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DrTodd
Member
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Posted: Thu Aug 28th, 2008 02:17 am |
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I did, and here is what I see:
TITLE 18 > PART I > CHAPTER 44 > § 926A
§ 926A. Interstate transportation of firearms
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.
So, in Title 18 in the US Code, it says INTERSTATE transportation. The reasoning here is that Congress's power is "limited" to interstate issues, not issues that begin and end within a state. The definition of interstate has been expanded to cover many issues which, on the surface, appear to be intratstae issues, though.
The reason for this is that Article 1, Section 8, Clause 3 of the US Constitution known as the Commerce Clause, states that Congress has the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. See Gibbons v. Ogden, (1824)
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Mike
Super Moderator
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Posted: Thu Aug 28th, 2008 02:23 am |
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DrTodd wrote: I did, and here is what I see:
"TITLE 18 > PART I > CHAPTER 44 > § 926A
§ 926A. Interstate transportation of firearms
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console."
So, in Title 18 in the US Code, it says INTERSTATE transportation. The reasoning here is that Congress's power is "limited" to interstate issues, not issues that begin and end within a state. The definition of interstate has been expanded to cover many issues which, on the surface, appear to be intratstae issues, though.
The reason for this is that Article 1, Section 8, Clause 3 of the US Constitution known as the Commerce Clause, states that Congress has the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. See Gibbons v. Ogden, (1824)
The title of the section is not what counts - the text controls. See bolded sections above. If you think a state is going to do a Lopez attack on the intra-state application of the immunity, Raich citing Wickard is the easy rejoinder.
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DrTodd
Member
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Posted: Thu Aug 28th, 2008 03:43 am |
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True, however, relying on a case that concerns Congress' ability to regulate marijuana, and seeing that some members of the court have a very "state rights" point of view, and looking at the subject matter involved, I would tend to err conservatively and not rely on 18 USC 926 to bail me out when I'm standing before a court in Michigan. But, if you feel that case law supports your position go for it, I'm sure the prosecutor could find as much case law that supports the state's rights position. Hopefully, you have a judge that supports your interpretation.
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Mike
Super Moderator
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Posted: Thu Aug 28th, 2008 04:23 am |
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DrTodd wrote: True, however, relying on a case that concerns Congress' ability to regulate marijuana, and seeing that some members of the court have a very "state rights" point of view, and looking at the subject matter involved, I would tend to err conservatively and not rely on 18 USC 926 to bail me out when I'm standing before a court in Michigan. But, if you feel that case law supports your position go for it, I'm sure the prosecutor could find as much case law that supports the state's rights position. Hopefully, you have a judge that supports your interpretation.
Look, the statute is what it is - no case law stands against the plain text.
But the issue rarely comes up because in almost all states (and I presume Michigan too, yes?), if you are FOPA compiant, you are also state law compliant. Further, it is simply very rare to ever have a police officer go into a trunk or other locked container without violating the Fourth Amendment and triggering the exclusionary rule.
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DrTodd
Member
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Posted: Thu Aug 28th, 2008 05:31 am |
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Please don't take this personally nor as philosophical oposition as I agree that I should be able to transport my firearm in Michigan for any legal purpose, and it is utterly inane that Michigan has chosen to limit transportation to the degree it has. The current law is much better than previous regulations, though, because at least it expanded legal transportation.
But, to answer your very clear and succinct point/assumption, No, apparently( or at least it is arguable), FOPA compliance would NOT meet the compliance demanded in Michigan. Michigan limits the transportation for narrowly defined "lawful purposes" and, while reading the discussion here and elsewhere, there is some ambiguity as to what is actually meant by "lawful purposes", FOPA provides no guidance. Personally, I would side with the fact that the wording in Michigan law does not preclude there being lawful purposes other than those listed. But, that is for Michigan to decide.
To research this a bit further, I looked through some US Supreme Court cases and did see this, excerpted from US v. Lopez (1995).
In the decision, the court states: ""The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.""
So, my guess, and it is only a guess, is that if a person traveled from Grand Rapids to Lansing (ie not outside of Michigan), that activity DOES NOT impact interstate commerce and falls outside of a 18 USC 926 protection. Especially in the first paragraph of my quote, the court goes to great lengths to limit the Federal Government's ability to control this area because it is an area that has historically been under the jurisdiction and control of the states.
