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Old May 7, 2009, 11:33 PM   #26
Dust Monkey
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I like it. Makes me want to move back to Texas.


Remember the commerce clause gives congress the power to regulate. The intentions of the founders, IIRC, was to make sure that there was "regular" trade between the states. Not control how toilets work.
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Old May 7, 2009, 11:40 PM   #27
THE GENERAL
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States Rights

As a Virginian and a believer in states rights, I see not one problem with this! I don't trust the federal government to uphold the peoples rights. I am a firm believer in states rights and think we should leave it up to the people in those states.
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Old May 8, 2009, 12:34 AM   #28
BillCA
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The problem with the commerce clause is that it can be construed to permit argument ad absurdum to control anything produced.

I had a most enlightening conversation one evening, over dinner, with a lawyer about this. He'd worked on a few cases involving the commerce clause.

In essence, Congress can justify anything it wants via the commerce clause if the courts do not limit the reach of their arguments.

In one case, the Feds argued for control based on the fact that one supplier of California lumber bought cut lumber from a California mill that purchases saws and machines from other states and uses electricity produced in other states.

If you break down anything far enough, it becomes something made in another state. Until the courts wake up and limit the reach of such arguments, the Feds can control just about any product made or method of transportation to get it to market.

Feds will argue that they can regulate your home-grown vegetable garden, even if you irrigate with stored rainwater, use garden tools made from trees on your own land and use locally produced seed stock. How? They'll argue that doing so reduces federal tax revenues by reducing your (and your neighbors') demand for the veggies and that reduces the amount of fuel taxes, income taxes for farm workers who buy other interstate products, etc. :barf:

The solution is easy and straightforward. Limit the arguments to a direct, measurable and substatantive affect on commerce. Plus removing the argument that a "local state product" will reduce demand for out-of-state products based simply on the principle that people are free to make their choices of which products to buy for any reason.
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Old May 8, 2009, 04:35 AM   #29
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The state efforts are about sovereignty and the 10th Amendment versus the commerce clause. Guns just happen to be the vehicle for that fight. The same state efforts could target homemade jelly and jam rather than guns, but would get little publicity or legal reaction from the federal government. Guns are attention-getting, heavily regulated, and guarantee a legal reaction by the federal government

Quote:
In essence, Congress can justify anything it wants via the commerce clause if the courts do not limit the reach of their arguments.
Absolutely correct. Most commerce clause cases deal with the production and sale (or lack thereof) of products and their impact on commerce. The Gun Free School Zone of 1996 took the commerce clause to a new level of tenuous connections to commerce.

Quote:
(F) the occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country;

(G) this decline in the quality of education has an adverse impact on interstate commerce and the foreign commerce of the United States;
The mere existence of a product (the manufacturing, sale, and ownership of which is already heavily regulated) contributes to an environment that impairs the quality of education, which impairs the country's economic productivity. Using that type of logic, the federal government could regulate entertainment activities (dumbing down the population), food (bad food = poor students), or essentially anything.
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Old May 8, 2009, 05:48 AM   #30
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You should remember that the Confederate States did not believe so much in a strong central government and that was one of their weaknesses and yet travel within the Confederacy was controlled. Supposedly you had to have a pass. The president of the Confederacy also had line item veto. His widow moved to New York after he died, too, but that probably doesn't enter into things.
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Old May 8, 2009, 06:05 AM   #31
publius42
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Quote:
Originally Posted by BillCA
The solution is easy and straightforward. Limit the arguments to a direct, measurable and substatantive affect on commerce.
That's true, and it will involve reversing the Wickard and Raich precedents, something none of us will live to see the Supreme Court do.

I remember following the oral arguments in the Raich case on the legal blog sites, and Scalia was reported to have kept hammering Raich's attorney on the same question: how is this different from the Wickard case? There really is no satisfactory answer, though there are some differences. The issues are fundamentally the same, and Scalia was not willing to overturn Wickard. Neither were O'Connor and Rhenquist, for that matter. Only Justice Thomas, dissenting alone, was willing to acknowledge what will be needed to limit the commerce power. He said:

Quote:
If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

...

One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that “ ‘[t]he Constitution created a Federal Government of limited powers.’ ” New York v. United States, 505 U.S. 144, 155 (1992) (quoting Gregory v. Ashcroft, 501 U.S. 452, 457 (1991)). That is why today’s decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of “Commerce among the several States.” Congress may regulate interstate commerce–not things that affect it, even when summed together, unless truly “necessary and proper” to regulating interstate commerce.
Wickard and Raich have got to go if we are to return to Madison's vision of the commerce power:

Quote:
13 Feb. 1829
Letters 4:14--15 James Madison to Joseph C. Cabell


For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.
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Old May 8, 2009, 06:18 AM   #32
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Something i found about the Montana situation. http://www.gather.com/viewArticle.js...81474977674743
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Old May 8, 2009, 09:51 AM   #33
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Quote:
The solution is easy and straightforward. Limit the arguments to a direct, measurable and substatantive affect on commerce.
Easy and straightforward in theory, yes. In practice, no. Doing so would be going against court precedents and the general direction of regulation by Congress since at least the beginning of the 20th century, if not the Civil War.

