Firearmsregprof Digest, Vol 17, Issue 2 dc appeals case

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in looking at potential supreme court review, likely or not, in reality don’t the SLA and the reimbursement laws favor an in-state economic interest? and isn't the statutory burden imposed on commerce clearly excessive in relation to the putative local benefits? Pike, cited by the d.c. court, also said:  If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. (perhaps the d.c. court was crafty in leaving this out, both because it doesn’t help their decision, and because they surely are aware that Scalia & Rehnquist don’t favor this approach anyway) A case not cited is Kassel v. Cons.Freightways.  If safety justifications [by the state legislature] are not illusory, the court will not second guess legislative judgment about their importance in comparison with related burdens on interstate commerce. But the incantation of a purpose to promote the public health or safety does not insulate a state law from Commerce Clause attack. Regulations designed for that salutary purpose nevertheless may further the purpose so marginally, and interfere with commerce so substantially, as to be invalid.  with the dc court's implicit position as to federal versus states' rights in regulatory enactment, referable to the debate over supreme court jurisprudence regarding the commerce clause, one must not forget the broader picture: the nature of the lawful product in question. a fundamental right of firearm ownership is only as good as the ability to buy one. the appropriate level of scrutiny of the legislative policy determination might thus invoked. the effect of this tort exposure on manufacturers etc, inter alia, insurance, and thus price and ultimately availability, is immense.  but will the idea of a right to sell firearms resonate as sufficiently fundamental to impact the chosen level of scrutiny? (similarly so with respect to the due process inquiry below?)  doesn’t d.c.’s enactment not merely regulate, but discriminate entirely against firearms sales against those in other states acting lawfully in those other states? and whither privileges & immunities? finally, to avoid dormant commerce clause entirely, is national regulation in the offing to break the silence? and isn’t such to be feared?   moving from the commerce clause, with respect to the tort law itself: isn’t one requirement of classifying an activity/product ultra-hazardous or abnormally dangerous, that it be an infrequent occurrence on land or a product not in common usage, such as the public are not aware of the danger inherent in the product? yes, but there is a third kind of strict liability, one based upon legislative policy that a particular weapon has no legitimate societal purpose. Maryland did this judicially in Kelley regarding Saturday night specials. DC did it legislatively with SLA.   in the d.c. case we are not just talking about banning a type of firearm in the jurisdiction, but also penalizing an innocent actor for a firearm’s presence there in the hands of a criminal. shouldn't it have to be shown that the manufacturer etc. intended or directly caused that firearm to become present in d.c.?  if all that is required is that the firearm showed up there, however it showed up there, what of due process?  how far can strict liability be allowed to go when it has such significant extra-territorial effect?   regarding economic rights as substantive due process under the 14th amendment- right to earn livelihood and contract to do so without undue burden.  will the court look more at the ends of the legislation or the means? or both? namely, will it judge the goal versus liberty (or some other protected right), or evaluate the evidentiary basis for the policy proclamation (e.g. the bases alleged such as increase in homicides due to specified assault weapons; assault weapons abnormally dangerous compared to other weapons)? does making a manufacturer who is acting lawfully pay for homicides, or injuries, in d.c. rationally equate in a real and substantial manner?   concluding more facetiously, would the court, to apply more exacting scrutiny, stretch consideration of this regulation of erstwhile commercial transactions to invoke concerns over affect on firearms rights generally? how to do so when it has not yet incorporated the 2nd amendment into the 14th?   -------------------- Date: Fri, 22 Apr 2005 10:09:29 -0500 From: "Joseph E. Olson" <[EMAIL PROTECTED]> Subject: Fwd: DC lawsuit decision To: <firearmsregprof@lists.ucla.edu> Message-ID: <[EMAIL PROTECTED]> Content-Type: text/plain; charset=US-ASCII Reversed in part to allow further discovery on one count. http://www.dcappeals.gov/dccourts/appeals/pdf/03-CV-24+.PDF

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