FR Poll Thread: Does the Interstate Commerce Clause authorize prohibition of drugs and firearms?

Free Republic ^ | 11-3-05

[inquest]

There's a new poll up on the side. Do you think the interstate commerce clause of the Constitution authorizes federal laws against narcotics and firearms? Now lest everyone forget, this isn't asking whether you personally agree with such laws. It's about whether your honest reading of the Constitution can justify them.

While you're thinking it over, it might help to reflect on what James Madison had to say about federal power over interstate commerce:

Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

I'll be looking forward to your comments.

[inquest]

It is therefore not surprising that every court that has considered the question, both before and after the Supreme Court's decision in Lopez, has concluded that section 841(a)(1) represents a valid exercise of the commerce power.

And were they breaking new judicial ground, or just following precedent?

[Mojave]

And were they breaking new judicial ground, or just following precedent?

False dichotomy, question beggar. They all arrived at the same conclusion after trying the cases, applying the laws to the facts and analyzing the arguments offered by both sides.

Or by "precedent" did you mean the general principles of law and Constitutional construction that have guided our courts for centuries?

[inquest]

False dichotomy

Not at all. And your response gives away the answer. All they were doing was regurgitating what SCOTUS had already decided on. And the very point under dispute here is whether it had decided correctly. And that's a dispute you like to run away and hide from time and again.

[Mojave]

All they were doing was regurgitating what SCOTUS had already decided on.

Sourceless falsehood.

[inquest]

Sourceless falsehood.

The "source" was your own weak response to my previous post. If you're claiming that it's false, then post the evidence of it being false.

[Mojave]

The "source" was your own weak response

What a lamer.

Proyect and the cases it cited were based on what Supreme Court precedent, inventor of facts?

[inquest]

I gave you a chance to answer the question of whether the cases were based on precedent, or were breaking new judicial ground. You wimped out with your "false dichotomy" dodge, and so I drew the obvious conclusion.

All in all, though, it doesn't really matter. You're still begging the question by assuming that court rulings are evidence of their own validity, the same way you're assuming that acts of Congress are evidence of their own constitutionality. Anything but actually look at the Constitution itself and the context surrounding its enactment.

[Mojave]

I gave you a chance to answer the question of whether the cases were based on precedent

And I asked if you meant case precedent or historic legal principles. Clarifying your deliberate obfuscation proved beyond your mettle.

Now you're asserting that the courts were "regurgitating" a Supreme Court precedent, but you can't cite the imaginary decision.

It's the same old same old.

[inquest]

And I asked if you meant case precedent or historic legal principles.

You didn't seem terribly interested in the answer, having already pronounced the whole thing a "false dichotomy". But for whatever it's worth, I meant case precedent. That's generally what's meant by "precedent".

[Mojave]

having already pronounced the whole thing a "false dichotomy". But for whatever it's worth, I meant case precedent.

Yep. The dishonesty was transparent. False dichotomy.

How ya coming on the fake Supreme Court case precedent?

[publiusF27]

What's fungible about a serial number?

If that is such a crucial difference, why did the Supreme Court decide that Stewart should be decided in light of Raich?

Is stamping a number on a barrel such a foolproof system? Would a barrel of cannabis with a number stamped on it be fungible, or not?

Does it matter under the law whether a machine gun made since 1986 has a serial number or not, or is it, as the Justice Department said, "categorically banned" regardless of whether it has a number stamped on it?

[publiusF27]

Where did he say these federally supplied* state militia weapons would be kept? Specifically.

I see no reason to believe he was talking about federally supplied weapons when referencing "the people at large". Who were the Minutemen, anyway? A bunch of guys who ran down to the local armory when the British were coming, or did they grab their own guns?

"Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American... The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." Tench Coxe, The Pennsylvania Gazette, Feb. 20, 1788.

"to be under arms for the purpose of going through military exercises and evolutions"

Ouch! Better put some ice on that quote.

Why? In context, it seems to make my point.

To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.

He's saying we can't turn all the Minutemen into real soldiers.

"Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year."

I read that as, to do this properly, men of a certain age group should be assembled and armed once or twice per year for State training in all arms. Federalist 29 is not helping your case one iota, unless you're making a case for collective State militia ownership. Maybe you are.

Try as you might to read that as consistent with the "militia = National Guard" modern interpretation of the 2nd amendment, that is not what it says.

First, you clearly invented the part about State training in all arms. That's the opposite of what Hamilton was saying here:

The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it.

How you can look at that and say he was talking about assembling the people once or twice a year for State training is beyond me. You're trying to shoehorn what Hamilton said into your collectivist interpretation of the 2nd amendment, when he was clearly talking about marching "the people at large" out once or twice a year in the hope that they would show up armed with their own weapons.

Madison seems to have Minutemen armed with their own weapons in mind as well:

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

[Mojave]

why did the Supreme Court decide that Stewart should be decided in light of Raich?

