Saturday, June 25, 2016

California Infringement of Second Amendment can be Overcome

While I was visiting another member of the gun culture, I was shown a new acquisition, a Springfield XD in .45 caliber.  I was struck by the the warning label on the box "NOT LEGAL IN CALIFORNIA" and W/HIGH CAPACITY MAGAZINE.

I object to the term "High Capacity Magazine".  The magazines are not high capacity, they are standard capacity.  Magazines of ten rounds or less are reduced capacity.

The idea that a Constitutionally protected item could be forbidden by state law reminded me of how topsy turvy the interpretation of the commerce clause of the Constitution has become.

When the American colonies first won independence from England, the document governing them was the Articles of Confederation.  The Articles had demonstrated that a central government was necessary for  defense of the country, and to maintain order among the states.  Some states had erected trade barriers against their neighbors. The Commerce clause of the Constitution fixed that defect.  For most of the nations history until the late 1800's, the commerce clause was used to prevent the states from interfering in interstate trade that crossed state lines.   

The power of the Federal government to regulate trade between states has morphed into the ability to regulate all aspects of trade.  The Supreme Court has ruled that there is virtually nothing the Federal government cannot do in its regulation of trade.  The power to regulate has been used to prevent State's interference in trade, and it has been used to enhance their interference in trade.  The 1968 gun control act was specifically designed to enhance the power of the states to prevent sales of guns across state lines, at least to people who are not licensed by the federal government.

The Supreme Court is currently in a deadlock over whether states may restrict Second Amendment rights to certain rifles and pistols; and whether they can restrict the magazine capacity of those firearms.  The Supreme Court has not been willing to consider those arguments.

That leaves legislative solutions.  It is unlikely that Second Amendment supporters will be able to obtain legislative majorities in California, New York, or Connecticut in the near future.  But Second Amendment supporters already have  legislative majorities in the U.S. Congress.  There has been majority support for national reciprocity of carry permits for a number of years.

Republican nominee Donald Trump has made support of a national reciprocity law part of his legislative platform.

Part of that law should be the requirement that people who are carrying in states other than there own, may carry any legal firearms from their state of residence.    Just because your car does not meet the California codes for emissions in California, does not mean that you may not drive there.

This would be an easier increment for the Congress to swallow than to simply strike down the burdens on the Second Amendment passed by those state legislatures.  The idea that a person is subject to a felony conviction for crossing a state line with an otherwise legal standard capacity magazine in her personal defensive firearm is absurd.

Because I carry a Glock with a standard capacity magazine, and live on the California border, I am aware of the dangerous legal trap these laws have created.  Miss one exit on the interstate, and you have committed a felony.

The law would be constitutional under the Second Amendment, the commerce clause, and the "full faith and credit" clause of the Constitution.

States should not be allowed to undermine the Second Amendment for citizens visiting their state, who have no vote in their legislative process.

©2016 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch


Anonymous said...

The fact is the second amendment is a guaranteed federal right. No individual state has the authority to change the federal guarantee. If you are an American citizen your guaranteed rights go with you where ever you are in this country and a state line has no legal effect on those rights. the tenth amendment requires that all states recognize the second amendment and they have no authority to change the second amendment. the tenth amendment guarantees the function of the second amendment. It is not an individual states rights issue because of the second amendment being backed up by the tenth amendment. The tenth amendment reinforces the Shall Not be Infringed clause in the federal constitution. No individual state laws are valid. they are all infringements of the second amendment. Congress has no authority to create an agency that writes its own rules, therefore the BATFE is an unconstitutional agency because all laws must originate in congress. BATFE has no law making authority. Congress can not create an agency that makes the infringements legal. Is anyone following this? Even the 1934, 1968 and 1986 congressionally passed acts are not valid law because they are all unconstitutional infringements. Shall not be infringed has never been changed. all laws related to second amendment issues and acts are by definition infringements. Shall Not Be Infringed is an absolute legal command. Congress has no constitutional authority to pass any gun laws or acts without the second amendment being amended. every person able to walk the streets of this country has the right of self defense, the right to keep and bear arms. This site clearly has the 26 words of the second amendment posted any words not in those 26 have no ability to be enforced. any words added to those 26 are infringements and are by fact of law unconstitutional. even felons have a right to self defense when they have served their time. Why because the second amendment does not deny them that right. we all have some complaint. I do not like land taxes, You may not like the idea of felons having the right to self defense. too bad the second amendment does not deny them that right. some people are afraid to cross the street but if they are going to get to the other side they have to live with that fear. a right is a right and the second amendment is very clear , everybody has the right to self defense and the right to keep and bear.

