ATF sends letter to Tennessee gun dealers


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Yoda
September 23, 2009, 10:10 PM
The ATF (ok, BATFE) has sent a letter to the FFLs in Tenneessee advising them that the new Tennessee law is invalid and that anyone who relies on it could face hard time. The law in question says that guns made in Tennessee that stay in Tennessee are not subject to federal regulation. Effectively, the feds are saying that the 10th Amendment has no real effect.

Here's the link:
http://www.commercialappeal.com/news/2009/sep/23/atf-tells-tennessee-federal-gun-law-trumps-states/

- - - Yoda

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KyJim
September 23, 2009, 10:45 PM
There's an established line of legal cases that basically says the Commerce Clause of the Constitution allows the feds to regulate anything that is in or affects interstate commerce. I think it highly unlikely that a gun can be made from start to finish without using products that are in or affect interstate commerce. How many steel mills and foundries in Tennessee? Assuming you could make such a gun and sold it, then the sales would affect interstate commerce because it would decrease the number of guns sold in interstate commerce.

In all fairness, this is not just the ATF being nasty; it's the basis for a LOT of federal laws and regs.

j-easy
September 23, 2009, 11:11 PM
I'm really interested to see how all this is going to play out with all the states rights issues, between the DEA and the 12 or so states legalizing medical marijuana, the ATF and Montana, Tennessee, and soon to be Alaska, Texas and Florida fighting for the firearms.

Balrog
September 23, 2009, 11:11 PM
I agree that as I understand it, there is already basis for this in law as noted above.

If you build and sell a machine gun in Tennessee, then that means you did not have to buy one through interstate commerce. This therefore affects interstate commerce.

There was a case similar to this involving a wheat farmer. He was allowed to grow a certain amount of wheat. He grew this and sold this on the market. But he also grew some extra wheat which he fed to his farm animals. The federal government determined that he broke the law even though he grew and consumed the extra wheat on his own farm. They said this affected interstate commerce. I forget the name of the case, but I think it was back in the early 1900s.

Yoda
September 23, 2009, 11:17 PM
That wheat case came about after FDR got a lot of new regulatory authority, and he leaned on the Supreme court to get what he wanted. It was one of the more tyrannical exercises of federal power, and despite what the Supreme court said, and despite what any future supreme court may say, that decision and all the federal power that flowed from it are utterly unconstitutional.

You only have those rights you assert and defend. Rise up.

- - - Yoda

Zoogster
September 23, 2009, 11:20 PM
There was a case similar to this involving a wheat farmer.

Actually while they cite that as leading up to thier current logic, it is not similar because that wheat farmer was receiving massive government subsidies, and in fact most of his income came from government subsidies. So the government was exercising control over people that were making a living primarily on government payments.
Very different than current logic held by the SCOTUS.

Current logic is Gonzales v Raich. Which says anything, even things never part of interstate commerce at all, are still regulated under interstate commerce because by not being a part of interstate commerce, including black market interstate commerce, you are effecting the demand and therefore the value of the black market item.
So if you make your own machinegun, then you would not be purchasing an illegal one, or a legal one, affecting the value of both through lowered demand. Which then gives them federal jurisdiction, which then makes the federal laws apply.
It is all encompassing logic.

Yoda
September 23, 2009, 11:31 PM
It is still wrong.

- - - Yoda

fattboyzz
September 23, 2009, 11:36 PM
FED= freedom exterminating department !

Zoogster
September 24, 2009, 12:13 AM
I'm really interested to see how all this is going to play out with all the states rights issues, between the DEA and the 12 or so states legalizing medical marijuana, the ATF and Montana, Tennessee, and soon to be Alaska, Texas and Florida fighting for the firearms.

It already played out. Go read Gonzales v Raich.

State legal Marijuana was being grown for personal use, never intended to be sold or enter even state level commerce, nevermind interstate commerce. It was considered still subject to the powers of the federal government by the SCOTUS because it would still effect demand. They also said there would be such a strong black market demand it could still end up in commerce.
Both arguments could be applied to firearms the same way.
Then Scalia, not happy with only that logic, which already covers 99% of things, added additional logic to take it even further stating that anything considered "necessary and proper" even if it has nothing directly to do with commerce is under federal jurisdiction.

