Federal Gun and Drug Laws

[publiusF27]

OK.

Hamilton lays out the intention of using a national government to lay common tariffs on imported goods. It was to better negotiate trade agreements.

By prohibitory regulations, extending, at the same time, throughout the States, we may oblige foreign countries to bid against each other, for the privileges of our markets. This assertion will not appear chimerical to those who are able to appreciate the importance of the markets of three millions of people--increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local circumstances to remain so--to any manufacturing nation; and the immense difference there would be to the trade and navigation of such a nation, between a direct communication in its own ships, and an indirect conveyance of its products and returns, to and from America, in the ships of another country. Suppose, for instance, we had a government in America, capable of excluding Great Britain (with whom we have at present no treaty of commerce) from all our ports; what would be the probable operation of this step upon her politics? Would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom?

But he seems to envision no such barriers between the states:

An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope, from the diversity in the productions of different States.

This leads me to the wacky conclusion that he intended for the power to tax to be used to shape the nature and extent of trade with foreign nations, but not among the states, where there would be "unrestrained intercourse." Same power, two different intentions.

What would be a non-wacky conclusion?

[publiusF27]

Can an action step outside the original intent of the Founders, and still be Constitutional.

I'd say the answer is definitely yes, and the example I'd cite is the direct election of Senators. That took away the representation of state governments at the federal legislative level, giving it instead to the people of the states, who already had representation in the House. It's an action that would have been considered profoundly unwise by Federalists and Antifederalists alike, an attack on the structure of the government, which was supposed to protect us from a federal government with numerous and indefinite powers by letting the state governments guard many of those powers from encroachment.

Nevertheless, it was done Constitutionally, through the amendment process, and so cannot be said to be unconstitutional, despite violating the intent of the Founders.

[tacticalogic]

Justice Thomas is proposing to change the courts involvement in the dormant commerce clause, is he not?

Not that I can see. He's proposing a re-examination of the basis and criteria being used to determine when they should get involved and to what degree. The end result may be no change in involvement at all, merely a clarification of the basis for that involvement. I don't see any reason to read more into it that what was written, but then I don't want to see the thread pulled.

[tacticalogic]

Nevertheless, it was done Constitutionally, through the amendment process, and so cannot be said to be unconstitutional, despite violating the intent of the Founders.

The Constitution, being composed of the original Articles and all subsequent amendments should be interpreted according to the intent and understanding of the authors. The parts of the original articles not altered by subsequent amendments should be interpreted according to the understanding and intent of the Founders. The subsequent amendments should be interpreted according to the understanding and intent of the authors of those amdendments, at the time they were written and ratified.

[robertpaulsen]

"Hamilton lays out the intention of using a national government to lay common tariffs on imported goods. It was to better negotiate trade agreements."

Not in that paragraph he doesn't. He is discussing the prohibition of imports to force the foreign nation to negotiate and open up its ports to us. (Remember, "to regulate" includes "to prohibit")

"What would be a non-wacky conclusion?"

Hamilton is certainly not suggesting that we do the same with individual states. All states should be treated equally to engage in unrestrained intercourse (of unregulated commerce).

[robertpaulsen]

"Can an action step outside the original intent of the Founders, and still be Constitutional."

Of course.

Why do some people on this board (I won't name names) insist that original intent implies sole intent? That because a Congressional power in that past was used for A, it cannot be used now for B.

So Congress cannot regulate the frequency spectrum because radio and TV transmissions are not "trade", and the original intent was to regulate trade? Please.

[robertpaulsen]

"He's proposing a re-examination of the basis and criteria being used to determine when they should get involved and to what degree."

Is that right? Just a re-examination, huh?

In the same post, Justice Thomas was also quoted as saying, "The negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application."

And all he's asking for is "merely a clarification".

tacticalogic, you are a piece of work. My statement stands.

[Ken H]

I gave you numerous cases and quotes to back up my claim that the Court is the arbiter in these dormant commerce clause cases.

Those examples of judicial activism were from 1945 and 1949, and have nothing to do with interpreting the text of the 1829 Willson decision. Try again.

[robertpaulsen]

"Those examples of judicial activism were from 1945 and 1949, and have nothing to do with interpreting the text of the 1829 Willson decision."

Wrong.

Southern Pacific Co. v. Arizona references Willson, and California v. Zook references Southern Pacific Co. v. Arizona.

