California Infringement of Second Amendment can be Overcome

By Dean WeingartenCalifornia Not Legal XD

Dean Weingarten
Dean Weingarten

Arizona – -(Ammoland.com)- 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

About Dean Weingarten;

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

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    Gerald GrzybowskifreezeB.ZerkerDaveGene Ralno Recent comment authors
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    Gerald Grzybowski
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    Gerald Grzybowski

    Manufacturerservice of fire arms and ammo, please continue to sell your products in California make whatever changes you must but keep providing Californians with your products. If you quit, Brown wins and other states will follow and we will lose our rights under the 2nd ammendment. Thank you for your continued service.

    freeze
    Guest
    freeze

    It’s amazing to me that one man can sign something into law and they say that the people decide?…It’s the same as these polls on guns that even the republicans, which I am, post, saying the American people want background checks or any other poll regarding guns. I’m in the gun community and know many people in many states and we all look at and speak to each other saying “Did you take that poll ?’ and the answer is “NO and me neither, I didn’t take that poll……And they call this a representation of the people? This is all… Read more »

    B.Zerker
    Guest
    B.Zerker

    I just heard the that Gov. Sh*t brindle… uh, er,… Brown signed the mag. ban and criminalized their possession. This will be easy to fix because it’s a direct violation of Article I, Sec. 9, Clause 3. “No Bill of Attainder or ex post facto Law shall be passed.”

    Dave
    Guest
    Dave

    Why is it that one of my pro gun comments is not being posted? There was nothing derogatory written in it. Do not waste your time writing a comment. on this thread.

    Dave
    Guest
    Dave

    One solution on this anti gun garbage could be for all firearms manufacturers, ammo manufacturers, firearm accessory manufacturers to cease selling their wares in all anti gun states. The end result would be either those states loosen their anti gun stance to the point that if you use a weapon to commit a crime you will be dealt with, or there will me a mass exodus of law abiding gun owners leaving those states, causing a whole lot of businesses to go elsewhere.

    Dave
    Guest
    Dave

    In my humble opinion I think all firearms manufacturers and companies that manufacture ammo and accessories should cease selling their merchandise to anti gun states until they become friendlier towards gun ownership. After all they are anti gun, so why sell in those states. One of two things will happen. the state will loosen its gun control laws or they will witness a mass exodus of gun owners leaving the state.

    Gene Ralno
    Guest
    Gene Ralno

    More California poppycock. They already dictate allowable colors for bug screens. And they dictate what you carry your groceries in. And whether a fire in your fireplace is allowable. If you need a piano on the head to know this is a bad place to live, this is it. Don’t screw it up. Hide your guns or secret them out. Move when you can. The worm will turn.

    B.Zerker
    Guest
    B.Zerker

    Article VI, Clause 2, states that guarantees provided by the U.S. Constitution CANNOT be subverted by ANY inferior States’ or Federal statutes and regulations. Furthermore, Marbury v. Madison: 5 US 137, provides that any part of an inferior “law” that encroaches on a right secured by the U.S. Constitution makes that entire statute, regulation, etc. a “fiction of law” and therefore null and void. This is how we attack CA, NY, CT, etc. on their unconstitutional gun laws. I guess someone’s gonna have get busted to get this through the appellate process to the SCOTUS for remedy. Or, if we… Read more »

    Dave
    Guest
    Dave

    The major problem with SCOTU is they can pic and choose what cases they want to see. otherwise this whole thing with the 2A would have been resolved back when they were asked to decide on the meaning of the 2A, they declined to take the case. To some degree, SCOTUS is worthless.

    B.Zerker
    Guest
    B.Zerker

    I agree Dave, but the Heller decision declared 2A a fundamental right. That is the most important part of that ruling and that’s where Title 18, USC, Sec 242 can be used against them. By not hearing a case that deals directly with a regulations that infringe on a fundamental right, those Justices that refuse to hear that case so that the court has the opportunity to strike down an unconstitutional regulation, are guilty of the federal felony of depriving us of a secured right. Article III, Sec. 1 of the Constitution directs that: “The Judges, both of the supreme… Read more »

    DaveW
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    DaveW

    Here in California, County Sheriffs in many rural counties (which cover approximately 94% of the state land mass) have openly stated that they will not enforce violations of the 2nd Amendment. A number of law enforcement agencies and associations have come out against gun controls like Newsom’s initiative. IF Gov Brown signs the present glut of gun control bills into law, I expect the California will follow CT and NY with Civil Disobedience. Civil Disobedience is already active here. LA, and other communities passed the “high capacity” bans, and, to date, there is no evidence that the masses have turned… Read more »

    Witold Pilecki
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    Witold Pilecki

    When you’re all finally tired of screwing around with writing letters to the editor, contacting your representatives, and ballot boxes, you need to turn to The Armed Civil Disobedience of Non-Compliance. Sacramento will be too scared shitless to do ANYTHING about it (just like Hartford and Albany already are) . All of their unconstitutional/intolerable acts have been rendered NULL & VOID here in Kommiecticut and NY. Their bluster about “aggressive enforcement” has sounded like crickets. The plan is simple….as long as we are left alone, no one dies

    DEFY-DECEIVE-RESIST-EVADE-SMUGGLE-DEFEND

    The next move belongs to the tyrants.