Trying to understand 10th amendment and Commerce Clause and HR 38 / reciprocity

vicGT · February 4, 2017, 07:16 PM

(If this should be in the "status of HR 38" thread, please move it)

You all are my go to for law and civil rights questions

I'm trying to understand if and how HR 38 would fit into the legal landscape of federal vs state powers, if it became law as it is currently written.

Every state says you can bear concealed arms, so since it is unanimous, no state has an objection to the concept, just some details. But just because it is in every state doesn't necessarily mean the federal government has any authority over the subject, or does it? Doesn't the federal government still have to come from one of its enumerated powers to do anything?

HR 38 is saying, if I'm reading it right, that the Commerce Clause is the source of authority for what it is doing. In some cases, the Commerce Clause confers a lot of power, but sometimes not. I'm having a hard time understanding if it's the Raich case (very powerful) or the Lopez case (not as powerful)...I can't seem to reconcile the cases. I imagine that is old hat for you folks, so please help me understand how they fit together.

On the state side, the 10th amendment has broad language, and sounds very powerful, but many articles I've been reading say it is getting a Rodney Dangerfieldish lack of respect. If the Commerce Clause fails to give the authority for HR 38 for some reason, it seems like the 10th amendment should prevent HR 38, since there's no other enumerated power for HR 38 to rest on (explicitly claimed in the bill, please correct me if I'm wrong, and do they have to write in the bill which power they want to use?), but only if the 10th amendment is not being given second class treatment. Are there any 10th amendment cases you can recommend I read that will help me understand this situation better?

I hope this is making some sense, thanks in advance for help on how to frame all this in my mind if I am completely lost in the weeds.

Vic1951 · February 5, 2017, 01:26 AM

Presidents have long gotten around the constitution by using their commerce and transportation powers. Do not want guns, ban the interstate delivery of guns or put a heavy tax on it. I read a long article on this once and it was amazing how Presidents enforce their will by controlling commerce and transportation.

**Aguila Blanca** · February 5, 2017, 03:25 AM

https://en.wikipedia.org/wiki/Commerce_Clause

February 4, 2017, 07:16 PM	#1
vicGT Member Join Date: January 15, 2017 Posts: 31	Trying to understand 10th amendment and Commerce Clause and HR 38 / reciprocity (If this should be in the "status of HR 38" thread, please move it) You all are my go to for law and civil rights questions I'm trying to understand if and how HR 38 would fit into the legal landscape of federal vs state powers, if it became law as it is currently written. Every state says you can bear concealed arms, so since it is unanimous, no state has an objection to the concept, just some details. But just because it is in every state doesn't necessarily mean the federal government has any authority over the subject, or does it? Doesn't the federal government still have to come from one of its enumerated powers to do anything? HR 38 is saying, if I'm reading it right, that the Commerce Clause is the source of authority for what it is doing. In some cases, the Commerce Clause confers a lot of power, but sometimes not. I'm having a hard time understanding if it's the Raich case (very powerful) or the Lopez case (not as powerful)...I can't seem to reconcile the cases. I imagine that is old hat for you folks, so please help me understand how they fit together. On the state side, the 10th amendment has broad language, and sounds very powerful, but many articles I've been reading say it is getting a Rodney Dangerfieldish lack of respect. If the Commerce Clause fails to give the authority for HR 38 for some reason, it seems like the 10th amendment should prevent HR 38, since there's no other enumerated power for HR 38 to rest on (explicitly claimed in the bill, please correct me if I'm wrong, and do they have to write in the bill which power they want to use?), but only if the 10th amendment is not being given second class treatment. Are there any 10th amendment cases you can recommend I read that will help me understand this situation better? I hope this is making some sense, thanks in advance for help on how to frame all this in my mind if I am completely lost in the weeds.

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February 5, 2017, 01:26 AM	#2
Vic1951 Member Join Date: January 30, 2017 Location: I am in the South Posts: 30	Presidents have long gotten around the constitution by using their commerce and transportation powers. Do not want guns, ban the interstate delivery of guns or put a heavy tax on it. I read a long article on this once and it was amazing how Presidents enforce their will by controlling commerce and transportation.

February 5, 2017, 03:25 AM	#3
Aguila Blanca Staff Join Date: September 25, 2008 Location: CONUS Posts: 18,457	https://en.wikipedia.org/wiki/Commerce_Clause