As of Gonzales v Raich there is no state's rights on federally regulated items. Including firearms.
This was demonstrated matter of factly in United States v Stewart, which while not officially a SCOTUS decision, was in fact a SCOTUS decision.
In Stewart the 9th Circuit found that a homemade firearm never intended to enter commerce, be sold, or cross state lines, was not part of commerce. That because federal jurisdiction is only through regulation of interstate commerce powers, the NFA did not apply to such firearms.
Then it was appealed to the SCOTUS. The SCOTUS having just previously ruled on Raich sent the case back to the 9th circuit, telling them that "in light of Raich" they had to come up with a different outcome. They did, reversing thier previous decision, and deciding it was in fact under Federal Jurisdiction. They reversed it because the SCOTUS told them to reverse it, so it should leave no doubt in your mind what the outcome would be in the SCOTUS.
All firearms under Gonzales v Raich are subject to federal jurisdiction, and federal laws and regulations apply, as decided by the SCOTUS.

mustang_steve
September 24, 2009, 12:21 AM
That ruling is based on the concept of the person wanting to buy out of state to begin with...thus, at least to my legally uneducated self is sort of a "pre-crime" ruling.

I wonder how long it will be before a judge with some cajones knocks it down.

Z-Michigan
September 24, 2009, 12:32 AM
Tennessee's position is right under the case law existing prior to the Great Depression (#1) and FDR's continual abuse and manipulation of the federal judiciary. BATFE's position holds up under the cases from the Depression (part 1) and since then.

I (and I'm a lawyer btw) think that the pre-Depression case law made a lot more sense, but undoing 80 years of case law and practice that turned the federal government into the mutant offspring of Cerberus (not the private equity firm) and Godzilla is not exactly going to come easily.

Long and short: I hope someone with deep pockets does a test case, but I would not want to be the test case.

benminer
September 24, 2009, 09:14 AM
The ATF guy said:

""It's analogous to a speed limit. If the speed limit on the interstate is set at 70, a city along the interstate can't come along and say there is no speed limit on the interstate through our city. The highway patrol could still enforce the speed limit,""


Not really, because AFAIK there is no equivalent to the 10th amendment in most if not all state constitutions. (i.e. they do NOT say that powers are reserved to local governments unless delegated to the state capital or otherwise prohibited)

Trebor
September 24, 2009, 04:45 PM
The 10th Amendment is effectively dead. The "modern" interperation of the commerce clause killed it. We can complain all we want but I doubt anyone here has the resources to mount a succesful legal challenge to pull back the abuses of the commerce clause.

Mainsail
September 24, 2009, 09:44 PM
Could the governor send the State Police to intercept the BATF and prevent them from acting? If I heard that on my scanner I'd be driving out to video tape it and peeing my pants with excitement at the same time.

zxcvbob
September 24, 2009, 10:02 PM
Could the governor send the State Police to intercept the BATF and prevent them from acting? If I heard that on my scanner I'd be driving out to video tape it and peeing my pants with excitement at the same time. I've been wondering exactly the same thing. (except not the peeing your pants part :rolleyes: ) That would create a perfect 10th Amendment constitutional crisis.

nalioth
September 24, 2009, 10:22 PM
The county sheriff holds the highest authority.

bensdad
September 24, 2009, 10:26 PM
If it came to that, I believe that in some states the state police would have "back-up." Would the ATF? How far will the fed. go to be "in charge"?
[/silly]
It seems like most of the cases that we're talking about involve individuals, sans any state-sponsored law. These gun cases will be another animal. Am I wrong?

Birdmang
September 24, 2009, 10:38 PM
Gonzales v. Raich...extent of the commerce clause....

/end thread.

John E.
September 24, 2009, 10:38 PM
<i>Effectively, the feds are saying that the 10th Amendment has no real effect.</i>

Effectively, the 10th Amendment doesn't have any real effect...

