Posted on 07/01/2006 7:19:16 AM PDT by LouAvul
SAN FRANCISCO (AP) - A recent Supreme Court ruling that Congress can ban homegrown marijuana for medical use in California led Friday to the reinstatement of an Arizona man's overturned conviction for having homemade machine guns.
Prosecutors in both cases invoked the Constitution's interstate commerce clause, despite the fact that the cases centered on items that were homemade, or homegrown, and didn't involve commerce or crossing state lines. The courts ruled, however, that the items still can affect interstate commerce and therefore can be regulated by federal law.
In the machine gun case, the 9th Circuit Court of Appeals on Friday reinstated the convictions of Robert Wilson Stewart, 67, of Mesa, Ariz. The three-judge panel reversed its own previous decision to overturn the convictions because he never tried to sell his weapons or transport them over state lines.
Federal agents raided Stewart's house in June 2000 and found five machine guns, which Stewart argued did not violate the congressionally mandated ban on certain assault weapons because they were homemade and not for sale. The appellate court initially agreed with Stewart and overturned his convictions in 2003, ruling the interstate commerce clause did not apply.
The three-judge panel, however, was ordered by the Supreme Court to reconsider its decision after the justices ruled in 2005 that the federal government could prosecute medical marijuana users and their suppliers even if their activity was confined to California.
In the marijuana case, brought by Oakland resident Angel Raich, the majority of Supreme Court justices ruled that the interstate commerce clause makes California's medical marijuana law illegal. The court said homegrown marijuana confined to the state still can affect the entire national market for the drug, allowing for federal regulation.
The same rationale was applied by the appeals court in the homemade machine gun case.
(Excerpt) Read more at modbee.com ...
I like the way you think.
U.S vs Nelson, 859 F.2d 1318 (8th Cir. 1988). A case that is based on the holding of U.S. vs Cruikshank, 92 U.S. 542, 553 (1876), the right "is not a right granted by the Constitution," the Eighth Circuit concluded that the right is not fundamental. Of course, the statement in Cruikshank - a case which involved the theft of firearms by private citizens from other private citizens - simply meant that the right was not created by the Constitution, but that it preexisted the Constitution and that the Second Ammendment was "to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes" to the state criminal laws. Moreover, the one paragraph opinion cited Miller, Oakes, infra, and Warin, infra, without any explanation, in holding that the Second Ammendment has been analyzed "purely in term of protecting state miliitias, rather than individual rights." While this is true, it certainly does not mean that Miller rejected the conclusion that an individual right was protected. As such, the Court did not err in concluding that it was important that "Nelson has made no arguments that the Act would impair any state militia..."
Therefore the Federal Switchblade Knife Act shall remain inviolate.
Zon: It's how you used it that is relevant. In your 153 post you referenced City of New York v. Miln in support of your argument. Unfortunate for you in Edwards v. California the Court reversed Miln in 1941. 190
The case wasn't cited as support.
You cited/quoted City of New York v. Miln in support of your argument in your 153 post. Note the last paragraph of yours below. Highlighted in bold red showing your argument in agreeing with City of New York v. Miln prior to it being overturned.
robertpaulsen: Wow, did you misquote that decision. Let's start with the exact wording:"The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States."
In other words, the second amendment only protects the citizen from federal infringement. It then says that if you want protection from your fellow citizens of your right to "bear(ing) arms for a lawful purposes", you need to refer to local law.
(State gun cases that cite the second amendment are immediately discarded by the lower courts saying that the second amendment doesn't apply to the states.)
But the interesting thing is that if a federal machine gun case was challenged on second amendment grounds, the case would have to be brought by a militia member (otherwise he wouldn't have standing in the court). And you're right. Machine guns qualify as militia-type weapons.
All that was covered? WOW!
Free Republic Opinion Poll: 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?
| Composite Opinion | |||
|---|---|---|---|
| No | 85.4% | 3,300 | |
| Undecided/Pass | 7.5% | 289 | |
| Yes | 7.2% | 277 | |
| 100.1% | 3,866 | ||
| Member Opinion | |||
| No | 85.8% | 1,715 | |
| Undecided/Pass | 9.1% | 182 | |
| Yes | 5.1% | 101 | |
| 100.0% | 1,998 | ||
| Non-Member Opinion | |||
| No | 84.9% | 1,585 | |
| Yes | 9.4% | 176 | |
| Undecided/Pass | 5.7% | 107 | |
| 100.0% | 1,868 | ||
"In other words, the second amendment only protects the citizen from federal infringement. It then says that if you want protection from your fellow citizens of your right to "bear(ing) arms for a lawful purposes", you need to refer to local law."
I've wasted enough time on this irrelevant garbage. I'm done.
Presser stays on the books so that the Fed Gov can call on the militia when it needs it. This will never be shot down, because Fed GOv knows that it'll shoot itself in the foot in so doing (pun intended).
