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OK2A Releases July 25, 2013 ATF Letter Regarding Oklahoma Carry Permits and Fed GFSZA
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<blockquote data-quote="Cougar" data-source="post: 2392290" data-attributes="member: 3179"><p>Following is the relevant part of the United States v Dorsey decision, I will <strong>bold</strong> 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.</p><p></p><p>(Case quoted below)</p><p></p><p></p><p>III</p><p></p><p>&#8195;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. §&#8194;922(q)(2)(A), is unconstitutional. &#8194; 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.” &#8194;18 U.S.C. §&#8194;922(q)(2)(A). &#8194; Dorsey argues that this statute exceeds Congress's power under Art. I, §&#8194;8, cl. 3 of the United States Constitution (“the Commerce Clause”). &#8194; We review this constitutional question de novo. &#8194; United States v. McCoy, 323 F.3d 1114, 1117 (9th Cir.2003).</p><p></p><p>In 1995, the Supreme Court found a prior version of §&#8194;922(q), also known as the “Gun-Free School Zones Act,” unconstitutional. &#8194;United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); &#8201;see Pub.L. No. 101-647, Title XVII, §&#8194;1702(b)(1), 104 Stat. 4789, 4844 (1990). &#8194; 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.” &#8194;514 U.S. at 551, 115 S.Ct. 1624. &#8194; The question is whether the addition of the jurisdictional element, which requires that the firearm “has moved in or [&#8201;] otherwise affects interstate or foreign commerce” repairs the constitutional shortfalls announced in Lopez. &#8194; See Pub.L. No. 104-208, Div. A, Title I, §&#8194;101(f), 110 Stat. 3009-369, 3009-372 (1996) (amending the Gun-Free School Zones Act of 1990).</p><p></p><p><strong>Incorporating a jurisdictional element into the offense has traditionally saved statutes from Commerce Clause challenges.</strong> &#8194; See e.g., United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). &#8194; 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 &#8228; any firearm” applied to “possesses” and “receives” as well as “transports.” &#8194;Id. at 337, 339, 92 S.Ct. 515. &#8194; 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. &#8194;Id. at 349-50, 92 S.Ct. 515. &#8194; 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; &#8201;the nexus did not need to be contemporaneous with the offense. &#8194;Scarborough v. United States, 431 U.S. 563, 575-77, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977).</p><p></p><p><strong>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. &#8194; In fact, Lopez rejected §&#8194;922(q) in part because it did not follow Bass:</strong></p><p></p><p>Unlike the statute in Bass, §&#8194;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.</p><p></p><p>Lopez, 514 U.S. at 562, 115 S.Ct. 1624; &#8201;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. §&#8194;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, §&#8194;13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress'<s> power to regulate interstate commerce”).</s></p><p><s></s></p><p><s>&#8195;Contrary to the prior version of §&#8194;922(q) discussed in Lopez, the current version includes a “requirement that [the defendant's] possession of the firearm have a[&#8201;] concrete tie to interstate commerce.” &#8194;Lopez, 514 U.S. at 567, 115 S.Ct. 1624. &#8194; <strong>This new version of §&#8194;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.”</strong> &#8194;Id. at 561, 115 S.Ct. 1624. &#8194; This jurisdictional element saves §&#8194;922(q) from the infirmity that defeated it in Lopez. &#8194; 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.”); &#8201;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).</s></p><p><s></s></p><p><s>This holding follows circuit precedent on a closely related statute, 18 U.S.C. §&#8194;922(g). &#8194;See United States v. Davis, 242 F.3d 1162 (9th Cir.2001) (per curiam); &#8201;United States v. Jones, 231 F.3d 508 (9th Cir.2000); &#8201;United States v. Polanco, 93 F.3d 555 (9th Cir.1996); &#8201;United States v. Hanna, 55 F.3d 1456 (9th Cir.1995). &#8194;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.” &#8194;18 U.S.C. §&#8194;922(g). &#8194;In each of the cases to consider the issue, we have found that the jurisdictional element saves §&#8194;922 because it “insures, on a case-by-case basis, that a defendant's actions implicate interstate commerce to a constitutionally adequate degree.” &#8194;Polanco, 93 F.3d at 563; &#8201;see also Davis, 242 F.3d at 1162-63; &#8201;Jones, 231 F.3d at 514-15; &#8201;Hanna, 55 F.3d at 1462.</s></p><p><s></s></p><p><s>The Eighth Circuit reached the same conclusion regarding §&#8194;922(g), and relied upon it to uphold the constitutionality of the amended §&#8194;922(q). &#8194;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)). &#8194; 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 &#8228; the amended Act is a constitutional exercise of Congress's Commerce Clause power.” &#8194;Danks, 221 F.3d at 1039.</s></p><p><s></s></p><p><s>We agree with the Eighth Circuit's decision in Danks, and follow our own precedent regarding §&#8194;922(g), in similarly resolving this issue. &#8194; Dorsey's motion to dismiss Count Three of the indictment on the ground that 18 U.S.C. §&#8194;922(q) is not a valid exercise of congressional power under the Commerce Clause was properly denied.</s></p></blockquote><p></p>
[QUOTE="Cougar, post: 2392290, member: 3179"] Following is the relevant part of the United States v Dorsey decision, I will [B]bold[/B] 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). [B]Incorporating a jurisdictional element into the offense has traditionally saved statutes from Commerce Clause challenges.[/B]   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). [B]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:[/B] 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'[s] 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.   [B]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.”[/B]  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.[/s] [/QUOTE]
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OK2A Releases July 25, 2013 ATF Letter Regarding Oklahoma Carry Permits and Fed GFSZA
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