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The Range
Law & Order
A ‘Well Regulated Militia’ the Basis of Private Gun Ownership
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<blockquote data-quote="Dave70968" data-source="post: 3079197" data-attributes="member: 13624"><p>(IRT: In Regard To; I usually see it as WRT, <em>With</em> Regard To, but same-same.)</p><p></p><p>The "Interstate Commerce," "regulation of trade" thing is a very complicated issue. Originalists--people who think the words in the Constitution mean precisely what they meant <em>at the time they were written</em>--would give a definition of "regulate" somewhat different than we would today. Today, we use "regulate" to mean "make rules about;" two centuries, "regulate" meant "to make regular." Thus, an originalist view of "regulation" would be akin to a voltage regulator, or the regulator on a clock: to make it consistent. The "well-regulated" militia was one that was run in such a way as to produce consistent, effective results. From the <em>Heller</em> opinion:</p><p style="margin-left: 20px">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”).</p><p>(Please forgive the lack of a specific page number; it's late, I'm tired, and I don't feel like hunting it down right now.)</p><p></p><p>More modern interpretations of the Commerce Clause, giving Congress the power "[t]o regulate Commerce ... among the several States..." has dramatically expanded the scope of fed.gov's "regulatory" authority. The seminal case is <a href="https://en.wikipedia.org/wiki/Wickard_v._Filburn" target="_blank"><em>Wickard v. Filburn</em>, 317 U.S. 111 (1942)</a>, holding that a farmer growing wheat on his own fields for his own use, never crossing <em>property</em> lines--much less state lines--could still be regulated as "interstate commerce" because his personal-use wheat reduced his demand for wheat on the general market, thus affecting interstate commerce (basic economics--reduced demand causes reduced prices). Students of history will not be surprised to learn that this came up as a result of FDR's price-fixing policies. <em>Wickard</em> has been cited in numerous cases since then, including <a href="https://en.wikipedia.org/wiki/Gonzales_v._Raich" target="_blank"><em>Gonzales v. Raich</em> (previously <em>Ashcroft v. Raich</em>), 545 U.S. 1 (2005)</a>, holding that fed.gov's outright prohibition of <em>any</em> market constituted regulation of interstate commerce, and was thus a proper application of the Commerce Clause. If <em>Wickard</em> opened the door to fed.gov meddling in every market, <em>Raich</em> tore the door clean off the hinges. [USER=5778]@PBramble[/USER], this directly addresses your statement about firearms that "never left state lines;" the Supreme Court has held that it really doesn't matter.</p><p></p><p>There have been some (very) minor limitations imposed on Congress's power to regulate interstate commerce, including one specifically related to firearms, namely <a href="https://en.wikipedia.org/wiki/United_States_v._Lopez" target="_blank"><em>United States v. Alfonso D. Lopez, Jr.</em>, 514 U.S. 549 (1995)</a>. In <em>Lopez</em>, the Court held that the Gun-Free School Zones Act of 1990 was a bridge too far under the Commerce Clause, striking down that law on the grounds that it didn't have a substantial impact on interstate commerce. Congress responded by re-passing essentially the same law, this time forbidding any gun "that has moved in interstate commerce" from being brought into a school zone. Well, under the precedent of <em>Wickard</em> (and now the subsequent <em>Raich</em>), what <em>hasn't</em> moved in interstate commerce? Several Circuit (appellate) courts have upheld the new version of the law, and SCOTUS has not addressed the issue.</p><p></p><p>As to the Montana (and others) Firearms Freedom Act, the lower federal courts <em>have</em> found it lacking, and properly so. Our system relies heavily on precedent, and the precedent is quite clear that pretty much everything falls under the category of interstate commerce, even when it is neither interstate nor commerce. I don't happen to hold to that view (in fact, I think it's dead wrong), but that is the precedent, and it is binding upon lower courts (which, relative to SCOTUS, is all of them). Moreover, the Supremacy Clause subordinates the states to fed.gov, so when the two are in direct conflict, the outcome is predetermined. Again, I think that fed.gov is operating well outside its intended scope and authorized grant of authority, but so long as the superior courts take the line they've been taking (and extending) for better than three-quarters of a century, I can't say that the lower judges are doing anything wrong. Please don't mistake that statement as an endorsement of the outcome, just the process: I don't like it, I think that the theory of "garbage in, garbage out" explains perfectly what we're getting, but lower courts simply aren't free to ignore higher ones.</p><p></p><p>...and with that, I think it's bedtime, but I'll be happy to address any replies in the morning.</p></blockquote><p></p>
