The Gun Show Loophole

[1972RedNeck]

The Gun Show loophole is how many dogs the ATF will shoot to kill in your living room in front of your children and wife.

Please, tell us how you really feel...


Not sure what to do about it, but we do seem to be slowly creeping back in the right direction the past couple months.

[zukiphile]

Originally Posted by Aguila Blanca

I believe the legal fiction theory is something along the lines of "Once in interstate commerce, always in interstate commerce."

Let's not damn the doctrine with faint praise. It's closer to "If it has an effect on interstate commerce, products of its type are part of interstate commerce".

Originally Posted by JohnKsa

The transaction takes place within a single state, so no interstate commerce.

That's how the grant of power should play out, but the Court in Wickard had other plans.

[Recycled bullet]

Originally Posted by 1972RedNeck

Please, tell us how you really feel...


Not sure what to do about it, but we do seem to be slowly creeping back in the right direction the past couple months.

I feel we ought to be extremely careful about granting permissions and Power and funding and guns to government agencies. A lot of the government is so big hiding corruption is natural.

I believe most people are good and are capable of interacting with and responding to a situation in real time realistically. Some people are terrible, and can't be reasoned with. How do you appeal to a man's better nature if he doesn't have one? The worst atrocities are committed by government. Yes, it could happen here. I hope it does not.

[JohnKSa]

I disagree. The used gun market most definitely affects the overall firearm market.

Right, but that's not the argument used in Wickard. The argument in Wickard was about production (even intrastate production for things to be used only intrastate) affecting national supply.

What I said was: "Nothing is produced, so the overall supply is not affected. "

That's how the grant of power should play out, but the Court in Wickard had other plans.

Again, the salient point in Wickard was the change in the overall supply caused by production. The farmer was growing a crop, which, although he was only using it himself, intrastate, was still changing the overall national supply and, therefore, according the Court's logic, affecting interstate commerce.

Private intrastate used gun sales do not change supply. Even the crazy logic in Wickard can't be used to extend federal jurisdiction to them. I'm not saying it's totally impossible for the Feds to figure out a way to extend their jurisdiction to intrastate used gun sales--just pointing out that they will have to come up with another argument instead of just using Wickard.

[zukiphile]

Originally Posted by JohnKsa

Again, the salient point in Wickard was the change in the overall supply caused by production. The farmer was growing a crop, which, although he was only using it himself, intrastate, was still changing the overall national supply and, therefore, according the Court's logic, affecting interstate commerce.

Private intrastate used gun sales do not change supply. Even the crazy logic in Wickard can't be used to extend federal jurisdiction to them. I'm not saying it's totally impossible for the Feds to figure out a way to extend their jurisdiction to intrastate used gun sales--just pointing out that they will have to come up with another argument instead of just using Wickard.

While the facts of Wickard involved production, the rationale wasn't limited to production.

Originally Posted by Jackson at 128

It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. [Footnote 28] One of the primary purposes of the Act in question was to increase the market price of wheat, and, to that end, to limit the volume thereof that could affect the market.

Emphasis added. https://supreme.justia.com/cases/fed...pinion-1937493

The extraordinary breadth of that reasoning shows up in the MJ version of Wickard, Gonzalez v. Raich. There the majority noted,

Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U. S., at 151; Wickard v. Filburn, 317 U. S. 111, 128–129 (1942).

https://supreme.justia.com/cases/federal/us/545/1/

In this perversion, a man who grows his own marijuana within his own state for his own use, never sells it, and has a spectacularly small impact on interstate commerce in that good has nevertheless fallen within the power of Congress to regulate commerce amongst the states because the class of his activity has a "substantial" effect.

Your analysis of the transaction is more coherent. If I sell a pistol to you, my neighbor in the same state, regulation of that transaction by Congress isn't authorized by the words "To regulate Commerce ... among the several States". I'd like to see that standard restored, but its effect would be so profound I have doubts we will ever see it.

[JohnKSa]

While the facts of Wickard involved production, the rationale wasn't limited to production.

Originally Posted by zukiphile

Originally Posted by Jackson at 128
It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. [Footnote 28] One of the primary purposes of the Act in question was to increase the market price of wheat, and, to that end, to limit the volume thereof that could affect the market.

This explicitly relates to limiting production. Limiting the volume of wheat is limiting production.

Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U. S., at 151; Wickard v. Filburn, 317 U. S. 111, 128–129 (1942).

This quote doesn't explicitly mention production, but let's look more closely at the ruling:
https://supreme.justia.com/cases/federal/us/545/1/

"Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law."

Perfect analogy to Wickard involving local production. Cultivation/production is a necessary condition.

