The Commerce Clause and You

Discussion in 'Off-topic' started by Malum Prohibitum, Jan 24, 2006.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I have posted before that the federal courts' interpretation of the Commerce Clause is more important to gun rights than the federal courts' interpretation of the Second Amendment. Some of you will recall Raich, the case from last summer that was referred to as the "medical marijuana" case. Well, here is a good article on why this case ought to matter to you, a lot.

    http://www.claytoncramer.com/DrugsGunsAndMoney.html

    This article was written before Judge Alito was nominated for the Supreme Court. If his Rybar dissent is any indication, he holds the opposite view of Justice Scalia and the liberals who voted with him. Maybe there is a chance to finally turn this Commerce Clause interpretation around after seven decades of jurisprudence.
     
  2. jrm

    jrm Sledgehammer

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    MP,

    Good article. Thanks for sharing. The case of the made-from-scratch home-made machine gun is interesting, but that might be a bit of a rarity (it's much easier to convert an existing gun to full auto than to create one from scratch). More likely might be the case of a home-made suppressor. Duct taping a 2-liter bottle to the muzzle of a gun is a violation of federal law (and the 2-liter bottle has been converted into a "firearm" under federal law). Is this really connected to interstate commerce?
     

  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Whew! I was starting to think nobody cared about the Commerce Clause, because it isn't the Second Amendment!


    And, just so we're clear, I don't think the Founders ever intended for the Federal Government to have the power to ban anything just because of Article 1, Section 8, clause 3, much less firearms, whether they have moved at some point in interstate commerce or not.

    The whole rationale for the majority in Rybar (the Third Circuit case from which Alito dissented) was that banning X affects the demand for X (in this case machine guns) and, well, reducing demand sounds very much like affecting "Commerce" and the economy, doesn't it? (Yes, I am being sarcastic). Under that sort of reasoning, what can't Congress ban? The same question goes for Raich.
     
  4. gruntpain1775

    gruntpain1775 New Member

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    bump..I know it's old, but the Commerce clause is often forgotten. Just thought this thread should have a breath of life again.
     
  5. three se7ens

    three se7ens New Member

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  6. gruntpain1775

    gruntpain1775 New Member

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    It did for me...puter pulled a cached link maybe? I bet MP can find it again. :D
     
  7. barelyillegal

    barelyillegal New Member

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    Couldn't get the link to work either.
     
  8. Fallschirmjäger

    Fallschirmjäger I watch the watchers

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    Re:

    MP, I don't think you're being sarcastic....At ALL. If I remember correctly, that is exactly the reasoning that was used in one case. My memory is extremely hazy about it as I can only recall hearing the tale once but....
    I believe there was a farmer who raised his own wheat, strictly for the use of him and his family, and from seeds produced by his harm in the previous year. I seem to remember the reasoning used that Since his wheat never crossed state lines, it impacted Commerce because it Could have been sold on the market. Forgive me if none of this strikes a bell or is even correct, I have not researched the matter.



    EDIT: OK, I just had to go out and find how close I was to remembering correctly. The case is Wikard v. Filburn
    See also HERE

    Filburn argued that since the excess wheat he produced was intended solely for home consumption it could not be regulated through the interstate Commerce Clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would certainly become substantial. Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Wikard v. Filburn was cited with approval in Raich.
     
  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Wikard v. Filburn was cited with approval in Raich.
     
  11. barelyillegal

    barelyillegal New Member

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    Seems the courts have a problem differentiating between actual "commerce" and "effects on commerce." They seem to use the two interchangably.
     
  12. MrMorden

    MrMorden New Member

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    Are you kidding?!? The CC is far more abused than the 2A, and much more far-reaching in its scope and ability to harm us citizens. :(