OK2A Releases July 25, 2013 ATF Letter Regarding Oklahoma Carry Permits and Fed GFSZA

[rawhide]

http://stockman.house.gov/media-cen...e-schools-act-to-repeal-gun-free-school-zones

A Texas rep has introduced a bill to repeal.

Oops. This was last year.

 

[Cougar]

The Stockman bill was introduced last year. It didn't go anywhere. It would have been an outright repeal, which is highly unlikely to pass. The law needs to be amended to either allow lawful carry as determined by the states, or to remove the 1000 ft radius (or both). I would like to give US Congressman Bridenstine credit for signing his name in support of the Stockman bill. We have been trying to get Tom Coburn to address this thing for many years, and he has expressed ideological support, but has not introduced any legislation regarding it. I keep hoping he will fix this in one last blaze of glory before he leaves office, but I'm not holding my breath.

 

[rawhide]

The Stockman bill was introduced last year. It didn't go anywhere. It would have been an outright repeal, which is highly unlikely to pass. The law needs to be amended to either allow lawful carry as determined by the states, or to remove the 1000 ft radius (or both). I would like to give US Congressman Bridenstine credit for signing his name in support of the Stockman bill. We have been trying to get Tom Coburn to address this thing for many years, and he has expressed ideological support, but has not introduced any legislation regarding it. I keep hoping he will fix this in one last blaze of glory before he leaves office, but I'm not holding my breath.

You are correct. I just saw January 9 but didn't notice 2013. Hopefully you are right about Coburn but I'm not holding my breath either. I don't have much confidence that anything in D.C. is fixable at this point and am focusing on what I can influence -- Oklahoma legislature.

 

[mons meg]

On what basis would they lose the appeal?

I think I didn't word that quite right. I think the defendant in my hypothetical "traffic stop" case would win out eventually, and the US Attorneys know that. Therefore, they don't try to rock the boat so they can keep their "hammer" for those kitchen sink style prosecutions where they throw a bunch of charges out there and see what sticks. They don't want another Lopez explicitly telling them NO.

 

[rawhide]

I think I didn't word that quite right. I think the defendant in my hypothetical "traffic stop" case would win out eventually, and the US Attorneys know that. Therefore, they don't try to rock the boat so they can keep their "hammer" for those kitchen sink style prosecutions where they throw a bunch of charges out there and see what sticks. They don't want another Lopez explicitly telling them NO.

From what I've read the feds do not expect another NO like Lopez because the commerce clause will cover them. On what basis would they get a NO? The "new" version of GFSZA specifically fixed the ruling from Lopez.

 

[mons meg]

I don't know how they "fixed" anything, rather they cynicall re-passed a "new" law with a few more words to stick it to CJ Rehnquist. This is from the Wikipedia summary of Lopez:

In a 5–4 decision, the Supreme Court affirmed the decision of the Court of Appeals. It held that while Congress had broad lawmaking authority under the Commerce Clause, the power was limited, and did not extend so far from "commerce" as to authorize the regulation of the carrying of handguns, especially when there was no evidence that carrying them affected the economy on a massive scale.[9]

The SCOTUS already ruled the old GFSZA was too broad under the Commerce Clause. Simply adding "because Commerce" to the new law doesn't change the original decision.

 

[mons meg]

rawhide, you had to pick the scab, didn't you, and make me go haul out the actual text. Read the first line...I call it good news for us.

Held:

The Act exceeds Congress' Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly those terms are defined. Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under the Court's cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. Second, 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite Page II nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government's contention that 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States. Pp. 2-19.

So my notion is that the "new and improved" GFSZA would pretty much HAVE to be struck down based on clear precedent.

Thoughts? Btw...the entire decision is a great read as a history lesson for us from Chief Justice Rehnquist:

"We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art. I, 8."

You can tell this is going to be epic already, can't you?

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=514&invol=549

 

[Cougar]

Mons meg, you ask what logic SCOTUS could use to uphold the new law. I direct you to the 2005 case of United States v Dorsey, where a federal appellate court, after a fairly in depth review, ruled the minor changes made to the law were indeed sufficient to alleviate the concerns of the Lopez decision, and affirmed Dorsey's conviction. A liberal leaning SCOTUS could easily use the same logic the court used in the Dorsey case. If you have not already done so, read up on Wickard_v_Filburn an old case where SCOTUS ruled a person growing and consuming wheat entirely on their own property was effecting interstate commerce by not entering in interstate commerce. I would also like to point out that there is no federal law against a felon possessing a gun, there is a federal law against a felon possessing a gun effecting interstate commerce (sound familiar)? I read a federal case a few days ago, where a felon was convicted of possessing a firearm, and he argued he was not effecting interestate commerce because the gun had been in his family for 30+ years and had never left the state during that time. The court ruled it did not matter, and convicted him. A felon possessing a gun in their home does not effect interstate commerce any more than an otherwise law-abiding person possessing a gun within 1000 feet of a school. If SCOTUS were to strike Fed GFSZA again, they would also have to strike the felon-in-possession law, and countless (if not all) other federal criminal statutes.

