Commerce Clause???


PDA






Thefabulousfink
January 19, 2006, 08:09 PM
I have heard of the Commerce Clause in relation to the 2A, but never a good explanation of it and how it can limit the 2A. Can some one here please fill me in on the details?:confused:

If you enjoyed reading about "Commerce Clause???" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!
Chipperman
January 19, 2006, 08:10 PM
Are you referring to the Interstate Commerce?

Thefabulousfink
January 19, 2006, 08:13 PM
I believe that is what it is since it works on a federal level.

geekWithA.45
January 19, 2006, 09:11 PM
Long story short:

Congress is under the impression that they have the power to regulate anything they can even vaguely connect to interstate commerce.

This started in the 40's, when SCOTUS ruled that the feds had the power to regulate a few spare acres some farmer had in his field for his own consumption, because this affected interstate commerce by reducing the market demand for whatever it was that that the farmer provided himself with. Apparently, there is no discernable limit on this power.

Prior to this, Congress believed that they could only regulate things that they taxed, which is why the 1934 NFA is concocted as a tax scheme. After this ruling, and subsequent expansions, congress merely need not that the thing to be regulated has some tangible relationship to interstate commerce.

For example, the AWB was cast in such terms.

Standing Wolf
January 19, 2006, 09:52 PM
Long story short:
Congress is under the impression that they have the power to regulate anything they can even vaguely connect to interstate commerce.

Short story even shorter:

We should fire Congress en masse.

BostonGeorge
January 19, 2006, 11:10 PM
In the most basic of terms, it is the explanation Congress uses to pass extra-Constitutional legislation and have it wrongly upheld by the courts.

Short story even shorter:

We should fire Congress en masse.

What he said.

beerslurpy
January 20, 2006, 12:13 AM
Interstate commerce doesnt override the 2nd amendment, it is just that the 2nd amendment is mostly ignored except to casually dismiss it at the lower levels of the court system.

Interstate commerce basically provides the false permission for congress to pass nearly every law it has passed since 1942.

mzmtg
January 20, 2006, 09:03 AM
The "commerce clause" has been dead for a long time.

fuggetaboutit

publius
January 20, 2006, 09:39 AM
Thefabulousfink,

Have a look at the US Constitution (http://www.archives.gov/national-archives-experience/charters/constitution_transcript.html), Article 1, Section 8, which lists the powers of the Congress, and while you are looking, think about the many things the federal government does. Try to find the authority to do those things in Article 1, Section 8. It's not easy.

So where did they find the authority to create the various federal regulatory regimes? In the power to tax, and in the interstate commerce clause. The 1906 Pure Food and Drug Act applied only within the District of Columbia, and to interstate commerce by anyone's definition.

Pure Food and Drug Act of 1906

United States Statutes at Large (59th Cong., Sess. I, Chp. 3915, p. 768-772)

AN ACT

For preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That is shall be unlawful for Columbia any article of food or drug which is adulterated or misbranded, within the meaning of this Act; and any person who shall violate any of the provisions of this section shall be guilty of a misdemeanor, and for each offense shall, upon conviction thereof, be fined not to exceed five hundred dollars or shall be sentenced to one year's imprisonment, or both such fine and imprisonment, in the discretion of the court, and for each subsequent offense and conviction thereof shall be fined not less than one thousand dollars or sentenced to one year's imprisonment, or both such fine and imprisonment, in the discretion of the court.

Sec. 2. That the introduction into any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or from any foreign country, or shipment to any foreign country of any article of food or drugs which is adulterated or misbranded, within the meaning of this Act, is hereby prohibited; and any person who shall ship or deliver for shipment from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, or to a foreign country, or who shall receive in any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or foreign country, and having so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, any such article so adulterated or misbranded within the meaning of this Act, or any person who shall sell or offer for sale in the District of Columbia or the Territories of the United States any such adulterated or misbranded foods or drugs, or export or offer to export the same to any foreign country, shall be guilty of a misdemeanor, and for such offense be fined not exceeding two hundred dollars for the first offense, and upon conviction for each subsequent offense not exceeding three hundred dollars or be imprisoned not exceeding one year, or both, in the discretion of the court:

In 1914, the Harrison Tax Act laid a tax on narcotics. The purpose was not to raise revenue, but to regulate narcotics. This set a precedent which was just cited by Justice Scalia in the Oregon vs Gonzalez (assisted suicide) case:

This is not a difficult question. The Directive is assuredly valid insofar as it interprets "prescription" to require a medical purpose that is "legitimate" as a matter of federal law--since that is an interpretation of "prescription" that we ourselves have adopted. Webb v. United States, 249 U. S. 96 (1919), was a prosecution under the Harrison Act of a doctor who wrote prescriptions of morphine "for the purpose of providing the user with morphine sufficient to keep him comfortable by maintaining his customary use," id., at 99. The dispositive issue in the case was whether such authorizations were "prescriptions" within the meaning of 2(b) of the Harrison Act, predecessor to the CSA. Ibid. We held that "to call such an order for the use of morphine a physician's prescription would be so plain a perversion of meaning that no discussion of the subject is required." Id., at 99-100. Like the Directive, this interprets "prescription" to require medical purpose that is legitimate as a matter of federal law.

