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.

[indianrightwinger]

That is why I said that the regulation must be interstate commerce related. Criminalizing drugs goes a bit too far, in my view, and tramples states rights.

[MileHi]

As for your gun, it was almost certainly manufactured out of state. Hence, the gun itself is within the definition of interstate commerce and would be under a strict sense of the commerce clause

HorseHillery. According to this case:

U.S. Supreme Court A.L.A. SCHECHTER POULTRY CORPORATION v. UNITED STATES, 295 U.S. 495 (1935)

the Supreme Court said that once the goods arrived in the destination state, the commerce was no longer interstate.Of course the court contradicted itself a couple years later to facilitate FDRs power grab and socialization of this country.Seems theose justices wanted to retain their seat at the table of power.

If a gun, sold new in a given state 30 years ago, is resold today in the same state, how is it still "in interstate commerce"?

[the gillman@blacklagoon.com]

Seconded.

[inquest]

According to this case: U.S. Supreme Court A.L.A. SCHECHTER POULTRY CORPORATION v. UNITED STATES, 295 U.S. 495 (1935) the Supreme Court said that once the goods arrived in the destination state, the commerce was no longer interstate.

I think defenders of the modern mangling of this clause place too heavy an emphasis on the fact that commodities and resources are completely entangled in interstate commerce "nowadays", as if that wasn't the case when the commerce clause was written. You'd think from some of these arguments that everything everybody needed or wanted was all manufactured in the same town, from resources mined or cultivated no more than ten miles away. Nothing could be further from the truth. There was constant trade going on all over the place.

Even before the white man came, there was a pretty extensive system of continental trade. During the colonial era, Americans were largely forbidden by Parliament from setting up manufacturing operations, thus making us dependent on England for manufactured goods. This dependency was lessened slightly after independence, and that really only began to change after the war of 1812. And all throughout that time, there was all kinds of trade up and down the coast.

So even back then, you could scarcely have gone into a store and bought any manufactured item that didn't have at least some parts manufactured out-of-state, or was built from materials that originated out-of-state, or had some other tangential relation to interstate or foreign commerce. And yet no one ever thought to consider it an act of "interstate commerce" to go down to the local store and buy something. So the "modern conditions" argument is largely bogus.

[inquest]

Although it's fine to have legal standards that suggest that, e.g., possession of more than a certain amount of a certain drug creates a presumption that the possessor intended to distribute it, it should be the job of the jury to determine whether such presumptions are applicable in a case before them, or whether other evidence by the defendant shows it not to be.

And even at that, before the feds can even think having jurisdiction under the Constitution, there needs to be strong evidence, not only that someone intended to distribute it, but intended to distribute it across state lines.

[Rockingham]

Schecter, of course, is no longer valid case law, or at least not valid in support of your assertions about the commerce clause. Due to many other cases -- Wickard v. Filburn especially -- Schecter is commonly explained today as correct in its outcome but not on its holding about the commerce clause. Schecter was correctly decided because of the arbitrary character of Roosevelt's NRA, which had excessive delegation by Congress and executive regulations with criminal force promulgated but not published so as to be widely available.

As for guns already manufactured, trade in those too can be considered to be under the scope of the commerce clause as a necessary incident to the federal power to regulate commerce. Colt, S&W, Glock, and the NRA argue energetically in favor of an expansive reading of the commerce clause when it comes to a federal liability shield law for guns. The Second Amendment is a far stronger protection in regard to gun rights than the commerce clause; and against anti-gun liability suits under state law, an expansive view of the commerce clause is a friend to the right to keep and bear arms.

[MileHi]

Schecter, of course, is no longer valid case law, or at least not valid in support of your assertions about the commerce clause. Due to many other cases -- Wickard v. Filburn especially...

I would assert that Wickard is the decision in error. It contradicted Schecter and, working backward from a predetermined conclusion, allowed FDR to vastly expand Federal power beyond any previous understanding of the Feds role. It expanded Federal power such that any notion of limited and enumerated has since become lip service. There is no facet of everyday life that the Fed does not regulate anymore.

[MileHi]

So the "modern conditions" argument is largely bogus.

It is the mantra of would-be tyrants.

[inquest]

an expansive view of the commerce clause is a friend to the right to keep and bear arms.

Oh, please. If it wasn't for this "expansive view", there would be no federal involvement in gun control at all to speak of. And without that, states would find it that much harder to enforce their own gun-control laws.

