IS THE SECOND AMENDMENT GUARANTEE ACT (SAGA) REALLY ALL IT IS CRACKED UP TO BE?

WITH MANY “CRACKS” IN THE SECOND AMENDMENT GUARANTEE ACT, IT GUARANTEES NOTHING CONCRETE.

This is a follow-up to our recent post on Congressman Chris Collins’ bill, titled the “Second Amendment Guarantee Act” (H.R. 3576) (“SAGA”).In our previous post we explained some major failings of Congressman Chris Collins’ bill as drafted. In our next post we will set down our own suggestions for a possible redraft of pertinent federal legislation that, in our humble opinion, will, we feel, more adequately accomplish Congressman Collins’ objective, and transcend it. Even so, we are mindful that drafting firearms legislation on the federal level—even with the best of intention and care—can invite unintended consequences. But, before we proceed with a suggested redraft of H.R. 3576, some explanation is in order—hence the need for this interim article. There are several problems with the Second Amendment Guarantee Act as drafted. The bill, in its present form, does not, in our estimate, accomplish the immediate goal the bill’s sponsors hope, trust, and pray it would accomplish, namely the toppling of New York’s Safe Act, and, by extension, the toppling of similar restrictive, draconian firearms’ legislation, such as Maryland’s Firearm Safety Act—an Act the United States Court of Appeals for the Fourth Circuit gave its “good housekeeping seal of approval” on in the disastrous Kolbe decision ((Kolbe vs. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)). In Kolbe Plaintiffs challenged the constitutionality of Maryland’s “assault weapon” ban and “LCM” ban. In revisiting the three Judge panel's decision in that case, the U.S. Court of Appeals for the Fourth Circuit--hearing the case “en banc”--held that Maryland’s Firearm Safety Act ban on "assault weapons" and "LCMs" did not infringe the Second Amendment. In so holding, the Fourth Circuit Court of Appeals ignored U.S. Supreme Court precedent, essentially overriding and shredding the U.S. Supreme Court Majority Opinions in the seminal Second Amendment Heller case (554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008)) and in the subsequent seminal Second Amendment McDonald case (McDonald v. Chicago, 561 U. S. 742, 780, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010)). Hopefully, Kolbe will be taken up by the U.S. Supreme Court and overturned by the high Court. If so, that will, in our estimate, accomplish more—and accomplish more directly and categorically and unequivocally—to defeat Maryland’s Firearm Safety Act and to defeat similar legislation, like New York’s notorious “Safe Act”—than Congressman Collins’ bill will do on the Legislative front, even if the Congressman’s bill were, in its present form, enacted. But, we do not see Collins’ Second Amendment Guarantee Act, even in the language of the present, weak and equivocal form ever moving out of Committee to full House Debate, and eventual House vote, absent concerted effort on the part of the public urging House Republicans to move the bill along.Our previous comments concerning what we see as failings in the Second Amendment Guarantee Act as presently drafted are not meant to cast aspersions on the bill or on the bill’s sponsors. Quite the contrary, we commend Congressman Collins for his efforts, commend those who drafted the bill, and we commend those U.S. Representatives who signed on to the bill—assuming those U.S. Representatives who signed on to the bill are truly serious in pressing forward with their efforts to strengthen the Second Amendment on the federal level.But, we are faced with two disturbing, incontrovertible realities that must be recognized and dealt with.

FIRST:

Notwithstanding his goal in introducing his bill (H.R. 3576) in the House—overturning New York’s Safe Act—we wonder whether Congressman Collins and the other sponsors of the bill have the heart to see their actions through to completion. If introduction of the bill is mere grandstanding to serve a political end but nothing more—namely to illustrate that Congressman Collins and others who signed on as sponsors to the bill are strong supporters of the Second Amendment—the introduction of a bill that goes nowhere, and is not really intended to go anywhere, does not serve the interests of the American people but, rather, serves only the interests of Legislators themselves who seek to secure their political futures. Legislators must have the courage and strength and fortitude of their conviction to see their initial efforts through. We hope that Congressman Collins is one of those intrepid Legislators. If not, and if other Republican Legislators, as well, who added their names in support of the bill, demonstrate reluctance, rather than boldness in following through on their efforts, then the American public should rightly be circumspect--as we are circumspect--in applauding what may amount to, at most, half-hearted efforts to “look good” to a Legislator’s base. In matters involving our Bill of Rights, caution should be thrown to the winds.We would rather see temerity demonstrated here than timidity. We have already seen how numerous national handgun carry reciprocity bills are still stuck in Committee. But, why is that? Were the sponsors of those bills intent on seeing their actions through? If so, why has there been no action on those bills?Indeed, why have we heard nothing about the bills, apart from their introduction in Congress? Not one of those bills, to the extent we are aware, has moved even one step beyond the initial stage of Congressional introduction of the bill even though the most recent has been introduced in Congress a couple of months ago, and others have been introduced several months ago; and all of them languish in Committee.We see no House or Senate Committee action. We see no House or Senate debate. We see no amendment to any one of those bills. We see no House or Senate vote. We see nothing concrete beyond introduction of a bill. From what we can see and deduce from a disturbing inaction on the part of Congress is that no action on any one of these pro-Second Amendment bills is expected anytime soon, if ever. So, from this experience, we ask: Why should anyone expect Congressional movement on Congressman Collins’ bill? The question is rhetorical. For, no one should expect action on Congressman Collins’ bill, if past experience is our guide. There must exist, then, an urge to action, and that urge, or nudge, will have to come, it is apparent, from the outside—from the public.So, don’t expect House members to act on this bill. But, why is that? Why must the public urge Congress to action? Why can’t Legislators follow through on their actions? Apart from introduction of pro-Second Amendment bills, accompanied by muted Press Releases, nothing is ever accomplished. Of course, we cannot expect the mainstream media—a tool of powerful, ruthless, nefarious, internationalists who seek nothing less than destruction of our Second Amendment—to herald enactment of pro-Second Amendment bills. The mainstream media only urges action to weaken and dismember the Second Amendment, not to offer its support of it and to strengthen it. That being the case, those Republicans in Congress who do truly support a strengthened Second Amendment must work all the harder to see their initial efforts through to completion.

