The FOPA is coming under SCOTUS scrutiny


PDA






HKUSP45C
November 25, 2004, 08:49 PM
as my understanding goes as of Dec. 6th. What will this mean (if a win is established) for all "commerce clause" laws?

edit; this is the case:
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
ROBERT WILSON STEWART, JR.

If you enjoyed reading about "The FOPA is coming under SCOTUS scrutiny" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!
Kharn
November 25, 2004, 10:36 PM
Supreme Court Docket file for this case (http://www.supremecourtus.gov/docket/04-617.htm)

Well, it should be interesting, we've discussed its implications before, try a search for "Stewart".

The possible outcomes range from the status quo to new MGs for everybody with $200 and everything inbetween.

Kharn

Third_Rail
November 25, 2004, 10:40 PM
Hm. Seems like this could mean either we win and win big, or we lose and don't lose anything further, that is that the law isn't changed?

Am I correct here?

HKUSP45C
November 25, 2004, 11:01 PM
I was really more concerned not so much with machine guns. I was more curious about the implications of ALL the "commerce clause" Fed laws. Laws like prohibition of drugs and racketeering and income tax. Won't killing this one kill those soon? :confused:

Hkmp5sd
November 25, 2004, 11:04 PM
If it goes against Stewart, it sets a precedent for banning a category of firearms. The original NFA merely required the registration and transfer tax because at the time, the government believed the 2nd Amendment does guarantee the individual right to own any type firearm. The FOPA was an outright ban on new machineguns. If SCOTUS decides one class of firearms can be banned from the public, it is just a matter of the .gov expanding and adding other "classes" of firearms the banned list.

Third_Rail
November 26, 2004, 12:23 AM
D'oh. :banghead:

musher
November 26, 2004, 02:51 AM
The original NFA merely required the registration and transfer tax because at the time, the government believed the 2nd Amendment does guarantee the individual right to own any type firearm.

I think the reason it was formulated as a tax wasn't a 2nd amendment issue. I believe that congress (and the ussc) at that time believed the US government to be one of delimited powers. There's no power to restrict firearms in the US constitution, but there is taxing authority. They didn't believe they had the legal ability to regulate firearms directly, but figured taxing them prohibitively would work just as well and pass constitutional muster.

jefnvk
November 26, 2004, 09:46 AM
Correct me if I'm wrong, but wasn't the NFA originally set up as a result of the organized crime popping up during prohibition?

Bubbles
November 26, 2004, 11:45 AM
HK - December 6th is the deadline for Stewart's attorney to file a response to the DoJ's writ of certiorari. Even if the USSC grants cert, it won't hear this case until next year...

The DoJ's writ can be viewed online at http://www.mp5.net/info/wilson.pet.app.pdf (strong stomach required).

Note the references in it to the Raich case, which was heard earlier this month.

Langenator
November 26, 2004, 01:10 PM
Actually, oral arguments in Raich are scheduled for Monday.

http://www.thenewstribune.com/24hour/nation/story/1868016p-9779265c.html

jimpeel
November 27, 2004, 12:47 AM
I found this part of the writ interestingWickard thus establishes that Congress may regulate non-commercial intrastate activity if regulation of the activity is reasonably necessary to achieve Congress’s
objectives with respect to an interstate market.as it clashes seriously with this from Printz(Thomas, J., dissenting). Even if we construe Congress' authority to regulate interstate commerce to encompass those intrastate transactions that "substantially affect" interstate commerce, I question whether Congress can regulate the particular transactions at issue here. The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress' regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from "prohibiting the free exercise" of religion or "abridging the freedom of speech." The Second Amendment similarly appears to contain an express limitation on the government's authority. That Amendment provides: "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." This Court has not had recent occasion to consider the nature of the substantiveright safeguarded by the Second Amendment. 1 If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. 2 As the parties did not raisethis argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries §1890, p. 746 (1833). In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment. Perhaps that future date is upon us.

Hkmp5sd
November 27, 2004, 01:42 AM
I think the reason it was formulated as a tax wasn't a 2nd amendment issue.
The reason the NFA was formulated as a tax was specifically because of the 2nd Amendment. The government wanted to stop the gangsters from running around with machineguns and sawed off guns. They believed they couldn't simply ban these weapons due to 2nd Amendment protections so they came up with a $200 tax on them. During the 1930s, this was a considerable amount of money.

