Does Congress have the power to regulate firearms?


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akv3g4n
February 13, 2013, 04:30 PM
Interesting article on yahoo asking this question.

Both sides are missing the larger question in this debate: Does Congress even have the right to regulate or ban guns? Where does Congress derive the power to prohibit ownership or manufacture of certain weapons or magazines? It seems that many gun-rights advocates and opponents have forgotten their basic civics in assuming that Congress can act as long as 51 percent of the members agree.

http://news.yahoo.com/debate-gun-control-ask-whether-congress-power-regulate-165053730--politics.html

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Welding Rod
February 13, 2013, 04:33 PM
None.

armoredman
February 13, 2013, 04:44 PM
Their so-called authority rests solely in the Commerce Clause, which has been abused for centuries. The ONLY time they got spanked on the Commerce Clause was just recently, when SCOTUS ruled Obamacare was a Constitutional Tax, but couldn't be enacted under the Commerce Clause.
This MAY cause some to worry that if we take this one to SCOTUS, they might start losing even more laws as abuses of CC.

Ryanxia
February 13, 2013, 04:48 PM
Perhaps someone could challenge that very fact? Might take a few years unfortunately.

NYFelon
February 13, 2013, 04:59 PM
No.

jamesbeat
February 13, 2013, 05:57 PM
Interesting article, shame about the references to 'automatic' weapons. It seems that even someone arguing in favor of our right to keep and bear arms can still trip up on that point, so deeply have the media ingrained the lie.

Welding Rod
February 13, 2013, 06:59 PM
There is no "thinking" no. It is a fact. It is in black and white in the Constitution.

Yes there are treasonus Americans who will viloate their oath of office, pervert the law through "interpretations" that directly contradict what the document says, and so on, but the letter of the Constitution has no ambiguity. There is no authority.

tomrkba
February 13, 2013, 07:28 PM
No, they don't...but that won't stop them.

People accept the use of the Commerce Clause as a way to get around the Second Amendment. This only encourages Congress to continue passing unconstitutional laws.

pty101
February 13, 2013, 08:00 PM
Constitutionally, the Federal government has little say. They do have the ability to regulate firearms with regards to interstate commerce. (how they move across state lines) Other than that the rest of the authority to regulate firearms is left to the states and the states are supposed to control how, who, and what is available for purchase within their state. A good example of this is the Montana Firearm Freedom Act. That is how it is supposed to work according to the constitution, but unfortunately very few politicians and judges care what it says.

Cosmoline
February 13, 2013, 08:01 PM
Of course it has some authority to regulate firearms. For example Congress can impose customs duties on arms coming into or leaving the nation. And if Congress had no power to do anything relating to firearms, then WHY WAS THE SECOND AMENDMENT EVEN NECESSARY? Obviously there is some inherent power to regulate commerce. And though it's been expanded too far, even under a narrow interpretation Congress could still regulate the interstate movement of firearms under the enumerated powers. It could also use taxation powers on the companies making arms and ammunition. It was because of these possibilities that the Second was put in place as a check.

Jeff H
February 13, 2013, 08:01 PM
You guys can say no all you want but the Supreme Court has ruled that they do so like it or not, we are where we are. Write your congresscritters if you want your voice heard when the vote on new bills.

Frank Ettin
February 14, 2013, 12:43 AM
...Yes there are treasonus Americans who will viloate their oath of office, pervert the law through "interpretations" that directly contradict what the document says, and so on, but the letter of the Constitution has no ambiguity. There is no authority. Balderdash. It's not your decision and you don't have the final say. There can be and often is disagreement about how the Constitution applies in a particular matter, and a resolution of that disagreement will ultimately be up to the Supreme Court.

Why do the courts get to decide such thing? Well, in the Constitution the Founding Fathers assigned that role to the federal courts (Constitution of the United States, Article III):

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,....

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

And, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....

Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus there was Common Law precedent, as no doubt understood by the Founding Fathers, for the invalidation of a law as unconstitutional being within the scope of the exercise of judicial power. (And English cases continued to be cites by courts of the United States for many years after Independence.)

