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.

[Mojave]

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

Civilians can own post-1986 dealer samples.

Will you answer the question without appending that falsehood to your reply?

[robertpaulsen]

"A bunch of guys who ran down to the local armory when the British were coming, or did they grab their own guns?"

Surely they had cannons. Where were they kept?

I'm saying that if you got your way and IF the USSC ruled on the second amendment today, they would more than likely allow machine guns, assault rifles, and 50 cals, and would more than likely order these weapons (and all others) stored in an armory.

It is, of couse, possible that such a court would allow personal possession of these weapons (BWAHAHAHAHA!).

"once or twice a year in the hope that they would show up armed with their own weapons."

Then why did he say, "to have them properly armed and equipped" rather than "to see if they are properly armed and equipped" if arms were not to be supplied by the government (as per Article I, Section 8, Clause 16)?

"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."

I draw no connection between the militia of the U.S. Constitution and the National Guard. The militia of the U.S. Constitution does not exist today, and hasn't existed since the War of 1812 when they were found to be inadequate as a fighting army.

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

Ah. Now it's Madison.

I read, "with arms in their hands" as "with arms in their hands" not "with their own arms in their hands".

[inquest]

So you're still wimping out on answering the question. That makes my conclusion all the more likely, which is that the lower courts were indeed following SCOTUS case precedent. I'll be happy to stand corrected on that when you post some facts correcting it, but until then, you're just trying to bluff a junk hand.

But in any case, 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.

[robertpaulsen]

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

All machine guns, not all guns. And only machine guns manufactured after 1986.

"the legal stock gradually wears out or disappears for some other reason, never to be replaced."

Some future Congress could relegalize this. The federal AWB was repealed, so who knows?

[inquest]

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

That's exactly my point. Commerce in guns is not different from any other type of commerce. If, prior to the second amendment, Congress did not have the power under the commerce clause (with I.1.18 attached) to prohibit the possession of guns, then it didn't have the power under that clause to prohibit possession of anything.

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?

*sigh* You're still not getting the distinction between possession and commerce, apparently.

[inquest]

I was honest. I posted to publiusF27 that I didn't know.

With some condescending malarkey thrown in.

For that, I get a smartass response from you.

You got exactly the response you deserved.

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

I think I'll leave you in suspense on that. It's so much more entertaining that way.

[robertpaulsen]

"If, prior to the second amendment, Congress did not have the power under the commerce clause (with I.1.18 attached) to prohibit the possession of guns, then it didn't have the power under that clause to prohibit possession of anything."

Congress did not have the power under the commerce clause (with I.1.18 attached) to prohibit the possession of (some) guns? Says who?

[Mojave]

So you're still wimping out on answering the question.

Dishonest question.

[inquest]

"...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"

Interesting citation when talking about the power over foreign commerce. "Still more expanded range", indeed. And of course, if one thing has a more expanded range, that means the other has a less expanded range.

[inquest]

Dishonest question.

You asked me to clarify what I meant (even though it was already clear to begin with), and I did. From that point on, you've just been in full bluff mode.

[Mojave]

Interesting citation when talking about the power over foreign commerce.

Yep, 1808.

And of course, if one thing has a more expanded range, that means the other has a less expanded range.

Yep, states can't declare war.

[Mojave]

You asked me to clarify what I meant (even though it was already clear to begin with), and I did.

Exposing a false dichotomy, one that assumed that established general principles of law played no role.

For example, if some crackpot comes into court claiming that he can sell dope because he renounced his social security number, it requires neither novel legal principles nor a case precedent to reject his argument.

[don asmussen]

paulsen:

So the Commerce Clause doesn't allow Congress to prohibit the interstate commerce of guns? Or prohibit the commerce of guns with the Indian tribes? Or prohibit the commerce of guns with foreign nations?

The Commerce Clause allows Congress to regulate the commerce of guns with the Indian tribes; --- or to regulate the commerce of guns with foreign nations, -- both of which may be in conflict with the United States.

-- Congress does not however have the power to regulate the commerce of guns among the several States, nor to prohibit commerce among them, as the several States are not in conflict with the United States.

It is ludicrous to believe that the government of the United States is empowered by the Constitution to wage a prohibitive commerce 'war' on its own States or its own citizens.

Paulsen:
Once you are able to support your "in conflict with" qualifier, I'll respond.

Done.. -- Mojave inadvertently posted support for the 'in conflict' observation:

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. ---"

Even though this argument was rejected by Judge Davis of the United States District Court for Massachusetts, his rejection accommodates my 'in conflict' observation:

" --- 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.... ---"

Thus, as we see, Davis 'boldly' admits that Congress can use the Commerce Clause to prepare for conflict, for war..
For war with foreign nations, or indian tribes.. --Not for 'war' against the several States or US citizens.

I will not respond to your made-up garbage.

You mean you will not respond to the facts at issue.

[inquest]

[And of course, if one thing has a more expanded range, that means the other has a less expanded range.]

Yep, states can't declare war.

The "expanded range" comment from your excerpt was made in reference to the commerce power, and it was not making a comparision between the power of federal and state governments.

[inquest]

one that assumed that established general principles of law played no role.

In this case, the "established legal principle" whose existence you're asserting on this thread is that Congress's commerce powers can justify federal prohibitions on possession on articles of commerce. If you're saying that a bunch of lower courts all came to this conclusion at once, independently and unanimously, without any prior SCOTUS cases having established this, then please cite your evidence.

[Mojave]

Mojave inadvertently posted support for the 'in conflict' observation:

Nope.

[Mojave]

The "expanded range" comment from your excerpt was made in reference to the commerce power

And said what?

[inquest]

I already showed you what it said. If you have a point to make, make it.

[Mojave]

If you're saying that a bunch of lower courts all came to this conclusion at once, independently and unanimously, without any prior SCOTUS cases having established this, then please cite your evidence.

Not at once, over time. Repeatedly, consistently, unanimously.

Instead of demanding that I prove a negative, why don't you produce the cite you falsely claimed they "regurgitated"?

[Mojave]

I already showed you what it said.

Which supports your position not a whit. But feel free to try explain how.