Constitutional Basis for Bans


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almostfree
November 23, 2008, 11:07 AM
I was reading a thread the yesterday, which I can no longer find, that was talking about how the NFA was enacted because elected officials did not feel that they had the power to ban things, only to tax them. So they tried to tax them out of existance. Well, obviously the reasoning changed somewhere along the way. Why? What is the supposed basis given for the constitutionality of any kind of a federal ban?

Using "assault weapons" as an example, how could they ban an "assault weapon" that is not part of interstate commerce? If a company made "assault weapons" only for in state purchase, would that be subject to a ban? How could any ATF regulation apply to any kind of firearm not involved in interstate commerce for that matter?

Using drugs as an example, how could the federal government stop states like California from legalizing certain drugs? I haven't paid that much attention to that whole battle, so I am short on facts, but it seems to me that the federal government cannot do anything about drugs made and consumed in a state, so long as it doesn't conflict with state law.

I do not wish to discuss the merits or demerits of any of the above bans, just the rationale used to create them.

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deadin
November 23, 2008, 11:36 AM
Any number of Federal laws and rules probably wouldn't stand up to strict Constitutional scrunity, however, it takes money, lots of money, to fight it all the way to the Supreme Court. (And, of course, there is no guarantee that SCOTUS will agree with your interpretation of the law in question. In that case, you are SOL until the mix of justices changes. Then you can start all over again. (With lots more money.))

One way the Federal Gov can enforce their wishes is to turn off the money spigot that goes to a State that doesn't toe the line.

wahsben
November 23, 2008, 11:44 AM
The rational of the bans is that the elitists want to control us.
The COTUS means nothing to them.
As the saying goes "it's not about gun control, it's about control."

Frog48
November 23, 2008, 12:29 PM
What is the supposed basis given for the constitutionality of any kind of a federal ban?


Some of the most commonly cited:

1. Taxation and Spending Clause
2. General Welfare Clause
3. Necessary and Proper Clause
4. Interstate Commerce Clause

In reality, none of these clauses explicitly authorize Congress to enact alot of the legislation that they come up with, but politicians are masters of BS'ing and fabricating bizarre, convoluted justifications for what they do.

almostfree
November 23, 2008, 12:35 PM
One comment that was brought up in the other thread was that elected officials felt it was required of them to enact a constitutional amendment in order to ban alcohol during prohibition. I would think any other kind of federal ban would be subject to the same scrutiny.

Frog48
November 23, 2008, 12:41 PM
One comment that was brought up in the other thread was that elected officials felt it was required of them to enact a constitutional amendment in order to ban alcohol during prohibition. I would think any other kind of federal ban would be subject to the same scrutiny.

Times have changed. Back in the day, people genuinely respected the Constitution. Nowadays, many merely pay it lip service, and otherwise hold it in disdain.

MagnumDweeb
November 23, 2008, 01:03 PM
Lot of folks nowadays who look at the government as nothing more than the means by which the elite control the masses. Look at NAFTA and how the number of billionares in this country grew by more than a 100 times yet millions of jobs were lost and we went even farther from being a manufacturing nation to being a self-service consumer driven nation, thank Slick Willy you useless liberal. The government is showing more and more not to be of the people for the people. Do we really need all those useless billionares who produce nothing, and surely don't invent nothing, if they were all to disappear how much deflation (the dollar gaining value) and employment growth would occur.

The Constitution is dying in my opinion and so is the people's love for it.

JImbothefiveth
November 23, 2008, 01:14 PM
The "elastic clause" would probably be how they'd justify it.

onebigelf
November 23, 2008, 01:57 PM
On the question of drugs. It is interesting that it required a Constitutional Amendment to ban alcohol, but not to ban drugs, or guns for that matter- despite Constitutional protection for firearms. They twist law to suit themselves and as long as they make a good argument for the mob that they are doing the "right thing" they get away with it. So far...

John

almostfree
November 23, 2008, 02:02 PM
I took a look at the text of the previous AWB, and I could not find a passage where a constitutional justification was stated. Seems like that should be in the opening paragraph of any bill before congress. "Here's what we want to do and this portion of the constitution gives us the power to do so."

Cyborg
November 23, 2008, 02:28 PM
"Constitutional Basis for Bans"???

"Constitutional Basis"????????????
Amigo, they don't need no steenking constitutional basis. All they need is a pretext to act. Since whatever they come up with is self-evidently the right thing to do it MUST be constitutional.

But I am a cynic.

-------------------------------------------------------------------------------
Burying your head in the sand only makes your a** a better target - PLUS it makes it kinda hard to breathe. ;)

30mag
November 23, 2008, 02:41 PM
I agree, there is a complete lack of constitutional basis for gun bans.

I think also that there is probably a lack of constitutional basis for not allowing felons to own firearms.
However, I am not familiar with felony crimes.

