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Thread: Fed judge dismisses states' gun suit, By MATT GOURAS (AP) – 13 hours ago

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    Fed judge dismisses states' gun suit, By MATT GOURAS (AP) – 13 hours ago

    http://www.google.com/hostednews/ap/...ocId=D9IIFV3O0
    Quote Originally Posted by GOURAS
    The decision Wednesday from U.S. District Judge Donald Molloy was expected since his magistrate a month ago recommended tossing out the lawsuit because Congress has the authority to regulate firearms with its constitutional power to regulate interstate commerce.

    Molloy sided with the U.S. Department of Justice, which argued Congress' ability to regulate guns and other items through the "commerce clause" of the U.S. Constitution had long ago been decided in courts.

    The lawsuit involving Montana, Utah, Alabama, Idaho, South Carolina, South Dakota, Wyoming and West Virginia argued that states should decide which rules, if any, would control the sale and purchase of guns and paraphernalia made inside their borders.
    http://news.google.com/news/more?q=W...+Donald+Molloy

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    Founder's Club Member PrayingForWar's Avatar
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    Don't suprise me at all. I don't expect any court to stifle the commerce clause. It has been the basis of most of the most horrible legislation, and the foundation of the worst encroachment of federal power. We'll have to wait until 4 lunatics on the SCOTUS and 1 "moderate" are replaced by raging libertarians. Won't happen in my lifetime.
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    The courts have thus far not used (and probably will not use) the meaning of the word "regulate" as it was commonly used at the time of the framing. From a dictionary published in 1790: Regulate was used in the context to make things regular or even, not to control. It's a shame.

    We can have some hope if this reaches SCOTUS, because in Heller they did refer to the meanings of words at the time of the framing. If they do it again, they could correct years (decades) of misinterpretation of the commerce clause, which they do not have the power to do anyway.
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    Some might think that the "Commerce clause", (Article I, Section 8, Clause 3), would be modified by later amendments as modifying previous clauses is one of the things amendments do.

    If anything the Commerce clause should be rendered null and void as regards to arms by the language of the Second Amendment.

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    Quote Originally Posted by rodbender View Post
    The courts have thus far not used (and probably will not use) the meaning of the word "regulate" as it was commonly used at the time of the framing. From a dictionary published in 1790: Regulate was used in the context to make things regular or even, not to control. It's a shame.

    We can have some hope if this reaches SCOTUS, because in Heller they did refer to the meanings of words at the time of the framing. If they do it again, they could correct years (decades) of misinterpretation of the commerce clause, which they do not have the power to do anyway.
    I'm not as optimistic. When the eminent domain case was decided in 2005, we got the shaft. Now that O'Connor has been replaced with someone a bit more lucid, there could be hope, but I'm not sure the SCOTUS can be relied upon to severly curtail the power of government enough to strike down this ruling.
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    Regular Member gsx1138's Avatar
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    It sounds like these States need to "nullify" the Federal laws then. If you can't get any branch of the Federal Government to restrain themselves and their power it is important for the States to take their own action regardless of Federal mandate's.

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    Quote Originally Posted by gsx1138 View Post
    It sounds like these States need to "nullify" the Federal laws then. If you can't get any branch of the Federal Government to restrain themselves and their power it is important for the States to take their own action regardless of Federal mandate's.
    That is what they are attempting to do.
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    Quote Originally Posted by rodbender View Post
    The courts have thus far not used (and probably will not use) the meaning of the word "regulate" as it was commonly used at the time of the framing. From a dictionary published in 1790: Regulate was used in the context to make things regular or even, not to control. It's a shame.

    We can have some hope if this reaches SCOTUS, because in Heller they did refer to the meanings of words at the time of the framing. If they do it again, they could correct years (decades) of misinterpretation of the commerce clause, which they do not have the power to do anyway.
    You might want to be slightly MORE optimistic. Scalia actually cited the appropriate (for the time) meaning of the word in his opinion on Heller:
    Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).
    http://www.law.cornell.edu/supct/html/07-290.ZO.html

    I'm not his biggest fan (esp after his duplicitous attack on the Privileges or Immunities Clause in McDonald) but he can be useful, not to mention influential.

