PEOPLE v.WILMSHURST Part II

PEOPLE v.WILMSHURST

Filed 1/8/07

CERTIFIED FOR PARTIAL PUBLICATION^*

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Calaveras)

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STORY CONTINUED FROM PART I……

     The defendant's alternative argument is that a state ban on types of legally imported firearms constitutes an impermissible burden on foreign commerce.  He cites a case that invalidated a California tax on instrumentalities used in foreign commerce that would have prevented the federal government from maintaining uniformity in treatment of international trade.  (Japan Line, Ltd. v. County of Los Angeles (1979) 441  U.S. 434, 453-454 [60  L.Ed.2d 336].)  However, he does not even begin to explain how the principles limiting taxation of foreign commerce apply to the present facts.  In light of the inadequate argument, we disregard the claim.  (People v. Oates (2004) 32  Cal.4th 1048, 1068, fn. 10.)  In any event, where Congress has struck an express balance in its regulation of the interests involved in interstate or foreign commerce, a court no longer has any role in identifying possible burdens.  (Merrion v. Jicarilla Apache Tribe (1982) 455  U.S. 130, 154-155 [71  L.Ed.2d 21]; Japan Line, supra, 441  U.S. at p.  454 [noting, in context of foreign commerce, that courts must balance competing interests in absence of any expression of congressional intent].)  As with the issue of preemption, the regulations implementing the U.S. Munitions Import List indicate clear congressional intent to allow any items that would come within the Gun Control Act of 1968 to be subject to the same commerce principles that allow individual states to regulate them after import.  Presumably, once the list establishes the necessary uniform voice in the treatment of munitions from around the world (Japan Line, supra, 441  U.S. at p.  448), it is not of any federal concern that a state declines to be a final destination for them.

C

     On several occasions, the defendant moved to dismiss the charges against him on the basis of the federal statutory use immunity added to the National Firearms Act.  He reasserts this proposition on appeal. 

     The National Firearms Act (26 U.S.C. § 5801 et seq.) taxes and regulates (with various registration and other requirements) the import, manufacture, making, and transfer of machine guns, destructive devices, and certain other firearms.  (See 26 U.S.C. §  5845.)  The chapter contains a statutory use immunity from criminal prosecution for information obtained â€