SECOND:

Even if the Second Amendment Guarantee Act were enacted, still, as drafted, the Act guarantees nothing, to our mind, that is concrete. The Act as drafted is extraordinarily brief, modifying one and only one Section of Title 18 of the U.S. Code. While brevity is preferable over length for length’s own sake, simplicity in construction is not a good thing if ambiguity, vagueness, and critical gaps in legal drafting exist.In this instance, H.R. 3576 is truncated, vague and ambiguous and therefore invites the antigun crowd to challenge it, or, simply, to ignore it. were the bill enacted, as restrictive State firearms legislation may claim the bill--as federal law--is too indefinite to be considered, from a legal perspective, inconsistent with State law. Thus, contrary to the assertions of Congressman Collins Press Release, the Second Amendment Guarantee Act, in its present form, would not, then, likely accomplish what Congressman Collins and the other sponsors of it believe it would accomplish. There is too much wiggle room in it. Apart from inviting a challenge by restrictive gun law States, there is nothing in Congressman Collins' bill that would legally prevent States from continuing to enforce their restrictive gun Statutes.

WHY THE SECOND AMENDMENT GUARANTEE ACT IS AN IMPERFECT BILL THAT LIKELY WOULD NOT ACCOMPLISH WHAT CONGRESSMAN COLLINS SAYS IT WOULD ACCOMPLISH WERE IT TO BE ENACTED

Apart from the reality that no Committee action on this bill is to be expected, we again emphasize that, even if, by some miracle, this bill made it out of Committee, passed the House and then moved to the Senate where it received a super majority of votes, leading to enactment, it is highly doubtful that the bill would, in its present form, operate as an automatic repeal of restrictive gun laws such New York’s Safe Act or Maryland’s Firearm Safety Act, or of any other draconian State restrictive firearms Act that openly, glaringly infringes on the right of the people to keep and bear arms.

HOW DOES CONGRESSMAN COLLINS’ BILL MODIFY EXISTING FEDERAL LAW?

