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Old April 23, 2013, 01:21 PM   #18
Brian Pfleuger
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Join Date: June 25, 2008
Location: Central, Southern NY, USA
Posts: 18,791
Quote:
Originally Posted by rajbcpa
Does the Commerce clause say the federal government cannot regulate inter-state commerce - say a transaction between two citizens of NY or two citizens of California or two citizens of Florida?

If that is "YES" than how would a federal law require background checks in NY, or California, or Florida? In other words, a federal law to require background checks would violate the Commerce Clause; right?

That would be INTRA-state commerce... "within" a state. INTERstate is BETWEEN states, from one to another.

The absence of a prohibition... "Congress shall not..." is not construed as permission. The Constitution is a system of enumerated powers. The powers belong to The People (as endowed by our Creator) and The People have contracted together to lend SOME of the powers to the government that is formed by, for and of them. The Congress (and others so named) have only those powers that are spelled out in the Constitution AND NO OTHER powers.

Prohibitions are, therefore, along the lines of "Just in case it's not clear and you ever get the slightest inkling..."

So, because it says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." doesn't mean "If we hadn't put this here they would have had the power."

What that really means, under the context of enumerated powers and ONLY enumerated powers is "Congress will NOT pass pro or con religious laws and will have no such power, just in case it isn't obvious enough everywhere else where it's not specifically spelled out."

The BoR is basically, "They don't have the power anyway but these things are so important that we don't to leave it to chance so we'll spell it out real nice and clear like."
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Last edited by Brian Pfleuger; April 23, 2013 at 01:27 PM.
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