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LongBeachPoly
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 Posted: Wed Jul 31, 2019 8:32 pm Post subject: |
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| Omar Little wrote: | | LongBeachPoly wrote: | | Omar Little wrote: | | LongBeachPoly wrote: | | ContagiousInspiration wrote: | I would immediately require any purchaser of said guns to have LOCAL ID and/or Residency
If I were Newsom I would call the Governor of Nevada and get to work on it immediately. At least ban all Californians from using their California ID to purchase these guns in neighboring states.
ASAP... Proof no NRA pockets near sending tots and pears |
That might be unconstitutional due to a violation of interstate commerce. |
Nah, there are lots of laws restricting commerce across state lines. There isn’t any constitutional provision that residents of one state can purchase anything from another. |
Yeah, restriction on interstate commerce is a Constitutional federal power.
A state restricting interstate commerce can be a violation of the federal government's interstate commerce powers.
So, the federal gun law says - any licensed gun dealer (licensed by the federal government) - must abide by federal laws. This is a restriction on interstate gun sales.
A similar state law restricting interstate gun sales could be in violation of the federal government's interstate commerce powers. |
I think you’re conflating a couple things, but either way, states already can restrict things from other states. Try telling Oklahoma that you bought your pot legally in Colorado. |
A couple of things:
1) State laws CAN be in violation of interstate commerce, but it's only a violation when it's challenged in federal court. A state law can get away with violating the Commerce Clause if no one challenges that state law in federal court.
2) Restricting products from entering a state is a state's right. Violation of Interstate Commerce has to do with a state having different laws for different state residents.
| Quote: | The Commerce Clause assures a large measure of equal treatment by the states to citizens of other states. Since it usually forbids discrimination adverse to the flow of interstate commerce and favorable to intrastate or local commerce, the clause in effect prevents a state from discriminating in favor of its own locality and against other states.
Naturally, citizens of other states are the principal beneficiaries of that kind of protection. Thus, the Commerce Clause forbids a state from discriminating against consumers in other states for the purpose of giving local consumers a preferential right to purchase the products of the state. |
In the context of what was proposed - Nevada having different laws for who can buy guns based on what state that person lives in. This is actually a federal law.
If there was no federal law and Nevada passed such a law, then that could be deemed as being a violation of interstate commerce.
Take for example, California. They have strict gun laws based on age. That's fine because it applies to all residents of all states, not just CA residents.
But, if their gun laws were based on residence, then that could be a violation of Interstate Commerce. That's the difference.
If they came out with a law that says, if you're from CA, the age requirement is 21. If you're from NY, the age requirement is 25. And, if you're from Nevada, can't buy period.
That would be a violation of the federal Interstate Commerce powers. Only the federal government has the power to make such laws. |
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ringfinger
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| Posted: Thu Aug 01, 2019 7:31 am Post subject: |
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^ It’s just CI’s wording. I think we are all trying to get to the same place though.
It doesn’t make sense (nor possibly legal) to say CA would prohibit CA residents from buying in NV.
It makes more sense for NV to say (or have to say) NV gun sellers can only sell to NV residents under NV laws. I’m not anti gun rights, but, I don’t see the need for a non-resident to purchase a firearm outside of some really unusual circumstances. |
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LongBeachPoly
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| Posted: Thu Aug 01, 2019 7:55 am Post subject: |
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| ringfinger wrote: | | It makes more sense for NV to say (or have to say) NV gun sellers can only sell to NV residents under NV laws. |
Which could be a violation of the Commerce Clause.
Anytime a state passes a law that treats people differently based on their state residence, that law could be in violation of the Commerce Clause. The Commerce Clause guarantees that states will treat in state residents and out of state residents equally. There are exceptions (like I mentioned with in state residents paying lower tuition than out of state residents). So, maybe these gun laws would be an exception as well. But, anytime a state passes such a law treating in state residents and out of state residents differently, there's always the possible issue with infringing on Interstate Commerce.
NV gun dealers could challenge the constitutionality of this law because it'll probably substantially cut into their gun sales and possibly could put them all out of business. |
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ringfinger
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| Posted: Thu Aug 01, 2019 9:28 am Post subject: |
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| LongBeachPoly wrote: | | ringfinger wrote: | | It makes more sense for NV to say (or have to say) NV gun sellers can only sell to NV residents under NV laws. |
Which could be a violation of the Commerce Clause.
Anytime a state passes a law that treats people differently based on their state residence, that law could be in violation of the Commerce Clause. The Commerce Clause guarantees that states will treat in state residents and out of state residents equally. There are exceptions (like I mentioned with in state residents paying lower tuition than out of state residents). So, maybe these gun laws would be an exception as well. But, anytime a state passes such a law treating in state residents and out of state residents differently, there's always the possible issue with infringing on Interstate Commerce.
NV gun dealers could challenge the constitutionality of this law because it'll probably substantially cut into their gun sales and possibly could put them all out of business. |
I don’t see why it would be.
Lots of different businesses offer resident “discounts”. Some golf courses give priority to local residents.
I don’t even think you can get a driver’s license (issued by state) without proof of residency in that state.
