Federal Gun and Drug Laws

[publiusF27]

How many here believe in a strict interpretation of the text of the Constitution, and following the intent of the Founders with regard to its application?

I'm wondering because Article 1, Section 8 says, in part:

"The Congress shall have power to lay and collect taxes,...

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;...

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers..."

When the Congress decided they wanted to regulate guns and drugs, they didn't pass general criminal laws. They passed taxes, specifically the NFA, the Harrison Act, and the Marihuana Tax Act.

Were those necessary and proper uses of the power to tax?

Later on, after a decision known as Wickard, tax authority was no longer needed to regulate guns and drugs (and many other things). Now, laws on those things are written under the authority of the commerce clause.

Are those necessary and proper uses of the commerce power? I thought it was supposed to create a nationwide free trade zone, not a nationwide federal regulatory zone?

Picture this: You are transported back in time. You land in Philadelphia, just after the ratification of the Constitution. You walk into a room full of Founders, and you say this:

"Hey guys, I just wanted to stop in and verify that when you gave Congress the power to tax, you meant to include the power to regulate firearms, and when you gave Congress the power to regulate interstate commerce, you meant to include authority over intrastate, non-commercial growing of cannabis?"

What are they going to say to you, once you explain the extremely weird situation, and what you mean by the questions?

[DTogo]

FReeping since 4-23-05. Toking since who knows when... Later, dude.

[need_a_screen_name]

I think it's decent question.

[SWAMPSNIPER]

I do too. Every once in a while I get a whiff of something that smells like a gun grabber from DU.

[publiusF27]

Actually, I've been here before, I think as publius42, but it was a couple of service providers ago, and I've lost my old password and you've now not got a good email address for me.

I just figured it would be easier to create a new screen name.

[Teflonic]

If you are going to go back in time to speak to the founders I'd suggest bringing a copy of all current amendments, federal laws, and supreme court cases. You'd need a laptop and a few portable hard drives (and many extra charged batteries). That would actually make an interesting novel.

[publiusF27]

Why? I can't think of any amendments that apply. I've named the laws I'd want to talk to them about, and I guess I could bring them along, but it's pretty easy to sum up the issue: did they intend for the power to tax to become a power to regulate firearms and/or drugs?

I'd probably have to bring a copy of Wickard just so that they would believe that I was really getting the logic of it right, but it is also pretty easy to sum up. A farmer growing his own wheat is subject to Congress' commerce clause power because if everyone did it, it would affect the interstate market for Wheat, which means that growing your own wheat is interstate commerce.

There have been cases about whether wheat is interstate commerce, whether rape is interstate commerce, whether possession of porn is interstate commerce, whether walking near a school with a gun is interstate commerce, and two cases are currently under consideration, about whether or not a homegrown cannabis plant for personal consumption (Raich) or a homegrown machine gun for personal consumption (Stewart) can be considered interstate commerce.

Once I got them to understand what we are doing with that clause, do you think the Founders would like it?

[LibKill]

If you are going to go back in time to speak to the founders I'd suggest bringing a copy of all current amendments, federal laws, and supreme court cases. You'd need a laptop and a few portable hard drives (and many extra charged batteries).

Nah, just print it out first and then get in that time machine. :)

[Badray]

I think it's decent question.

Ditto.

[zeugma]

You might want to check out the novel 1632 available online for free from Baen.com. While it doesn't specifically go to the question specifically, it would be possible in future years to do so.

I find the possibilities intriguing. I'd like to be able to show up at the constitutional convention and tell them, "for God's sake, please leave the dependent clause out of the 2nd amendment. 'The right of the people to keep and bear arms SHALL NOT be infringed' is clear enough without it!".

[1ofmanyfree]

Oh, and welcome to Free Republic...

[Lurker]

Actually the NFA was tossed out by the Court Of Appeals as an Unconstitutional infringement on the 2nd Amendment. The only reason it is still the law of the land that the defendants (Miller, et al) failed to appear before the Supremes when the FedGov appealed.

Since then, Congress has become, I hesitate to use the term 'smarter' because that's an insult to smart people everywhere; let's say 'more clever' in bastardizing the 'commerce clause' to include everything that moves.

The downhill slide really started under FDR, but it's only become worse since then.

