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FR Poll Thread: Does the Interstate Commerce Clause authorize prohibition of drugs and firearms?
Free Republic ^ | 11-3-05

Posted on 11/03/2005 2:24:08 PM PST by 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.


TOPICS:
KEYWORDS: alito; banglist; commerce; commerceclause; frpoll; herecomesmrleroy; interstate; interstatecommerce; madison; no; scotus; thatmrleroytoyou; wodlist
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To: supercat
I've heard nothing to indicate that the jurors believed beyond a reasonable doubt that O.J. committed the murders

You've never heard of forensic evidence?

481 posted on 11/06/2005 4:43:19 PM PST by Mojave
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To: Mojave
I digress, th jury exercised the long held tradition of Jury Nullification.

OJ should be required to live next door to their family.

482 posted on 11/06/2005 4:45:04 PM PST by TeleStraightShooter (When Frist exercises his belated Constitutional "Byrd option", Reid will have a "Nuclear Reaction".)
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To: robertpaulsen
Sure, if you believe the 2nd amendment protects the forming and arming of a state militia, then you can argue for a number of weapons, including machine guns. Do you really wish to make that argument? You want your little grenade launcher?

What do you think the Second Amendment protects, if anything? Be specific.

BTW, note from U.S. v. Miller: "Certainly it is not within judicial notice that this weapon [a shotgun with a sub-18" barrel] is any part of the ordinary military equipment or that its use could contribute to the common defense." Also note that the Supreme Court did not uphold the conviction of Miller or co-defendant Layton (they had not been, and ultimately never were, convicted) but merely allowed the case to proceed to TRIAL COURT. Had the case actually gone to trial court instead of being mooted in the case of Miller (he was killed in a gun battle, possibly in part as a consequence of not having a trenchgun to defend himself) and plea-bargained in the case of Layton, I think there is little question but that Miller/Layton would have been allowed to argue the fact that trenchguns were in fact part of the standard military equipment and were used extensively in the Great War. Indeed, I suspect that's why the government was so eager to offer Layton a no-brainer plea-bargain.

483 posted on 11/06/2005 4:46:38 PM PST by supercat (Don't fix blame--FIX THE PROBLEM.)
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To: TeleStraightShooter

The important difference is that unlike the 2nd Amendment, there is nothing in our USC to protect the right to self medicate with controlled substances.



Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.


484 posted on 11/06/2005 4:46:44 PM PST by Atlas Sneezed (Your FRiendly FReeper Patent Attorney)
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Comment #485 Removed by Moderator

To: Beelzebubba
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

There's no "retained" right to sell dope.

486 posted on 11/06/2005 4:49:00 PM PST by Mojave
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To: Mojave
You've never heard of forensic evidence?

I have. I also know that there are certain standard procedures for dealing with standard evidence to not only prevent tampering, but to help prove that the evidence was not tampered with. For whatever reason, these procedures were not followed. For example, standard procedure would be to avoid any possible 'DNA contamination', but IIRC, a blanket from the couch was used to wrap the victims. That hair from O.J. was found on the victims thus does not imply that he was ever in direct contact with him; his hair could quite reasonably and innocently have been on the blanket long before the murder took place.

The proper solution to police sloppiness is not for jurors to accept it, but rather for police to follow the proper procedures.

487 posted on 11/06/2005 4:56:34 PM PST by supercat (Don't fix blame--FIX THE PROBLEM.)
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To: Beelzebubba
So the 2nd amendment is superfluous and unnecessary?

No, it is not. That is why comparing the regulation of controlled substances with the regulation of firearms is not on the same footing as this threads title suggests.

488 posted on 11/06/2005 4:59:41 PM PST by TeleStraightShooter (When Frist exercises his belated Constitutional "Byrd option", Reid will have a "Nuclear Reaction".)
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To: robertpaulsen
"Rather than" is "rather than". What's to say? It implies a choice -- it doesn't exclude.

Huh? When you make a choice between two or more alternatives, you most certainly do exclude. You exclude the one(s) you didn't choose.