In the cases you cited, and many others I looked through, when ruling that the Feds had legislative jurisdiction, the courts have gone to great pains to show that the topic of each particular case affected interstate commerce. But here we have a decision which says that a local situation concerning firearms can't be connected as was done in the other cases.
Understand, I agree with you that Michigan's law is terrible and should be changed. But I wouldn't want any expansion of the power of the Federal Government to decide state firearms law. Its illogical to aver that because I am pro-2nd amendment and that the Feds can control this (intrastate travel) issue, but when they seek to LIMIT my 2A rights through legislation and connections to the Commerce Clause, that I am against the power that the Federal Gov't has taken upon itself.
I understand that this is frustrating but, that is the way the enumerated powers work, like it or not: Interstate issues are the domain of the Feds, intrastate issues are the domain of the states. If I am traveling from Michigan to Ohio, the provisions of 18 USC 926 would thankfully apply. However, I think it is somewhat of a stretch to think that 18 USC 926 would apply in a situation where there are very tenuous connections to interstate commerce.
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Venator
Member
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Posted: Thu Aug 28th, 2008 12:59 pm |
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| Guys this thread is suppose to be a place where the basics of OC in Michigan are outlined. While the discussions are great can you start a new thread on this subject? Please.
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DrTodd
Member
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Posted: Thu Aug 28th, 2008 03:16 pm |
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Venator,
I was concerned about that, too. Can these posts be placed somewhere else?? I assumed since a "super moderator" had brought this discussion here from another topic area, the discussion had to be here...
Thanks
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Gosirr
Member
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Posted: Fri Aug 29th, 2008 03:11 am |
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I recently sent a copy of the LEO document to the chief of police in my city. It was sent via email. Any help would be apreciated. This is his responce:
"FROM: dniedermeier@aol.com Hazel Park Chief of Police
I am a bit confused over your use of the AG opinion 7097. It basically states that CPL holders are not covered by 234d, however, open carry is. Likewise, CPL holders have their own list which is mostly inclusive of the same locations plus a few others in the law enacted in 2000. Banks appear to be not listed for CPL but restricted for open carry while courts are prohibited in 234d and restricted for CPL in other language that permits the chief judge to make rules.
Basically, both laws co-exist. Am I missing something?
Open carry is a pretty basic concept. It however could easily get the person choosing to exercise this right in difficulty by not paying attention to what he or she is doing as they go through their daily lives. "
9-5-08 EMAIL UPDATES:
MY EMAIL:9-4-08
Thank you for responding to my email.
opencarry.org is here to answer any questions that people have about open carry. Before people open carry they should become familiar with state and federal laws. In essence what all this means is that a person with a CPL can carry openly in all the restricted places listed in 750.234d, except for places that are restricted by the CPL. The CPL covers places you can't carry concealed, and i think the bank is the only difference. We try and inform people of that. But we can not control peoples behavior, they will do what they do regardless of what we suggest. I am wondering if Hazel Parks patrol officers are informed as well as you are on this? Thanks for you time, and we appreciate the demanding and dangerous work you do.
CHIEF'S REPLY EMAIL: I don't want to go back and forth over this.....however, I wonder if you might be missing something pertaining to the pistol free zones?
Both lists are very, very similar. Therefore excluding both open and concealed carry regardless of permit (re:234d) in locations contained on the lists. A person can carry with a CPL any of the specific locations listed in 234d ONLY if that location is not also prohibited in the CPL legislation! At the end of the day, open carry and CPL carry are prohibited in what appears to be all but the one location (banks for CPL). Again, courts are permitted to make their own rules for carry within their buildings.
AND A SECOND REPLY:I read your e-mail over again and I am not sure....we may be saying the same thing but it is a bit confusing to determine.
I NOTICED HE DIDNT ANSWER MY QUESTION.
Please move if posted in wrong section.
Last edited on Fri Sep 5th, 2008 06:53 pm by Gosirr
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Venator
Member
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Posted: Fri Aug 29th, 2008 03:27 pm |
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Gosirr wrote: I recently sent a copy of the LEO document to the chief of police in my city. It was sent via email. Any help would be helpfull in his reeducation training(lol). This is his responce:
"FROM: dniedermeier@aol.com Hazel Park Chief of Police
I am a bit confused over your use of the AG opinion 7097. It basically states that CPL holders are not covered by 234d, however, open carry is. Likewise, CPL holders have their own list which is mostly inclusive of the same locations plus a few others in the law enacted in 2000. Banks appear to be not listed for CPL but restricted for open carry while courts are prohibited in 234d and restricted for CPL in other language that permits the chief judge to make rules.
