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Thread: Commerce clause: The ultimate evil?

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    Regular Member Batousaii's Avatar
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    Commerce clause: The ultimate evil?

    Looking through some of proposed laws today, and took note that much of the anti-gun legislation cites it’s authority to do so through the commerce clause “Article I, Section 8, Clause 3 of the United States Constitution”.

    ~ So it would seem to me that this commerce clause has been greatly abused, over used, and should be the subject of intense scrutiny by the people of the United States, constitutional scholars, privatized lawyers, as well as the Supreme Court of the United States. How is it that we can to allow this clause to be the end all / say all of the law of the land? How is it that this clause can be used to wield such broad ranged and far reaching legislation at the whims of the federal government? It would seem to me to be a king pin to the omnipotent power structure that we have allowed the US Government to build under our noses.

    What could be done to limit the power of this clause, and possibly subdue the limitless reach it has? Correct me if I am wrong, but NFA34 and GCA68 also derive their power from this clause as well. In fact, it seems almost all major federal firearms laws do so. If the Commerce clause was greatly limited, those could be found to be un-constitutional almost instantly.

    I think that we, as gun owners, and people of liberty, need to look at a more offensive play book. Instead of constantly defending ourselves from the power hoarders, we need to start deconstructing some of the primary tools they use to hoard the power. Limiting the power of the commerce clause might be a good way to approach this. .. Un do the foundation that is being used by the anti-gun, ant-liberty crowd, and then begin repealing major gun laws that should be viewed as un-constitutional.

    Thoughts?

    Bat


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    Regular Member tombrewster421's Avatar
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    Commerce clause: The ultimate evil?

    I agree but have no clue how to accomplish it.
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    Quote Originally Posted by tombrewster421 View Post
    I agree but have no clue how to accomplish it.
    +1
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    Campaign Veteran gogodawgs's Avatar
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    A constitutional amendment.
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    Regular Member Batousaii's Avatar
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    Quote Originally Posted by gogodawgs View Post
    A constitutional amendment.

    I think this is a good avenue. An amendment preventing the commerce clause from bearing itself against, or infringing upon anything that is clearly or previously controlled or defined in the bill of rights. Effectively leverage the power of “Shall not be infringed” as written in the Second Amendment against the power of the commerce clause to make the “right to keep and bear arms” exempt and with immunity from regulation by or from the commerce clause.
    Last edited by Batousaii; 02-09-2013 at 09:45 PM.
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    Regular Member Whitney's Avatar
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    Legislative Contact

    Quote Originally Posted by Batousaii View Post
    I think this is a good avenue. An amendment preventing the commerce clause from bearing itself against, or infringing upon anything that is clearly or previously controlled or defined in the bill of rights. Effectively leverage the power of “Shall not be infringed” as written in the Second Amendment against the power of the commerce clause to make the “right to keep and bear arms” exempt and with immunity from regulation by or from the commerce clause.
    Perhaps Matt Shea could provide some insight. I have exchanged emails with him on this topic but have not broached the idea of attempting an amendment.

    Whitney
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    Regular Member Freedom1Man's Avatar
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    Quote Originally Posted by gogodawgs View Post
    A constitutional amendment.
    It should not be needed.

    Congress is acting outside is limited powers. You must go back to the intent of the clause to understand it's legal effect.

    How would another amendment help?

    How would you word it?

    "To regulate Commerce with foreign Nations, and among the several States, and
    with the Indian Tribes;"

    "To regulate," did that not mean to make regular?
    "A well regulated,..."



    Here, http://econfaculty.gmu.edu/wew/articles/03/abuse.html
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

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    Commerce clause: The ultimate evil?

    Federalists promote use of the commerce clause to gather power. Others like it because it promotes uniformity across the states. You hear those claims everyday, from folks on both side of gun issues. One side calls for NY-style bans everywhere, the other calls for Arizona-style constitutional carry nationwide. By removing the differences and effectively creating one state, choices are removed and governing becomes entirely a national affair.

    The abuse of the clause doesn't mean we need to change the words, we just need to elect people who are willing to scale back federal power. An example of good compromise on an issue is the FOPA provisions to allow interstate transport of guns giving uniform, maximum requirements. States are free to require less, but not authorized to require more. This prevents accidental violations and allows transport, even across states which otherwise prohibit such arms.

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    Quote Originally Posted by nonameisgood View Post
    The abuse of the clause doesn't mean we need to change the words, we just need to elect people who are willing to scale back federal power. An example of good compromise on an issue is the FOPA provisions to allow interstate transport of guns giving uniform, maximum requirements. States are free to require less, but not authorized to require more. This prevents accidental violations and allows transport, even across states which otherwise prohibit such arms.
    first bit bolded(sp?) by me.

    I must disagree with this.
    The rampant abuse of any power by the government necessitates the removal of said power.
    It is my opinion that the commerce clause should be stricken from the constitution.

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    Regular Member Freedom1Man's Avatar
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    Quote Originally Posted by normuser View Post
    first bit bolded(sp?) by me.

    I must disagree with this.
    The rampant abuse of any power by the government necessitates the removal of said power.
    It is my opinion that the commerce clause should be stricken from the constitution.
    So, because the government missuses firearms, firearms should be banned too?
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

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    Regular Member WalkingWolf's Avatar
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    If we could cut the federal money fabrication, the commerce clause would be used more appropriately. It takes phantom money to pay for all these unconstitutional laws, take that away and we would again have limited government.
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    Quote Originally Posted by Freedom1Man View Post
    So, because the government missuses firearms, firearms should be banned too?
    No, that is a false analogy.
    I stated in my prior post:
    "The rampant abuse of any power by the government necessitates the removal of said power.
    It is my opinion that the commerce clause should be stricken from the constitution."

    The subject is a power granted to the federal government (the commerce clause). The premise is that if the power is abused, then the power should be removed (stricken).

    Your statement:
    "So, because the government missuses firearms, firearms should be banned too?"

    The subject is an object (firearms). The premise is that if the object is misused by the government, then the object should be removed from the people (banned).
    That is not the same as what I stated.

    Also, By masking your discourse as a question on weather firearms should be banned as-well the implication is that I have called for a ban on something, which is not true.

    Simply put, Your twisting of words is not welcome.

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    Quote Originally Posted by Batousaii View Post
    Looking through some of proposed laws today, and took note that much of the anti-gun legislation cites it’s authority to do so through the commerce clause “Article I, Section 8, Clause 3 of the United States Constitution”.

    ~ So it would seem to me that this commerce clause has been greatly abused, over used, and should be the subject of intense scrutiny by the people of the United States, constitutional scholars, privatized lawyers, as well as the Supreme Court of the United States. How is it that we can to allow this clause to be the end all / say all of the law of the land? How is it that this clause can be used to wield such broad ranged and far reaching legislation at the whims of the federal government? It would seem to me to be a king pin to the omnipotent power structure that we have allowed the US Government to build under our noses.

    What could be done to limit the power of this clause, and possibly subdue the limitless reach it has? Correct me if I am wrong, but NFA34 and GCA68 also derive their power from this clause as well. In fact, it seems almost all major federal firearms laws do so. If the Commerce clause was greatly limited, those could be found to be un-constitutional almost instantly.

    I think that we, as gun owners, and people of liberty, need to look at a more offensive play book. Instead of constantly defending ourselves from the power hoarders, we need to start deconstructing some of the primary tools they use to hoard the power. Limiting the power of the commerce clause might be a good way to approach this. .. Un do the foundation that is being used by the anti-gun, ant-liberty crowd, and then begin repealing major gun laws that should be viewed as un-constitutional.

    Thoughts?

    Bat


    You could probably get a lot more fast support to restrict the commerce clause because commerce clause abuse in all areas combined touches so many people. Then once that is restricted, the gun restrictions will have their foundations removed by default.

    The point would be to advocate as Americans for limiting the commerce clause, as compared to advocating as gun owners.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

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    Regular Member Freedom1Man's Avatar
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    Quote Originally Posted by normuser View Post
    No, that is a false analogy.
    I stated in my prior post:
    "The rampant abuse of any power by the government necessitates the removal of said power.
    It is my opinion that the commerce clause should be stricken from the constitution."

    The subject is a power granted to the federal government (the commerce clause). The premise is that if the power is abused, then the power should be removed (stricken).

    Your statement:
    "So, because the government missuses firearms, firearms should be banned too?"

    The subject is an object (firearms). The premise is that if the object is misused by the government, then the object should be removed from the people (banned).
    That is not the same as what I stated.

    Also, By masking your discourse as a question on weather firearms should be banned as-well the implication is that I have called for a ban on something, which is not true.

    Simply put, Your twisting of words is not welcome.
    The courts have allowed the misapplication of power. The corporations have funded those who wish to misapply the power.

    The power was to maintain untaxed trade between the states. So if you remove that power, Washington can lay a tax on non-Washington apples, Arizona could tax non AZ oranges or only oranges from California and congress could do nothing about it.

    Without the power there might be a transport tax for everything passing through Nebraska, or any other state.

    With out the clause a truck driver from one state might only be able to work 40 hours per week and another might be able to work 60 hours per week while another might not have any limit.

    Please understand the consequences of the actions of which you advocate before you put them into motion I understand your frustration I really do.

    But it is the courts have have allowed the misapplication of the power and that is what should be attacked.

    The behavior that you suggest is no better than those who oppose the private ownership of firearms.
    Last edited by Freedom1Man; 02-10-2013 at 09:33 PM.
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    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by Freedom1Man View Post
    So, because the government missuses firearms, firearms should be banned too?
    "Firearms" aren't a section of the defining document of the Federal government.

    Quote Originally Posted by WalkingWolf View Post
    If we could cut the federal money fabrication, the commerce clause would be used more appropriately. It takes phantom money to pay for all these unconstitutional laws, take that away and we would again have limited government.
    There's something to be said for this.

    Quote Originally Posted by Citizen View Post
    You could probably get a lot more fast support to restrict the commerce clause because commerce clause abuse in all areas combined touches so many people. Then once that is restricted, the gun restrictions will have their foundations removed by default.

    The point would be to advocate as Americans for limiting the commerce clause, as compared to advocating as gun owners.
    I agree.

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    Commerce clause: The ultimate evil?

    Quote Originally Posted by Freedom1Man View Post
    ...
    But it is the courts have have allowed the misapplication of the power and that is what should be attacked.
    ....
    Actually, it was/is the executive branch that misapplied the clause. The courts did allow it, but our best course of action is elections, which primarily address executives And those judges they appoint (so much for separation of powers).

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    Regular Member Freedom1Man's Avatar
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    Quote Originally Posted by nonameisgood View Post
    Actually, it was/is the executive branch that misapplied the clause. The courts did allow it, but our best course of action is elections, which primarily address executives And those judges they appoint (so much for separation of powers).
    The courts still allowed it. .... wow.
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

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    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by Ca Patriot View Post
    There is no way the federal government will do anything to limit the commerce clause because its what is used to justify about 95% of what the federal government does.
    Yup.

    Gotta purge congress, first.

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    Commerce clause: The ultimate evil?

    Quote Originally Posted by Freedom1Man View Post
    The courts still allowed it. .... wow.
    Yes, but the courts didn't DO it. The executive hatched and executed plans, and the Congress either legislated or failed to legislate appropriately. In this case, it takes three to tango. Any one branch could have killed the overreach.

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    Regular Member Batousaii's Avatar
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    Quote Originally Posted by nonameisgood View Post
    <snip>... In this case, it takes three to tango. Any one branch could have killed the overreach.
    - So how do we get one of the branches (or preferably more than one) to "do their job" as public servants, and limit the commerce clause's power properly.
    - I don't think the commerce clause should be 100% repealed, I am sure it has it's place if used properly, but it does indeed need to be greatly limited and tightly controlled by "We the People". Is there a mechanic that could be forced upon the supreme court and used to unhinge the commerce clause from the second amendment, or other areas that are being improperly applied?
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    Regular Member Whitney's Avatar
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    Firearms are specifically Exempt

    Last year I wrote to the legislature with regard to Representative Matt Shea’s Bill known as HB 1990 and suggested a way to put a large sum of money into our economy through the repeal of Federal excise tax on firearms. The reply to my writing suggested the commerce clause would not permit Washington State to do this.

    I have been scratching my head on this commerce clause for a while, what follows is a brief summary. The long version is attached as a PDF.


    Title 18 Part 1 Chapter 1 Section 10 defines commerce as follows;
    The term “interstate commerce”, as used in this title, includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia. The term “foreign commerce”, as used in this title, includes commerce with a foreign country.

    Title 18 Part 1 Chapter 44 Section 921 defines commerce as follows;
    (1) The term “person” and the term “whoever” include any individual, corporation, company, association, firm, partnership, society, or joint stock company.
    (2) The term “interstate or foreign commerce” includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State. The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone).

    Section 921 is specifically related to firearms and is very different from section 10.
    I believe the federal excise tax is not authorized based on different definitions of the commerce clause.



    Q. Why is there such a difference between these definitions of commerce?
    A. Regulation of commerce is not a nationwide concept and cannot be applied to the States.


    Q. What does any place in a State mean?
    A. The “places” mentioned in S 921 are the places noted in section 7. Federal lands that are not within the jurisdiction of the State, however, they are within the boundaries of the State.


    Q. Why is commerce between any place within a State (S921) different than commerce between one state (S 10)?
    A. For the purpose of Ch 44 Congress has defined “State” as “the District of Columbia, the Commonwealth of Puerto Rico , and the possessions of the United States; all territorial.


    Here is how it reads after clarification, as it pertains to Ch 44.
    The term “interstate or foreign commerce” includes commerce between any area of land under federal jurisdiction that is within a State and any area of land under Federal jurisdiction that is outside the State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia.
    Reference to place in Ch44 S 921 is a place within a State or outside a State, that is under the exclusive legislative jurisdiction of Congress as per Article 1 Section 8 Clause 17 of the U. S. Constitution.
    The interstate and foreign commerce referred to in Ch 44 S 921 is limited and only applies between such places. The Federal Government has no police powers regarding commerce of firearms as applied to Ch 44.
    In short the Federal Government is not authorized to collect tax on firearms under the commerce clause unless the transfer is in places defined in section 7 of title 18.


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    Regular Member Freedom1Man's Avatar
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    Quote Originally Posted by nonameisgood View Post
    Yes, but the courts didn't DO it. The executive hatched and executed plans, and the Congress either legislated or failed to legislate appropriately. In this case, it takes three to tango. Any one branch could have killed the overreach.
    I never said that they did do it.

    They are the last government level protection though. The final protection is something we cannot really talk about on this forum.
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

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    Regular Member John Hardin's Avatar
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    Quote Originally Posted by normuser View Post
    I must disagree with this.
    The rampant abuse of any power by the government necessitates the removal of said power.
    It is my opinion that the commerce clause should be stricken from the constitution.
    Stricken? No, that is an overreaction. Regulation of some factors of interstate commerce are good and proper: standards for weights and measures, contracts, product labeling, punishment of misleading or fraudulent interstate marketing, and the prevention of interstate tariffs by a state seeking to protect local producers from out-of-state competitors are all things the federal government should have power over.

    The abuse stems from thinking that once something has ever crossed a state line in commercial trade, it's forever after subject to federal control; that if something could cross a state line it's properly subject to federal control; or, worse yet, as was shockingly upheld by Roosevelt's court, that totally private production that somehow affects something else that is or could be involved in interstate commerce becomes subject to federal control. Wage and price controls, production quotas or limits, and subsidies also need explicit limits or to be put explicitly off-limits.

    It just needs to have boundaries explicitly set rather than implied; this is the weakness of a lot of the Constitution - for example, the "general welfare" clause.

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    Commerce clause: The ultimate evil?

    Quote Originally Posted by Whitney View Post
    ...The Federal Government has no police powers regarding commerce of firearms as applied to Ch 44.
    In short the Federal Government is not authorized to collect tax on firearms under the commerce clause unless the transfer is in places defined in section 7 of title 18.


    ~Whitney
    There is a bill here in Texas that would exempt intrastate manufacture and sale of guns, ammo, and accessories from federal regulation. Currently, there are various state laws that recognize the federal rules for certain things.

    Quote Originally Posted by Freedom1Man View Post
    I never said that they did do it.

    They are the last government level protection though. The final protection is something we cannot really talk about on this forum.
    I think we agree.

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    Quote Originally Posted by nonameisgood View Post
    There is a bill here in Texas that would exempt intrastate manufacture and sale of guns, ammo, and accessories from federal regulation.
    Several states already have such laws. The feds are unimpressed.

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