A different criticism of national LEO CCW


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Telperion
July 8, 2004, 03:46 PM
Well, my response in the other thread seems to have been lost in the noise, but I thought the issue of federalism was important enough for its own discussion. Thus I've reproduced my comments below with a few extra statements.

We've heard a lot of claims against this bill (soon to be law, it seems) on the grounds of equal protection. I want to criticize it from a different viewpoint: it is (in my opinion) an abuse of the interstate commerce clause. Some people in a previous thread were under the impression that this bill operates under Article IV, section I ("full faith and credit") of the U.S. Constitution. This is not the case; here is the language of the bill (emphasis is mine):

`(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).

So you see, this bill is not about having states recognize officers' carry rights. In actuality, it is the Federal government forcibly overriding and superceding state carry laws under the pretext of regulating interstate commerce. Maybe I am just dense, and don't like the current Supreme Court's canon on the ICC, but I don't really see how the mere carriage of a gun substantially effects interstate and foreign commerce. Although the police help maintain civil order so commerce can proceed in a well-regulated manner, a police officer travelling to a different state is just a private citizen, and may only act in private self-defense, with few exceptions. So while I am glad this is giving some police officers what they want, I hope they realize it is only helping to expand the reach of the Federal government's powers.

Now the precedent has been set: it is acceptable for the Federal government to dictate to the states where guns can be carried. States already have their patchwork of laws on concealed carry. Do you really want the Federal government telling you where you can and cannot carry?

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DevilDog
July 8, 2004, 04:20 PM
I don't really see how the mere carriage of a gun substantially effects interstate and foreign commerce.
Neither do I... You are right, congress once again mis-used the interstate commerce clause to pass legislation. Once again, we have another example of something that should have been left up to the individual state legistlators to consider.

The anti-RKBA movement relies on the current generations ignorance on the federal government and the constitution. Most do not realize that the federal government's power was meant to be supreme, but with limited jurisdiction.

The federal government is supposed to be limited to the power to lay and collect taxes, the power to declare war, the power to coin money, the power to promote science and invention by granting patents and copyrights, and the power "To regulate Commerce with foreign Nations, and among the several States".

Unfortunately, congress now mis-uses the interstate commerce clause to pass all kinds of legislation. It is tragically humorous to read any modern era legislation passed by congress since it almost always refers to the interstate commerce clause.

Even though it is congress, the ultimate failure is with our court system not fulfilling their part of "checks and balances". Sure, if anything remotely scares the 1st amendment (such as age verification for internet porn somehow being a violation) they are quick to strike it down. If it is anti-christian, fine, but anything that is pro-christian or anti-other-religion, they strike it down. Our courts are failing us. Congress is failing.

Ideally, I do not want national CCW law to be passed - congress does not have that power. But since I see no chance of congress ever doing things right, my last hope may be to have it do things wrong in my favor. *sigh*

Sadly, sometime in future generations, historians will cite this and our lack of resolve against our foreign and domestic enemies as our downfall.

Standing Wolf
July 8, 2004, 04:26 PM
So while I am glad this is giving some police officers what they want, I hope they realize it is only helping to expand the reach of the Federal government's powers.

You're mostly right, although giving cops special privileges is wholly inconsistent with American law. I didn't realize until you pointed it out this is another so-called "interstate commerce" abomination.

Frohickey
July 8, 2004, 04:50 PM
Congress has been misusing the Commerce Clause ever since NFA34.

Telperion
August 7, 2006, 03:05 AM
I must dismiss out of hand your example of 15USC5902. The law is clearly limited to the context of employment and commercial traffic of goods and services. There is no provision for carry outside this narrow context.


So of course if you can allow the private carry of weapons as approved by the state (which HR218 leaves provisions of the state to state of issuance discretion with exception to federal law enforcement which does not fall under state jurisdiction) then why not allow for such a measure for sworn LEO’s in an effort to curb the human and fiscal impact of terrorism, which is much broader than a single armored truck robbery?

...

Terrorism will freeze an economy or impact it heavily. Another 9/11 right after the first would have crippled us economically. Congress passed the law for the "greater good" of the union enabling those sworn to protect the union, the ability to do so anytime, anywhere.

HR218/LEOSA was passed to allow officers to CCW in personal self-defense. Claiming that it is an anti-terror measure is sophistry, something I think you are above, alduro. A police officer has no commission outside his jurisdiction; once he crosses state lines, he is (as I stated above) a private citizen, and may act only in private self-defense. When Congress enacted LEOSA, it issued no finding of fact connecting the carrying of firearms with its effects on preventing terrorism, and the Congressional Record on HR218 never mentions an anti-terrorism purpose. In addition, in US v. Lopez, the Supreme Court considered and rejected your "costs of terrorism" argument. The Court ruled that carrying a gun near a school "has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." The core of my argument is similarly that carrying a gun about in self-defense has absolutely no connection to commerce. It is a completely noneconomic activity, and hence Congress has no authority to regulate it under the Commerce clause.

If you continue to insist that generally carrying a firearm has some substantial effect on interstate commerce, then it follows that Congress can regulate any and all activities related to carrying firearms, including overriding and superseding State CCW laws. Is this what you want? Your call.

You're entitled to your opinion on the spirit of the law. Like I said elsewhere, I doubt any DA or AG will choose to pick a fight with the LEO unions and lobby over this issue, so a challenge may be a long time coming, if ever.

Telperion
August 7, 2006, 12:13 PM
Well, for me, the horse's mouth is the text of the bill and the statements made in the Congressional Record. Neither posits this law as an anti-terrorism measure.

Even if we accept your argument on the diffuse economic effects of terrorism AND the idea that carrying guns has some systematic effect in preventing terrorism, the Supreme Court has already rejected the aggregate-effects argument in US v. Morrison:

Third, although §13981, unlike the Lopez statute, is supported by numerous findings regarding the serious impact of gender-motivated violence on victims and their families, these findings are substantially weakened by the fact that they rely on reasoning that this Court has rejected, namely a but-for causal chain from the initial occurrence of violent crime to every attenuated effect upon interstate commerce. If accepted, this reasoning would allow Congress to regulate any crime whose nationwide, aggregated impact has substantial effects on employment, production, transit, or consumption. Moreover, such reasoning will not limit Congress to regulating violence, but may be applied equally as well to family law and other areas of state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant. The Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce.
Every event has unlimited "but-for" causes (i.e., without which cause such event would not have occurred), including the idea a guy with a gun could have prevented a terrorist act that would have diffuse effects on interstate commerce. The Supreme Court has said it is not interested in following the imaginations of lawyers on this issue. Thus I would say there is a hole in your argument, between statements 6 and 7.

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