[Ken H]

Referencing is not the same as interpreting. Cite the portion(s) which back up your interpretation of the 1829 decision.

[robertpaulsen]

I already did that. It's right there in the same post as the cases.

[Ken H]

I already did that. It's right there in the same post as the cases.

You mean this?--

"For a hundred years it has been accepted constitutional doctrine that the commerce clause, without the aid of Congressional legislation, thus affords some protection from state legislation inimical to the national commerce, and that in such cases, where Congress has not acted, this Court, and not the state legislature, is under the commerce clause the final arbiter of the competing demands of state and national interests."

-- Mr. Chief Justice Stone, Southern Pacific Co. v. Arizona, 325 U.S. 761, 768 (1945)

He couldn't have been refering to Marshall's opinion in Willson v Blackcreek Marsh Co. in 1829. Marshall said Delaware was free to block a coastal waterway, because Congress was dormant on the issue.

If Marshall had believed the Court was the final arbiter when Congress was dormant, he would not have said the Court could take no cognizance of the case.

So, can you cite where it backs up your interpretation of the 1829 case?

[tacticalogic]

In the same post, Justice Thomas was also quoted as saying, "The negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application."

Yes he did. Wheather or not it makes sense or has proved virtually unworkable are rather subjective, but I believe he has his reasons for saying so, and can back them up. As far as it having no basis in the text of the Constitution, that is an objectively verifiable statement of fact. These are the reasons he gives for questioning the current basis for application of the Commerce Clause, they are not the questions themselves.

And all he's asking for is "merely a clarification".

What is it you think he's asking for, and why?

tacticalogic, you are a piece of work.

Good. That tells me I've said something that's hitting home.

My statement stands.

Yes, but upon what?

[tacticalogic]

Why do some people on this board (I won't name names) insist that original intent implies sole intent? That because a Congressional power in that past was used for A, it cannot be used now for B.

The disagreements I have seen characterized as "original intent vs sole intent" seem to actually be over expressed intent vs imaginable intent.

[robertpaulsen]

The other case, KenH:

"Absent congressional action, the familiar test is that of uniformity versus locality: if a case falls within an area in commerce thought to demand a uniform national rule, State action is struck down. If the activity is one of predominantly local interest, State action is sustained. More accurately, the question is whether the State interest is outweighed by a national interest in the unhampered operation of interstate commerce."

There you go.

[Ken H]

Once again, you are busted. Look at the what preceded your cite:

"Certain first principles are no longer in doubt. Whether as inference from congressional silence, or as a negative implication from the grant of power itself, when Congress has not specifically acted we have accepted the Cooley case's broad delineation of the areas of state and national power over interstate commerce. Cooley v. Board of Wardens of Port of Philadelphia, to use of Soc. for Relief of Distressed Pilots, Their Widows and Children, 12 How. 299; Southern Pacific Co. v. State of Arizona ex rel. Sullivan, 325 U.S. 761, 768 , 1519, 1520. See Ribble, State and National Power Over Commerce, ch. 10."

"Absent congressional action, the familiar test is that of uniformity versus locality..."

You cited a reference to the Cooley Case (1850), not the 1829 Marshall opinion.

[publiusF27]

It seems another drug war precedent is reaching out to touch our firearms rights. I started a FR thread about it. It has to do with the use (abuse, IMO) of civil asset forfeiture laws to punish crimes.

Now, there is a new Federal threat emerging, detailed here by JPFO. Become a snitch in the drug war, or become a felon. No third choices allowed. If you don't believe that the day will soon come when that sentence substitutes "gun" for "drug," then you really have not been paying attention.

[publiusF27]

A couple of updates to this thread. The Raich decision (the one about homegrown cannabis plants being interstate commerce) has been decided by 6 to 3 in favor of the New Deal, big-government view of the commerce clause.

I agreed with Justice Thomas' dissent.

[June 6, 2005]

Justice Thomas, dissenting.

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.

Predictably, the ruling was immediately applied to federal gun laws, as the case about whether homegrown machine guns for personal use are interstate commerce was slapped back to the 9th within a week of the Raich decision.

[publiusF27]

Links for reference on whether homegrown machine guns for personal consumption are interstate commerce.

US v Stewart

Jun 13 2005 Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Gonzales v. Raich, 545 U.S. ____ (2005).