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Commerce Clause discussion

That being said, though, he wasn't nearly as expansive where it came to 9th Amendment unenumerated rights - here's an excerpt from his dissent in Griswold v. Connecticut, 381 US 479, 520 (1965):

That Amendment was passed not to broaden the powers of this Court or any other department of "the General Government," but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the "[collective] conscience of our people" is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar phenomenon that, for a period of a century and a half, no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Use of any such broad, unbounded judicial authority would make of this Court's members a day-to-day constitutional convention.
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I don’t agree with Black here… the wording of the 9th Amendment seems to indicate to me an obvious application to unenumerated individual rights which should be considered to have been incorporated by the ratification of the 14th Amendment. His description seems more applicable to the 10th Amendment than the 9th.... but it could support an argument for non-incorporation of a prospective 9th Amendment right to self-defense, assuming that’s your argument.
 
Cordelier said:
That being said, though, he wasn't nearly as expansive where it came to 9th Amendment unenumerated rights - here's an excerpt from his dissent in Griswold v. Connecticut, 381 US 479, 520 (1965):



I don’t agree with Black here… the wording of the 9th Amendment seems to indicate to me an obvious application to unenumerated individual rights which should be considered to have been incorporated by the ratification of the 14th Amendment. His description seems more applicable to the 10th Amendment than the 9th.... but it could support an argument for non-incorporation of a prospective 9th Amendment right to self-defense, assuming that’s your argument.
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I thank you for the substantive response. In answer to your query
Are you saying that you disagree with the incorporation of the 2nd Amendment? Or are you just addressing the application of the Commerce clause to preempt State and Local gun control laws?
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Yes to both.

First, I never favored the concept of blanket incorporation, in large part because it seems inapposite to the framework of the Second Amendment. I have always favored the interpretation that gives meaning to the entire amendment, rather than trying to minimize and elide half of it. Pretending that the militia clause was merely prefatory does serious violence to both the text itself and the canons of judicial construction. Incorporation requires consideration of each amendment by itself. Obviously the 9th and 10th Amendments can't be incorporated, neither can the 11th, as they are directed explicitly towards the interests of the States. In like manner, incorporation of the Second also doesn't make sense, as it has always been the State's who constitute the militias.

The commerce clause aspect of the question is relevant both to the issue and this thread. Where State and federal responsibility is shared, the State has a much bigger stake in the issue of preemption. Every State has legislation, for example, on where and how firearms may be carried. That is their prerogative, and within the sound authority of the Constitution (as well as clearly within the legislative history). That did not change with the passage of the 14th Amendment. Rather, the 14th extended applicability of certain provisions of the Constitution directly to the States, where such extension makes sense.

More to follow. Life intercedes.
 
NWRatCon said:
I tend to follow friend Cordelier's view that the right to keep and bear arms is really resident outside of the Second Amendment. The Second Amendment's acknowledgment was in the context of militias, and has to be read that way. Moreover, the treatment of firearms, and militias, by the States at the time the Amendment was drafted, has to play a role in its interpretation. In other contexts I've provided a good deal of that history, but it is immaterial to the current issue, I think.

I often found Justice Scalia's approach to legislative history to be opportunistic - he carefully avoids history that counters his conclusion and presents a very one-sided view of the record to reach it. That is why I have never found him the intellectual heavyweight his adherents describe. His arguments tend to be swiss-cheese like. Too many of his opinions require intellectual contortions to reach their ends to be persuasive. Heller, in my view, is a good example. There is far more history that demonstrates the expectation of government control over arms (and militias) than the limited history he recounts. Justice Stevens' dissent fills in much of the missing background.

But given my presumption that the right does exist, whether in the Second Amendment or otherwise, the question then becomes how to balance the interests of the governments (federal, State and local) that may impact on that right. There, I think, a reasonable argument can be had on what level of scrutiny, and government intrusion, is appropriate to the ends. That same argument, then, is also appropriate more generally to the Commerce Clause.

I look at both this way: Does the effort by Congress (or a State or local jurisdiction) fall within the ambit of their authority? That, I think, is where many Commerce Clause arguments may falter. Although I have substantive disagreements with our friend turtledude, I acknowledge that there are limitations on the federal authority over the State's purely parochial interests. Gun laws are something that I think, contrary to Heller and McDonald are clearly and historically within the States' ambit, and the 14th Amendment didn't change that. The federal government may also have an enforceable interest as well, whether that is resident in the Commerce Clause or one of its other enumerated powers. But enumerated powers have to be the touchstone for any discussion of federal authority within State boundaries, or without.
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are you pretending that the commerce clause was intended by the founders to allow such regulation.
 
