Mods: I placed this in GD since this thread, if it develops, might assume a GDish tone soon…
A Ninth Circuit ruling yesterday held that the federal government may not ban a homemade machine gun because they were never in the stream of commerce (due to the Commerce Clause being used as the basis for most of such regulation). The general prediction being that most prohibitive laws which aren’t really based on ‘commerce’ might get thrown out. There is speculation that this ruling may pave the way for home-grown personal-use marijuana and mushrooms, although that seems unlikely, since THC and psilocybin are controlled substances. But, if the authority of the Feds to control those substances is due to application of the Commerce clause, then this ruling has important implications.
Can any of the Dope legal experts shed light on what this ruling might mean?
It means that two of the most conservative judges on the 9th Circuit ended up on a panel hearing a commerce clause case, and decided to turn the clock back to about 1934. Keep an eye out for rehearing en banc, because that’s a pretty questionable analysis under modern commerce clause doctrine, even post Lopez.
Wow, that’s a particularly interesting ruling, considering that it won’t be long before you’ll be able to take a DVD or its future equivalent containing a public-domain design into a corner factory and have them stamp or laser cut a facsimile for you on the same day.
One guy might want a brass cannon; the next guy might like a model 1878 Gatling… with a separate order for a laundry machine motor, and a separate order for a mount, and separate bids on Ebay for a laser sighting scope and a fan-powered hang glider.
Obviously, we have to outlaw all of those things in order to remain safe.
The states can and would pass the same law without missing a beat, if they don’t have one already. That could be done in one day. It’s not “homemade machine gun extravaganza” in the US.
This is between the feds and the states. I’m getting out of the way. Generally speaking…
Commerce Clause rationale is used in modern times as a primary means of justifying federal powers or federal jurisdiction. To what degree any decision would limit that power remains to be seen. This area of law is being revisited by the appellate courts, I think justifiably.
The power to regulate “interstate commerce” is an enumerated power of Congress in I,8. No doubt, the federal government has that power. The extent of the power would surprise most non-lawyers.
It is used to claim jurisdiction over a number of so-called “reserve powers” of the states, much of it criminal law.
The federal drug laws are a good example. Your state laws would be there to prevent total anarchy – unless you want that. The federal government could still get you for moving drugs across state lines. The marijuana clubs in CA, using in-state marijuana, will seize on this opinion – IMO.
The idea was, FF wise, to let each state have significant autonomy. Slavery and race wasn’t an area where it should have applied – massive understatement: fund. rights., Civil War, death, destruction, unrest, KKK, etc… – but was. Marijuana laws, OTOH.
To study the history of the Commerce Clause is to study the expansion in federal power throughout modern history. I’m not going to go get the sick chickens or downstream rationales out of hiding. I’ll just wait and see what happens.
I wonder when interpreting the Constitution literally became strictly a conservative thing?
This was the right decision, and it should be extended to all matters that are not interstate commerce.
The 1934 interpretation effectively gave total power to the federal government, except for what was strictly prohibited it by the Bill of RIghts. No one can seriously argue that this was the intent of the Founders. Their clearly written intent was to give only those powers which the Constitution enumerated to the federal government. All other powers belonged to the states and individuals. An interpretation that effectively grants all powers EXCEPT those prohibited to it directly contradicts the plain meaning of the 9th and 10th amendments.
I believe the federal courts should get out of the commerce clause business.
The simple, hard truth is that the power to regulate interstate commerce is, from a strictly logical point of view, effectively the power to regulate everything. If the “affects test” is appropriate, then Wickard (obliquely referred to by Desmos) is a perfectly logical decision.
Yet everyone pretty much agrees that Wickard and cases like it violate all manner of common sense. Of course that isn’t interstate commerce; of course it’s silly to suggest that it is. But no one can formulate an effective legal test that captures the things we intuitively understand to be “interstate commerce” without also capturing lots of things that we intuitively understand aren’t – like home-grown wheat.
Intuitive understandings are better handled by Congress than the federal courts; legislators are, after all, not bound by stare decisis. But a sense has grown up around Congress that constitutional matters are strictly for the courts to decide, and that they should just do whatever the hell they want and let the judiciary sort the constitutional niceties out. And the judiciary has helped that sense along by placing their seal of approval on legislation like the wheat caps in Wickard.
So the Supreme Court should simply announce that what is or is not interstate commerce is now a political question, and they will no longer entertain legal challenges on commerce clause grounds. That would at least deprive Congress of the patina of judicial approval whenever they pass an iffy commerce clause-based law; Congress might even have to discuss whether or not their legislation is appropriate given American concepts of federalism and constitutionally limited federal powers.
Yes, thank goodness for Judge Kaczinski and his willingness to literally interpret the “Congress shall make no Law respecting the Regulation of Homemade Machine Guns” clause.
Wait! Isn’t the Ninth Circuit that horrible, liberal sham of a Court that decided that the Pledge of Allegiance was unconstitutional thus proving themselves to be misguided stooges of the Commie Will to Power?
So how come they came down on the far-gun-nut side of the debate on this one?
Actually, the Second Amendment argument was disposed of in about four sentences. The court followed binding 9th Circuit precedent that says there is no individual right to possess firearms under the Second Amendment. That it was a gun case unbdoubtedly helped with the conservative panel, but had no direct effect on the outcome of the appeal.
Yes, thank goodness for Judge Kaczinski and his willingness to literally interpret the “Congress shall make no Law respecting the Regulation of Homemade Machine Guns” clause.
Regardless of how you feel about that, machine guns weren’t the issue. The issue was whether the federal government had exceeded its constitutional limits. State governments can still make it illegal. There is just no role for the federal government in this. Do you want littering to become a federal crime too?
Remember that the same government you allow to ban guns despite Constitution limits can also ban abortion.
That’s exactly the problem: Lopez and this 9th Circuit case notwithstanding, the courts haven’t been “reigning them in,” at least on commerce clause issues. I’d rather the courts remain silent than give Congress the patina of judicial approval.
And I don’t think a test can be formulated to “reign Congress in” that makes any sense – interstate commerce touches literally everything.
N.B., I’m not advocating a complete judicial withdrawal on all constitutional challenges, but rather only on challenges based on the commerce clause.
Oh, so the constitutional standard is what you “want,” or what you think would be a good idea? No, I don’t think so. The question is whether the scope of the federal authority to regulate commerce, not whether you like it when they do so in a particular instance.
Nope. See Roe v. Wade; Planned Parenthood v. Casey.
Yeah, but the problem with pre-New Deal commerce clause jurisprudence is that it wasn’t based on meaningful distinctions – it amounted to the wholly arbitrary, ad hoc categorization of some things as “interstate commerce” and others as “not interstate commerce.” It’s when one tries to fashion a principled test that the whole shebang starts to crumble.