In this perversion, a man who grows his own marijuana within his own state for his own use, never sells it, and has a spectacularly small impact on interstate commerce in that good has nevertheless fallen within the power of Congress to regulate commerce amongst the states because the class of his activity has a "substantial" effect.

Again, perfect analogy to Wickard involving local production. The argument in Wickard was that the volume of production for the case in question was meaningless because if left unregulated enough small production volumes would have a combined effect that was substantial. Cultivation/production is a necessary condition.

Your analysis of the transaction is more coherent.

I don't know about that--but it is consistent with all the cases you quote, along with the rationale in Wickard.

They all have to do with production--in fact it is integral to the arguments in each--a necessary condition.

Private intrastate sales of used guns do not have any effect on production or on the volume of firearms in circulation. Congress may figure out a way to regulate them, but if they do, they will have to come up with a new rationale since Wickard clearly doesn't apply. Neither do the other cases you cited, and for exactly the same reason.

[zukiphile]

Originally Posted by zukiphile

While the facts of Wickard involved production, the rationale wasn't limited to production.

Originally Posted by JohnKsa

This explicitly relates to limiting production. Limiting the volume of wheat is limiting production.

“Limited to production” isn’t "limiting production”. The case is specifically about a law that limited production. It doesn’t follow that the rationale is “limited to production”.

Originally Posted by JohnKsa

This quote doesn't explicitly mention production, but let's look more closely at the ruling:
https://supreme.justia.com/cases/federal/us/545/1/

"Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law."

Exactly so. The authority is found to include cultivation; the rationale is not limited to it. Including agriculture was an innovation of the Wickard Court in broadening the power, not a limitation of an already existing power to regulate interstate commerce. https://constitutioncenter.org/the-c...0slave%20trade.

Originally Posted by JohnKsa

Cultivation/production is a necessary condition.

It’s a part of a fact pattern in a case over laws about production, but that doesn’t describe a limit in the rationale for extending the commerce clause beyond interstate commerce.

Originally Posted by JohnKsa

I don't know about that--but it is consistent with all the cases you quote, along with the rationale in Wickard.

They all have to do with production--in fact it is integral to the arguments in each--a necessary condition.

Yes, both cases involve production or cultivation; that specific fact isn’t central to Jackson’s commerce clause analysis. The limitation on production was incidental to his reasoning that it could have a greater effect on commercial markets, the specific end of the act being challenged.

Commerce in goods is selling, buying and trading them. https://constitutioncenter.org/the-c...0slave%20trade. There isn’t a constitutional exception for used goods simply because they’ve already been produced.

Originally Posted by JohnKsa

Private intrastate sales of used guns do not have any effect on production or on the volume of firearms in circulation. Congress may figure out a way to regulate them, but if they do, they will have to come up with a new rationale since Wickard clearly doesn't apply. Neither do the other cases you cited, and for exactly the same reason.

If by purchasing a used firearm in-state you have not had to purchase in the market of new, federally regulated arms, you have had the same “substantial effect” on the interstate market in arms that the self-reliant wheat farmer and the self-supplying marijuana possessor had in their market categories. Regulating these items in commerce would be as easily reached as either of the other goods.

[44 AMP]

Bottom line as I see it, at present, your property isn't your property if the govt says its not, and we allow that to stand.

Which, sadly, we have been allowing for quite some time....

[JohnKSa]

Yes, both cases involve production or cultivation; that specific fact isn’t central to Jackson’s commerce clause analysis.

Production is clearly is a necessary condition by any reasonable definition of 'necessary condition'.

It’s a part of a fact pattern in a case over laws about production, but that doesn’t describe a limit in the rationale for extending the commerce clause beyond interstate commerce.

The fact is that no argument can extend the commerce clause "beyond interstate commerce" because the commerce clause is explicitly limited to interstate commerce.

Any assessment of Wickard that claiming it "extends the commerce clause beyond interstate commerce" is obviously flawed since extending the commerce clause beyond interstate commerce is impossible. The argument necessary to Wickard is, in fact, a novel explanation of how intrastate production, actually is interstate commerce because it changes national supply.

That is why production is integral/necessary to the argument in Wickard. Without production, national supply is not affected and that means the intrastate activity can not be shown to affect interstate commerce. That is why Wickard hasn't ever been applied, and can't be applied to the private intrastate sales of used guns. That does not affect national supply and therefore, the argument that Wickard uses clearly does not/can not apply.

If by purchasing a used firearm in-state you have not had to purchase in the market of new, federally regulated arms, you have had the same “substantial effect” on the interstate market in arms that the self-reliant wheat farmer and the self-supplying marijuana possessor had in their market categories.