And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.


No, they don't...but that won't stop them.

People accept the use of the Commerce Clause as a way to get around the Second Amendment. This only encourages Congress to continue passing unconstitutional laws. Perhaps in your opinion. But your opinion really doesn't count.

This is a question for the federal courts and will be decided based on precedent and accepted principles of Constitutional Law. The opinions of the courts on such matters will affect the lives and property of real people in the real world. Your opinion on such matters and $2.00 will get you a cup of coffee at Starbucks.

joeschmoe
February 14, 2013, 01:31 AM
"Why do people assume Congress CAN ban Arms?They can't!"

http://www.thehighroad.org/showthread.php?t=693965

Frank Ettin
February 14, 2013, 01:57 AM
"Why do people assume Congress CAN ban Arms?They can't!"

http://www.thehighroad.org/showthread.php?t=693965Why do you think that means anything? See post 14.

Of course any gun control or gun ban law enacted by Congress or by any State is subject to judicial challenge:


In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.


There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues. Strict scrutiny has thus far been the standard generally applied to regulation of a fundamental right enumerated in the Bill of Rights.


There are three prongs to the strict scrutiny test, as follows:


The regulation must be justified by a compelling governmental interest; and


The law or policy must be narrowly tailored to achieve that goal or interest; and


The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).


The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.


Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.

Sambo82
February 14, 2013, 03:01 AM
Essentially, Congress has the Constitutional authority to regulate firearms because the Supreme Court says so. And the Supreme Court has the Constitutional authority to determine what's constitutional, because the Supreme Court says so (i.e. Marbury v. Madison).

If you're thinking that that's a classic exercise in circular reasoning, you'd probably be right. But at the end of the day they have the manpower and resources to imprison or kill you if you don't comply, so Frank's observation about our opinions not mattering in that context is correct. Might makes "right", so to speak.

Frank Ettin
February 14, 2013, 03:53 AM
Essentially, Congress has the Constitutional authority to regulate firearms because the Supreme Court says so. And the Supreme Court has the Constitutional authority to determine what's constitutional, because the Supreme Court says so (i.e. Marbury v. Madison).

If you're thinking that that's a classic exercise in circular reasoning, you'd probably be right....Except:

In its ruling in Marbury the Supreme Court was merely exercising its explicit authority given it in the Constitution to exercise judicial power to decide cases arising under the Constitution. In doing so and reaching its decision in Marbury it was applying established Common Law principles -- just as courts were, and are, expected to do.


And as Marshall pointed out, to decide the matter in Marbury the Court had to either sustain an act of Congress or conclude that the act of Congress was contrary to the Constitution, and thus sustain the Constitution. Either the act of Congress was valid, yielding one result, or it was invalid as conflicting with the Constitution, yielding a different result.


In other words, the Court could not, in Marbury, decide the case without choosing either a law enacted by Congress or the Constitution.


And without judicial review under the Constitution of acts of Congress or other actions of public officials, what would be the remedy for such a law or action that one believed was repugnant under the Constitution? Do we have a civil war over every disagreement about the constitutionality of a law? Does each person get to decide for himself whether a law is constitutional and therefore whether to abide by it?

michaelbsc
February 14, 2013, 08:10 AM
If you're thinking that that's a classic exercise in circular reasoning, you'd probably be right. But at the end of the day they have the manpower and resources to imprison or kill you if you don't comply, so Frank's observation about our opinions not mattering in that context is correct. Might makes "right", so to speak.

And to that end we still have 'might' well on our side - without any kind of idiotic arguments of violence.

The "evil government" doesn't have the resources or the will to lock up 50 million citizens engaged in coordinated protests of letter writing, demonstrating, etc. Tin foil FEMA camps be damned. They flat out cannot do it. Not saying they wont be able to in the future, but for now we can still effect public policy if we act sanely.

beatledog7
February 14, 2013, 08:33 AM
Congress, the Office of the President, and federal courts, especially SCOTUS, are out of control and have been for decades. They clearly act on their own personal sensibilities and perspectives rather than as defenders of the words in the Constitution.

