SCOTUS decision in Raich is out.

[tyme]

The supreme court is reading "commerce" as "economics." They read "economics" as including production, transfer/exchange, and consumption.

Because carrying a gun in a school zone is not any of those three things, it's not open to federal regulation. Because rape is not any of those three things, it also is not open to federal regulation.

Manufacture and use of marijuana, however, is economic activity, and therefore is open to federal regulation as long as the other conditions apply (rational basis test, and in furtherance of regulating interstate commerce).

(Why did alcohol prohibition required an amendment? The Supreme Court would probably say it didn't, and that congress could have passed a ban on alcohol without the amendment.)

[MicroBalrog]

Tyme, if an when you are correct, does it mean there's utterly nothing useful the 10th Amendment may be applied to in the fight for repealing Federal gun laws?

[tyme]

As I understand the Supreme Court's commerce clause jurisprudence, anything that's not production, transfer, or consumption is technically still beyond the reach of Congress. So if congress passed a law against open or concealed carry, that would be unconstitutional. Anything congress wants to do regarding gun manufacture or transfer is fine as long as there's a skeletal argument that the law has to regulate intrastate activity in order to make interstate regulation effective.

The other hook, however, is that congress may be able to pass laws regarding mere possession of items on the grounds that the items used to be in other states. So if I have a furby that was manufactured in Illinois (I have no idea where they're manufactured), tomorrow Congress might pass a law that "anyone possessing a furby that has travelled in or affecting interstate commerce shall within 60 days of possession under this act apply to the secretary of homeland security for a license.... fingerprints... $100 fee... and upon receipt of a furby license shall carry it at all times, even when not in possession of a furby."

As I understand it, as long as the furby really did come from another state, there's no way to challenge [prosecution under] that law.

[jburtonpdx]

Hmm, stop the war on drugs, save a bunch of money budgeted for the war on drugs, for housing those judged guilty of use/sale/distribution. Legalize or at least de-criminalize MJ, regulate its sale and manufacture, tax it like tobacco and alcohol.

Route money from the savings+taxes to local law enforcement to continue to deal with meth labs and other drugs that are truly killing people, to effective treatment programs for those that are caught up in addictions to alcohol and other drugs, to schools, to filling potholes (had to use the word pot), and so on. Heck maybe even another tax cut...

I know the pharm. companies wont like it, they don't get to patent it and make obscene amounts of money off peoples suffering...

I don't use or smoke anything anymore but I do see tremendous business opportunities if something like this were to ever happen.

[tyme]

What on earth do drug patents have to do with whether drugs are illegal without a prescription? The only relation between them is that both illegal drug syndicates and drug patentholders can make obscene amounts of money because in both cases the legal system opposes any competition. In the case of drug syndicates, the legal system opposes the syndicate itself, but as long as it can evade the law it can earn massive profits.

In the case of drug patentholders, obscene amounts of money aren't so obscene when you consider development costs... those development costs being due largely to regulations imposed by the FDA.

[Al Norris]

For those still interested in other commentary:

The Ninth Circuit's Revenge - Randy Barnett is the Austin B. Fletcher Professor of Law at Boston University. He argued Gonzales v. Raich in the Supreme Court last November.

[MicroBalrog]

Antipitas: That is a highly depressing, yet observant article. Am I correct, when summarising it in plain English, that we're screwed?

And if yes, what is to be done?

[tyme]

It says what it says. I don't think Mr. Barnett would agree to a statement like, "we're screwed."

[jburtonpdx]

What on earth do drug patents have to do with whether drugs are illegal without a prescription?

I was inferring it is unlikely that MJ will ever be decriminalized in part due to the lobby effort put for by the pharm. corps. It can not be patented and if legal the supply would be large and would easily keep up with demand.

I suppose if the "manufacture" were highly regulated it could still turn a large profit if legal, but would never reach the profit margins of the patented pain killers, nausea medicines, anti psychotics, and so on it would be competing with.

I am probably way to cynical about this kind of stuff and it is probably not as bad as some people make it out to be. It just looks like this country is run in the best interests of big business and not for the citizens.

[tyme]

Are pharmaceutical companies really anti-legalization? They can't patent marijuana because it's a plant. They could patent things made from marijuana though.

[publius42]

They already did, tyme, it's called Marinol. It's a more expensive, less effective way to deliver THC than just smoking black market cannabis, and it requires that the (nauseated) patient keep it down for a while.

[publius42]

This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U.S., at 613 (“[T]hus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature” (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the “ ‘the production, distribution, and consumption of commodities.’ ”7 Ante, at 23 (quoting Webster’s Third New International Dictionary 720 (1966) (hereinafter Webster’s 3d). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 8—9 (O’Connor, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate “Commerce,” and respondents’ conduct does not qualify under any definition of that term.8 The majority’s opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from “ ‘commerce,’ ” ante, at 1, to “commercial” and “economic” activity, ante, at 20, and finally to all “production, distribution, and consumption” of goods or services for which there is an “established … interstate market,” ante, at 23. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it.

[Al Norris]

The majority is not interpreting the Commerce Clause, but rewriting it.

Ya just gotta love that turn of phrase! Too bad we don't have more like Justice Thomas. While I may not always agree with him, he at least sticks to the issue and is on solid constitutional grounds.

[Trip20]

For too many legislators and judiciaries, politics is no longer about principle. Rather, it's become a naked competition for clout among interests seeking to use the power of government to their advantage.

For example, in Wisconsin, Assembly Bill 222 (coined the All Sums Bill) was to address the matter of cleaning up of the Fox River. It could cost as much as $500 million. This clean-up is needed due to the paper industry's use of the river over years and years.