Obviously not. It may be somehow possible to show that buying a used gun intrastate has an effect on the interstate market, but it clearly won't be due to the 'same' effect as in Wickard. Sales of used firearms, intrastate, do not change national supply. Nothing is produced, national supply does not change and they therefore do not qualify as interstate commerce per the argument in Wickard.

As I've said before, it may be possible for the federal government to come up with a creative argument for regulating intrastate private gun sales, but it will have to be a new argument as the argument used in Wickard clearly does not apply.

On the other hand, it is, I suppose, possible that the argument in Wickard might be directly applicable to privately manufactured firearms.

Ok, let's try this from a different angle.

Let's say that I am engaged in the production items/material for my own personal use. The items/material are legal to produce, own, possess and use/consume under all state and federal law. The items/material never cross state lines, they are never bought or sold, in fact they never leave my possession. The federal government claims that I am engaged in interstate commerce.

Provide a rationale that would convince the Supreme Court to unanimously agree that my activity is 'interstate commerce'.

Since you believe that a change in national supply is not integral/necessary to the argument, you may not use that argument in your explanation.

[zukiphile]

Originally Posted by JohnKsa

The fact is that no argument can extend the commerce clause "beyond interstate commerce" because the commerce clause is explicitly limited to interstate commerce.

The commerce clause empowers congress to regulate interstate commerce.

That the authority of congress can be extended beyond that commerce is illustrated by the holding in Wickard, a case in which the government asserted authority to regulate wheat it that wasn’t itself in commerce because of a putative effect on commerce.

Originally Posted by JohnKsa

Any assessment of Wickard that claiming it "extends the commerce clause beyond interstate commerce" is obviously flawed since extending the commerce clause beyond interstate commerce is impossible. The argument necessary to Wickard is, in fact, a novel explanation of how intrastate production, actually is interstate commerce because it changes national supply.

Yet, no part of the Court’s reasoning equates production with commerce. Do you wonder why?

Originally Posted by JohnKsa

That is why production is integral/necessary to the argument in Wickard. Without production, national supply is not affected and that means the intrastate activity can not be shown to affect interstate commerce.

Production is a but for element in the Wickard fact pattern because it is a restriction on production said to have an effect on interstate commerce. That doesn’t make production integral to the rationale for extending the commerce clause authority beyond interstate commerce.

Originally Posted by JohnKsa

That is why Wickard hasn't ever been applied, and can't be applied to the private intrastate sales of used guns. That does not affect national supply and therefore, the argument that Wickard uses clearly does not/can not apply.

Wickard wouldn’t be applied, but the reasoning in the cases that expanded federal authority on this point, of which Wickard was one, would be applied.

It would be instructive to review the original Gun Free Zones Act and its successors. The original fell for want of a legislative finding that arms are in interstate commerce. After it fell, it was re-enacted with the legislative finding, It applied to used guns as well, has been challenged and still stands.

Originally Posted by JohnKsa

Let's say that I am engaged in the production items/material for my own personal use. The items/material are legal to produce, own, possess and use/consume under all state and federal law. The items/material never cross state lines, they are never bought or sold, in fact they never leave my possession. The federal government claims that I am engaged in interstate commerce.

Emphasis added. That isn’t what the government would claim under a Wickard analysis; they would instead claim an effect on interstate commerce. If you imagine a scenario in which one does not engage in commerce but affects it, you’ve satisfied the basic Wickard rationale.

Originally Posted by JohnKsa

Provide a rationale that would convince the Supreme Court to unanimously agree that my activity is 'interstate commerce'.

Since you believe that a change in national supply is not integral/necessary to the argument, you may not use that argument in your explanation.

Emphasis added. Not everyone follows Sup Ct justices and how they view issues, but people who do would recognize that this issue isn’t one that sees a unanimous vote from the current court. Thomas has the more coherent view.

If you need a more plain assurance that the rationale in Wickard isn’t tethered to production, let Justice Jackson be the one who does it.

Originally Posted by Wickard at 124

Whether the subject of the regulation in question was "production," "consumption," or "marketing" is, therefore, not material for purposes of deciding the question of federal power before us.

Empasis added. https://supreme.justia.com/cases/fed...pinion-1937493

[JohnKSa]

That the authority of congress can be extended beyond that commerce is illustrated by the holding in Wickard...

The argument in Wickard explains how intrastate production falls under the commerce clause. It doesn't "extend it".

If that were not true, the Supreme Court would have, instead of agreeing unanimously that the prosecution was Constitutional, disagreed and explained why Wickard was an overstep and not within the jurisdiction of the federal government.

