Ninth Circuit restricts Congress's Commerce Clause power [MY TITLE]

Sub Judice ^ | 3/20/2003 | Plainsman

[Grover_Cleveland]

I'm sufficiently excited that I have to post. Today, from Pasadena, we have U.S. v. McCoy, a powerful Commerce Clause opinion by Judge Reinhardt (joined by Judge Tashima) holding the federal child pornography ban unconstitutional as applied to the intrastate, noncommercial creation and possession of images using cameras and film previously shipped in interstate commerce.

[Grover_Cleveland]

McCoy was prosecuted under federal law for taking a picture of herself naked with her daughter. According to the feds, federal courts have jurisdiction because the camera she used had been involved in interstate commerce. The Ninth Circuit rejected that argument.

This is great news. Even the Ninth Circuit is beginning to restrict the powers of Congress under the Commerce Clause. This is NOT a pro-porn ruling: the plaintiff can still be prosecuted under state law. It IS a move to restrict the federal government to something more like the powers the Framers intended.

[EBUCK]

It IS a move to restrict the federal government to something more like the powers the Framers intended.

Would be wonderful if it stood...won't tho. The SCOTUS will knock this thing down.

[Ancesthntr]

This is great news. Even the Ninth Circuit is beginning to restrict the powers of Congress under the Commerce Clause. This is NOT a pro-porn ruling: the plaintiff can still be prosecuted under state law. It IS a move to restrict the federal government to something more like the powers the Framers intended.

I have to second the motion that this is a great ruling. The CC has been used to deny liberties of all kinds, and to justify the expansion of federal power in innumerable ways for many decades. It is about time.

However, I can't eliminate that inner voice that is telling me that Reinhardt did this to protect the pornographer and NOT to reduce federal power. I wouldn't trust that @$$hole until Saddam Hussein converts to Judaism.

[RJCogburn]

The dreaded 9th comes up big! Good news.

[Libertarianize the GOP]

bttt

[robertpaulsen]

As stated in National League of Cities v. Usery, 426 U.S. 833 (1976), the USSC will probably overturn based on:

"[e]ven activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations." Fry v. United States, 421 U.S. 542, 547 (1975)."

McCoy was charged under 18 U.S.C. 2252(a)(4)(B) which states in part:

"Any person who knowingly possesses 1 or more books, magazines, periodicals, films, videotapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer ...."

Based on Fry above, I think that 18 U.S.C. 2252(a)(4)(B) is superfluous. Furthermore, I think the italicized portion of 18 U.S.C. 2252(a)(4)(B) is totally Mickey Mouse.

[EBUCK]

or which was produced using materials which have been mailed or so shipped or transportedIOW, anything and everything. My point exactly, SCOTUS has already claimed fed jurisdiction over all animate and inanimate matter. Child Porn not exclusive.

[robertpaulsen]

"SCOTUS has already claimed fed jurisdiction over all animate and inanimate matter."

Tongue in cheek, I'm sure. The feds got their hands slapped in the Gun-free Schools Act and the Violence Against Women Act cases.

The USSC is tightening up a bit on the "substantial effects" consideration. I don't know how or why the feds got caught up in this case, even if it turns out that they could. More, to me, of a waste of time, money, and resources, than it is a power thing.

[Grover_Cleveland]

I don't know how or why the feds got caught up in this case, even if it turns out that they could.

Apparently the feds got involved because the defendant "left five rolls of film with the Navy Fleet Exchange for processing." (ruling, p. 4027)

[EBUCK]

I don't know how or why the feds got caught up in this case,

Killing time I suppose. Not enough for them to do.

[gcruse]

The Tenth Amendment should have as much enforcement power as the First. Actually, it is just a burned out hole, now, as federalization has become second nature to both political parties. I wonder who has standing to sue for the resurrection of Tenth Amendment enforcement?

[Lurking Libertarian]

Unfortunately, I expect many "conservatives" to attack this ruling as "9th Circuit defends child porn."

[robertpaulsen]

"Unfortunately, I expect many "conservatives" to attack this ruling as "9th Circuit defends child porn."

A headline like that would absolutely not surprise me.

[Sandy]

Fry is dead as far as precedents go. In fact, the only significant thing about Fry is Rehnquist's solitary dissent (well worth reading, btw). In predicting which way the Court will go on this current case, stick with Morrison and Lopez.

[Sandy]

correction: In fact, the only most significant thing about Fry is Rehnquist's solitary dissent.