And as with all gun control laws, it didn't work. The gangsters didn't bother with registration, so the only people it effected were the average citizens that couldn't afford $200 in the middle of the depression.

c_yeager
November 27, 2004, 04:52 AM
And as with all gun control laws, it didn't work. The gangsters didn't bother with registration, so the only people it effected were the average citizens that couldn't afford $200 in the middle of the depression.

Even without the depression $200 was an absurd amount of money for a tax. It was effectively a complete ban on legal ownership for all but the most wealthy (ironicly the big crime lords of the time were in this category). Bear in mind that this was a $200 tax in a time where brand spanking new full-auto 1921 thompsons were selling for between $175-$250 and were considered ABSURDLY EXPENSIVE. You could buy a brand new Model-T for $290 in the mid-twenties.

Kharn
November 27, 2004, 04:38 PM
After inflation and the like, $200 in 1934 is equal to about $2700 in 2003 dollars.

Kharn

Zedicus
November 27, 2004, 04:59 PM
This is Very Interesting, Hopefully this will be our next victory in beating back the flood of lies the anti's constantly spew.

If this is to succeed, I think we will need to get a a ton of support behind it & keep the "Nobody needs a Full Auto to hunt with" crowd quiet & out of the public eye, as well as have a lot of cool headed people that project a strong if not overwhelming positive feel about the subject on tv/radio.

& perhaps beting the anti's at there own "Psycological Game" may also be worth looking into.

:cool: :cool: :cool:

musher
November 27, 2004, 05:52 PM
HK,

The 2nd amendment was discussed as an issue during the debates on the NFA, but it seems to me that the more important problem to Congress at the time was dealing with the restrictions imposed by the 10th amendment.

The fact that the Harrison Narcotic act was passed using exactly the same strategy seems a clear indication that Congress was struggling to find a way around a more general limitation than that posed by the 2nd amendment. Even without the 2nd amendment, Congress would have had no power to regulate firearms directly.

Their problem was that the Constitution granted no authority to the Federal goverment to engage in the kind of policing that they wished to do; be it drugs, firearms, or whatever. The 10th amendment makes it clear, that powers not explicitly granted to the Federal Government are reserved to the states (or the peple). Use of the powers to tax and regulate interstate commerce, and in 1930 the power to establish post offices (to prohibit handguns going through the mail) provided constitutional grounding for this expansion of power into what had previously been the realm of state control.



The constitutional basis for the NFA was extensively discussed in Congressional hearings prior to its enactment in 1934.[54] Congress was acutely aware that it had no constitutional authority to prohibit possession of machineguns and other firearms altogether.[55] Initially, the registration bills relied on both the interstate commerce and the taxation powers.[56] As adopted, however, the NFA was passed solely as a tax measure.[57]

The leading spokesman for the bill was Homer S. Cummings, U.S. Attorney General, who spoke to the House Ways and Means Committee early in its hearings:

Now we proceed in this bill generally under two powers--one, the taxing power and the other, the power to regulate interstate commerce. The advantages of using the taxing power with respect to the identification of the weapons and the sale, and so forth, are quite manifest. In the first place, there is already in existence a certain machinery for dealing with the collection of taxes of this kind, and these powers are being preserved in this particular act. In addition to that, it is revenue-producing....(p.606)

...

... We have followed, where we could, the language of existing laws as to revenue terminology; and we have followed the Harrison Anti-Narcotic Act in language so as to get the benefit of any possible interpretation that the courts may have made of that act.[58]

Noting that Congress had no power to prohibit firearms altogether, Cummings stated: "[W]e have no inherent police powers to go into certain localities and deal with local crime. It is only when we can reach those things under the interstate commerce provision, or under the use of the mails, or by the power of taxation, that we can act."[59]

CONGRESS INTERPRETS THE SECOND
AMENDMENT: DECLARATIONS BY A CO-EQUAL
BRANCH ON THE INDIVIDUAL RIGHT
TO KEEP AND BEAR ARMS
Stephen P. Halbrook

[54] See, e.g., 1934 House Firearms Hearings, supra note 51, at 6.
[55] Id. at 19.
[56] Id. at 86.
[57] Id.
[58] Id. at 6.
[59] Id. at 8.

