This could be dismissed as an incredible fantasy dream that could never true:
“The US Court of Appeals, Fifth Circuit, has agreed to hear en banc the question of whether Congress has the constitutional authority to enact federal gun control laws.”
The only hook in the enumerated powers granted to the Federal government to regulate guns is the commerce clause. Had you been concerned the feds restricting gun ownership in the early 1800’s you would have thought you were doubly protected by the lack of an enumerated power as well as the 2nd Amendment. As of Wickard v. Filburn (1942) the government bypassed the enumerated powers restriction, and they burst through the loophole like one of the Missoula floods. Now we have an essentially unlimited Federal government.
The case before the Fifth Circuit is a gun case by a convicted felon in possession of a firearm challenging the government’s authority granted in Wickard v. Filburn. If successful at both the appeals court (plausible) it would be immediately appealed to SCOTUS. Justice Thomas has said he thinks this approach to invalidating gun regulation has merit.
If SCOTUS overturns Wickard v. Filburn we would suddenly be living in an unknown universe. Probably 95% (or more) of what the Feds currently do would be beyond their authority.
This would be a way to get out from under the $40 Trillion dollar debt. It would relive all the congress critters from being blamed for the collapse of, well, just about everything the government does.
I would like to believe this has the potential to restore the limited government the founders envisioned. But, to put it mildly, I am skeptical. But it is fun to think about. Imagine the liberal tears, shrieks, and wailing!
But just that this is being considered is incredible. We truly live in interesting times.
When the Bill of Rights was ratified in 1791, the Constitution was amended by each of the provisions in the Bill of Rights and its Preamble. As regards the right to keep and bear arms, the Founders made it clear that the federal government could not presume to have the power to infringe upon the right to keep and bear arms by using the Commerce Clause or the power to tax as a pretext toward that end. Wickard V Filburn was wrongly decided and should be overturned, but it should never have been allowed to be seen as holding sway over the subsequent enumeration of the right of the people to keep and bear arms. The National Firearms Act relies on the lie that the government can regulate the right to keep and bear arms through its power of taxation and the Gun Control Act of 1968 relies on the lie that the government can regulate the right to keep and bear arms through its power to regulate interstate commerce. Both of those powers were amended by the Bill of Rights in 1791. Any legislation whose intent or effect would infringe upon the right to keep and bear arms violates the Constitution. The powers to regulate commerce and to impose taxation cannot logically provide an exception to this fact under the standard rules of interpretation.
Agreed. Wickard v. Filburn is a SCOTUS precedent upholding Congressional legislation, but an Act of Congress does not override the Constitution or its Amendments.
I would love to see a SCOTUS precedent that describes exactly what the Founders meant by “regulate Commerce … among the several States.” As Joe said, that would delegitimize and shut down the vast majority of federal laws and executive agencies. The ones allowed to remain make a very short list (and I think I’m being generous with the benefit of doubt here):
– Depts of State and Interior (combine them), for foreign relations, maintenance of embassies, immigration, and Native American relations. (This one is also necessary because the Sec. of State is named in the 25th Amendment for Presidential succession.)
– Dept of Defense/War, for national defense (most of what remains of Homeland Security can be rolled in) and funding/maintaining armed forces — the Founders were wary of a “standing army,” but calling, arming, and training the militia and providing and maintaining a Navy are enumerated powers.
– Depts of Revenue and Treasury (combine them), because like it or not, Congress does have the powers to tax, print/mint currency, and borrow on the nation’s credit, but they could be significantly cut back.
– Dept of Justice, to investigate and enforce what federal laws do remain on the books.
That’s about it.
Depts of Education, Energy, Health & Human Services, Housing & Urban Development, Agriculture, Transportation, and any others I missed, could largely go away. The few Constitutionally legitimate functions they perform could fit in one of those listed above — for example, most of Veteran’s Affairs could be rolled into Defense/War, and what’s left of Commerce can find a place under Revenue/Treasury.
Just my $0.02.
The interstate commerce dodge is certainly a big one in terms of the ever expanding blob though it really started with Lincoln removing agency from the states by violence. I expect a left turn toward the Preamble. There are ample hooks there to do virtually anything. I know that standard construction says that the Preamble doesn’t actually control anything but, hey, Living Constitution.
I’ve heard it described that the Preamble is the “why,” the rest of the Constitution is the “what and how,” and the Bill of Rights is the “what NOT.” Like the 2A’s explanatory clause (the first 13 words, including the “well regulated militia” part), the “why” has no bearing on the operative clause — the “what” or “what NOT.”
But yes, I could see the Left giving very broad meaning to what “form a more perfect Union,” “establish Justice,” and “promote the general Welfare” mean. Considering Obama’s “fundamental transformation” comment, they could get a lot of mileage from those.
The First Amendment includes five rights, one of which is the right to peacefully assemble.
The Second Amendment also includes five rights: acquire arms, keep arms, bear arms, practice arms. These first four support the fifth: more than peacefully assemble in order to to secure freedom.
The interstate commerce clause is the Mack truck sized loophole that the left has used to justify every single infringement that they have invented. I think FDR was the original perpetrator. The abuse takes the form of turning “regulate commerce” into “has an effect on commerce” — taking advantage of the obvious fact just about everything we do has some effect on commerce. And somehow the bad guys have managed to pull that off even when all the parties in the commerce are in the same state.
