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

Discussion in 'Legal' started by joeschmoe, Feb 14, 2013.

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  1. joeschmoe

    joeschmoe Member

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    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"
     
  2. Elessar

    Elessar Member

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    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.
     
  3. NavyLCDR

    NavyLCDR member

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    Correct. The case was Wickard v. Filburn

    http://www.google.com/url?q=http://...gQFjAA&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!
     
  4. joeschmoe

    joeschmoe Member

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    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.
     
  5. Alaska444

    Alaska444 member

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    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.
     
  6. joeschmoe

    joeschmoe Member

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    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.
     
  7. joeschmoe

    joeschmoe Member

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    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".
    They never said that either.
     
  8. NavyLCDR

    NavyLCDR member

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    You might want to read the court's opinion:

    http://www.google.com/url?q=http://...gQFjAA&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.
     
  9. joeschmoe

    joeschmoe Member

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    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."
     
    Last edited: Feb 14, 2013
  10. joeschmoe

    joeschmoe Member

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    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.
     
  11. joeschmoe

    joeschmoe Member

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    How do you mean? What is TMK?
     
  12. NavyLCDR

    NavyLCDR member

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    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.
     
    Last edited: Feb 14, 2013
  13. joeschmoe

    joeschmoe Member

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    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.
     
  14. NavyLCDR

    NavyLCDR member

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    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)
     
    Last edited: Feb 14, 2013
  15. geekWithA.45

    geekWithA.45 Moderator Emeritus

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    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.
     
  16. joeschmoe

    joeschmoe Member

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    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?
     
  17. CapnMac

    CapnMac Member

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    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?
     
  18. joeschmoe

    joeschmoe Member

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    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.
     
  19. NavyLCDR

    NavyLCDR member

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    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.
     
  20. joeschmoe

    joeschmoe Member

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

    NavyLCDR member

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    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.
     
  22. NavyLCDR

    NavyLCDR member

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    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.
     
  23. joeschmoe

    joeschmoe Member

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    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.
     
  24. NavyLCDR

    NavyLCDR member

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    The BATFE opinion has nothing to do with the prohibition itself. The BATFE opinion only interprets the exception to the prohibition.
     
  25. joeschmoe

    joeschmoe Member

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    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.
     
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