Under what power can Congress regulate private sales? No power for UBC?


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joeschmoe
February 14, 2013, 02:58 PM
Under what power can Congress regulate private sales? Universal background checks would regulate private sales.

Where in the Constitution did we give Congress the power to regulate private sales? Currently FFL sales can require because Congress does have the power to regualte commerce. That power is clearly given to them in Article I of the Constitution.
Where is the power to regulate individuals granted to them?

I see the power to tax, wage war, call out the Militia, establish courts, etc.

IMO, Congress does not have the power to require universal background checks.

"[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"

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Elessar
February 14, 2013, 04:28 PM
There is no answer to this because it is now irrelevant. They have no authority granted in the Constitution for most of the stuff they do now. A famous Supreme Court case sided with the goverment in preventing a farmer from growing crops strictly for his own family's use, supposedly since even this somehow affected "interstate" commerce since what he grew affects what he would buy from others. Insane. The idea that at any point the founders of this country or that anywhere in the constitution from which the federal goverment derives its authority and very existance, somehow intended to give it the authority to tell people what they can and can't do with their own property, what they can eat, what local schools should teach, etc is utterly ridiculous.

NavyLCDR
February 14, 2013, 04:40 PM
There is no answer to this because it is now irrelevant. They have no authority granted in the Constitution for most of the stuff they do now. A famous Supreme Court case sided with the goverment in preventing a farmer from growing crops strictly for his own family's use, supposedly since even this somehow affected "interstate" commerce since what he grew affects what he would buy from others. Insane. The idea that at any point the founders of this country or that anywhere in the constitution from which the federal goverment derives its authority and very existance, somehow intended to give it the authority to tell people what they can and can't do with their own property, what they can eat, what local schools should teach, etc is utterly ridiculous.
Correct. The case was Wickard v. Filburn

http://www.google.com/url?q=http://en.wikipedia.org/wiki/Wickard_v._Filburn&sa=U&ei=EFkdUcXNNsWIiwK6moHACw&ved=0CBgQFjAA&usg=AFQjCNGttRplhHgLfNRR7NqKXwRNSoFTxg

The Supreme Court ruled that ANYTHING can be regulated under the Interstate Commerce Clause. Let's say you buy a rifle from your next door neighbor. The US Supreme Court ruled that falls under the Insterstate Commerce Clause because you did NOT buy it from an out-of-state dealer, and therefore affected interstate commerce by taking away from it.

Is it right? NO. Is it an abuse of the Insterstate Commerce Clause? ABSOLUTELY!

joeschmoe
February 14, 2013, 04:43 PM
Yes, I know that case. The farmer was engaged full time in interstate commerce. He tried to claim that "some" of his farm was not for commerce. He lost, because he was engaged in interstate commerce and then he does have to follow the rules the government makes.
Nor can an FFL or grocery store claim that some of thier sales are "private". Not the same thing as regulating all 300 million Americans private sales. Almost none of whom are engaged in commerical firearms.
There was also a case of people growing marijuana, for personal use, who's charge was upheld under the commerce clause, because marijuana is contraban and could reasonably enter into interstate commerce. Where as private gun ownership is otherwise legal, and protected. Different subject again. Not interstate commerce.

I do not go for this all is lost, everything is unconstitutional argument. The courts still require government powers to fit into one of the powers delegated under the Constitution.
There is no such power given to the government to regulate individual sales.

UBC's are unconstitutional. No such power has been given to Congress.

Alaska444
February 14, 2013, 04:46 PM
Correct. The case was Wickard v. Filburn

http://www.google.com/url?q=http://en.wikipedia.org/wiki/Wickard_v._Filburn&sa=U&ei=EFkdUcXNNsWIiwK6moHACw&ved=0CBgQFjAA&usg=AFQjCNGttRplhHgLfNRR7NqKXwRNSoFTxg

The Supreme Court ruled that ANYTHING can be regulated under the Interstate Commerce Clause. Let's say you buy a rifle from your next door neighbor. The US Supreme Court ruled that falls under the Insterstate Commerce Clause because you did NOT buy it from an out-of-state dealer, and therefore affected interstate commerce by taking away from it.

Is it right? NO. Is it an abuse of the Insterstate Commerce Clause? ABSOLUTELY!
That is such incredibly fabricated logic, but that is our government. With that type of ruling, they abrogate the restrictions intended by the constitution. Simply breath taking to see that "logic." Wow.

joeschmoe
February 14, 2013, 04:57 PM
Filburn was a commercial farmer. His business can be regulated.
Filburn lost because the issue was the economic impact of his growing on a quota system in a government subsidsed market.

"exerts a substantial economic effect on interstate commerce"

Not just some guy who wanted to grow food for himself as many seem to want to portray him. He was a commercial farmer.

There is no government subsidy of private firearms ownership. 300 million Americans are not commercial dealers trying to do a few private sales.

joeschmoe
February 14, 2013, 05:01 PM
Correct. The case was Wickard v. Filburn

http://www.google.com/url?q=http://en.wikipedia.org/wiki/Wickard_v._Filburn&sa=U&ei=EFkdUcXNNsWIiwK6moHACw&ved=0CBgQFjAA&usg=AFQjCNGttRplhHgLfNRR7NqKXwRNSoFTxg

The Supreme Court ruled that ANYTHING can be regulated under the Interstate Commerce Clause.
No they did not. Please stay within the realm of reality. A commercial farmer must follow the rules for commercial farmers. The court "ruled" his actions... "exerts a substantial economic effect on interstate commerce".

Let's say you buy a rifle from your next door neighbor. The US Supreme Court ruled that falls under the Insterstate Commerce Clause because you did NOT buy it from an out-of-state dealer, and therefore affected interstate commerce by taking away from it.

Is it right? NO. Is it an abuse of the Insterstate Commerce Clause? ABSOLUTELY!

They never said that either.

NavyLCDR
February 14, 2013, 05:07 PM
Filburn was a commercial farmer. His business can be regulated.
Filburn lost because the issue was the economic impact of his growing on a quota system in a government subsidsed market.

"exerts a substantial economic effect on interstate commerce"

Not just some guy who wanted to grow food for himself as many seem to want to portray him. He was a commercial farmer.

There is no government subsidy of private firearms ownership. 300 million Americans are not commercial dealers trying to do a few private sales.
You might want to read the court's opinion:

http://www.google.com/url?q=http://en.wikipedia.org/wiki/Wickard_v._Filburn&sa=U&ei=EFkdUcXNNsWIiwK6moHACw&ved=0CBgQFjAA&usg=AFQjCNGttRplhHgLfNRR7NqKXwRNSoFTxg

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

One guy, buying one rifle from his neighbor has a trivial affect on interstate commerce. However, thousands of other individuals buying rifles from their neighbors, viewed in the aggregate, would have a substantial effect on interstate commerce, therefore falling under the interstate commerce clause.

joeschmoe
February 14, 2013, 05:15 PM
What about Lopez vs USA (1995) ? Was this the reverse? SCOTUS eliminating the GFSZ's and Congress reinstating it under the Commerce Clause? :scrutiny:

Just wondering about all the insanity. :evil:
But the government lost in Lopez? Congress later rewrote it so it was not so vauge and sweeping (orginally 1000 feet from any school even if you lived there or were just driving by). Way too broad and vauge. SCOTUS did limit them.

"To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do."

joeschmoe
February 14, 2013, 05:26 PM
You might want to read the court's opinion:

http://www.google.com/url?q=http://en.wikipedia.org/wiki/Wickard_v._Filburn&sa=U&ei=EFkdUcXNNsWIiwK6moHACw&ved=0CBgQFjAA&usg=AFQjCNGttRplhHgLfNRR7NqKXwRNSoFTxg

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

One guy, buying one rifle from his neighbor has a trivial affect on interstate commerce. However, thousands of other individuals buying rifles from their neighbors, viewed in the aggregate, would have a substantial effect on interstate commerce, therefore falling under the interstate commerce clause.
Again, you are missing the 2 important parts here. 1)He was a commercial farmer 2)the ruling was on economic activity in a highly regulated (and subsidised) marketplace. UBC's claim is about "safety", not economic impact.

SCOTUS ruling in Lopez makes it clear that there are limits to the claim of interstate commerce.

If the only power claimed is "interstate commerce" then there is no power for UBC's.

joeschmoe
February 14, 2013, 06:46 PM
How do you mean? What is TMK?

NavyLCDR
February 14, 2013, 07:24 PM
Again, you are missing the 2 important parts here. 1)He was a commercial farmer 2)the ruling was on economic activity in a highly regulated (and subsidised) marketplace. UBC's claim is about "safety", not economic impact.

SCOTUS ruling in Lopez makes it clear that there are limits to the claim of interstate commerce.

If the only power claimed is "interstate commerce" then there is no power for UBC's.

And the Federal School Zone law is about "safety" as well. The Federal School Law uses "interstate commerce" as the legal authority to regulate 1 person carrying 1 gun.

http://www.law.cornell.edu/uscode/text/18/922

18 USC 922 (q)(2):

"(2)
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone. "

Now, watch this:

"It shall be unlawful for any individual to knowingly sell, give or otherwise transfer a firearm that has moved in or that otherwise affects interstate or foreign commerce to any other individual without first obtaining approval from the universal background check system."