AZRickD
November 27, 2004, 05:58 PM
JimPeel,

As you noted, the state's writ that this case should hinge around Wickard is amazing given all of the cases (Lopez, Morrison, Printz-Mack, etc) which have served to trim that affront to the Commerce Clause and the 9th and 10th Amendments.

Let's hope Stewart's attorney is skilled.

Rick

Andrew Rothman
November 27, 2004, 05:58 PM
Correct me if I'm wrong, but wasn't the NFA originally set up as a result of the organized crime popping up during prohibition?

Well, prohibition was repealed in 1933, the same year that the NFA was passed.

A lot of folks figure that it was enacted to give thousands of revenooers, who would otherwise have no job, something to enforce after the repeal.

Standing Wolf
November 27, 2004, 08:45 PM
Correct me if I'm wrong, but wasn't the NFA originally set up as a result of the organized crime popping up during prohibition?

That was the excuse. Crime is often the excuse government uses to deprive law-abiding citizens of our liberties.

cpileri
November 27, 2004, 09:55 PM
"was more curious about the implications of ALL the "commerce clause" Fed laws. Laws like prohibition of drugs and racketeering and income tax. Won't killing this one kill those soon"

I have a hunch this very thing is what they are discussing in chambers right now. If the SCOTUS workslike the rest of politics, they will decide their position and write it waaaaaaayyyyy before the trial (or election, to follow the analogy). Then after the trial they publicize it, perhaps wth some last minute badgering on fence-sitters.

So right now they are deciding between striking the commerce clause or upholding it on intrastate non-commerce. Upholding it keeps the power fo congress to tax and otherwise intrude upon our economic lives, but deals a long-term fatal blow to the 2A. Striking it down brings down the federal governents power to tax a large portion of the economy, takes the teeth out of various tax agencies (like the gun owners favorite bad-boy, the ATF), etc.

Do you seriously think theywill rule in favor of gutting the (ill-gotten and illegal) power of congress? I don't.

In reality, they are deciding between upholding the commerce clause, or the weasel but-better-for-us approach of upholding the CC, but finding some obscure case tosupport the power to tax while maintaining the 2A as an individual right (i.e. maintain status quo).

I have no faith that the current justices will uphold the constitution. They haven't been able to be trusted to dothat for decades.

C-

Third_Rail
November 28, 2004, 01:48 AM
Is anyone else losing sleep over this?


I sure seem to be.

io333
November 28, 2004, 02:45 AM
I find it interesting that Mr. "Individual Right" Ashcroft allowed the DoJ to Petition for Cert here.

NotQuiteSane
November 28, 2004, 04:18 AM
Correct me if I'm wrong, but wasn't the NFA originally set up as a result of the organized crime popping up during prohibition?

Google for "bonus army"

a number of people, including myself, belive the NFA and FFA were backlash from that.

NQS

Kharn
November 28, 2004, 10:48 PM
io333:
Ashcroft (or Gonzales after he becomes AG) has to work to uphold current law, its his job. The executive branch doesnt have the power to say if a law is good or not, they only work to uphold the current law and let the courts figure out if its acceptable or not.

Kharn

Bubbles
November 29, 2004, 10:04 AM
Actually, oral arguments in Raich are scheduled for Monday.

D'oh! My mistake. There's a Washington Post article about it.

http://www.washingtonpost.com/wp-dyn/articles/A18420-2004Nov28.html?nav=mb

ctdonath
November 29, 2004, 11:54 AM
I find it interesting that Mr. "Individual Right" Ashcroft allowed the DoJ to Petition for Cert here.

He didn't have a choice. It's headed for SCOTUS, the easy way or the hard way. Petitioning for cert is his job in this case.

9th Circuit already has revoked 922(o) in its jurisdiction. That left a huge conflict between the 9th Circuit and all other jurisdictions. BATFE has a big pile of "I wanna make a MG" applications pending, but doesn't know how to approve some and deny others just because one is in the 9th Circuit and others not (equal protection issue). As the Stewart case was ruled on "interstate commerce" grounds, this also creates a serious split over what is and is not "interstate commerce", varying only by jurisdiction.

