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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. Girodin

    Girodin Member

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    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.
     
  2. joeschmoe

    joeschmoe Member

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    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
     
  3. gc70

    gc70 Member

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    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: "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: "Each State that allows residents of the State to carry concealed firearms in or affecting interstate or foreign commerce ..."
     
  4. joeschmoe

    joeschmoe Member

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    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.
     
  5. joeschmoe

    joeschmoe Member

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    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, 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 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.

     
    Last edited: Feb 15, 2013
  6. joeschmoe

    joeschmoe Member

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    Can anyone show where Congress has authority to regulate private sales? I think I have shown they can't.
     
  7. NavyLCDR

    NavyLCDR member

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    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.
     
  8. joeschmoe

    joeschmoe Member

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    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."
     
    Last edited: Feb 16, 2013
  9. NavyLCDR

    NavyLCDR member

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    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.
     
  10. Shadow 7D

    Shadow 7D Member

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    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)
    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.
     
    Last edited: Feb 18, 2013
  11. NavyLCDR

    NavyLCDR member

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    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.
     
  12. Shadow 7D

    Shadow 7D Member

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  13. Girodin

    Girodin Member

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    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.
     
  14. Sam1911

    Sam1911 Moderator

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    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...
     
  15. Derry 1946

    Derry 1946 Member

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    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.
     
  16. Sambo82

    Sambo82 Member

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    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.
     
    Last edited: Apr 10, 2013
  17. joeschmoe

    joeschmoe Member

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    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;

     
  18. joeschmoe

    joeschmoe Member

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    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.

     
    Last edited: Apr 10, 2013
  19. Sambo82

    Sambo82 Member

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    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.
     
  20. limpingbear

    limpingbear Member

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    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....
     
  21. joeschmoe

    joeschmoe Member

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    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.

     
  22. limpingbear

    limpingbear Member

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    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.
     
  23. johnandersonoutdoors

    johnandersonoutdoors Member

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    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.
     
  24. PBR Streetgang

    PBR Streetgang Member

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    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..........
     
  25. joeschmoe

    joeschmoe Member

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    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.
     
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