Frank, you are a very learned man and clearly an expert in case law. But can you tell me, in what oath of office anywhere in this country does a government official swear or affirm to uphold case law?

The answer to the question is simple. Keep it that way in your answer, please.

Welding Rod
February 14, 2013, 11:23 AM
The Supreme court has NO authority to declare the Constitution unconstitutional.

Legislative authority rest in Congress, NOT the Supreme court.

"Article 1 Section 1
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

For the Supreme Court (or any court) to rule the law means the opposite of what any layman can see that is clearly says is not an adjudication, it is legislating. This violates the Constitution.

Again, the Court can not declare the Constitution unconstitutional.

Certainly if there are legitimate grounds for for removing justices for less than "good behavior", this is it. Despite what some justices may think, they are no more King in the US any more than the President is.

Frank Ettin
February 14, 2013, 12:54 PM
Congress, the Office of the President, and federal courts, especially SCOTUS, are out of control and have been for decades. They clearly act on their own personal sensibilities and perspectives rather than as defenders of the words in the Constitution....It's clear that's your opinion, and no doubt that opinion guides you in your political activities. But the meaning an application of the Constitution are still matters for the federal courts.

Most of the time people object to the way the system is working it seems to be primarily because they aren't getting what they want. But we live in a pluralistic Republic, and not everyone agrees that things ought to be the way you want them to be.

The Founding Fathers left us an amazing legacy -- The Constitution of the United States of America. And from the Constitution, we can infer that they intended us to have, among other things:

A system of checks and balances achieved through a separation of powers among the Congress (legislative), the President (executive) and the Courts (judicial);


Of these three branches of government, the legislative was most directly subject to the influence of the body politic, and the judicial was the least subject to the direct influence of the body politic;


Judicial power vested in a Supreme Court and such inferior courts as Congress might establish, and this judicial power would extend to all cases arising under, among other things, the Constitution and the laws of the United States;


A Constitution that could be changed, albeit with difficulty.

Do I think that Congress has always enacted wise laws, and that decisions of the courts have always been wise and just, and that our public policy is always wise? Of course I don't.

I personally favor more freedom and less government (both federal and state) intrusion. But does everyone who has a voice in how things work and who gets elected to office agree with me? Of course not?

Our Founders also left us a system that allows us to try to hash out those differences. But the reality is that nobody is going to be completely happy all the time about the way things are.

...For the Supreme Court (or any court) to rule the law means the opposite of what any layman can see that is clearly says is not an adjudication, it is legislating. This violates the Constitution...Or it means you're wrong and don't understand these things.

joeschmoe
February 14, 2013, 03:49 PM
Why do you think that means anything? See post 14.

Of course any gun control or gun ban law enacted by Congress or by any State is subject to judicial challenge:


I don't understand your response.

The point I, and others are making, is that the government does not have unlimited power. It has specifically enumerated powers. We all know that rights are not unlimited. Of course there is lots of grey area for resonable people to disagree on, but a total ban on an otherwise specifically protected right is clearly not within the limited powers granted to the government.
Fundamental rights must be viewed from this perspective.
The government has no more legal right to ban a religion than to ban arms. It simply does not have the power to do so. Never did, never will. Yes, we expect the courts to rule that way, because that is what the Constitution says they must do.
The same document that empowers our government also restricts it.


"

The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, [B]in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.

[Amendment IX]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

[Amendment X]
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

beatledog7
February 14, 2013, 04:04 PM
Frank, you didn't answer the question.

In what oath of office anywhere in this country does a government official swear or affirm to uphold case law?

Frank Ettin
February 14, 2013, 04:14 PM
...The point I, and others are making, is that the government does not have unlimited power. It has specifically enumerated powers. We all know that rights are not unlimited. Of course there is lots of grey area for resonable people to disagree on, but a total ban on an otherwise specifically protected right is clearly not within the limited powers granted to the government...I agree that the government doesn't have unlimited power. But my point is that the exact scope and limits of its powers will be matters for the federal courts.