Only SCOTUS can rule whether 922(o) is or is not law of the land. This requires a high-court ruling clarifying the limits of interstate commerce, which will make or break 922(o).

The AG cannot allow such a split to exist, especially when it resulted from the feds' actions (in this case, charging Stewart with violating 922(o)). Like it or not, it was Ashcroft's job to clean up this mess by filing cert with SCOTUS over Stewart.

That said, notice that the petition as filed is actually pretty lame. Ashcroft had to approve filing pet. for cert., but it seems he made sure it was phrased in a losing form. Call it "malicious obedience".

io333
November 29, 2004, 12:17 PM
Ashcroft had to approve filing pet. for cert., but it seems he made sure it was phrased in a losing form.


Could you explain "losing form" to me a little? I'm not too familliar with the procedures in presenting something before the USSC. This is just a petition, and written briefs and oral arguments (which already happened?) follow, yes? So the wording of the petition doesn't matter that much?

Brett Bellmore
November 29, 2004, 12:58 PM
I don't know that there IS a really good legal argument for overturning the 9th circuit's decision in this case, so I don't read anything into the feds making lousy arguments in their brief.

The unfortunate thing is, they probably don't HAVE to have a good argument. They've got an unattractive defendant, (What WAS Stewart thinking, trying to put a hit on the judge? Assuming he really did...) and an attack on gun control that's at it's heart, not the margins.

I think we'll have a better idea what's going to happen in this case, when today's drug case has been argued. We'll learn whether the Court is really serious about enumerated powers doctrine, and reining in commerce clause abuse.

ctdonath
November 29, 2004, 01:08 PM
The wording of the petition matters in that its content is poorly conceived. Much of its arguments for overturning the 9th Circuit's decision are based on cases that SCOTUS has ruled against, directly or indirectly. Ultimately, the petition amounts to "the feds can ban anything they want because everything has some contact with interstate commerce - so 922(o) is valid" ... this is, of course, unconstitutional.

My point is that the petition, submitted with Ashcroft's approval, may have been intentionally written just well enough to be taken seriously yet deliberately weak enough to assure failure. It's a re-hash of lame arguments which have already been thoroughly demolished.

The decision on this case will impact far beyond MGs. Bush/Ashcroft had to get this case to SCOTUS to further their agenda, but could only do so by advancing an opposing view. The only way is to present the opposing view, but poorly.

io333
November 29, 2004, 01:42 PM
OK, thanks for the clarification. I hope you are both right, and I hope it works.

That's a lot of hope.

.45&TKD
November 29, 2004, 02:22 PM
After inflation and the like, $200 in 1934 is equal to about $2700 in 2003 dollars.

Actually, at an average 7% annual inflation rate, $200 equals $24,693 in 2003 dollars.

Gifted
November 30, 2004, 02:01 AM
That might be what they try to do. repeal the law, but allow congress to update the tax stamp for inflation. :uhoh: What do you guys think?

Beren
December 7, 2004, 02:41 PM
Any update on the case? A response was due yesterday.

Bubbles
December 7, 2004, 05:26 PM
Tom Haney (Stewart's Attorney) is out of the office until Thursday, and the USSC case handler for Stewart is out until ?. If the response is on her desk it will be posted on the USSC docket web site when she gets back.

Bear in mind that if a response was filed by Haney, it would be a Brief in Opposition asking that the USSC deny cert since Stewart's conviction for violating 922(o) was overturned by the Ninth Circuit, and that's the ruling he would want to stand.

publius
December 9, 2004, 07:03 AM
I think we'll have a better idea what's going to happen in this case, when today's drug case has been argued.

Which drug case? And what's the latest on the thread topic?

Bubbles
December 9, 2004, 09:15 AM
Which drug case?

Raich.

http://federalism.typepad.com/ashcroft_v_raich/2004/11/marijuana_and_f.html

Beren
December 9, 2004, 09:38 AM
Okay, it's Thursday, someone please tell me what's going on. :)

dustind
December 9, 2004, 02:08 PM
Correct me if I'm wrong, but wasn't the NFA originally set up as a result of the organized crime popping up during prohibition? I could be wrong, but I think you are sort of wrong. I believe the president and many other progressives wanted to ban all firearms by taxing them into oblivion, but they where forced to compromise. Organized crime was the exscuse though.