Amazing how that works, isn't it? The bolded phrase makes both laws fall under the interstate commerce clause, giving Congress the power to regulate 1 individual person performing an action with 1 single firearm. And, even if that firearm never left the one single state the "violation" occurred in, were all the raw materials that firearm was made with obtained within that single state? If any raw material that firearm was made with came from out of state.....it affected interstate commerce.

joeschmoe
February 14, 2013, 07:38 PM
And the Federal School Zone law is about "safety" as well. The Federal School Law uses "interstate commerce" as the legal authority to regulate 1 person carrying 1 gun.

http://www.law.cornell.edu/uscode/text/18/922

18 USC 922 (q)(2):

"(2)
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone. "

Now, watch this:

"It shall be unlawful for any individual to knowingly sell, give or otherwise transfer a firearm that has moved in or that otherwise affects interstate or foreign commerce to any other individual without first obtaining approval from the universal background check system."

Amazing how that works, isn't it? The bolded phrase makes both laws fall under the interstate commerce clause, giving Congress the power to regulate 1 individual person performing an action with 1 single firearm. And, even if that firearm never left the one single state the "violation" occurred in, were all the raw materials that firearm was made with obtained within that single state? If any raw material that firearm was made with came from out of state.....it affected interstate commerce.
Filburn was about economic, not safety. The courts reasoning relied upon it's economic impact.
Lopez was overturned. We won. Please read the courts opinon here again:

"To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do."


You are doing exactly what the court said cannot be done. Piliing inference upon inference claiming unlimted power. The court said no on exactly that point.

Is there any claim of right here other than "commerce clause"? No? Then the UBC is dead. DOA.

NavyLCDR
February 14, 2013, 07:44 PM
Filburn was about economic, not safety. The courts reasoning relied upon it's economic impact.
Lopez was overturned. We won. Please read the courts opinon here again:

"To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do."


You are doing exactly what the court said cannot be done. Piliing inference upon inference claiming unlimted power. The court said no on exactly that point.

Is there any claim of right here other than "commerce clause"? No? Then the UBC is dead. DOA.

So, what you are claiming is that there is no more Federal School Zone 1000' prohibition? Would you care to cite the case that overturned Lopez?

I would suggest that you review this history:
http://en.wikipedia.org/wiki/Gun-Free_School_Zones_Act_of_1990

Following the Lopez decision, President Clinton's Attoney General Janet Reno proposed changes to 18 U.S.C. § 922(q) that were adopted (or "concealed" and "widely ignored" as one author put it) in section 657 of the Omnibus Consolidated Appropriations Act of 1997, Pub.L. 104–208, 110 Stat. 3009, enacted September 30, 1996.[5] These minor changes required that the firearm in question "has moved in or otherwise affects interstate commerce".[6]

As nearly all firearms have moved in Interstate Commerce at some point in their lives, critics assert this was merely a legislative tactic to circumvent the Supreme Court's ruling.[5]

Challenges

The Supreme Court of the United States held that the original Act was an unconstitutional exercise of Congressional authority under the Commerce Clause of the United States Constitution in United States v. Lopez, 514 U.S. 549 (1995). This was the first time in over half a century that the Supreme Court limited Congressional authority to legislate under the Commerce Clause.

Although the amended GFSZA has yet to be challenged in the United States Supreme Court, it has been reviewed and upheld by several United States Circuit Courts. In a 2005 Appellate case, United States v. Dorsey,[7] the minor changes of the revised law were specifically challenged. In the Dorsey case, the US Court of Appeals for the Ninth Circuit ruled that the minor changes were indeed sufficient to correct the issues that had caused the original 1990 law to be struck down in United States v Lopez, and they upheld Dorsey's conviction under the revised version of the law.

Other convictions upheld post-Lopez under the revised Gun Free School Zone Act include:

United States v Danks (Eighth Circuit 1999)
United States v Tait (Eleventh Circuit 2000)
United States v Haywood (Third Circuit 2002)
United States v Smith (Sixth Circuit 2005)
United States v Dorsey (Ninth Circuit 2005)
United States v Nieves-Castaño (First Circuit 2007)
United States v Weekes (Third Circuit 2007)
United States v Benally (Tenth Circuit 2007)
United States v Cruz-Rodriguez (First Circuit 2008)

geekWithA.45
February 14, 2013, 07:50 PM
There are three main theories of federal extraconstitutional power.

1) Commerce Clause/Wickard v Filburn is well discussed.

2) The taxation power, which was the theory that was used prior to 1941, and which was recently revived by Chief Justice John Roberts.

The basic theory holds that congress has the power to tax, and laying a tax on an item provides jurisdiction with which to regulate.

Notable examples: The Harris Narcotics act (1917?) was the test case. It created a scheme in which certain substances and occupations were taxed, and regulations setup quailifications for who could pay the tax and engage in the occupations. This pattern was followed in the 1934 NFA, which is well discussed elsewhere. A variation on the theme was cited by Roberts in upholding Obamacare.

3) The income tax.

This is more a de-facto power, and less of a de-jure power. "The golden rule is that He who has the gold makes the rules."

This is the tripod upon which federal over reach rests. Most federal abuse would not be possible without one or more of these three legs.

joeschmoe
February 14, 2013, 07:52 PM
So, what you are claiming is that there is no more Federal School Zone 1000' prohibition?

No. I'm asking under what power can Congress regulate private sales? You guys are claiming "commerce clause" is unlimited. Except Lopez says it's not.

What point are you making?

CapnMac
February 14, 2013, 07:54 PM
If we read SB-22, all it says is that only FFL may buy and sell on the premises of a "gun show." That's it.

Now, whether that is an undue restriction upon the business of gun show promoters will require somebody smarter than me. Obviously, federally-licensed dealers have some sort of link to interstate commerce. The folk who wish to simply rent a table, the ones not engaged in trade requiring a license . . .

Now, there is a failing in SB-22, a, if you will, a common prima facie fait acompli many such federal laws are guilty of. In this case: "Just what constitutes the premises of a gun show?" Will the promoter have to put up "limits" signs? Will additional persons be needed to police such limits? Oh, and that after cobbling up just what is a "gun show"--will that include 'swap meets" or "flea markets' or "jockey lots"?

There is plenty here to chew upon, particularly the aspect of "Is this designed to fail?" and/or is this just a bargaining chip?

joeschmoe
February 14, 2013, 07:56 PM
There are three main theories of federal extraconstitutional power.

1) Commerce Clause/Wickard v Filburn is well discussed.

2) The taxation power, which was the theory that was used prior to 1941, and which was recently revived by Chief Justice John Roberts.

The basic theory holds that congress has the power to tax, and laying a tax on an item provides jurisdiction with which to regulate.

Notable examples: The Harris Narcotics act (1917?) was the test case. It created a scheme in which certain substances and occupations were taxed, and regulations setup quailifications for who could pay the tax and engage in the occupations. This pattern was followed in the 1934 NFA, which is well discussed elsewhere. A variation on the theme was cited by Roberts in upholding Obamacare.

3) The income tax.

This is more a de-facto power, and less of a de-jure power. "The golden rule is that He who has the gold makes the rules."

This is the tripod upon which federal over reach rests. Most federal abuse would not be possible without one or more of these three legs.
Those are not "extraconstitutional". They are right there in the Constitution. It gives Congress the power to tax and the power to regulate commerce. Those powers are not unlimied either, the courts have limited the governments power on both those points.

There is no suggestion of taxing UBC's (which woulnd't fly anymore than taxing speech or voting).
So it's either commerce or nothing, and commerce doesn't seem to hold up.

NavyLCDR
February 14, 2013, 07:59 PM
No. I'm asking under what power can Congress regulate private sales? You guys are claiming "commerce clause" is unlimited. Except Lopez says it's not.

What point are you making?

The point I am making is this:

"It shall be unlawful for any individual to knowingly sell, give or otherwise transfer any firearm to any other individual without first obtaining approval from the universal background check system." would be unconstitutional for the same reasons the Lopez made the first Federal Gun Free School Act unconstitutional - there is nothing that ties the law to the interstate commerce clause.

Now....follow me here... just like the Federal Gun Free School Act..... add:

"It shall be unlawful for any individual to knowingly sell, give or otherwise transfer a firearm that has moved in or that otherwise affects interstate or foreign commerce to any other individual without first obtaining approval from the universal background check system." and now, just like the Federal Gun Free School Act, the courts will uphold it, just like

United States v Danks (Eighth Circuit 1999)
United States v Tait (Eleventh Circuit 2000)
United States v Haywood (Third Circuit 2002)
United States v Smith (Sixth Circuit 2005)
United States v Dorsey (Ninth Circuit 2005)
United States v Nieves-Castaño (First Circuit 2007)
United States v Weekes (Third Circuit 2007)
United States v Benally (Tenth Circuit 2007)
United States v Cruz-Rodriguez (First Circuit 2008)

all upheld the new Federal Gun Free School Zone Act because the addition of "that has moved in or that otherwise affects interstate or foreign commerce" causes the law to fall under the interstate commerce clause. Just like the new Federal Gun Free School Act - the only requirement would be for the government to prove that the firearm sold or transferred had at one time in the past moved in or otherwise affected interstate or foreign commerce.

Given the decision of Wickard v. Fillburn - it would be difficult to use the fact that the firearm was made in the same state the "violation" occurred in and never left that state as a successful defense.

joeschmoe
February 14, 2013, 08:01 PM
We won Lopez,IMO. ::D. The BATFE is defying the court on the GFSZ's. Are there test cases? TMK, none.

Next .
Then why do you say the BATFE is defying Lopez? If no one has been charged since Lopez won, what's the problem?

NavyLCDR
February 14, 2013, 08:08 PM
The Lopez decision has never been overturned. It has been upheld by several Federal courts lower than the US Supreme Court. Lopez overturned the first GFSZA which did not contain the phrase "has moved in or that otherwise affects interstate or foreign commerce". Once that phrase was added, the new law has not been overturned, but has been upheld by several different courts.

NavyLCDR
February 14, 2013, 08:16 PM
We are attempting to discuss two entirely different issues here. We are attempting to discuss the authority that Congress would have to regulate private sales, and the entirely different topic is the exception, in the way of a permit, to that law.