I can't remember the name of the case, but the FDR administration actually prosecuted a farmer for growing 'too much' wheat even though he never actually sold it. SCOTUS said that because the wheat merely existed, it somehowe affected 'interstate commerce' because the farmer would have had to buy wheat on the open market instead of using what he had grown. Therefore, he unlawfully affected 'interstate commerce' since the wheat he would have theoretically bought could have theoretically come from another state.

Now since then, SCOTUS has attempted rather half heartedly to reign in Congresses authority to use the 'commerce clause'. Most notably the Lopez decision comes to mind, but there have been others.

In the case of guns, there is an appeals court decision which says that any firearm manufactured privately and not sold is not subject to the 'requirements' of the NFA, but that's only in one circuit.

Welcome to FR BTW.

L

[publiusF27]

Didn't Miller fail to show up due to being dead at the time? The wheat case was Wickard vs. Filburn. It wasn't that he, personally, grew too much wheat. It was the fact that if everyone did it, that would affect interstate commerce. Strict constructionist judges, such as Justice Scalia, generally don't buy into that Wickard nonsense. But like most conservatives, he just can't seem to resist it when it comes to marijuana. http://federalism.typepad.com/ashcroft_v_raich/2004/11/the_oral_argume.html Randy Barnett, law professor from Boston University, argued on behalf of Raich. He was allowed a minute to introduce his argument and was then continually peppered with hostile questions. Barnett said there was no "economic activity" in the case, but one justice after another would challenge that statement. "If the feds could reach the wheat used on a farm in Wickard," Scalia kept asking, "why not marijuana consumed by patients in California?" Gun owners had better hope that Scalia loses that argument, since the Bush Justice Department has asked the Supreme Court to let the fate of the Raich case determine the fate of the Stewart case. Isn't it funny when the wacky ninth circuit are playing the part of the strict constructionists, and the Bush administration is in the role of Constitution-stretching New Dealers, citing Wickard as they fight against Raich and Stewart? Or am I just easily amused?

[R. Scott]

Makes me wonder about all the criminal laws Congress has passed – when about the only crimes I can find in our Constitution deal with treason and counterfeiting.

[ran15]

One thing I know is that when one side violates the constitution it shouldn't complain when another group also violates the constitution.

Its pretty clear from the constitution that marijuana should not be a federal issue. It could I believe be a state issue though.

[publiusF27]

I think that if you walked into that room in Philadelphia and asked the question I posed, the Founders would likely tell you that such things are state and local issues, to the extent they are government issues at all.

I think they would tell you that the power to tax was intended to raise revenue, not regulate firearms or cannabis growing, and that the power to regulate interstate commerce was intended to prevent trade wars (both the tariff kind and the shooting kind) from breaking out among the states, and again not to regulate firearms or cannabis.

Yet I know that there are people who claim to support the original intent of the Founders, yet they also support the ATF and/or the DEA. I object to both agencies, for the same reason. So I'm wondering what they are thinking.

[publiusF27]

I'm a little slow sometimes, and just now realized you might be talking about me as a DU gungrabber.

That's so far from the truth, I hadn't considered it!

No, I'm a sort of moderate libertarian; almost an anarchist when it comes to the feds (by mainstream standards), but quite the statist when it comes to my state and county (if you'd ask any libertarian, anyway). I own several pistols, rifles, and a couple of shotguns (oh, and a tater cannon), and the back of my hickup truck has stickers saying "Docks don't kill manatees" and "Buy a gun with your tax refund."

None of that has anything to do with the topic question, and actually, the original intent of using the name "publius" to sign the Federalist Papers was so that citizens could consider the words as spoken by another citizen, and not in the context of who it was who uttered them. I added F27 because publius was taken, I forgot my publius 42 password, and I love my sailboat, a Corsair F 27.

[tet68]

I'd like to see Ted Kennedy sent back.
We could call it, "A Massachusetts Liberal in George Washington's Congress."

[SWAMPSNIPER]

Actually, I was not referring to You. It seems, however, that We have a few Folks around here yet a little dicey on the meaning of "inalienable". They are the ones that will tell You that whatever a democractically elected government says is what You've gotta do.

---

"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once. " -- Justice Alex Kozinski, US 9th Circuit Court, 2003