...The government has no more legal right to ban a religion than to ban arms. It simply does not have the power to do so. Never did, never will. Yes, we expect the courts to rule that way, because that is what the Constitution says they must do...And yes, for a variety of reasons we would not expect Congress to attempt to totally ban a religion, and if Congress were to do something like that, we'd expect the federal courts toss such a law into the trash.

But if a fundamental tenant of a religion were to require human sacrifice, I've no doubt that the courts would still support prosecution of those involved in the killing of sacrificial victims.

Let's try to stay grounded in the realities of how the legal system works. By understanding those realities we better understand what we need to do to most effectively promote the RKBA.

Frank, you didn't answer the question.

In what oath of office anywhere in this country does a government official swear or affirm to uphold case law? That's a puerile and meaningless question.

Law (including the Constitution, which is, itself, law) does not exist in a vacuum, nor is it self actuating. It exists in the real world, where it is used as a tool by which courts decide the outcome of disputes. And in using the Constitution to resolve real world controversies, case law is one of the tools used by courts to determine how it applies to the matter at hand.

joeschmoe
February 14, 2013, 04:57 PM
I agree that the government doesn't have unlimited power. But my point is that the exact scope and limits of its powers will be matters for the federal courts.
Agreed, but the courts have ruled, and we can expect them to continue to rule the govenment does not have unlimited power to ban arms. How much regulation, is debateable, but a total ban or confiscation is a simple plain text reading; No. The Constitution was written in plain text to be understood by the people. We don't have to wait for the priests to rule, everyone should know the answer. As opposed to the OP's quote, that many Americans believe that if 51% of Congress says so, it's legal. Not so. You seem to think we must end speculation until the courts rule because only the courts decide what the limits are. No, we know what the answer must be. The people have already placed limits upon the government, when we see them clearly exceed it, we have a duty to protest it. Not just wait until the courts say so.

And yes, for a variety of reasons we would not expect Congress to attempt to totally ban a religion, and if Congress were to do something like that, we'd expect the federal courts toss such a law into the trash.Why? The point of this thread, and my previous thread is that Congress simply lacks the power to do so, but many Americans mistakenly believe they can. No. They can try, but they must fail. Their powers are limited, not unlimited. That is the point we are making.

But if a fundamental tenant of a religion were to require human sacrifice, I've no doubt that the courts would still support prosecution of those involved in the killing of sacrificial victims.
Murder is a well establish crime regardless of the 1st or 2nd Amendment. Non-sequitor. Because there are outer limits to all rights, is not an excuse to completly ban a specifically protected right. Huge difference. That was DC's excuse in Heller, because some restrictions are allowed, then a total ban must be legal. The court said no, that was not reasonable. Completly opposite perspective.
Let's try to stay grounded in the realities of how the legal system works. By understanding those realities we better understand what we need to do to most effectively promote the RKBA.


That is the point of this thread. Understanding how our system works. As opposed to the mistaken belief that Congress can do anything it wants. No. They can't. Their powers are limited. When they exceed those powers we expect they will be overturned by the courts. The debate here is to educate the people that Congress lacks such powers in the first place. Gun owners and everyone else should know that the Government does not have such powers. Never did, never will.

beatledog7
February 14, 2013, 04:58 PM
That's a puerile and meaningless question.

In other words, none. Thank you.

CapnMac
February 14, 2013, 10:29 PM
In other words, none. Thank you
Actually, not no.
Precedent becomes the law--the boring Latin is "Stare decisis et non quieta movere."

Which then informs all legislative bodies from City Councils, County Commissioner's Courts, to State governments, to our federal congress.

The power to do so is embodied in the US Constitution, and in the several State's constitutions, and thence to all those sworn to uphold and defend to that intent.

Coincident to that is in the "how' a given citizen can expect laws to be understood and upheld.