[QUOTE="Dave70968, post: 3079197, member: 13624"] (IRT: In Regard To; I usually see it as WRT, [I]With[/I] Regard To, but same-same.) The "Interstate Commerce," "regulation of trade" thing is a very complicated issue. Originalists--people who think the words in the Constitution mean precisely what they meant [I]at the time they were written[/I]--would give a definition of "regulate" somewhat different than we would today. Today, we use "regulate" to mean "make rules about;" two centuries, "regulate" meant "to make regular." Thus, an originalist view of "regulation" would be akin to a voltage regulator, or the regulator on a clock: to make it consistent. The "well-regulated" militia was one that was run in such a way as to produce consistent, effective results. From the [I]Heller[/I] opinion: [INDENT]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”).[/INDENT] (Please forgive the lack of a specific page number; it's late, I'm tired, and I don't feel like hunting it down right now.) More modern interpretations of the Commerce Clause, giving Congress the power "[t]o regulate Commerce ... among the several States..." has dramatically expanded the scope of fed.gov's "regulatory" authority. The seminal case is [URL='https://en.wikipedia.org/wiki/Wickard_v._Filburn'][I]Wickard v. Filburn[/I], 317 U.S. 111 (1942)[/URL], holding that a farmer growing wheat on his own fields for his own use, never crossing [I]property[/I] lines--much less state lines--could still be regulated as "interstate commerce" because his personal-use wheat reduced his demand for wheat on the general market, thus affecting interstate commerce (basic economics--reduced demand causes reduced prices). Students of history will not be surprised to learn that this came up as a result of FDR's price-fixing policies. [I]Wickard[/I] has been cited in numerous cases since then, including [URL='https://en.wikipedia.org/wiki/Gonzales_v._Raich'][I]Gonzales v. Raich[/I] (previously [I]Ashcroft v. Raich[/I]), 545 U.S. 1 (2005)[/URL], holding that fed.gov's outright prohibition of [I]any[/I] market constituted regulation of interstate commerce, and was thus a proper application of the Commerce Clause. If [I]Wickard[/I] opened the door to fed.gov meddling in every market, [I]Raich[/I] tore the door clean off the hinges. [USER=5778]@PBramble[/USER], this directly addresses your statement about firearms that "never left state lines;" the Supreme Court has held that it really doesn't matter. There have been some (very) minor limitations imposed on Congress's power to regulate interstate commerce, including one specifically related to firearms, namely [URL='https://en.wikipedia.org/wiki/United_States_v._Lopez'][I]United States v. Alfonso D. Lopez, Jr.[/I], 514 U.S. 549 (1995)[/URL]. In [I]Lopez[/I], the Court held that the Gun-Free School Zones Act of 1990 was a bridge too far under the Commerce Clause, striking down that law on the grounds that it didn't have a substantial impact on interstate commerce. Congress responded by re-passing essentially the same law, this time forbidding any gun "that has moved in interstate commerce" from being brought into a school zone. Well, under the precedent of [I]Wickard[/I] (and now the subsequent [I]Raich[/I]), what [I]hasn't[/I] moved in interstate commerce? Several Circuit (appellate) courts have upheld the new version of the law, and SCOTUS has not addressed the issue. As to the Montana (and others) Firearms Freedom Act, the lower federal courts [I]have[/I] found it lacking, and properly so. Our system relies heavily on precedent, and the precedent is quite clear that pretty much everything falls under the category of interstate commerce, even when it is neither interstate nor commerce. I don't happen to hold to that view (in fact, I think it's dead wrong), but that is the precedent, and it is binding upon lower courts (which, relative to SCOTUS, is all of them). Moreover, the Supremacy Clause subordinates the states to fed.gov, so when the two are in direct conflict, the outcome is predetermined. Again, I think that fed.gov is operating well outside its intended scope and authorized grant of authority, but so long as the superior courts take the line they've been taking (and extending) for better than three-quarters of a century, I can't say that the lower judges are doing anything wrong. Please don't mistake that statement as an endorsement of the outcome, just the process: I don't like it, I think that the theory of "garbage in, garbage out" explains perfectly what we're getting, but lower courts simply aren't free to ignore higher ones. ...and with that, I think it's bedtime, but I'll be happy to address any replies in the morning. [/QUOTE]
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