Doesn’t sound unreasonable to me. |
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LongBeachPoly
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| Posted: Thu Aug 01, 2019 10:10 am Post subject: |
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| ringfinger wrote: | | LongBeachPoly wrote: | | ringfinger wrote: | | It makes more sense for NV to say (or have to say) NV gun sellers can only sell to NV residents under NV laws. |
Which could be a violation of the Commerce Clause.
Anytime a state passes a law that treats people differently based on their state residence, that law could be in violation of the Commerce Clause. The Commerce Clause guarantees that states will treat in state residents and out of state residents equally. There are exceptions (like I mentioned with in state residents paying lower tuition than out of state residents). So, maybe these gun laws would be an exception as well. But, anytime a state passes such a law treating in state residents and out of state residents differently, there's always the possible issue with infringing on Interstate Commerce.
NV gun dealers could challenge the constitutionality of this law because it'll probably substantially cut into their gun sales and possibly could put them all out of business. |
I don’t see why it would be.
Lots of different businesses offer resident “discounts”. Some golf courses give priority to local residents.
I don’t even think you can get a driver’s license (issued by state) without proof of residency in that state.
Doesn’t sound unreasonable to me. |
| Quote: | The United States Supreme Court has released the opinion in the matter of Tennessee Wine and Spirits Retailers Association vs. Zachery Blair, et al., which is the biggest case involving wine heard by the highest court in the land since Granhold v. Heald in 2005. Granhold struck down bans against out of state direct shipping by wineries to consumers. The case presently before the Supreme Court deals with Tennessee’s residency requirement for alcohol retailers—Tennessee has both two-year and 10-year residency requirements imposed upon retailers of alcohol within the state, purportedly under the state’s allowance to govern the safety, health and welfare of its citizens.
The ruling by the Supreme Court, written by Justice Alito for the 7-2 majority (Gorsuch and Thomas dissenting), holds that state residency requirements violate the interstate commerce clause. More specifically, residency requirements imposed upon retailers of alcohol, which result in prohibition of the retailer selling to out of state residents, violate the interstate commerce clause. Section 2 of the 21st Amendment does provide States the power to violate the nondiscrimination principle of the Interstate Commerce Clause, but Section 2 is applied narrowly. When applied to the facts of this case, the Court held that Section 2 does not allow States to discriminate against these out-of-state interests (i.e. the interests of out-of-state retailers).
https://www.chartwelllaw.com/resources/united-states-supreme-court-rules-on-residency-requirement-regarding-interstate-commerce |
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ringfinger
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| Posted: Thu Aug 01, 2019 2:52 pm Post subject: |
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| LongBeachPoly wrote: | | ringfinger wrote: | | LongBeachPoly wrote: | | ringfinger wrote: | | It makes more sense for NV to say (or have to say) NV gun sellers can only sell to NV residents under NV laws. |
Which could be a violation of the Commerce Clause.
Anytime a state passes a law that treats people differently based on their state residence, that law could be in violation of the Commerce Clause. The Commerce Clause guarantees that states will treat in state residents and out of state residents equally. There are exceptions (like I mentioned with in state residents paying lower tuition than out of state residents). So, maybe these gun laws would be an exception as well. But, anytime a state passes such a law treating in state residents and out of state residents differently, there's always the possible issue with infringing on Interstate Commerce.
NV gun dealers could challenge the constitutionality of this law because it'll probably substantially cut into their gun sales and possibly could put them all out of business. |
I don’t see why it would be.
Lots of different businesses offer resident “discounts”. Some golf courses give priority to local residents.
I don’t even think you can get a driver’s license (issued by state) without proof of residency in that state.
Doesn’t sound unreasonable to me. |
| Quote: | The United States Supreme Court has released the opinion in the matter of Tennessee Wine and Spirits Retailers Association vs. Zachery Blair, et al., which is the biggest case involving wine heard by the highest court in the land since Granhold v. Heald in 2005. Granhold struck down bans against out of state direct shipping by wineries to consumers. The case presently before the Supreme Court deals with Tennessee’s residency requirement for alcohol retailers—Tennessee has both two-year and 10-year residency requirements imposed upon retailers of alcohol within the state, purportedly under the state’s allowance to govern the safety, health and welfare of its citizens.
The ruling by the Supreme Court, written by Justice Alito for the 7-2 majority (Gorsuch and Thomas dissenting), holds that state residency requirements violate the interstate commerce clause. More specifically, residency requirements imposed upon retailers of alcohol, which result in prohibition of the retailer selling to out of state residents, violate the interstate commerce clause. Section 2 of the 21st Amendment does provide States the power to violate the nondiscrimination principle of the Interstate Commerce Clause, but Section 2 is applied narrowly. When applied to the facts of this case, the Court held that Section 2 does not allow States to discriminate against these out-of-state interests (i.e. the interests of out-of-state retailers).
https://www.chartwelllaw.com/resources/united-states-supreme-court-rules-on-residency-requirement-regarding-interstate-commerce |
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This is referencing Section 2 of the 21st amendment which specifically limited to regulation on the distribution of liquors across borders.
