Utah Tries to Exert State's Rights With Firearms Law: Not The Best Avenue

On Tuesday, I attended my  Republican Party "neighborhood" caucus meeting.  It was about as much fun as slopping the hogs, but I did my duty.  One candidate for our precinct State Delegate position stated that he applauded the state legislature for standing up for states' right by passing legislation to exempt guns manufactured in Utah and for sale only in Utah, from federal regulation.  I am a huge proponent of states' rights, along with a small federal government that is limited to the powers outlined in our beloved federal Constitution.  The Utah law in question, however, Senate Bill 11, titled the "Utah State-Made Firearms Protection Act" was a waste of legislative time and a waste of Governor Herbert's signature.  It was poorly drafted.  The language is more of an affirmation of state rights against the big federal bully, rather than a straight forward law.    It would have been much better with a simple numbering revision of the sections, making the first line Paragraph (1) and then paragraphs 1 through 7 as subsections of paragraph (1).
The applicable language is:

 In reviewing any matter covered by this chapter, a court shall consider the following:
(1) The Tenth Amendment to the United States Constitution guarantees to the state and its people all powers not granted to the federal government elsewhere in the Constitution and reserves to the state and people of Utah certain powers as they were understood at the time that Utah was admitted to statehood.
(2) The guarantee of powers to the state and its people under the Tenth Amendment is a matter of contract between the state and people of Utah and the United States as of the time of statehood.
(3) The Ninth Amendment to the United States Constitution guarantees to the people rights not granted in the Constitution and reserves to the people of Utah certain rights as they were understood at the time that Utah was admitted to statehood.
(4) The guarantee of rights to the people under the Ninth Amendment is a matter of contract between the state and people of Utah and the United States as of the time of statehood.
(5) The regulation of intrastate commerce is vested in the state under the Ninth and Tenth Amendments to the United States Constitution.
(6) The Second Amendment to the United States Constitution reserves to the people the right to keep and bear arms as that right was understood at the time that Utah was admitted to statehood, and the guarantee of the right is a matter of contract between the state and people of Utah and the United States as of the time of statehood.
(7) The Utah Constitution clearly secures to Utah citizens, and prohibits government interference with, the right of individual Utah citizens to keep and bear arms.
(8) A personal firearm, a firearm action or receiver, a firearm accessory, or ammunition that is manufactured commercially or privately in the state to be used or sold within the state is not subject to federal law or federal regulation, including registration, under  the authority of congress to regulate interstate commerce.
(9) The Legislature declares that a firearm, a firearm action or receiver, a firearm  accessory, and ammunition described in Subsection (8) does not travel in interstate commerce.
(10) The importation into the state of generic and insignificant parts and those parts' [sic] incorporation into a firearm, a firearm action or receiver, a firearm accessory, or ammunition manufactured in the state does not subject the firearm, firearm accessory, firearm action or receiver, or ammunition to federal law or regulation.
(11) Basic materials, including unmachined steel and unshaped wood, are not firearms, firearm actions or receivers, firearms accessories, or ammunition.
(12) Trade in basic materials is not subject to congressional authority to regulate firearms, firearm actions or receivers, firearms accessories, and ammunition as if the basic materials were actually firearms, firearm actions or receivers, firearms accessories, or ammunition.
(13) Congress's authority to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearm actions or receivers, firearms accessories, and ammunition made in the state from basic materials.
(14) The attachment or use of firearms accessories in conjunction with a firearm manufactured in the state does not subject the firearm to federal regulation under Congress's power to regulate interstate commerce, without regard to whether the firearms accessories are themselves subject to federal regulation.

Sooner or later this law will be challenged in federal court.  I assume, one way or the other, tax payer dollars will be used to defend the suit.  Utah will lose the case, and our tax dollars will be wasted.  It is possible, however, that one of the several Utah gun manufacturers will be the subject of the law suit.  In that case, I think Utah would have the obligation to intervene in order to uphold its law, assuming that the gun manufacturer was following Utah firearms regulations.

Photo: Handgun manufactured in Utah by North American Arms

The US Constitution gives the federal government two main powers which they use to make laws that affect us on a daily basis.  First is the commerce clause. The second is the usually improperly used power to tax and spend, often referred to as the power of the purse.

THE COMMERCE CLAUSE

The federal government has the right to regulate interstate commerce.  Article I, Section 8, Clause 3 of the Constitution  states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".  The basis for the Firearms law is that it is dealing only with intra-state commerce (under the assumption that the guns are made and sold in Utah so they obviously stay in Utah).  The truth, however, is that no lawyer can say with a "straight face" say that 1) a Made-in-Utah gun will never be sold or transported outside of the state, and 2) that manufacture of firearms in Utah have no impact on interstate commerce.