Jon Coppenbarger
September 24, 2009, 10:39 PM
how about if one of the states opens a gun store and sells the in state firearms only. it could be run by a branch of the state national gaurd. would the atf have the balls to burst into a national guard armory. I think the guard has their own gun ships.
they could do this untill a something is forced to happen.

floridaboy
September 24, 2009, 10:54 PM
I'm not a lawyer, and didn't stay in a Holiday Inn Express last night. But it does seem clear that the Supremes will always rule against the 10th amendment. Or nearly always. I for one am seriously hoping for a challenge that we can win. And I wonder how long we, the people ,will continue to tolerate what goes on in D.C.

Birdmang
September 24, 2009, 10:58 PM
Selling guns in Tennessee that were made in TN effects interstate commerce because other guns made in different states are selling less.

Commerce clause and Supremacy Clause.

Case closed.

ManBearPig
September 25, 2009, 06:32 PM
I hope Tennessee goes head and starts making it's own guns, while putting it's State Police and National Guard on high alert. Would the ATF have the balls to go into the state and try to arrest anyone if it meant a showdown like that?

ServiceSoon
September 25, 2009, 06:37 PM
Selling guns in Tennessee that were made in TN effects interstate commerce because other guns made in different states are selling less.

Commerce clause and Supremacy Clause.

Case closed. If your reasoning was true, do you realize that the federal government would have the authority to regulate everything?

I know we can agree that was not the intent of the constitution. If it was, then all of the power would have been given to the federal government in a clear, easy to understand sentense, which isn't the case. Instead they went to the trouble to create the 10th amendment.

Oh well, we still have the 9th amendment. Nobody knows what it means yet, but we still have it!!!

hirundo82
September 25, 2009, 06:37 PM
It already played out. Go read Gonzales v Raich.
Exactly. The 10th Amendment has been gutted in pursuit of the War on Drugs.
If your reasoning was true, do you realize that the federal government would have the authority to regulate everything?Have you read Gonzales v. Raich (http://en.wikipedia.org/wiki/Gonzales_v._Raich)? It basically does allow the feds to regulate anything. For example, it is now illegal to sell children's books printed before 1985 because they may contain minute amounts of lead. (http://www.washingtonpost.com/wp-dyn/content/article/2009/03/23/AR2009032301764.html)

Birdmang
September 25, 2009, 06:50 PM
If your reasoning was true, do you realize that the federal government would have the authority to regulate everything?



My reasoning is EXACTLY from most supreme court cases involving regulation of commerce. I study this crap.

wheelgunslinger
September 25, 2009, 06:50 PM
I hope Tennessee goes head and starts making it's own guns, while putting it's armed citizens, State Police, and National Guard on high alert. Would the ATF have the balls to go into the state and try to arrest anyone if it meant a showdown like that?
*fixed it for you*
I wonder about that too.
With the current Prez at the helm, I'm unsure if he and Holder want a rumble to start in TN with the people.

I'm moving just over the border into TN in a couple of weeks too.

Jim Watson
September 25, 2009, 06:55 PM
If your reasoning was true, do you realize that the federal government would have the authority to regulate everything?

The federal government has TAKEN the authority to regulate everything.

As Heinlein said in 'Tween Planets, it might have meant something 50 years ago. Now you may have a lawyer or you may have a cookie. The cookie will do you more good, it is more nutritious.

mgregg85
September 25, 2009, 07:16 PM
The tenth amendment may as well be considered repealed because of continuing abuse of the commerce clause. Of course the idea of state's rights really died in 1865.

What Tennessee tried to do was take back some power from the federal government, not a wise thing to do unless you are ready for a fight. Maybe someone will try to defy them and challenge this but I think they will go down hard if they do.

ManBearPig
September 25, 2009, 07:53 PM
It would certainly be interesting to see the ATF's reaction to Tennessee standing up to them. The ATF's automatic weapons and swat vehlicles would be outmatched by the Tennessee National Gaurd's military grade weapons, tanks, and artillery; not-to-mention adding in the State Police's armory which be the same as the ATF's armory.

Jorg Nysgerrig
September 25, 2009, 07:54 PM
It would certainly be interesting to see the ATF's reaction to Tennessee standing up to them. The ATF's automatic weapons and swat vehlicles would be outmatched by the Tennessee National Gaurd's military grade weapons, tanks, and artillery; not-to-mention adding in the State Police's armory which be the same as the ATF's armory.
Outside of the imagination of Unintended Consequences fans, such "standing up" takes place in a courtroom, not a battlefield.