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    Quote Originally Posted by ufcfanvt View Post
    You might want to be slightly MORE optimistic. Scalia actually cited the appropriate (for the time) meaning of the word in his opinion on Heller:
    Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).
    http://www.law.cornell.edu/supct/html/07-290.ZO.html

    I'm not his biggest fan (esp after his duplicitous attack on the Privileges or Immunities Clause in McDonald) but he can be useful, not to mention influential.
    That's a good point, but the court has been notably hesitant to overturn precident has it not? I can't see them overturning precident in THIS particular case because it would emasculate the fed so much. I'm not really disagreeing with you, I'm just much more pessimistic.
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    The "commerce" clause has been misinterpreted by the courts for years.

    The key words being "among the several states" which would be commonly be understood as between the several states at the time of its' inception. That is definitely not within the individual states. Ergo, anything that does not cross a state line is outside the purview of congress to regulate. It seems that many judges do not actually speak and understand the English language
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    Regular Member rodbender's Avatar
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    Quote Originally Posted by PrayingForWar View Post
    That's a good point, but the court has been notably hesitant to overturn precident has it not? I can't see them overturning precident in THIS particular case because it would emasculate the fed so much. I'm not really disagreeing with you, I'm just much more pessimistic.
    I, too, am very pessimistic. You are correct that they don't like to overturn precedent. The McDonald decision shows this. Four of the "justices" used the "due process" clause and Thomas used the "previledges and immunities" which was the correct one to use (if the 14th actually was suppose to incorporate). The rest were reluctant to use P&I because it would have destroyed the Slaughterhouse ruling.

    I wonder if they would overturn precedent if the feds were to imprison all muslim Americans? Of course they would, because almost the whole of America wouldn't stand for it, and they know it. Incorrect incorporation of the 2nd would not cause a such an outroar, and they knew that, too.
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    Quote Originally Posted by PrayingForWar View Post
    Don't suprise me at all. I don't expect any court to stifle the commerce clause. It has been the basis of most of the most horrible legislation, and the foundation of the worst encroachment of federal power. We'll have to wait until 4 lunatics on the SCOTUS and 1 "moderate" are replaced by raging libertarians. Won't happen in my lifetime.
    Does that count include Scalia? He has ruled that the Federal goverment has the power to regulate backyard gardening as Interstate commerce.

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    Quote Originally Posted by vmaxanarchist View Post
    Does that count include Scalia? He has ruled that the Federal goverment has the power to regulate backyard gardening as Interstate commerce.
    Gotta love that interstate commerce clause, especially when it's on goods neither bought nor sold, not traveling across state lines.

    I wish I could redefine words/laws/etc. at will to mean what I wanted.

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    Quote Originally Posted by rodbender View Post
    That is what they are attempting to do.
    Unless they threaten to arrest Federal agents breaking State law then nullification has no teeth. I'll be interested to see how or IF the States actually do anything.

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    Quote Originally Posted by OldCurlyWolf View Post
    The "commerce" clause has been misinterpreted by the courts for years.

    The key words being "among the several states" which would be commonly be understood as between the several states at the time of its' inception. That is definitely not within the individual states. Ergo, anything that does not cross a state line is outside the purview of congress to regulate. It seems that many judges do not actually speak and understand the English language
    That, and it doesn't speak to commerce between CITIZENS of different states, just commerce between the STATES. This type of commerce is thought, today, to include any commerce that travels over State line. I propose it was meant to cover things that STATES do; charge interstate excise taxes, recognize marriage and other STATE permits (driver's license e.g.), excise taxes, port taxes and the like, IMO. But, alas, see Wickard v. Filburn. Are you serious?!!

