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.

[publiusF27]

The USSC finds that machine guns are constitutional as part of a militia.

The public panics.

We do? Why? We didn't panic at the expiration of the mean looking weapons ban. We don't panic over the many pre-ban machine guns currently in private hands.

Besides, allowing the people to keep and bear arms is not just part of a militia, it's essential to a militia.

[publiusF27]

In Silveira v. Lockyer the 9th Circuit Court stated, "The historical record makes it equally plain that the (second-rp) amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession."

They also said this:

The preamble establishes that the amendment’s purpose was to ensure the maintenance of effective state militias, and the amendment’s operative clause establishes that this objective was to be attained by preserving the right of the people to “bear arms” — to carry weapons in conjunction with their service in the militia.

And they're just wrong. Twice. AMONG the purposes was ensuring the effectiveness of STATE militias, AND other militias, such as the volunteer Boston artillery unit I spoke of earlier.

But more importantly, they just DROPPED the whole part about KEEPING arms, and went right to bearing them. Admittedly, it makes more sense than twisting a militia relationship into Congressional authority to infringe upon how we KEEP our arms, as you did here:

The weapons are militia-related. It would be illegal to keep and bear these arms for any other purpose.

So in order to keep from infringing on our right to keep arms, they're going to have to infringe on our right to keep arms. Got it, but I think I'll just keep mine here, not in any stinkin' govt armory. :D

[publiusF27]

I prefer the 9th for my commerce clause opinions, but the 5th for my second amendment material.

From Emerson:

As in England, the colonial militia played primarily a defensive role, with armies of volunteers organized whenever a campaign was necessary. Id. at 139. Statutes in effect bore evidence of an individual right to bear arms during colonial times. For example, a 1640 Virginia statute required “all masters of families” to furnish themselves and “all those of their families which shall be capable of arms . . . with arms both offensive and defensive.” Id. (citing THE OLD DOMINION IN THE SEVENTEENTH CENTURY: A DOCUMENTARY HISTORY OF VIRGINIA, 1606- 1689, at 172 (Warren M. Billings ed., 1975). A 1631 Virginia law required “all men that are fittinge to beare armes, shall bring their pieces to church . . . for drill and target practice.” Hardy, supra, at 588 (quoting 1 WILLIAM W. HENING, THE STATUTES AT LARGE: BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA FROM THE FIRST SESSION OF THE LEGISLATURE IN THE YEAR 1619, at 173-74 (reprint. 1969) (1823).

and they concluded

The individual right to bear arms, a right recognized in both England and the colonies, was a crucial factor in the colonists’ victory over the British army in the Revolutionary War. Without that individual right, the colonists never could have won the Revolutionary War. After declaring independence from England and establishing a new government through the Constitution, the American founders sought to codify the individual right to bear arms, as did their forebears one hundred years earlier in the English Bill of Rights.

I know the other circuits are more in line with the gungrabbers' amicus briefs in that case, but that doesn't mean I have to agree with them all.

[publiusF27]

I thought he saw ME as Spike! ;-)

[Mojave]

State of the art warships and cannons are not warships and cannons?

Amending your argument again.

And who's stopping you from building your aircraft carrier kit?

BTW:

Warship

A ship equipped with guns, for use in war
Cambridge International Dictionary of English

A government ship that is available for waging war
Princeton University WordNet

Convention on the High Seas, 1958 (article 8):
For the purposes of these articles, the term "warship" means a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline.

[Mojave]

Nah, Spike's anyone who will give him some attention.

[don asmussen]

publiusF27 wrote:

I thought he saw ME as Spike! ;-)

:) -- Could be.. I've given upon trying to 'figure out' such a juvenile mind. Seems to be stuck at the comic book/fight club phase.

[don asmussen]

publiusF27 wrote:

I thought he saw ME as Spike! ;-)

:) -- Could be.. I've given upon trying to 'figure out' such a juvenile mind. Seems to be stuck at the comic book/fight club phase. -- Whereas his partner is just stuck on stupid.

[publiusF27]

OK, OK, would it make you happy if I told Paulsen that privately owned cannons were kept aboard "combat-ready" ships instead of warships? LOL!

And how is asking a question amending my argument, anyway?

I'm still waiting on some creditors on the carrier thing. You wanna invest?

[publiusF27]

US v Millerlinked:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Show up with your own weapons, which shall be state of the art, not antiques.

