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.
(FWIW, those findings appear to be patterned after the findings in the Controlled Substances Act.)
"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."
I respectfully disagree. The primary objection in Lopez was reiterated in US v Morrison: "First, in Lopez, the noneconomic, criminal nature of possessing a firearm in a school zone was central to the Court’s conclusion that Congress lacks authority to regulate such possession.
Secondarily was the jurisdictional element -- the nexus to interstate commerce. Congress addressed this secondary consideration with their "findings".
"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."
No, the court made clear in Morrison: "Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce." They agreed it would open Pandora's box.
"I think this kind of thing shows the commerce clause jurisprudence is out of control and should be revisited"
I think Lopez and Morrison demonstrate that Congress is out of control. Fortunately, we had a Supreme Court that put them in their place.
"Are you arguing that there are no limits to the commerce power?"
Other than constitutional limits, no. Perhaps you can tell me what interstate commerce Congress should not be allowed to regulate?
"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."
Who would be assembled once or twice in the course of a year. These were the militia.
In the paragraph prior, he states that training "all the militia" would be "as futile as it would be injurious". So even he conceded that the well regulated Militia necessary to the security of a free state did not consist of every person or even "all the militia".
"Does that mean that I'm not to act as part of the militia, should the need arise?"
You are part of the "unorganized" militia. You get a pointed stick.
"Would the necessity make it proper that they act as part of the militia?
Because a right is not protected doesn't mean you don't have the right. Millions of Californians legally own guns, yet there is nothing in the California State Constitution that protects their RKBA.