June 06, 2005

Raich and Stewart

Cross-posted at Stop the Bleating.

The Supreme Court's decision in Raich is the hot topic in the blawgosphere right now.  Far smarter and better-informed commentators than I are discussing it, so I won't bother offering my own two cents on its merits.  Instead, I'd like to ask a question about its effects, which I hope one of the aforementioned commentators will see fit to address; I sincerely don't know the answer.  My question is what effect Raich will have on cases, currently awaiting decisions on petitions for certiorari, that likely would have come out differently had Raich been decided earlier; for example, United States v. Stewart.

If Stewart doesn't ring a bell, it's the Ninth Circuit case (.pdf) that held the National Firearms Act, as applied to homemade machine guns assembled from parts that had moved in interstate commerce, exceeded Congress' Commerce Clause power.  The government is currently awaiting a decision on its petition for cert. (.pdf)  I've always expected the Supremes to agree to hear Stewart, because I find it hard to imagine that they would tolerate a circuit split on substantive criminal law like the NFA; it seems like a recipe for harsh results.

Raich does not seem to bode well for Mr. Stewart's position on the merits.  But that's assuming that a court actually applies Raich to Stewart -- and only the Supreme Court has the power to do that now: The window for rehearing is closed.  So I think if the Court doesn't hear Stewart it will stand as the law of the Ninth Circuit for the immediate future, despite Raich.  That being the case, will the Court be especially inclined to grant cert. and summarily reverse in Stewart (and any similar cases)?***  What happens if it doesn't?  Is there some procedural device that I'm not aware of for dealing with these sorts of situations?  Or does do the circuits simply have to deal with those sorts of problems at the next opportunity?


***I tend to think that today's decision in Raich will make a grant of cert. in Stewart less imperative: Now, at least, any split over the NFA likely will be corrected the next time the Ninth Circuit gets a chance to visit the issue.  (And I don't doubt that the Supremes would like to avoid Stewart.  It contains a Second Amendment argument. If they rejected the Commerce Clause argument -- as I very much expect they would -- I think they'd have to reach that argument.  And an intellectually honest, originalist, Second Amendment-based result in Stewart might be very uncomfortable for the Court.  It would be quite a conundrum for the Court.)  But that would still create potential for a very harsh result vis-a-vis the defendant in the next case. 

Some might pooh-pooh this concern; anyone who manufactures a machine gun will know he's violating state law, so how unfair would it really be for such a person to be prosecuted under a similar federal law, even one that previously had been ruled unconstitutional?  Au contraire.  No Idaho statute appears to prohibit possession or manufacture of machine guns.  And Idaho is in the Ninth Circuit.  (This may be true of other states in the Ninth Circuit.  I haven't checked.  Idaho seemed an obvious candidate, so I started there.)  Therefore, in light of Stewart, there seemingly is no legal barrier to an Idahoan manufacturing and subsequently possessing a machine gun for his own use. 

Nor would such a person necessarily have any evil intent, so that we could at least console ourselves with the knowledge that he was a bad guy and probably deserved to be punished.  There are perfectly legitimate reasons that someone might want to manufacture a machine gun for his personal collection from a parts kit, not the least of them being radically lower cost as compared to a registered gun.

UPDATE: I'm not the first pig at this trough.  See Jed and the inimitable Heartless Libertarian (both back in November), and Heartless Libertarian again, today.

Posted by Matt Rustler at June 6, 2005 11:09 PM

This sounds like a great opportunity to nullify any state gun law that is more restrictive than the federal gun laws:

To quote the June 7, 2005 L.A. Times article…

“The Constitution makes the laws of the United States the ’supreme law of the land,’ and ‘if there is any conflict between federal and state law, federal law shall prevail,’ Justice John Paul Stevens said for the court.”

Posted by: Me at June 7, 2005 11:44 PM


Unfortunately that's not how it works. "Conflict" does not mean "difference." There is no inherent conflict between a state law prohibiting, for example, concealed carry, and federal law standing silent on the issue. The state enforces its law, and the federal government enforces federal law. There is a conflict when the two laws cannot possibly coexist, not merely when they're different. That a state may punish conduct that the federal government does not is entirely consistent with the Framers' vision of the relationship between the federal and state governments. (By the same token, the states are not required to punish behavior that the federal government does. E.g., my example of Idaho, which has no state law specifically regulating possession of machine guns, even though there is such a law at the federal level.)

The Constitution does impose some limits on state power; this is known as the doctrine of preemption. There are two kinds of preemption: Express and implied. Express limits include those provisions of the Bill of Rights that have been incorporated against the States by the 14th Amendment; e.g., states cannot pass laws that conflict with the First Amendment (although for a long time they could pass such laws). The Supremacy Clause is a form of preemption, but operates in fairly narrow circumstances. Implicit preemption can occur when a state law frustrates a federal purpose in exercising one of the powers granted to the federal government under the Constitution. It also can occur when the federal government has implicitly "occupied the field" with respect to a particular area of law that it has constitutional authority to regulate. Another form of implied preemption is the "dormant Commerce Clause" doctrine. State laws that impact interstate commerce -- for example, by discriminating against out-of-state goods -- can run afoul of Congress's power to regulate interstate commerce (which was given to Congress specifically to prevent economic warfare among the states). Many of the implied preemption doctrines are very closely related; e.g., the dormant Commerce Clause to me just seems to be a specific application of the "frustration of purpose" doctrine. And more than one of them may come into play in a particular case.

At any rate, the bottom line is that state laws that regulate possession, use, transfer, manufacture, etc., of firearms are not per se preempted by the federal government. I seem to recall that that argument has been tried a number of times in various courts, and has always failed. (If I recall correctly, the specific argument was that the feds had occupied the field.)

Posted by: Matt at June 8, 2005 07:39 AM
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