As for this case, it could be the AWB expiring all over again. :D Sadly I doubt we will get any new firearms or end the over use of the interstate commerce clause.

Scottmkiv
December 9, 2004, 02:52 PM
What cost $200 in 1933 would cost $2578.72 in 2003

Inflation Calculator (http://www.westegg.com/inflation/)

publius
December 9, 2004, 08:54 PM
Thanks for the link, Bubbles. I actually figured out the answer to my own question shortly after asking it from other links I had opened but not yet read. Good resource there, though. :)

M1911Owner
December 9, 2004, 10:40 PM
That inflation calculator is way off. We owned a house that originally sold for $6,000 in 1926, and we sold it in 1987 for $245,000. The inflation calculator says it should have been worth $37,339 in 1987. That's almost a seven-to-one error!

PMDW
December 9, 2004, 11:31 PM
That inflation calculator is way off. We owned a house that originally sold for $6,000 in 1926, and we sold it in 1987 for $245,000. The inflation calculator says it should have been worth $37,339 in 1987. That's almost a seven-to-one error!

It's not the same. Real Estate values are based off of the area the property is in, among other things.

Kharn
December 10, 2004, 08:53 AM
PMDW is correct, the inflation calculator is more for the cost of things like bread, milk, etc.

Kharn

Bubbles
December 10, 2004, 09:41 AM
Ok, Haney (Stewart's attorney) did file a Brief in Opposition. It's not on the docket site yet, though. Maybe the folks at the USSC took off early for the holidays. :rolleyes:

NMshooter
December 11, 2004, 03:05 PM
So what are the odds that the Supreme Court will find some way to avoid making a decision?

DMF
December 11, 2004, 03:31 PM
I was really more concerned not so much with machine guns. I was more curious about the implications of ALL the "commerce clause" Fed laws. Laws like prohibition of drugs and racketeering and income tax. Won't killing this one kill those soon? This question is an example of a common misconception about the Supreme Court. Not every case and decision of the Court has some broad affect on other laws, or cases. The Court is ruling on a specific case, and the specific circumstances of that case, which may or may not affect other cases and laws.

If the Court finds a problem with the application of the Commerce Clause, in the specific circumstances of Stewart does NOT mean that all other Commerce Clause laws are suddenly invalid. Cases that are very similar in circumstance to Stewart may be affected, but the Commerce Clause is still part of the Constitution, and Congress will still be allowed to make law affecting INTERstate commerce. The question here is specifically whether Stewart's actions should be subject to a law based on the Commerce Clause if he did nothing that involved INTERstate commerce. There is much debate on whether his manufacture of that gun was part of interstate commerce, and that is what the court will need to decide. This case may more clearly define what is considered to "affect interstate commerce," but will not suddenly nullify all laws based on the interstate commerce clause if the Court rules in favor of Stewart.

DMF
December 11, 2004, 03:43 PM
That inflation calculator is way off. We owned a house that originally sold for $6,000 in 1926, and we sold it in 1987 for $245,000. The inflation calculator says it should have been worth $37,339 in 1987. That's almost a seven-to-one error! That logic is flawed. You are comparing the inflation of one peice of property to the overall inflation rate. That would be the same as trying to compare the inflation of real estate values in your neighborhood to the price of a Picasso or Monet painting. The average overall inflation rate is much different than the inflation of one piece of property, or even one particular industry (such as real estate).

tyme
December 11, 2004, 04:18 PM
There are different historical inflation figures in many different categories. Rarely do two items or services ever inflate at the exact same rate

Acording to the CPI http://www1.jsc.nasa.gov/bu2/inflateCPI.html
$200 in 1950 was the equivalent of $1527 in 2003

Accoding to the PPI http://www1.jsc.nasa.gov/bu2/inflation/ppi/inflatePPI.html
$200 in 1950 was the equivalent of $1085.60 in 2003
(I picked 1950 because the PPI doesn't go back to 1934)

It's clear that a $200 tax in 1934 was more than the cost of most machineguns. 100%+ tax rates on goods that people don't need are not productive; a lower tax rate would almost certainly generate more tax revenue. (standard maximization of profit; get some statistics, fit it with a curve (f: tax rate -> tax revenue), and find the maximum... not that the government ever does that, of course; they just pick rates out of the air.)