The cases decided by the U.S. Supreme Court make it very clear, especially in our age of modern transportation, that nearly all, if not all, manufacturing activities have an impact on interstate or even international commerce, and can therefore be regulated by the federal government.  In fact, there was a case decided in 1942, in which it was clear and undisputed that a farmer was not selling his wheat, but was growing the wheat for his own use (to feed his chickens and his family).  Nevertheless, the Supreme Court, in a case titled Wickard v. Filburn, 317 U.S. 111, determined that by producing his own wheat for his chickens and other personal use, the farmer was not buying chicken food, and not buying bread for his family, therefore, his actions did have an effect on interstate commerce.  To understand this case at all, you must understand that in an attempt to recover from the Great Depression, congress passed a law in 1938 to limit the amount of wheat each wheat producer could grow, in order to drive up the price.  This farmer was allowed to grow 20.1 bushels of wheat per acre, which equaled 11.1 acres for an average yield (congress apparently thought they could legislate mother nature, I can just imagine some congressman saying,  “each acre will produce 20.1 bushels of wheat, no more, no less”).  Nevertheless, the farmer planted wheat on all 23 acres and from the excess 11.9 acres he harvested over 20 bushels of wheat per acre.  He was fined 49 cents per excess bushel.  In the past, he had sold some of his wheat, used some to feed his animals, and used some to make bread.  The farmer freely admitted that he had over produced, and admitted that none of the excess wheat went to market, but was used for personal purposes.  But, as I stated above, the court found that while the over production of wheat for a single farm, stored for personal use, may be trivial enough, but not so much to remove the grower from the scope of the federal regulation where his contribution, taken with that of many others similarly situated, is far from trivial.

Other cases talk about the stream of commerce.  In the case of a firearm manufactured in Utah, once it is sold, the firearm is placed into the "stream of commerce."  Once in that stream, it is nearly impossible to dictate that the "stream" will never leave the state of Utah.  Just imagine trying to control where a firearm goes after it leaves the sporting goods store.  It is more difficult to purchase a pistol, so there would be more control on whether that gun leaves the state, but not enough to guarantee that the pistol will not ever be sold outside of Utah.  Suppose someone buys a "Made in Utah" pistol, by going through all of the proper channels. The gun owner falls on hard times and pawns the pistol.  Then suppose a Nevada resident purchases the pistol and takes it back to Nevada.  That pistol entered into the stream of commerce in Utah but "flowed" out of the state, becoming an item of interstate commerce.  The possibility of a Utah Made rifle leaving the state is even more likely.  There is no requirement that a buyer of a rifle be a legal resident of Utah.  Someone can come in from Wyoming, go to any store that carries firearms (like Wal-Mart), purchase a rifle and return to Wyoming.   The firearm entered the stream of interstate commerce immediately after being purchased.

Now looking at the “Firearm Protection Act” in light of the Wickard case, if Utah residents who buy firearms are purchasing the "Made in Utah" firearms, they are no longer buying a Smith and Wesson, or a Sig Sauer, or a Glock, or a Remington.  That has a cumulative effect or impact on interstate commerce.  Therefore, whether it be under the reasoning that "Made in Utah" firearms will eventually enter the stream of interstate commerce, or that by purchasing "Made in Utah" firearms, other firearms that are unquestionably part of interstate commerce are not being purchased, (thereby affecting interstate commerce), the federal government, under the commerce clause, has every right to regulate "Made in Utah" firearms to the same extent that it properly regulates any other firearm.*  As I see it, there are plenty of other venues in which the Utah State Legislature can, and should, flex its States’ Rights muscle, but the Firearms Protection Act was simply not the right venue.  Tax payer funded fights should be chosen with great care as to the likelihood of a positive outcome.

* (I make no opinion here as to whether all the federal regulations of firearms are proper under the commerce clause.  My gut reaction is to assume that the federal government oversteps its authority in regulating firearms, under the auspice of the commerce clause, like it does in most everything else.  See for example US v. Lopez, 514 U.S. 549 (1995) where the US Supreme Court held the Gun-Free School Zones Act of 1990 "exceeds Congress' Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce.")