So, yes, oaths sworn to uphold and defend the Constitution do include "case law." Including repugnant and unconstitutional ones. For instance, it was required to enforce the Volstead Act, until the 21st Amendment made that moot. It was required to enforce the federal AWB from 1994 to 2004, as well.

So, no, the answer is not "no."

BaltimoreBoy
February 15, 2013, 12:14 PM
So the Federal Government has the authority because the Federal Government has determined that the Federal Government has the authority. Of course it also has the coercive power needed at its disposal.

Let's pose this question: If the Supreme Court had determined that the intellectually discredited 'group rights' theory of the Second Amendment was valid and struck down the second amendment as an individual right (no matter how absurd and foolish they looked) would those here who stipulate the Federal government's right to decide its own powers and regulate firearms acknowledge that they had no personal right to firearms?

To be sure the Federal government has the power to enforce that interpretation - but it would be contrary to history and the obvious meaning of the document. Anyone with a reasonable command of English would realize that. The supreme court can say what it wishes, but at some point 'usurpations', as the founders would have called them, begin to undermine the government's moral authority.

That is why the Canadian government had to back away from its absurd and expensive registration scheme when 70% of the Canadian citizens simply disobeyed the law.

Like it or not the Constitution was framed in the 18th century intellectual context of 'natural law'. And you don't have to be divinely inspired by the Holy Ghost to read it and understand its' meaning.

Frank Ettin
February 15, 2013, 02:46 PM
...Like it or not the Constitution was framed in the 18th century intellectual context of 'natural law'. And you don't have to be divinely inspired by the Holy Ghost to read it and understand its' meaning.... Nonetheless, there has been disagreement about what the Constitution means in particular contexts almost since it was ratified. Anticipating such disagreements, and understanding that resolution of such disagreements is what courts do, the Founders provided that a system of federal courts would exercise the judicial power of the United States and that such courts would have jurisdiction to decide, among other things, cases arising under the Constitution.

Rogue6
February 15, 2013, 04:15 PM
In Heller, the Supreme Court stated that the intent behind the 2nd Amendment, and the relationship between the prefatory clause and the operative clause, is as follows:

"First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary-an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny."

"We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people's arms, enabling a select militia or standing army to suppress political opponents." (By “select militia” they refer to something along the lines of the modern-day National Guard, which is different from the “organized militia.”)

"This holding [in Miller] is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia")."

"In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same."

The stated goals of the 2nd Amendment simply cannot be accomplished with a limited array of deer rifles and shotguns, but they can with military-style small arms and some malicious ingenuity, as various insurgencies around the world have amply demonstrated. And it is not true that the Founders did not contemplate more lethal weapons - they certainly had cannons in the late 18th Century, which were the state-of-the-art in weapons of mass destruction, and those are STILL legal for private citizens to own. It is only in the 20th Century that government began imposing restrictions on what types of arms citizens could possess.

Additionally, the Supreme Court’s interpretation fits with the statutory scheme of the Bill of Rights, which was designed to protect citizens from their government rather than from each other. The 1st Amendment keeps government from restricting our speech or religious practices. The 3rd Amendment prohibits government from taking over our homes. The 4th Amendment prevents government from searching and seizing our possessions without due process of law. The 5th Amendment restricts government from prosecuting us without due process of law. The 6th Amendment ensures that government cannot imprison us without a speedy trial by our peers. The 7th Amendment prevents government from doing away with our right to jury trials in important civil matters. The 8th Amendment protects us from government using cruel punishments against us or holding us without bail. The 9th Amendment prohibits government from usurping any of our rights not specifically listed, and the 10th Amendment keeps the federal government from taking away power from the states and the people. It seems clear then that the 2nd Amendment was not primarily designed to protect us from each other or to ensure our right to hunt for food, but was instead a check upon the powers of the federal government. Such a check requires the ability to resist that power if it becomes necessary, and the 2nd Amendment ensures that ability by providing the Bill of Rights with tooth and claw.

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