I am simply saying we have enough examples out there, of business practices being different for residents vs non-residents, that I don’t think extending that to firearms would be a major obstacle. |
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LongBeachPoly
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| Posted: Thu Aug 01, 2019 4:09 pm Post subject: |
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| ringfinger wrote: | | LongBeachPoly wrote: | | ringfinger wrote: | | LongBeachPoly wrote: | | ringfinger wrote: | | It makes more sense for NV to say (or have to say) NV gun sellers can only sell to NV residents under NV laws. |
Which could be a violation of the Commerce Clause.
Anytime a state passes a law that treats people differently based on their state residence, that law could be in violation of the Commerce Clause. The Commerce Clause guarantees that states will treat in state residents and out of state residents equally. There are exceptions (like I mentioned with in state residents paying lower tuition than out of state residents). So, maybe these gun laws would be an exception as well. But, anytime a state passes such a law treating in state residents and out of state residents differently, there's always the possible issue with infringing on Interstate Commerce.
NV gun dealers could challenge the constitutionality of this law because it'll probably substantially cut into their gun sales and possibly could put them all out of business. |
I don’t see why it would be.
Lots of different businesses offer resident “discounts”. Some golf courses give priority to local residents.
I don’t even think you can get a driver’s license (issued by state) without proof of residency in that state.
Doesn’t sound unreasonable to me. |
| Quote: | The United States Supreme Court has released the opinion in the matter of Tennessee Wine and Spirits Retailers Association vs. Zachery Blair, et al., which is the biggest case involving wine heard by the highest court in the land since Granhold v. Heald in 2005. Granhold struck down bans against out of state direct shipping by wineries to consumers. The case presently before the Supreme Court deals with Tennessee’s residency requirement for alcohol retailers—Tennessee has both two-year and 10-year residency requirements imposed upon retailers of alcohol within the state, purportedly under the state’s allowance to govern the safety, health and welfare of its citizens.
The ruling by the Supreme Court, written by Justice Alito for the 7-2 majority (Gorsuch and Thomas dissenting), holds that state residency requirements violate the interstate commerce clause. More specifically, residency requirements imposed upon retailers of alcohol, which result in prohibition of the retailer selling to out of state residents, violate the interstate commerce clause. Section 2 of the 21st Amendment does provide States the power to violate the nondiscrimination principle of the Interstate Commerce Clause, but Section 2 is applied narrowly. When applied to the facts of this case, the Court held that Section 2 does not allow States to discriminate against these out-of-state interests (i.e. the interests of out-of-state retailers).
https://www.chartwelllaw.com/resources/united-states-supreme-court-rules-on-residency-requirement-regarding-interstate-commerce |
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This is referencing Section 2 of the 21st amendment which specifically limited to regulation on the distribution of liquors across borders.
I am simply saying we have enough examples out there, of business practices being different for residents vs non-residents, that I don’t think extending that to firearms would be a major obstacle. |
1) The Constitution is a protection against government action.
And I'll give you an example. You heard of the baker who refused to bake a cake for a gay couple due to his religious beliefs in Colorado?
Well, if Colorado passed a law mandating that bakeries don't have to serve gay people, well, that would be unconstitutional. But, in this case, the Supreme Court sided with the baker.
2) A local business choosing to give discounts to local residents is different from a state law mandating that only in state residents be given discounts.
What state law can you think of that treats in state residents differently than out of state residents? There are few. Off the top of my head, in state tuition vs. out of state tuition at public schools. Most of it has to do with states using their own funds for their own residents.
If you don't mind me asking, how familiar are you with case law regarding Interstate Commerce? |
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lakerjoshua
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| Posted: Thu Aug 01, 2019 6:26 pm Post subject: |
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| ringfinger wrote: | ^ It’s just CI’s wording. I think we are all trying to get to the same place though.
It doesn’t make sense (nor possibly legal) to say CA would prohibit CA residents from buying in NV.
It makes more sense for NV to say (or have to say) NV gun sellers can only sell to NV residents under NV laws. I’m not anti gun rights, but, I don’t see the need for a non-resident to purchase a firearm outside of some really unusual circumstances. |
100% agreed on this RF.
In California you have to have established residency for 6 months (I believe) before you can get a DL or California ID card. There's a lot of States (or used to be) that share that requirement.
If a non resident had to wait 6 months before buying a firearm, would be a good stab at the issue.
Gun control isn't about taking guns from legal and responsible gun owners. It's about making unauthorized ownership better policed and access to those firearms harder to acquire for those who would use them to do harm.
We're not as far apart as people think we are when we have the good will in our heart. |
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jodeke
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| Posted: Thu Aug 01, 2019 6:59 pm Post subject: |
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IMO AK47, AR15 and like should not be sold to the public. Those are weapons of war. Where is the need for the public to own a gun meant for war?
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ringfinger
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| Posted: Thu Aug 01, 2019 7:11 pm Post subject: |
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| LongBeachPoly wrote: | | ringfinger wrote: | | LongBeachPoly wrote: | | ringfinger wrote: | | LongBeachPoly wrote: | | ringfinger wrote: | | It makes more sense for NV to say (or have to say) NV gun sellers can only sell to NV residents under NV laws. |
Which could be a violation of the Commerce Clause.