IMHO the recent sovereignty declarations (or whatever you call them) by the states probably won't get very far as it relates to almost any substantive issue with a history of federal regulation. Most of the "state's rights" claims will probably be thrown out by the federal courts, because they've already been doing it for decades.
Quote:
...it will involve reversing the Wickard and Raich precedents, something none of us will live to see the Supreme Court do.
It could be done with a constitutional amendment. It's a long shot, but IMHO it's the only surefire way to settle the issue.
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Old May 8, 2009, 10:54 AM   #34
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I'm not a lawyer so I won't go too far here. However, I seem to recall that the USSC ruled in favor of the feds regarding someone growing wheat or some other ag product on their own property for sale within their own neighborhood, county or state. They tried to get around federal agriculture pricing rules since their product was not going to move in "interstate" commerce.

However, the feds argued, and the USSC agreed (again if my memory serves me correctly) that any agriculture product sold within a state would have an "impact" on the same agriculture product which moved in "interstate" commerce. Here was there reasoning. The people in a certain state would use or consume X amount of agriculture product Y moving in interstate commerce. If someone began to supply Z amount of that product for "intrastate" commerce, it would reduce the amount X of product Y moving into the state via "interstate" commerce. Thus, the feds had regulatory authority to set the price which product Y could be sold for, even if a part of product Y had never moved in "interstate" commerce.

How's that for stretching the Interstate Commerce Clause? I hope someone will reply here with the case I'm thinking of and I hope my memory is accurate on this. My apologies ahead of time if I'm not remembering this with 100% correctness.

Edited to clarify: The case was "Wickard vs. Filburn" and was about how much wheat could be grown on someone's private property. There was a limit set by the federal government to keep wheat prices stable. Do a search on "Wickard vs. Filburn" for the details. Filburn grew more than his limit, but argued that it was only for his own personal use. Since it was for his own personal use, he argued that the wheat allocation was not applicable to him as his wheat would not be moving in "interstate" commerce, and therefor he was outside of the federal regulations for how much wheat could be grown on his property. He lost due to the interstate commerce clause interpretation by the USSC.
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Last edited by USAFNoDak; May 8, 2009 at 11:04 AM. Reason: Correcting part of my post.
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Old May 8, 2009, 11:10 AM   #35
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Here is the finding in "Wickard vs. Filburn", summarized in Wikipedia. I know that Wikipedia is not always 100% accurate, but I believe it is regarding this case, based upon my memory other articles I've read regarding this case.

Filburn argued that since the excess wheat he produced was intended solely for home consumption it could not be regulated through the interstate Commerce Clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would certainly become substantial. Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.


So, it seems to me that the federal government will argue the same thing, and use this case as precedent in their arguements, should states allow manufacture of firearms and ammunition within the state, and try to put such firearms outside of federal control.

I don't agree with the feds being able to control virtually anything with such twisted logic, so I would side with the states. I'm merely pointing out that something similar has already been tried and a ruling made against it.
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Last edited by USAFNoDak; May 8, 2009 at 11:15 AM. Reason: spelling and grammar.
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Old May 8, 2009, 12:35 PM   #36
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That decision is the one that the law is going after.... I know some folks in DC are probably sweating this to see how big it gets....

Back then you had the Depression and Roosvelt had been kicked down by the USSC on several other occasions so it wasnt a slam dunk. This USSC may be ready to give this case a whirl and go for the states rights.

I have seen Judge Napolitano on some shows and his opinion that it could be a 5 or even 6 majority.

In the medical marijuana case the liberals voted to uphold the federal preemption while the dissenters who leaned towards the conservative side towards the states rights. This court has already held that the SA is a individual right and a person has a right to defend themselves. So anything could happen on this one.

After a decision like that now is the time to strike while the fire is hot. I would assume that there are already folks waiting to purchase those first guns and lawyers ready to go after the Feds roll in and do their thing.

The $100,000 dollar question is are the Feds willing to gamble on losing a decision by the USSC? The more states that get on this train and the more confusing appelate court decisons there are the better the chance the USSC will have to hear it and will not be able to refuse it. Will they lose thier nerve and ignore it hoping for a big change in the USSC?

Heller was good but this could be the icing on the cake.
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Old May 8, 2009, 12:48 PM   #37
AZ Med18
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So DHS would consider Texas, Montana, and all those states seeking sovereignty. Be a terrorist state?

Ah crap our own nation is going to start taking out STATES!!!
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Old May 8, 2009, 01:03 PM   #38
publius42
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Wickard vs Filburn
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Old May 11, 2009, 05:47 AM   #39
alloy
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I believe Glenn Beck will be doing a segment on this and some of its implications on his Fox News show today around 5 EST for anyone with TIVO.

Glenn Beck....not exactly hard news, but it might be interesting.
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Old May 11, 2009, 07:27 AM   #40
Bartholomew Roberts
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Quote:
In the medical marijuana case the liberals voted to uphold the federal preemption while the dissenters who leaned towards the conservative side towards the states rights.
I don't know that I would characterize Scalia as liberal.
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Old May 11, 2009, 12:19 PM   #41
TEDDY
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commerce

there was an argument in federal court on interstate commerce about a gun which if it was not in interstate commerce would be exempt from the charge.
the darn gun had shipped to a dealer several states awy and then back to Mass.ug.it was a S&W.so if it stayed in mass it would have been legal.
all gun laws on fed level are based on the 1934 MG law taxing MG.the ATF enforces the tax laws.the 10% tax and the $200 tax.and the income tax on guns and ammo.
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Old May 11, 2009, 12:56 PM   #42
Hellbilly5000
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This is not the first and this won't be the last time the state of Texas tell the US Government to go screw itself. Remember Gov. Perry recently told President Obama that if any federal assault weapon bans are enacted then the state of Texas will simply ignore the law in accordance with the 10th amendment.
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