Using the Commerce Clause For Good Instead Of Evil?

[Bartholomew Roberts]

As many of you may know, most federal gun control law is based on Congress's power to control interstate commerce between the states. This power has been sprinkled liberally over gun control laws to justify such things as the "Gun-Free School Zones Act" which clearly has nothing to do with commerce.

Under current law, there are the six basic principles of Congress's power under the commerce clause:

i)Congress may regulate local matters that have a substantial effect on interstate commerce - J&L, Darby, Wickard
ii)Congress has to have a rational basis to do so - Darby (this is an incredibly easy test to pass - Congress doesn't even have to show that their rationale will happen, just that it was reasonable to believe it might)
iii)Local effects may be aggregated to reach the substantial effects level - Wickard
iv)Congress may regulate items that cross state lines – Darby (older cases too)
v)Congress may regulate the instrumentalities of interstate commerce – Shreveport rates
vi)Congress may regulate items that facilitate commerce – are within the channels of commerce –Heart of Atlanta

In the 1990s, the Court finally begin to curtail this power (albeit with pretty minor changes). In United States v. Lopez, the courts ruled the Gun Free School Zones Act uncosntitutional under the commerce clause. Because 1960s era civil rights legislation had also relied heavily on the Commerce Clause to justify its federal authority, the Court had to act carefully to avoid invalidating those laws. The Lopez decision doesn't affect the last three principles (4,5&6); but it does change how the first three are applied.

In Lopez, the Court began distinguishing between commerical regulation under the Commerce clause and non-commercial regulation. Finding the Gun Free School Zones act to be non-commercial, the Court put new restrictions on the Commerce Clause. Under Lopez, non-commercial activities with local affects could no longer be aggregated under the Wickard test. The other big change is that Congress could no longer apply the rational basis test to justify their decision. They had to include more solid findings showing how the law would impact interstate commerce.

Within two years of finding this act unconstitutional, Congress passed the law again - this time meeting the test under Lopez.

However, there is another aspect to the Commerce Clause called the "Dormant Commerce Clause". This says that because Congress has the supreme power to regulate interstate commerce, states may not pass laws that interfere with interstate commerce.

Considering how much gun control law is based on the Commerce Clause, has anybody ever considered a Dormant Commerce Clause challenge to state gun control laws by arguing that laws requiring built-in internal locks, stricter than federal drop testing, etc. violate this clause by allowing a state to unfairly interfere with interstate commerce in firearms?

It seems to me such an obvious avenue to attack those laws that I am sure somebody has tried it; but I have been unable to find any case detailing that approach. Anyone out there have any ideas on this?

 

[DKSuddeth]

That's a real good thought track BR. I need to strongly consider that. I liked your maryland post also.

 

[WayneConrad]

State gun laws chafe. Federal power, whether applied to guns or not, cuts to the bone. If we use the current, unconstitutional interpretation of the commerce clause as a tool, in what ways could that come back to harm us later?

 

[Bartholomew Roberts]

WayneConrad, the courts, Congress and the President all regard the version of the commerce clause I outlined as Constitutional. In fact, this is pretty much what is taught at law schools across the country. In the legal world, the small restrictions imposed by Lopez were considered earth-shattering when the decision came down.

So MUCH of federal law is based on the Commerce Clause power as described above that this is not going to change anytime soon for the practical reason that it would invalidate so much law that not even the best and the brightest can see where it might lead. Add to that, only one justice (Thomas) has expressed a desire to do anything close to returning the court to a pre-New Deal commerce clause and I'd say that we better learn to work with what we have.

Finally, I don't think that using the Dormant Commerce Clause validates the overreaching federal use of the commerce clause. The Dormant Commerce Clause power just says that states can't regulate in a way that affects interstate commerce, so if the interpretation of the commerce clause becomes more restrictive then it just frees the states up to regulate more. I'm trying to think of a good analogy without much success but I see it as almost a self-limiting check on gun control - the more Congress regulates firearms using the commerce clause, the better argument you have for invalidating stricter state gun control laws. The less Congress regulates, the weaker your argument gets.

 

[Telperion]

Dread Pirate Roberts, I suggested as much in this thread after the Court ruled on a wine importation suit that was based the "passive" commerce clause. Watch what happens with the current suit regarding clean air standards that 9 states brought against the Federal government.

 

[Bartholomew Roberts]

Good thread (and good idea ); but my understanding is that the discriminatory test is only one test. There is also a burdens/benefits test that applies even if the law doesn't unfairly discriminate against products from out of state. It might be a bit of a stretch to reach the second burdens/benefits test given the current environment (wouldn't a nice adoption of the Emerson text by SCOTUS be helpful here), but I think that some of the more egregious laws proposed at the state level might qualify (micro-stamping of ammo?)