When the Bible says "Receive my instruction rather than silver", does it mean silver is also an acceptable choice?

489 posted on 11/06/2005 5:01:45 PM PST by Ken H
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To: tacticalogic
I've been very patient with you, but now you're starting to tick me off. Pay attention. This is my last response to you.

Constitution: Do you think the expansion of the Interstate Commerce Clause to include regulation and prohibition of drugs and firearms is a proper use of that clause?

I voted "Undecided/Pass", with the emphasis on "PASS" entirely. WHY? Because the question was wrongly worded. These are two distinctly different issues and they deserved to have their own questions. If that had happened, heres my answers.

Drugs = YES!
Firearms = NO!

490 posted on 11/06/2005 5:05:25 PM PST by Reagan Man (Secure our borders;punish employers who hire illegals;stop all welfare to illegals)
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To: supercat
I think it protects the right of the individual to keep and bear arms (arms defined as what the average soldier would carry into combat) from federal infringement.

What do you think the 2nd amendment protects?

491 posted on 11/06/2005 5:05:54 PM PST by robertpaulsen
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To: Mojave

If there is, it's not protected.


492 posted on 11/06/2005 5:07:22 PM PST by robertpaulsen
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Comment #493 Removed by Moderator

To: Ken H
"When the Bible says "Receive my instruction rather than silver", does it mean silver is also an acceptable choice?"

It means it is a choice. Just not the acceptable one.

"Receive my instruction, not silver" is a command leaving you with no choice at all.

494 posted on 11/06/2005 5:12:51 PM PST by robertpaulsen
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To: Reagan Man
I voted "Undecided/Pass", with the emphasis on "PASS" entirely. WHY? Because the question was wrongly worded. These are two distinctly different issues and they deserved to have their own questions.

Apparently whoever wrote the question thinks differently.

495 posted on 11/06/2005 5:18:25 PM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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Comment #496 Removed by Moderator

To: TeleStraightShooter
So the 2nd amendment is superfluous and unnecessary?

That's pretty much it. You may wonder why it's called the second "amendment", as in, not part of the original document. It's not because a bill of rights didn't occur to the drafters. It was because they didn't consider it necessary, given that the federal government is one of enumerated powers. Listing exceptions to that which wasn't given in the first place seemed weird to them, and even dangerous, in that it would suggest that the feds have all the powers that aren't denied. For that reason, they included the 9th and 10th amendments, which are displayed at #484. Unfortunately, some people still don't get the point, which proves that the founders' initial fears were well founded.

497 posted on 11/06/2005 5:37:01 PM PST by inquest (FTAA delenda est)
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To: Reagan Man
The first passage is from America's governing document. The second passage is from a legal opinion voiced by a Supreme Court Justice. The Constitution is a stand alone governing document. So, what legal passage do you have to offer as an opinion about the Commerce Clause that was written by James Madison.

I don't know of any written by Madison himself off the top of my head. I'm not disputing that what Scalia said is the current state of case law under I.8.3, and thus the Law of the Land. Like Rockingham said, when the text is in dispute, originalists and conservatives often look to the writings of the Founders to determine original intent.

With that in mind, I ask again re Scalia's opinion in Raich:

"the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce."

Is that consistent with Madison in his letter to Cabell, and in Federalist 45? (reposted below)

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.

The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

498 posted on 11/06/2005 5:59:08 PM PST by Ken H
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To: robertpaulsen
When the Bible says "Receive my instruction rather than silver", does it mean silver is also an acceptable choice?

It means it is a choice. Just not the acceptable one.

Exactly! Just like Madison presented a choice; one was acceptable, the other was not.

499 posted on 11/06/2005 6:12:28 PM PST by Ken H
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To: airborn503
There is no delegated power in our USC to declare 'controlled substances' to be prohibited.

That sounds like something tpaine might blurt.

There is a massive interstate commerce in illicit drugs.

500 posted on 11/06/2005 6:59:28 PM PST by Mojave
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