Whether the Supremes would throw out the NFA based on that reasoning, I have no idea.

More stuff on the Producer Price Index (http://www.bls.gov/ppi/home.htm)
and the Consumer Price Index (http://www.bls.gov/cpi/home.htm)

cdpruden
December 11, 2004, 05:07 PM
With regard to the inflation side of things -- I prefer to look at the price of gold... in early '32, gold was worth just over $20/ounce.

by 34, I believe that the it was $35/ounce, which it was pegged at for a brief time...


Which means about 5.7 ounces of gold for the $200 tax... times $450 or so that gold is at today, gives almost $2600.

Not that gold is an entirely objective measure of value when comparing gold-standard and fiat money -- but as the dollar loses purchasing power, the price of gold goes up...

I'd posit that there is a lot of inflation we don't see directly (housing prices for one, the stock market in the late '90s for another.) But that's another tangent.

LoneStranger
December 12, 2004, 01:59 PM
Remember that while comparing the price of gold can be somewhat informative you really need to factor in the fact that the price of gold in this country was artificially pegged at first $35 then $32. It was not operating in a free market.

To get a better representation you must look at the price of gold from before FDR confiscated everyones gold, to better protect us from ourselves, to when it has started trading freely again.

I believe that FDR siezed the gold at a price of 28.50 and after he had it all raised the price to the above numbers.

io333
December 14, 2004, 02:01 PM
Just wondering if there are any updates on this case, and...


*BUMP*

Telperion
December 14, 2004, 02:23 PM
Stewart's lawyer filed his brief. Now it has to get distributed to conference where the justices decide whether to hear it.

Updates @ http://www.supremecourtus.gov/docket/04-617.htm

Kharn
December 14, 2004, 04:27 PM
From what I can understand, the "Motion for leave to proceed in forma pauperis filed by respondent" means he is filing to pay lower fees and only turn in a limited number of each document to the court (rather than the traditional 10+ copies) due to little available cash. Is that correct?

Kharn

tyme
December 14, 2004, 05:01 PM
The U.S. Supreme Court does important work. If they did it properly, I'd have no problem with taxes paying all court costs, even in a case between Bill Gates and Larry Ellison.

These days, a committee of lobotomized chimpanzees could do a better job upholding the constitution than the nine justices in Washington. But I suppose it's appropriate for taxes to pay in part for a case like this, if the eight (plus one ghost) robed clowns decide the right way.

ctdonath
December 16, 2004, 11:27 AM
On a closely related note, SCOTUS has published (http://www.supremecourtus.gov/oral_arguments/argument_transcripts/03-1454.pdf) the oral arguments in the Raich case (parallel to and referred to by Stewart).

Kharn
December 28, 2004, 02:52 PM
Bump.
The Supreme Court will consider Stewart in conference on January 7:
Dec 22 2004 DISTRIBUTED for Conference of January 7, 2005.
SCOTUS Docket site (http://www.supremecourtus.gov/docket/04-617.htm)
Their answer usually comes within a week of the conference date.

Kharn

SUE ROVR
December 28, 2004, 03:49 PM
So cert will or will not be granted within a week of that conference?

According to Lexis cert has not been granted yet so I assume that is what you mean. I think everything turns on Raich which has been heard already.

Kharn
December 28, 2004, 07:17 PM
Sue Rovr:
That is correct.

Kharn

publius
January 2, 2005, 09:07 AM
OK, I'm confused.

In the DOJ's cert petition in the Stewart case (http://www.mp5.net/info/wilson.pet.app.pdf), the solicitor concludes:

The petition for a writ of certiorari should be held pending this Court’s decision in Ashcroft v. Raich, No. 03-1454 (to be argued Nov. 29, 2004), and then disposed of as appropriate in light of the Court’s decision in that case.

Raich has been argued, but no decision is expected until next summer, so why are they deciding on the Stewart cert petition this month?

ctdonath
January 2, 2005, 10:41 AM
The DOJ's request is to wait for Raich, probably on the theory that SCOTUS will uphold DOJ's view of the "commerce clause", and that SCOTUS would then dismiss Stewart on grounds of duplication.