I mean, you can certainly hold the personal opinion that they got it wrong, but that's all it is--personal opinion. By definition, their unanimous agreement that Wickard was a constitutional prosecution, demonstrates that it does not extend the powers of Congress beyond the power of the commerce clause which allows them to regulate interstate commerce.

Yet, no part of the Court’s reasoning equates production with commerce.

However you want to word it.

The quote from Jackson goes on to state that to be under the power of Congress, an activity must "exert a substantial economic effect on interstate commerce".

To claim that production is not a necessary condition, you must come up with some way to explain how an exclusively intrastate activity could "exert a substantial economic effect on interstate commerce" without changing national supply.

I claim that production/change in national supply is a necessary condition and gave you a chance to demonstrate that it is not. Rather than taking up the challenge, you chose to argue semantics.

That isn’t what the government would claim under a Wickard analysis; they would instead claim an effect on interstate commerce.

I wondered how you would avoid answering the question.

Ok, let's try it again, with a wording alteration that eliminates your objection but changes nothing material to the construct.

Let's say that I am engaged in the production items/material for my own personal use. The items/material are legal to produce, own, possess and use/consume under all state and federal law. The items/material never cross state lines, they are never bought or sold, in fact they never leave my possession. The federal government claims that they can regulate my activities (including criminally prosecuting me) under the power of the interstate commerce clause.

Provide a rationale that would convince the Supreme Court to unanimously agree that my activity falls within the jurisdiction of the interstate commerce clause.

Since you believe that a change in national supply is not integral/necessary to the argument, you may not use that argument in your explanation.

[Sharkbite]

Let's say that I am engaged in the production items/material for my own personal use. The items/material are legal to produce, own, possess and use/consume under all state and federal law. The items/material never cross state lines, they are never bought or sold, in fact they never leave my possession. The federal government claims that they can regulate my activities (including criminally prosecuting me) under the power of the interstate commerce clause.

Lets use suppressors as our example (and i totally disagree with this ruling, but understand it).
I make (3D print) my own can. I live nextdoor to the plant that makes the material i use to 3D print this item. My own use… blah, blah, blah.
The Govt argument would be that if i hadnt made it…i would have had to BUY IT, and that affects interstate commerce.

Now i dont think (personally) that should be the case, but apparently some folks in black robes think so

[zukiphile]

You have difficulty seeing how the rationale of Wickard could be applied to an intrastate act where the act does not involve production, and you assert that production is integral to that rationale. Up thread I have noted that this exhibits a confusion between the rationale of Wickard and its fact pattern.

Having misunderstood the prior explanation, you misread the next one, miss the problems with your question, and repeat it.

Originally Posted by JohnKsa

The argument in Wickard explains how intrastate production falls under the commerce clause. It doesn't "extend it".

If that were not true, the Supreme Court would have, instead of agreeing unanimously that the prosecution was Constitutional, disagreed and explained why Wickard was an overstep and not within the jurisdiction of the federal government.

I mean, you can certainly hold the personal opinion that they got it wrong, but that's all it is--personal opinion. By definition, their unanimous agreement that Wickard was a constitutional prosecution, demonstrates that it does not extend the powers of Congress beyond the power of the commerce clause which allows them to regulate interstate commerce.

Emphasis added. Note that the assertion to which you respond is about the authority of Congress extending beyond commerce. Your response is about extending the commerce clause, a different thing, and is merely tautological.

Originally Posted by JohnKsa

The quote from Jackson goes on to state that to be under the power of Congress, an activity must "exert a substantial economic effect on interstate commerce".

To claim that production is not a necessary condition, you must come up with some way to explain how an exclusively intrastate activity could "exert a substantial economic effect on interstate commerce" without changing national supply.

No, I just have to be able to read and understand Wickard. Where you have just read the text of that case that tells you explicitly that “the subject of… “production,”… is, therefore, not material for purposes of deciding the question”, your assertion that production is integral to the rationale is plainly incorrect unless you believe that justice Jackson does not understand the rationale of his decision.

Originally Posted by JohnKsa

However you want to word it.

Good. The way I word it is that you have purported to find an “obvious” flaw in my explanation of the case to you, and read Wickard in support of the proposition that intrastate production is interstate commerce. Yet, Wickard says this nowhere. Like the once popular assertion that Heller upheld “reasonable restrictions” on firearms, the notion arises from a misreading of the case.

Originally Posted by JohnKsa

Ok, let's try it again, with a wording alteration that eliminates your objection but changes nothing material to the construct.

That is incorrect. Whether the activity involved is commerce is a central element in a commerce clause analysis, so that observation is material to the rationale.