Now, if you want to discuss an exception to a law that would require a universal background check... it would be that a person that received a background check from the same state in which the private transfer or sale was occurring would exempt the sale from the UBC requirement, but an out-of-state background check would not.

joeschmoe
February 14, 2013, 08:17 PM
The point I am making is this:

"It shall be unlawful for any individual to knowingly sell, give or otherwise transfer any firearm to any other individual without first obtaining approval from the universal background check system." would be unconstitutional for the same reasons the Lopez made the first Federal Gun Free School Act unconstitutional - there is nothing that ties the law to the interstate commerce clause.

Now....follow me here... just like the Federal Gun Free School Act..... add:

"It shall be unlawful for any individual to knowingly sell, give or otherwise transfer a firearm that has moved in or that otherwise affects interstate or foreign commerce to any other individual without first obtaining approval from the universal background check system." and now, just like the Federal Gun Free School Act, the courts will uphold it, just like

United States v Danks (Eighth Circuit 1999)
United States v Tait (Eleventh Circuit 2000)
United States v Haywood (Third Circuit 2002)
United States v Smith (Sixth Circuit 2005)
United States v Dorsey (Ninth Circuit 2005)
United States v Nieves-Castaño (First Circuit 2007)
United States v Weekes (Third Circuit 2007)
United States v Benally (Tenth Circuit 2007)
United States v Cruz-Rodriguez (First Circuit 2008)

all upheld the new Federal Gun Free School Zone Act because the addition of "that has moved in or that otherwise affects interstate or foreign commerce" causes the law to fall under the interstate commerce clause. Just like the new Federal Gun Free School Act - the only requirement would be for the government to prove that the firearm sold or transferred had at one time in the past moved in or otherwise affected interstate or foreign commerce.

Given the decision of Wickard v. Fillburn - it would be difficult to use the fact that the firearm was made in the same state the "violation" occurred in and never left that state as a successful defense.
First, correct me if I'm wrong here; LOPEZ WAS OVERTURNED BY SCOTUS! Right? SCOTUS said no. The power of the Commerce clause is not unlimited. So why do you keep claiming the commerce clause is unlimited?
Second, GFSZ is limited to school zones. The governments whole argument in Lopez was limited to federal interest in school zones. How does that now expand to the whole country? It doesn't.

NavyLCDR
February 14, 2013, 08:18 PM
You are saying it has never gone back to the Supremes? And therefore BATFE is correct under the current soap opera?
The BATFE opinion has nothing to do with the prohibition itself. The BATFE opinion only interprets the exception to the prohibition.

joeschmoe
February 14, 2013, 08:23 PM
We are attempting to discuss two entirely different issues here. We are attempting to discuss the authority that Congress would have to regulate private sales, and the entirely different topic is the exception, in the way of a permit, to that law.

Now, if you want to discuss an exception to a law that would require a universal background check... it would be that a person that received a background check from the same state in which the private transfer or sale was occurring would exempt the sale from the UBC requirement, but an out-of-state background check would not.
I have no idea what you're saying here. Please read the OP.

If you're trying to claim that the GFSZ law is proof that the commerce clause can be used to allow UBC, then Lopez proves you're wrong.

Congress does not have the power to regulate private sales.

NavyLCDR
February 14, 2013, 08:25 PM
First, correct me if I'm wrong here; LOPEZ WAS OVERTURNED BY SCOTUS! Right?

Wrong. Lopez WAS a SCOTUS decision!

Second, GFSZ is limited to school zones. The governments whole argument in Lopez was limited to federal interest in school zones. How does that now expand to the whole country? It doesn't.

The Federal Gun Free School Zone law applies to every school zone across the whole entire country. The Lopez decision did not limit which school zone, or to which state it was located in. The Lopez decision limited the application of the GFSZ law to only those firearms which "has moved in or that otherwise affects interstate commerce."

The Lopez decision limited to which firearms the GFSZ law applied, not to which school zones it applied to. The Federal GFSZA applies to every school in every state, but only applies to those firearms that "has moved in or that otherwise affects interstate commerce." Just like a Universal Background Check law would apply to any firearms transaction occurring in any state, but would only apply to a firearm that "has moved in or that otherwise affects interstate commerce."

Now - prove to me that any firearm in question has never "moved in or otherwise affected interstate commerce."

NavyLCDR
February 14, 2013, 08:32 PM
The basics are this..... prior to the Lopez decision, which WAS the Supreme Court of the US.... the Federal Government prohibited the possession of ANY firearm in ANY school zone in the US. The US Supreme Court, in the Lopez decision said to the Federal government, "You can't regulate any and every firearm. You can only regulate those firearms which have moved in or otherwise affects interstate commerce."

The Federal Government said, "OK. We will re-write the law to only apply to those firearms which have moved in or otherwise affects interstate commerce", HOWEVER, the law still applies to every school zone in every state. ONLY the firearm was limited, to those firearms that "have moved in or otherwise affects interstate commerce".

It will be the same if a UBC law passes, it will apply to every transaction, in every state, but will only apply if the firearm transferred "has moved in or otherwise affects interstate commerce" which means that the law will apply to about 99% of the firearms in existence in the US.

The only real application of Wickard v. Filburn would be if the firearm in question was made in, and never left the same state that a transfer of that firearm occurred in.

Frank Ettin
February 14, 2013, 08:38 PM
...The idea that at any point the founders of this country or that anywhere in the constitution from which the federal goverment derives its authority and very existance, somehow intended to give it the authority to tell people what they can and can't do with their own property, what they can eat, what local schools should teach, etc is utterly ridiculous...We speak about the "intent of the Founding Fathers" as if they all agreed. But they did not. Fifty-five delegates attended the Constitutional Convention in 1786-87. Thirty-nine signed the proposed Constitution. Thirteen left without signing, and three refused to sign.

There was then a bitter fight over ratification by the States. And it indeed looked like the Constitution would fail ratification until the Massachusetts Compromise was hashed out -- giving us the Bill of Rights after the Constitution was ratified without the Bill of Rights.

And while the Founders aren't here to fully explain the depth and breadth of their intentions and expectations, they did leave 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.
The Founding Fathers also provided in the Constitution (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,...

And thus disagreements concerning the application of the the Constitution to the resolution of particular disputes is the province of the federal courts -- something clearly the Founders intended.

NavyLCDR
February 14, 2013, 08:40 PM
There are no court cases which say that a transaction involving a firearm cannot be regulated by the Federal government so long as the firearm itself "has moved in or otherwise affects interstate commerce."

Wickard v. Filburn may be used to justify Federal government regulation of a transaction of a firearm even if the firearm was made in and never left the state in which the transaction occurred.

My personal interpretation of the Interstate Commerce Clause is that the Federal government should only have the power to regulate those items which ARE IN THE PROCESS of moving in interstate commerce - an interpretation which differs from that of the US Supreme Court.

joeschmoe
February 14, 2013, 10:46 PM
Wrong. Lopez WAS a SCOTUS decision!
Lopez was convicted, the decision was overturned by a lower court and affirmed by SCOTUS. We won. I don't know why you think this is an example of unlimited power. The court ruled against Congress and specifically limited the commerce clause.


The Federal Gun Free School Zone law applies to every school zone across the whole entire country. The Lopez decision did not limit which school zone, or to which state it was located in. The Lopez decision limited the application of the GFSZ law to only those firearms which "has moved in or that otherwise affects interstate commerce."

The Lopez decision limited to which firearms the GFSZ law applied, not to which school zones it applied to. The Federal GFSZA applies to every school in every state, but only applies to those firearms that "has moved in or that otherwise affects interstate commerce." Just like a Universal Background Check law would apply to any firearms transaction occurring in any state, but would only apply to a firearm that "has moved in or that otherwise affects interstate commerce."

Now - prove to me that any firearm in question has never "moved in or otherwise affected interstate commerce."

My guns have never entered into a school zone, so GFSZ does not apply. You're forgetting that only applies to school zones. You're trying to broaden it to include everyone, everywhere and all guns. Lopez clearly limited the commerce clause.

joeschmoe
February 14, 2013, 10:52 PM
The basics are this..... prior to the Lopez decision, which WAS the Supreme Court of the US.... the Federal Government prohibited the possession of ANY firearm in ANY school zone in the US. The US Supreme Court, in the Lopez decision said to the Federal government, "You can't regulate any and every firearm. You can only regulate those firearms which have moved in or otherwise affects interstate commerce."

The Federal Government said, "OK. We will re-write the law to only apply to those firearms which have moved in or otherwise affects interstate commerce", HOWEVER, the law still applies to every school zone in every state. ONLY the firearm was limited, to those firearms that "have moved in or otherwise affects interstate commerce".

It will be the same if a UBC law passes, it will apply to every transaction, in every state, but will only apply if the firearm transferred "has moved in or otherwise affects interstate commerce" which means that the law will apply to about 99% of the firearms in existence in the US.

The only real application of Wickard v. Filburn would be if the firearm in question was made in, and never left the same state that a transfer of that firearm occurred in.
No. You're just broading the meaning of Lopez to arrive at the meaning you want. SCOTUS rejected the governments arguments as too broad and vauge. Now you are trying to make them even broader. Lopez was a line the government failed to cross, but you're now going way beyond that to include everyone everywhere and 99% of guns. That is clearly opposite of what Renquist wrote in Lopez.

joeschmoe
February 14, 2013, 11:08 PM
Are you reading the same case I am?




UNITED STATES, PETITIONER v. ALFONSO LOPEZ, Jr.
on writ of certiorari to the united states court of appeals for the fifth circuit
[April 26, 1995]

Chief Justice Rehnquist delivered the opinion of the Court.