 

[Cougar]

Following is the relevant part of the United States v Dorsey decision, I will bold the very important parts. Again, Fed GFSZA would never ever be struck down again under the commerce clause, with its jurisdictional element, because doing so would void nearly every federal criminal statute and abolish nearly all of the federal government's police powers.

(Case quoted below)


III

 We next consider the district court's ruling on Dorsey's motion to dismiss Count Three of the indictment on the ground that the Gun-Free School Zone statute on which it is based, 18 U.S.C. § 922(q)(2)(A), is unconstitutional.   It is now a federal crime “knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place the individual knows, or has reasonable cause to believe, is a school zone.”  18 U.S.C. § 922(q)(2)(A).   Dorsey argues that this statute exceeds Congress's power under Art. I, § 8, cl. 3 of the United States Constitution (“the Commerce Clause”).   We review this constitutional question de novo.   United States v. McCoy, 323 F.3d 1114, 1117 (9th Cir.2003).

In 1995, the Supreme Court found a prior version of § 922(q), also known as the “Gun-Free School Zones Act,” unconstitutional.  United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995);  see Pub.L. No. 101-647, Title XVII, § 1702(b)(1), 104 Stat. 4789, 4844 (1990).   The version of the statute at issue in Lopez made it a federal offense “knowingly to possess a firearm at a place that the individual knows, or has reason to believe, is a school zone.”  514 U.S. at 551, 115 S.Ct. 1624.   The question is whether the addition of the jurisdictional element, which requires that the firearm “has moved in or [ ] otherwise affects interstate or foreign commerce” repairs the constitutional shortfalls announced in Lopez.   See Pub.L. No. 104-208, Div. A, Title I, § 101(f), 110 Stat. 3009-369, 3009-372 (1996) (amending the Gun-Free School Zones Act of 1990).

Incorporating a jurisdictional element into the offense has traditionally saved statutes from Commerce Clause challenges.   See e.g., United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).   In Bass, the Supreme Court considered whether the statutory phrase “in commerce or affecting commerce” in a federal statute that imposed a penalty on any felon “who receives, possesses, or transports in commerce or affecting commerce ․ any firearm” applied to “possesses” and “receives” as well as “transports.”  Id. at 337, 339, 92 S.Ct. 515.   In large part to avoid the federalism problems that would result from a broader construction, the Court interpreted the “in commerce or affecting commerce” language to be part of the offense that the government had to prove in each individual case.  Id. at 349-50, 92 S.Ct. 515.   Several years later, the Court revisited the same statute and clarified that the required nexus could be proven by demonstrating that the firearm had previously traveled in interstate commerce;  the nexus did not need to be contemporaneous with the offense.  Scarborough v. United States, 431 U.S. 563, 575-77, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977).

The Lopez decision did not alter this rule that a jurisdictional element will bring a federal criminal statute within Congress's power under the Commerce Clause.   In fact, Lopez rejected § 922(q) in part because it did not follow Bass:

Unlike the statute in Bass, § 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.

Lopez, 514 U.S. at 562, 115 S.Ct. 1624;  see also United States v. Morrison, 529 U.S. 598, 613, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (holding that the civil remedies in 42 U.S.C. § 13981 were beyond Congress's power under the Commerce Clause because, inter alia, “[l]ike the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce”).

 Contrary to the prior version of § 922(q) discussed in Lopez, the current version includes a “requirement that [the defendant's] possession of the firearm have a[ ] concrete tie to interstate commerce.”  Lopez, 514 U.S. at 567, 115 S.Ct. 1624.   This new version of § 922(q) resolves the shortcomings that the Lopez Court found in the prior version of this statute because it incorporates a “jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.”  Id. at 561, 115 S.Ct. 1624.   This jurisdictional element saves § 922(q) from the infirmity that defeated it in Lopez.   See Morrison, 529 U.S. at 612, 120 S.Ct. 1740 (“Such a jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce.”);  Scarborough, 431 U.S. at 575, 97 S.Ct. 1963 (finding, with regard to an unrelated statute, that Congress need only require “the minimal nexus that the firearm have been, at some time, in interstate commerce” for the statute to be within Congress's Commerce Clause power).

This holding follows circuit precedent on a closely related statute, 18 U.S.C. § 922(g).  See United States v. Davis, 242 F.3d 1162 (9th Cir.2001) (per curiam);  United States v. Jones, 231 F.3d 508 (9th Cir.2000);  United States v. Polanco, 93 F.3d 555 (9th Cir.1996);  United States v. Hanna, 55 F.3d 1456 (9th Cir.1995).  Section 922(g) prohibits several categories of persons from possessing a firearm “in or affecting interstate commerce” and from receiving a firearm that has been “shipped or transported in interstate or foreign commerce.”  18 U.S.C. § 922(g).  In each of the cases to consider the issue, we have found that the jurisdictional element saves § 922 because it “insures, on a case-by-case basis, that a defendant's actions implicate interstate commerce to a constitutionally adequate degree.”  Polanco, 93 F.3d at 563;  see also Davis, 242 F.3d at 1162-63;  Jones, 231 F.3d at 514-15;  Hanna, 55 F.3d at 1462.