Anytime a state passes a law that treats people differently based on their state residence, that law could be in violation of the Commerce Clause. The Commerce Clause guarantees that states will treat in state residents and out of state residents equally. There are exceptions (like I mentioned with in state residents paying lower tuition than out of state residents). So, maybe these gun laws would be an exception as well. But, anytime a state passes such a law treating in state residents and out of state residents differently, there's always the possible issue with infringing on Interstate Commerce.
NV gun dealers could challenge the constitutionality of this law because it'll probably substantially cut into their gun sales and possibly could put them all out of business. |
I don’t see why it would be.
Lots of different businesses offer resident “discounts”. Some golf courses give priority to local residents.
I don’t even think you can get a driver’s license (issued by state) without proof of residency in that state.
Doesn’t sound unreasonable to me. |
| Quote: | The United States Supreme Court has released the opinion in the matter of Tennessee Wine and Spirits Retailers Association vs. Zachery Blair, et al., which is the biggest case involving wine heard by the highest court in the land since Granhold v. Heald in 2005. Granhold struck down bans against out of state direct shipping by wineries to consumers. The case presently before the Supreme Court deals with Tennessee’s residency requirement for alcohol retailers—Tennessee has both two-year and 10-year residency requirements imposed upon retailers of alcohol within the state, purportedly under the state’s allowance to govern the safety, health and welfare of its citizens.
The ruling by the Supreme Court, written by Justice Alito for the 7-2 majority (Gorsuch and Thomas dissenting), holds that state residency requirements violate the interstate commerce clause. More specifically, residency requirements imposed upon retailers of alcohol, which result in prohibition of the retailer selling to out of state residents, violate the interstate commerce clause. Section 2 of the 21st Amendment does provide States the power to violate the nondiscrimination principle of the Interstate Commerce Clause, but Section 2 is applied narrowly. When applied to the facts of this case, the Court held that Section 2 does not allow States to discriminate against these out-of-state interests (i.e. the interests of out-of-state retailers).
https://www.chartwelllaw.com/resources/united-states-supreme-court-rules-on-residency-requirement-regarding-interstate-commerce |
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This is referencing Section 2 of the 21st amendment which specifically limited to regulation on the distribution of liquors across borders.
I am simply saying we have enough examples out there, of business practices being different for residents vs non-residents, that I don’t think extending that to firearms would be a major obstacle. |
1) The Constitution is a protection against government action.
And I'll give you an example. You heard of the baker who refused to bake a cake for a gay couple due to his religious beliefs in Colorado?
Well, if Colorado passed a law mandating that bakeries don't have to serve gay people, well, that would be unconstitutional. But, in this case, the Supreme Court sided with the baker.
2) A local business choosing to give discounts to local residents is different from a state law mandating that only in state residents be given discounts.
What state law can you think of that treats in state residents differently than out of state residents? There are few. Off the top of my head, in state tuition vs. out of state tuition at public schools. Most of it has to do with states using their own funds for their own residents.
If you don't mind me asking, how familiar are you with case law regarding Interstate Commerce? |
I’m not that familiar with it. I’m not even saying that I know it is doable.
I’m simply saying that we have several examples of differentiating circumstances for residents and non-residents. Tuition is one, Drivers licenses are another.
And therefore, it doesn’t seem too preposterous to suggest that perhaps something along similar lines can be done for firearms. Just spitballing here, not legislating. |
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Aeneas Hunter
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| Posted: Thu Aug 01, 2019 7:24 pm Post subject: |
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Okay, here is an academic overview.
The Commerce Clause has both an affirmative aspect and a negative aspect. The affirmative aspect is that Congress has power to regulate commerce between the states. At this point in our history, this power is virtually without limit. Purely local transactions almost always involve interstate commerce in some convoluted way. The high water mark was Wickard v. Filburn from the New Deal era. Filburn grew wheat on his own land and used it to feed animals on his land. The Supreme Court held that this was subject to regulation under the Commerce Clause because his decision to grow his own wheat meant that he did not buy wheat from other people. I doubt that the current Supreme Court would go that far, but nonetheless in the eyes of the law you are engaging in interstate commerce when you buy a pack of gum at your local gas station.
The negative aspect, often referred to as the Dormant Commerce Clause, is highly controversial because it is not expressly stated in the Constitution. The idea is that the vesting of the commerce power in Congress implicitly restricts the power of the states to regulate commerce. This makes sense, because one of the concerns that led to the enactment of the Constitution was internal blockades on trade -- local economic protectionism. The doctrine grew out of Chief Justice Marshall's opinion in Gibbons v. Ogden. That case involved the ability of New York to give Robert Fulton the exclusive right to operate steamboats to New Jersey.
The law gets pretty complicated when it comes to the application of the Dormant Commerce Clause. For example, the courts will uphold health and safety regulations if they do not excessively discriminate against interstate commerce. I am not going to attempt to summarize all the different applications of the law. Almost half of my Constitutional Law class in law school involved the Commerce Clause, and that is not an exaggeration.
Antonin Scalia was a virulent critic of the Dormant Commerce Clause, and Clarence Thomas is carrying the torch for the legal scholars who want to abolish it. This is based on textual literalism -- the Constitution doesn't say it, so it ain't there. If you feel the urge, you can find extensive debates on the subject.
