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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. NavyLCDR

    NavyLCDR member

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    Wrong. Lopez WAS a SCOTUS decision!

    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."
     
  2. NavyLCDR

    NavyLCDR member

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    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.
     
  3. Frank Ettin

    Frank Ettin Moderator

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    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):

    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.
     
  4. NavyLCDR

    NavyLCDR member

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    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.
     
  5. joeschmoe

    joeschmoe Member

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    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.
    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.
     
  6. joeschmoe

    joeschmoe Member

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    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.
     
  7. joeschmoe

    joeschmoe Member

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    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
     
  8. NavyLCDR

    NavyLCDR member

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    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.
     
  9. Girodin

    Girodin Member

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    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.
     
  10. Sam1911

    Sam1911 Moderator

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    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.
     
  11. tyeo098

    tyeo098 Member

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    Firearm that hasnt been affected by interstate commerce?

    Time to fire up the milling machine.
     
  12. legaleagle_45

    legaleagle_45 Member

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    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:

    ;
     
  13. joeschmoe

    joeschmoe Member

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    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.
    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.
     
  14. Jim K

    Jim K Member

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    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
     
  15. joeschmoe

    joeschmoe Member

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    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.
     
  16. joeschmoe

    joeschmoe Member

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    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"
     
  17. Sam1911

    Sam1911 Moderator

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    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.
     
  18. chipcom

    chipcom member

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    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.
     
  19. joeschmoe

    joeschmoe Member

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    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 "
     
  20. joeschmoe

    joeschmoe Member

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    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.
     
  21. Sam1911

    Sam1911 Moderator

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    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?
     
  22. legaleagle_45

    legaleagle_45 Member

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    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
     
  23. joeschmoe

    joeschmoe Member

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    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
     
  24. Sam1911

    Sam1911 Moderator

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    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.
     
  25. joeschmoe

    joeschmoe Member

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    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.
    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.
     
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