The bill (H.R. 3576), as written, operates as a redraft of one and only one federal firearms’ Statute: A Statute that may be construed as a federal firearms’ preemption Statute—in a sense, an “anti-preemption” Statute, given the weak wording of it. The preemption Statute, Section 927 (Effect on State Law) of Chapter 44 (Firearms), of Title 18 (Crimes and Criminal Procedure) of the U.S. Code, as enacted, reads as follows:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Section 927 of Title 18 of the U.S. Code, as written, basically tells States that, on the matter of firearms, generally, States have a free hand to regulate the field unless there is a direct and positive conflict and the two cannot be reconciled or stand together. The operative words, here, are ‘unless,’ and ‘direct and positive conflict,’ and ‘the two cannot be reconciled or stand together.’Congressman Collins bill rewrites that Section to read:“A State or a political subdivision of a State may not impose any regulation, prohibition, or registration or licensing requirement with respect to the design, manufacture, importation, sale, transfer, possession, or marking of a rifle or shotgun that has moved in, or any such conduct that affects, interstate or foreign commerce, that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law. To the extent that a law of a State or political subdivision of a State, whether enacted before, on, or after the date of the enactment of this subsection, violates the preceding sentence, the law shall have no force or effect. For purposes of this subsection, the term ‘rifle or shotgun’ includes any part of a rifle or shotgun, any detachable magazine or ammunition feeding device, and any type of pistol grip or stock design.”This redraft of one Section of Title 18, namely, Section 927, is, in this instance, insufficient to defeat the Safe Act’s “assault weapons” ban, or to defeat “assault weapons” bans of any other State, because, among other things, there is nothing in federal law that talks about “assault weapons.” Pay particular attention to the words of the bill that read:“A State or a political subdivision of a State may not impose any regulation, prohibition, or registration or licensing requirement with respect to the design, manufacture, importation, sale, transfer, possession, or marking of a rifle or shotgun that has moved in, or any such conduct that affects, interstate or foreign commerce, that is more restrictive. . . with respect to such a rifle or shotgun . . . than is provided under Federal law.” The problem is that federal law is silent or essentially silent on the matter of regulation of any firearm other than those defined as machine guns, as ‘machine gun’ is mentioned and defined with particularity in the Internal Revenue Service Code [Title 26 of the U.S. Code] and which, in Title 18 of the U.S. Code [18 U.S.C. § 922(b)(4)]  sets forth, with particularity, the intention of Congress to regulate destructive devices, machine guns, and short-barreled rifles and shotguns: “[i]t shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver--to any person any destructive device, machinegun (as defined in section 5845 of the Internal Revenue Code of 1954 [1986] [26 USCS § 5845]), short-barreled shotgun, or short-barreled rifle, except as specifically authorized by the Attorney General consistent with public safety and necessity; . . .” So, then, by the very language of Congressman Collins’ bill, States such as New York would, arguably, remain free to regulate, through registration and transfer, all manner of firearms—rifles, shotguns, and handguns—apart from those clearly identified as and defined in the U.S. Code.Because federal law is essentially silent on the regulation of rifles, shotguns, and handguns, it does not follow, logically or legally, from the language of the proposed modification to Section 927 of Title 18 of the U.S. Code, that States are categorically prohibited from regulating any firearm other than machine guns, as defined in 26 USCS § 5845(b), short-barreled shotguns, short-barreled rifles, and destructive devices, as the expression, 'destructive device,' is defined in 26 USCS § 5845(f). Thus, if H.R. 3576 were enacted, NY Safe and other draconian State gun laws that operate to ban, within the State, weapons defined in State law as 'assault weapons' and components of firearms defined in State law as 'large capacity magazines' ('LCMs') could very well remain effectively untouched and, therefore, unaffected in accordance with the modified Section 927 of Title 18 of the U.S. Code, because by the very language of the Congressman Collins' bill, NY Safe and other similar restrictive gun laws of other States remain may be arguably considered to be consistent with or might otherwise be construed as capable of being reconciled with provisions of federal law. New York’s NY Safe and Maryland’s Firearm Safety Act, and similar draconian firearms legislation existent in other States would therefore remain intact. Hence, States might find that a Tenth Amendment challenge or other challenge to H.R. 3576 may be necessary. Yes, the Second Amendment Guarantee Act could survive a Tenth Amendment challenge, but its impact on State firearms’ laws would be nugatory. States would simply ignore the Second Amendment Guarantee Act as they could still register and regulate the transfer of firearms or ban outright many categories of weapons—including and especially, those defined as ‘assault weapons’ under State law, which the Second Amendment Guarantee Act was targeting. Thus, any guarantee of movement of, say, assault weapons in interstate traffic, would still be subject to heavy State regulation in intrastate traffic. One’s guarantee of exercise of one’s Second Amendment right of the people to keep and bear arms would then end up as an empty gesture.

MUCH WORK IS NEEDED TO MAKE THE SECOND AMENDMENT GUARANTEE ACT AN EFFECTIVE ACT, ENABLING A PERSON, WHO IS NOT UNDER DISABILITY, TO LAWFULLY OWN FIREARMS THAT SEVERAL STATE STATUTES PRESENTLY PROHIBIT, NAMELY AND SPECIFICALLY, THOSE DEFINED AS ‘ASSAULT WEAPONS.’

The Second Amendment Guarantee Act is an extensive redraft of Section 927 of Title 18 of the U.S. Code, only. But, had the bill been drafted effectively, to preclude a State from banning an entire category of firearms defined as “assault weapons,” Congressman Collins could have done so and should have done so by modifying not only Section 927 of Title 18 of the U.S. Code, but by modifying, explicitly, Sections 921, 922, and 926 of Title 18 of the U.S. Code, and modifying, as well, Section 5845 of the Internal Revenue Service Code (of the U.S. Code), 26 USCS § 5845, concentrating more expressly on guaranteeing one's right to own and possess semiautomatic weapons, the bane of antigun legislators and antigun groups--as they deposit ever more semiautomatic weapons into the category of 'assault weapons'--prohibiting the average law-abiding citizen from legally holding any of them. 