MountainBear
November 23, 2008, 02:58 PM
There is not a lack of basis for it. It all goes to interpretation. I have absolutely no doubt that the people who push such legislation read the second amendment and the general welfare clause as constitutional justification for their agenda.
What we need to do is continue to work to get officials elected and justices appointed who will continue to interpret these words in the manner which we think they were meant by the founding fathers.

almostfree
November 23, 2008, 03:14 PM
Surely at some point in the time, probably in a court case, someone has questioned on what constitutional grounds the congress tried to ban something. I am just curious what line of reasoning has been used in the past.

yokel
November 23, 2008, 03:25 PM
With the restrictive gun laws passed in defiance of the Second Amendment Amendment willfully passed by Congress, it passes belief to expect this very same rabble of politicians to arm the folks with modern weaponry sufficient to challenge government rule.

lanternlad1
November 23, 2008, 03:27 PM
The was a ten-year sunset to the AWB, so those against it figured that there wouldn't be much call to fight it, since it would be gone in ten years anyway. A PERMANENT AWB such as the Dems are thinking of trying will be fought tooth-and-nail by the NRA, 2nd Amend. Foundation, and every other pro-gun organization you care to mention. "Stop the Ban!" will become the rallying cry of the gunnies, much like "Remember the Alamo!" was for Travis' crew. I think a permanent AWB would be unconstitutional, and a very slippery slope.

almostfree
November 23, 2008, 04:43 PM
Some of the most commonly cited:

1. Taxation and Spending Clause
2. General Welfare Clause
3. Necessary and Proper Clause
4. Interstate Commerce Clause

These are some of reasons I would have figured, but other than possibly the necessary and proper clause, I don't see how any of them could logically be used to support a complete ban.

politicians are masters of BS'ing and fabricating bizarre, convoluted justifications for what they do

TRUE

I can see the interstate commerce clause being used to tax machine guns crossing state lines under the NFA (not saying I agree with it). I can't see how it would give authority to ban the creation new ones for civilian ownership, especially if someone were to build one themself and for it to never cross state lines. I think there would probably be a constitutional problem with cost prohibitive taxes also.

It seems that the states would pretty upset over any kind of a federal ban since that is a threat to the states' sovereignty.

TAB
November 23, 2008, 04:48 PM
Drugs are not banned. Let me say that again, drugs are not banned. There is a tax stamp you must buy in order to have them... they just never printed the stamp.


It has come up in court more then once, every time its been ruled its ok to tax a item, then not provide a means to pay that tax.

almostfree
November 23, 2008, 04:52 PM
Hmm, that's an interesting point. I was not aware of that fact. Under that line of thinking the federal government could tax certain books out of existence and technically not run afoul of the first amendment.

TAB
November 23, 2008, 05:08 PM
I don't think that is the case, since free speach is expressly protected.

The only reason why they can ban things like Child porn is that the minor can legally not enter into a contract, so there is no consent.

The line of reasoning they will use to ban AWB is, they are not infringing on the 2a as they have not stoped you from owning a fire arm, only a kind of fire arm. Heller left the door wide open for exactly this. They kept the ruling very narrow for a reason.

ServiceSoon
November 23, 2008, 08:33 PM
Heller says you can't ban a specific type of weapon. Especially if it is in common use.

green country shooter
November 23, 2008, 10:28 PM
1. The reason you can ban child porn is that it's evidence of a crime.

2. NFA was passed as a tax out of fear of the Second Amendment.

3. The Consitutional authority is the Commerce Clause, which is interpreted much more broadly today than in 1934, so absent Heller I don't think the courts would have any problem with complete bans today.

ServiceSoon
November 23, 2008, 11:30 PM
The commerce clause says the fed has the power to "regulate" commerce among the states; not outlaw the commerce of an item that is protected by the second amendment.

TAB
November 23, 2008, 11:32 PM
Heller says you can't ban a specific type of weapon. Especially if it is in common use.



the AWB didn't ban types of weapons, it banned features of them.

crushbup
November 23, 2008, 11:40 PM
I think also that there is probably a lack of constitutional basis for not allowing felons to own firearms.
However, I am not familiar with felony crimes.

It does seem as though it's up for interpretation based on the crime, but the Founding Fathers did have criminals in mind when they drafted the Constitution.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
(emphasis mine)

From what I can tell, they wanted it so that certain liberties could be taken away, but not without due process of law, for example a felony conviction. They don't specify the type of crime it would take, so there was probably trust enough in the courts back then for the judges to know when they should and shouldn't take rights away, rather than sweeping blanket decisions.

the AWB didn't ban types of weapons, it banned features of them.
It banned a specific "class" of weaponry based on a laundry list of features. If that's not banning a type of a weapon, I don't know what is.

Cyborg
November 23, 2008, 11:47 PM
Drugs are not banned. Let me say that again, drugs are not banned. There is a tax stamp you must buy in order to have them... they just never printed the stamp.In Texas drugs that are illegal to possess are also heavily taxed if you want to sell them. Allegedly there is no cross feed between the state tax office and law enforcement. But I am reliably informed that for anything more than a trace of weed (and a trace is all it takes for the lowest level of possession) the taxes are more than (often several times more than) the fine. I like the idea of taxing illegal drugs. Don't you? ;)

--------------------------------------------------------------------------
Sticking your head in the sand only makes your a** a better target.

TAB
November 23, 2008, 11:59 PM
the AWB did not ban semi auto fire rifles... it banned "evil features"

you know like flash hiders, folding stocks, barrel shrouds, pistol grips...etc, etc.

MGshaggy
November 24, 2008, 10:17 AM
I can see the interstate commerce clause being used to tax machine guns crossing state lines under the NFA (not saying I agree with it). I can't see how it would give authority to ban the creation new ones for civilian ownership, especially if someone were to build one themself and for it to never cross state lines.

You need to read some commerce clause cases. Start with Wickard v. Filburn, and Raich v. Gonzales. Even though a gun has not travelled across state lines, or can't even be registered (as with new MGs under 922(o)) they can still be regulated under the commerce clause.

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