Z-Michigan
September 25, 2009, 09:03 PM
The 10th Amendment withered away in the 1930's as a result of FDR's manipulations and Congress's cooperation. His actions against federal judges who didn't rule the way he wanted were tyrannical and most worthy of a word that begins with "F". FDR should be viewed in the league of Harding and Nixon, in my view.

Anyway, there is room for a judicial reversal of this area of law, but I wouldn't hold my breath for it.

BATFE's position is consistent with current law as determined by federal courts since the 1930's. The legislation in TN and MT and other states was specifically intended to challenge that line of case law. We'll see if it actually goes anywhere.

gc70
September 25, 2009, 09:18 PM
It is early in the game and the game is political, not judicial. Just as FDR exerted pressure on the court to see the commerce clause in a different light in the 1930's, the states are trying to build political consensus to exert pressure on the court to revitalize the 10th Amendment.

Jon Coppenbarger
September 25, 2009, 10:45 PM
Well I think it is a pretty low deal when a state goverment takes upon them selfs to pass a law or anything else as a show against uncle and then wants some poor smuck to fight their case for them. let them do it them selfs or at least make the dealer selling the firearms a employee of said state goverment with the backing of all aspects of said state including the guard and such.
then if anyone is arrested they are arresting a state employee for doing their job.
I would think a raid would be hard to pull off without tipping your hand someway?

taliv
September 25, 2009, 10:53 PM
nothing feds like better than busting state/local officials

lobo9er
September 25, 2009, 11:00 PM
how'd this work out in Montana?? didn't Montana try and or do this?

SpecialKalltheway
September 25, 2009, 11:05 PM
Quote:
It would certainly be interesting to see the ATF's reaction to Tennessee standing up to them. The ATF's automatic weapons and swat vehlicles would be outmatched by the Tennessee National Gaurd's military grade weapons, tanks, and artillery; not-to-mention adding in the State Police's armory which be the same as the ATF's armory.

Outside of the imagination of Unintended Consequences fans, such "standing up" takes place in a courtroom, not a battlefield.
Jorg is offline Report Post Quick reply to this message

a battle is only won in the court room if the executive branch can enforce it. There have been plenty of things deemed unconstitutional that are still passed into law.

and as for the Tennessee National Guard surpassing the other states resources, you have to remember that the members of the Tennessee Natty Girls is made up of Tennessee residents. I wouldn't be surprised if many of them were members of Oath Keepers too.

j-easy
September 25, 2009, 11:32 PM
between the medical marijuana states, the states passing laws saying Federal Firearms Laws no longer apply, and the states trying to pass legislation barring the implementation of the new federal health care system in there state there is a decent number of states that need to get some kind of coalition going to bring back the 10th amendment rights

PTK
September 26, 2009, 12:06 AM
Outside of the imagination of Unintended Consequences fans, such "standing up" takes place in a courtroom, not a battlefield.

Hear, hear! While I fully agree with these laws of "if it's made here and stays here, Feds have no bearing", I believe each and every test case should be based on a locally made single-shot .22lr rifle. That way, any jury would see it and be able to understand that it really is a common gun - even though the ruling would apply to ALL types of guns in the law.

DeepSouth
September 26, 2009, 12:18 AM
What kind of suprises me is that the NRA seems to siding with the ATF on this one, just judging by the side bar article in the September issue of American Rifleman (P20):confused: I guess they figure there's no need to fight a loosing battle, funds could be better used elsewhere...I guess.

DMF
September 26, 2009, 12:26 AM
I suggest researching the US Supreme Court decision in Gonzales v. Raich (2005) and how that relates to US v. Stewart (2003) in the 9th Circuit. That along with Article III and Article VI of the Constitution should show you how this is likely to end up.

Dannix
September 26, 2009, 12:26 AM
Forgive my ignorance, but couldn't any attempt by the ATF to muscle their way in TN result in ATF agents getting arrested by local police for armed assault charges or some such?