So, could a state impose a residency requirement to buy a firearm? Yes, I think that would pass muster under the Dormant Commerce Clause, But this is an academic point because there is already a federal residency requirement. The Gun Control Act of 1968 makes it illegal:
| Quote: | | for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides; except that this paragraph shall not apply to (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes. |
So what is the actual problem here? Nevada does not require background checks that would show the buyer's residency. Therefore, the seller in Nevada did not violate the law because the seller did not know or have reasonable cause to believe that the buyer was a non-resident. So yes, the firearm sale was "legal" because the absence of background checks renders the federal laws toothless. |
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Omar Little
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| Posted: Thu Aug 01, 2019 8:31 pm Post subject: |
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I may be weird, but I do enjoy an intelligent attorney holding forth on legal minutiae. Thanks AH.
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ringfinger
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| Posted: Thu Aug 01, 2019 8:45 pm Post subject: |
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You are weird, but not alone. 
Loved that breakdown! |
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LongBeachPoly
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| Posted: Thu Aug 01, 2019 11:21 pm Post subject: |
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| Aeneas Hunter wrote: |
So, could a state impose a residency requirement to buy a firearm? Yes, I think that would pass muster under the Dormant Commerce Clause, But this is an academic point because there is already a federal residency requirement. The Gun Control Act of 1968 makes it illegal:
| Quote: | | for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides; except that this paragraph shall not apply to (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes. |
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Yup, and federal laws still allow interstate commerce of guns. They don't prohibit the sales of guns to out of state residents (for FFL dealers). They just have requirements of where they can pick it up from.
| Quote: | | The Federal Firearms License (FFL) allows individuals to engage in business related to the manufacture of ammunition or firearms or the interstate or intrastate sale of firearms. |
| Quote: | An individual 21 years of age or older may acquire a handgun from a dealer federally licensed to sell firearms in the individual`s state of residence
An individual 18 years of age or older may purchase a rifle or shotgun from a federally licensed dealer in any state |
| Quote: | | Federal firearms license (FFL) holders are the only persons who can legally handle gun sales across state lines. This means that the merchant you’re buying from must have an FFL, and that seller must, we repeat, must, ship the weapon directly to an FFL holder in your state. It’s then up to you to go to the FFL holder in your state and take possession of the weapon. Usually, the dealer will charge a small handling fee for his or her part in the transaction. |
| Quote: | Transferring/Shipping/Possession of Firearms:
May I lawfully transfer a firearm to an individual who resides in a different State?
Under Federal law, an unlicensed individual is prohibited from transferring a firearm to an individual who does not reside in the State where the transferee resides.
Generally, for a person to lawfully transfer a firearm to an unlicensed person who resides out of State, the firearm must be shipped to a Federal Firearms Licensee (FFL) within the recipient’s State of residence.
He or she may then receive the firearm from the FFL upon completion of an ATF Form 4473 and a NICS background check. More information can be obtained on the ATF website at www.atf.gov
and http://www.atf.gov/firearms/faq/unlicensed-persons.html.
The GCA provides an exception from this prohibition for temporary loans or rentals of firearms for lawful sporting purposes.
For example, a friend visiting you may borrow a firearm from you to go hunting.
Another exception is provided for transfers of firearms to nonresidents to carry out a lawful bequest or acquisition by intestate succession.
This exception would authorize the transfer of a firearm to a nonresident
who inherits a firearm under a will or by State law upon death of the owner.
See 18 U.S.C. §922(a)(5)(A). |
What's being proposed will eliminate interstate commerce of guns.
If Nevada passes a law where only Nevada residents can buy guns in Nevada, then there would never be interstate commerce of guns within the state of Nevada.
Similar if the other 49 states pass the same laws as Nevada, that would ban all interstate commerce of guns.
The FFL says that an FFL dealer can sell guns to out of state residents. One requirement is, if it's a handgun, what they have to do is ship the gun to an FFL dealer in the other state and then the buyer can pick it up in their state from that FFL dealer.
A Nevada ban on selling to out of state residents would be a ban on this federal law.
So, the FFL, a federal act, requires gun dealers to be federally licensed with the FFL. This gives them the right to sell to out of state residents.
Currently, the law is a gun dealer in Nevada that's FFL licensed can sell guns to out of state residents (as long as it follows FFL guidelines).
A Nevada law banning sales to all out of state residents would be undermining the FFL.
What would be Nevada's reasoning for passing such a law? How does sales to out of state residents affect Nevada? |
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Aeneas Hunter
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| Posted: Fri Aug 02, 2019 6:15 am Post subject: |
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| LongBeachPoly wrote: | What's being proposed will eliminate interstate commerce of guns.
If Nevada passes a law where only Nevada residents can buy guns in Nevada, then there would never be interstate commerce of guns within the state of Nevada.
Similar if the other 49 states pass the same laws as Nevada, that would ban all interstate commerce of guns. |
You're construing "interstate commerce" too narrowly. If I open The Aeneid's Arsenal and start manufacturing firearms here in Houston, I can sell them in all 50 states and the District of Columbia. That is interstate commerce. Or I could open a chain of gun shops across the country and sell to the locals. That is interstate commerce. In fact, that is the specific scenario presented in the Tennessee liquor store case -- if Tennessee tried to say that I had to reside in Tennessee to operate a gun shop there, it would raise a Commerce Clause issue.