 

[HonorsDaddy]

Question for the legal types here...

Ok - i understand the (mis)use of the commerce clause WRT gun control laws, what i dont understand is this: How would the commerce clause even apply when the 2nd Amendment AMENDS the Constitution to forbid infringement upon that right?

 

[DKSuddeth]

Since we're looking at ways to use the law to remove gun control legislation, let me propose this idea to you on the forum.

Since the 2nd amendment has 'well-regulated militia' in it as a clause and the anti-gunners as well as most of the courts have dictated that we need to be in a well-regulated militia in order to keep and bear arms, along with the US v. Miller ruling about a weapons relation to a 'well-regulated militia', would it not be feasible to get the hughes amendment removed from FOPA 86 because it prevents us from adhering to our constitutional responsibility to be a 'well-regulated militia' without the current small arms weaponry of the organized militia?

I hope that was easy enough to follow.

 

[antarti]

Ok - i understand the (mis)use of the commerce clause WRT gun control laws, what i dont understand is this: How would the commerce clause even apply when the 2nd Amendment AMENDS the Constitution to forbid infringement upon that right?

I've asked the exact same question in other threads, but no responses yet.

 

[Smurfslayer]

supremacy, not exclusivity

It's a good premise, but I don't think it would fly. Generally speaking, when local or state code deals with the same topic matter as a federal CFR or law, if there is a *conflict*, the federal rule or law shall be controlling. This is not to say that the federal law may be the only word on the subject and in fact, federal and local statutes can, and do apply to essentially the same act. The doctrine of supremacy essentially establishes a pecking order to resolve a conflict; always in favor of the federal government, but not necessarily completely exclusive of local or state law.

I believe that Brady mandated either instant check, or a waiting period. However, some states have their own waiting period. Because they deal with the same topic matter, and statutorily it is permitted for the state law to impose additional controls, there isn't a 'conflict' to resolve. However, let's juxtapose that a state outlawed waiting periods, and background checks.

This would not be interfering with interstate commerce per se, but it would be constitutionally invalid because the federal law is supreme --- where they are in conflict. This supremacy doctrine is practiced on a smaller scate in Dillon rule states like VA or states with strong "preemption" laws. The courts resolve them with logic that grants deferrance to the state or sovereingn when the legislative intent is clear to the courts that the legislative brance 'clearly intended to solely occupy the field' of ..... legislation.

My few pieces of eight...

 

[Nick1911]

Smurfslayer, after reading your post, I have only one question.

If federal law trumps state law where there is a conflict, wouldn't the second ammendment over-ride almost every state gun control law ever written?

 

[DKSuddeth]

Good call nick. I was thinking the same thing. states already violate the constitution (supreme law of the land) because tyrannical judges on state and circuit courts, even the supreme court, have made rulings that the constitution only applies to the federal government.

 

[ohsmily]

I am sorry if the following is abrasive (well, not really).

That was a very good, albeit very basic, review of the Congress's power under the Commerce Clause, and the so-called "Dormant Commerce Clause" (I put it in quotes because, as the moniker would indicate, the DCC is not codified or part of federal statute. Rather, it flows logically from the Commerce Clause and reinforced historically, since the 1920's, by judicial review).

Congress has not indicated that it seeks to regulate ALL areas of gun control. Actually, quite the opposite. In order for a Dormant Commerce Clause argument to be viable, the plaintiff would have to show that the individual state's regulation of a particular area of guns violated a federal statute OR that it encroached on an area of law that Congress intends to regulate solely and wholly to seek national uniformity.

Every once in a while a gun owner with access to some basic legal information suddenly becomes a Constitutional scholar and comes up with the "novel" idea of challenging the states and/or the federal government based on some finer points of Constitutional law.

I am a lowly law student and don't claim to be an expert on Constitutional Law. However, having said that, 3 weeks of my Con Law I class and over 100 pages of very dense legal reading was dedicated to the the Commerce Clause and the Dormant Commerce clause; The substantive law in this area is far more complicated than that excerpt would indicate. Highly educated and intelligent attorneys working for the NRA and other lobby groups are constantly looking at issues such as this, and laymen from gun forums aren't going to find a solution by looking at abridged legal concepts and basing their arguments and theories on that material for a legal challenge.