The think about Presser is that he was convicted not on gun ownership, but in the statute forbidding "bodies of men to associate together as military organizations, or to drill or prade with arms in cities and towns unless authorized by law..."
However, in Presser, the "privileges and immunities" clause of the Fourteenth Ammendment: "[i]i is only the privileges and immunities of citizens of the United States that he clause relied on was intended to protect." Therefore, the court deemed a decision on the question of whether State law violated the Second Ammendment as applied to the States by the Fourteenth Ammendment to be immaterial.
You see how this works? SCOTUS when it operates correctly (regardless of the decision it renders), is as narrow as possible in scope. I don't care in the least if the judges are liberal or conservative: I want judges that are absolutely explicitely clear on the implicite and tacit repercussions with respect to stare decisis their opions will entail.
I've been arguing that the commerce clause is out of bounce with respect to the Second Ammendment.
I've been trying to make an argument the issue should be the Second Ammendment, and the dearth of review of statutes infringing upon it, and it would seem your only interest is in making hash out some perceived misspeak.
Git a gryp!
Paulsen will never admit seeing "how this works". -- He doesn't want the Constitution to work, -- he wants Fed, State, & local governments to have the power to prohibit anything they please.
and it would seem your only interest is in making hash out some perceived misspeak.
Actually, I let him refute his own arguments and then point out how they are refuted. For example, he quotes City of New York v. Miln in support of his argument. The problem is, the court reversed Miln.
If you don't like the way I post that's your problem -- not mine. Deal with it, or don't. Makes no difference to me.
As for what you're doing -- Been There, Done That. He's hopeless. Good luck to you.
They held the Shreveport Rate case as precedent for Congress regulating intrastate commerce in Wickard. I'm trying to figure out when Filburn suddenly became a registered carrier of interstate commerce.
I'm unclear about Paulsen's "not seeing it", or what. All I know is I've presented evidence that SCOTUS has deliberately stayed out of the fray with respect to Second Ammendment, and Stewart screwed up in that regard (he didn't contest infringement). Furthermore, precedent is absolutely clear that relief absolutely needs to be filed in an expediently fashion.
All I'm saying is that if one is going up against firearms charges for "machine-guns" (for crying out loud - Denny Craine - he'd be out as we speak), as opposed to something nepharious like switchblades, or flash-bangs, or weapons such as chloroacetophenone, ortho-chlorobenzylidene-malononitrile, and dibenz (b,f)-1,4-oxazepine, one doesn't argue "commerce clause".
I would argue the pictures I posted. But while not irrelevent, its utterly immaterial: the man in question will not hold a firearm as portrayed in the above pictures any time in the immediate forseeable future (partly because he was in violation of NFA 1939), but predominantly because he put a hit on a judge while in jail because of his case.
The contrast in the arguments on this thread with what is going on outside my window is most astonishing. What I hear outside my window at this very moment makes me think back to the early 80's when I was training in Reagan's military. Based on what I seen on UTube, I could easily conjecture that the sounds might be uncanilly similar to something more pertainant. If I was unbalanced, I'd be needing a little somthing right about now.
We don't need to curtail Congress' power, we need members of Congress that can Curtail themselves. Let me ask you:
Do you have the money to get elected? And if so, how much can you pay me to like you (see FL's Harris/Nelson campaign). Now, once I like you, how well can you resist the money I shovel at you to do my bidding?
I'm arguing that the issue of contention that the merits of the commerce clause - as previously argued at great length - are not only immaterial but outright irrelevant with regards to this particular matter.
We're not arguing the constitutionality of the commerce clause (you'll lose), but its appication respecting the Second Ammendment; if any part of the BOR is let go, the whole thing'll be encroached based on legal precedent.
They held the Shreveport Rate case as precedent for Congress regulating intrastate commerce in Wickard. I'm trying to figure out when Filburn suddenly became a registered carrier of interstate commerce.
Interesting statement.
about 45 minutes ago everything went from full scaled assault to crickets within the space of a heartbeat.
about 45 minutes ago everything went from full scaled assault to crickets within the space of a heartbeat.
About 45 minutes ago you started posting about:
"--- what is going on outside my window is most astonishing. What I hear outside my window at this very moment makes me think back to the early 80's when I was training in Reagan's military. Based on what I seen on UTube, I could easily conjecture that the sounds might be uncanilly similar to something more pertainant. If I was unbalanced, I'd be needing a little somthing right about now. --"
Fancy that.
Fancy that an expert on this thread hasn't presented themselves to you.
Certainly if the answer to #194 is in the affirmative you can then figure out whatever you need to. If not, then you can still figure out what you want to (in that your expert - being a scholastic failure - still exceeds my accumen (and yours).
Thanks for the refresher. =^)
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