Commerce Clause discussion

[Samwise]

Bottom line is this... Lopez was wrongly decided because it only addressed the Commerce Clause. Which is fine, fair enough. But where it falls short is that it didn't address the overlapping scope the prefatory clause of the Second Amendment gives Congress. The question should have been a direct 2nd Amendment issue... is the right to keep and bear arms purely an individual right? If so, then strict scrutiny should have been applied to the Gun-Free Zones Schools Act.... but it would also mean that the prefatory clause was "wasted words". My contention is that the individual right to keep and bear arms must be balanced with the Congressional power to organize, arm, and discipline a well-regulated militia. In short, it is a hybrid right and so exists on a lower plane than than the other rights enshrined within the Bill of Rights not qualified by a similar clause... as such, the appropriate level of judicial review of the Gun-Free Zones School Act should have been intermediate scrutiny.

The Government should have made a two-pronged argument using Congress' power via the Commerce Clause and the Militia Clause.

Are you a state?

 

[Aberration]

This is the same debate we've had God knows how many times already, Turtle... read the militia clause again. You're conflating the Congressional power to govern the militia (which exists only when it is employed in the service of the United States) with it's powers to organize, arm, and discipline it (which exist at all times).

You say power. I say obligation. Organizing, arming and disciplining would be nothing other than opening Guard drills to all eligible and willing citizens. And I 100% support not only opening such training but also extending employer protections for reporting.

 

[Cordelier]

The militia clause has absolutely no relevance to Lopez

Only if you interpret the Second Amendment with the prefatory clause in the exact same way that you would without it.

 

[Cordelier]

You say power. I say obligation. Organizing, arming and disciplining would be nothing other than opening Guard drills to all eligible and willing citizens. And I 100% support not only opening such training but also extending employer protections for reporting.

I'd support that as well.... only I figure organizing, arming and disciplining ought to mean whatever Congress wants it to mean (subject to judicial review, of course).

 

[NotreDame]

Bottom line is this... Lopez was wrongly decided because it only addressed the Commerce Clause. Which is fine, fair enough. But where it falls short is that it didn't address the overlapping scope the prefatory clause of the Second Amendment gives Congress. The question should have been a direct 2nd Amendment issue... is the right to keep and bear arms purely an individual right? If so, then strict scrutiny should have been applied to the Gun-Free Zones Schools Act.... but it would also mean that the prefatory clause was "wasted words". My contention is that the individual right to keep and bear arms must be balanced with the Congressional power to organize, arm, and discipline a well-regulated militia. In short, it is a hybrid right and so exists on a lower plane than than the other rights enshrined within the Bill of Rights not qualified by a similar clause... as such, the appropriate level of judicial review of the Gun-Free Zones School Act should have been intermediate scrutiny.

The Government should have made a two-pronged argument using Congress' power via the Commerce Clause and the Militia Clause.

The militia clause in the 2nd Amendment can reasonably be read and understood as something other than a reference to Congress’s power to regulate the militia without resorting to “wasted words” and not potentially being a limitation on the individual right.

Justice Scalia, in D.C. v Heller, argued in the majority opinion for a reading of the 2nd Amendment prefatory clause that isn’t a limitation on the individual right. “The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose....But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.” So, the purpose isn’t a limitation on the individual right.

In making his argument, Justice cited to, inter alia, the research compiled by Professor Eugene Volokh into the use of prefatory clauses as a purpose that doesn’t limit the individual right.

Professor Volokh articulated in a law review article that a common feature in 1790 was the use of prefatory clauses/purpose clause, and announcing an individual right, but the prefatory clause wasn’t a limit on the individual right.

As Professor Volokh observed, “Rhode Island's 1842 constitution, its first, provides

The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .
Compare this to the Second Amendment's
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The 1784 New Hampshire Constitution says
In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . .

The 1780 Massachusetts Constitution -- followed closely by the 1784 New Hampshire Constitution and the 1786 Vermont Constitution -- says

The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.

I list dozens more such provisions in the Appendix.

These provisions, I believe, shed some light on the interpretation of the Second Amendment:

They show that the Second Amendment should be seen as fairly commonplace, rather than strikingly odd....Congress thus may not deprive people of the right to keep and bear arms, even if their keeping and bearing arms in a particular instance doesn't further the Amendment's purposes.” Volokh cites to several other instances where prefatory clauses are used in relation to announcing an individual right.

The Commonplace Second Amendment


So, a reasonable reading of the 2nd Amendment is that there is an individual right to bear arms, and the militia clause isn’t a limitation on this individual right.


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[NotreDame]

This is the same debate we've had God knows how many times already, Turtle... read the militia clause again. You're conflating the Congressional power to govern the militia (which exists only when it is employed in the service of the United States) with it's powers to organize, arm, and discipline it (which exist at all times).

Even conceding this point, it doesn’t extend to Congress a power of prohibiting individuals from possessing/owning a firearm for private enjoyment and use and from doing so within so many feet of a school.

A power to “arm” would include the power to mandate certain people possess/own certain weapons in relation to regulating them as part of a militia. Congress did so in 1792 through the the Militia Act and required members to possess/own certain weaponry, powder, etcetera. “That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder

However, the power to “arm” the militia, that requires them to have certain weapons in relation to the militia, logically doesn’t extend to a power of Congress to deny individual possession/ownership of other kinds of weapons for their private enjoyment and use, or to forbid such possession within so many feet of schools.


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[TurtleDude]

Only if you interpret the Second Amendment with the prefatory clause in the exact same way that you would without it.

you are pretending that the first clause somehow expanded the power of the federal government beyond Article One Section 8

 

[TurtleDude]

Even conceding this point, it doesn’t extend to Congress a power of prohibiting individuals from possessing/owning a firearm for private enjoyment and use and from doing so within so many feet of a school.

A power to “arm” would include the power to mandate certain people possess/own certain weapons in relation to regulating them as part of a militia. Congress did so in 1792 through the the Militia Act and required members to possess/own certain weaponry, powder, etcetera. “That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder

However, the power to “arm” the militia, that requires them to have certain weapons in relation to the militia, logically doesn’t extend to a power of Congress to deny individual possession/ownership of other kinds of weapons for their private enjoyment and use, or to forbid such possession within so many feet of schools.


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exactly: just as congress may mandate a certain uniform for those in active duty-that does not give congress the power to tell those who are not in active service, what they may wear or own in terms of clothes

 

[Cordelier]

The militia clause in the 2nd Amendment can reasonably be read and understood as something other than a reference to Congress’s power to regulate the militia without resorting to “wasted words” and not potentially being a limitation on the individual right.

Justice Scalia, in D.C. v Heller, argued in the majority opinion for a reading of the 2nd Amendment prefatory clause that isn’t a limitation on the individual right. “The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose....But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.” So, the purpose isn’t a limitation on the individual right.

In making his argument, Justice cited to, inter alia, the research compiled by Professor Eugene Volokh into the use of prefatory clauses as a purpose that doesn’t limit the individual right.

Professor Volokh articulated in a law review article that a common feature in 1790 was the use of prefatory clauses/purpose clause, and announcing an individual right, but the prefatory clause wasn’t a limit on the individual right.

As Professor Volokh observed, “Rhode Island's 1842 constitution, its first, provides

The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .
Compare this to the Second Amendment's
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The 1784 New Hampshire Constitution says
In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . .

The 1780 Massachusetts Constitution -- followed closely by the 1784 New Hampshire Constitution and the 1786 Vermont Constitution -- says

The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.

I list dozens more such provisions in the Appendix.

These provisions, I believe, shed some light on the interpretation of the Second Amendment:

They show that the Second Amendment should be seen as fairly commonplace, rather than strikingly odd....Congress thus may not deprive people of the right to keep and bear arms, even if their keeping and bearing arms in a particular instance doesn't further the Amendment's purposes.” Volokh cites to several other instances where prefatory clauses are used in relation to announcing an individual right.

The Commonplace Second Amendment


So, a reasonable reading of the 2nd Amendment is that there is an individual right to bear arms, and the militia clause isn’t a limitation on this individual right.


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All due respect to Justice Scalia and yourself, ND... but that's bunk. If we are to interpret the Second Amendment as a purely individual right, then there would have been no need for a prefatory clause at all. To suggest it was included "to announce a purpose" is ridiculous. The importance of the militia was amply demonstrated by the repeated references to it within the main body of the Constitution... so why then would there be a specific need to "announce" it once again?

Answer me this... where else in the Constitution - other than the preamble - is there a similar "announcement of purpose"? Does the First Amendment have an "announcement of purpose" for any of it's enshrined rights? Does it say "Freedom of discourse being a necessary condition for a free State... "? Of course it doesn't. It doesn't have to... the right speaks for itself, and so the First Amendment just states it. The same thing goes for every other enumerated right. So what is it about the right to keep and bear arms that makes it so different? Well, if you want to talk about original intent... I think you have to take into account current and recent events occurring around the same time the Bill of Rights were set to paper.... most notably Shays' Rebellion. An armed insurrection against the United States put down by the militia of the United States. I'd say it was pretty obvious that the founders intent would have been to empower individuals to do the latter while limiting their ability to do the former going forward, wouldn't you?

 

[TurtleDude]

All due respect to Justice Scalia and yourself, ND... but that's bunk. If we are to interpret the Second Amendment as a purely individual right, then there would have been no need for a prefatory clause at all. To suggest it was included "to announce a purpose" is ridiculous. The importance of the militia was amply demonstrated by the repeated references to it within the main body of the Constitution... so why then would there be a specific need to "announce" it once again?

Answer me this... where else in the Constitution - other than the preamble - is there a similar "announcement of purpose"? Does the First Amendment have an "announcement of purpose" for any of it's enshrined rights? Does it say "Freedom of discourse being a necessary condition for a free State... "? Of course it doesn't. It doesn't have to... the right speaks for itself, and so the First Amendment just states it. The same thing goes for every other enumerated right. So what is it about the right to keep and bear arms that makes it so different? Well, if you want to talk about original intent... I think you have to take into account current and recent events occurring around the same time the Bill of Rights were set to paper.... most notably Shays' Rebellion. An armed insurrection against the United States put down by the militia of the United States. I'd say it was pretty obvious that the founders intent would have been to empower individuals to do the latter while limiting their ability to do the former going forward, wouldn't you?

two points

1) you cannot find any evidence from any founder that suggests congress was intended to have any such power to deny private citizens their choice of arms

2) based on that-it is obvious those who try to mutate and manipulate the militia acts into "proving" a power that never was intended, are always people who start with the premise that they want the federal government to be able to limit or ban private citizens from owning some or all firearms, and work backwards in an effort to force the second amendment to allow that.

 

[Cordelier]

Even conceding this point, it doesn’t extend to Congress a power of prohibiting individuals from possessing/owning a firearm for private enjoyment and use and from doing so within so many feet of a school.

A power to “arm” would include the power to mandate certain people possess/own certain weapons in relation to regulating them as part of a militia. Congress did so in 1792 through the the Militia Act and required members to possess/own certain weaponry, powder, etcetera. “That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder

However, the power to “arm” the militia, that requires them to have certain weapons in relation to the militia, logically doesn’t extend to a power of Congress to deny individual possession/ownership of other kinds of weapons for their private enjoyment and use, or to forbid such possession within so many feet of schools.


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I'm not saying that an individual right to firearm ownership for use outside of a militia context doesn't exist. Of course it exists. If you take the 2nd Amendment and combine it with the 4th Amendment, it gives a solid basis for arguing that individuals have a 9th Amendment unenumerated right to possess firearms for self defense, for example. That's why I would have concurred with the majority decision in Heller.

What I am saying is that the right to keep and bear arms, as enumerated by the 2nd Amendment taken by itself, only exists within the context of providing for the well-regulated militia over which the Constitution gives Congress the power to organize, arm, and discipline.

That being said, I differ with your interpretation of the Congressional power to "arm" the militia... I don't think it extends beyond the plain meaning of the text - Congress has the power, at it's discretion, to provide arms to the militia. That's it. I don't think the power to "arm" has any bearing whatsoever on the ability of individuals to keep and bear their own personal arms. However, I do think the Congressional powers to "organize" and especially "discipline" - being distinct and separate powers granted to it - can and do have a direct bearing on the individual right.

 

[Cordelier]

you are pretending that the first clause somehow expanded the power of the federal government beyond Article One Section 8

Not at all... I'm suggesting that the prefatory clause links the right to keep and bear arms to the powers granted to Congress in Article I §8. There is no expansion. The meaning is clear and it should not be ignored or minimized.

 

[Cordelier]

two points

1) you cannot find any evidence from any founder that suggests congress was intended to have any such power to deny private citizens their choice of arms

2) based on that-it is obvious those who try to mutate and manipulate the militia acts into "proving" a power that never was intended, are always people who start with the premise that they want the federal government to be able to limit or ban private citizens from owning some or all firearms, and work backwards in an effort to force the second amendment to allow that.

On Point #1 - Why would I need to? The inclusion of the prefatory clause within the text is all the evidence of original intent that is required. If the Founders intended the individual right to exist on it's own merits, then they wouldn't have modified Madison's original draft.

Your Point #2 is ridiculous.

 

[Cordelier]

exactly: just as congress may mandate a certain uniform for those in active duty-that does not give congress the power to tell those who are not in active service, what they may wear or own in terms of clothes

Once again, that's covered under the Congressional power to "govern" the militia, which is separate and distinct from it's powers to "organize, arm, and discipline" it.

 

[Aberration]

I'd support that as well.... only I figure organizing, arming and disciplining ought to mean whatever Congress wants it to mean (subject to judicial review, of course).

Not whatever. For instance they can’t say it means it grants them the power to confiscate arms.

 

[Cordelier]

Not whatever. For instance they can’t say it means it grants them the power to confiscate arms.

They can under certain circumstances. If you were convicted of a felony, for instance. It wouldn't even have to be a firearm-related felony, would it?

 

[Aberration]

They can under certain circumstances. If you were convicted of a felony, for instance. It wouldn't even have to be a firearm-related felony, would it?

You don’t need that Act to limit the rights of felons.

 

[Rich2018]

You don’t need that Act to limit the rights of felons.

here in the Constitution does it say convicted felons can't have citizen rights ?

 

[TurtleDude]

Once again, that's covered under the Congressional power to "govern" the militia, which is separate and distinct from it's powers to "organize, arm, and discipline" it.

and that has absolutely nothing to do with the rights of private citizens

 

[Rich2018]

and that has absolutely nothing to do with the rights of private citizens

I think you'll find that the 2nd amendment uses the militia as an excuse to establish gun rights.

 

[TurtleDude]

I think you'll find that the 2nd amendment uses the militia as an excuse to establish gun rights.

I think you fail to understand that the founders did not create a federal government that had the power to interfere with gun rights

 

[Rich2018]

I think you fail to understand that the founders did not create a federal government that had the power to interfere with gun rights

I think you'll find that congress has definitely passed laws affecting your gun rights.

 

[Cordelier]

and that has absolutely nothing to do with the rights of private citizens

That'd be the case if the prefatory cause didn't exist.....but it does, and so you must draw the conclusion that the militia clause is directly linked to the 2nd Amendment.

 

[Cordelier]

I think you fail to understand that the founders did not create a federal government that had the power to interfere with gun rights

Guns don't have rights.

 

[Aberration]

here in the Constitution does it say convicted felons can't have citizen rights ?

Rights are violated with due process. Locking people up violates their rights. The continued loss of other rights after incarceration is part of that punishment.