What you're talking about is the right of a consumer to cross state lines to buy a potentially dangerous product in order to evade health and safety regulations in the consumer's home state. Consumers physically crossing state lines is a trivial portion of interstate commerce. Health and safety regulations are the classic example of something that will usually survive a Dormant Commerce Clause challenge if they are neutral. (An example of a non-neutral law would be if California banned imported assault rifles as dangerous, but created an exception for assault rifles made in California.)
Now, that brings us to the more common issue -- goods that a consumer purchases by mail order, by ordering in response to an infomercial, or by ordering from Amazon. You may not realize it, but you are seeing the application of the Dormant Commerce Clause every day. "Offer not valid for residents of New York, Vermont, and Oregon." What does that mean? It means that there is some sort of regulation in those states that prohibits or restricts the product or service in question. Consumers in those states cannot purchase the product or service in interstate commerce. The Dormant Commerce Clause does not invalidate the regulation because the regulation is linked to health, safety, or some other legitimate interest. For example, a state can regulate or even prohibit the sale of certain types of insurance to its residents, and it can regulate the types of entities that can sell insurance to consumers in the state.
The courts will often refer to this as an exercise of the state's "police power." In other words, a state has the power to protect its citizens as long as this is not a subterfuge for discrimination against interstate commerce. |
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adkindo
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| Posted: Fri Aug 02, 2019 6:21 am Post subject: |
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| Aeneas Hunter wrote: | | it would raise a Commerce Clause issue |
I think the Supreme Court ruled you can take a crap on the Commerce Clause as long as you call it a tax.....  |
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Aeneas Hunter
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| Posted: Fri Aug 02, 2019 7:08 am Post subject: |
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| adkindo wrote: | | Aeneas Hunter wrote: | | it would raise a Commerce Clause issue |
I think the Supreme Court ruled you can take a crap on the Commerce Clause as long as you call it a tax..... |
Just to be clear, that was an affirmative aspect case involving the power of Congress, not a negative aspect case involving state regulation. The courts were balking at the idea that the individual mandate could be supported by Congress' affirmative power to regulate commerce, but the Supreme Court upheld the individual mandate on the basis of Congress' tax power, which is separate from the commerce power.
There is a massive volume of jurisprudence about the effect of the Dormant Commerce Clause on state taxes. When I say massive, I am not using hyperbole. After the enactment of the Constitution, it did not take long for some state legislator to realize that they could dress up local economic protectionism as "taxes." |
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LongBeachPoly
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| Posted: Fri Aug 02, 2019 7:30 am Post subject: |
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| Aeneas Hunter wrote: | | What you're talking about is the right of a consumer to cross state lines to buy a potentially dangerous product in order to evade health and safety regulations in the consumer's home state. |
Ok, let's take this example.
The proposal is Nevada enacts this law - only Nevada residents can buy guns in Nevada, to "protect against consumers crossing state lines to buy a potentially dangerous product in order to evade health and safety regulations in the consumer's home state"
1) There's already a protection against that in place provided by the FLL.
2) What about the states that have the same regulations or less regulations than Nevada? What would be their reasoning for banning these out of state residents from coming to Nevada to buy guns?
We can see that California has stricter gun laws than Nevada. But that's just California. There are states that have the same gun laws as Nevada and even less strict gun laws. Nevada would be banning residents from all other states from coming into Nevada and purchasing a gun.
| Aeneas Hunter wrote: | | Health and safety regulations are the classic example of something that will usually survive a Dormant Commerce Clause challenge if they are neutral. |
Sure. For that state.
3) Again, let's say Alabama had the same gun laws as Nevada. The exact same laws.
Nevada now exacts this ban. All non-residents now can't come into Nevada to buy guns, including Alabama residents.
What are the health and safety reasonings for allowing Nevada residents to purchase guns in Nevada but not Alabama residents?
You have the same gun laws. You can't say Alabama residents are trying to "evade their states' health and safety regulations"
What would actually be a good reason for this ban? There is none. It's just discriminatory against Alabama residents for no useful purpose.
| Aeneas Hunter wrote: | The Dormant Commerce Clause does not invalidate the regulation because the regulation is linked to health, safety, or some other legitimate interest. For example, a state can regulate or even prohibit the sale of certain types of insurance to its residents, and it can regulate the types of entities that can sell insurance to consumers in the state.
The courts will often refer to this as an exercise of the state's "police power." In other words, a state has the power to protect its citizens as long as this is not a subterfuge for discrimination against interstate commerce. |
Sure, Nevada would have the right to protect its citizens. How would banning all out of state residents from purchasing guns within Nevada protect its citizens?
How would banning Alabama (which we're supposing has the exact same gun laws as Nevada) protect Nevada residents?
And again, let's say both Alabama and Nevada enacted this law. And both Alabama and Nevada have the exact same gun laws.
So, Alabamans can buy guns in Alabama. And Nevadans can buy guns in Nevada.
However, Alabamans can't go to Nevada and buy the same guns that they can buy in their home state, and vice versa for Nevadans.
And this would be under the guise of "health and safety" reasons. What would these health and safety reasons be?
Are guns less dangerous when you buy them in state and more dangerous when you buy them out of state?
| Quote: | | In fact, that is the specific scenario presented in the Tennessee liquor store case -- if Tennessee tried to say that I had to reside in Tennessee to operate a gun shop there, it would raise a Commerce Clause issue. |
Example 1 - Let's say an FFL gun dealer was operating business right at the border of CA. All of his gun sales were to Californians. (He followed all the FFL regulations and all sales were legit and legal).
There was another FFL gun dealer operating on the other side of the border (in CA) who wasn't doing as well as the Nevada FFL gun dealer (higher prices).
If Nevada passes this law, the Nevada FFL gun dealer would be put out of business.
Example 2 - Let's say there's a gun manufacturer based in Nevada. If Nevada says guns can only be sold to Nevada residents, how would this gun manufacturer actually sell to out of state gun dealers/retailers?
They'd all have to become residents of Nevada?
Example 3 - If all 50 states enacted this same gun law, how would any gun manufacturer move their guns?
They’d have to set up retail stores in all 50 states? But even then, would they still be violating their own states' law which prohibits them from selling to out of state residents?
This would put an end to the interstate commerce of guns
Example 4 - Police. Where do police get their guns? Are we to believe that all police buy their guns in state? If they don't, they'd have to now (if all 50 states enacted this law).
But then we'd still have the issue of how can the manufacturer actually move the guns out of their state. |
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adkindo
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| Posted: Fri Aug 02, 2019 8:12 am Post subject: |
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| jodeke wrote: | | IMO AK47, AR15 and like should not be sold to the public. Those are weapons of war. Where is the need for the public to own a gun meant for war? |
a real AK47 and AR15 are very different firearms....apples and oranges. Also, legitimate AK47's are not for sale to the general public. A purchaser must have a Federal Firearms License and even then he or she can only purchase ones manufactured before 1986. The supply is extremely limited and extremely expensive as in $25K expensive. One's that are sold in gun shops today are semi-automatic knockoffs that are similar to a deer rifle. |
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Aeneas Hunter
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| Posted: Fri Aug 02, 2019 8:22 am Post subject: |
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| LongBeachPoly wrote: | Ok, let's take this example.
The proposal is Nevada enacts this law - only Nevada residents can buy guns in Nevada, to "protect against consumers crossing state lines to buy a potentially dangerous product in order to evade health and safety regulations in the consumer's home state"
1) There's already a protection against that in place provided by the FLL.
2) What about the states that have the same regulations or less regulations than Nevada? What would be their reasoning for banning these out of state residents from coming to Nevada to buy guns? |
1. The Commerce Clause does not prohibit states from having additional rules, unless those rules conflict with the federal statute or unless the federal statute "occupies the field." This is a preemption question under the Supremacy Clause.
2. This is not relevant under the Commerce Clause unless it is a subterfuge for economic protectionism. If Nevada prohibits its retailers from selling to non-residents, that is the reverse of economic protectionism. There could be an issue under one of the Privileges and Immunities Clauses, but that is a whole different subject. This gets into the Slaughter-House Cases from the Reconstruction era, which pretty much negated the Privileges and Immunities Clause in the 14th Amendment. The Clause might have some life in the 2nd Amendment context, thanks to Justice Thomas.
| LongBeachPoly wrote: | Example 2 - Let's say there's a gun manufacturer based in Nevada. If Nevada says guns can only be sold to Nevada residents, how would this gun manufacturer actually sell to out of state gun dealers/retailers?
They'd all have to become residents of Nevada? |
The manufacturer would not be selling to consumers. The distribution of firearms across state lines is regulated by federal law. But if Nevada actually wanted to ban the manufacturing of firearms within its borders, I don't know of a constitutional provision that would prohibit it.
| LongBeachPoly wrote: | Example 3 - If all 50 states enacted this same gun law, how would any gun manufacturer move their guns?
They’d have to set up retail stores in all 50 states? But even then, would they still be violating their own states' law which prohibits them from selling to out of state residents?
This would put an end to the interstate commerce of guns |
Again, this is regulated by federal law. Could all 50 states ban the manufacturing of firearms? We're getting into odd hypotheticals at this point, but the answer is probably Yes. At that point, all firearms would need to be imported, so I guess we'd have factories along the Mexico and Canadian borders.
| LongBeachPoly wrote: | Example 4 - Police. Where do police get their guns? Are we to believe that all police buy their guns in state? If they don't, they'd have to now (if all 50 states enacted this law).
But then we'd still have the issue of how can the manufacturer actually move the guns out of their state. |
You're tying yourself into a pretzel. The hypothetical possibility that all of the states could simultaneously do something weird is not how the Constitution gets interpreted. |
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LongBeachPoly
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| Posted: Fri Aug 02, 2019 8:35 am Post subject: |
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| Aeneas Hunter wrote: | | The manufacturer would not be selling to consumers. The distribution of firearms across state lines is regulated by federal law. But if Nevada actually wanted to ban the manufacturing of firearms within its borders, I don't know of a constitutional provision that would prohibit it. |
If Nevada enacted a law that says guns can only be sold to in state residents, that would include manufacturers selling their guns as well.
