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]

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?

And no action of Congress ever been overturned by the Supreme Court on 3rd Amendment grounds.

[robertpaulsen]

"Without that, your view of the commerce power in regard to both is the same."

Geez. And without the U.S. Constitution where would we be? Wanna start a thread on THAT hypothetical?

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

Wonder no more. Constitutionally, Congress can prohibit any drug they wish. Gasp! The voters, however, may not let them do that.

My point, which you missed, was that Congress may not prohibit ALL interstate commerce. Some? Yes.

[Mojave]

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

No, no, the militia is supposed to be a leaderless mob roaming the streets and firing at will. You know, like the Crips and Bloods.

[publiusF27]

Yeah, I know about Knob Creek, my brother goes to the machine gun shoot up there. I've fired a machine gun on my own property. But none of that changes the fact that I did answer your question about who said they are banned. The Justice Department said it in that cert petition. Also, machine guns, like people, do not live forever. If they are fired, they wear out. If they are not fired, they can still be destroyed by fire, flood, hurricane, or they can be stolen. Since 1986, there have been no new ones introduced into the civilian market, and there will not be, under the law. The existing stock will one day be gone, and it is already too expensive for virtually all citizens. That means that, for practical purposes, I'm banned from having a machine gun because I can't shell out the ten grand or so it would cost. As the finite supply runs out, that situation will get worse. When the last one in civilian hands is gone, that will be it. The ban will be complete.

Kind of like, when the last of those 6 people dies, that will be it, the ban on cannabis will be complete. It's just going to take a bit longer with the machine guns, but they will eventually all be gone, and the ban (under the same commerce power used to ban drugs) will be complete, instead of just being complete for all practical purposes.

[Mojave]

Leaves me wondering which drugs the commerce clause does NOT empower the Congress to prohibit.

Leaves me wondering what income the income tax does NOT empower the Congress to take.

Oh, no, what if they took it all! We would starve!! The income tax must be unconstitional!!!

[publiusF27]

My point, which you missed, was that Congress may not prohibit ALL interstate commerce. Some? Yes.

How much? Any that they can get away with politically?

[robertpaulsen]

"And no action of Congress ever been overturned by the Supreme Court on 3rd Amendment grounds."

Correctomundo.

And no action of Congress ever been overturned by the Supreme Court on 7th Amendment grounds. And no action of Congress ever been overturned by the Supreme Court on grounds of the grand jury indictment clause of the 5th Amendment.

But ... but ... tpaine says the BOR, including and especially the second amendment, applies to the states. How can this be? Could tpaine (gasp!) be wrong?

[Mojave]

Yeah, I know about Knob Creek, my brother goes to the machine gun shoot up there.

Neat trick for them to be able to advertise like that, seeing as how machine guns are "banned".

[Mojave]

How much? Any that they can get away with politically?

How much can they tax?

[robertpaulsen]

Curious that Hamilton didn't say, "to be under arms for the purpose of going through military exercises and evolutions, hunting, sport, and for defense of self, family and home."

Personally, I wouldn't have used that quote to support a position of an individual RKBA. But, hey, maybe publiusF27 doesn't believe in that.

[robertpaulsen]

"Oh, no, what if they took it all! We would starve!! The income tax must be unconstitional!!!"

BWAHAHAHAHA!

[robertpaulsen]

"How much? Any that they can get away with politically?"

How much? 400. Maybe 450. Max.

How should I know? The voters may intervene. The USSC may intervene. The President may intervene. Checks and balances.

Here. Amazon may have this in stock:

[inquest]

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

Of course you do, because it would cause your entire argument to completely unravel.

You know as well as everyone else here that the BOR was considered superfluous. Therefore Congress was never given the power to prohibit possession of guns in the first place. If the commerce clause didn't grant the power to prohibit possession of guns, then it also didn't grant the power to prohibit possession of anything.

Try as hard as you can to avoid it, it'll still come back to bite you. You can run, but you can't hide.

[inquest]

"How should I know?"

That pretty much sums it up, doesn't it?

[Mojave]

The hypotheticals are based on the assumption that our Founding Fathers were fools and that representative government was their folly.

[don asmussen]

But ... but ... robertpaulsen & mojave say the BOR's, including and especially the second amendment, does NOT apply to the states. How can this be?
Could robertpaulsen & mojave (gasp!) be wrong?

You betcha.. Not only wrong, but apostate.

[publiusF27]

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

You suggested a State armory. Where did you get that idea? Specifically. It seems to me Hamilton expected that the feds would be providing for arming the "select corps of moderate extent" and would expect for the "people at large" to provide their own arms. If your "armory" interpretation is correct, why assemble the people to see if they have arms? You can just look in the armory. The only reason I can think of would be to see that they have THEIR OWN arms. Can you think of some other reason?

[robertpaulsen]

"If the commerce clause didn't grant the power to prohibit possession of guns, then it also didn't grant the power to prohibit possession of anything."

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?

[robertpaulsen]

Ah, a smartass. Then you answer the question. How much interstate commerce can Congress prohibit? Oh, and can you back that up with any court cases? (minor point, I know.)

[robertpaulsen]

"You suggested a State armory. Where did you get that idea?"

I got that idea from the fact that states have state armories. I figured that would be a logical and constitutional place to store state militia arms.

Do you have room in your garage for an M1 tank?

"why assemble the people to see if they have arms? "

Are you asking and answering you own question? Why would I assemble the able bodied males between the ages of 18 and 45? According to Hamilton: "Little more can reasonably be aimed at 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."