In the Gun Free School Zones Act of 1990, Congress made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V). The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress "[t]o regulate Commerce . . . among the several States . . . ." U. S. Const., Art. I, §8, cl. 3.

On March 10, 1992, respondent, who was then a 12th grade student, arrived at Edison High School in San Antonio, Texas, carrying a concealed .38 caliber handgun and five bullets. Acting upon an anonymous tip, school authorities confronted respondent, who admitted that he was carrying the weapon. He was arrested and charged under Texas law with firearm possession on school premises. See Tex. Penal Code Ann. §46.03(a)(1) (Supp. 1994). The next day, the state charges were dismissed after federal agents charged respondent by complaint with violating the Gun Free School Zones Act of 1990. 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V). [n.1]

A federal grand jury indicted respondent on one count of knowing possession of a firearm at a school zone, in violation of §922(q). Respondent moved to dismiss his federal indictment on the ground that §922(q) "is unconstitutional as it is beyond the power of Congress to legislate control over our public schools." The District Court denied the motion, concluding that §922(q) "is a constitutional exercise of Congress' well defined power to regulate activities in and affecting commerce, and the `business' of elementary, middle and high schools . . . affects interstate commerce." App. to Pet. for Cert. 55a. Respondent waived his right to a jury trial. The District Court conducted a bench trial, found him guilty of violating §922(q), and sentenced him to six months' imprisonment and two years' supervised release.

On appeal, respondent challenged his conviction based on his claim that §922(q) exceeded Congress' power to legislate under the Commerce Clause. The Court of Appeals for the Fifth Circuit agreed and reversed respondent's conviction. It held that, in light of what it characterized as insufficient congressional findings and legislative history, "section 922(q), in the full reach of its terms, is invalid as beyond the power of Congress under the Commerce Clause." 2 F. 3d 1342, 1367-1368 (1993). Because of the importance of the issue, we granted certiorari, 511 U. S. ___ (1994), and we now affirm.

We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U. S. Const., Art. I, §8. As James Madison wrote, "[t]he 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 Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority "was adopted by the Framers to ensure protection of our fundamental liberties." Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks omitted). "Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Ibid.

...

"These are not precise formulations, and in the nature of things they cannot be. But we think they point the way to a correct decision of this case. The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.

To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do.

For the foregoing reasons the judgment of the Court of Appeals is

Affirmed.

http://www.law.cornell.edu/supct/html/93-1260.ZO.html

NavyLCDR
February 15, 2013, 04:57 AM
I don't know why I am even going try, joeschmoe, but ONE MORE TIME.

The FIRST Gun Free School Zone Act (GFSZA) was passed in 1990. It read something like this, "It shall be unlawful for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone. "

In 1995 the US Supreme Court ruled in United States v. Lopez that the FIRST GFSZA was unconstitutional. Yes, we won Lopez. The FIRST GFSZA was struck down because Congress did not have the authority to ban EVERY firearm in every school zone. You and I agree, joeschmoe.

Now...after that you, joeschmoe, just cannot comprehend what happened next, and I don't know why. But I will present it again anyway. After the Lopez decision, Congress passed the SECOND GFSZA in 1996. This new version of the GFSZA was more limited in scope than the first. "It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone. " The SECOND GFSZA was limited to only those firearms "that has moved in or that otherwise affects interstate or foreign commerce" which Congress DOES have the power to regulate. The SECOND GFSZA has never been overturned, it has been upheld many different times in many different courts because it is limited to only those firearms "that has moved in or that otherwise affects interstate or foreign commerce".

Now.... try to follow this, joeschmoe. Concentrate really, really, really hard on it. If I am carrying a loaded firearm in Arizona, without an Arizona permit to carry that firearm, and I carry that firearm within 1000' of a school, I violate the SECOND Federal GFSZ law, IF and ONLY IF the loaded firearm that I am carrying has moved in or that otherwise affects interstate or foreign commerce such as if that firearm was manufactured outside the state of Arizona. (The Arizona permit only applies because of a specific exception to the law.)

NOW, in regards to a proposed Universal Background Check Law, are you still with me joeschmoe? Are you still concentrating really, really hard?

If a law was passed that said, "It shall be unlawful for an individual to sell or transfer any firearm to any other individual without first obtaining approval from the Universal Background Check System" that law would NOT pass the test of US v. Lopez, because, just like the FIRST GFSZA, Congress can not regulate EVERY firearm.

So....just like the SECOND GFSZA, which has been upheld many times in different courts, if the new law says, "It shall be unlawful for an individual to sell or transfer any firearm that has moved in or otherwise affects interstate or foreign commerce to any other individual without first obtaining approval from the Universal Background Check System" the new law now only applies to firearms that "has moved in or otherwise affects interstate or foreign commerce" which is what Congress does have the power to regulate.

So, let's say I am in Washington, and I sell a rifle to another Washington state resident without complying with the Universal Background Check. I will violate the new UBC law, IF and ONLY IF the government proves that the rifle "has moved in or otherwise affects interstate or foreign commerce" such as if the rifle was manufactured in a state other than Washington.

I am sure you can't comprehend this, joeschmoe, but hopefully everyone else can.

Girodin
February 15, 2013, 05:20 AM
Not just some guy who wanted to grow food for himself as many seem to want to portray him. He was a commercial farmer.

There is no government subsidy of private firearms ownership. 300 million Americans are not commercial dealers trying to do a few private sales.

I haven't read the whole thread, maybe its been touched on, but Raich v. Gonzalez is an instructional case. It was non commercial private use, pot plants. It pretty much came out the same way as Wickard. It was the case so many thought would cut back on that but it didn't. The fact is that without a serious change to SCOTUS commerce clause juris prudence, the commerce clause gives power to congress to regulate guns and even private in state gun sales.

Sam1911
February 15, 2013, 06:15 AM
Wow, this is getting heated!

It seems the question here really boils down to this:

1) Congress cannot regulate what happens with personal property (especially that subject to coverage by an enumerated right) within a state, across the board.

2) Congress CAN regulate what happens with personal property, across the board, IF they can show that it has been sold/transferred across state lines.

It really appears that the Lopez case affirmed point number one. The court says, paraphrasing, we can't INFER that he or his gun have affected or been involved in interstate commerce, so you can't regulate that.

It definitely appears that the "correction" to the GFZA that came after Lopez has established that point number 2 is Constitutionally acceptable to the Court. Congress simply said, again paraphrasing, Fine then, we reapply this rule but ONLY to guns that have been transferred in interstate commerce.

First the Court said, "well you can't infer that he or his gun have affected interstate commerce."

THEN the Congress rewrote the law to change it from affecting all guns that they had to INFER had been sold across state lines and made it so it covered only those guns that ACTUALLY had been sold across state lines.

Now, the inference that any gun Lopez happened to have would have at some point crossed state lines would have been almost 100% correct, but the Court wouldn't let Congress just write a law that assumed so.

Instead they forced Congress to write the law so that the gun ACTUALLY had to have crossed state lines.

That's the take-home message her. As 99.9% of all guns HAVE been sold across state lines in some way, it affects pretty much every gun. But they had to make the clarification for it to pass the the Court's interpretation of the Commerce Clause.

tyeo098
February 15, 2013, 10:47 AM
Firearm that hasnt been affected by interstate commerce?

Time to fire up the milling machine.

legaleagle_45
February 15, 2013, 11:59 AM
I do not believe they need to rely upon the commerce clause. I believe they can derive their power from Article I, Sec. 8, Cl 16:

To provide for organizing, arming, and disciplining, the
Militia, and for governing such Part of them as may be employed in the
Service of the United States, reserving to the States respectively, the
Appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress;

joeschmoe
February 15, 2013, 01:54 PM
I don't know why I am even going try, joeschmoe, but ONE MORE TIME.

The FIRST Gun Free School Zone Act (GFSZA) was passed in 1990. It read something like this, "It shall be unlawful for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone. "

In 1995 the US Supreme Court ruled in United States v. Lopez that the [U]FIRST GFSZA was unconstitutional. Yes, we won Lopez. The [B][U]FIRST GFSZA was struck down because Congress did not have the authority to ban EVERY firearm in every school zone. You and I agree, joeschmoe.

Now...after that you, joeschmoe, just cannot comprehend what happened next, and I don't know why. But I will present it again anyway. After the Lopez decision, Congress passed the [B][U]SECOND GFSZA in 1996. This [B]new version of the GFSZA was more limited in scope than the first. "It shall be unlawful for any individual knowingly to possess a firearm [U]that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is[B] a school zone. " The SECOND GFSZA was limited to only those firearms "that has moved in or that otherwise affects interstate or foreign commerce" which Congress DOES have the power to regulate. The SECOND GFSZA has never been overturned, it has been upheld many different times in many different courts because it is limited to only those firearms "that has moved in or that otherwise affects interstate or foreign commerce".

Now.... try to follow this, joeschmoe. Concentrate really, really, really hard on it. If I am carrying a loaded firearm in Arizona, without an Arizona permit to carry that firearm, and I carry that firearm within 1000' of a school, I violate the SECOND Federal GFSZ law, IF and ONLY IF the loaded firearm that I am carrying has moved in or that otherwise affects interstate or foreign commerce such as if that firearm was manufactured outside the state of Arizona. (The Arizona permit only applies because of a specific exception to the law.)

NOW, in regards to a proposed Universal Background Check Law, are you still with me joeschmoe? Are you still concentrating really, really hard?

If a law was passed that said, "It shall be unlawful for an individual to sell or transfer any firearm to any other individual without first obtaining approval from the Universal Background Check System" that law would NOT pass the test of US v. Lopez, because, just like the FIRST GFSZA, Congress can not regulate EVERY firearm.

