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.

[robertpaulsen]

And how did they come into possession of them? They "fell from the sky"?

[publiusF27]

It was remanded to allow the 9th Circuit to arrive at its own conclusion.

No, the 9th was already allowed to arrive at its own conclusion. That conclusion was REVERSED and remanded, which strikes me more as forcing them to come to a different conclusion (though in a polite way) than as "allowing them to come to their own conclusion."

What do you suppose would happen if they arrived once again at their previous conclusion? In the extremely unlikely event that they did that, I think we both know what would happen this time around. The Court would simply overrule their decision, but this time they would not send it back to them. It would be a legal bitch-slapping.

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

And, just to be extra clear, that would be because the commerce clause issues relating to guns and drugs are substantially the same?

But you knew that.

Yes, but your buddy Mojave has been complaining about my not including actual quotes showing where your side stands on the similarity of commerce clause issues surrounding prohibited items, be they guns, drugs, porn, or anything else Congress may decide is really extra bad. I figured you are consistent enough in your thinking to verify for me that your side believes that if Congress can prohibit cannabis, they can prohibit machine guns under the same power.

[inquest]

Irrelevant how they came into possession of them. Congress was never given the power to prohibit their possession.

[publiusF27]

And how did they come into possession of them?

Speaking of gun possession, you never answered one of my earlier questions, but I think it is an important one, and would like to hear your opinion.

As I've pointed out, in 1996 Congress effectively overruled the Lopez decision by repassing the Gun Free School Zones Act once again, this time with new language spelling out an interstate commerce rationale. In her Raich dissent, Justice O'Connor spelled out another interstate commerce rationale for that same law.

The law has been on the books 9 years now without challenge. If it stays around long enough, the law, and the commerce clause justification spelled out within that law, start to become rather settled questions, do they not? We don't overturn long-established laws without a very good reason, because the whole purpose of the rule of law is stability and predictability. In 90 years, there won't be a person alive who remembers a time when it was not the responsibility of the federal government to say how close to a school you could be with a gun. The commerce clause rationale contained within that law will be just as long-established.

We already have 4 Supreme Court Justices who would have upheld the old version of the law. They just need one more, and the longer the law stays on the books, the more likely that becomes.

How long must a law be on the books before the Court will become reluctant to overturn it, simply because it has been on the books so long? Does the lack of any challenge to the GFSZA of 1996 concern you? It contains a commerce clause justification which you called "insufficient" in a prior post, but you also said that at this point, it is the law of the land, and must be assumed Constitutional unless struck down. At what point does that assumption become self-fulfilling?

[don asmussen]

paulsen plaintively asks:

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

Congress has the power to "regulate commerce among the several states"; --- Congress does not have a power to prohibit commerce in guns among the several states.

Words have meaning paulsen. -- We are well aware that you imagine "to regulate" means "to prohibit", but nothing in the Constitution itself supports your imaginings.

Can you admit that your only support in this matter comes from other supporters of 'big' government?

[don asmussen]

publiusF27 wrote:

As I've pointed out, in 1996 Congress effectively overruled the Lopez decision by repassing the Gun Free School Zones Act once again, this time with new language spelling out an interstate commerce rationale. In her Raich dissent, Justice O'Connor spelled out another interstate commerce rationale for that same law.

______________________________________


It will be quite interesting to see what happens when the new Alaskan law conflicts with the School Zone BS.

Alaska anti-gun-control law goes into effect Wednesday
Address:http://www.freerepublic.com/focus/f-news/1503545/posts


Perhaps our two 'states rights' devotees can comment?

[Mojave]

your buddy Mojave has been complaining about my not including actual quotes showing where your side stands on the similarity of commerce clause issues surrounding prohibited items, be they guns, drugs, porn

You equate them, not I.

[publiusF27]

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

Has any action of Congress ever been overturned by the Supreme Court on 2nd amendment grounds? It seems to me that the purpose of the 2nd was spelled out pretty well in Federalist 29.

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....This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.

That being the purpose, it seems to me that the very LAST guns Congress should be allowed to ban would be things like machine guns, "assault" rifles, and 50 cals.

So, at some point, I would imagine that the two products would be treated differently

Well, congratulations on your vivid imagination, but they are already doing the opposite of respecting the second amendment, as I've just pointed out. They are STARTING with the very guns the 2nd was most intended to protect.

but that has little to do with the Commerce Clause and more to do with the second amendment.

