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« Interview with plaintiffs in Westchester County case | Main | New AZ law in effect »

CalGuns, others, sue against Calif. ammunition law

Posted by David Hardy · 28 July 2010 07:57 PM

Complaint here, in pdf. The new California statute requires handgun ammunition to be sold face-to-face, with ID from the purchaser, and delivered at his address to himself and no one else.

Plaintiffs challenge this as violating the Federal Aviation Admin. Authorization Act of 1994, which pre-empted State regulation of interstate carriers' prices, routes, and services. The Federal standards do not require packages of ammunition to be marked as such, let alone impose the California requirements. Plaintiffs argue that the California statute would require carriers to determine which packages contain ammunition, and to deliver in accord with its terms -- determine if the recipient is exempt, and if not, deliver only to him and record his ID.

6 Comments | Leave a comment

dagamore | July 29, 2010 1:06 AM | Reply

I like this tact, hopefully it will work, and then we could remove more un-just laws like this.

rspock | July 29, 2010 7:50 AM | Reply

I love it! Especially in light of the recent ruling on SB1070.

jnheath | July 29, 2010 9:02 AM | Reply


The grandaddy of all preemption arguments is a militia-law case from 1820. In that case SCOTUS held the states could enforce the federal law, but the state law itself was preempted.

The decision (Houston v. Moore) was cited as recently as 1990 for a similar proposition, that the state courts could enforce federal law -- which is what Arizona was doing.

My argument, which the J. Stevens and the dissenters tried to dodge in a footnote, is that the states lack a reserved power to designate citizens as militia. Congress can always preempt a state militia law, because the militia powers were delegated specifically in order to have a uniform plan of national defense. So contrary to the Collectivist theory, the states can never bring citizens under the protection of the 2nd Am by way of state law.

Jim D. | July 29, 2010 12:14 PM | Reply

So how does this work? I can see that new laws are low-hanging fruit, but there are many ill-founded decisions that should be subject to rehearing.

Kasler v. Lockyer (in re the California Assault Weapons Ban) rested on the principle that the 2nd didn't apply to California because the 2nd hadn't been incorporated and therefore RKBA was subject to the "rational basis" test.

Does Heller/McDonald provide enough to vacate the decision? What more is needed? Does the fear of a negative decision outweigh the obvious advantages in the minds of conservative thinking NRA lawyers?

Bill Wiese | July 29, 2010 12:22 PM | Reply

Folks...

There are now THREE lawsuits attacking AB962:
- the Calguns Foundation one described here;
- the CRPA Foundation/NRA-ILA suit in state court
- State Ammunition v. Lindley (by Chaffin Law firm)

Something's gotta give ;)

Bill Wiese
San Jose CA

Gene Hoffman | July 29, 2010 5:12 PM | Reply

The handgun ammunition shipping ban can be tossed based on pre-emption. 2A arguments are the backup strategy here.

-Gene

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