Posted on 01/25/2005 3:57:10 PM PST by jonestown
Congress Shall Make No Law
by Matt Giwer
Without going through a myriad of examples of Congress exceeding it delegated authority, let us cut to the quick.
In passing laws in areas not delegated to it in the Constitution, it is not, repeat NOT, responding to new social pressures and changes in the world. I grant there have been many changes in the two hundred plus years since it was adopted. But what Congress is doing is not adapting to those changes.
What Congress is doing is exactly the state of affairs the Constitution itself was intended to prohibit.
For example, at no time was the granting of the power to regulate interstate commerce intended to me the power to prohibit interstate commerce.
If the power to regulate were intended to be the power to prohibit interstate commerce then the federal government would have been granted the power to economically isolate the states. No one suggests that was a power granted to Congress.
Yet, while agreeing there is no power of prohibition, we have many laws prohibiting some forms of interstate commerce. Try selling kiddie porn across state lines with an FBI agent present and see what happens. That is the power of prohibition that was not granted in the general and obviously does not exist in the particular, ANY particular.
The assault weapons ban is the same issue. It is clear that if Congress has the power to ban the manufacture of assault weapons and prohibit them from interstate commerce then in fact Congress has the power to ban any and all interstate commerce, regardless of the commodity.
If Congress should decide it does not want people traveling between states it clearly has the power to make doing so a felony if you grant it has the power to prohibit any activity between the states.
-Snip-
Technology does not change human nature.
19+1 rounds in a handgun instead of one shot flintlocks do not increase crime. In the history of London the single most effective thing to decrease crime was gaslights on the streets. The "guest bedroom" came about as no dinner guest in his right mind would go home after dark in the best of neighborhoods.
So are increasing gun restrictions a result of increased technology? Of course not. But why the increased restrictions?
Because human nature wants regimentation of human behavior.
Regulating the arms a person may possess is as old as human history. When Romans were using short swords "civilian" swords were limited to a fraction of that length. When Japan saw its Samurai system threatened by black powder it banned guns rather than getting better guns. When the peasants revolted against Peter the Great's attempt to industrialize Russia they were banned from having any weapons.
So what is new? The people who claim new laws are necessary because of changing times are NOT talking about laws which address the changes in our times. They are in fact regressing to the exact traditional and primitive response people have always had. And the people specifically did not give Congress the power to exercise those primitive responses.
Why should Congress have the power to prohibit Kentucky from growing and exporting marijuana? Where is it written Congress has the power to prohibit arbitrary items from interstate commerce? The last time that was tried, it was called Prohibition and took a Constitutional Amendment.
Where is it written Constitutional Amendments are no longer needed to do the same thing?
I am fully aware that the points I am raising are at best thirty years away from a "concerted and no failures along the way" effort to be recognized again as the meaning of the Constitution. It really is time to start over. At present the country is on a path of worship it prior decisions and refusing to admit its previous errors lest "the turmoil be too great."
It is trivial to point out that a finding against all federal drug laws would wreck havoc upon our country. But it is more important to uphold justice in that they have committed no crime as Congress had no power to pass any such law.
We are arguing our own precedent rather than the Constitution. The Constitution is not sacred. It can be changed at any time and the means of changing it are stated within it.
But when these "forces of change" are in fact regressions to exactly the arbitrary powers of government it was intend to prohibit, that is not progress. It is not response to changing times. It is regression to pre-constitutional times when anything was fair game. Gentlemen and ladies, it looks like a duck, it waddles like a duck. I would prefer to believe it is a duck than a Constitutional law.
All well and good, but that's not what we're talking about here, is it? Basically, you're saying that, in your opinion, the federal government shall not infringe on an individual's RKBA. Fine.
That says nothing about the states and what the states are allowed to do.
"We don't need incorporation for the 2nd to apply to the states."
Of course we do. Just as we need incorporation for the 3rd Amendment, the grand jury indictment clause of the 5th Amendment, and the 7th Amendment for those, too, to apply to the states.
The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Not the states. The states had their own constitutions.
Last I checked, the 4th and 5th Amendments applied to the states upon ratification - states or localities could NOT carry out warrantless searches - in fact, it would have been absurd to believe otherwise, given that the feds had little or no law-enforcement capacity prior to the Civil War.
A posterboy for your cause?
Which had to comply with the Bill of Rights where individual amendments did not specifiy otherwise. So the 1st did not apply - but 2 through 8 did, because they did not have the "Congress shall pass no law" qualifier.
The Constitution could be rewritten to agree with the US code.
Lawrence Tribe believes that the 2nd Amendment imparts an individual right - which supercedes state or federal powers.
But I really don't care to waste more time arguing with someone who talks about states rights and then turns around and defends the powers of the feds to block state initiatives on medical marijuana (and no, I don't smoke the stuff).
Actually...if anyone cares about the scriptures...Our Heavenly Father wrote the laws...man is ONLY suppose to follow them and enforce those laws. Man was NEVER suppose to make laws.
More like the founding father of yours. Socialist communitarianism enabled by living document jurisprudence.
It continues to exist anyway.
The point is that if some things are to be banned, it must be done so in a completely Constitutional manner - lest something you do approve of be improperly banned as well. Our government has been given explicit and limited powers; operating outside those powers can only lead to very bad things.
Montana is heading that way, working on a bill stating in effect "certain things made entirely in Montana are none of the fed's dang business so long as they stay in Montana."
Of course they could, provided it wasn't against their state constitution. It wasn't until 1949 in Wolf v. Colorado that the USSC incorporated the 4th amendment and made it applicable to the states.
And even then, evidence obtained by an unlawful search and seizure was admissible in a criminal prosecution. That is, if it wasn't against the state constitution, the police could break down your door, seize evidence, and use that evidence against you in a criminal case. And you had no federal fourth amendment protection.
Finally, in 1961 in Mapp v. Ohio, the USSC incorporated the Exclusionary Rule of the fourth amendment and made it applicable to the states (essentially saying, what good is the fourth amendment if the illegal evidence can be admitted?)
The above were state fourth amendment cases. The fourth amendment always applied to the federal government.
A more likely outcome.
Indeed.
From George Washington's Farewell Address
"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield. "
Leave me out of it.
You like the ends, but want to disassociate yourself from the means, eh? Sorry, you're guilty of supporting what you're accusing everyone else of.
As a "national" citizen, Presser is entitled to the privileges and immunities of a citizen of the United States. The second amendment is neither a privilege nor an immunity -- it is a protection of a right against federal infringement.
As a Citizen of the State of Illinois, his RKBA is protected by his state constitution. Only.
"the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government."
Yay for the judge. But I don't believe dicta are binding on the lower courts.
Like I care.
For the second time, tell me what was incorrect, or biased, or misleading in that quote.
If there is nothing incorrect, or biased, or misleading, then maybe you should just shut up, huh?
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