Anonymous said...

The only time anyone needs a high capacity magazine is when someone else has more ammo that you do. If three people come at you with legal limits magazine that is two times more than you have. when your gun is empty you stand a good chance of loosing the gun fight. bad people never fall down by yelling bang bang. self defense is what you decide it is for yourself. In Vietnam a lot of men would leave the base at night to stay with a girl friend in town and never take any ammo with them. One day 300 of them were found in the streets of Pleiku with their heads cut off. I always carry enough ammo. Nobody is going to tell me what they think is enough. My ass, my responsibility.

Anonymous said...

Sandy hook proved that gun bans kill adults that could have protected those kids.

Anonymous said...

You want to know how the commerce clause has crept to the wicked lengths that it has? Well, it is because people present, and buy into, false premise. Sometimes this happens on purpose, sometimes it is foisted on the unsuspecting folks who are not well versed and/or well understood about this chicanery.

We are not left to legislative remedy just because SCOTUS is "unwilling" to "entertain" various arguments. We know full well why the judiciary ducks and dodges and weaves and gets on its bicycle...because we have come to the point that not even Olympic Gold level gymnastics of the intellectual variety can come up with a "decision" that affords the outright violation of the Second Amendment without destroying an already tangles web of deceit woven and spun for well over a century.

Escape and avoidance is their only option. Why be tricked into accepting the false premise that we must be relegated to kissing the rings of the legislature and the executive, as if we have no option besides them? Why allow the big lie to further empower the big liars? Why be conned into accepting, even cheering on, the cementing of the permission slip power - whether it be state based or federally based?

See, that is exactly HOW the creeping of the commerce clause lie has gained a foothold and quite literally made the rest of the Constitution a moot point.
After all, there is no authority in ANY enumerated right when the federal government only need say "commerce" and the enumerations are then null and void as if they do not exist at all.

Here is the straight up honest truth. I am not a state. I am not an Indian Tribe. I am not a foreign power. It is already well shown that when the Framers meant people, they wrote people. When they meant state, they wrote state. When they wanted to show a crystal clear line of separation between those two words, they did so quite straightforwardly. The tenth Amendment uses both, because they are indeed two different things. It really IS that simple. All that is needed is the COURAGE to admit it and accept it and then stand by it.

Backing Trump and his permission slips is not standing by it. It is quite perfectly being conned into begging for permission slips, while the gun controllers laugh their butts off at all who do so.

It is a lie, or a misleading statement of ignorance out of at least incompleteness, to claim we are left with the legislature. We have a RIGHT to seek remedy via the judiciary and all we need is the COURAGE to stand firm on the exercise of that right. Indeed, we can choose to exercise this right dutifully and often...up to and including swamping the judiciary itself from sea to shining sea until it finally decides to do the job it was tasked with doing - checking that already run away and corrupt legislature that has ignored the plain reading and plain meaning of the Constitution that formed it and delegated to it certain powers and duties.

The time as come to stop begging for permission. The time has come to put government back in its Constitutional box, whether it likes it or wants it or not. It is not government's choice. It is the belonging to We The People ourselves...oh, and we do not need and cannot be required to submit to, a permission slip in order to decide. It is our Liberty to do so - Liberty that is self evidently Declared, as formally as it can be.


Anonymous said...

I hate the concept of choosing the lesser of two evils but that is where we are. Trump and his permission slips or Clinton with her confiscation plans. with Trump we keep our guns and then we have something to fight with. with Clinton all we have are empty holsters and civil war.