TurtleDude said:
are you pretending that the commerce clause was intended by the founders to allow such regulation.
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I'm not pretending anything. This happens to be a Commerce Clause thread, so I was trying to address those questions, which is not where the 2nd Amendment is necessarily implicated.

Congress has many authorities well beyond the Commerce Clause to effectuate policies and affect conditions within States, as the citizens and denizens of the United States reside, by definition, within the several States. They are not insulated from either the protections or authorities of the United States government simply because they live within one or another State. Such a construction of the Constitution would be ludicrous (not that it hasn't been argued).

But, to finish an earlier thought, the States' authority to regulate keeping and bearing of arms should not be impacted in any way by federal preemption. That authority has always resided in the States, and nothing in the Constitution or its Amendments was ever intended to limit that authority (which is why Heller and McDonald are fundamentally erroneous). That does not, however, preclude the federal government from exercising independent authority to place restrictions upon certain actions under the Commerce Clause, or other, constitutional delegation. Essentially, either a federal or State authority may place certain restrictions upon firearms, or any other Constitutionally recognized rights, so long as a) they have a constitutional basis to do so, b) it is not unduly restrictive/burdensome, and c) there is at least a rational basis for exercising such authority.

I do, by the way, believe in a more expansive interpretation of the Commerce Clause than was expressed in Lopez. We are in the midst of a major contraction of that authority, as well as many others, by the current retrogressive majority. I've discussed in other threads the absolutely brutal effect the "Four Horsemen" had upon effective governance and constitutional interpretation, and we are about to enter a similar age, to our detriment.

Once again, family duty calls. I shall return.
 
NWRatCon said:
I'm not pretending anything. This happens to be a Commerce Clause thread, so I was trying to address those questions, which is not where the 2nd Amendment is necessarily implicated.

Congress has many authorities well beyond the Commerce Clause to effectuate policies and affect conditions within States, as the citizens and denizens of the United States reside, by definition, within the several States. They are not insulated from either the protections or authorities of the United States government simply because they live within one or another State. Such a construction of the Constitution would be ludicrous (not that it hasn't been argued).

But, to finish an earlier thought, the States' authority to regulate keeping and bearing of arms should not be impacted in any way by federal preemption. That authority has always resided in the States, and nothing in the Constitution or its Amendments was ever intended to limit that authority (which is why Heller and McDonald are fundamentally erroneous). That does not, however, preclude the federal government from exercising independent authority to place restrictions upon certain actions under the Commerce Clause, or other, constitutional delegation. Essentially, either a federal or State authority may place certain restrictions upon firearms, or any other Constitutionally recognized rights, so long as a) they have a constitutional basis to do so, b) it is not unduly restrictive/burdensome, and c) there is at least a rational basis for exercising such authority.

I do, by the way, believe in a more expansive interpretation of the Commerce Clause than was expressed in Lopez. We are in the midst of a major contraction of that authority, as well as many others, by the current retrogressive majority. I've discussed in other threads the absolutely brutal effect the "Four Horsemen" had upon effective governance and constitutional interpretation, and we are about to enter a similar age, to our detriment.

Once again, family duty calls. I shall return.
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Well if other amendments were incorporated, then the second should have been
 
TurtleDude said:
Well if other amendments were incorporated, then the second should have been
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That is an incredibly shallow (lack of) analysis. As I already noted, that approach would be nonsensical. How is the 9th Amendment supposed to be incorporated?
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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or the 10th?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
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or the 11th?
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
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The concept of universal incorporation just doesn't make sense, because these provisions, and the Second, address the balance of authorities between the State and federal governments. Instead, the court is required to consider the purpose and scope of each amendment then determine if it makes logical sense to extend that protection against the State government. It makes particularly no sense with regard to the Second, as the militias are, and remain, under State authority unless called to federal service.
 
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NWRatCon said:
That is an incredibly shallow (lack of) analysis. As I already noted, that approach would be nonsensical. How is the 9th Amendment supposed to be incorporated? or the 10th? or the 11th? The concept of universal incorporation just doesn't make sense, because these provisions, and the Second, address the balance of authorities between the State and federal governments. Instead, the court is required to consider the purpose and scope of each amendment then determine if it makes logical sense to extend that protection against the State government. It makes particularly no sense with regard to the Second, add the militias are, and remain, under State authority unless called to federal service.
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the second certainly should have been one of the first amendments incorporated.
 
NWRatCon said:
I thank you for the substantive response. In answer to your query Yes to both.

First, I never favored the concept of blanket incorporation, in large part because it seems inapposite to the framework of the Second Amendment. I have always favored the interpretation that gives meaning to the entire amendment, rather than trying to minimize and elide half of it. Pretending that the militia clause was merely prefatory does serious violence to both the text itself and the canons of judicial construction. Incorporation requires consideration of each amendment by itself. Obviously the 9th and 10th Amendments can't be incorporated, neither can the 11th, as they are directed explicitly towards the interests of the States. In like manner, incorporation of the Second also doesn't make sense, as it has always been the State's who constitute the militias.

The commerce clause aspect of the question is relevant both to the issue and this thread. Where State and federal responsibility is shared, the State has a much bigger stake in the issue of preemption. Every State has legislation, for example, on where and how firearms may be carried. That is their prerogative, and within the sound authority of the Constitution (as well as clearly within the legislative history). That did not change with the passage of the 14th Amendment. Rather, the 14th extended applicability of certain provisions of the Constitution directly to the States, where such extension makes sense.

More to follow. Life intercedes.
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Look at Justice Black's reasoning for total incorporation, though... and look at the ramifications. An incorporated 2nd Amendment still has the linkage to the militia clause, only now it protects the 14th Amendment "privilege" of US Citizens to be members of the militia, regardless of State law. I think that's fair, given the Supremacy clause. On the other hand, Black's formulation doesn't incorporate the 9th Amendment... and so the States would still have the right to regulate self-defense arms as they saw fit. Personally, I disagree with Black on non-incorporation of the 9th Amendment, but it seems to be squarely in line with what you're advocating.

As far as the Commerce clause linkage with the 14th Amendment goes... I think that went out the window with the 1873 Slaughterhouse Cases, didn't it?
 
Cordelier said:
Look at Justice Black's reasoning for total incorporation, though... and look at the ramifications. An incorporated 2nd Amendment still has the linkage to the militia clause, only now it protects the 14th Amendment "privilege" of US Citizens to be members of the militia, regardless of State law. I think that's fair, given the Supremacy clause. On the other hand, Black's formulation doesn't incorporate the 9th Amendment... and so the States would still have the right to regulate self-defense arms as they saw fit. Personally, I disagree with Black on non-incorporation of the 9th Amendment, but it seems to be squarely in line with what you're advocating.

As far as the Commerce clause linkage with the 14th Amendment goes... I think that went out the window with the 1873 Slaughterhouse Cases, didn't it?
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:lamo:lamo
 
Cordelier said:
Look at Justice Black's reasoning for total incorporation, though... and look at the ramifications. An incorporated 2nd Amendment still has the linkage to the militia clause, only now it protects the 14th Amendment "privilege" of US Citizens to be members of the militia, regardless of State law. I think that's fair, given the Supremacy clause. On the other hand, Black's formulation doesn't incorporate the 9th Amendment... and so the States would still have the right to regulate self-defense arms as they saw fit. Personally, I disagree with Black on non-incorporation of the 9th Amendment, but it seems to be squarely in line with what you're advocating.

As far as the Commerce clause linkage with the 14th Amendment goes... I think that went out the window with the 1873 Slaughterhouse Cases, didn't it?
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We're getting into some pretty subtle territory here (and that's kind fun, huh?). Both the Commerce Clause and the 14th Amendment represented a fundamental change in the balance of authorities between the federal and State governments. The courts have, historically, had a difficult time in addressing these issues because the ramification of the issues are so fraught. In the Slaughterhouse cases, the Supreme Court was struggling with this balance in the shadow of the Civil War, and in the midst of reconstruction. In many respects, they got it both wrong and right, and that had a profound impact on the interpretation of the Constitution for decades, if not permanently.

First, IMHO, Justice Miller was, I think, too quick to dismiss the due process elements of the claims in the case. That error has been, eventually, corrected over the Court's history to a large extent. But, Justice Miller's treatment of the Privileges and Immunities clause was far more profound and has indelibly tainted the record. In short, I believe he was wrong. (I follow Laurence Tribe's approach to the issue [frankly, I follow his views on a LOT of issues]). Indeed, it is kind of amazing that many conservative scholars accept it, as it goes against the grain of a lot of their philosophy, but I don't want to digress. In substance, Miller's analysis turns on the selection of conjunctions - And or Or, and the wording of the 14th Amendment phrase - "citizens of the United States" vs. Article IV's "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." (the so-called "comity clause"). That, in my view, is nonsensical.

When the 14th Amendment was drafted, the authors chose the formulation, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." At that time, the Constitution, including Article IV (Section 2, cl.1), had been in force, and interpreted, for nearly a century. In Corfield v. Coryell, Justice Washington (note, not a Supreme Court decision, per se) addressed the question most directly, and his formulation has been adopted in dozens of cases since, as:
those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.
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In substance, then, those rights were universal and not tied to the nature of the sovereign (State or federal). That had been the interpretation that had governed before the Slaughterhouse cases were decided, and was the basis for the 14th Amendment itself.

I'll note also, since this is a thread on the commerce clause, that Justice Washington addressed that issue as well in his opinion:
The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise[.]
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The fundamental point being that residence in one State or another did not affect the nature of the right held, nor limit the "Protection by the government" of that right. Justice Washington did not distinguish which government was responsible for that protection, because he anticipated that it was the responsibility of all governments. That's why I think the Slaughterhouse interpretation is inherently wrong.

(cont'd)
 
I think the Court could have, and should have, reached the same conclusion it did without doing violence to the interpretation of the Privileges and Immunities of the citizenry - both State and federal. I commend for those who are interested, two articles which address the Slaughterhouse cases and interpretation: Slaughter-House Five: Views of the Case by Professor David S. Bogen (Hastings Law Journal); and Setting Incorporationism Straight:
A Reinterpretation of the Slaughter-House Cases By Kevin Newsom (Yale Law Journal).

Now I'm going to head back to the commerce clause.
 
I lied - another comment on privileges and immunities:

The reason I said that the interpretation conflicted with conservative views is this: Rights are, by their nature, fundamental. The conservative view had always been that they exist outside of government and are merely reflected in the Constitution as existing (natural law). That central tenet has been overcome in recent decades by a different kind of "conservatism" - strict constructionism. It comes down to the fundamental nature of rights and the role of the government: does the government protect existing rights, or does it grant those rights? Strict constructionism, by its very nature, turns the inquiry on its head from the conservative viewpoint and takes the position that those protections only exist to the extent that they are specifically mentioned (sort of writing the 9th Amendment out of the Constitution altogether). That, fundamentally, is why I have always disagreed with Justice Scalia's precis.
 
I'm going to go back to a premise I raised earlier to put it in some context: The Commerce Clause (like the 14th Amendment) represented a fundamental change in the balance of authorities between the federal and State governments.

Prior to the Constitution, the United States was ruled by the Articles of Confederation (Our FIRST Constitution). The Articles of Confederation were based upon the precept that each State/colony was a separate sovereign and they were merely bound loosely in a cooperative confederation. It was a failure of this formulation that resulted in our current Constitution, and the creation of a strong central government. Among the authorities specifically granted to that central government was the regulation of commerce - "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

The first and last of these authorities are relatively straightforward, as they are dealing with "outside" entities (as they were interpreted at the time). But the regulation of commerce "among the several States" was a new and profoundly different thing. In my view, it was that, more than anything but the Supremacy clause, that subordinated the interests of the several States to the will of the national authority. And, it is upon that knife's edge that the balance of federal and State authority largely rests.

There are different ways of interpreting that general grant of authority over "commerce", though, and that gets us to the nub of this thread, I think. Was it a grant, generally over "commerce" and the list of subjects merely exemplary? Or were they discrete powers subsumed within a general category? The distinction is subtle but fundamental. How deeply into commerce can the federal authority delve? Does it displace the authority of the several States when those authorities conflict? Or, are conflicts to be resolved by balancing the interests of these separate sovereigns?

These are the questions that I think get to the heart of commerce clause considerations. I don't think that, absent a federal enactment, a State is precluded from affecting commerce within its domain (e.g., establish an "apple commission" or "potato commission", or regulating the production of products, such as safety regulation, or pollution mitigation). Nor do I think that the federal authority is limited to the borders between the States but can, instead, enact regulations that are universal application wherever located (e.g., OSHA standards, EPA standards and whatnot). Some of those standards may directly implicated commerce, but others may result from a combination of authorities (e.g., "general welfare" or "national defense"). This admixture of powers makes it difficult to tease apart what the basis for particular laws rests upon (e.g., NASA).

But, sticking strictly to commerce, where does State authority end, and where can federal authority intrude, and do they conflict? We are about to enter an era where these questions are going to be tested at the highest levels. For example, California has the largest economy of any of the United States. (If California were a sovereign nation, it would rank as the world's sixth largest economy between India and the (present) United Kingdom.) It thus has tremendous interests in internal commerce, pollution, safety and other considerations. It has enacted emission and many other standards that are different than (mostly stricter than) those in the United States at large. Can the United States impose (preempt) looser standards in the interest of "interstate" commerce, when so much of the impacts of that commerce are internal to California? I think we'll soon find out.
 
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Aberration said:
What about things not produced? [emoji16]
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Like?

Basically if one state would have a justifiable beef with something someone in another state is doing or not doing that's covered. Almost anything tied to the economy that states could potentially get in an argument over.
 
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danielpalos said:
Our welfare clause is General and we have a Commerce Clause in particular, that implies Commercialization of any given solution to any given exigency.
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what does that mean in normal conversational English?
 
TurtleDude said:
what does that mean in normal conversational English?
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He has no idea. He read it once and parrots it out to make him sound smart.

Ask him for an example of a "common" policy and one of a "general" policy.

He'll not give one, he'll just repeat himself.
 
Cordelier said:
Looks like I was jumping the gun in my last post (no pun intended).

I think this point right here is the bone of our contention. I question how specific the limitations are of Congress' power to regulate the militia. The only limitation specified in the militia clause itself is that Congress can't "govern" the militia unless it is called into active duty... but aside from that, the power to "organize, arm, and discipline" it - which exist at all times - seem pretty sweeping to me. When you marry that with the Congressional power to pass the Laws it deems "necessary and proper" to fulfill it's powers, I think that gives Congress an exceptional amount of deference (albeit, not absolute) in the field of gun regulation.

Does an individual right to keep and bear arms exist completely outside the need for a well regulated militia? Yes, I think that's undeniable.... but I also think you have to look outside of the 2nd Amendment to find it.

so there's that, and it's completely outside of the context of the militia. The key here would be for the courts to find a way of distinguishing what constitutes a militia weapon and what constitutes a self-defense weapon and then applying the appropriate level of scrutiny.
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Yet, the 2nd Amendment, like the 1st Amendment, Third, Fourth, Fifth, Sixth, etcetera, is a limit on federal power, including a limit on Congressional power. The Bill of Rights were not conceived or enacted to highlight or acknowledge any power of the federal government. Rather, the Bill of Rights were conceived as limits on the very federal power you read into one of them. The 2nd Amendment protects both an armed militia and individual right to bear arms, the latter ensuring the former, both preserved from federal power like the other rights in the BOR.

After the Constitutional Convention of 1787, the arduous task of ratification of the U.S. Constitution besieged the newspapers, dominated town halls, and the dissemination of pamphlets by Federalists and Anti-Federalists permeated the 13 States. One of the most pronounced objections to the constitution was a lack of a Bill of Rights. Federalists opined a Bill of Rights was unnecessary as any power not granted was denied. Ergo, since the federal government was vested with any power to regulate speech, it couldn’t infringe upon free speech rights. Eventually, Madison and other Federalists conceded and agreed to a BOR.

The BOR expressed rights of the people or States and the BORs were limits on federal power. The Second Amendment then is a limit on federal power. The 2nd Amendment protected an armed militia and an individual right to bear arms that ensured an armed militia existed.

“Militia” was understood as “all males physically capable of acting in concert for the common defense.” Heller v D.C. See also “Framers Second Amendment.” The “militia” preexisted the Constitution. The “militia” was active during the Revolutionary War, and persisted to exist up to drafting and ratification of the Constitution. Hence, the “militia” existed at the state level and within the states. From this we can logically deduce the “militia” was “all males physically capable of acting in concert for the common defense” within each state, such that NY had its militia, Georgia had a militia, etcetera.

From all those facts above rationally allows the conclusion the 2nd Amendment is protecting the “militia” that exists at the state level and within the states, from federal power. To ensure the entity of “all males physically capable of acting in concert for the common defense” at the state level stays armed if the states so choose, the 2nd Amendment protects and individual right of the people to bear arms. The individual right, being a limit on federal power, ensures that the men who make up that “entity” at the state level aren’t disarmed by the federal government, thereby negated the existence of a militia.

That serves the purpose of “security of a free state,” which, from British experience, the framers and people were all too accustomed to attempts at disarmament by the central government to silence dissent and any revulsions over infringements of their rights. They personally witnessed disarmament prior to the Revolutionary War, as Britain sought to disarm those areas they rendered troublesome. Precedent of the Stuarts’ attempts at disarmament also informed their view.

Those facts provide strong evidence that the 2nd Amendment is a limit on federal power, and not acknowledging federal power or inviting it, and the 2nd Amendment protects the existence of an armed militia at the state level by ensuring an individual right to bear arms.

This means the federal government doesn’t have “wide discretion” when in the “field of gun regulation.” The federal government as about as much “wide discretion” in “gun regulation” as they do the in the field of “speech” in the 1st Amendment.


Sent from my iPhone using Tapatalk
 
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danielpalos said:
lol. I can usually use the Standard definition; that is how I know.
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Then what is the definition of the appeal to ignorance ?

Also your examples of a "general" clause policy/law, and your example of a "common" clause policy/law.
 
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