    Carry on.
    Last edited by jmlefler; 10-05-2010 at 03:44 PM. Reason: I changed my mind

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    Quote Originally Posted by vmaxanarchist View Post
    Does that count include Scalia? He has ruled that the Federal goverment has the power to regulate backyard gardening as Interstate commerce.
    Hell, that goes back to the 30s. I forget the name of the case, but some guy was growing wheat for his own consumption and SCOTUS said if he were not consuming his own product that he would possibly be buying it from an interstate source. Sounds like backyard gardens can be controlled by congress. It's been getting worse ever since.
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    Quote Originally Posted by jmlefler View Post
    That, and it doesn't speak to commerce between CITIZENS of different states, just commerce between the STATES. This type of commerce is thought, today, to include any commerce that travels over State line. I propose it was meant to cover things that STATES do; charge interstate excise taxes, recognize marriage and other STATE permits (driver's license e.g.), excise taxes, port taxes and the like, IMO. But, alas, see Wickard v. Filburn. Are you serious?!!

    Carry on.
    That's the case I was referring to in my earlier post. Another thing is the most common use of the word "regulate" in the late 18th century was to make regular or to make even, not control.
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    Quote Originally Posted by vmaxanarchist View Post
    Does that count include Scalia? He has ruled that the Federal goverment has the power to regulate backyard gardening as Interstate commerce.
    I've never heard that, do you have a source? If it's true then my oppinion of Scalia is certainly diminished. He hasn't been all that great, but a ruling like that would bring him down to Souter lunacy.
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    Quote Originally Posted by PrayingForWar View Post
    I've never heard that, do you have a source? If it's true then my oppinion of Scalia is certainly diminished. He hasn't been all that great, but a ruling like that would bring him down to Souter lunacy.
    Look at http://en.wikipedia.org/wiki/Gonzales_v._Raich
    In Scalia's seperate opinon he joined with the liberal wing plus Kennedy. Only Oconner, Thomas, and Rehnquist where on the side of Federalisim. Read Thomas's seperate dissent. It is really scathing of the Majority when he gets to speculating on how their opinon allows the Federal goverment to regulate anything in the name of Interstate Commerce.

    After reading that I knew Montana would loose in court when they first supposed this kind of law.
    The only thing a state can do is decide to overturn their own gun control laws and not cooperate with the Feds, but they have no say in the Feds enforceing Federal law.

    Even if some guy in Montana made a gun in his basement machine shop with local steel. SCOTUS would rule that him making that gun affected Interstate Commerce. Because he might have otherwise bought a gun made in another state if he had not made it. That's what they said about backyard gardening.

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    Quote Originally Posted by vmaxanarchist View Post
    Even if some guy in Montana made a gun in his basement machine shop with local steel. SCOTUS would rule that him making that gun affected Interstate Commerce. Because he might have otherwise bought a gun made in another state if he had not made it. That's what they said about backyard gardening.
    It has become past time to remove a lot of the federal judges from the bench on the grounds of incompetence. I have never seen such a bunch of stupidity anywhere else other than the criminals of our society. They deserve each other.
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    Scalia was attempting to carve out a narrow exception. (Of course, he didn't, because his concurring opinion was not the opinion of the Court.)

    His reasoning was basically that marijuana is clearly interstate trade. That gives the feds authority to outright ban it. Allowing folks to possess it for medicinal use impairs the federal governments that existing power to ban the substance. Therefore, even if the marijuana is grown and used in-state, it still violates the ban put in place because marijuana is an interstate business.

    In other cases, Scalia has come down clearly on the side of restricted use to the Interstate Commerce Clause.

    That his opinion in this one ruling on interstate commerce is distasteful to some is no reason to regard him as the enemy.

    I see that an awful lot on this site: Those who disagree on a very few things are painted as just as bad as those who disagree on everything. Unfortunately such willingness to schism aids those who disagree on everything, yet are willing to ally with those who disagree on most.

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    Quote Originally Posted by vmaxanarchist View Post
    Look at http://en.wikipedia.org/wiki/Gonzales_v._Raich
    In Scalia's seperate opinon he joined with the liberal wing plus Kennedy. Only Oconner, Thomas, and Rehnquist where on the side of Federalisim. Read Thomas's seperate dissent. It is really scathing of the Majority when he gets to speculating on how their opinon allows the Federal goverment to regulate anything in the name of Interstate Commerce.