If a manufacturer was based in Nevada, they could only sell their guns to in state retailers/dealers.
You've just introduced the new provision that this law only applies to "consumers". No where has this been addressed except now.
But. are police consumers? Where do they get their guns from? All police get their guns in state?
All of their gun needs are met in state?
| Quote: | | You're tying yourself into a pretzel. The hypothetical possibility that all of the states could simultaneously do something weird is not how the Constitution gets interpreted. |
But when the Supreme Court makes a ruling, it's always based on the premise that what's good for one state is good for all states.
If Nevada is allowed, then all states should be allowed to do the same.
What you're saying is, the Supreme Court's going to allow Nevada because they hope that nothing weird will happen, like all 50 states doing the same.
But, you've yet to answer this question: If Nevada and Alabama had the EXACT same gun laws, what would be health and safety reasons for Nevada to ban Alabamans from buying guns in their state and vice versa?
If it's perfectly safe and healthy for Nevadans to buy guns in Nevada,
And it's perfectly safe and healthy for Alabamans to buy the same guns in Alabama...
Why is it unsafe and unhealthy for Alabamans to come into Nevada to buy the same guns and vice versa? |
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Aeneas Hunter
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| Posted: Fri Aug 02, 2019 10:33 am Post subject: |
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| LongBeachPoly wrote: | | If Nevada enacted a law that says guns can only be sold to in state residents, that would include manufacturers selling their guns as well. |
Why? You aren't making a lot of sense. What started this whole discussion was the idea that Nevada should pass a law prohibiting the sale of firearms to people from California. Now you are suggesting a law that would prohibit Nevada manufacturers from shipping their products to distributors and dealers in other states.
| LongBeachPoly wrote: | | But. are police consumers? Where do they get their guns from? All police get their guns in state? |
Ditto. This a weird argument, but in fact I doubt that any California cops drive to Nevada to purchase their service weapons. I expect that most police departments provide the weapons anyway, but I don't work in law enforcement.
| LongBeachPoly wrote: | | But when the Supreme Court makes a ruling, it's always based on the premise that what's good for one state is good for all states. |
What? That's not true. Different states have different circumstances that may or may not justify a particular sort of regulation.
| LongBeachPoly wrote: | | But, you've yet to answer this question: If Nevada and Alabama had the EXACT same gun laws, what would be health and safety reasons for Nevada to ban Alabamans from buying guns in their state and vice versa? |
I told you that it was irrelevant to a Commerce Clause analysis. |
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venturalakersfan
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| Posted: Fri Aug 02, 2019 10:36 am Post subject: |
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| ringfinger wrote: | | tox wrote: | | ringfinger wrote: | | tox wrote: | | Whoever sold him the gun should be charged as an accessory to murder, simple as that. If you sell a gun without doing a background check through the proper means, that should be your liability. |
Wasn’t the gun legally purchased in NV or something?
Last I remember reading, maybe there’s been an update on that since. |
Ah from the post I thought it was bought illegally. Thanks for the correction. It should be illegal to sell a gun banned in CA to a CA resident though. |
Hmmm, that seems way too complicated for sellers to have to know the laws of every state.
Why not just make it like DMR said? Make it a federal law/rule that for guns, sellers are restricted to selling to legal residents of the state in which it is sold.
Way simpler, accomplishes the same thing. |
That would be the simple solution
_________________
RIP mom. 11-21-1933 to 6-14-2023. |
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LongBeachPoly
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| Posted: Fri Aug 02, 2019 10:43 am Post subject: |
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| Aeneas Hunter wrote: | | The Dormant Commerce Clause does not invalidate the regulation because the regulation is linked to health, safety, or some other legitimate interest. For example, a state can regulate or even prohibit the sale of certain types of insurance to its residents, and it can regulate the types of entities that can sell insurance to consumers in the state. |
| Aeneas Hunter wrote: | | LongBeachPoly wrote: | | But, you've yet to answer this question: If Nevada and Alabama had the EXACT same gun laws, what would be health and safety reasons for Nevada to ban Alabamans from buying guns in their state and vice versa? |
I told you that it was irrelevant to a Commerce Clause analysis. |
Yeah, I'm trying to understand how you can say that it's "linked to health, safety, or some other legitimate interest" and when I ask you what the health and safety reasons are, your response is: "it's irrelevant to a Commerce Clause analysis."
| Aeneas Hunter wrote: | | What started this whole discussion was the idea that Nevada should pass a law prohibiting the sale of firearms to people from California. |
Whatever you feel started the whole thing, my response was to this suggestion:
| LongBeachPoly wrote: |
| ContagiousInspiration wrote: | | I would immediately require any purchaser of said guns to have LOCAL ID and/or Residency |
That might be unconstitutional due to a violation of interstate commerce. |
Not sure how you added "California" to that
And not sure how you got "any purchaser" to mean only "consumers"
Last edited by LongBeachPoly on Fri Aug 02, 2019 10:56 am; edited 1 time in total |
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ringfinger
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| Posted: Fri Aug 02, 2019 10:53 am Post subject: |
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| Another classic LongBeachPretzel! |
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