The Harrison Act served as a model for the 1934 National Firearms Act, which taxed certain guns. Again the objective was not to raise revenue, but to regulate possession or transfer of those guns.

In 1941 (or was it 42?), the Supreme Court handed down a decision known as Wickard vs Filburn, in which it decided that a wheat farmer who was a participant in a federal price control scheme could not grow "extra" wheat on his land, beyond his federal allotment, because if all wheat farmers did this, it would create a surplus of wheat, thus defeating Congress' efforts to manage the price of wheat. Defeating those efforts seems a good idea to me, but anyway...

The gist of the decision was, because it could affect interstate commerce, homegrown wheat for personal consumption was subject to federal regulation.

Suddenly, the power to tax was no longer really required in order to regulate purely in-state activities. Later narcotics laws were no longer based on the tax power, they were based on the commerce clause, and again gun laws followed the same path. It was all just confirmed all over again this past Summer, with the Raich (http://straylight.law.cornell.edu/supct/html/03-1454.ZD1.html) and Stewart (http://www.supremecourtus.gov/docket/04-617.htm) cases.

Getting back to your original question, a more proper one would be how the 2nd can limit the regulatory power created under the commerce clause. If you ask the Supreme Court that question, their response will be, "The what?"

CentralTexas
January 20, 2006, 12:00 PM
Short story even shorter:

We should fire Congress en masse.

You left out the word "upon" between fire & Congress!
;)
CT

dolanp
January 20, 2006, 12:27 PM
The commerce clause is the chisel that Congress hammers the 9th and 10th amendments away with.

Al Norris
January 20, 2006, 12:33 PM
The argument by those legalists who condone wide and sweeping powers for the federal government is that the Bill of Rights really doesn't change any of the Constitutions articles of power... No mention of any other Article is ever made in the BoR (like some other amendments), therefore no restrictions upon Art. II sec 8 powers are imposed.

Legalists who adhere to the BoR would argue that any Sec 8 power that interferes with an article in the BoR is superceded by that article, as the BoR were incorporated into the Constitution after said document was ratified.

In order to get around this statutory construction, the government has almost always argued that because of the Necessary and Proper clause of Sec 8, the government has a compelling interest in the law being challenged. The courts have agreed with this interpretation since Wickard v Filburn (1942).

Which, for me, begs the question: If Sec 8 powers are modified so as to comply with the BoR's restrictions, then why isn't the Necessary and Proper clause (a part of Sec. 8) also modified?

What we have instead, and what publius rightfully points out, is a concactination of ever increasing federal reach, via the Commerce Clause. As Justice Thomas points out in his dissent of Raich, there are effectively no limits to that federal reach, as long as Congress continues to use the Commerce Clause and the Court backs them up.

Thefabulousfink
January 20, 2006, 02:12 PM
Thank to everyone!

This give me a lot to think about how our government is run. It also has further opened my eyes to just how far our country has moved from what the founders intended.

I've started reading The Federalist Papers and it's been pretty shocking.
Edit:I don't agree with all the Federalist Papers, but It's interesting to see the thoughts behind many of our founders.

publius
January 20, 2006, 04:51 PM
Madison should have a pretty good idea of what was intended by the words in the Constitution...

13 Feb. 1829
Letters 4:14--15 James Madison to Joseph C. Cabell


For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and 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, in which alone, however, the remedial power could be lodged.

El Tejon
January 20, 2006, 04:53 PM
Commerce Clause=Big Hammer of Unlimited Government.:uhoh:

Thefabulousfink
January 20, 2006, 06:04 PM
Madison should have a pretty good idea of what was intended by the words in the Constitution...

Exactly, I remember that early in our history we had the problem of individual states raising tarrifs on interstate commerce. I could understand the Gov wanting to stop that, but now they have taken it to extemes.

publius
January 21, 2006, 06:14 AM
James Madison, Federalist 45 (http://thomas.loc.gov/home/histdox/fed_45.html):

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.

Doh!

If you enjoyed reading about "Commerce Clause???" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!