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.
If anything in the above is incorrect, or biased, or even misleading, let's hear it.
SCOTUS had something to say about that being incorrect:
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as 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. But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect.To wit, the states may not hinder the federal gov't's power to call up the people as a self-armed militia. Back then, that meant the feds could call the citizens of any state to defend the nation, and expect them to show up with their own personal muskets. Today, that means the feds can call the citizens of any state (via "Selective Service", aka "draft") and expect them to show up with their own personal M16s; unfortunately, some states overlook Presser and forbid full-auto, if not lesser, arms.
The 2nd Amendment applies, if only indirectly, to the states. A state may not prohibit that which the federal gov't can expect citizens to have.
Your quote is non-binding dicta. The states are free to do what they want, and are restricted only by their state constitutions.
A USSC case heard 16 years earlier, United States v. Cruikshank, Mr. Chief Justice Waite delivered the opinion of the court:
"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," the state police power.
"A state may not prohibit that which the federal gov't can expect citizens to have."
Sure they can. And the states can point to the U.S. Constitution, Article I, Section 8, Clause 16 which says Congress shall have power "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States ..."
Congress exercised that power with Militia Act of 1792, explicitly stating
That every citizen ... shall ... provide himself with a good musket or firelock ...Do you contend that the states have the power to prohibit that which the Constitution empowered the Congress to require of citizens?
Srry, there=their.
Yep, unless you're saying that the Militia Act of 1792 is still in effect. If so, then the Supremacy Clause would negate any state law.
"Congress exercised that power with Militia Act of 1792, explicitly stating ... That every citizen ... shall ... provide himself with a good musket or firelock ..."
Not quite explicit enough there. The Act first defined the "citizen" as a "free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years ..."
Next, it said, " That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock,"
You're not being completely honest with me, ctdonath2, are you? Why is that?
Fact checking -- no charge.
Yeah, yeah, yeah. So?
California's Ninth Circuit denies white men their guns in every ruling they make. Let's leave race out of this.
Nope. Section 1 removed the power which had been given the Congress by Amendment XVIII, which Congress did not otherwise have. Section 2 created a new, more circumscribed, Federal power of prohibition in those states, territories, and possessions which had enacted local prohibition laws.
If it's intrastate, then it's beyond the powers granted to the Congress by the Constitution.
I don't understand. Congress has the power to address the drug issue. Why do we need a constitutional amendment?
The "selective" incorporation invented by the courts is a travesty of logic. The Fourteenth Amendment was clearly intended (among other things) to generally incorporate the first eight articles of the federal Bill of Rights -- we know that because the people who wrote the amendment said so in plain English on the floor of Congress.
Yeah, it was circumscribed, all right. Section 2 took the "wet/dry" decision from the federal government and gave it exclusively to the states.
You want to do that with drugs, fine. Pass an amendment similar the 21st, Section 2, and you got it.
Section 2 of the 21st amendment demonstrates that the federal government had the power to prohibit alcohol. If they didn't, only Section 1 of the 21st amendment would have been necessary.
That's not the question. Read it.
Like I care.
Exactly, you don't care about incorrect, or biased, or misleading articles as long as they advance your gungrabbing agenda.
For the second time, tell me what was incorrect, or biased, or misleading in that quote.
For the second time, you can use the link to read all about it. -- But you won't.
If there is nothing incorrect, or biased, or misleading, then maybe you should just shut up, huh?
I should shut up? - Why? Because you can't rationalize your support for Time's anti-gun efforts?
Weird stance for an anti-gun nut on a conservative website.
We know that, do we? While it may have been said, it certainly wasn't heard.
There's plenty of evidence that after the 14th was ratified Congress passed legislation that was wholly unnecessary had the 14th amendment, which they themselves voted for, actually incorporated the first eight articles of the federal Bill of Rights.
Not one person, including the originators of the 14th amendment, stood on the floor and said that the proposed legislation was unnecessary since the 14th amendment already covered it.
robertpaulsen wrote:
The states are free to do what they want, and are restricted only by their state constitutions.
Well, if you're going to get your panties in a knot because you're applying 2005 law to events that happened in 1875, I'm not going to be the one to stop you.
A little perspective is required. In 1875, neither the first nor the second amendment applied to the states. The court ruled correctly.
The Enforcement Act of 1870, under which the individuals were indicted, was unconstitutional.
Not one person, including the originators of the 14th amendment, stood on the floor and said that the proposed legislation was unnecessary since the 14th amendment already covered it.
97 robertpaulsen
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.