You can't mean that you're EQUATING the two products, as they relate to the commerce clause, just like in the thread title? Man, Mojave is going to be pissed when he finds out! ;-)

[Mojave]

That being the purpose, it seems to me that the very LAST guns Congress should be allowed to ban would be things like machine guns

Who said they're banned?

[publiusF27]

Cert petition in Raich:

Raich and the instant case have several features in common. Both cases involve commodities that are typically acquired through commercial transactions. Congress has sought to eliminate the commercial mar- kets in both marijuana and machineguns by enacting a categorical ban on private transfer and possession of the relevant items,

*****************************
922 (o)

(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to—

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

**************************************
Yes, you can still get a pre-1986 one, if you pay the tax and undergo the background check and pay the inflated prices. Does that mean they are not banned? Does the fact that the US Government currently grows cannabis for 6 patients mean it is not banned?

[robertpaulsen]

The next person arrested should challenge it. I would. Would the law stand? No. What's your worry? This is a non-issue.

We've been one Supreme Court justice away from all kinds of bad law for some time now. Maybe we, as citizens, should be working on the things we CAN control, like Congress, rather than the things we can't, like the USSC.

If a majority of citizens don't like machine guns and want them heavily regulated, looking around for a bunch of Alitos to vote your way isn't the answer, since you've acknowledged that many decisions are 5-4 already and could easily swing the other way. Looking for a "fell from the sky" justification isn't the answer. Looking for a "it's homemede and I promise not to sell it" loophole isn't the answer.

Hearts and minds of the average voter is where this issue will be settled -- it worked for the federal AWB. This still is a representative republic, you know.

If you think the average voter will put up with "the USSC has ruled that the second amendment says I can have a rocket launcher/machine gun/grenades/etc., so screw you guys", you'll see a 28th amendment so fast it'll make your head spin.

And God help us what it will say.

[robertpaulsen]

"Has any action of Congress ever been overturned by the Supreme Court on 2nd amendment grounds?"

Nope. You want a showdown now, with every lower federal court (save the 5th circuit) saying the 2nd amendment protects the collective right of a state militia?

"That being the purpose, it seems to me that the very LAST guns Congress should be allowed to ban would be things like machine guns, "assault" rifles, and 50 cals."

You bet. You are 100% correct, and that's probably how the USSC would rule.

Of course, they and all other weapons would only be protected from federal infringement as part of a "well-regulated state militia", not an individual use.

But you and I will be able, constitutionally, to go to the state armory, pick up our machine guns, assault rifles, and 50 cals, and march around "once or twice in the course of a year". Wouldn't that be fun?

"You can't mean that you're EQUATING the two products"

Not at all. Pay attention ... please. You know how I hate it when people put words in my mouth.

I said, at some point the second amendment would kick in. There is no constitutional protection for drugs.

[don asmussen]

paulsen wrote:

We've been one Supreme Court justice away from all kinds of bad law for some time now. Maybe we, as citizens, should be working on the things we CAN control, like Congress, rather than the things we can't, like the USSC.

'Maybe' we should be working on insisting that ALL officials [& citizens] should support & defend the Constitutions presumption of liberty? -- Instead of insisting that congress can prohibit firearms & drugs, as you do?

If a majority of citizens don't like machine guns and want them heavily regulated, looking around for a bunch of Alitos to vote your way isn't the answer, since you've acknowledged that many decisions are 5-4 already and could easily swing the other way.

This concept you have that a 'super' majority can "heavily regulate" [prohibit] our rights to life, liberty, or property; -- our right to keep and bear arms, -- is more than repugnant to our founding principles; in effect such 'laws' or amendments would nullify our constitutional contract by reneging on our inalienable rights.

Looking for a "fell from the sky" justification isn't the answer. Looking for a "it's homemede and I promise not to sell it" loophole isn't the answer. Hearts and minds of the average voter is where this issue will be settled -- it worked for the federal AWB. This still is a representative republic, you know.

Yes, representative, but it is also still a Republic ruled by Constitutional law, not by a tyranny of the majority, -- despite what you imagine.

If you think the average voter will put up with "the USSC has ruled that the second amendment says I can have a rocket launcher/machine gun/grenades/etc., so screw you guys", you'll see a 28th amendment so fast it'll make your head spin. And God help us what it will say.