AN IMPORTANT CAVEAT TO MODIFYING ANY FEDERAL FIREARMS LEGISLATION

As we cautioned at the beginning of this article, Federal legislation operates across the board. If done improperly, the fundamental right of the people to keep and bear arms could be substantially curtailed or, at least, negatively impacted, and decidedly and decisively impaired.Consider: Federal law preempts State regulation of machine guns, “short-barreled” rifles and shotguns, and “destructive devices” altogether. The federal Government regulates ownership and possession of these firearms, together with destructive devices, through the Justice Department, the Internal Revenue Service, and through the Justice Department's Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). Would Americans be willing to accept federal registration of firearms defined as “assault weapons” for the privilege of lawfully owning and possessing them? Well, for residents of New York and Maryland and similar States that ban possession of assault weapons, outright, and that ban various components of firearms, except for those firearms and, possibly, those components of firearm that have been grandfathered in, federal registration of firearms defined as “assault weapons” may seem a small price to pay. But, for those of us who reside in States that do not presently impose bans on possession of weapons that other States routinely proscribe, such residents of States that do not impose bans on or registration of so-called assault weapons may not see that legislation, such as the Second Amendment Guarantee Act, a great and wonderful thing to be enacted. For, once enacted, H.R. 3576 must then be implemented and, if federal preemption truly does supersede State law regulation of firearms, we could expect the Justice Department, the Internal Revenue Service, and the Bureau of Tobacco, Alcohol, Firearms, and Explosives of the Justice Department (BATFE), to regulate the ownership and possession and transfer and licensing of “assault weapons,” just as it now regulates the ownership and possession and transfer and licensing of machine guns, short-barreled rifles and shotguns, and destructive devices. That would likely—and conceivably, inevitably—entail the creation of a massive registry of the names and whereabouts of Americans who seek to own and possess all manner of firearms. Thus, there are hidden costs associated with federal firearms preemption Statutes.The best thing that can be said about State regulation of firearms is that the impact of draconian firearms legislation is limited jurisdictionally to that particular State. Thus, the NY Safe Act, while impinging awfully--indeed, catastrophically--on one’s right to keep and bear arms in New York, has, fortunately, no legal force or effect in, say, Ohio, or Texas, or Wyoming.Congressman Collins’ bill, as written, is too open-ended and, if it were enacted, as is, we believe that it would be of little, if any, benefit to those individuals living in States that have stringent firearms’ laws in place and, further, Congressman Collins' bill could, actually harm those that live in States with more permissive firearms’ laws. Moreover, even if the federal Government enacts laws that tend to strengthen the Second Amendment—which would be an anomaly anyway—remember full well: what the federal Government giveth, the federal government can taketh away. Thus, Congressman Collins’ Second Amendment Guarantee Act must be redrafted with the aim of emphasizing the word, ‘Guarantee.’ It must not be an empty gesture or worse, something that manifests as the inverse to the loftiness of its title or as something that devolves into a massive firearms’ registration and eventual firearms confiscation scheme--which could happen in the event Democrats gain control of both Houses of Congress, as Democrats, given the chance, would do their damnedest to repeal outright--or with a tweaking of a word, here and there, transform the Second Amendment Guarantee Act into a nightmare--a new federal assault weapons ban; and THAT, would definitely not be a good thing.Thus, one should always be mindful of the adage: “Be careful what you wish for”—certainly, one should be ever mindful of negative consequences--definitely where federal government agencies are given the opportunity to tinker with the Second Amendment. Keep in mind, Government agencies are tasked with implementing federal law through the promulgation of Administrative Rules, published in the Code of Federal Regulations, and these bureaucratic agencies of the Federal Government charged with drafting and then implementing rules to effectuate Congressional intent through Congressional legislation, often do so with a very, very heavy hand, creating and implementing rules that go well beyond the parameters of and intention of Congress.  The Devil is an artful twister of one's desires, no matter how carefully a person calibrates his stated wishes.**_______________________________   *The Arbalest Quarrel has written extensively on the Kolbe case and will continue to do so.**As a deadly serious example of what we are talking about here, take a look at the excellent comedy, "Bedazzled,"--the original, 1967 version with Dudley Moore and Peter Cooke, not the remake of that film. For another example, see the Arbalest Quarrel article, "The Flaws in Judge Garland's Reasoning," posted on the Arbalest Quarrel website on April 14, 2016._________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

CONGRESSMAN CHRIS COLLINS’ SECOND AMENDMENT GUARANTEE ACT (“SAGA”): A GOOD START BUT NOT A FINISHED PRODUCT

THE SECOND AMENDMENT GUARANTEE ACT

INTRODUCTION

The seminal Second Amendment Heller case (District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008)) made categorically clear and unequivocal that the right of the people to keep and bear arms is an individual right unconnected with one’s service in a militia; and the seminal Second Amendment McDonald case (McDonald v. Chicago, 561 U. S. 742, 780, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010)) that followed Heller, two years later, made clear that the right of the people to keep and bear arms—an individual right—applies to the States as well as to the federal Government. Unfortunately, many State Legislatures, along with many legislators in Congress and, worst of all, many jurists on State or Federal Courts strongly oppose the holdings and reasoning of the Majority in Heller and McDonald. This animosity carries over to and is reflected in poorly drafted legislation and in poorly crafted legal opinions. Occasionally, though, State Legislatures and Congress get it right, and do draft laws recognizing the fundamental right of the people to keep and bear arms. Congressman Chris Collins’ (NY-27) Second Amendment Guarantee Act (“SAGA”) that the Congressman recently introduced in Congress is just such a bill. We heartily support the Congressman’s efforts. But, what might we expect?