The whole ruse is a bald-faced lie. It’s another version of “The Emperor Has No Clothes.”
“We know that they are lying, they know that they are lying, they even know that we know they are lying, we also know that they know we know they are lying too, they of course know that we certainly know they know we know they are lying too as well, but they are still lying. In our country, the lie has become not just moral category, but the pillar industry of this country.”
― Aleksandr Solzhenitsyn
Wickard v. Filburn involved a farmer who was growing wheat for his own use. The wheat never entered interstate or even intrastate commerce. So the abuse was essentially a Living Constitution thing like so much other judge made law. While the case was a creature of FDR, the theory had been articulated earlier by Wilson among others.
Yes, they charged him under the reasoning that by growing extra wheat (more than he was allowed to) for his own use, he didn’t have to purchase wheat from the market that HAD gone through interstate commerce, therefore interstate commerce was affected.
It’s an insane decision because — even giving the controllers the benefit of doubt — bypassing the interstate market and producing it yourself (or buying from other in-state producers) simply removes it from Congress’ purview. They cannot legitimately criminalize something that’s not within their sphere of influence, just because it’s not within their influence. They may as well try to enforce American law in England.
But the reality is, that was never what the Founders intended by “regulate Commerce … between the several States.” They meant that the federal government could — and arguable should — forestall the States from imposing crippling tariffs and taxes on each other’s goods, by removing that option from the States and making it Congress’ duty to oversee. That’s all. It’s meant to ensure free and fair trade among the States, not restrict or prevent it!
The worst part is the fact the other side would scream and whine, try to enact their own agendas while back in power, get smacked down over time by the Court and a decade from now, when prosperity and freedom are blooming, take credit for the whole thing! Democracy in action and they helped!
Like Lyndon B. Johnson and the Civil Rights Act. LBJ was a Democrat, and the Democrat Party (including LBJ) fought tooth-and-nail against the Civil Rights Act.
When GOP majorities in the House and Senate passed it and had enough votes to override a Presidential veto, LBJ turned the tables: he signed it … and claimed credit for its passage on behalf of himself and his fellow Democrats.
You know the infamous line: “We’ll have those n—-s voting Democrat for the next 200 years.” So far we’re ~60 years in, and he’s been mostly right.
Bad defendants make for bad case law. Picking a convicted felon to make this challenge doesn’t pass the sniff test. I think this is a case designed to fail.
If it does make it to the top, I wouldn’t count on John ‘The Squish’ Roberts or Amy Coney Island to vote freedom.
One possible out: there IS a strong historical precedent for removing rights of convicted criminals, so if ANY gun laws pass Constitutional Muster, certainly ’felon in possession’ laws would be among them.
The trouble with that is that a non-convicted-felon has no standing to challenge; they have not been “harmed” by the prohibition and don’t need relief.
I agree that it would be nice if we could find “good defendants” to challenge bad laws, but that’s just not how it generally works.
(Yes, I know prima facie challenges exist and occasionally succeed, but they are rare and the law has to be exceptionally bad; plaintiffs have to demonstrate that NO circumstance exists in which the law would be Constitutionally-valid, and that’s a very high bar. As you yourself said, there’s strong historical precedent for removing rights from convicted felons, so a prima facie challenge would fail on this one.)
How does NICS comply with the Bruen decision in that this law (Brady Gun Control Act) seems to not be rooted in the historical tradition of firearm regulation in the United States starting in 1791? There was no NICS background check system extant in 1971. Anyone could buy a gun without a background check. If it wasn’t extant then, NICS would seem to not be valid now. You could buy a Brown Bess or Kentucky Rifle- the only requirement was being able to pay for it. The Brown Bess and Kentucky rifle were some of the best “battle” rifles (actually a musket) of their era. Based on these historical traditions rather than public safety concerns, of which there were many at the time. I don’t see how any historical analogues between the codification in American life of the Constitution and the implementation of the NICS background check through the Brady Gun Control Act can stand. Below is a list of prohibited persons who lived between 1789-1998 would be denied firearms ownership if NICS was extant.
Tories who remained in the United States after the Revolutionary War
Jeanne Lafitte & his Pirates
Hessian Mercenaries
Whisky Rebellion farmers
US Navy and merchant sailors impressed by Royal Navy who then had to fight American warships and merchant vessels.
Bootleggers and rum runners
Delaware and Shawnee Indians
Geronimo and his Apache warriors
Valley Forge deserters
Shays’ Rebellion protesters
Chief Joseph led his Nez Perce warriors
German WWI veterans who immigrated to the US after the Great War
Bootleggers bought guns during Prohibition
La Cosa Nostra mobsters
Et al.
If you’re convicted in a state’s district or superior court, and not a federal court, then why should the FBI’s NICS approve or disapprove your right to buy a gun. If you didn’t commit a federal crime, then why is NICS involved? Go to another state and buy it there. If the state has a problem with you and guns, it’s the state’s problem.
This is federal overreach. People buy guns in state localities, not, for the most part, federal (Washington DC) localities.
NICS and even the whole licensing scheme to manufacture, distribute, and sell guns does not pass the SCOTUS test for constitutionality.
But I hope no one tries taking that to court for another five or ten years. I think the current SCOTUS would find a way to say background checks are acceptable. We need to let the Overton Window move quite a bit more toward freedom before it will be okay to take that up in court.