Wall Street Journal: "Alan Gura - How a Young Lawyer Saved the Second Amendment"

imported post

bobestes wrote:

I have found no clause in the constitution that specificly grants to the federal government the power to restrict or regulate the manufacture, production, sale, or possation of any product of commodity.

Click to expand...

uh, commerce clause?

imported post

I always thought that one of the requirements for statehood is that the citizens of a candidate state must have a republican form of government with protection of individual rights.

Seems to me that covers incorporation right there, but of course since the Constitution doesn't lay out what exactly is the definition of a right, there will always be arguing.

Gura has stated, and even Mike apparently believes, that even enumerated rights are subject to "reasonable" restrictions and regulations. Says that where in the constitution, or Declaration of Ind. for that matter?

Rights are rights, regulations are concoctions of humans to control otherhumans. Making it illegal to falsely shout "fire" in a crowded theatre is not a restriction on free speech rights; since the shouter never had the right to start a panic in the first place, he had no right to shout "fire".

Now, I am a realist, and I understand what Mr. Gura is saying, but you just know that the various state governments will all come up with different versions of "reasonable". I guess it's better to have 50 versions, some good and some bad, than one big bad one.

imported post

Tomahawk wrote:

Gura has stated, and even Mike apparently believes, that even enumerated rights are subject to "reasonable" restrictions and regulations. Says that where in the constitution, or Declaration of Ind. for that matter?

Click to expand...

Nowhere, obviously, but SCOTUS decided long, long ago that reasonable restrictions must be allowed, because the alternative is crazy; the amendments in the Bill of Rights are too black and white, and don't allow room for the judgement which is needed for justice. I know not everyone here agrees with that, but it's etched deeply into the bedrock of our legal system at this point.

However, I hope a future court case brings up the point that the language of the second amendment is STRONGER than that of the first, which implies that an even higher standard of scrutiny should apply to second amendment cases. The first amendment says "Congress shall make no law... abriding the freedom of speech". So in the case of speech, Congress can't make a law that limits it. In the case of the second amendment, it says "the right to keep and bear arms shall not be infringed." It doesn't say who can't infringe it, or why, it says it SHALL NOT BE INFRINGED. By Congress, or judges, or anyone.

The difference is subtle, but such subtleties are the meat and potatoes of judicial review, and I think it's a difference that should be taken into account, and should be taken to imply that second amendment cases deserve the strictest of judicial scrutiny.

imported post

The commerce clause gives the federal government the power to regulate interstate commerce. The 10th ammendment would keep it from trying to regulate intrastate commerce which would include the manufacture/production, sale, possession, or intrastate shipment of any product or commonity. If I remember my history correctly, under the Articles of Confederation interstate commerce was being hindered by protectionist levies and regulations imposed by the individual states. Therfore, the Constitution gives the Federal Government the sole power to regulate interstate commerce. Unfortunatly, power hungry legislators and jurists have distorted that clause to include the regulation of almost every aspect of every product or commodity that is shipped accross a state line.

imported post

bobestes wrote:

Unfortunatly, power hungry legislators and jurists have distorted that clause to include the regulation of almost every aspect of every product or commodity that is shipped accross a state line.

Click to expand...

I totally agree. The feds have used the commerce clause and the general welfare clause to totallysubvert the 10th, and to move this country toward socialism.

imported post

I have read that over 90% of federal laws have been justified under the commerce clause. Certainly not what the founders intended.

imported post

deepdiver wrote:

I have read that over 90% of federal laws have been justified under the commerce clause.

Click to expand...

Now why do I believe that? It's actuallyunbelievable, but I believe it.

imported post

deepdiver wrote:

I have read that over 90% of federal laws have been justified under the commerce clause. Certainly not what the founders intended.

Click to expand...

I don't think they'd have been surprised to find that 90% of the federal laws had to do with commerce. I think they'd have been shocked to find that there are tens of thousands of pages of federal laws, rather than maybe a hundred or so.

In an appropriately-sized federal code, interstate commerce laws would constitute a large percentage of the law, because the federal government simply wasn't supposed to be doing that much. Interstate commerce regulations (real ones, not like many of the laws that are now justified under commerce), foreign relations and, in times of need and for no more than two years, raising armies for national defense -- that's pretty much all the US government should do.

imported post

SouthernBoy wrote:

http://www.firearmsandliberty.com/embar.html

Click to expand...

That is a fantastic essay. Long and academic, but it's refreshing to read the well-considered opinions of an educated and intellectually HONEST man. That degree of honesty, and the willingness to seriously and deeply considers ideas that one disagrees with, are extremely rare.

Thanks for that link.

imported post

WhiteFeather wrote:

Mike you are 100% correct!!!

I dislike how everyone is treating this as a blanket win for the 2A, when in fact it is only the beginning for future restoration of rights abridged. There are many laws that need to be repealled and much work to be done on behalf of all gun laws.

I hope that this does not lose steam accross the country as more and more lawsuits are put before the courts.

Click to expand...

I agree, while it is an important win, it is just the beginning of a long fight to regain our freedoms. Especially in rights restricted states like Hawaii, Massachusetts, New Jersy, New York and Illinois. As long as gun ownership is a privilege then the fight is far from over.