Basically, both laws co-exist. Am I missing something?
Open carry is a pretty basic concept. It however could easily get the person choosing to exercise this right in difficulty by not paying attention to what he or she is doing as they go through their daily lives. "
Please move if posted in wrong section.
First off great job and thanks. At least he responded. Most don't, thank him for that. Tell him that opencarry.org is here to answer any questions that people have about open carry and that before people open carry they should become familiar with state and federal laws.
In essence what all that means is that a person with a CPL can carry openly in all the restricted places listed in 750.234d. Simple. The CPL covers places you can't carry concealed. We try and inform people of that. BUT WE CAN NOT control peoples behavior, they will do what they do regardless of what we suggest.
But at least you have a dialog going with the chief, keep it going in a polite and educational way.
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Darth AkSarBen
Member
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Posted: Sun Aug 31st, 2008 05:29 pm |
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The Chief's statement "Open carry is a pretty basic concept. It however could easily get the person choosing to exercise this right in difficulty by not paying attention to what he or she is doing as they go through their daily lives."
seems to convey that he would advise anyone, who open carries, to be mindful of the fact that you do HAVE a loaded pistol on you, and as you go grocery shopping, you may get distracted and slip into the bank to make a deposit and not think about it (forgetting you have a pistol on your person can happen). Wandering into the wrong place, even though you are not breaking the law in other places, could put you in illegal territory.
He seems open to discussion, and it would be good to visit on friendly terms.
I transport my pistol all the time, unloaded, in a case, in the trunk of my car. Do I open carry? Haven't yet, but I have the prerogative to, just decided not to. I can always be on my way to or from a shooting range as well.
BTW, would it not be an interesting thread to post ALL the shooting ranges, and their addresses here in Michigan? I, and others, could keep a print out of the addresses of our local area and we would ALWAYS be either going to or coming from a shooting range.
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Taurus850CIA
Member
| Joined: | Sun Jun 15th, 2008 |
| Location: | Flint, Michigan USA |
| Posts: | 4 |
| Status: |
Offline
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Posted: Sun Sep 21st, 2008 05:32 am |
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Venator wrote: dougwg wrote: Only if they are carrying concealed must they show ID
If open carried, you may do so "sterile".
For those that don't know "sterile carry" is carrying a sidearm without carrying personal ID or your CPL.
Doug, do you know anyone that goes sterile? I know this is a somewhat old post, but it's got my curiosity piqued. I'm under the impression that if one is in possession of a handgun, one must also have the safety inspection/registration for it. Even if not, the law does state that loaning/borrowing of handguns is prohibited except between CPL holders. If you are in possession of a handgun, and cannot prove that you are the person who's name is on the registration, you may find yourself in a little bit of trouble. It may be the "probable cause" an officer needs to give you a ride. To carry in any fashion without all the proper documentation seems risky, not to mention rather inconvenient. If you find yourself in the very situation that you carry your arms to defend against, you're going to need your ID.
Last edited on Sun Sep 21st, 2008 05:33 am by Taurus850CIA
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Darth AkSarBen
Member
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Posted: Sun Sep 21st, 2008 02:10 pm |
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Welcome Taurus850CIA !! From the Michigan State Police Bulletin #66 I copied and pasted the following: " Safety Inspection Certificates
Michigan law does not require a person to
have a copy of their certificate with their
pistol after it has been registered; nor does
the law require that a person keep a copy. "
Now, if someone knows the direct link you can go there and read it, copy it or print it out for yourself. Personally, I made a copy of my safety inspection and have a copy in my billfold and one in a case I transport the pistol in.
Once the pistol is registered, any LEO should be able to take down the serial number, and run the info on just that and it should come back who it's registered to. This usually amounts to just seconds.
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Venator
Member
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Posted: Sun Sep 21st, 2008 03:43 pm |
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Taurus850CIA wrote: Venator wrote: dougwg wrote: Only if they are carrying concealed must they show ID
If open carried, you may do so "sterile".
For those that don't know "sterile carry" is carrying a sidearm without carrying personal ID or your CPL.
