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 ...
That is exactly what the 2nd says, paulsen, even though you deny it.
"Keep & bear arms" means we can carry them, in ordinary english.
Doesn't the 2nd apply to everyone? Why, then, don't all states protect concealed carry?
Because they are allowed to so infringe by the fed court system, which agrees with the weird idea that the 2nd does not apply to States. -- As you well know.
When the USSC overturned the sodomy laws in the few states that had them, boom, all the old laws were struck down immediately. Why are there still laws in a few states against concealed carry? Isn't that unconstitutional?
?? - of course its unconstitutional for States to ignore the right to bear/'carry' arms. -- Why are you asking the same question again, one sentence apart?
Why weren't those laws, like the old sodomy laws, struck down? Hmmmmmm?
Because they are allowed to so infringe by the fed court system, which agrees with the weird idea that the 2nd does not apply to States. -- As you well know, -- hummmmm?
The people decide, when writing their constitution, which rights will be protected and to what extent.
That theory is a total fabrication..
Pray tell us paulsen; -- which rights are not protected in those enumerated by "life, liberty or property"?
And the 'extent' by which rights can regulated are also enumerated by the constitutions clear limits on the power of governments at all levels. Correct?
Please, "-- lets settle this once and for all --". Can you make a rational response instead of using your usual tactic of ignoring questions you don't want to answer?
Typically, they don't want to test things with full power bullets, so they use casings with primers.
Of course that would be fatal, and wouldn't help their case. Making cases helps their year to year funding, which feeds their funding.
If I had my druthers, prosecutors couldn't hire expert witnesses who worked for the government, as they are hopelessly biased.
Remember, Alcohol, Tobacco, and Firearms should be a convenience store, not a government agency.
If they had put a .50 BMG round in, it would have disassembled itself.
The military has "proof" rounds to test rifles or machineguns at worst case high pressure. They also have "Squib" rounds that assure function with the lowest permitted pressure.
The ATF uses empty cases with a primer. A substantially different standard from reality.
Now there's a persuasive argument.
Actually you've got that backwards. The "Firearms" "tax" was modeled directly and explicitly on the Harrison Narcotics Act.
"[W]e have followed the Harrison Anti-Narcotic Act in language so as to get the benefit of any possible interpretation that the courts may have made of that act." National Firearms Act: Hearings on H.R. 9066 before the House Comm. on Ways and Means, 73d Cong., 2d Sess. 6 (1934) (testimony of Attorney General Homer Cummings)
The connection is that both ruling say that the federal government can regulate things, under the Interstate Commerce clause, that are not interstate commerce, nor even intrastate commerce, that is not commerce at all. Of course that goes back to the Roosevelt era, when they ruled that a farmer could be punished under federal law for growing grain, with a federal "allocation", that he did not sell in interstate commerce, but rather fed to his own livestock, because in not buying the grain, he "affected" interstate commerce in grain.
And that's the sweet part for the gun grabbers. The whole rational for the National Firearms Act's legality (ignoring the Second Amendment of course) was that it was a tax law, passed under Congress power to tax. But once they, the government, stopped collecting that tax, the law should have become null and void as being beyond the delegated powers of Congress. It wasn't of course, except for a time in a single federal court district, and the "law" stands, even though it not only doesn't something Congress has not been granted power to do, it does something they have explicitly been forbidden to do.
At least in the MJ case, there is no *explict* right to smoke the Shiite enshrined in the Constitution.
And when that opponent continues the same string of abuses?
There is no "substantial effects" clause. That logic, and I use the term loosely, is a creation of the FDR era Supreme Court. The Congress was given the power to regulate Interstate Commerce, which means two things, an activity must be commerce in the first place, and secondly it must take place across state lines, that is be "interstate". Making your own machine gun, or growing your own pot, satifies neither of those conditions. The Court itself recognized this in US vs. Lopze when it struck down the Gun Free School Zones Act, on the grounds that local schools were not engaged in "interstate commerce", and thus Congress could not regulate their activities, directly at least.
Nor may the legislation violate any of the rights protected by the Bill of Rights. The nature of an amendment, which the BoR are, is that it overrides the basic document when there is a conflict.
This principle might not apply to the CA pot laws, but it certainly does apply to firearms laws, because each one of them violated the Second Amendment.
I think a few million people would disagree. Not to mention all the Congressmen, and state legislators, who saw it didn't work, and repealed it. But in meantime, prohibition "made" organized crime.
Clearly Congress had the power to prohibit shipping alcholhol into dry states, since that would indeed be interstate commerce. At least then they recognized that they had no power to just ban alcohol sales entirely, and passed, with the help of the States, a Constitutional Amendment to do it, and to give them the power to enforce that ban. They no longer have that power, the people took it back.
It sure would, but as it turns out, simple machine guns can be made with just hand tools. The only difficult part is the barrel and to some extent the bolt.
That fact interferes with Congress ability to regulate interstate commernce in machine guns it's true. But they are prohibited from exercising that ability anyway. Or do you maintain that the Second Amendment doesn't apply to acts of Congress?
The vast majority of those guns are shotguns, or .22 rifles and handguns. Very few of them are equivalent to the standard issue rifle of the federal Army.
But the real point is that if Congress can violate the Constitution "a little bit", with regards to machine guns, they can violate it a lot with respect to other arms. Or an executive branch can do so on it's own hook as in the case at hand, where they are attempted to regulate "parts" which the law, and their own regulations, define as "non guns". If they can do that, they "ban 'em all" and declare "turn them all in Mr. and Mrs. America" as one Senator declared she would do if she could get the votes.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
They're in there.
A very good example how "reasonable" violations of the explicit language and the original intent of the Constitution, often grow into quite unreasonable violations which, often as not, turn the original intent and the original understanding of the Constitutional provision in question, on their heads.
The FOPA states:
It's not. only transfer and possession of MGs manufactured after the law went into effect.
Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to--
(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection [Page 670] takes effect."
Thus the law prohibits "keeping" of a class of arms. As well as the transfer of them. The latter would be commerce, in most cases, and often interstate commerce. But possession is not commerce and banning it is direct violation of the second amendment. Of course without the ability to transfer newly manufactured machine guns, it's hard to argue that the right to "keep" them is not thereby "infringed".
But then again the Supreme Court has not ruled on the FOPA machine gun ban, although lower courts have done so. At least one federal court struck down the law, on the basis of a lack of Congressional power to pass it once the Tax aspect was removed, while, IIRC, higher level ones upheld it.
>>A very good example how "reasonable" violations of the explicit language and the original intent of the Constitution, often grow into quite unreasonable violations which, often as not, turn the original intent and the original understanding of the Constitutional provision in question, on their heads.<<
Unfortunately, that is an appropriate summary of the problem.
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