Originally Posted by JohnKsa

Let's say that I am engaged in the production items/material for my own personal use. The items/material are legal to produce, own, possess and use/consume under all state and federal law. The items/material never cross state lines, they are never bought or sold, in fact they never leave my possession. The federal government claims that they can regulate my activities (including criminally prosecuting me) under the power of the interstate commerce clause.

You might like to give that challenge more thought. If the item is legal to produce, own, possess, use and consume under federal law, for what are you being criminally prosecuted?

A case does not arise unless the government is attempting to enforce an authority given to it under the commerce clause. An enforcement action where the item is federally legal to produce, own, possess, use and consume under all federal laws is not an example of an exercise of commerce clause power. To ask for an example of a valid exercise of this federal power and the underlying rationale for it requires some kind of restriction that your question forecloses.

Originally Posted by JohnKsa

Since you believe that a change in national supply is not integral/necessary to the argument, you may not use that argument in your explanation.

If you meant to ask for an example of an exercise of federal power under the commerce clause where a change in national supply is not integral to the exercise of that commerce clause power, we already have it.

In Gonzalez v. Raich, the cultivation was not an issue because one of the respondents engaged in no cultivation whatsoever. Nevertheless, her possession fell within federal authority under the Controlled Substances Act.

While the federal government presented arguments about the difficulties in distinguishing putatively local trade in the substance from the illicit market, the court was explicit about what it was doing.

In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding. Lopez, 514 U. S., at 557; see also Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276–280 (1981); Perez, 402 U. S., at 155–156; Katzenbach v. McClung, 379 U. S. 294, 299–301 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 252–253 (1964). Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U. S. C. §801(5), and concerns about diversion into illicit channels,[Footnote 33] we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to “make all Laws which shall be necessary and proper” to “regulate Commerce … among the several States.” U. S. Const., Art. I, §8. That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme.

https://supreme.justia.com/cases/federal/us/545/1/

Kindly note the last sentence.

Your intrastate sale of a used firearm would not exist within a safe haven from the exercise of federal power merely because you may assert that the sale would not alter production or supply. It would fall within the rationales of Wickard and Raich as a category of action, though entirely intrastate, that could “undercut the regulation of the interstate market in that commodity”.

Originally Posted by JohnKsa

I wondered how you would avoid answering the question.

You really didn’t. I had noted the Amended Gun free Zones Act which applies to used arms as well if they have some nexus with interstate commerce. If you review US. V. Lopez, you see an analysis of a restriction on intrastate possession and whether there is a connection to interstate commerce. Supply and production aren’t elements of that rationale.

[JohnKSa]

Kindly note the last sentence.

Kindly consider the idea of secondhand marijuana. Obviously a nonsensical concept. The activity I'm talking about does not involve changing supply in any way. Quite different from that case and every other case you've cited.

You might like to give that challenge more thought. If the item is legal to produce, own, possess, use and consume under federal law, for what are you being criminally prosecuted?

You do realize that the question you're asking is just a reworded version of the one I asked you, right? If not, let me point it out to you now. You're the one who needs to answer that question. For my part, I've already answered it more than once and explained my answer thoroughly and clearly.

You really didn’t.

Yes, I really did. I knew you wouldn't be able to admit you were wrong, I knew you would be driven to respond, and I knew you couldn't solve the problem without resorting to production/change in supply in spite of your objection to my assertion that it is a necessary condition. It was interesting to speculate about how you were going to try to dodge the question.

A case does not arise unless the government is attempting to enforce an authority given to it under the commerce clause. An enforcement action where the item is federally legal to produce, own, possess, use and consume under all federal laws is not an example of an exercise of commerce clause power. To ask for an example of a valid exercise of this federal power and the underlying rationale for it requires some kind of restriction that your question forecloses.

And I see you are still at it.

No, I just have to be able to read and understand Wickard.

You claim production/change in supply isn't necessary for prosecution under the rationale used in Wickard.

I've set up a problem based on the circumstances of Wickard and asked you to explain how to convince SCOTUS to unanimously agree that the prosecution is constitutional under the commerce clause without using the argument that I say is necessary but you claim isn't. Pretty straightforward.

[Aguila Blanca]

Have any of you noticed how many new laws start of by saying, "Because _____ is in interstate commerce, the Congress therefore yada, yada"?

They do that specifically and expressly so the federal government can stick its regulatory nose into things that it logically has no business interfering with. They get away with it because of the latitude the courts have given to the interstate commerce clause.

Putting aside the technical/legalistic sparring between JohnKSa and Zukiphile, if you really parse the federal attitude toward this it boils down to

"Even if you obtain all the raw materials in your own back yard, make the thing yourself in your own basement, and use it entirely on your own property, you are still affecting interstate commerce because [__BigCompany__] makes that same thingie in another state, so by making one yourself they don't have to make one to sell to you, so you have affected interstate commerce."

[JohnKSa]

Putting aside the technical/legalistic sparring between JohnKSa and Zukiphile, if you really parse the federal attitude toward this it boils down to

"Even if you obtain all the raw materials in your own back yard, make the thing yourself in your own basement, and use it entirely on your own property, you are still affecting interstate commerce because [__BigCompany__] makes that same thingie in another state, so by making one yourself they don't have to make one to sell to you, so you have affected interstate commerce." "Even if you obtain all the raw materials in your own back yard, make the thing yourself in your own basement, and use it entirely on your own property, you are still affecting interstate commerce because [__BigCompany__] makes that same thingie in another state, so by making one yourself they don't have to make one to sell to you, so you have affected interstate commerce."

Right--there's no need to get into the technical/legalistic weeds. Here's my original comment on the topic:

"Wickard v Filburn set the precedent that producing something, even if it stays within the boundary of a single state, is under the jurisdiction of the Feds because it alters the overall supply which affects other states. "

[zukiphile]

Originally Posted by Aguila Blanca

if you really parse the federal attitude toward this it boils down to

"Even if you obtain all the raw materials in your own back yard, make the thing yourself in your own basement, and use it entirely on your own property, you are still affecting interstate commerce...

That's a fair summary. How tenuous that link to interstate commerce can be is the battleground. I don't like the rationale of Wickard; it took the thin end of a wedge of prior cases on the subject and substantially disconnected the exercise of the federal power from the constitutional limit on the power. That gets you to Lopez and Congress asserting the power over something, including the possession of used firearms, that involves no commerce. It's looney that Lopez was a 5-4 decision.

Originally Posted by JohnKsa

Kindly consider the idea of secondhand marijuana. Obviously a nonsensical concept. The activity I'm talking about does not involve changing supply in any way. Quite different from that case and every other case you've cited.

That is incorrect. That marijuana not bought from a retailer or produced by a respondent in Raich resulted in a successful assertion of federal authority under the commerce clause is no more difficult to contemplate then a firearm not bought from a retailer or produced by the person who possesses it.

You do not distinguish your hypothetical from the one in Raich by declaring the facts of Raich to be “nonsensical”.

Originally Posted by JohnKsa

You do realize that the question you're asking is just a reworded version of the one I asked you, right? If not, let me point it out to you now. You're the one who needs to answer that question.

This was a direct question about your scenario. Rather than respond to it substantively, you have responded with an incorrect assertion about the question itself.

You have asked for a rationale in support of enforceable federal regulation against an act that is “legal to produce, own, possess and use/consume under all state and federal law”. I pose the question to allow you to reconcile the contradiction.

To understand the question as a mere restatement of your request is a misreading.

Originally Posted by JohnKsa

I knew you wouldn't be able to admit you were wrong, I knew you would be driven to respond, and I knew you couldn't solve the problem without resorting to production/change in supply in spite of your objection to my assertion that it is a necessary condition. It was interesting to speculate about how you were going to try to dodge the question.

You’ve again fallen back on your assertions about my motives, not the subject. You should avoid that.

Since the activity of one of the respondents in Raich was possession, not production, and the rationale in Raich didn’t depend on production, a trait you contend is integral to the rationale, what you “knew” turned out to be incorrect.

The ontological observation that the goods or services involved in commerce clause cases have come into being in one way or another, that every thing that is has come into being, isn’t an observation about the reasoning in commerce clause cases. That’s why you aren’t finding support for it in the caselaw.

Originally Posted by JohnKsa

I've set up a problem based on the circumstances of Wickard and asked you to explain how to convince SCOTUS to unanimously agree that the prosecution is constitutional under the commerce clause without using the argument that I say is necessary but you claim isn't. Pretty straightforward.

Since the fact pattern of Wickard involves federal regulation of activity that would not be permitted under the exercise of federal power involved, your scenario isn’t based on the circumstances of Wickard.

Moreover, where you have just read the text of that case that tells you explicitly that “the subject of… “production,”… is, therefore, not material for purposes of deciding the question”, an assertion that production is integral to the rationale is contradicted by Justice Jackson himself.

[Aguila Blanca]

Originally Posted by zukiphile

That's a fair summary. How tenuous that link to interstate commerce can be is the battleground. I don't like the rationale of Wickard; it took the thin end of a wedge of prior cases on the subject and substantially disconnected the exercise of the federal power from the constitutional limit on the power. That gets you to Lopez and Congress asserting the power over something, including the possession of used firearms, that involves no commerce. It's looney that Lopez was a 5-4 decision.

I agree it's tenuous. I don't like it. The fact that it's massive federal overreach is, IMHO, amply demonstrated by the presence of an interstate commerce clause introduction or preamble to so many federal laws that a sane person would probably agree should never BE federal laws. It was the proverbial camel's nose, and we now have just about the entire camel within the tent and nobody knows how to get it out.

[JohnKSa]

I don't like the rationale of Wickard...

I don't either. I think it was a bad decision. But that doesn't mean it can't be understood, and it also doesn't mean it doesn't have limitations.

One of those limitations is that it can't be applied to specifically intrastate activity that doesn't involve changing the national supply of an item/material because the change of supply is integral to the argument that brings the activity under the jurisdiction of the interstate commerce clause.

That marijuana not bought from a retailer or produced by a respondent in Raich resulted in a successful assertion of federal authority under the commerce clause is no more difficult to contemplate then a firearm not bought from a retailer or produced by the person who possesses it.

You didn't consider what I kindly asked you to consider or you would realize that it's impossible to use marijuana without changing the supply of marijuana. That's somewhat different from using a firearm.

Since the fact pattern of Wickard involves federal regulation of activity that would not be permitted under the exercise of federal power involved, your scenario isn’t based on the circumstances of Wickard.

The reason that there was a Wickard case in the first place was a difference of opinion of whether the activity could be regulated or not. Pointing that out does not invalidate the scenario I provided, it is merely a creative restatement of the reason for the exercise.

Let's try again. I'll further reword the problem to make the similarity to Wickard explicit, but still without making any changes at all to the relevant points. Not that I actually believe that you, an attorney, really couldn't understand how it was relevant as stated initially.

Let's say that I am engaged in the production items/material for my own personal use. The items/material are legal to own, possess and use/consume under all state and federal law. The items/material never cross state lines, they are never bought or sold, in fact they never leave my possession. I claim it's legal to produce the items/material because the interstate commerce clause doesn't apply. The federal government claims that they can regulate the production of the items/material (including criminally prosecuting me) under the power of the interstate commerce clause.

Provide a rationale that would convince the Supreme Court to unanimously agree that my activity falls within the jurisdiction of the interstate commerce clause.

Since you claim that a change in national supply is not integral/necessary to the argument used in Wickard, you may not use that argument in your explanation.

[44 AMP]

"Wickard v Filburn set the precedent that producing something, even if it stays within the boundary of a single state, is under the jurisdiction of the Feds because it alters the overall supply which affects other states. "

Pardon me for being stupid, but isn't that like saying everyone who doesn't have feet should be under Federal jurisdiction because they don't buy shoes??

Or perhaps we should all be under Federal jurisdiction because every woman we didn't get pregnant affects the population numbers??

Of course, every woman we did, affects those numbers too, so isn't this actually legal mumbo jumbo saying "damned if you do, and damned if you don't!" ??

[zukiphile]

Originally Posted by 44 AMP

Pardon me for being stupid, but isn't that like saying everyone who doesn't have feet should be under Federal jurisdiction because they don't buy shoes??

Or perhaps we should all be under Federal jurisdiction because every woman we didn't get pregnant affects the population numbers??

Of course, every woman we did, affects those numbers too, so isn't this actually legal mumbo jumbo saying "damned if you do, and damned if you don't!" ??

That's not far from the logic of some commerce clause cases. When challenges to the ACA were coming up, we saw the argument that not buying insurance had an effect on the medical services market, which is an interstate market. The diabetic without feet in CA has an effect on how many shoelace repair shops operate in NJ.

Originally Posted by JohnKsa

You didn't consider what I kindly asked you to consider or you would realize that it's impossible to use marijuana without changing the supply of marijuana. That's somewhat different from using a firearm.

That is incorrect. I considered you point and concluded that this shows that you still don't believe the Wickard Court's explanation of its own decision.

The federal action in Raich was not for use. I'm not hiding the ball; I just noted a few posts up,

Nevertheless, her possession fell within federal authority under the Controlled Substances Act.

Possession of a controlled substance or a firearm has the same influence on supply unless either is resold. The respondents in Raich were not sellers of controlled substances.

You will also observe that a firearm can be consumed by use. There are surely fewer 18th century firearms in circulation now than 200 years ago.

Originally Posted by JohnKsa

The reason that there was a Wickard case in the first place was a difference of opinion of whether the activity could be regulated or not. Pointing that out does not invalidate the scenario I provided, it is merely a creative restatement of the reason for the exercise.

No, John, my observation is not that the parties need to disagree for a case to exist.

The explanation is that there must be an assertion of federal power to be analogous to Wickard. In your scenario, the contradictory elements of which you continue to present, there is no federal claim of regulation per the terms of the scenario.