[inquest]

And notice how it's never cited as a reason to cut back on federal power. Look at the postal system and how out-of-date it is. I'm not even just talking about high-tech telecommunications here. Even aside from that, whereever private companies are allowed to get involved, such as for overnight delivery and things like that, they're able to compete very well with the U.S. postal service. But you never see any court saying, "Oh, well, a literal reading of the Constitution would authorize Congress to set up a postal system, but given how conditions have changed so much since that provision was enacted, we really don't need that anymore." It's only when changing conditions provide an excuse (however flimsy) for increased federal power that constitutional text is treated as nothing but a vague suggestion.

[MileHi]

It's only when changing conditions provide an excuse (however flimsy) for increased federal power that constitutional text is treated as nothing but a vague suggestion.

Precisely. It is a one way door.

[elbucko]

....gun control would also be a state issue as long as it did not conflict with the second amendment

That is the very issue we are dealing with in California right now. The CA Attorney General argues that the 2nd. Amendment only applies to the feds and not the states. He is asserting "States' Rights". Therefore, since California does not have an RKBA amendment in the state constitution, the state is then free to restrict arms and ammo as it pleases.

Right now there is a movement to put a RKBA into the California State Constitution. I am not hopeful of its passage and if it does pass, the courts will most likely strike it down. The feds and the states need to be compelled by the electorate to stop the cynical ambiguity of whether the Constitution upholds the rights of the people, or those in power, be they fed, state, county, or dog-catcher.

I won't hold my breath.

[inquest]

I am not hopeful of its passage and if it does pass, the courts will most likely strike it down.

They won't. They'll need to have at least some vague pretense of an excuse in order to do that, and they won't in this case.

[TKDietz]

"Today, due to modern communications and transportation, commerce no longer can be easily distinguished between interstate and intrastate aspects. When anything and everything is or can be in interstate commerce, how do draw factually valid distinctions between interstate and intrastate commerce?"

Is the item being traded across state lines? At the point that it is being traded or even when the deal to trade it across state lines is being made, that is interstate commerce. If it is being sold out the door of a local shop, that is not interstate commerce. Even if the item came from another state, and is then being sold over the counter to a buyer standing there with cash in hand, that is not interstate commerce and should not be subject to federal regulation. It was only interstate commerce when the item was traded across state lines. Furthermore, it does not make it interstate commerce just because an item sold or manufactured might possibly enter the stream of interstate commerce. The feds can only regulate actual interstate commerce. A strict originalist you are not.

[elbucko]

Criminalizing drugs goes a bit too far, in my view, and tramples states rights.

What is to prevent a state from criminalizing drugs, or any other object or activity, by using "states' rights"?

[elbucko]

And without that, [federal gun control] states would find it that much harder to enforce their own gun-control laws.

Not under a "states' rights" doctrine. A state could confiscate your firearms and there would not be an immediate remedy available to you. "Rockingham" speaks true. The expansive view of the commerce clause has prevented some states from disarming their entire citizenry. Be careful what, and how much of it, that you wish for.

[elbucko]

They'll need to have at least some vague pretense of an excuse in order to do that, and they won't in this case.

I beg to differ. "They" will find that "vague pretense" and it will stall the amendment in the courts. The Democrats fought term limits in California all the way up to SCOTUS. The enemy is not about to change now.

[inquest]

A state could confiscate your firearms and there would not be an immediate remedy available to you.

They'd have to know about it first. That would be harder to do when there's no federal tracking of any kind of retail firearms purchases.

There's also the psychological effect of having no federal gun control. It would make more people more apt to think of gun ownership as truly being a right.

[inquest]

"They" will find that "vague pretense" and it will stall the amendment in the courts.

No. There's nothing at all they could latch on to. The ruling on the term limits amendment had at least a somewhat plausible basis: The amendment denied people the choice of whom to vote for for Congress, and so was arguably in conflict with the federal constitutional provision that Congressmen be chosed by the people. There's absolutely nothing remotely comparable that could be put up against a gun-rights amendment. What you fear simply won't happen.

[elbucko]

They'd have to know about it first.

You just don't get it. Under a "states' rights" confiscation of your firearms, the feds would not be able to stop a house by house search by state authorities. What would be the federal issue? The 2nd. Amendment? The feds would just say: "OK" you can have a gun by us feds, but your present problem is your state has the right to take your guns, we don't. And since this is a state issue, unless you had a 4th Amendment in your state constitution, the state could simply search each house, one by one.

That would be harder to do...

No it wouldn't. The state would glean information from state hunting license records, gun shop records, the records of other states and a reciprocal agreement by states to share firearm related information. Beware, the state is the worst place to go to protect your right to keep a firearm.