Now that would be interesting. A few big headline reports on "rouge" ATF agents getting arrested could influence public opinion nationally. ...actually instead they would probably talk about gun makers = terrorist or some such.

Same thing going on nowadays as in FDR era. Kick in enough "survival instinct" and people will sacrifice all kinds of freedom.

PTK
September 26, 2009, 12:30 AM
I suggest researching the US Supreme Court decision in Gonzales v. Raich (2005) and how that relates to US v. Stewart (2003) in the 9th Circuit. That along with Article III and Article VI of the Constitution should show you how this is likely to end up.
Indeed. It's a long shot, but... why not try? :)

While many break Federal laws on marijuana, the state forces simply don't care and don't report anything. I assume (hopefully correctly, though one never knows) the same would hold true re: firearms in the states with these laws, in that if you're caught by anyone Federal, you're still breaking laws on the Federal level, even though the state wouldn't care as no state laws are broken.

zxcvbob
September 26, 2009, 12:36 AM
Forgive my ignorance, but couldn't any attempt by the ATF to muscle their way in TN result in ATF agents getting arrested by local police for armed assault charges or some such?That didn't work so well with Idaho's arrest of Lon Horiuchi; a federal judge sprung him, and then coveniently dropped the charges. (of course TN might refuse to release them, then you have your constitutional crisis again -- a standoff between U.S. Marshalls and the State Police.)

I don't think it will be anything that dramatic. This will end up with the state of Montana or Tennessee or ??? Attorneys General suing the federal government in the Supreme Court, and it's gonna take a while for them to get everything lined up to make the next move because the stakes are high.

PTK
September 26, 2009, 01:20 AM
This will end up with the state of Montana or Tennessee or ??? Attorneys General suing the federal government in the Supreme Court, and it's gonna take a while for them to get everything lined up to make the next move because the stakes are high.

Agreed. It will be a slow, uphill fight, but it may (slim chance) result in a new interpretation of the Commerce Clause.

bensdad
September 26, 2009, 01:27 AM
While many break Federal laws on marijuana, the state forces simply don't care and don't report anything. I assume (hopefully correctly, though one never knows) the same would hold true re: firearms in the states with these laws, in that if you're caught by anyone Federal, you're still breaking laws on the Federal level, even though the state wouldn't care as no state laws are broken.

This seems like a pretty good take on it. Firearms, however, are a little more "scrutinized" than basement grow-light weed.

PTK
September 26, 2009, 01:50 AM
Agreed, but we'll see how things pan out. Since I currently live in a MJ-friendly state and am moving to another MJ-friendly state that also has one of the firearms-freedom laws, I'm very interested in laws such as these.

ServiceSoon
September 28, 2009, 01:45 PM
Have you read Gonzales v. Raich? It basically does allow the feds to regulate anything. For example, it is now illegal to sell children's books printed before 1985 because they may contain minute amounts of lead.
My reasoning is EXACTLY from most supreme court cases involving regulation of commerce. I study this crap.
The federal government has TAKEN the authority to regulate everything.

As Heinlein said in 'Tween Planets, it might have meant something 50 years ago. Now you may have a lawyer or you may have a cookie. The cookie will do you more good, it is more nutritious. We are arguing from two different points-of-view. You are arguing based on what the law says. I know what it says.

I'm arguing based on the way I think it should be. The majority of people I speak too agree it shouldn't be the way it currently is. Instead of beating the drums of defeat, I'm trying to change it to the way it should be using a little pragmatism. Democracy usually works.

ijosef
September 28, 2009, 03:00 PM
There's an established line of legal cases that basically says the Commerce Clause of the Constitution allows the feds to regulate anything that is in or affects interstate commerce.
You are indeed correct. It's a complete bastardization of the interstate commerce clause and totally ignores original intent, but it is precedent and the law. The ATF is acting withing their power, but that doesn't mean it's right.

As far as Gonzales v. Raich goes, keep in mind that my favorite Justice (Clarence Thomas) as well as former justicies Rhenquist and O'Conner dissented. Precedent can be overturned, although historically when the SCOTUS overturns precedent, it's usually to limit freedoms, not restore them. One good exception to that would be things like the Dred Scott case and how that was eventually blown out of the water.