WHAT IS THE POSSIBILITY OF PASSAGE OF THE SECOND AMENDMENT GUARANTEE ACT?

Unfortunately, not good. We take our cue from other pro-Second Amendment bills. We have yet to see movement on several national handgun carry reciprocity bills that presently exist in a state of limbo, locked up in Committee.  Even if Congressman Collins’ bill makes it out of Committee, and, further, is voted on and passes a full House vote, it likely would be held up in the Senate where it must garner a super majority—60 votes—to pass and see enactment. The bill likely would not pass as a “stand-alone” bill in any event. That means the bill would have to be tacked on to other legislation to have any chance of passage. But, assuming the bill were enacted, what might we expect from it?

WHY DID CONGRESSMAN COLLINS DRAFT THE SECOND AMENDMENT GUARANTEE ACT AND WHAT IS THE PURPOSE OF THE BILL?

Congressman Collins, a Representative of New York, obviously had Governor Cuomo’s signature anti-Second Amendment legislation, the NY Safe Act, in mind, when he drafted this bill; for the bill, if enacted, is, ostensibly at least, at loggerheads with a key feature of the Safe Act—Section 37 of the Act—the Section that bans the possession and sale of all firearms defined as ‘assault weapons.’According to the Congressman’s Press Release “Congressman Chris Collins (NY-27) has proposed new measures for protecting Second Amendment rights by introducing legislation to limit states authority when it comes to regulating rifles and shotguns, commonly used by sportsmen and sportswomen. The Second Amendment Guarantee Act (SAGA) would prevent states from implementing any regulations on these weapons that are more restrictive than what is required by federal law. Upon passage of this bill, most of the language included in New York State’s Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013 signed into law by Governor Cuomo would be void." But, is that true? Is the Press Release accurate? Or, does the Press Release presume more about the bill than what the bill produces, in the event the bill, as drafted, sees the light of day and becomes law?

WHAT DOES THE BILL SAY?

The bill (H.R. 3576), amends Section 927 (Effect on State Law) of Chapter 44 (Firearms), of Title 18 (Crimes and Criminal Procedure) of the U.S. Code.As presently enacted Section 927, says:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Collins’ bill deletes the first word of Section 927—the word, “No,”—and replaces that word with the phrase, “Except as provided,” and, then adds language, establishing, inter alia, that States cannot enact laws pertaining to rifles and shotguns that are “more restrictive. . . with respect to such a rifle or shotgun.” In pertinent part, Congressman Collins’ modification of Section 927 of Title 18 sets forth:“A State or a political subdivision of a State may not impose any regulation, prohibition, or registration or licensing requirement with respect to the design, manufacture, importation, sale, transfer, possession, or marking of a rifle or shotgun that has moved in, or any such conduct that affects, interstate or foreign commerce, that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law. To the extent that a law of a State or political subdivision of a State, whether enacted before, on, or after the date of the enactment of this subsection, violates the preceding sentence, the law shall have no force or effect. For purposes of this subsection, the term ‘rifle or shotgun’ includes any part of a rifle or shotgun, any detachable magazine or ammunition feeding device, and any type of pistol grip or stock design.”What does the modification of Section 927 of Title 18 of the U.S. Code purport to do; and what does the modification of Section 927 of Title 18 of the U.S. Code mean?To understand the import of Congressman Collins’ bill, it is first helpful, in this instance, to understand what those who oppose it would do to challenge it, assuming the Second Amendment Guarantee Act does become law—which is far from clear given Democrats’ hysterical aversion to the Second Amendment and Republicans’ constant foot-dragging.

IF ANTIGUN GROUPS AND LEGISLATORS CHALLENGE THE BILL IN THE EVENT IT BECAME LAW, UNDER WHAT GROUND MIGHT THE BILL BE CHALLENGED?

