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]

Congress overstepped it's bounds

Tpaine begged the question.

[don asmussen]

Typically, when you can't dispute the facts, you start your "begging" routine.

Ho hum..

[Mojave]

you can't dispute the facts,

Imaginary ones.

[inquest]

I've already had to explain this to you before. If guns were dope, then there would have been no point in using the word "and" in the question.

[don asmussen]

Your 'shtick' is really getting boring kiddo.. Get some new lines.

[Mojave]

If guns were dope, then there would have been no point in using the word "and" in the question.

Non sequitur.

[inquest]

Didn't take you long to fold.

[Mojave]

Non sequitur II.

[publiusF27]

Hey paulsen, was the Supreme Court wrong to remand Stewart in light of Raich, or are the commerce clause issues surrounding possession of guns and drugs substantially similar in the two cases? Do they remand one case in light of another when the Constitutional issues are substantially different, or substantially similar?

[Hemingway's Ghost]

Or yourself, apparently.

Nice to see you around these parts again, Roscoe.

[robertpaulsen]

"Do they remand one case in light of another when the Constitutional issues are substantially different, or substantially similar?"

It was remanded to allow the 9th Circuit to arrive at its own conclusion. The implication of "in light of Raich" is that Congress can also criminalize possession of homemade machine guns.

But you knew that.

[inquest]

The implication of "in light of Raich" is that Congress can also criminalize possession of homemade machine guns.

So just for the record, is it your view that the commerce clause (and we're just talking about the commerce clause, not any other part of the Constitution) applies to firearms differently from how it applies to narcotics?

[robertpaulsen]

Applies differently? I don't understand your question.

Congress may regulate the interstate commerce of drugs or guns under the Commerce Clause. Congress may not, however, violate the second amendment.

So, at some point, I would imagine that the two products would be treated differently, but that has little to do with the Commerce Clause and more to do with the second amendment.

[inquest]

Applies differently? I don't understand your question.

All I meant is that prior to the passage of the second amendment, there's nothing to suggest that Congress's commerce power over guns was any different than its commerce power over drugs. I was just making sure you shared that perception.

[robertpaulsen]

"All I meant is that prior to the passage of the second amendment"

So you're basicaly focusing on that period in our nation's history from 1787 to 1791? That crucial 4-year period?

Why is this period so important to you?

[inquest]

It helps in determining the original understanding of the document.

[robertpaulsen]

In what way? Madison had promised a Bill of Rights to the delegation, so that 4-year period is meaningless.

[inquest]

He, Hamilton, and others also insisted that a bill of rights would be superfluous, since the federal governement wasn't delegated the power to do these things in the first place. That's why it wasn't included in the original document. They were afraid that inclusion of it would imply that the federal government could do what was not excepted. They were insistent that the presence of the bill of rights should in no way be construed to suggest that government would be able to do these prohibited things if the BOR hadn't been included.

[robertpaulsen]

So Congress does not have the power to regulate the interstate commerce of guns?

[inquest]

It doesn't have power to restrict the possession of them, and never had it.