Apparently SCOTUS chose to not wait.

Brett Bellmore
January 2, 2005, 03:06 PM
I think it's quite likely the members of the Court already know how they're going to rule in the Raich case, and so have no particular need to wait.

beerslurpy
January 2, 2005, 03:41 PM
Arguments are made before the decision. The Raich decision will come in march or april. The stewart decision will come sometime afterwards, probably decided along similar lines.

publius
January 2, 2005, 10:29 PM
This action suggests to me that when they're done, either a homegrown machine gun for personal consumption or a homegrown cannabis plant for personal consumption will no longer be interstate commerce, but which will it be?

SUE ROVR
January 2, 2005, 11:07 PM
As I read it, it would be a considerable stretch to say one was and the other was not.

Homemade machine guns future is tied to homegrown pot.

Unlikely bed fellows. Of course that is what you get when you "interpret" the constitution, rather than apply it as written.

The court has taken two similar cases to expand upon a new interpretation. This is not unusual, HOWEVER, if BOTH are heard, it would seem to me that there is at least a possibility someone on the court sees a difference between the two and wants to flip one way or the other between the two.

beerslurpy
January 3, 2005, 12:48 AM
Actually I dont think they are unlikely bedfellows. Any activity that is on the fringe of societal norms (homosexuality, pot cultivation, machine gun ownership) is most likely to be the first affected by encroaching government regulation. That a series of cases involving the rightful bounds of government regulation should involve such matters is not a surprise. Remember, the water gets uncomfortably warm for the frog's toes a long time before the whole frog gets cooked. Unfortunately, fighting back in the other direction will probably take just as long.

I am personally glad that the two cases came up so close together so that people had a chance to see it as a federalism issue rather than a "the hippies/rednecks are trying to hijack our values!" issue.

I think it is most likely that SCOTUS sees the two as being connected by their attenuated relation to interstate commerce, an issue that came up often during the oral arguments. Obviously if SCOTUS plans to redraw or clarify the bounds of "interstate commerce" it would likely have an effect on both cases.

I personally suspect that SCOTUS intends to pull back the reach of the commerce clause a little bit, but they will do everything they can to avoid a sweeping precedent that invalidates large sections of commerce clause based law.

Kharn
January 3, 2005, 09:55 AM
The Court hasnt yet decided to grant cert, they could still decide to hold it until Raich is complete, per the DOJ request.

Kharn

publius
January 4, 2005, 08:19 AM
That's true, Kahrn, but why not do that by just delaying any action at all until Raich is decided? It's easier, it's what the parties want, and it accomplishes the exact same result. Why take this action now, unless of course they do see a difference between the two cases?

Kharn
January 4, 2005, 08:47 AM
Your guess is as good as mine.
I guess we'll see by the end of next week.

Kharn

ctdonath
January 4, 2005, 02:36 PM
What SCOTUS needs to do (IMHO) is declare that if something simply did not exist out-of-state in its identified & prohibited form, the feds cannot regulate it under interstate commerce (precisely because it never existed in interstate commerce).

For Stewart, this would mean legality as the parts that moved interstate were completely legal - by no stretch was there ever a "machinegun" moved interstate which Stewart ultimately built from completely legal parts, it never even existed in the from of a dispersed kit, as Stewart had to mill key parts from raw stock.

For Raich, this could mean illegality as the plant had to come from somewhere - the pot crossed a state line somewhere in the form of a plant, seed, or piece of plant, all unmistakably "pot" somehow. Unless provably indiginous to CA, and that being a (oh what's the term) unidentifiable difference between imported plants, the feds could still claim Raich violated federal law.

FWIW, Reminds me of a joke...

Man: "I have advanced my knowledge to be equal to yours."
God: "Mmmm?"
Man: "A challenge: we shall both make a New Man from dirt."
God: "Ok." <Scoops up dirt, makes a New Man.>
Man: <Gloating, reaches down to scoop up dirt.>
God: "Get your own dirt."

Kharn
January 4, 2005, 02:46 PM
That's definitey a common sense perspective on the matter.

