color of law
Accomplished Advocate
Of course if you are a Second Amendment Foundation member you can already carry in Post Offices. See post 59 above.
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Open Carrying on Postal Property
- Thread starter color of law
- Start date
Of course if you are a Second Amendment Foundation member you can already carry in Post Offices. See post 59 above.
user
Accomplished Advocate
My property law professor used to yell "Streets and alleys! Streets and alleys!" to remind us that the English language doesn't have to be in the code - there is no statute in Virginia defining either street or alley, but everyone knows what they are. Seems to me that "federal installation" could be a subset or synonym for "federal facility". I'd be embarrassed to argue that it is not.
user
Accomplished Advocate
Anyone here ever heard of the "unconstitutional conditions doctrine"? In theory, you can't be required to waive Constitutional rights as a condition of the use of the same facilities everyone else may use, e.g., post offices, highway "welcome centers", government offices, etc.
Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668 (1996)
Koontz v. St. Johns River Water Management Dist., 570 U.S. ___ 111447 (2013)
Simona Grossi, The Waiver of Constitutional Rights, 60 Hou. L. Rev. 1021 (2023).
Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668 (1996)
Koontz v. St. Johns River Water Management Dist., 570 U.S. ___ 111447 (2013)
Simona Grossi, The Waiver of Constitutional Rights, 60 Hou. L. Rev. 1021 (2023).
KBCraig
Regular Member
18 USC 930 (g) (1) helpfully tells us exactly what a "federal facility" is for the purposes of § 930:
(g)As used in this section:
(1)The term “Federal facility” means a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties.
"Federal installation" could not be twisted to meet that definition.
user
Accomplished Advocate
All federal facilities are federal installations; not all federal installations are federal facilities for the purpose of that statute. If you don't know what "federal" means, or what "installation" means, perhaps you might consider enrolling in an "English as a second language" class.
user
Accomplished Advocate
Here's my favorite argument, never used as near as I can tell:
The Second Amendment to the Constitution is just that, an amendment. It is not simply another clause tacked on for good measure. The function of an amendment is to amend, to improve by change, the entire document to which it applies. The Bill of Rights changes each and every clause in the original Constitution that is inconsistent with any part of any of its amendments.
For example, 18 USC §930 depends on the Interstate Commerce clause. The original version lacked any authority, and was struck down as ultra vires. Congress added a statement of authority resting on the Interstate Commerce clause. The Court found that to be an adequate basis. What the Court did not consider is that the Bill of Rights amended the Interstate Commerce clause. So, in any case in which that clause be inconsistent with any part of the Bill of Rights, it cannot be used as authority for any statute. As if U.S. Con. Art. 1, § 8 said, "... To regulate commerce with foreign nations, and among the several states, and with the Indian Tribes; except where such regulation infringe upon the right of the people to keep and bear arms, practice their religion, print newspapers, etc."
On that basis, I submit that 18 USC §930 is unconstitutional, regardless of its reliance on the Interstate Commerce clause. Congress lacks the power to regulate firearms moving across state lines, much less in solely intrastate transactions on the theory that affecting interstate commerce is the same as engaging in interstate commerce. And, by the way, the holding in Wickard v. Filburn, 317 U.S. 111, which established that "principle", was that a man's failure to engage in interstate commerce constituted engaging in interstate commerce because his subsistence farming "affected" interstate commerce because he wasn't using any store-bought wheat. I find that whole theory totally absurd.
The Second Amendment to the Constitution is just that, an amendment. It is not simply another clause tacked on for good measure. The function of an amendment is to amend, to improve by change, the entire document to which it applies. The Bill of Rights changes each and every clause in the original Constitution that is inconsistent with any part of any of its amendments.
For example, 18 USC §930 depends on the Interstate Commerce clause. The original version lacked any authority, and was struck down as ultra vires. Congress added a statement of authority resting on the Interstate Commerce clause. The Court found that to be an adequate basis. What the Court did not consider is that the Bill of Rights amended the Interstate Commerce clause. So, in any case in which that clause be inconsistent with any part of the Bill of Rights, it cannot be used as authority for any statute. As if U.S. Con. Art. 1, § 8 said, "... To regulate commerce with foreign nations, and among the several states, and with the Indian Tribes; except where such regulation infringe upon the right of the people to keep and bear arms, practice their religion, print newspapers, etc."
On that basis, I submit that 18 USC §930 is unconstitutional, regardless of its reliance on the Interstate Commerce clause. Congress lacks the power to regulate firearms moving across state lines, much less in solely intrastate transactions on the theory that affecting interstate commerce is the same as engaging in interstate commerce. And, by the way, the holding in Wickard v. Filburn, 317 U.S. 111, which established that "principle", was that a man's failure to engage in interstate commerce constituted engaging in interstate commerce because his subsistence farming "affected" interstate commerce because he wasn't using any store-bought wheat. I find that whole theory totally absurd.
color of law
Accomplished Advocate
user, I need you to clarify your above statement. "For example, 18 USC §930 depends on the Interstate Commerce clause."
In effect, you are saying that since 930 fall within Chapter 44 of Title 18 and Chapter 44 is based on the commerce clause under the constitution it is ultra vires. Meaning "beyond the powers" of congress because the Second Amendment removed from their jurisdiction.
If that is the case, I agree. And basically Clarence Thomas agrees. See Thomas concurring opinion in United States v. Hemani, 608 U.S. ___ (2026) citing his dissenting opining in Alderman v. United Stated.
Also, See Miranda v. Arizona, 384 U.S. 436 (1966) "Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them."
In effect, you are saying that since 930 fall within Chapter 44 of Title 18 and Chapter 44 is based on the commerce clause under the constitution it is ultra vires. Meaning "beyond the powers" of congress because the Second Amendment removed from their jurisdiction.
