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Old August 17, 2016, 08:49 PM   #1
chexmix
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Old Supreme Court case about Butter vs Margarine

It's gun related, I promise.

I was listening to a podcast about odd history and they were talking about the "Margarine wars." They briefly talked about some of the Supreme Court cases that came out of states banning margarine. One of them was called Shallenburger(maybe spelled wrong) V. Pennsylvania that happened in the late 1890's. I can't find the case online but the basic point was that a state can not ban a regular item(margarine) that the federal government taxes.

Anyone know how/where to find it? Could this apply to "assault" weapons? Is this ruling overturned?
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Old August 17, 2016, 10:21 PM   #2
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Sounds like the SCOTUS ruled for the State (and against margarine):
https://supreme.justia.com/cases/federal/us/127/678/
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Old August 18, 2016, 12:22 AM   #3
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The podcast brought up the Powell case and actually made fun of the argument that the 14th applied to the margarine. I was bringing up a different case.
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Old August 18, 2016, 01:48 AM   #4
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What was the podcast, and who was participating?
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Old August 18, 2016, 03:30 AM   #5
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Another SCOTUS case that pretty much set up the federal government regulatory mess we live with today:

http://www.businessinsider.com/the-m...eard-of-2011-8

http://www.heritage.org/initiatives/...kard-v-filburn

The federal government took the ruling and ran with it. The gun related issue in the last half of the article.
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Old August 18, 2016, 04:22 AM   #6
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Quote:
Originally Posted by mag1911
Another SCOTUS case that pretty much set up the federal government regulatory mess we live with today...
This thread has nothing to do with Wickard v. Filburn.

And if we can't identify the case the OP is asking about soon. I'm going to just close the thread.
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Old August 18, 2016, 04:45 AM   #7
Old Bill Dibble
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Quote:
And if we can't identify the case the OP is asking about soon. I'm going to just close the thread.
It was identified in post #2,

Powell v. Pennsylvania, 127 U.S. 678 (1888)

Ruling:

Quote:
The Fourteenth Amendment to the Constitution was not designed to interfere with the exercise of the police power by the state for the protection of health, the prevention of fraud, and the preservation of the public morals.

The prohibition of the manufacture out of oleaginous substances, or out of any compound thereof other than that produced from unadulterated milk or cream from unadulterated milk, of an article designed to take the place of butter or cheese produced from pure unadulterated milk or cream from unadulterated milk, or the prohibition upon the manufacture of any imitation or adulterated butter or cheese, or upon the selling or offering for sale, or having in possession with intent to sell, the same, as an article of food, is a lawful exercise by the power to protect, by police regulations, the public health.

Whether the manufacture of oleomargarine or imitation butter of the kind described in the Act of the Legislature of Pennsylvania of May 21, 1885 (Laws of Penn. of 1885, p. 22, No. 25) is or may be conducted in such a way or with such skill and secrecy as to baffle ordinary inspection, or whether it involves such danger to the public health as to require, for the protection of the people, the entire suppression of the business, rather than its regulation in such manner as to permit the manufacture and sale of articles of that class that do not contain noxious ingredients, are questions of fact and of public policy which belong to the legislative department to determine .

The statute of Pennsylvania of May 21, 1885, "for the protection of the public health, and to prevent adulteration of dairy products and fraud in the sale thereof" neither denies to persons within the jurisdiction of the state the equal protection of the laws nor deprives persons of their property without that compensation required by law, and is not repugnant in these respects to the Fourteenth Amendment to the Constitution of the United States.

The 14th was kind of weak in the way that it allowed rights to be legislated away back in those days. Since Flores this has been much less of an issue. States still ban stuff in commerce all the time with very little reason and challenge.
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Old August 18, 2016, 06:01 AM   #8
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Quote:
Originally Posted by Old Bill Dibble
...It was identified in post #2,...
In post 3 the OP said that wasn't the case. And Powell isn't anything like the case the OP seems to describe in his initial post.
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Old August 18, 2016, 06:17 AM   #9
Old Bill Dibble
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ok, it sure sounded like it.
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Old August 18, 2016, 07:27 AM   #10
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The 80 year margarine wars, a dark time in American history

It seems there were some interstate commerce issues regarding bans with exemptions for domestic producers that made it to SCOTUS. Most of the other cases I see have more to do with truth in advertising and trade secrets. There are a surprising number of cases involving the production/sale/distribution of Margarine.
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Old August 18, 2016, 07:59 AM   #11
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Chex, I'm wondering whether the panel you heard referenced Plumley v. Massachusetts, 155 U.S. 461 (1894). Looks as if MA was allowed not ban the colored stuff, but not the uncolored.