So the paper companies have turned to their political buddies in Madison to shift the shaft. They want to force insurance companies to pay even though their insurance policies may not have covered such conduct. The solution -- and I'm not making this up -- is to simply have the Legislature rewrite the contracts years after the fact. Under the bill, the paper industry could pick one unlucky insurer and require that company to pay the entire cost of the cleanup, thus the term "all sums." In practice, it is a legislative looting.

[tyme]

Trip20, if that's true, the Wisconsin legislature needs to read article 1, section 10 of the federal constitution, and then review Dartmouth v. Woodward.

[Trip20]

tyme, it didn't pass.

[publius42]

Too bad we don't have more like Justice Thomas.

Agreed. He brings up an interesting question with the continuation from the part I quoted above:

The majority’s rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively. Ante, at 15—16; Lopez, 514 U.S., at 573—574 (Kennedy, J., concurring). The interconnectedness of economic activity is not a modern phenomenon unfamiliar to the Framers. Id., at 590—593 (Thomas, J., concurring); Letter from J. Madison to S. Roane (Sept. 2, 1819), in 3 The Founders’ Constitution 259—260 (P. Kurland & R. Lerner eds. 1987). Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce–not to mention a host of local activities, like mere drug possession, that are not commercial.

One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States.

I think the aspects reserved to the States are any aspects in which Congress does not take an interest.

[Al Norris]

Publius42, you could go on quoting Thomas from his dissent. Nobody else seems to care about this anymore. But I love to read this particular opinion. He constantly nails the rest of the Court to that barn door they keep leaving open!

I think the aspects reserved to the States are any aspects in which Congress does not take an interest.

Shhhh! Let's keep it quiet, OK? They'll start looking to see what they might have missed...

[publius42]

Publius42, you could go on quoting Thomas from his dissent.

And I might. I keep hoping some of our drug warriors will show up to tell me why Thomas is wrong, and how Scalia's ruling in Raich can be reconciled with Madison in Federalist 45. I figure if you ask a question often enough, it may just get answered, if there is an answer...

[Al Norris]

I wonder whatever happened to WildwhoseemstohavenotfinishedreadingAlaska?

[publius42]

Tyme: As I understand the Supreme Court's commerce clause jurisprudence, anything that's not production, transfer, or consumption is technically still beyond the reach of Congress. So if congress passed a law against open or concealed carry, that would be unconstitutional.

But then you go on with your furby example, which could as well be applied to guns. So, mere possession of anything that came from another state (or had components from another state?) could be regulated, and that would include concealed carry. But under Raich, even if it came from your state, even if you grew it yourself, the fact that it could find its way to another state gives Congress power over it. That was applied to guns under Stewart (or soon will be, I guess I should say, since I haven't heard that the 9th did anything with it as yet.)

Of course, laws about bearing arms would seem to present a 2nd amendment problem, but the Court does not want to hear about the 2nd amendment, and would probably just spew forth some gibberish about concealed handguns having nothing to do with militias if they did hear it.

It's sounding to me like anything that might have anything to do with anything that ever touched on interstate commerce is now among the "few and defined" powers of the federal govt.

It sounds that way to Justice Thomas as well:

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

I think that if you took a copy of the Raich decision back in time to the Constitutional Convention and showed it to the Founders, the Convention would end in a riot. They never intended these sweeping powers. Otherwise, why would Madison say this in Federalist 45:

The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.

Doh.

[tyme]

Right. I shouldn't have separated them.

Is there a Supreme Court decision saying as much? It would have to be over an item that was bought by the defendent in an intra-state transaction, but was manufactured in another state.

I think that if you took a copy of the Raich decision back in time to the Constitutional Convention and showed it to the Founders, the Convention would end in a riot. They never intended these sweeping powers.

I think if the Constitutional Convention had been made aware of Raich, they would have modified the constitution to make it clear that such BS is not allowed. I don't think there would have been any debate on the changes, on either the federalist or antifederalist side. Not even the federalists wanted something like Raich.

[publius42]

It would have to be over an item that was bought by the defendent in an intra-state transaction, but was manufactured in another state.

Yes, or another country. That would apply to the vast majority of retail sales these days.

I don't know about you, but we don't make much of anything in my state.

[publius42]

There was some discussion back on page 1 re US v Stewart. That issue has been settled.

http://www.supremecourtus.gov/docket/04-617.htm

Jun 13 2005 Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Gonzales v. Raich, 545 U.S. ____ (2005).

[Hugh Damright]

So if congress passed a law against open or concealed carry, that would be unconstitutional.

Look what I found in the Congressional Record today:

THE CONCEALED WEAPONS PROHIBITION ACT OF 1997

Mr. LAUTENBERG. Mr. President, today I am introducing legislation, the Concealed Weapons Prohibition Act of 1997, that would prohibit individuals from publicly carrying a handgun.

...

Congress has the constitutional authority to provide this protection, Mr. President, and there is a strong Federal interest in ensuring the safety of our citizens. Beyond the human costs of gun violence, crimes committed with handguns impose a substantial burden on interstate commerce and lead to a reduction in productivity and profitability for businesses around the Nation whose workers, suppliers, and customers are adversely affected by gun violence. Moreover, to ensure its coverage under the Constitution's commerce clause, my bill applies only to handguns that have been transported in interstate or foreign commerce, or that have parts or components that have been transported in interstate or foreign commerce. This clearly distinguishes the legislation from the gun free school zone statute that was struck down in the Supreme Court's Lopez case.