"Phatty," you don't seem to understand that there is a federal constitution, a state constitution, and state's rights. THAT is how we are able to recognize that this bill is an infringement upon our rights (rights of commerce), but the state has the right and power to regulate commerce within it's boundaries. What I am basically saying is that there are a lot of rights (specifically commerce rights, which aren't the same as other rights) that the state has power to regulate. And remember, this is not a ban on ammo, it is only a bunch of hassles which happen to believe will make it easier to catch some criminals. If this bill was an ammo ban, I would be 100% against it.
Frankly, I hope that this pisses off California gun owners enough to get repeals of some CA gun controls that are blatantly unconstitutional, and which are outright bans.
Kimber, with all due respect, you have an idea of how constitutional law works, but your understanding is lacking. I imagine you will disagree with that assertion, so allow me to explain and then you may retort. Indeed, I hope that you offer a retort as this is a very real issue that will likely be litigated at some point in the wake of Heller. A state's rights approach will likely be the counter to what most on this board would argue - and that is essentially what you are arguing.
First, you are correct that 1) Americans have economic rights but that they are considered less than other rights and 2) States have rights and broad reign to regulate economic considerations within their jurisdiction. But that is definitely NOT the end of the analysis.
First and foremost, there can always be Federal preemption. First you must consider if these ammo sales are within Congress' power. The sale of ammunition is commerce, and well within the interstate commerce powers of Congress.
Wickard of course gives Congess regulatory power to go onto someones farm, though this is arguably tempered somewhat by
Lopez. However, at least
some of the ammo sold in CA would most assuredly be involved in interstate commerce, and thus this ammo would pass any Lopez analysis additionally.
With interstate commerce power established we can now look at preemption. Preemption simply means that a Federal statute takes precedence (and invalidates) a state statute. This works under the Supremacy Clause. Preemption can be 1) express or 2) implied. To my knowledge, no Federal statute currently states anything along the lines of "the regulation of the sale of ammunition shall be done exclusively by the Federal government." So, no express preemption
right now. That could change tomorrow if Congress passes such a law. Implied preemption can be via 1) a minimum standard or 2) frustration of purpose of a federal statute, and again, Congress has not acted on either.
So technically, as the law stands right now, yes, your assertion that CA can pass this law would be correct. Without incorporation the 2nd Amendment is not applied to the states, and thus any gun control is within rationality review. As with most gun control (and indeed most laws in general), ammo regulation survives rationality review. BUT, you go on to say that "this bill is an infringement upon our rights" and that outright bans are unconstitutional but "hassles" are not. By these claims I would assume you are arguing your point based upon 2nd Amendment incorporation, as indeed without a specific right to something it can of course be banned outright as a state wishes.
With incorporation, gun control will now be in the land of strict scrutiny per Scalia's discussion in Heller (he specifically says that the enumeration of the right removes any ability of the Court to question the level of scrutiny). "Hassles" must therefore pass strict scrutiny, and you most certainly have not made any arguments so far that it would. Gun control will always satisfy the "compelling gov't interest" prong of strict scrutiny via some iteration of public safety, so it is the "narrowly tailored" prong that will govern. I would argue that it is NOT narrowly tailored for a variety of reasons. For brevity, I cite
here that there was a Congressional finding in 1986 with FOPA that basically said that the very scheme CA is proposing is ineffective at reducing crime (admittedly I have no other source, but I presume it to be true). If the law does not realize the compelling gov't interest, then by definition it cannot be narrowly tailored.
In short: without incorporation, outright bans on anything gun related are permissible under the Federal constitution. Without Federal preemption, the states can regulate in this area. But with incorporation, "hassles" must past strict scrutiny just like an outright ban, and I dont' see such regulations passing that test.