The Eighth Circuit reached the same conclusion regarding § 922(g), and relied upon it to uphold the constitutionality of the amended § 922(q).  United States v. Danks, 221 F.3d 1037, 1038-39 (8th Cir.1999) (per curiam) (citing United States v. Shelton, 66 F.3d 991, 992 (8th Cir.1995) (per curiam)).   The Eighth Circuit concluded that because “section 922(q) contains language that ensures, on a case-by-case basis, that the firearm in question affects interstate commerce ․ the amended Act is a constitutional exercise of Congress's Commerce Clause power.”  Danks, 221 F.3d at 1039.

We agree with the Eighth Circuit's decision in Danks, and follow our own precedent regarding § 922(g), in similarly resolving this issue.   Dorsey's motion to dismiss Count Three of the indictment on the ground that 18 U.S.C. § 922(q) is not a valid exercise of congressional power under the Commerce Clause was properly denied.

 

[mons meg]

Mons meg, you ask what logic SCOTUS could use to uphold the new law. I direct you to the 2005 case of United States v Dorsey, where a federal appellate court, after a fairly in depth review, ruled the minor changes made to the law were indeed sufficient to alleviate the concerns of the Lopez decision, and affirmed Dorsey's conviction. A liberal leaning SCOTUS could easily use the same logic the court used in the Dorsey case. If you have not already done so, read up on Wickard_v_Filburn an old case where SCOTUS ruled a person growing and consuming wheat entirely on their own property was effecting interstate commerce by not entering in interstate commerce. I would also like to point out that there is no federal law against a felon possessing a gun, there is a federal law against a felon possessing a gun effecting interstate commerce (sound familiar)? I read a federal case a few days ago, where a felon was convicted of possessing a firearm, and he argued he was not effecting interestate commerce because the gun had been in his family for 30+ years and had never left the state during that time. The court ruled it did not matter, and convicted him. A felon possessing a gun in their home does not effect interstate commerce any more than an otherwise law-abiding person possessing a gun within 1000 feet of a school. If SCOTUS were to strike Fed GFSZA again, they would also have to strike the felon-in-possession law, and countless (if not all) other federal criminal statutes.

The SCOTUS doesn't "have" to strike all laws that could be construed as relevant to a particular decision. In fact, they almost never work that way from what I have read. When Heller v DC was decided, they didn't strike down the felon in possession laws, or any other federal gun laws, they specifically left many questions open and tailored their decision to the question at hand. I don't deny that a more liberal Court could certainly throw out all their own precedents and rule how they pleased, but I highly doubt they would do that. Even the liberal Justices are enamored of what came before. Clarence Thomas is the most likely to toss a precedent if he feels it still wasn't right, which would work in our favor it would seem to me.

I did spend some time reading through Rehnquist's decision, and it still hinges in the most part on the broader question of whether there is any limit to the Commerce Clause. Here's the section where he references Bass:

Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. 3 Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995) , 13] commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

Second, 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce. For example, in United States v. Bass, 404 U.S. 336 (1971), the Court interpreted former 18 U.S.C. 1202(a), which made it a crime for a felon to "receiv[e], posses, or transpor[t] in commerce or affecting commerce . . . any firearm." 404 U.S., at 337 . The Court interpreted the possession component of 1202(a) to require an additional nexus to interstate commerce both because the statute was ambiguous and because "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance." Id., at 349. The Bass Court set aside the conviction because although the Government had demonstrated that Bass had possessed a firearm, it had failed "to show the requisite nexus with interstate commerceId., at 347. The Court thus interpreted the statute to reserve the constitutional question whether Congress could regulate, without more, the "mere possession" of firearms. See id., at 339, n. 4; see also United States v. Five Gambling Devices, 346 U.S. 441, 448 (1953) (plurality opinion) ("The principle is old and deeply imbedded in our jurisprudence that this Court will construe a statute in a manner that requires decision of serious constitutional questions only if the statutory language leaves no reasonable alternative"). Unlike the statute in Bass, 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce. ."

I think what might be argued here is the definition of an "express jurisdictional element". Merely stating "which has traveled in interstate commerce and affects it because we said so" doesn't require the SCOTUS to take Congress' word for it. They didn't take their word for it in Lopez, why should they change their mind now?

I suppose what this means is this makes me more optimistic that a future SCOTUS would strike down the "new" GFSZA on the same merits as the old one, assuming the Court kept the same general philosophical makeup. In the future, 5 "liberal" justices could certainly do a lot of damage, but that's a much bigger problem than just this question of school zones.

PS: I am already familiar with Wickard, which I consider the legal equivalent of "the day the music died".