Judge Learned Hand . . . What a name

I always find it extremely difficult to take my mind off of work. So while thinking about work, I started thinking about Judge Learned Hand. Learned Hand was a judge on one of the federal circuit Courts of Appeal, and yes, his first named was Learned. I don't think his writing or legal reasoning were greatly superior to other federal judges who wrote appellate opinions, but for some reason other judges, in writing their appellate or district level opinions, very often have cited to Judge Hand's opinions to give support to their own findings. (It is a very common practice for appellate judges to cite other cases, and then to either show how the the other cases support their current findings, or how the current case is significantly different from the one being cited. It is much less common, however, to cite the name of the authoring judge unless it is one of the US Supreme Court Justices). This then begs the question as to why so many other judges have cited Judge Hand's opinions and also stated the author's name. I think the silly, obvious answer is the correct answer; they like to say his name. Judges like to say, "according the the learned Judge Learned Hand in XYZ Case..." I guess this shows that judges are people too. 

Photo: Judge Learned Hand

The Night in the Hospital; or The Pain Richter Scale

“How would you rate your pain on a scale of 0 to 10, zero being no pain and 10 pain the worst pain you have ever felt?” This is what I was asked, ever couple of hours after I was admitted to the hospital on the fateful night of December 5, 2009, with a right foot Lisfranc Fracture / Dislocation. By the time I was admitted from the ER for overnight stay, my pain had indeed increased. But, really, how do you measure pain? It is so subjective. I have had clients rate their back pain at 8 or 9 after a moderate impact accident. I suspect that I would have rated the same pain as a 4 or 5, because the scale is uniquely based on personal experience.

So what was my personal “10” on the pain scale? My patellas (knee caps), from time to time, dislocate from where they should be. It usually tends to be at very inconvenient times, like the time I was hiking down from Mount Timpanogos. When one of them dislocates, I scream uncontrollably, usually fly up into the air, flailing about like a fish out of water and shouting obscenities, in an attempt to get pressure off of my leg, which will allow the patella to return to where it should be. Then I land in a crumpled heap on the ground. I then cry between hyperventilating breaths, because it hurts so bad. Fortunately, once the patella is back in place, the intense pain begins to subsides, and then it just hurts “a lot.” It makes my pain level spike just thinking about it. So when the nurse at the hospital asks me what my foot pain level was, I never even approached a 10. I think it would peak at a 7 or maybe even 8, and I determined that a 5 was a tolerable pain level that I could live with and even get some sporadic sleep. I can’t help but think that my 7 would have been other peoples’ 10. Then again, I am sure there are others who would think I was simply a wimp when I said my pain was at a 7 and would say that I simply didn’t know what true pain was. But should I have used my patella dislocating pain as my basis of comparison? The knee-cap pain is extremely intense but quickly subsides, whereas the foot pain, that night, rated from 5-7 or 8, was constant, but less intense, so maybe I wasn’t comparing apples to apples. Again, it’s just so subjective.

Pictured: My foot X-ray after the first surgery

I was able to get through the night by sleeping for up to 90 minutes or so, then calling in the nurse to ask for either oral pain meds or the intravenous Dilaudid (hydromorphone) along with an anti-emetic. I alternated the between the two throughout the night. Then came morning, and Dr. Richards, who was the orthopedist on call that night, came back to see me. He was extremely concerned about the swelling, and the resulting internal pressure. He opted to located some testing equipment to measure the pressure in order to determine whether my foot needed to be opened up just to relieve the pressure. The testing equipment consisted of a really long and fat syringe thingy with a pressure gauge on it. It looked real nasty to me, so I tried not to look at it too much. I was also on mind-altering pain medication, so I can’t recall exactly what it looked like. So Dr. Richards numbs up my foot with local anesthetic and then starts probing. I recall he put those long needle probes into three places on my foot. Two were essentially non-painful entries, but one of them really hurt. (Pain scale rating: a lot). The test results were positive, which in medical lingo means: not good for me. However, the literature on the subject states that the inflamation pressure should be correlated with my blood pressure, and if my blood pressure is around normal, my foot would not have to be opened up. I think they checked my blood pressure three or four times within a ten minutes span to get a good average. Thank goodness for not having high blood pressure. Based on the combined result, Dr. Richards opined that I could forego the “pressure letting” (my terminology, not his) and be discharged for home.

I was so happy to be out of the hospital. Based upon the limited experience overnight in two different hospitals (I know, I know; not enough information to form a statistically sound opinion), I found that the nurses working the graveyard shift simply care about their patients more than the daytime nurses. Trying to get home, however, even though we live less than 10 miles from the hospital, was not fun. I felt every bump in the road, and the anti-emetic was wearing off, with the emetic effect of the pain medication taking its effect.

