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.
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