Congressman Collins’ bill is likely to face stiff opposition and resistance in Congress prior to enactment—assuming it even moves out of Committee—as it would almost certainly be challenged, inter alia, on Constitutional, Tenth Amendment grounds were the bill to become law.What does the Tenth Amendment say? The Tenth Amendment to the U.S. Constitution says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The Tenth Amendment has always been a sticky wicket, especially in matters involving the Second Amendment because the matter of firearms’ regulations and licensing, apart from the regulation and licensing of machine guns, short-barreled rifles and shotguns, and destructive devices, falls, traditionally, within the police powers of a State. Although the federal Government has, in the last several decades, amassed ever more powers unto itself, the fact of the matter is that this Nation is a confederation of independent sovereign States. This idea seems to be lost on people, not least of all in light of the present “Charlottesville” episode—a matter which the Arbalest Quarrel will be writing on in the near future, taking the mainstream news media to task for unleashing a wave of opinionated fake news on the matter, and which the mainstream media is egging the Trump Administration to handle, on the federal level, to support Marxist efforts to erase our Nation’s history, traditions, and core values.Yet, the federal Government cannot indiscriminately, lawfully, run roughshod over the States and the people. In the matter of Congressman Collins’ bill, the Second Amendment Guarantee Act, this creates something of a quandary; for, the bill—as the Congressman articulates through his Press Release—substantially preempts States’ rights on matters of firearms regulations and licensing. The paramount question is this: if Congressman Collins’ bill does become law, can those, who would then seek to mount a Tenth Amendment challenge against it, likely succeed in the Courts? The answer isn’t clear, but, a careful analysis of the bill’s text suggests the bill can survive a Tenth Amendment challenge, as it was carefully drafted to sidestep just such a challenge. Why do we say this? Well, looking at the Tenth Amendment issue, the actual drafter or drafters of the bill made clear the intent of the Act to supersede State regulation of and licensing of firearms; for, Congress would, under the Second Amendment Guarantee Act, be exercising its authority to regulate firearms moving in interstate commerce. It is a categorical, unequivocal principle of law that Congress has plenary power to regulate goods moving in interstate commerce under the Commerce clause. On that matter, no legitimate legal question exists, as the U.S. Supreme Court has made this point abundantly clear.“As we observed in Lopez, [United States v Lopez (1995) 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624] modern Commerce Clause jurisprudence has ‘identified three broad categories of activity that Congress may regulate under its commerce power.’ 514 U.S. at 558 (citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-277, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981); Perez v. United States, 402 U.S. 146, 150, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971)). ‘First, Congress may regulate the use of the channels of interstate commerce.’ 514 U.S. at 558 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964); United States v. Darby, 312 U.S. 100, 114, 85 L. Ed. 609, 61 S. Ct. 451 (1941)). ‘Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.’ 514 U.S. at 558 (citing Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20, 32 S. Ct. 2, 56 L. Ed. 72 (1911); Perez, supra, at 150). ‘Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.’ 514 U.S. at 558-559 (citing Jones & Laughlin Steel, supra, at 37). United States v. Morrison, 529 U.S. 598, 609; 120 S Ct. 1740, 1749; 146 L. Ed. 2d 658, 670 (2000).”So, the Second Amendment Guarantee Act would likely survive a Tenth Amendment challenge. But, the strength of the bill, as drafted, also poses a weakness, notwithstanding. For, while State laws, such as New York’s SAFE Act and Maryland’s Firearm Safety Act, cannot, if Collins’ bill is enacted, most likely preclude importation of firearms into their State—including and importantly so-called assault weapons, as importation of such firearms affects interstate commerce and federal law, would, under the Second Amendment Guarantee Act, preempt State law in matters affecting interstate commerce—still, once the firearms are presented in States such as New York and Maryland, it isn’t clear, from the present language of the bill, that firearms’ dealers would be able to sell or trade such “assault weapons” to individuals residing in those States, so long as laws such as the SAFE Act and the Firearm Safety Act are in effect. And, those Acts would still be in effect. For, contrary to Collins’ Press Release, restrictive State gun laws, such as the NY Safe Act, do not, ipso facto, become nugatory. A legal challenge to the constitutionality of New York’s Safe Act and Maryland’s Firearm Safety Act would have to be made. But, once made, it is still unclear whether the Safe Act and the Firearm Safety Act could not prevent transfers of "assault weapons" to individuals, not under disability, within the State, on the ground that regulation of "assault weapons" was being conducted intrastate, thereby not affecting interstate commerce.The question, from the standpoint of those challenging restrictive gun legislation existent in States such as New York, Maryland, California, Hawaii, and others, then becomes whether so-called “assault weapons” that some States wish to ban and, at present, have banned outright, can be sold as “protected” firearms under federal law, once they are in a State, such as New York. If so, that means, then, that States could not legally proscribe the transfer, ownership, and possession of those weapons, try as they might. The issue raised by the Second Amendment Guarantee Act is analogous to the matter pertaining to machine guns, submachine guns, and selective fire weapons, as federal law completely preempts the field concerning those weapons, which means that States have absolutely no legal power to enact laws involving the regulation, licensing, and disposition of those kinds of weapons in their States. Federal law completely preempts the field in matters involving the licensing, regulation, and disposition of machine guns. Language in Section 922 (Unlawful Acts) of Title 18 of the U.S. Code makes clear the intent of Congress to preempt the field, in its entirety, in matters pertaining to the transfer and ownership and possession of machine guns. Paragraph “o” of Section 922 of Title 18 says,“(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.