Author Topic: "Alaska/Vermont Carry" makes us Federal violators?  (Read 9857 times)

CNYCacher

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Re: "Alaska/Vermont Carry" makes us Federal violators?
« Reply #25 on: May 11, 2009, 07:46:00 AM »
People brought up on pop TV shows and other Hollywood creations have been about brainwashed into acceptance that the Fed gov has some all reaching power. The application - and abuses by the lower courts - of the Commerce Clause evidently has the Bar about brainwashed to the same end. Thank goodness, despite some issues, the SCOTUS has a reasonably consistent history on this one.

I agree.  How many times have you seen the cliche where a federal officer flashes his badge to a local or state cop, who immediately (usually after groaning or something) assumes a subservient role to the fed?
On two occasions, I have been asked [by members of Parliament], "Pray, Mr. Babbage, if you put into the machine wrong figures, will the right answers come out?" I am not able to rightly apprehend the kind of confusion of ideas that could provoke such a question.
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Matthew Carberry

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Re: "Alaska/Vermont Carry" makes us Federal violators?
« Reply #26 on: May 11, 2009, 02:37:32 PM »
Lopez isn't the most recent Commerce Clause case affecting the ability of state's to determine their own rules on possession, the abortion that is Raich is.

And after Raich I'm not predisposed to grant SCOTUS any "consistency" in their interpretation, only 3 put principle ahead of "ooh, we don't like marijuana".

Now Heller might provide a basis to revisit the authorization to regulate provided by the Commerce Clause in the GFSZA of '96 but it will take another challenge.  If it wins on the basis of being an individual right that still doesn't indicate that "creative" use of the Commerce Clause is being reined in by the Court.

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De Selby

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Re: "Alaska/Vermont Carry" makes us Federal violators?
« Reply #27 on: May 12, 2009, 10:34:10 AM »
LAK,

I see you found the case on point for the "gun free" school zones law.  Note that Lopez did not undo the law - it just required congress to make the interstate commerce element an element of...the offense.  That's what it means to say that there is a jurisdictional element to the crime - there is some element that must be proved in order for the crime to have occurred, because the crime itself depends on a jurisdictional hook, eg, it involves an item that has traveled in interstate commerce. 

Jurisdiction gets argued all the time in the Courts, which is why you have cases like Lopez and Raich.  The problem is that 99 percent of the time, it is a loser, as Congress is well aware of the constitutional jurisprudence on its powers and tailors its statutes accordingly.  That is why for most observers, Lopez was a surprise (and rapidly undone in effect - now Congress just targets the interstate elements more specifically in that criminal statute), and Raich was all but a foregone conclusion.

Mostly jurisdictional cases are testing the new composition of the Court, and not the actual law, which tends to be relatively predictable.
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LAK

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Re: "Alaska/Vermont Carry" makes us Federal violators?
« Reply #28 on: May 13, 2009, 04:48:29 AM »
Carebear
Quote
Lopez isn't the most recent Commerce Clause case affecting the ability of state's to determine their own rules on possession, the abortion that is Raich is.
Yes, but Lopez deals with guns and schools. I would not disagree that the SCOTUS is not universally consistent about anything; but on the territorial nature of jurisdiction has been upheld time and time again.

Shootinstudent,

Lopez is just one case. You need to look at more than one case to see what the SCOTUS has had to say about jurisdiction. If you look at all the cases I listed, you'll get the drift.

Matthew Carberry

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Re: "Alaska/Vermont Carry" makes us Federal violators?
« Reply #29 on: May 13, 2009, 03:35:54 PM »
LAK,

The Court struck down the '95 GFSZA because it didn't establish jurisdiction and they told Congress how to fix that.

Congress did and explicitly pulled "guns in school zones" into their purview by requiring the guns involved have an interstate commerce tie, which they stated existed. 

Didn't that remove the jurisdictional issue, at least until that tenuous link is again challenged?
"Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved." - Eugene Volokh

"As for affecting your movement, your Rascal should be able to achieve the the same speeds no matter what holster rig you are wearing."

De Selby

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Re: "Alaska/Vermont Carry" makes us Federal violators?
« Reply #30 on: May 14, 2009, 07:07:28 AM »
LAK,

The Court struck down the '95 GFSZA because it didn't establish jurisdiction and they told Congress how to fix that.

Congress did and explicitly pulled "guns in school zones" into their purview by requiring the guns involved have an interstate commerce tie, which they stated existed. 

Didn't that remove the jurisdictional issue, at least until that tenuous link is again challenged?

That is exactly what happened.  That would not be a tenuous link based on most of the jurisprudence out there. 

Basically, you'd need to undo every commerce clause case from the beginning of the union to the present, with the exception of a narrow set from around the turn of the 20th century in order to beat the whole issue.

Heller helps, but politics is better.
"Human existence being an hallucination containing in itself the secondary hallucinations of day and night (the latter an insanitary condition of the atmosphere due to accretions of black air) it ill becomes any man of sense to be concerned at the illusory approach of the supreme hallucination known as death."

MicroBalrog

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Re: "Alaska/Vermont Carry" makes us Federal violators?
« Reply #31 on: May 14, 2009, 08:40:54 AM »
Quote
Basically, you'd need to undo every commerce clause case from the beginning of the union to the present, with the exception of a narrow set from around the turn of the 20th century in order to beat the whole issue.

Well, then. You know what to do. =D
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