I don't think we can look to the courts, however. It might take a brave governor and state legislature to tell the Feds to pound sand. If more than a few states do it, perhaps they can force the feds' hand in the matter.

IAJack
September 28, 2009, 03:03 PM
Again I gotta ask what about Montana? They are doing the exact same thing and more. Where is their letter?

Deavis
September 28, 2009, 03:54 PM
It was considered still subject to the powers of the federal government by the SCOTUS because it would still effect demand.

Remember that in Raich Scalia pointed out that the marijuana was fungible as one of its defining characteristics for the black market logic he used. The marking requirements of these types of State laws addresses that argument. That argument was also not raised in Stewart. Another issue is that marijuana is illegal at a federal level completely, that is not the case with machine guns. Arguing that you can have a class of protected weapons but another class completely unprotected at the fed level, which was not the case in Raich, seems like an opportunity. I doubt anyone has this on their radar as a fight to fund, the groundwork following Heller is still being laid. JMHO

gideon_70
September 29, 2009, 02:29 AM
I'm sick and tired of the stupidity.

I've also made a few decisions.

1. I will oppose ALL anti gun candidates.
2. I will oppose ALL anti gun laws.
3. I will do at least three things that advance gun rights in my state this year.
4. Marches, letters, phone calls and emails are cheap. More, and more, and more.
5. I blog, reply and write to every newspaper I can find that runs an anti-gun story.
6. I built a screen printing press in my shop. I make t-shirts and give them away.

Lastly, if we don't stand for anything, we stand for nothing. I plan, if possible, to go to Tenn, and help them oppose the feds on this issue - even if it is just moral - email - telephone - and letter writing types of support.


Oh - The democrats in the Senate and House now?
Vote every damn one of them out of office forever.

zxcvbob
September 29, 2009, 02:46 AM
Oh - The democrats in the Senate and House now? Vote every damn one of them out of office forever.

I disagree. The few pro-gun Democrats are our greatest weapon. We need them to rise up the party seniority and take over the leadership. Otherwise, the Republicans take our vote for granted, and most of them don't really give a damn about us anyway. (Republicans in general attack the 1st, 4th, 5th, 6th ammendments. The Democrat attack the 2nd, 9th, and 10th. (nobody cares about 3, and they are both against 7 and 8 but not a high priority yet)

They swap power back and forth every few years, and between them conspire to take away all of our civil rights eventually -- they just have different priorities.

pegan
September 29, 2009, 02:46 AM
Didn't the 10th amendment die when we lost the war of northern aggression?

zxcvbob
September 29, 2009, 02:47 AM
Didn't the 10th amendment die when we lost the war of northern aggression? That's a good question. It wasn't repealed...

pegan
September 29, 2009, 02:50 AM
Oh - The democrats in the Senate and House now? Vote every damn one of them out of office forever.
My strategy takes things a step further. Vote out EVERY incumbent in EVERY election EVERY time. This is essentially imposing the term limits upon them that they will not impose upon themselves at our request. It is the ONLY way to take this country back. If you think about it, the party affiliation is sort of a scam to begin with, it didn't start that way, but that is what it is now. Then think about it a little deeper, and you will begin to see the merit of this strategy.

Dannix
September 29, 2009, 07:30 AM
I'll take a pro-gun Democrat over many a Republican any day. It amazes me how people associate Republican and the NRA and the like with being beholding to the constitution when the record clearly states otherwise. Although I didn't vote for him, I have more recently become convinced this nation would need a majority of Ron Paul types to go back to a constituationally-compliant state.

pegan, I was introduced to the ideal of one-term-only about a year ago, and I agree it's the way to go. Turns political office into public service rather than a career. Good luck trying to get the legislative to put that idea through though. The last time I can think of in 'our' history the legislative changed so drastically would be only due to the most drastic persuasion from Cromwell which was basically a military coup.

pegan
September 29, 2009, 10:49 AM
Dannix, that is my point. Congress will never restrict themselves with term limits. WE can restrict them. It is a very simple process of voting against the incumbent in every election. Term limits are all up to us, the voters.

Art Eatman
September 29, 2009, 02:21 PM
Gone wanderin' OT...

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