Now every time I go to physical therapy, I have to rate my current pain, my pain over the last week, and over the last 24 hours. I told the PT assistant that the pain scale is very subjective, so I question is true viability as a diagnostic tool, and that now I view it as being more similar to the Richter scale, where a 4 is ten times worse than a 3, a 5 is ten times worse that a 4, and so on. I guess it should be called the Pain Richter Scale.

Falling from a ladder; the start of an adventure

On December 5, 2009, I fell from a poorly positioned ladder and broke my right foot. Unlike my clients, I have no-one to blame but myself for my injuries. Nevertheless, injuring myself gave me a unique look into what many of my client’s go through when they have been injured by another.

I was up on my ladder, trying to put my Christmas lights on. I already had two strings of Christmas lights on the outside of the house, and was now working on my third. I had even used little plastic holders for each light in order to make the Christmas lights look very nice and straight. I put the ladder up, but was a little concerned about putting the ladder against the rain gutter, so I devised a better plan. I wedged the ladder in underneath the rain gutter thinking that it would not slip; it seemed so very sturdy. However, once I got all of my weight at the top of the ladder, the bottom began to slide from underneath me, and I began to fall. I recall trying to grab the rain gutter to try and catch myself; I obviously was able to grab the rain gutter, but not hold on to it, as the rain gutter is now bent out of shape. I recall as I began to fall, that I had a feeling of denial and disbelief. I could not believe that I was really falling; things like this don't happen to me! The next thing I knew, I was lying on the concrete with a tingling sensation in my feet. The pain was not intense, in fact was quite mild, but I knew something was wrong. I didn't really try to move, but rather reached for my cell phone and called my wife, Rochelle, who was in the house. I said, in what I felt was kind of a serious timbre, “Can you please come outside?” I guess I didn't sound serious enough, as she responded by telling me that she did not want to come outside because she was in her pajamas lying in bed. I then said, "I think I broke my foot, can you please come outside?" Immediately, she got dressed and came out with my oldest daughter Alyssa. They helped me up, with Alyssa on my right and Rochelle on my left. Our driveway, however, is slanted and Alyssa is taller than both my wife and I, and that simply wasn't going to work, as she was on the up-side of the driveway. I asked then to switch places, and that was doable for getting me into the house.

Once I got into the house, I laid down on my bed and Rochelle helped me get my right shoe off. Once I saw my foot, I knew we were going to go to the hospital. We got in the car, and started driving to the emergency room. Naïvely, we were hoping to be able to simply go into the hospital and get the bones set and casted, and come home. That, however, was not to be. Once we arrived at the hospital, it was a very short wait at the ER, as it is a brand-new hospital, and people have not yet caught on that they can go to the emergency room there. I was immediately admitted, and remember the admitting nurse asking about my pain level. I think I rated it at around three or two, as it really was not hurting too bad, but both my right foot and my left great toe were tingling. This was to be my start of understanding how arbitrary the 0-10 pain scale really is.

I was then taken into the backroom, where x-rays were taken. Once the x-rays were taken, the ER physician working that night, came in and told me it was a bad fracture and asked if I needed any intravenous pain medication. The pain was still minimal, so I declined the intravenous medication, but did accept, with the doctor’s encouragement, an oral narcotic. He then called the orthopedist who was on call that evening. As we were waiting for the orthopedist, my foot began swelling and hurting. The ER doc came back and again recommended that I take the intravenous pain medication, which I then accepted. I was glad that I did, because from that point on, through the next 24 hours, the pain was extreme. The orthopedist arrived, looked at my x-rays, and immediately decided to admit me overnight in the hospital, in order to monitor the pain and swelling. He said it was the worst foot fracture he had ever seen, telling me that he wouldn’t even consider trying to repair it, but would refer me to a foot specialist.

Meanwhile, the ER nurses where all a buzz about my x-rays. Apparently, from a “cool looking x-rays” stand point, mine were quite impressive. One of the nurses asked my wife if we had seen the x-rays yet, and she said no. The nurse then, very excitedly, took Rochelle behind the Nurse Station counter to show her the x-rays. We would later find out that the break was called a Lisfranc Dislocation Fracture, which is a dislocation and fracture of some or all of the metatarsals at the arch of the foot. We also latter discovered that my fractures and dislocations were so complete that the front of my foot had no orthopaedic connection to the back of my foot. As for me, I refused to even look at the x-rays for several days, not sure that I could bear to see what the inside of my foot looked like. But assuming that you are braver than I, I will be looking for a copy of the x-rays and post them.

I then had my foot wrapped up and was taken from the ER to a private room in the hospital. That night, and the night of my surgery to repair the injury, showed me just how arbitrary and subjective the 0-10 pain scale really is. I’ll have to pick up from here on my next post.