So....just like the SECOND GFSZA, which has been upheld many times in different courts, if the new law says, "It shall be unlawful for an individual to sell or transfer any firearm that has moved in or otherwise affects interstate or foreign commerce to any other individual without first obtaining approval from the Universal Background Check System" the new law now only applies to firearms that "has moved in or otherwise affects interstate or foreign commerce" which is what Congress does have the power to regulate.
Now you've gone off the rails again. In Lopez SCOTUS struck down the first GFSZ as too broad. Now again you are taking an even broader reading to apply it to UBC's. That is where you fail. The second GFSZ has not made it back to SCOTUS, so you are assuming they are fine with just adding magic words, then you are going absurdly further expanding it to include everyone, everywhere and every gun. Just because it you use the same magic words. That is exactly opposite of what they said in Lopez.

So, let's say I am in Washington, and I sell a rifle to another Washington state resident without complying with the Universal Background Check. I will violate the new UBC law, IF and ONLY IF the government proves that the rifle "has moved in or otherwise affects interstate or foreign commerce" such as if the rifle was manufactured in a state other than Washington.

I am sure you can't comprehend this, joeschmoe, but hopefully everyone else can.

No, I can't comprehend how you can take a SCOTUS case where they limited the commerce clause and now apply it to everygun, everwhere for everyone. That clearly defies what they wrote in Lopez. You seem to not be able to read the opinion in Lopez that I posted for you.

Jim K
February 15, 2013, 02:07 PM
If the Supremes ever pull the prop of "interstate commerce" and "taxing authority" out from under the federal gun control laws, the whole furshlinging mess would collapse. I don't look for that to happen. If we don't want universal background checks, we need to stop it now, not rely on the courts after it becomes law.

FWIW, I don't see any liklihood that the NICS system will be thrown open to use (and abuse) by the general public. Every woman would want to check out her new boyfriend, every father would check out his daughter's prom escort, etc.

Not to mention the thousands of new employees needed to run the system. FWIW, I think the UBC, as proposed, is toast, no matter how good the anti-gun gang makes it seem or how much "bi-partisan" support it seems to have.

More likely would be something some states already have, a requirement that all gun transfers be through a licensed dealer, who would charge a fee.

Jim

joeschmoe
February 15, 2013, 02:08 PM
I haven't read the whole thread, maybe its been touched on, but Raich v. Gonzalez is an instructional case. It was non commercial private use, pot plants. It pretty much came out the same way as Wickard. It was the case so many thought would cut back on that but it didn't. The fact is that without a serious change to SCOTUS commerce clause juris prudence, the commerce clause gives power to congress to regulate guns and even private in state gun sales.
I mentioned that on page 1. In that case the plants are contraband, and already controlled under the commerce clause. Allowing growing would easily fail the interstate commerce economic test if they, and many others, would be allowed to grow thier own plants. There is no lawfull personal possession.

Unlike firearms that are legally owned now suddenly being controlled under the commerce clause, for no other reason than to give the government the power to control something they didn't previously have control over.

joeschmoe
February 15, 2013, 02:10 PM
I do not believe they need to rely upon the commerce clause. I believe they can derive their power from Article I, Sec. 8, Cl 16:

;
No. They can't use that unless you are actually called up by the federal government and serving as Militia.

"for governing such Part of them as may be employed in the
Service of the United States"

Sam1911
February 15, 2013, 02:11 PM
Now you've gone off the rails again. In Lopez SCOTUS struck down the first GFSZ as too broad. Now again you are taking an even broader reading to apply it to UBC's. That is where you fail. The second GFSZ has not made it back to SCOTUS, so you are assuming they are fine with just adding magic words, then you are going absurdly further expanding it to include everyone, everywhere and every gun. Just because it you use the same magic words. That is exactly opposite of what they said in Lopez.

You seem to be basing your whole argument on the theory that the words that Congress added to the GFSZA in order to answer the SCOTUS's complaint about the previous version did not, in fact, address the Court's complaint.

As you point out, it has not been brought back before the Court to find out FOR SURE if those words did not address the complaint they raised, but right now GFSZA is the law of the land until they choose to speak to that point.

Ergo, the fact that a gun law is currently applied this way has more weight than your theory that the Court MIGHT feel that it shouldn't be.

chipcom
February 15, 2013, 02:13 PM
What the government does and what the Constitution grants them the power to do have been two different things for over a century. A piece of paper cannot protect your rights, only you can protect your rights.

joeschmoe
February 15, 2013, 02:25 PM
Wow, this is getting heated!

It seems the question here really boils down to this:

1) Congress cannot regulate what happens with personal property (especially that subject to coverage by an enumerated right) within a state, across the board.

2) Congress CAN regulate what happens with personal property, across the board, IF they can show that it has been sold/transferred across state lines.

It really appears that the Lopez case affirmed point number one. The court says, paraphrasing, we can't INFER that he or his gun have affected or been involved in interstate commerce, so you can't regulate that.

It definitely appears that the "correction" to the GFZA that came after Lopez has established that point number 2 is Constitutionally acceptable to the Court. Congress simply said, again paraphrasing, Fine then, we reapply this rule but ONLY to guns that have been transferred in interstate commerce.

First the Court said, "well you can't infer that he or his gun have affected interstate commerce."

THEN the Congress rewrote the law to change it from affecting all guns that they had to INFER had been sold across state lines and made it so it covered only those guns that ACTUALLY had been sold across state lines.

Now, the inference that any gun Lopez happened to have would have at some point crossed state lines would have been almost 100% correct, but the Court wouldn't let Congress just write a law that assumed so.

Instead they forced Congress to write the law so that the gun ACTUALLY had to have crossed state lines.

That's the take-home message her. As 99.9% of all guns HAVE been sold across state lines in some way, it affects pretty much every gun. But they had to make the clarification for it to pass the the Court's interpretation of the Commerce Clause.

I disagree. That is not what SCOTUS said. They said this was beyond the power of congress, and not in anyway related to commerce. Allowing it would mean that Congress can take powers they were not given. SCOTUS struck down the overreach of power. Now NavyLCDR is going millions of times further to include everyone, everywhere and every gun. That is much further than what they already said no to. Here is the quote.

"The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.
...
To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.
...
but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated "

joeschmoe
February 15, 2013, 02:34 PM
You seem to be basing your whole argument on the theory that the words that Congress added to the GFSZA in order to answer the SCOTUS's complaint about the previous version did not, in fact, address the Court's complaint.

As you point out, it has not been brought back before the Court to find out FOR SURE if those words did not address the complaint they raised, but right now GFSZA is the law of the land until they choose to speak to that point.

Ergo, the fact that a gun law is currently applied this way has more weight than your theory that the Court MIGHT feel that it shouldn't be.

No. The opposite. I'm going off what the SCOTUS has actually said and already struck down. Not the assumption that they are okay with the new version, then going further to apply that outside of school zones, then going even further to include everyone, everywhere and everygun. That's abusrd and in obvious conflict with what SCOTUS has actually said on this subject.

You're assuming they are okay with the current version, and then taking it way beyond what has already been struck down. Applying UBC's to the Lopez decision would clearly violate what the court has already written on this subject.

Sam1911
February 15, 2013, 02:41 PM
So, then why isn't Lopez being used to strike down all sorts of Commerce Clause over-reaches? If, as you hold, the second GFSZA's language does NOT address their complaint?

legaleagle_45
February 15, 2013, 02:47 PM
joeschmoe wrote:
No. They can't use that unless you are actually called up by the federal government and serving as Militia.

The argument will be that in order to provide for the arming of the militia they will need to have substantially more information on the arms which are available for ues in the militia

joeschmoe
February 15, 2013, 03:04 PM
So, then why isn't Lopez being used to strike down all sorts of Commerce Clause over-reaches? If, as you hold, the second GFSZA's language does NOT address their complaint?
SUPREME COURT OF THE UNITED STATES

UNITED STATES v. MORRISON et al.
United States v. Morrison... Decided May 15, 2001

" (a) The Commerce Clause does not provide Congress with authority to enact §13981’s federal civil remedy. A congressional enactment will be invalidated only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez,. Petitioners assert that §13981 can be sustained under Congress’ commerce power as a regulation of activity that substantially affects interstate commerce. The proper framework for analyzing such a claim is provided by the principles the Court set out in Lopez. First, in Lopez, the noneconomic, criminal nature of possessing a firearm in a school zone was central to the Court’s conclusion that Congress lacks authority to regulate such possession. Similarly, gender-motivated crimes of violence are not, in any sense, economic activity. Second, like the statute at issue in Lopez, §13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ regulation of interstate commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the argument that §13981 is sufficiently tied to interstate commerce to come within Congress’ authority, Congress elected to cast §13981’s remedy over a wider, and more purely intrastate, body of violent crime. Third, although §13981, unlike the Lopez statute, is supported by numerous findings regarding the serious impact of gender-motivated violence on victims and their families, these findings are substantially weakened by the fact that they rely on reasoning that this Court has rejected, namely a but-for causal chain from the initial occurrence of violent crime to every attenuated effect upon interstate commerce. If accepted, this reasoning would allow Congress to regulate any crime whose nationwide, aggregated impact has substantial effects on employment, production, transit, or consumption. Moreover, such reasoning will not limit Congress to regulating violence, but may be applied equally as well to family law and other areas of state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant. The Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce.

http://www.law.cornell.edu/supct/html/99-5.ZS.html

Sam1911
February 15, 2013, 03:16 PM
That seems illustrative of your point. I wonder why/why not/when GFSZA will reappear in the Court's docket, though. And what extents the Court might apply to such a curtailing of the Commerce Clause reach?

