Federated States of Micronesia v Tosy [2007] FMSC 36; 15 FSM Intrm. 238 (Chk. 2007) (7 September 2007)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as FSM v. Tosy, [2007] FMSC 36; 15 FSM Intrm. 238 (Chk. 2007)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

OMPY TOSY,
Defendant.

CRIMINAL CASE NO. 2007-1502

ORDER DENYING DISMISSAL

Dennis K. Yamase
Associate Justice

Hearing: August 30, 2007
Decided: September 7, 2007

APPEARANCES:

For the Plaintiff:
Joses Gallen, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Defendant:
Harry A. Seymour, Esq.
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944

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HEADNOTES

Federalism - National/State Power; Weapons
The national government’s power to regulate firearms is derived from both its ability to protect the national security under its power to provide for the national defense and its power to regulate international commerce aspects because of the international commerce aspect of firearms manufacture and movement. In combination, these provide the national government with a jurisdictional basis to regulate the possession of firearms and ammunition. FSM v. Tosy, [2007] FMSC 36; 15 FSM Intrm. 238, 239 (Chk. 2007).

[15 FSM Intrm 247]

Federalism - National/State Power; Weapons
The national government’s jurisdiction over firearms is not limited to only certain circumstances or certain quantities. What the national government can regulate in aggregate, it is able to regulate piece by piece; otherwise it would not be able to regulate it at all, and that, is clearly not the case. FSM v. Tosy, [2007] FMSC 36; 15 FSM Intrm. 238, 239 (Chk. 2007).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

This came before the court on August 30, 2007, for hearing the defendant’s motion to dismiss, filed July 11, 2007. The motion is denied. The court’s reasons follow.

I.

Tosy’s motion contends that, in his case, the criminal information against him should be dismissed because, in his view, it does not allege a national offense. Tosy is charged with illegal possession of ammunition, 11 F.S.M.C. 1002; possession of an illegal firearm (.22 revolver), 11 F.S.M.C. 1022; and possession of a firearm without holding s firearms identification card, 11 F.S.M.C. 1006(1).

Tosy concedes that the national government has the power to regulate firearms under its power to regulate foreign and interstate commerce, but contends that his prosecution in this case is an unconstitutional extension of that power. He asserts that there is no "nexus" between his alleged possession of an illegal firearm and foreign or interstate commerce; that once a firearm is imported it ceases to be the subject of national regulation because it is now in intrastate, not interstate commerce, and thus exclusively subject to state regulation; that intent of the constitutional amendment depriving the national government of its power over major crimes was that firearms regulation should be exclusive state jurisdiction; and that therefore the court must dismiss this case for lack of jurisdiction. Furthermore, Tosy contends that the small amount (one revolver and some ammunition) does not implicate the national government’s responsibility to provide for the national defense.

II.

The appellate division in Jano v. FSM, [2004] FMSC 43; 12 FSM Intrm. 569, 576 (App. 2004) concluded the national government’s power to regulate firearms derived from both its ability to protect the national security under its power to provide for the national defense and its power to regulate international commerce aspects because of the international commerce aspect of firearms manufacture and movement. In combination, these provide the national government with a jurisdictional basis to regulate the possession of firearms and ammunition. Jano, 12 FSM Intrm. at 576.

Tosy asserts that the quantity of ammunition and the single firearm in this case fall below the level on which the national government can regulate either foreign commerce or provide for national defense. Tosy would have the court make an inquiry in every firearms case whether the "nexus" to foreign commerce and the threat to national security was great enough that the national government would have jurisdiction to prosecute. He implies below some unspecified and undetermined level, only a state government could prosecute.

[15 FSM Intrm 248]

The court must reject this argument. It asks the trial division to, in effect, overrule the appellate division. This the court cannot do. The Jano court in no way indicated that the national government’s jurisdiction over firearms was limited to only certain circumstances or certain quantities. The court notes that even if Tosy’s claim that one illegal firearm does not endanger the national security were valid, the aggregate of all illegal firearms must implicate national security or defense concerns. What the national government can regulate in aggregate, it ought to be able to regulate piece by piece; otherwise it would not be able to regulate it at all, and that, according to Jano, is clearly not the case.

This reasoning is consistent with the rationale used to deny a similar motion in FSM v. Louis, [2007] FMSC 34; 15 FSM Intrm. 206, 211-13 (Pon. 2007).

III.

Accordingly, Ompy Tosy’s motion to dismiss for lack of jurisdiction is denied.

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