By an Act passed April 4, 1786, the New York Legislature directed:

That every able-bodied Male Person, being [p181] a Citizen of this State, or of any of the United States, and residing in this State, (except such Persons as are hereinafter excepted) and who are of the Age of Sixteen, and under the Age of Forty-five Years, shall, by the Captain or commanding Officer of the Beat in which such Citizens shall reside, within four Months after the passing of this Act, be enrolled in the Company of such Beat. . . . That every Citizen so enrolled and notified shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack; . . .

It didn't say they should go get this stuff from a government armory. It said they should have this stuff themselves, and show up with it.

[robertpaulsen]

"And under what authority would Congress be able to pass such a law"

The Commerce Clause for the health and safety of its citizens. Think of the federal AWB without the "A".

[robertpaulsen]

"Is the court going to write a bunch of rules to define proper storage?"

No, that's just my shorthand way of saying it. Do I need to go through, "How a Bill Becomes Law"?

[robertpaulsen]

"We do? Why?"

Excuse me. Of course I meant to exclude you.

The Sarah Brady bunch panics. The gun grabbers panic. The liberals panic. Machine guns legal and on the streets oh my! Something must be done!

Those groups got federally mandated trigger locks and background checks. Let's not underestimate them, huh? If the USSC said that the second amendment does not protect an individual RKBA, you can bet they'll move on it.

"Besides, allowing the people to keep and bear arms is not just part of a militia, it's essential to a militia."

Besides, allowing the people to keep and bear arms AS PART OF a militia ....

[robertpaulsen]

"And they're just wrong."

And the USSC would use that wrong decision and other wrong decisions by all the other lower federal courts to make their decision -- which would also be wrong. Too late, amigo. It's then settled law. You got your wish, though.

"But more importantly, they just DROPPED the whole part about KEEPING arms"

They devoted very few words to it -- maybe one paragraph in 80 pages of dicta. They simply combined "keep" with "bear", saying it was similar to "necessary" and "proper".

"So in order to keep from infringing on our right to keep arms, they're going to have to infringe on our right to keep arms."

So in order to keep from infringing on our right to keep arms as part of a militia, they're going to have to infringe on our individual right to keep arms. Yep. You got it. That's exactly how the USSC would read it, based on past lower court rulings.

[robertpaulsen]

Cite the 5th Circuit all you want -- it's all we got. Until we get more lower courts ruling the same way as the 5th, it's pointless to be pushing for a USSC decision on the second amendment.

[robertpaulsen]

Fine. The USSC will rule that you may keep "a good Musket or Firelock" at home.

More than likely, the USSC would rule that the second amendment doesn't protect an individual right, and leave it up to each state to decide how they will organize their militia. A state could certainly allow individual possession of any weapon. That's always been true. We're simply talking about federal laws.

[Mojave]

OK, OK, would it make you happy if I told Paulsen that privately owned cannons were kept aboard "combat-ready" ships instead of warships? LOL!

What difference would it make? People own ships and cannons even today, regardless of how overheated your rhetoric is.

[Mojave]

And the USSC would use that wrong decision and other wrong decisions by all the other lower federal courts to make their decision -- which would also be wrong. Too late, amigo. It's then settled law. You got your wish, though.

The law has protected our right to keep and bear arms for centuries, yet they would happily abandon the law for judicial fiat, which they delusionally imagine would mirror their convictions. Their personal will is the only thing they hold important; representative government and the rule of law be damned.

[inquest]

The Commerce Clause for the health and safety of its citizens.

Except there's nothing remotely related to commerce in such a regulation, any more than there's anything related to commerce in the "Gun-Free Schools Act" that Lopez struck down.

Think of the federal AWB without the "A".

The AWB's a regulation of storage?

[don asmussen]

Paulsen opines:

The Commerce Clause [authorizes congressional laws] for the health and safety of its citizens. Think of the federal AWB without the "A".
--- It's then settled law. ---

Mojave agrees:

The law has protected our right to keep and bear arms for centuries, yet they would happily abandon the law for judicial fiat, which they delusionally imagine would mirror their convictions. Their personal will is the only thing they hold important; representative government and the rule of law be damned.

Paulsen supports "judicial fiat" health & safety decrees by Congress, and Moj is too confused to realize it.

So it goes for the brady twins.