By that logic, many gun control laws would be untouchable to the federal Congress. For example, if there was a mag ban, but it could be established that magazines would still be sold by the same companies and at similar prices, whether full capacity or blocked to 10 rounds, the economic interest claim (which seems specious at best anyway) would appear to evaporate. Etc.

joeschmoe
February 15, 2013, 03:37 PM
That seems illustrative of your point. I wonder why/why not/when GFSZA will reappear in the Court's docket, though. And what extents the Court might apply to such a curtailing of the Commerce Clause reach?
SCOTUS is not in the habbit of repeating themselves. To date there have been no good test cases. The SCOTUS will typically wait to act until lower courts are in disagreement over it's rulings before it clairifies further. That may take a while. In the meantime Congress and the Executive branch seem to be incrementally movng back to the position they got struck down on in Lopez. That should not be assumed to be acceptable to the court just because they haven't struck them down again on the same issue. That is for the lower courts to enforce.
By that logic, many gun control laws would be untouchable to the federal Congress. For example, if there was a mag ban, but it could be established that magazines would still be sold by the same companies and at similar prices, whether full capacity or blocked to 10 rounds, the economic interest claim (which seems specious at best anyway) would appear to evaporate. Etc. The economic test is much easier to apply to businesses already engaged in the firearms business. My point of this thread is that individual private sales are in no way within Congress's power.
In the case of Filburn, a commercial farmer's activities can be regulated because of it's economic effect, multiplied many times, on the industry. Just as an FFL's actions, multiplied many times, can have an economic effect on the industry.

Individual private sales are clearly the opposite of Congress's power to regulate commerce.

Girodin
February 15, 2013, 04:36 PM
Firearm that hasnt been affected by interstate commerce?

Time to fire up the milling machine.

Time to read Wickard and Raich. This was the whole idea behind states like ID, MT, UT, etc passing laws that said you could have "in state" suppressors. There is a reason no one is actually doing it. The reason is the combination of commerce clause juris prudence and the supremacy clause. Sorry.

joeschmoe
February 15, 2013, 05:01 PM
Both of those are well established commerical issues already regulated under the commerce clause, private sales are not. We delt with Wickard v Filburn on page 1.
Here is Raich;




SUPREME COURT OF THE UNITED STATES

GONZALES, ATTORNEY GENERAL, et al. v. RAICH et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 03—1454.Argued November 29, 2004–Decided June 6, 2005

California’s Compassionate Use Act authorizes limited marijuana use for medicinal purposes. Respondents Raich and Monson are California residents who both use doctor-recommended marijuana for serious medical conditions. After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of Monson’s cannabis plants, respondents brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA) to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. Respondents claim that enforcing the CSA against them would violate the Commerce Clause and other constitutional provisions. The District Court denied respondents’ motion for a preliminary injunction, but the Ninth Circuit reversed, finding that they had demonstrated a strong likelihood of success on the claim that the CSA is an unconstitutional exercise of Congress’ Commerce Clause authority as applied to the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician pursuant to valid California state law. The court relied heavily on United States v. Lopez, 514 U.S. 549, and United States v. Morrison, 529 U.S. 598, to hold that this separate class of purely local activities was beyond the reach of federal power.

Held: Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. Pp. 6—31.

(a) For the purposes of consolidating various drug laws into a comprehensive statute, providing meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthening law enforcement tools against international and interstate drug trafficking, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II of which is the CSA. To effectuate the statutory goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except as authorized by the CSA. 21 U.S.C. § 841(a)(1), 844(a). All controlled substances are classified into five schedules, §812, based on their accepted medical uses, their potential for abuse, and their psychological and physical effects on the body, §§811, 812. Marijuana is classified as a Schedule I substance, §812(c), based on its high potential for abuse, no accepted medical use, and no accepted safety for use in medically supervised treatment, §812(b)(1). This classification renders the manufacture, distribution, or possession of marijuana a criminal offense. §§841(a)(1), 844(a). Pp. 6—11.

(b) Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce is firmly established. See, e.g., Perez v. United States, 402 U.S. 146, 151. If Congress decides that the “ ‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See, e.g., id., at 154—155. Of particular relevance here is Wickard v. Filburn, 317 U.S. 111, 127—128, where, in rejecting the appellee farmer’s contention that Congress’ admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for the appellee’s own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself “commercial,” i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and Wickard are striking. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. In assessing the scope of Congress’ Commerce Clause authority, the Court need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding. E.g., Lopez, 514 U.S., at 557. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels, the Court has no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Pp. 12—20.

(c) Respondents’ heavy reliance on Lopez and Morrison overlooks the larger context of modern-era Commerce Clause jurisprudence preserved by those cases, while also reading those cases far too broadly. The statutory challenges at issue there were markedly different from the challenge here. Respondents ask the Court to excise individual applications of a concededly valid comprehensive statutory scheme. In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety. This distinction is pivotal for the Court has often reiterated that “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.” Perez, 402 U.S., at 154. Moreover, the Court emphasized that the laws at issue in Lopez and Morrison had nothing to do with “commerce” or any sort of economic enterprise. See Lopez, 514 U.S., at 561; Morrison, 529 U.S., at 610. In contrast, the CSA regulates quintessentially economic activities: the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational means of regulating commerce in that product. The Ninth Circuit cast doubt on the CSA’s constitutionality by isolating a distinct class of activities that it held to be beyond the reach of federal power: the intrastate, noncommercial cultivation, possession, and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law. However, Congress clearly acted rationally in determining that this subdivided class of activities is an essential part of the larger regulatory scheme. The case comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the CSA’s findings and the undisputed magnitude of the commercial market for marijuana, Wickard and its progeny foreclose that claim.


http://www.law.cornell.edu/supct/html/03-1454.ZS.html

gc70
February 15, 2013, 06:16 PM
We can argue all day about the meaning of Lopez, but Congress clearly believes that citing a link to interstate commerce provides the justification necessary to exercise power under the commerce clause. Two current examples in pending bills are listed below.

From S.150, Feinstein's AWB (http://www.gpo.gov/fdsys/pkg/BILLS-113s150is/pdf/BILLS-113s150is.pdf#page=14): "It shall be unlawful for a person to import, sell, manufacture, transfer, or possess, in or affecting interstate or foreign commerce, a semiautomatic assault weapon."

From H.R.21 regarding concealed carry permits (http://www.gpo.gov/fdsys/pkg/BILLS-113hr21ih/pdf/BILLS-113hr21ih.pdf#page=35): "Each State that allows residents of the State to carry concealed firearms in or affecting interstate or foreign commerce ..."

joeschmoe
February 15, 2013, 06:58 PM
Then the government will have to prove, on a case by case basis, each case is different from Lopez and how the case has a substantial effect on commerce AND the application of the law is needed to regulate intersate commerce.
Or else, the whole law, not just the individual case, will be thrown out.. again. Just like last time.
It's not just the addition of the magic words, but the additional burdern of showing how those magic words make the individual case and whole law within the power of Congress and how it's different from Lopez. That is a very high standard they have yet to meet and have twice been struck down by SCOTUS (Lopez and Morrison).
Feinstein, and her lawyers are trying to fight an uphill battle against Lopez and Morrison. They know they will lose, again. If that's all she has, she's unarmed.

joeschmoe
February 15, 2013, 07:29 PM
More from Lopez on how they decided what is, and is not Congress's power under the Commerce Clause, there is no mention of a requirment that the gun simply moved interstate, but required it's economic impact. (note the addition of the "magic words" is secondary to the fact that the law itself is a criminal statue, not intended to regulate commerce, but crime = fail);





we have identified three broad categories of activity that Congress may regulate under its commerce power. Perez v. United States, supra, at 150; see also Hodel v. Virginia Surface Mining & Reclamation Assn., supra, at 276-277. First, Congress may regulate the use of the channels of interstate commerce. See, e.g., Darby, 312 U. S., at 114; Heart of Atlanta Motel, supra, at 256 (" `[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.' " (quoting Caminetti v. United States, 242 U.S. 470, 491 (1917)). Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. See, e.g., Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce); Perez, supra, at 150 ("[F]or example, the destruction of an aircraft (18 U.S.C. § 32), or . . . thefts from interstate shipments (18 U.S.C. § 659)"). Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, Jones & Laughlin Steel, 301 U. S., at 37, i.e., those activities that substantially affect interstate commerce. Wirtz, supra, at 196, n. 27.

Within this final category, admittedly, our case law has not been clear whether an activity must "affect" or "substantially affect" interstate commerce in order to be within Congress' power to regulate it under the Commerce Clause. Compare Preseault v. ICC, 494 U.S. 1, 17 (1990), with Wirtz, supra, at 196, n. 27 (the Court has never declared that "Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities"). We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity "substantially affects" interstate commerce.

We now turn to consider the power of Congress, in the light of this framework, to enact §922(q). The first two categories of authority may be quickly disposed of: §922(q) is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can §922(q) be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce. Thus, if §922(q) is to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate commerce.

First, we have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce. Examples include the regulation of intrastate coal mining; Hodel, supra, intrastate extortionate credit transactions, Perez, supra, restaurants utilizing substantial interstate supplies, McClung, supra, inns and hotels catering to interstate guests, Heart of Atlanta Motel, supra, and production and consumption of home grown wheat, Wickard v. Filburn, 317 U.S. 111 (1942). These examples are by no means exhaustive, but the pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.

Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not. Roscoe Filburn operated a small farm in Ohio, on which, in the year involved, he raised 23 acres of wheat. It was his practice to sow winter wheat in the fall, and after harvesting it in July to sell a portion of the crop, to feed part of it to poultry and livestock on the farm, to use some in making flour for home consumption, and to keep the remainder for seeding future crops. The Secretary of Agriculture assessed a penalty against him under the Agricultural Adjustment Act of 1938 because he harvested about 12 acres more wheat than his allotment under the Act permitted. The Act was designed to regulate the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and shortages, and concomitant fluctuation in wheat prices, which had previously obtained. The Court said, in an opinion sustaining the application of the Act to Filburn's activity:

"One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home grown wheat in this sense competes with wheat in commerce." 317 U. S., at 128.


Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. [n.3] Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

Second, §922(q) contains no jurisdictional element which would ensure, through case by case inquiry, that the firearm possession in question affects interstate commerce. For example, in United States v. Bass, 404 U.S. 336 (1971), the Court interpreted former 18 U.S.C. § 1202(a), which made it a crime for a felon to "receiv[e], posses[s], or transpor[t] in commerce or affecting commerce . . . any firearm." 404 U. S., at 337. The Court interpreted the possession component of §1202(a) to require an additional nexus to interstate commerce both because the statute was ambiguous and because "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal state balance." Id., at 349. The Bass Court set aside the conviction because although the Government had demonstrated that Bass had possessed a firearm, it had failed "to show the requisite nexus with interstate commerce." Id., at 347. The Court thus interpreted the statute to reserve the constitutional question whether Congress could regulate, without more, the "mere possession" of firearms. See id., at 339, n. 4; see also United States v. Five Gambling Devices, 346 U.S. 441, 448 (1953) (plurality opinion) ("The principle is old and deeply imbedded in our jurisprudence that this Court will construe a statute in a manner that requires decision of serious constitutional questions only if the statutory language leaves no reasonable alternative"). Unlike the statute in Bass, §922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.

Although as part of our independent evaluation of constitutionality under the Commerce Clause we of course consider legislative findings, and indeed even congressional committee findings, regarding effect on interstate commerce, see, e.g., Preseault v. ICC, 494 U.S. 1, 17 (1990), the Government concedes that "[n]either the statute nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone." Brief for United States 5-6. We agree with the Government that Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce. See McClung, 379 U. S., at 304; see also Perez, 402 U. S., at 156 ("Congress need [not] make particularized findings in order to legislate"). But to the extent that congressional findings would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye, they are lacking here. [n.4]

The Government argues that Congress has accumulated institutional expertise regarding the regulation of firearms through previous enactments. Cf. Fullilove v. Klutznick, 448 U.S. 448, 503 (1980) (Powell, J., concurring). We agree, however, with the Fifth Circuit that importation of previous findings to justify §922(q) is especially inappropriate here because the "prior federal enactments or Congressional findings [do not] speak to the subject matter of section 922(q) or its relationship to interstate commerce. Indeed, section 922(q) plows thoroughly new ground and represents a sharp break with the long standing pattern of federal firearms legislation." 2 F. 3d, at 1366.

The Government's essential contention, in fine, is that we may determine here that §922(q) is valid because possession of a firearm in a local school zone does indeed substantially affect interstate commerce. Brief for United States 17. The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. See United States v. Evans, 928 F. 2d 858, 862 (CA9 1991). Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. Cf. Heart of Atlanta Motel, 379 U. S., at 253. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well being. As a result, the Government argues that Congress could rationally have concluded that §922(q) substantially affects interstate commerce.

We pause to consider the implications of the Government's arguments. The Government admits, under its "costs of crime" reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. See Tr. of Oral Arg. 8-9. Similarly, under the Government's "national productivity" reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of §922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.

Although Justice Breyer argues that acceptance of the Government's rationales would not authorize a general federal police power, he is unable to identify any activity that the States may regulate but Congress may not. Justice Breyer posits that there might be some limitations on Congress' commerce power such as family law or certain aspects of education. Post, at 10-11. These suggested limitations, when viewed in light of the dissent's expansive analysis, are devoid of substance.

joeschmoe
February 16, 2013, 02:15 PM
Can anyone show where Congress has authority to regulate private sales? I think I have shown they can't.

NavyLCDR
February 16, 2013, 06:14 PM
Now NavyLCDR is going millions of times further to include everyone, everywhere and every gun.

No, my friend, I did not say it would include everyone, everywhere and every gun. You suffer from selective reading. You only see what you want to see.

joeschmoe
February 16, 2013, 08:03 PM
No, my friend, I did not say it would include everyone, everywhere and every gun. You suffer from selective reading. You only see what you want to see.

The Supreme Court ruled that ANYTHING can be regulated under the Interstate Commerce Clause.
The US Supreme Court ruled that falls under the Insterstate Commerce Clause because you did NOT buy it from an out-of-state dealer, and therefore affected interstate commerce by taking away from it.


"It shall be unlawful for any individual to knowingly sell, give or otherwise transfer a firearm that has moved in or that otherwise affects interstate or foreign commerce to any other individual without first obtaining approval from the universal background check system."


Amazing how that works, isn't it? The bolded phrase makes both laws fall under the interstate commerce clause, giving Congress the power to regulate 1 individual person performing an action with 1 single firearm. And, even if that firearm never left the one single state the "violation" occurred in, were all the raw materials that firearm was made with obtained within that single state? If any raw material that firearm was made with came from out of state.....it affected interstate commerce.

all upheld the new Federal Gun Free School Zone Act because the addition of "that has moved in or that otherwise affects interstate or foreign commerce" causes the law to fall under the interstate commerce clause. Just like the new Federal Gun Free School Act - the only requirement would be for the government to prove that the firearm sold or transferred had at one time in the past moved in or otherwise affected interstate or foreign commerce.

Given the decision of Wickard v. Fillburn - it would be difficult to use the fact that the firearm was made in the same state the "violation" occurred in and never left that state as a successful defense.

The Federal GFSZA applies to every school in every state, but only applies to those firearms that "has moved in or that otherwise affects interstate commerce." Just like a Universal Background Check law would apply to any firearms transaction occurring in any state, but would only apply to a firearm that "has moved in or that otherwise affects interstate commerce."

Now - prove to me that any firearm in question has never "moved in or otherwise affected interstate commerce."

it will apply to every transaction, in every state, but will only apply if the firearm transferred "has moved in or otherwise affects interstate commerce" which means that the law will apply to about 99% of the firearms in existence in the US.

The only real application of Wickard v. Filburn would be if the firearm in question was made in, and never left the same state that a transfer of that firearm occurred in.

SCOTUS said, I quote "Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. [n.3] Section 922(q) is not an essential part of a larger regulation of economic activity.
...
"The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce."

NavyLCDR
February 18, 2013, 04:37 PM
BTW... Congress already regulates every firearm sale everywhere between private individuals(if I knowingly sell a gun to my next door neighbor, knowing they are a felon, I violate Federal law):

http://www.law.cornell.edu/uscode/text/18/922
18 USC 922 (d):

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has been committed to any mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who [2] has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(B)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) has been convicted in any court of a misdemeanor crime of domestic violence.

Shadow 7D
February 18, 2013, 05:15 PM
Navy, Joe is trolling you

Here is a simple break down (and what Joe is DISSEMBLING - lying via misrepresenting the facts) Gun free school zones passed, were struck down as an over reach, that went up to the supreme court, win, the SAME BILL, with ONE SMALL PHRASE was passed again... and has:

Since been upheld numerous times
what we learned (and congress, look at Navy's links to the AWB)
there must be a simple phrase (blah blah blah interstate commerce)

and voi la, it's now under congressional regulation.....


What is Joe arguing, that a case that pointed out ONE THING: Congress must obviously link a law to a enumerated power... (well we can talk about this)

that was all the Gonzales case was, not some "resounding victory on the over reach of congress"

Nope, just that even congress must remember to cross their T's and Dot their I's

EDIT: Two things give away your argument, legal precedent and the new version with the "blah blah blah interstate commerce" has been UPHELD
your argument fall flat, what you fail to see is that congress isn't regulating COMMERCE (commercial activity) but the product of commerce (and hence the first one being struck down, second upheld)
The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce
BUT: regulating guns because they ARE PART OF interstate commerce (whole or inpart -as in iron ore moved through or affected interstate commerce)

Now Joe, where's the limit?

Please people pay close attention to how he fails to address the legal precedents (and argues based on a case since made moot)
and argues obliquely to what Navy is saying, never matching point for point.

NavyLCDR
February 18, 2013, 06:46 PM
I was just bringing up a new point....Congress already does regulate 100% in-state private sales. Under 18 USC 922(d) they could simply change 18 USC 922 (d) to read:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person without first verifying using the Universal Background Check System that that such person is not—
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has been committed to any mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who [2] has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(B)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) has been convicted in any court of a misdemeanor crime of domestic violence.

Shadow 7D
February 18, 2013, 07:15 PM
ouch

Girodin
February 19, 2013, 03:13 AM
I think a private gun sale is like growing wheat or weed, in that it, in the agreagate has a substantial effect on the market for guns.

It is very different than simply possessing a gun in a school zone which has no effect on the market, even if done in the aggregate.

Guns are a thing in interstate commerce. A private sale is tied much closer to the thing affecting interstate commerce in the aggregate than is growing a couple pot plants for private consumption.

I do not believe that one could argue gun sales are totally outside the realm of the commerce clause they way possessing a gun in a school zone is, or the way violence against women is.

I could be wrong but I see the court saying that a private gun sale is more akin in terms of effect on interstate markets to growing pot than just having a gun in a particular location.

I don't think the commerce clause is going to be a strong basis to challenge universal background checks. I'd love to be wrong though.

Sam1911
February 19, 2013, 06:12 AM
Well, that's exactly what Joe is trying to establish.

Of course, we here at THR aren't the one's who really need to get on board with his opinion...