I WISH, AS EVERY OTHER GUN OWNER DOES, THAT THE SECOND AMENDMENT WAS A REAL GUARANTEE AGAINST INFRINGEMENT. However, this is not the case in our society. Just make sure you get out and VOTE for pro-gun politicians. Also, for all the complaining on forums and various web boards, I doubt very many of you take the time to write or call your representatives to voice your support or opposition to various pro or anti gun measures.

Ask yourself...are you registered to vote?

(for those of you that do the above things, THATS GREAT! but don't post telling me how wrong I am about people not participating because you KNOW there are huge numbers of gun owners, ever here on this forum, who do not do their part).

 

[ohsmily]

"smurfslayer, after reading your post, I have only one question.

If federal law trumps state law where there is a conflict, wouldn't the second ammendment over-ride almost every state gun control law ever written?"

Nope. If you did a little research you would find that, unfortunately, the SC has held in a number of cases that the Second Amendment doesn't apply to the States, only the federal government. This is contrary to most other amendments which apply to the states via the Fourteenth Amendment (Although, before the 14th was passed following the Civil War, NONE of the Constitutional Amendments applied to the States).

 

[Smurfslayer]

No, because the 2nd hasn't been 'incorporated' (?) as the other BoR amendments have. Miller is used by both sides to 'bolster' their respective cases. At least parts of it is used this way. Like it or not, as Ashcroft's DOJ indicated the 2A is "unsettled judicial landscape". Philosophically, you're correct, the 2A should reign supreme in the field of arms. Should there be limits to what a person may 'keep and bear'? Sure, but no more so than are placed on the other entries in the Bill of Rights. I don't think every gun control law could be held unconstitutional, but I think that *philosophically* DC, Chicago, SF are all in violation. No issue states? Also in violation. But what about a prohibition of carrying a gun into a jail or prison? is there a controlling need there?

We could go on and on philosophically, but the OP asked specifically about the commerce clause and I think it would be a "reach" to invalidate a state gun control law this way.

That's not to say that I think it's right or that we shouldn't pursue it further (with a lawyer, not BBS members here)...

If you don't try, you can't win.

 

[Bartholomew Roberts]

Every once in a while a gun owner with access to some basic legal information suddenly becomes a Constitutional scholar and comes up with the "novel" idea of challenging the states and/or the federal government based on some finer points of Constitutional law.

Actually, I wasn't suggesting I had a revolutionary new idea for challenging the states. I was asking why it had not been tried. It already occured to me that if this were a viable route someone would have tried it by now - and I kind of expected to see someone try it at some time in the past and was unable to find any cases on it.

I am a lowly law student and don't claim to be an expert on Constitutional Law.

Same here; but I am reviewing for the Con Law exam. We didn't do the dormant commerce clause in class but in reviewing the commerce clause I read a little extra out of personal interest and became curious. Rather than research it myself when I'm already pretty busy I thought I would post here and learn a little from the many other lawyers and law students on this forum (all gun owners with access to basic legal information ).

However, having said that, 3 weeks of my Con Law I class and over 100 pages of very dense legal reading was dedicated to the the Commerce Clause and the Dormant Commerce clause; The substantive law in this area is far more complicated than that excerpt would indicate.

Doubtless; but I was hoping to share what I knew and learn what I didn't. Thanks for explaining the doctrine a little more clearly. I kept the review basic so that everyone could get the high points quickly. If you want to review the commerce clause in more detail today, I'd love to get into it and can probably use the review.

Ok - i understand the (mis)use of the commerce clause WRT gun control laws, what i dont understand is this: How would the commerce clause even apply when the 2nd Amendment AMENDS the Constitution to forbid infringement upon that right?

First, no court decision has ever held that the Second Amendment forbids any regulation of firearms. Second, the circuits are split about whether the Second Amendment is a collective right, belonging only to the states (the right to maintain a state militia) or an individual right (the right to bear arms). Until SCOTUS resolves that split, the circuits will pursue the law differently. Finally, as the others indicated, the court has not held that the 14th Amendment incorporates the Second Amendment, so this means that even if the Second is held to represent an individual right, it would only stop the Feds from infringing, not the states. If you want a real good, easy read on the subject try: http://www.guncite.com/

 

[Al Norris]

Standing

I would presume that the Feds would have standing to bring such a case. I also think that we know how likely that would be.

Who else would have the necessary requirements? Firearms manufacturers, if they could prove they were financially burdoned by the requirements of a specific State Statute. Ammunition manufacturers for the same reasons, but at the moment, I can't think of a statute, that is in effect, that financially affects ammo. Nor can I think of a statute that discriminates between in state and out of state manufacturers. Financial burden alone won't get far, I'm thinking.