It's quite evident by now what you would want it to say paulsen.. Do you deny that you want governmental control over firearms, drugs, and the other 'sins' you've mentioned herein?

[publiusF27]

How about answering the entire question?

I wasn't asking about the 2nd amendment, I was asking about the commerce clause:

You can't mean that you're EQUATING the two products, as they relate to the commerce clause, just like in the thread title?

[robertpaulsen]

"You can't mean that you're EQUATING the two products, as they relate to the commerce clause, just like in the thread title?"

Just like the thread title? The thread title is asking me to ignore the second amendment? Where? The question in the thread title is bogus at so many levels, I don't know where to start.

The Commerce Clause allows Congress to regulate the interstate commerce of, among other things, guns and drugs. The Commerce Clause allows Congress to regulate/prohibit the interstate commerce of some, not all, guns and some, not all, drugs (among other things). That's it, amigo.

Depending on the USSC's interpretation of the second amendment, Congress may be limited as to their regulatory/prohibitory efforts on guns. Since any Congressional regulation on the interstate commerce of guns has yet to be challenged on second amendment grounds, no one knows the extent of this limitation.

You're trying to equate the constitutional protection of guns to recreational drugs. They're not even close. And I refuse to respond to some hypothetical "but what if the second amendment didn't exist?" BS.

[publiusF27]

Of course, they and all other weapons would only be protected from federal infringement as part of a "well-regulated state militia", not an individual use.

But you and I will be able, constitutionally, to go to the state armory, pick up our machine guns, assault rifles, and 50 cals, and march around "once or twice in the course of a year". Wouldn't that be fun?

Funny, the way I read Federalist 29, it seems that Hamilton was not talking about guns in an armory, in possession of the State. He was talking about "the people at large" outside the context of the "organized" part of the militia.

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. 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. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. 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.

But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it....

It sure looks to me as if he's talking about "the people at large" as distinguished from that "select corps of moderate extent." I don't see anywhere a suggestion that the guns to be used by "the people at large" should be owned and possessed by the State in an armory. It seems to me to suggest they should be owned and possessed by "the people at large." Hamilton said "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." Couldn't they just see that this was not being neglected by opening up the armory once or twice a year to see that all the arms and equipment are still inside? Why bring the people from their homes for that?

[robertpaulsen]

"Funny, the way I read Federalist 29, it seems that Hamilton was not talking about guns in an armory, in possession of the State. He was talking about "the people at large" outside the context of the "organized" part of the militia."

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

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

Ouch! Better put some ice on that quote.

"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."

Assemble ALL the people? Men, women, and children?

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.

*Article I, Section 8, Clause 16

[don asmussen]

paulsen opines & imagines:

The Commerce Clause allows Congress to regulate/prohibit the interstate commerce of some, not all, guns and some, not all, drugs (among other things). That's it, amigo.

After 2000+ posts refuting your unsupported opinions, that's not 'it', roberto..

Depending on the USSC's interpretation of the second amendment, Congress may be limited as to their regulatory/prohibitory efforts on guns.

Simply not true. The USSC's opinions do not alter the Constitution's meaning. Only amendments can alter the Constitution.
You don't know this paulsen?

Since any Congressional regulation on the interstate commerce of guns has yet to be challenged on second amendment grounds, no one knows the extent of this limitation.

Again, not true. Many of us can read the 2nd, and understand that Congress has no power to infringe upon those rights.. -- You can't? It's understandable, considering your political stance.

You're trying to equate the constitutional protection of guns to recreational drugs. They're not even close. And I refuse to respond to some hypothetical "but what if the second amendment didn't exist?" BS.

Another strange comment, - but what else is new?

[Mojave]

[publiusF27]

And I refuse to respond to some hypothetical "but what if the second amendment didn't exist?" BS.

Possibly because the only difference you can point to between the commerce clause power as it can be applied to guns, and the same power as it can be applied to drugs, is the 2nd amendment. Without that, your view of the commerce power in regard to both is the same.

The Commerce Clause allows Congress to regulate/prohibit the interstate commerce of some, not all, guns and some, not all, drugs (among other things).

Leaves me wondering which drugs the commerce clause does NOT empower the Congress to prohibit. Can you think of any?