If that is the case, I agree. And basically Clarence Thomas agrees. See Thomas concurring opinion in United States v. Hemani, 608 U.S. ___ (2026) citing his dissenting opining in Alderman v. United Stated.
Also, See Miranda v. Arizona, 384 U.S. 436 (1966) "Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them."
user
Accomplished Advocate
Yes, that's what I'm saying. The case that held that Congress acted without authority is United States v. Lopez, 514 U.S. 549 (1995. There's a good Wikipedia article at https://en.wikipedia.org/wiki/United_States_v._Lopez. The last section describes how Congress revised the statute.
Here's another problem, as I see it: how can the commerce clause allow regulation of objects which may have, at one time, been "in or affecting" interstate commerce, but which have since ceased to be so? I.e., how can a gun, privately owned by an otherwise law abiding citizen, residing in a single state, be considered to continue to be "in or affecting" interstate commerce, long after it's been sold and stashed in a dresser drawer for years?
Here's another problem, as I see it: how can the commerce clause allow regulation of objects which may have, at one time, been "in or affecting" interstate commerce, but which have since ceased to be so? I.e., how can a gun, privately owned by an otherwise law abiding citizen, residing in a single state, be considered to continue to be "in or affecting" interstate commerce, long after it's been sold and stashed in a dresser drawer for years?
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color of law
Accomplished Advocate
I went back and checked my notes on Lopez. And lo and behold I found I had written, back in 2013, a three page analysis of Lopez citing National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).
In other words, the commerce clause cannot be used to get around the Bill of Rights.
user
Accomplished Advocate
Terrific case opinion, thanks.
user
Accomplished Advocate
Apropos of an earlier observation, I thought this was interesting:
"The phrase 'active in the market' cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity ... Our precedents recognize Congress’s power to regulate 'class[es] of activities,' ... not classes of individuals, apart from any activity in which they are engaged ...
...
The proposition that Congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent. We have said that Congress can anticipate the effects on commerce of an economic activity. ... But we have never permitted Congress to anticipate that activity itself in order to regulate individuals not currently engaged in commerce. Each one of our cases, ... involved preexisting economic activity. ..."
-- National Federation of Independent Business v. Sebelius
The owner of a firearm could have acquired same by gift or inheritance, having no involvement with interstate commerce at all; but even having purchased it (clearly an act involving interstate commerce), once that act is completed, and he is no longer "currently engaged in commerce". The cases cited in Sebelius all have to do with pre-existing involvement that was continuous in nature. As far as I know, there is no precedent regarding involvement in one pre-existing but discrete act.
Thus, again, I argue that Congress lacks the requisite authority to regulate firearms ownership by individuals who are not continuously engaged in "affecting" interstate commerce, such as FFL's.
"The phrase 'active in the market' cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity ... Our precedents recognize Congress’s power to regulate 'class[es] of activities,' ... not classes of individuals, apart from any activity in which they are engaged ...
...
The proposition that Congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent. We have said that Congress can anticipate the effects on commerce of an economic activity. ... But we have never permitted Congress to anticipate that activity itself in order to regulate individuals not currently engaged in commerce. Each one of our cases, ... involved preexisting economic activity. ..."
-- National Federation of Independent Business v. Sebelius
The owner of a firearm could have acquired same by gift or inheritance, having no involvement with interstate commerce at all; but even having purchased it (clearly an act involving interstate commerce), once that act is completed, and he is no longer "currently engaged in commerce". The cases cited in Sebelius all have to do with pre-existing involvement that was continuous in nature. As far as I know, there is no precedent regarding involvement in one pre-existing but discrete act.
Thus, again, I argue that Congress lacks the requisite authority to regulate firearms ownership by individuals who are not continuously engaged in "affecting" interstate commerce, such as FFL's.
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color of law
Accomplished Advocate
To expand on your "argu[ment] that Congress lacks the requisite authority to regulate firearms ownership by individuals who are not continuously engaged in "affecting" interstate commerce, such as FFL's.
It actually is not an argument, it has been decided. The Second Amendment encompasses the right to acquire arms. The Supreme Court has affirmed that the right to possess arms for self-defense would be meaningless without the ability to acquire them. In subsequent rulings, such as Ezell v. City of Chicago, 7th Circuit (2011), lower courts and legal scholars have noted that the right to "keep" arms necessarily implies a corresponding right to acquire them, as there is no way to keep something you cannot obtain.
See
"Heller held that the right to “keep” arms refers to “possessing arms.” Heller, 554 U.S. at 583. The right to possess arms necessarily includes the right to acquire them (through purchase, self-manufacture, gift, inheritance, or otherwise) because no one is born with firearms in hand."
Freedmen’s Bureau Act of 1866, §14, 14 Stat. 173, 176–77 (1866)
[T]he right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery.
It actually is not an argument, it has been decided. The Second Amendment encompasses the right to acquire arms. The Supreme Court has affirmed that the right to possess arms for self-defense would be meaningless without the ability to acquire them. In subsequent rulings, such as Ezell v. City of Chicago, 7th Circuit (2011), lower courts and legal scholars have noted that the right to "keep" arms necessarily implies a corresponding right to acquire them, as there is no way to keep something you cannot obtain.
See
"Heller held that the right to “keep” arms refers to “possessing arms.” Heller, 554 U.S. at 583. The right to possess arms necessarily includes the right to acquire them (through purchase, self-manufacture, gift, inheritance, or otherwise) because no one is born with firearms in hand."
Freedmen’s Bureau Act of 1866, §14, 14 Stat. 173, 176–77 (1866)
[T]he right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery.