CA AB962 passed. Now what?

Gene Hoffman, Chairman of the Calguns Foundation, outlines their plan.  Essentially, we’re not dead in the water.

From www.Calguns.net.

The regulation of internet delivery of ammunition as drafted in AB-962 is preeempted by the Federal Aviation Administration Authorization Act of 1994.

AB-962 Regulates The Routes and Services of Common Carriers

AB-962 creates a misdemeanor in a proposed Penal Code §12318 for not following the appropriate steps for “delivery . . .of handgun ammunition”. The bill goes on to state that deliveries may “only occur in a face-to-face transaction with the deliverer . . . being provided bona fide evidence of identity from the purchaser or other transferee.” However, the bill exempts law enforcement agencies, sworn police officers, ammunition manufacture/importers, “handgun ammunition vendors” as defined in the statute, and certain firearms collectors. As such, common carriers will now have to make modifications to their rates and services in an attempt to ascertain whether delivering a package marked ORM-D to any given address is allowed, or is punishable as a crime.

This requirement on a common carrier’s service is particularly difficult for carriers where a retail establishment meets the definition of a “handgun ammunition vendor” under the act but is not otherwise a Federal Firearms Licensee. These retailers are exempted from the non-delivery requirement but there is no documentation proving that such a recipient is exempt. Many “big box” retailers in California sell ammunition but do not sell firearms .

Even if an alternate narrower statutory construction is followed, on the face of the proposed law, common carriers would have to attempt to obtain evidence of identity to comply with proposed Penal Code §12318(a), which is clearly a state law that has a substantial impact on a carrier’s service.

Regulation of the Routes or Services of Common Carriers is Federally Preempted

Federal preemption of the routes, rates, or services of common motor carriers is found in 49 U. S. C. §14501(c)(1):

Quote:
(1) General rule. Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713 (b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.

Additional Federal preemption for common carriers was enacted in the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) and was codified in 49 U.S.C. § 41713:

Quote:
§ 41713. Preemption of authority over prices, routes, and service

(a) Definition. In this section, “State” means a State, the District of Columbia, and a territory or possession of the United States.

(b) Preemption.
(1) Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.

(4) Transportation by air carrier or carrier affiliated with a direct air carrier.—
(A) General rule.— Except as provided in subparagraph (B), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier or carrier affiliated with a direct air carrier through common controlling ownership when such carrier is transporting property by aircraft or by motor vehicle (whether or not such property has had or will have a prior or subsequent air movement).

The Supreme Court Unanimously Ruled That Laws That Regulate Delivery By Common Carriers Are Preempted

In 2008, the Supreme Court ruled 9-0 that a Maine statute that placed limitations on the delivery of cigarettes was preempted by the FAAAA. That statute is very similar to the restrictions on delivery found in AB-962 .

In Rowe v. New Hampshire Motor Transport Association, 128 S. Ct. 989 (2008) the court found that a requirement for shippers to choose a special shipment method and that a carrier would be deemed to have knowledge that shipment had prohibited tobacco products in it were both preempted by Federal Law. Maine attempted to defend the regulation by claiming that there was a public health exception to the FAAAA. The court replied to that argument as follows:

Quote:
Maine’s inability to find significant support for some kind of “public health” exception is not surprising. “Public health” does not define itself. Many products create “public health” risks of differing kind and degree. To accept Maine’s justification in respect to a rule regulating services would legitimate rules regulating routes or rates for similar public health reasons. And to allow Maine directly to regulate carrier services would permit other States to do the same. Given the number of States through which carriers travel, the number of products, the variety of potential adverse public health effects, the many different kinds of regulatory rules potentially available, and the difficulty of finding a legal criterion for separating permissible from impermissible public-health-oriented regulations, Congress is unlikely to have intended an implicit general “public health” exception broad enough to cover even the shipments at issue here.

(Id. at 997.)

There is not an equivalent “public safety” exception to the FAAAA to allow AB-962 either.

AB-962, as written, is preempted by the FAAAA.

We have already done initial planning regarding plaintiffs and counsel for this case. We have time as the law does not take effect until February of 2011.

-Gene

__________________
Gene Hoffman
Chairman, The Calguns Foundation – Member, CRPA Board of Directors
DONATE NOW
to support the rights of California gun owners.

Advertisements

Tags: ,

Categories: Firearms, Guns

Subscribe!

Subscribe to our RSS feed and social profiles to receive updates.

2 Comments on “CA AB962 passed. Now what?”

  1. October 13, 2009 at 8:32 pm #

    After our meeting and time spent with Alan Gura I have-to stay positive and confidant that he will take these suckers to the cleaners – I hope he, or whoever tackles these morons, get’s rich off this.

  2. October 13, 2009 at 9:31 pm #

    I think my general outlook is just as optimistic. Maintaining a healthy level of pessimism keeps me on my toes, however.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s

%d bloggers like this: