"and he said the interstate commerce clause "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."Yes, he envisioned the states using the Commerce Clause to resolve their differences in federal courts, rather than Congress passing a law correcting every single dispute - the "dormant commerce clause", if you will. And that's exactly how the Commerce Clause was initially used.
Of course, it was never limited to that. That's not what you're arguing, is it?
"Today we have a federal law on the books which says carrying a gun near a school is illegal because it affects interstate commerce, and you don't see that we have a problem?"
I thought it was correctly decided the first time.
Again, I don't see anything whatsoever in the Commerce Clause that lists any exceptions to what Congress is allowed to regulate. Any exceptions are decided by the U.S. Supreme Court.
"First. It is unnecessary to repeat what has frequently been said by this court with respect to the complete and paramount character of the power confided to Congress to regulate commerce among the several states. It is of the essence of this power that, where it exists, it dominates. Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation."
-- The Shreveport Rate Cases, 1914
But, back on topic. Second amendment. The Founding Fathers never said or even implied that the second amendment protected "All ... who have an operational trigger finger". A living constitution, however, would allow for that.
I always learn something from you, robert. Thanks.
Yes, he envisioned the states using the Commerce Clause to resolve their differences in federal courts, rather than Congress passing a law correcting every single dispute - the "dormant commerce clause", if you will. And that's exactly how the Commerce Clause was initially used.
Of course, it was never limited to that. That's not what you're arguing, is it?
No. The whole concept of a "dormant commerce clause" presupposes that Congress might choose to regulate.
I'm arguing that when we have a federal law saying guns near schools affect interstate commerce and are a federal matter, we have strayed outside the intent of "regulating commerce among the several states." We have a general police power of the kind that those other guys who called themselves "publius" repeatedly said the federal government could never have.
I thought it (Lopez) was correctly decided the first time.
Rhenquist wrote the
opinion of the Court, in which he said:
On appeal, respondent challenged his conviction based on his claim that §922(q) exceeded Congress' power to legislate under the Commerce Clause. The Court of Appeals for the Fifth Circuit agreed and reversed respondent's conviction. It held that, in light of what it characterized as insufficient congressional findings and legislative history, "section 922(q), in the full reach of its terms, is invalid as beyond the power of Congress under the Commerce Clause." 2 F. 3d 1342, 1367-1368 (1993). Because of the importance of the issue, we granted certiorari, 511 U. S. ___ (1994), and we now affirm.
After that opinion, Congress went back and put some congressional findings in
the law:
(1) The Congress finds and declares that—
(A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem;
(B) crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs;
(C) firearms and ammunition move easily in interstate commerce and have been found in increasing numbers in and around schools, as documented in numerous hearings in both the Committee on the Judiciary [3] the House of Representatives and the Committee on the Judiciary of the Senate;
(D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce;
(E) while criminals freely move from State to State, ordinary citizens and foreign visitors may fear to travel to or through certain parts of the country due to concern about violent crime and gun violence, and parents may decline to send their children to school for the same reason;
(F) the occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country;
(G) this decline in the quality of education has an adverse impact on interstate commerce and the foreign commerce of the United States;
(H) States, localities, and school systems find it almost impossible to handle gun-related crime by themselves—even States, localities, and school systems that have made strong efforts to prevent, detect, and punish gun-related crime find their efforts unavailing due in part to the failure or inability of other States or localities to take strong measures; and
(I) the Congress has the power, under the interstate commerce clause and other provisions of the Constitution, to enact measures to ensure the integrity and safety of the Nation’s schools by enactment of this subsection.
If the case were tried again, no court would say there are not sufficient Congressional findings in the law, a primary objection to the previous version of the federal gun free school zones act. In the Raich case, Justice O'Connor, joined by Rhenquist and Thomas, said
in her dissent that "If the Court is right, then Lopez stands for nothing more than a drafting guide..."
I take that to mean three SC Justices agree with me that a new challenge to the federal gun free school zones act would fail because Congress made the changes to the law which the Courts were requiring. In other words, Congress gets to declare that they have authority over something because it affects interstate commerce, and that's all it takes.
I think this kind of thing shows the commerce clause jurisprudence is out of control and should be revisited. Are you arguing that there are no limits to the commerce power? How then could Madison claim that the powers of the federal government are "few and defined"? Defined to be limitless?
The Founding Fathers never said or even implied that the second amendment protected "All ... who have an operational trigger finger". A living constitution, however, would allow for that.
I think they did imply exactly that. They said the right of the people to keep and bear arms shall not be infringed. They also said why this was necessary: the people are the militia.
You have selected a single quote by Madison to suggest that they really only meant a few white guys of fighting age who were part of a regularly trained militia. That's not what Hamilton said in Federalist 29:
Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
He talked of forming and training "a select corps of moderate extent" but he also talked about arms in the hands of "the people at large."
Congress hasn't seen fit to call me out to see that I have not neglected my duty to own some military weapons. Does that mean that I'm not to act as part of the militia, should the need arise?
The "necessary and proper" clause has been used to stretch the meaning of the commerce clause beyond recognition. What if it became necessary for my wife or my neighbor's young son to use some of our guns to defend our little patch of ground against invading troops or the dreaded standing army? Would the necessity make it proper that they act as part of the militia? Both have operational trigger fingers, and darn good aim.
From your Commerce Clause quote:
The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation." Assuming as you do (that states may dictate rules regarding keeping and bearing of arms) this clause would undermine the lack of uniformity among the states ( shall-issue, may-issue, concealed vs open carry) as now displayed.
Since they are not limited in what they may regulate (your notion) why haven't the folks at Commerce cracked-down on the lack of 'uniformity' in this regard? Where's the 'regulation'? Certainly nothing regular exists between the states regarding carry issues (and others).