(2)  This subsection does not apply with respect to—(A)  a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or(B)  any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect [effective May 19, 1986].”Curiously, the expressions, ‘firearm,’ ‘rifle,’ ‘shotgun,’ and ‘machine gun,’ are not defined in Section 922 of Chapter 4 (Firearms) of Title 18 of the U.S. Code, where a person might expect to find them, but in Section 5845 of the Internal Revenue Service Code of the U.S. Code, 26 USCS § 5845. In 26 USCS § 5845(b), “The term ‘machinegun’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.”Keep in mind that Congressman Collins’ bill modifies Section 927 of Title 18 of the U.S. Code only, which deals with federal preemption of State law regulation of firearms,  generally, but the bill modifies nothing in Section 922 of Title 18, where one would expect to find an assertion of those particular firearms and firearms’ components that federal law is preempting States from regulating and there is no modification of Section 5845 of Title 26 (Internal Revenue Code) where firearm terminology is specifically defined. And, it is in Section 922 of Title 18 of the U.S. Code that we see federal preemption of regulation of machine guns; and it is in that same Section of Title 18 that, in 1994, Congress expressly banned ownership and possession of “assault weapons,” nationally—as part of antigun efforts that orchestrated enactment of the “Violent Crime Control and Law Enforcement Act of 1994.” A national ban on the transfer of and ownership of so-called “assault weapons,” along with a ban on LCMs, was set forth in federal law, subsumed in Section 922 of Title 18 of the U.S. Code. But inclusion of an “assault weapons” provision of Section 922 of Title 18 of the U.S. Code, which added a paragraph “v” which made it “unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon,” and inclusion of a ban on large capacity magazines, set forth in paragraph “w” of Section 922 of Title 18 of the U.S. Code, which made it “unlawful for a person to transfer or possess a large capacity ammunition feeding device,” both expired in September of 2003. Those provisions of Section 922 of Title 18 of the U.S. Code were never reauthorized, despite subsequent and numerous efforts by antigun politicians to do so.Since the impetus for the Second Amendment Guarantee Act was predicated, obviously and reasonably, on Congressman Collins' laudable desire to negate the impact of the NY Safe Act on the federal level, through the federal preemption—since Albany appears either unwilling or incapable of repealing the NY Safe Act on the State level itself—we can infer that the Second Amendment Guarantee Act was designed principally to preclude States, such as New York, from banning substantial numbers of semiautomatic firearms that’s State antigun legislators, with great fanfare, cast into the category of “assault weapons.”Congressman Collins, a staunch proponent of the Second Amendment, clearly seeks, through enactment of his bill, to provide Americans the converse—the flipside—of efforts to curb exercise of the right of the people to keep and bear arms. The Second Amendment Guarantee Act, as some would argue, proscribes States from regulating all categories of rifle and shotgun, thereby curbing, with one fell swoop, attempts by any State Legislature to impose specific restrictions on the ownership and possession of one large category of firearms, those subsumed under the nomenclature “assault weapons,” and curbing, as well, attempts by any State Legislature to impose size restrictions on ammunition magazines.But, does Congressman Collins’ bill, that modifies Section 927 of Title 18 of the U.S. Code, make federal preemption of regulation of assault weapons and other firearms’ components absolutely clear?Once again, as presently enacted Section 927 says:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Collins’ bill deletes the first word of Section 927—the word, “No,”—and replaces that word with the phrase, “Except as provided,” and, then adds language, establishing, inter alia, that States cannot enact laws pertaining to rifles and shotguns that are “more restrictive. . . with respect to such a rifle or shotgun.” But, and this is an important, but, is such language enough to negate restrictive State firearms’ legislation such as the NY Safe Act? We don’t think so—thus, the failings of the bill, in its current form. For, what do the words, ‘more restrictive with respect to such a rifle or shotgun,’ mean, here?The reader must understand that federal law preemption of firearms, Sections 921, et. seq., of Title 18 of the U.S. Code, is directed essentially to a specific class of firearms, namely machine guns. As made clear in paragraph "o" of Section 922 of Title 18 of the U.S. Code, Federal law preempts the field as to those kinds of firearms only, and the language of the law makes federal preemption in matters involving the regulation of machine guns patently clear. Congressman Collins’ bill is silent on the subject of so-called “assault weapons”—which some believe Congressman Collins’ bill, if enacted, would adequately address, and which it must address if it were to do what it purports to do: preclude States from prohibiting the transfer and possession of firearms that New York’s Safe Act and Maryland’s Firearm Safety Act prohibit, expressly, and prohibit outright--"assault weapons."Had Congressman Collins’ bill been more explicit and precise, we believe that language should appear in Section 922 of Title 18 of the U.S. Code that would work in tandem with the language appearing in Section 927 of Title 18 