

This probably applies to very few firearms and very few states, especially if a weapons major distributor is not in the state of manufacture.
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Old October 12, 2010, 08:31 PM   #3
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I believe it was written that way to protect the LEO as they are actually transporting the weapon. Also, as the transport affects Interstate Commerce, State & Local courts may not have any jurisdiction in the matter.
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Old October 13, 2010, 07:59 AM   #4
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It doesn't - under the original, obvious, meaning the of the commerce clause which the courts have now completely disregarded. The commerce clause was meant as a free trade agreement that congress would regulate to keep commerce free among the several states. Carrying a pistol across state lines is not even close to being considered 'interstate commerce' - you would have to either be ignorant of the English language or have an agenda to concoct such a meaning out of 'commerce'.

So, as much as I support LEOs being able to arm themselves at all times (as all law abiding civilians should be able to do) IMO the LEOSA is unconstitutional along with 80% of everything else congress has done in the last 100 years.

Now, if Congress passed a statute that stated that it was federal crime for any LEO agency to arrest or prosecute any law abiding civilian for the simple possession of a firearm, that would be constitutional since it would be upholding/enforcing the 2A through the incorporation of the 14A.
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Old October 13, 2010, 08:54 AM   #5
Bartholomew Roberts
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One of the many problems with the commerce clause is that it is now closely tied to civil rights legislation from the 1960s. The commerce clause was the power Congress cited in order to break segregation at lunch counters and back of the bus type stuff.

This was why Lopez was so restrained in setting back the commerce clause. It had to put some checks on the use of the commerce clause; but at the same time they did not want to gut any of the precedent that supported the 1960s era civil rights laws.

At this point though, I don't see the Court ever making an attempt to halt the abuse of the commerce clause. Raich effectively signaled surrender on that front IMO. The way Congress uses it in every single law, there are simply too many laws that have been enacted in reliance on it. That is an applecart the Supreme Court isn't going to ever upset. That change is going to have to come from the people via Congress.
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Old October 13, 2010, 09:30 AM   #6
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Even if the Commerce Clause provides a concurrent jurisdiction, the Fed Gov is the greater sovereign & their laws trump the states. I believe the Fed Gov relies on the Neceessary & Proper Clause to justify their actions.

I also believe that LEOSA is a start to the Fed Gov controling the CCW reciprocity agreements the several states have.
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