Originally Posted by JohnKsa at 59

Ok, let's try this from a different angle.

Originally Posted by JohnKsa at 61

Ok, let's try it again,...

Originally Posted by JohnKsa

Let's try again. I'll further reword the problem to make the similarity to Wickard explicit, but still without making any changes at all to the relevant points. Not that I actually believe that you, an attorney, really couldn't understand how it was relevant as stated initially.

Rather than have you "try again" with the same formula, it might be more productive for you to read this page and digest the comments about the dissimilarities of Wickard, Raich and your scenario.

If you are having a problem with what an attorney tells you about the law, you might consider that he isn't the problem.

[dogtown tom]

Ya'll are arguing using terms SCOTUS didn't....

Whether the subject of the regulation in question was "production", "consumption", or "marketing" is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. ... But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as "direct" or "indirect".

[JohnKSa]

The federal action in Raich was not for use.

Really.

"Held: Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. Pp. 6–31."

The explanation is that there must be an assertion of federal power to be analogous to Wickard. In your scenario, the contradictory elements of which you continue to present, there is no federal claim of regulation per the terms of the scenario.

Really.

" The federal government claims that they can regulate the production of the items/material (including criminally prosecuting me) under the power of the interstate commerce clause."

Rather than have you "try again" with the same formula...

The point of the exercise is to demonstrate that you can't/won't answer the question because it destroys your argument. By continuing to dodge the question, you're still making my point.

If you are having a problem with what an attorney tells you about the law, you might consider that he isn't the problem.

Oh, don't worry, I'm not claiming that you don't know the law, nor am I claiming I know it better than you.

My position is that you made a careless characterization of Wickard in your initial response to my comment and now you can't/won't back down even though, unfortunately, your offhand comment turns out to be essentially indefensible.

[zukiphile]

Originally Posted by JohnKsa

Really.

"Held: Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. Pp. 6–31."

Yes, really.

The CSA prohibits cultivation and use, but the second respondent hadn't cultivated any and wasn't prosecuted for use, but had her possession frustrated by the federal authority.

Did you not understand the difference between the broader authority upheld and what the second respondent had done?

Originally Posted by JohnKsa

Really.

" The federal government claims that they can regulate the production of the items/material (including criminally prosecuting me) under the power of the interstate commerce clause."

Yes, really.

You omitted the contradictory element of your scenario.

Originally Posted by JohnKsa

The items/material are legal to own, possess and use/consume under all state and federal law.

If that's so, there is no claim of a law to regulate it, some act against which to take an enforcement action.

Do you not understand the contradiction, or did you understand that contradiction when you omitted it in your recitation above?

Originally Posted by JohnKsa

My position is that you made a careless characterization of Wickard in your initial response to my comment and now you can't/won't back down even though, unfortunately, your offhand comment turns out to be essentially indefensible.

Originally Posted by zukiphile at post 52

That's how the grant of power should play out, but the Court in Wickard had other plans.

Given the facts of Wickard and its rationale, the regulation of intrastate activity is so clearly contemplated by the decision that the observation should be not just defensible but uncontroversial.

Originally Posted by JohnKsa

The point of the exercise is to demonstrate that you can't/won't answer the question because it destroys your argument. By continuing to dodge the question, you're still making my point.

The point you are making may be a different one.

[JohnKSa]

Did you not understand the difference between the broader authority upheld and what the second respondent had done?

I understand the ruling which is straightforward.

""Held: Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. Pp. 6–31."

They didn't rule on possession, they ruled on cultivation and use.

I suppose that a creative defense attorney might try to argue that a person was possessing marijuana purely as a collectible with no intent to use it, but I think that might be too much creativity to be credible.

Originally Posted by zukiphile at post 52
That's how the grant of power should play out, but the Court in Wickard had other plans.

Well, that was your first response, but it was the next one that sort of dug you into the hole you can't seem to get out of.

"While the facts of Wickard involved production, the rationale wasn't limited to production."

The fact is that Wickard, and all of the cases you have cited involve changing national supply, which is a necessary condition to regulating intrastate activities under the commerce clause.

You omitted the contradictory element of your scenario.

The contradictory element is that the government claims they can regulate my production and I contradict those claims.

"The items/material are legal to own, possess and use/consume under all state and federal law." (Notice that this does not include 'production' since that is the issue where the contradiction arises. The contradiction was initially implicit, but I changed it to be explicit when you objected to the initial wording.)

"I claim it's legal to produce the items/material because the interstate commerce clause doesn't apply. The federal government claims that they can regulate the production of the items/material (including criminally prosecuting me) under the power of the interstate commerce clause."

Clearly the two sentences set up a direct contradiction.