of the U.S. Code. And, in Section 5845 of Title 26, we would like to see language that clearly and specifically defines the expression 'semiautomatic weapons.' And, in Section 922 of Title 18, we would like to see language that sets forth the lawful transfer of all semiautomatic weapons to individuals, not under disability. The federal preemption Statute, namely, Section 927 of Title 18, as modified in the Second Amendment Guarantee Act would then make federal preemption of the entire field of semiautomatic firearms abundantly and categorically clear. Ideally, language modifying Section 5845 of Title 26, and modifying Sections 922 and 927 of Title 18 of the U.S. Code would establish federal preemption of the entire field of firearms but--and this next point is critical--only to the extent that such modifications serve to enhance the citizen’s right to keep and bear arms under the Second Amendment. We have no desire to see federal preemption leading to mass registration of firearms and draconian licensing measures on the federal level that we already see much too often on the State level.Ideally, language in the Congressman’s bill would have set forth, in Section 922 of Title 18 of the U.S. Code explicit protection of all commercial transactions, among all the people, who are not under disability (as categories of disability are set forth with particularity in paragraph “g” of Section 922 of Title 18), involving all firearms—rifles, shotguns and pistols, whatever the configuration or mode of operation of those rifles, shotguns, and pistols; and, further, Collins’ bill should have included language doing away with BATFE licensing of such firearms as well, which, in the case of machine guns, involves a lengthy, time-consuming, expensive and mentally exhaustive process that does nothing to enshrine the Second Amendment right of the people to keep and bear arms, as exercise of that fundamental right is unduly hampered by a multitude of administrative obstacles. Lastly, we would like to see firearms’ licensing at both the State and Federal levels ended. As a parenthetical note, we point out that Congressman Collins’ bill is altogether silent on the matter of handguns which means that, under his bill, handguns would not be subject to federal preemption. States would still be able to impose draconian restrictions on the American citizenry in matters involving handguns. But, why should Americans suffer the indignity of exhaustive, extensive, and expensive firearms’ regulatory hurdles at all?One doesn’t need a license to freely exercise one’s right of free speech—at least at the moment—although leftwing groups—most notoriously, the so-called “ANTIFA,” an anarchist/communist, domestic terrorist group (as much as any other terrorist group that this Country formally recognizes), is doing its best to constrain the right of free expression in this Country. Why must one secure a license to exercise a fundamental natural right of self-defense, as firearms are the best means available to secure one's safety and well-being when threatened and access to firearms, for those not under disability (as set forth in paragraph "g" of Section 922 of Title 18 of the U.S. Code), is guaranteed under the Second Amendment!Congressman Collins’ modification of Section 927 of Title 18 of the U.S. Code, alone, does not, we believe, adequately establish federal preemption of firearms’ regulation because the purpose of Section 927 is simply designed to preclude conflict between State and Federal firearms laws. That is the Section’s only purpose. Its purpose is not to define the kinds of firearms that fall under the auspices of federal preemption—which is addressed, and is meant to be addressed in Section 5845 of Title 26 of the U.S. Code (referred to more specifically as the Internal Revenue Code of the U.S. Code) and does not set forth the manner in which federal preemption of firearms is specifically addressed, as is the case with machine guns, as set forth in paragraph "o" of Section 922 of Title 18 of the U.S. Code. We also note that the Congressman’s bill, as drafted, uses the permissive ‘may,’ rather than the obligatory ‘shall’ suggesting, then, that States might still regulate firearms, transecting, then, federal preemption, rather than being totally eclipsed by it. Furthermore, as drafted, Congressman Collins’ bill does not adequately establish the kinds of firearms that he intends federal law to preempt. The draft language of the bill simply sets forth that State law “may not” enact a law “that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law.” But, federal law, Sections 921 et. seq., direct attention to machine guns. Federal law does not address so-called “assault weapons”—semiautomatic weapons and, in New York, revolving cylinder shotguns (which are also defined as 'assault weapons'). Consider: had federal law still imposed federal licensing requirements on “assault weapons,” as it once had, in 1994, then New York’s SAFE Act and Maryland’s Firearm Safety Act, regulating such weapons, likely would have been struck down as unlawful under Section 927 because Federal law had, at that time, in effect, at least, preempted the field as to the regulation of assault weapons and large capacity magazines. What this means is that such restrictive State gun laws, regulating or proscribing ownership and possession of “assault weapons,” at that time, would either have been redundant, if otherwise consistent with federal law, or unlawful, if inconsistent with federal law.

CONCLUSION

The bottom line: In its present form, Congressman Collins’ Second Amendment Guarantee Act (“SAGA”), is a good start toward giving the Second Amendment full effect, as the framers of our Bill of Rights intended. And the Congressman is to be commended for his effort. But the bill, as drafted, leaves, we feel, too much uncertainty, in its present form, to be effective in defeating restrictive, draconian State gun measures like the New York’s Safe Act and Maryland’s Firearm Safety Act, contrary to the opinions of some. More work on the bill is needed. But, such work would, we feel, certainly be a worthwhile endeavor._________________________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.