The USSC remanded cases to the circuit for decision in response to a request from the Justice Department. The Supreme Court hasn't heard the case, decided the case or ordered what verdict the circuit must make.

Is stamping a number on a barrel such a foolproof system?

It appears to have stood the tests of time and experience.

Would a barrel of cannabis with a number stamped on it be fungible, or not?

Is there such a system? I'd like to learn more about it.

Or, as is more likely, this another detail free hypothetical?

[Mojave]

First, you clearly invented the part about State training in all arms.

United States Constitution:

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress

Darn old Constitution must be unconstitutional.

[robertpaulsen]

Prior to the passage of the second amendment, do you see a difference between the interstate commerce of guns and the interstate commerce of, say, wheat? Or cattle? Or cotton?

What is different about guns? Are they NOT commerce? Are they some holy exception?

Even after the passage of the second amendment, Jefferson (with Madison as his Secretary of State) used the Commerce Clause to prohibit gun trade with the Indian tribes. Are you saying that Congress may NOT regulate/prohibit the interstate commerce of some weapons? And can you point out where that exception is to be found in the constitution?

[robertpaulsen]

tpaine. Once you are able to support your "in conflict with" qualifier, I'll respond. I will not respond to your made-up garbage.

[robertpaulsen]

I was honest. I posted to publiusF27 that I didn't know. For that, I get a smartass response from you.

Now, I ask you the same question. How much interstate commerce can Congress prohibit?

Oh. Mojave wants to know also, so please copy him with your honest response.

[Mojave]

I won't hold my breath.

Acts of Congress Prohibiting Commerce

Foreign Commerce: Jefferson’s Embargo.—“Jefferson’s Embargo” of 1807–1808, which cut all trade with Europe, was attacked on the ground that the power to regulate commerce was the power to preserve it, not the power to destroy it. This argument was rejected by Judge Davis of the United States District Court for Massachusetts in the following words: “A national sovereignty is created [by the Constitution]. Not an unlimited sovereignty, but a sovereignty, as to the objects surrendered and specified, limited only by the qualification and restrictions, expressed in the Constitution. Commerce is one of those objects. The care, protection, management and control, of this great national concern, is, in my opinion, vested by the Constitution, in the Congress of the United States; and their power is sovereign, relative to commercial intercourse, qualified by the limitations and restrictions, expressed in that instrument, and by the treaty making power of the President and Senate.... Power to regulate, it is said, cannot be understood to give a power to annihilate. To this it may be replied, that the acts under consideration, though of very ample extent, do not operate as a prohibition of all foreign commerce. It will be admitted that partial prohibitions are authorized by the expression; and how shall the degree, or extent, of the prohibition be adjusted, but by the discretion of the National Government, to whom the subject appears to be committed? . . . The term does not necessarily include shipping or navigation; much less does it include the fisheries. Yet it never has contended, that they are not the proper objects of national regulation; and several acts of Congress have been made respecting them.... [Furthermore] if it be admitted that national regulations relative to commerce, may apply it as an instrument, and are not necessarily confined to its direct aid and advancement, the sphere of legislative discretion is, of course, more widely extended; and, in time of war, or of great impending peril, it must take a still more expanded range.”

“Congress has power to declare war. It, of course, has power to prepare for war; and the time, the manner, and the measure, in the application of constitutional means, seem to be left to its wisdom and discretion.... Under the Confederation, . . . we find an express reservation to the State legislatures of the power to pass prohibitory commercial laws, and, as respects exportations, without any limitations. Some of them exercised this power.... Unless Congress, by the Constitution, possess the power in question, it still exists in the State legislatures—but this has never been claimed or pretended, since the adoption of the Federal Constitution; and the exercise of such a power by the States, would be manifestly inconsistent with the power, vested by the people in Congress, ‘to regulate commerce.’ Hence I infer, that the power, reserved to the States by the articles of Confederation, is surrendered to Congress, by the Constitution; unless we suppose, that, by some strange process, it has been merged or extinguished, and now exists no where.*”

*United States v. The William, 28 Fed. Cas. 614, 620–623 (No. 16,700) (D. Mass. 1808).

http://law.onecle.com/constitution/article-1/27-acts-of-congress-prohibiting-commerce.html

[robertpaulsen]

"In the case of machine guns, the possession of illicit fungible items that are part of a major market involving interstate commerce, your pretense notwithstanding."

Hmmmm. I thought the possession of licit (registered) non-fungible (serial numbered) machine guns that are part of a major market involving interstate commerce was legal. Am I wrong? Is there a problem?

[publiusF27]

How much interstate commerce can Congress prohibit?

All of it, if we're talking about machine guns built since 1986 in the possession of civilians.

And yes, I have problems with Congress freezing the advancement of civilian gun technology, and problems with the fact that by freezing the actual, individual guns which are legal, they've enacted a slow-motion ban. First, it gets too expensive for ordinary people to own them, then, the legal stock gradually wears out or disappears for some other reason, never to be replaced. Will you finally admit the problem when the very last one in civilian hands is gone?