# Ninth Circuit ruling regarding Commerce clause **URL:** \ **Category:** Great Debates\ **Created:** [November 15, 2003, 3:39am UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373 "2003-11-15T03:39:35Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![II\_Gyan\_II](https://avatars.discourse-cdn.com/v4/letter/i/bbe5ce/32.png) [@II\_Gyan\_II](https://boards.straightdope.com/u/II_Gyan_II)\ **Post date:** [November 15, 2003, 3:39am UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/1 "2003-11-15T03:39:35Z")
**Mods** : I placed this in GD since this thread, if it develops, might assume a GDish tone soon… A Ninth Circuit [ruling](http://www.ca9.uscourts.gov/ca9/newopinions.nsf/90B5FFB18A092A6F88256DDD000000FE/%24file/0210318.pdf?openelement) 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? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 15, 2003, 5:43am UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/2 "2003-11-15T05:43:37Z")
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_. ---
**Author:** ![Sofa\_King](https://avatars.discourse-cdn.com/v4/letter/s/58956e/32.png) [@Sofa\_King](https://boards.straightdope.com/u/Sofa_King)\ **Post date:** [November 15, 2003, 6:01am UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/3 "2003-11-15T06:01:59Z")
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. ---
**Author:** ![Beagle](https://avatars.discourse-cdn.com/v4/letter/b/85f322/32.png) [@Beagle](https://boards.straightdope.com/u/Beagle)\ **Post date:** [November 15, 2003, 6:17am UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/4 "2003-11-15T06:17:29Z")
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. ---
**Author:** ![Desmostylus](https://avatars.discourse-cdn.com/v4/letter/d/c57346/32.png) [@Desmostylus](https://boards.straightdope.com/u/Desmostylus)\ **Post date:** [November 15, 2003, 6:22am UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/5 "2003-11-15T06:22:55Z")
> [@](#): > > Obviously, we have to outlaw all of those things in order to remain safe. Not to mention stamping out the growing of wheat in your backyard. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [November 15, 2003, 11:39am UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/6 "2003-11-15T11:39:47Z")
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. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [November 15, 2003, 3:16pm UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/7 "2003-11-15T15:16:32Z")
Personally, and philosophically, I’m in favor and agreement with this ruling. However, I am curious to see what the side effects would be. Any theories? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [November 15, 2003, 3:34pm UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/8 "2003-11-15T15:34:39Z")
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. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 15, 2003, 4:17pm UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/9 "2003-11-15T16:17:11Z")
> [@](#): > > \*Originally posted by adaher \* > 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. 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. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 15, 2003, 10:41pm UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/10 "2003-11-15T22:41:05Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*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. \*\* You think Congress cares whether their laws are constitutional? If we didn’t have the courts to reign them in who knows what they’d do. ---
**Author:** ![II\_Gyan\_II](https://avatars.discourse-cdn.com/v4/letter/i/bbe5ce/32.png) [@II\_Gyan\_II](https://boards.straightdope.com/u/II_Gyan_II)\ **Post date:** [November 16, 2003, 1:29am UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/11 "2003-11-16T01:29:10Z")
Now, can anyone here postulate on how this ruling affects the Controlled Substances Act, in particular? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 16, 2003, 3:59am UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/12 "2003-11-16T03:59:03Z")
I postulate that it affects federal drug laws in no way whatsoever. What, you seriously think the federal judiciary is suddenly going to decide drugs are okay by them? Fat chance. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [November 16, 2003, 4:40am UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/13 "2003-11-16T04:40:02Z")
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? 😃 ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 16, 2003, 5:57am UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/14 "2003-11-16T05:57:54Z")
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. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [November 16, 2003, 1:17pm UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/15 "2003-11-16T13:17:05Z")
**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. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [November 16, 2003, 3:17pm UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/16 "2003-11-16T15:17:12Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*You think Congress cares whether their laws are constitutional? If we didn’t have the courts to reign them in who knows what they’d do. \*\* 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. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 16, 2003, 3:27pm UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/17 "2003-11-16T15:27:50Z")
> [@](#): > > \*Originally posted by adaher \* > 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? 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. > [@](#): > > Remember that the same government you allow to ban guns despite Constitution limits can also ban abortion. Nope. _See Roe v. Wade; Planned Parenthood v. Casey_. ---
**Author:** ![Beagle](https://avatars.discourse-cdn.com/v4/letter/b/85f322/32.png) [@Beagle](https://boards.straightdope.com/u/Beagle)\ **Post date:** [November 16, 2003, 4:11pm UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/18 "2003-11-16T16:11:17Z")
Here is a nice highly [condensed summary](http://caselaw.lp.findlaw.com/data/constitution/article01/28.html) of the law in this area. This paragraph is particularly action-packed. > [@](#): > > There was a long period in the Court’s history when a majority of the Justices, seeking to curb the regulatory powers of the Federal Government by various means, **held that certain things were not encompassed by the commerce clause because they were either not interstate commerce or bore no sufficient nexus to interstate commerce. Thus, at one time, the Court held that mining or manufacturing, even when the product would move in interstate commerce, was not reachable under the commerce clause; 588 it held insurance transactions carried on across state lines not commerce, 589 and that exhibitions of baseball between professional teams that travel from State to State were not in commerce, 590 and that similarly the commerce clause was not applicable to the making of contracts for the insertion of advertisements in periodicals in another State 591 or to the making of contracts for personal services to be rendered in another State. 592** Later decisions either have overturned or have undermined all of these holdings. The gathering of news by a press association and its transmission to client newspapers are interstate commerce. 593 The activities of a Group Health Association, which serves only its own members, are ‘‘trade’’ and capable of becoming interstate commerce; 594 the business of insurance when transacted between an insurer and an insured in different States is interstate commerce. 595 But most important of all there was the development of, or more accurately the return to, 596 the rationales by which manufacturing, 597 mining, 598 business transactions, 599 and the like, which are antecedent to or subsequent to a move across state lines, are conceived to be part of an integrated commercial whole and therefore subject to the reach of the commerce power. [bolding mine] The numbers are clickable links in the article. Wee! It is possible, was, to find ways to regulate commerce “among the several states” without regulating everything. ---
**Author:** ![Beagle](https://avatars.discourse-cdn.com/v4/letter/b/85f322/32.png) [@Beagle](https://boards.straightdope.com/u/Beagle)\ **Post date:** [November 16, 2003, 4:21pm UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/19 "2003-11-16T16:21:28Z")
Just to be clear, > [@](#): > > To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; that was it. Did you blink? If so, you may have missed it. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [November 16, 2003, 4:42pm UTC](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373/20 "2003-11-16T16:42:58Z")
> [@](#): > > \*Originally posted by Beagle \* > \*\*It is possible, was, to find ways to regulate commerce “among the several states” without regulating everything. \*\* 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. [Next page](https://boards.straightdope.com/t/ninth-circuit-ruling-regarding-commerce-clause/213373.md?page=2)