ATF sends letter to Tennessee gun dealers

[Yoda]

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

 

[KyJim]

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]

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]

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]

That wheat case...

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]

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]

It is still wrong.

- - - Yoda

 

[fattboyzz]

FED= freedom exterminating department !

 

[Zoogster]

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]

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]

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]

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]

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]

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]

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 ) That would create a perfect 10th Amendment constitutional crisis.

 

[nalioth]

The county sheriff holds the highest authority.

 

[bensdad]

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]

Gonzales v. Raich...extent of the commerce clause....

/end thread.

 

[John E.]

<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]

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]

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]

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]

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]

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]

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? 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.