Derry 1946
April 10, 2013, 12:32 PM
Look at it this way. Your little brother (Congress) snatches a cookie from the jar without saying "Please, may I." You tattle. Mom (the Supreme Court) takes the cookie away. Little brother then goes to Dad (lower courts), says "Please, may I," and Dad says "Well, I know Mom just busted you for taking a cookie without permission, so it must have violated the house rules, and Mom didn't say exactly why, but now that you have asked first, I think your request now complies with the house rules (Constitution), so go ahead." The first cookie was Congress' attempt to establish GFSZ without tying it specifically to interstate commerce. The second cookie was the amended law that did specifically tie it to interstate commerce. Dad has now said that's OK. Mom hasn't said yet what she thinks. Dad is usually pretty good at guessing what Mom thinks, but he could always be wrong, and Mom could overrule him. Or she can always just change her mind. She may have meant that little brother needed to say "Pretty please," and it could be "fixed" again that way. Or she may just think that the cookie is not healthy and is against all the house rules, and little brother may not have it ever. For now, Dad's ruling stands, until and unless Mom speaks again. And there's no appeal from Mom.

Sambo82
April 10, 2013, 03:02 PM
I think NavyLCDR has the more convincing argument here, as much as I hate to admit it. It should be remembered that Gonzoles v. Raich was also cited in US v. Stewart in which the USSC upheld a conviction on Commerce Clause grounds of the possession of a machine gun, even though the machine guns were home made and there existed no evidence that Stewerd intended to sell them.

So yes, the USSC has upheld that activities at home which aren't even commercial in nature, can somehow affect interstate commerce, even if actual interstate commerce of said product is non existent.

I don't think you can get much more broad than that.

joeschmoe
April 10, 2013, 03:50 PM
Except in this case mom did put in a caveat to limit the scope. SCOTUS specifically said Congress did not have the power to pass such a broad law. The addition of magic words is not enough;

Unlike the statute in Bass, §922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.

joeschmoe
April 10, 2013, 03:57 PM
I think NavyLCDR has the more convincing argument here, as much as I hate to admit it. It should be remembered that Gonzoles v. Raich was also cited in US v. Stewart in which the USSC upheld a conviction on Commerce Clause grounds of the possession of a machine gun, even though the machine guns were home made and there existed no evidence that Stewerd intended to sell them.
So yes, the USSC has upheld that activities at home which aren't even commercial in nature, can somehow affect interstate commerce, even if actual interstate commerce of said product is non existent.
I don't think you can get much more broad than that.
Stewart, Raich and Wickard all involve the production of new supply being illegally added to the market. Private sales do not add new supply to the market. All new sales already go through FFL's. There is no "loophole" that allows new sales to enter the market. Private sales are only the sale of guns that have already legally entered the market and are now legally in private hands.

"The similarities between this case and Wickard are striking. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity"

Sambo82
April 10, 2013, 04:49 PM
I'd say at this point Joe you're just splitting hairs. If the manufacture of a machine gun at home for no other purpose than home use sufficiently impacts the market to the extent that the USSC claims Congress has the power to regulate under their power to regulate commerce, it is asinine to say that the acutal sale of firearms cannot be regulated under the same clause. As Navy said, the Fed.gov already regulates firearms sales, they already require a background check, and it would be a simple alteration of the clause to expand those checks to all sales.

This thread has been beat to death so I'm done here. IMO the argument from Navy and others is solidly convincing that a UBC law would be upheld by the USSC.

limpingbear
April 10, 2013, 04:53 PM
Joe and Navy,

Both good arguments for both sides of the coin, Joe makes a good point as to why congress doesn't have the authority to regulate private sales, while Navycdr, points out that under current law as written and enforced it does. Here is what I think will happen...

Congress will pass A UBC law with the magic wording they put in the second GFSZact and until/if it ever makes it to the SCOTUS and is struck down as an overreach of congressional authority then it will stand as law. Even with all these court rulings on the books saying congress doesn't have authority because the law in question isn't about commerce but criminal law instead, until it is taken before the courts and challenged and struck down, then the law stands.

That's my take on all this. YMMV....

joeschmoe
April 10, 2013, 05:00 PM
One adds new supply to the market, the other does not. SCOTUS says that's an important distinction. These are fundamental questions of rights versus powers of Congress. There are limits to the Governments power, and SCOTUS has said so.

"To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do."

limpingbear
April 10, 2013, 05:16 PM
And congress will never recognize a limit to their imagined power. Congress will pass a law that looks blatantly unconstitutional, it will stand as law until it is taken before the court and struck down (if the court even decides to hear the case) and nullified. Then congress will pass another one.
Congress faces no penalties for passing bad laws. ( other than individuals being voted out come re-election time ) Therefore Its kinda like the old saying goes...It is better to beg for forgiveness than to ask for permission.
It currently looks like UBC's may be off the table (at least federally) so this whole discussion may be moot. But as I said before....they can pass a UBC law and it will be the law until struck down by the courts, regardless weather or not congress has the actual authority to regulate personal, private sales.
I cannot remember who said it because it was years ago, but a congressman told a reporter that it was congresses job to make and pass the laws and it was up to the courts to rule if they were constitutional or not.

johnandersonoutdoors
April 10, 2013, 05:42 PM
I believe that the first few posts are correct, the ones that cite the Filburn case with his wheat.

I did some research on this myself several years ago and while I am by no means a scholar I firmly disagree with what has happened to us. The Wickard vs Filburn case came about from the Agriculture Dept. trying to regulate the price of wheat which they shouldn't have been doing anyway. There is no reason the gov should have been monkeying around with the price of wheat. So the farmer claims that he was using a small portion of his land to grow food for his family and the gov (SCOTUS) says sorry buddy but since you are saving some of your wheat for your family then interstate commerce is indirectly affected because if you save some of your wheat then you aren't buying in the market.

That case arose in 1935 and was decided in 1942 while we were at war. I firmly believe that if weren't in the midst of WWII at the time we would have had a revolution. The gov can tell you that you can't grow a few acres of wheat to keep for your own family to consume? The attempted control of the wheat market and other types of economic unfairness should have never been allowed as they go against the principles of freedom.

The research that I did led me to the scholarly opinions of others on the original intent of the commerce clause. According to those opinions, the original intent was to protect the states from each other. States along the cost thought it was a bright idea to tax the heck out of farmers of businesses in non coastal states since their goods would have to travel through the coastal states to make it to port. The founders realized that the United States would never exist if the states acted this way. So we got the commerce clause. But Filburn case blew everything wide open and the feds have been using it as a precedent to regulate everything ever since.

This is the most unconstitutional and disgustingly unfair opinion that has led to fed involvement in regulating education, medicines, and everything else they choose.

PBR Streetgang
April 10, 2013, 06:04 PM
I admit I didn't read every post but what if they put a tax on resale of privately owned firearms where both parties had to file with the IRS and pay a minimal cost?
You would be subject to confiscation of the firearm, jail time and/or a hefty fine for not complying to pay "the tax!"

They could use the same argument heard by SCOTUS used to legitimize Obamacare.

just something to think about..........

joeschmoe
April 10, 2013, 06:05 PM
Read posts #39 and #57, US v Lopez and US v Morrison. Where SCOTUS did limit the commerce clause and explained why Filburn was different.

SCOTUS has allowed Congress to regulate the manufacture of new supply into an economic market that they could already regulate. SCOTUS refused the expansion into areas where there is no added manufacture or attempts at criminal law under the guise of the commerce clause.

k_dawg
April 12, 2013, 08:00 PM
In any event, they can simply call the UBC a 'tax' and SCOTUS would bless it.

joeschmoe
April 12, 2013, 08:21 PM
In any event, they can simply call the UBC a 'tax' and SCOTUS would bless it.
No.

tomrkba
April 13, 2013, 11:50 AM
They are abusing the Commerce Clause. Read the first lines of GCA 1968.

zxcvbob
April 13, 2013, 12:33 PM
all upheld the new Federal Gun Free School Zone Act because the addition of "that has moved in or that otherwise affects interstate or foreign commerce" causes the law to fall under the interstate commerce clause. Just like the new Federal Gun Free School Act - the only requirement would be for the government to prove that the firearm sold or transferred had at one time in the past moved in or otherwise affected interstate or foreign commerce.

They are abusing the Commerce Clause. Read the first lines of GCA 1968.

The exact wording if the 2nd Amendment takes arms out of the scope of the Commerce Clause. It is only by judicial dishonesty that any of GCA'68 is allowed to stand. (cue Frank Ettin to yell at me again because he's a lawyer and I'm not. Preemptive question: there have been no USSC decisions regarding the 3rd Amendment, does that render it meaningless?)

Frank Ettin
April 13, 2013, 05:48 PM
The exact wording if the 2nd Amendment takes arms out of the scope of the Commerce Clause. It is only by judicial dishonesty that any of GCA'68 is allowed to stand. (cue Frank Ettin to yell at me again because he's a lawyer and I'm not. ...No reason to yell at you. I'll simply point out that your opinion is irrelevant. The courts have not adopted your view.

That you consider it a matter of judicial dishonesty is also irrelevant. The opinions of courts on matters of law affect the lives and property of real people in the real world. Yours do not.

In any case, the Founding Fathers assigned the judicial power of the United States to the federal courts (not you) and authorized the federal courts to exercise that judicial power to, among other things, decide cases arising under the Constitution (Article III, Sections 1 and 2).

Preemptive question: there have been no USSC decisions regarding the 3rd Amendment, does that render it meaningless?)...What it means is that we have less information about what it means in application.

Law (and the Constitution is law) does not exist in a vacuum. It is a tool, when applied to a set of facts, for deciding various questions. It is when law is applied it affects things in the real world. Until it is applied it's just words.




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