Doug, do you know anyone that goes sterile? I know this is a somewhat old post, but it's got my curiosity piqued. I'm under the impression that if one is in possession of a handgun, one must also have the safety inspection/registration for it. Even if not, the law does state that loaning/borrowing of handguns is prohibited except between CPL holders. If you are in possession of a handgun, and cannot prove that you are the person who's name is on the registration, you may find yourself in a little bit of trouble. It may be the "probable cause" an officer needs to give you a ride. To carry in any fashion without all the proper documentation seems risky, not to mention rather inconvenient. If you find yourself in the very situation that you carry your arms to defend against, you're going to need your ID.
As you have read the green card myth lives on and you don't need the registration card. When the new law comes into effect you will NOW have to have it for 6 months (why?, don't ask me.)
As for the law, the LEO doesn't have PC to see if you own the gun anymore than he has PC to determine if you own your cell phone or the shirt on your back. They have no legal way to determine if you own your guns then they do your TV. So that's crap in regards to LEO's using that excuse to hassle you.
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Spyder6510
Member
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Posted: Tue Sep 23rd, 2008 07:48 am |
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Under the section of "what we hand out to people about open carry" link to the Youtube video is no good... the video has been removed by the owner (see below).
http://www.youtube.com/watch?v=7QZtWmivIYw&feature=related
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northofnowhere
Activist Member
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Posted: Tue Sep 23rd, 2008 03:23 pm |
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If someone has that video, I can host it on my servers.
I did purchase a couple related domain names such as miopencarry.org which simply points to the michigan forums here, but would make a nice domain name for files and videos such as that.
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Gosirr
Member
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Posted: Sat Oct 4th, 2008 03:47 pm |
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I made this info card. I hope the link works. You should be able to print on a perforated business card sheet. This is something you can carry in your wallet, to give out.
http://home.comcast.net/~gosirr/OpenCaryCard.doc
edit: link works now-spelling error, Added age per SAS request.
Attachment: OpenCaryCard.doc (Downloaded 18 times) Last edited on Sat Oct 4th, 2008 09:20 pm by Gosirr
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Big Gay Al
Member
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Posted: Thu Oct 16th, 2008 06:19 am |
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Just a thought, has anyone seen this (http://opencarry.mywowbb.com/forum61/3424.html)?
Looks pretty well done. I will grant, our little info packet has a lot of good stuff. But is all of it totally necessary? Might there be a way to condense it down?
To be honest, the only problem I have with the MOC info, it exceeds the borders of the printable area that my printer recognizes. So, I either have to change the font size, and/or the margins which usually expand it out to 3 pages, or pick something to delete.
Anyway, just a thought I'm tossing out there.
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SpringerXDacp
Member
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Posted: Thu Oct 16th, 2008 06:26 am |
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Big Gay Al wrote: Just a thought, has anyone seen this (http://opencarry.mywowbb.com/forum61/3424.html)?
Looks pretty well done. I will grant, our little info packet has a lot of good stuff. But is all of it totally necessary? Might there be a way to condense it down?
To be honest, the only problem I have with the MOC info, it exceeds the borders of the printable area that my printer recognizes. So, I either have to change the font size, and/or the margins which usually expand it out to 3 pages, or pick something to delete.
Anyway, just a thought I'm tossing out there.
Al, link does not work.
Nor does this: http://opencarry.mywowbb.com/forum61/3424.html
Last edited on Thu Oct 16th, 2008 06:28 am by SpringerXDacp
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ghostrider
Member
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Posted: Thu Oct 16th, 2008 06:51 am |
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SpringerXDacp wrote: Big Gay Al wrote: Just a thought, has anyone seen this (http://opencarry.mywowbb.com/forum61/3424.html)?
Looks pretty well done. I will grant, our little info packet has a lot of good stuff. But is all of it totally necessary? Might there be a way to condense it down?
To be honest, the only problem I have with the MOC info, it exceeds the borders of the printable area that my printer recognizes. So, I either have to change the font size, and/or the margins which usually expand it out to 3 pages, or pick something to delete.
Anyway, just a thought I'm tossing out there.
Al, link does not work.
Nor does this: http://opencarry.mywowbb.com/forum61/3424.html
Try it without the ")?"
http://opencarry.mywowbb.com/forum61/3424.html
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Big Gay Al
Member
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Posted: Thu Oct 16th, 2008 04:31 pm |
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Oops, my bad. 
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