Kharn

publius
January 4, 2005, 07:56 PM
Makes you wonder why nobody thought of that back when they passed the Marihuana Tax Act in the 30s.

beerslurpy
January 4, 2005, 08:03 PM
Certiorari was granted for stewart, I saw it nearly a month ago.

Marijuana grows naturally everywhere, it didnt necessarily have to be imported. The existance of the plants is not proof that marijuana travelled interstate.

Scalia was making noise about posession simpliciter and whether it constituted interstate commerce without any direct involvement in interstate commerce. They seemed to indicate that was clearly what Wickard v Filburn said, though they didnt seem to approve of the results of that entirely. So maybe they are planning to shut off intrastate posession of contraband from federal oversight. That would be neat.

Kharn
January 4, 2005, 08:33 PM
Beerslurpy:
Are you talking about this line?
Nov 5 2004 Petition for a writ of certiorari filed. (Response due December 6, 2004)
That means the govt has asked for a writ of cert, that doesnt mean the SC has granted cert yet. Cert is granted or denied at the conference, which occurs on 7 January.

Kharn

beerslurpy
January 4, 2005, 09:35 PM
my bad, I was looking at this: extension was approved, certiorari was filed but not accepted yet (http://www.supremecourtus.gov/docket/04-617.htm)

looks like they are going to discuss the case in a few days and deny or grant cert, unless I misunderstand the meaning of conference.

publius
January 5, 2005, 08:57 AM
That's what they mean by conference, beerslurpy.

You know, when my trash is at the curb ready for pickup, I don't generally confer with the wife about whether to rearrange or analyze it. They must see some difference between Stewart and Raich, or there would be no need for Friday's conference. Stewart's fate would simply be tied to Raich, and that would be that.

beerslurpy
January 5, 2005, 10:18 AM
I wouldnt read too much into the fact that they are moving slowly.

Kharn
January 10, 2005, 01:29 PM
The Supremes have announced their Cert decisions from the 7 January conference, but I cant find Stewart mentioned anywhere in the news (I cant find a list of up/down decisions either). Is anyone able to have better luck?

Kharn

publius
January 10, 2005, 01:38 PM
I noticed that Kharn had replied to this thread, and thought good, now I can find out what happened Friday.

It didn't work. ;)

SUE ROVR
January 11, 2005, 01:56 AM
No indication one way or the other on lexis yet.

Kharn
January 11, 2005, 07:15 AM
I guess they are following the DOJ's request and waiting to finish Raich first.

Kharn

publius
January 11, 2005, 08:22 AM
A government conference at which nothing is done or decided?

Unheard of! ;)

Zrex
January 11, 2005, 04:54 PM
This was posted over on subguns.com:

I checked the Supreme Court orders today and there was no order for the DoJ cert petition in Stewart today.

I called the Supreme Court to check on things and they said the next "orders day" is Tuesday the 18th. That doesn't necessarily mean that there will be an order in re Stewart on the 18th, but that is the next opportunity.

publius
January 18, 2005, 08:56 AM
watching...

woerm
January 18, 2005, 01:49 PM
:banghead:

http://www.supremecourtus.gov/orders/courtorders/011805pzor.pdf

no mention of Stewart at all.

then they slither off for a month to 'rest'

what's the point of having the right to petiton if the jerks refuse to do their job? Bean, Sivleira, Emerson et al now it looks like this one is another round of dodgeball.

r

:cuss:

publius
January 18, 2005, 07:16 PM
Patience, grasshopper... ;)

beerslurpy
January 18, 2005, 09:45 PM
woerm, we dont lose if they dodge this one. The 9th circuit already decided in our favor on the interstate commerce issue, which is the only one up for cert. The "citizens dont have a right to own guns" issue wasnt even appealed.

publius
January 18, 2005, 10:00 PM
It's clear that the fate of Stewart will be tied to the fate of Raich if Stewart is not indepently granted cert.

So if they dodge it for now, overturn the 9th in Raich, then they could probably do a couple of different things to Stewart.

beerslurpy
January 18, 2005, 10:30 PM
I am aware that stewart is waiting on raich and that the supreme court is obviously not going to decide stewart without deciding raich first since they are nearly about the same thing. This hardly counts as a dodge though. At least not as I would use the word.

If you enjoyed reading about "The FOPA is coming under SCOTUS scrutiny" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!