    After reading that I knew Montana would loose in court when they first supposed this kind of law.
    The only thing a state can do is decide to overturn their own gun control laws and not cooperate with the Feds, but they have no say in the Feds enforceing Federal law.

    Even if some guy in Montana made a gun in his basement machine shop with local steel. SCOTUS would rule that him making that gun affected Interstate Commerce. Because he might have otherwise bought a gun made in another state if he had not made it. That's what they said about backyard gardening.
    Thanks for the link, though I don't exactly find everything in wikipedia credible. In this case it seems legit.

    Gonzales v. Raich was certainly a #*(%ed up case. I don't understand why Scalia went that route other than perhaps a prejudice against pot smokers. I think if it was an issue of someone growing tomatoes instead of a controlled substance I can only hope sanity would prevail. It certainly does leave open the potential for some fruitcake legislation that would restrict tomato gardens.

    I can not for the life of me understand why so many "conservatives" are so adamantly against any effort that relaxes laws against pot, or even drugs in general. To me, it's an issue of personal responsibility and liberty. The moonbats are all for "legalization", but want to license, tax, and regulate the $#!t so much it would probably cost more at the end that the illegal stuff does now.

    Scalia's opinion
    Justice Scalia wrote a separate concurrence that aimed to differentiate the decision from the more recent results of United States v. Lopez and United States v. Morrison. Although Scalia voted in favor of limits on the Commerce Clause in the Lopez and Morrison decisions, he said that his understanding of the Necessary and Proper Clause caused him to vote for the Commerce Clause with Raich for the following reason:

    “Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”

    Though I disagree w/ him here, I think he might still vote in our favor on this issue. If for no other reason than politics in general.
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    Quote Originally Posted by Ronald Reagan View Post
    The person who agrees with you 80 percent of the time is a friend and an ally — not a 20 percent traitor.
    Yeah, what he said.
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    Quote Originally Posted by PrayingForWar View Post
    [COLOR=blue]
    Though I disagree w/ him here, I think he might still vote in our favor on this issue. If for no other reason than politics in general.
    I think Scalia's opinion is clear that he will not be on the right side of this issue. Guns made in state will definatly affect interstate commerce. I do not see him contradicting himself just beause he is pro-gun politically. I also suspect that bush's replacements for Oconner and Reihquist would rule on the wrong side too. So far they seem to me to be of the same "Judicial Conservative" ilk as Scalia. That being having a strong respect for precedent and the legislative branch. Only being willing to overturn laws if in clear conflict with constituional rights. Only Thomas is willing to read the Constituion in it's plain language and overturn both.

    I agree that Scalia is on our side when it comes to 2nd ammendment law. However this is not a 2A case. In Heller the court has said that laws controling commerce in arms are presumably constitutional. So, it comes down to if the court would overturn it self from the Raich case. The only one I can maybe see on our side is Thomas.

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    Quote Originally Posted by vmaxanarchist View Post
    I think Scalia's opinion is clear that he will not be on the right side of this issue. Guns made in state will definatly affect interstate commerce. I do not see him contradicting himself just beause he is pro-gun politically. I also suspect that bush's replacements for Oconner and Reihquist would rule on the wrong side too. So far they seem to me to be of the same "Judicial Conservative" ilk as Scalia. That being having a strong respect for precedent and the legislative branch. Only being willing to overturn laws if in clear conflict with constituional rights. Only Thomas is willing to read the Constituion in it's plain language and overturn both.

    I agree that Scalia is on our side when it comes to 2nd ammendment law. However this is not a 2A case. In Heller the court has said that laws controling commerce in arms are presumably constitutional. So, it comes down to if the court would overturn it self from the Raich case. The only one I can maybe see on our side is Thomas.
    I would have to agree with you about Thomas, he has been a blessing. No wonder the dems so viciously attacked him during his nomination. Still, there are 4 certifiable lunatics on the bench, 2 of which are brand new. If we could just get 4 more Thomases we'd be sitting pretty.
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