Posted on 05/04/2013 12:24:44 PM PDT by drewh
Looks like Kanas is on the list of states to move to escape Konnecticut.
The only way it's going to be settled once and for all is through federal court.
It was a medical marijuana case. California law says that people with a doctor's recommendation can grow and smoke marijuana. Scalia said (and yes, that was a quote) that Congress has banned the interstate market for marijuana, and that the only way to successfully do that is to ban possession of all marijuana everywhere by everyone, because otherwise marijuana legally grown in California could be shipped out of the state before anyone could stop it.
That doesn’t sound right. If a person left CA high on drugs the drug would leave CA and would impact a state other than CA so it could be said to impact other states. But not because it was commerce. If they were going to rule on that it seems like the General Welfare (elastic) Clause would be the one they’d have to use.
But wouldn’t the state laws legalizing marijuana fly right in the face of that ruling? So that interpretation will be revisited, right?
All true.
All of the federal gun laws (including, for example, the law banning gun possession by felons) actually prohibit only the possession of a gun "in or affecting interstate commerce." The Supreme Court has held that this requirement is met if the gun ever moved in interstate commerce, at any time, even if that was years before the defendant possessed it. There are also lower court cases (I'm not sure if this issue ever got to SCOTUS) which have held that it is enough if the gun was manufactured from components originating in more than one state.
Seems like that ruling should make sanctuary cities absolutely illegal, because there is a chance that illegals could leave the sanctuary city before anybody could catch them and stop them...
Not to mention how it would allow the feds to be involved in unconstitutional electoral votes, which could also be shipped out of the state and impact the entire country.
Or does the principle of pre-emptive federal action only apply to commerce?
What if no money was exchanged? Say I was the legal owner of a gun and gave it to somebody as a gift, either in Kansas or in any state. No money changed hands. Could the feds have anything to say about that, as things stand? Is that what the Raicha case means - that there doesn’t have to be any money involved?
Yes to your last 2 questions. Clarence Thomas's dissent in Raich:
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.
Like I said earlier, drug warriors cheered this decision.
I don't think that's an option. SCOTUS has never found a particular firearm ban unconstitutional. If Congress can ban it at the federal level - like the AWB - Congress can ban it at the intrastate level.
Why would this be argued under the Commerce Clause and not under the Elastic Clause? It makes no sense to me. Is it because one person using medical marijuana, perhaps in a confined situation, doesn’t stand to harm the “general welfare” since it is a private thing? From an anti-drug perspective, it could be argued that high people do pose a threat to the general well-being even if no money exchanges hands - if, for instance, they drive, vote, practice medicine, etc impaired. So why did they argue this using the Commerce Clause when no commerce was even involved? It makes no sense to me.
What year was that decision?
It was the Constitutional “option” before Wickard as it can be now. Corruption in DC has no bounds. Unchecked corruption will eventually lead to the end of the United States.
You can read Scalia's decision at the following url -
http://www.law.cornell.edu/supct/html/03-1454.ZC.html
Here is one example of how Raich has affected guns. From wikipedia:
"Not long after the decision in Raich, the Court vacated a lower court decision in United States v. Stewart and remanded it to the court of appeals for reconsideration in light of Raich. In Stewart, the Ninth Circuit had held that Congress lacked the Commerce Clause power to criminalize the possession of homemade machine guns."
http://en.wikipedia.org/wiki/Gonzales_v._Raich
Not familiar with the Elastic Clause. Could you copy and paste it here?
Thanks. What a boondoggle.
Seems to me that he’s saying that it would be too easy for a home grower in CA to ultimately end up in the hands of somebody outside of CA. Somebody outside of CA could grow the crop in CA and then take it to the state where they live and sell it there. Because growing it isn’t illegal in CA, taking it across state lines wouldn’t be illegal because that isn’t a commercial activity, and selling it in a single state wouldn’t be federally-regulated because it is intrastate and not interstate.... allowing people to grow marijuana in CA could allow the interstate production and sale of marijuana that technically didn’t break any laws because the growing was done in a different state than the selling.
But that doesn’t make sense to me either, because selling drugs is illegal regardless of where the drugs were produced. Right? They use the commerce clause to justify forbidding the sale of it but it’s illegal to sell it even if state lines aren’t crossed. Right?
None of this makes any sense to me.
It’s the “Necessary and Proper” Clause, which actually was used by Scalia. You can read about it at http://definitions.uslegal.com/e/elastic-clause/
But what I was actually thinking of was the “General Welfare” clause. But I now find that the “General Welfare” clause does not authorize Congress to MAKE LAWS for the general welfare of the country, but to RAISE MONIES for the general welfare. See http://legal-dictionary.thefreedictionary.com/General+Welfare
So they really would HAVE to rely on the Commerce Clause as the reason to be able to meddle in intrastate affairs. And the claim is that the Elastic Clause allows them to make whatever laws they need in order to end up with there being no drugs of a certain kind that are produced in one state and sold in another. But that doesn’t seem to authorize them to worry about what is produced and sold all in the same state. Yet that is the power they’ve already claimed for themselves by naming certain drugs illegal, even if they are produced and sold in the same state.
To be truthful, I don’t understand where the feds get the authority to make most of the laws they make. Seems like all the laws that are justified by the Commerce Clause would have to exempt intrastate production and sales.
Nor to many of us. As I understand Scalia's reasoning, he says: Congress banned interstate sales of marijuana; if I can legally grow marijuana in California, I could easily take it to Nevada and sell it; the only way the feds could prevent that is to stop every car leaving California and search it, which is impossible; so, in order to make Congress's ban on interstate sales effective, Congress can ban possession of marijuana by anyone everywhere.
That reasoning is strained, to say the least.
As a matter of history, Congress didn't start by banning interstate shipments of marijuana. They started by imposing a prohibitive tax on marijuana. When that was perceived as ineffective, Congress simply banned all possession of marijuana. If you go back and read federal court cases from the 1950s and 60s, they don't rely on interstate commerce; they say that it is impossible to grow marijuana in the U.S. (!) so the ban on possession is a way to enforce Congress's control over the borders (!) by making effective the ban on importing marijuana.
That same reasoning applies to homemade machine guns (see the Stewart case above) and to guns made and sold in Kansas. It's a package deal.
But that doesn’t make sense to me either, because selling drugs is illegal regardless of where the drugs were produced. Right?
They use the commerce clause to justify forbidding the sale of it but it’s illegal to sell it even if state lines aren’t crossed. Right?
Not in CO and WA, or in states with medical marijuana. Let me ask this. Do you support the authority of CO and WA to run their marijuana policies without fedgov overruling them?
The reasoning sounds really warped. First supposedly regulating international trade, then supposedly regulating interstate trade, and now regulating intrastate trade and even no trade at all.
Seems to me that the Constitution says that if substances are going to be prohibited it has to be done by the states.
I’ve never been real solidly-convinced about the various “libertarian” issues. I’m still sort of conflicted about some of them. But it seems like the 10th Amendment and the Commerce Clause don’t mesh very well when the Commerce Clause is used as a way for the feds to control intrastate commerce or no commerce at all.
I don’t know what Constitutional authority the feds would have, to regulate commerce that happens strictly within a state’s own borders.
To be truthful, like I said before, I’m having trouble figuring out what Constitutional authority Congress has for most of the laws they make. What is the basis for federal criminal law, for instance?
I think I need to read the Constitution from front to back again. What are Congress’ enumerated powers?
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