Any case that refers to oleomargarine is likely to reflect a pre-FDR view of one's rights in the market and would likely not be an excellent basis for overturning a firearms restriction.

Last edited by zukiphile; August 18, 2016 at 08:37 AM.
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Old August 18, 2016, 08:03 AM   #12
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We need the podcast link...
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Old August 18, 2016, 09:34 AM   #13
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Quote:
Originally Posted by zukiphile
Any case that refers to oleomargarine is likely to reflect a pre-FDR view of one's rights in the market and would likely not be an excellent basis for overturning a firearms restriction.
Why pre-FDR? I was born in 1944. I can remember in the early 1950s (and maybe later) my parents buying white(ish) oleomargarine and having to squeeze a tube of yellow food coloring into it to make it look like "the high-priced spread."

In fact, we didn't even call it "margarine." We called it "oleo."
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Old August 18, 2016, 10:53 AM   #14
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Here is the podcast link

http://www.missedinhistory.com/podca...r-v-margarine/

It happens around the 29 minute mark. And the case is called shallenburger vs pennsylvania
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Old August 18, 2016, 11:08 AM   #15
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The case is Schollenberger v Pennsylvania (1898)
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Old August 18, 2016, 11:16 AM   #16
zukiphile
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Quote:
Originally Posted by AB
Why pre-FDR? I was born in 1944. I can remember in the early 1950s (and maybe later) my parents buying white(ish) oleomargarine and having to squeeze a tube of yellow food coloring into it to make it look like "the high-priced spread."

In fact, we didn't even call it "margarine." We called it "oleo."
I never heard the term "oleomargarine" until we hit a case about in con law. None of the students had either. I believe that case was a 19th century case.

The FDR metric is approximate. It's true that the NIRA was found unconstitutional after FDR was elected, but that era marks a shift in how the courts came to view federal power. My sense is that the term "oleomargarine" in a case would indicate that the case pre-dates that shift.

AB, if it helps illustrate the march of time I offer this jarring tale: My wife made a quip about a "return" key on a computer keyboard, but my 10 year old and 14 year old looked confused. I had to remind her that neither of them had likely ever seen a typewriter with a return lever, so the idea of a "return" key was foreign to them.

Last edited by zukiphile; August 18, 2016 at 11:22 AM.
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Old August 18, 2016, 01:10 PM   #17
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Thanks natman, I was spelling it wrong that's why I couldn't find it. Now that we have it, could it apply now? I have no real legal training but when I heard about the case I thought of the AW bans in some states, considering that the feds tax guns.
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Old August 18, 2016, 02:13 PM   #18
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I well remember eating that oleaginous stuff in the 1950's. My parents wouldn't serve it, they were farm kids and knew what real butter tasted like.
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Old August 18, 2016, 05:08 PM   #19
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Quote:
Originally Posted by kilimanjaro
I well remember eating that oleaginous stuff in the 1950's. My parents wouldn't serve it, they were farm kids and knew what real butter tasted like.
In the 1960s I worked summers in a factory making swimming pool filters. They guy who was our sales manager left us to take a job with Drew Chemical Company. We were both car nuts, so awhile after he started the new job he invited me up to meet his new wife and see his new Shelby Mustang.

Chatting over lunch, margarine came up. Ron stated quite forcefully that Drew Chemical made it, that it was basically an industrial byproduct, and that now he knew what was in it he'd never allow it in his house.

I accepted that as words to live by.

Now ... with thread drift accounted for, I'm very interested to find out if the resident legal scholars think this case could provide any useful precedent for firearms bans.
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Old August 18, 2016, 08:25 PM   #20
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I didnt see the actual opinion at the link above.
https://scholar.google.com/scholar_c...=6,36&as_vis=1

I think the day was lost until they brought up the butterines.
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Old August 18, 2016, 08:38 PM   #21
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This part may be of possible interest:

Quote:
The general rule to be deduced from the decisions of this court is that a lawful article of commerce cannot be wholly excluded from importation into a State from another State where it was manufactured or grown. A State has power to regulate the introduction of any article, including a food product, so as to insure purity of the article imported, but such police power does not include the total exclusion even of an article of food.
And:

Quote:
But in Leisy v. Hardin, 135 U.S. 100, 125, the New Hampshire case was overruled, and it was stated by the present Chief Justice, in speaking for the court, that "whatever our individual views may be as to the deleterious or dangerous qualities of particular articles, we cannot hold that any articles which Congress recognizes as subjects of interstate commerce are not such, or that whatever are thus recognized can be controlled by state laws amounting to regulations while they retain that character; although, at the same time, if directly dangerous in themselves, the State may take appropriate measures to guard against injury before it obtains complete jurisdiction over them. To concede to a State the power to exclude, directly or indirectly, articles so situated, without Congressional permission, is to concede to a majority of the people of a State, represented in the state legislature, the power to regulate commercial intercourse between the States by determining what shall be its subjects, when that power was distinctly granted to be exercised by the people of the United States represented in Congress, and its possession by the latter was considered essential to that more perfect union which the Constitution was adopted to create."
So ... "assault weapons"?

"High (or "large") capacity" magazines?
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Old August 18, 2016, 08:50 PM   #22
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if the legislature is satisfied that oleomargarine is unwholesome, or that, in the tubs, pots or packages in which it is commonly offered for sale, it looks so like butter, that the only way to protect the people against injury to health, in the one case, or against fraud or deception, in the other, is to absolutely prohibit its sale, it is within the constitutional power of the legislature to do so.
I'm wondering if, in a place like Connecticut, where products are manufactured and exported, if this could be used to force the allowance of import. Not exactly direct relation, but 'if you are going to prohibit as unsafe for consumption, you can not then export.' That probably just pushes the few manufacturers still in those states out if successful.
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Old August 19, 2016, 08:36 AM   #23
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Quote:
Originally Posted by Chex
Now that we have it, could it apply now?
Allow me to offer an unresearched, off-the-cuff and rudimentary reaction.

The issue involved in the margarine cases is whether a state is free to engage in bans where Congress has already regulated a matter. Congress is given authority to regulate interstate commerce by the interstate commerce clause in the Constitution. This ability of congressional regulation to displace state regulation is why one's employment retirement benefits are federally regulated; Congress passed ERISA.

It is beyond any reasonable argument that Congress has regulated the interstate sale of firearms. To invalidate a state regulation for conflict with a federal regulation, you would want that state regulation to be in conflict with the federal regulation. If Missouri were to require every household to be equipped with one fully automatic rifle and were to specifically prohibit any kind of background check on any member of the household, you would have a very clear conflict in an area on which Congress had already spoken.

State regulations with which I am familiar appear to focus on use and possession, transfer of stolen goods, or sales to felons. That is not precisely the same matter as taxation or transfer amongst and by federal licensees.

It is true that federal regulation does not prohibit, for instance, 30 round rifle magazines, and also that some states have prohibited sales of those same magazines. That gives rise to the issue of whether there is any conflict between the laws, or whether that state is just regulating around the edges of a federal matter and within the confines of its legitimate police power.

The police power of a state is vast and wide, much more robust and requiring less justification than the relatively modest police powers of the federal government. Where state makes a case for a peripheral firearms regulation on the basis of its exercise of police power it may be able to pull the issue away from the sort of commercial considerations that dominate the margarine cases.

Even as a matter of interstate commerce, the scope of federal regulation then is not what it is now. We now have a labyrinth of federal food and food labeling regulation that is so far beyond the issue of protecting consumers from "fake butter" that those margarine cases are unlikely to be seen as a strong precedent.

That doesn't even get to the sort of visceral antagonism one would expect from some numbers of the judiciary who would observe that margarine does not "spray bullets" or kill cops (at least directly and immediately), or that an individual right to arms is simply different and inferior.
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Old August 19, 2016, 08:48 AM   #24
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Quote:
if the legislature is satisfied that oleomargarine is unwholesome, or that, in the tubs, pots or packages in which it is commonly offered for sale, it looks so like butter, that the only way to protect the people against injury to health, in the one case, or against fraud or deception, in the other, is to absolutely prohibit its sale, it is within the constitutional power of the legislature to do so.
This quote comes from the dissent, not the majority opinion.
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Old August 19, 2016, 09:11 AM   #25
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The other nontrivial problem with relying on congressional regulation as a protection of one's right to buy a specific sort of arm is that the protection it self can be erased by an act of Congress.
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