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Misreading Miller

Prior to Heller and McDonald, a common refrain from those who opposed the right of citizens to keep and bear arms was that the second amendment protected a “collective right”, rather than an individual one. Even today, some have fought against the Heller decision’s core findings, such as the ACLU, which has notoriously failed to embrace the civil liberty protections of the second amendment, choosing to cite United States v. Miller, claiming the second amendment “protects a collective right rather than an individual right.” This claim is unsupportable, and it requires grossly misreading the actual content of the decision. In this post, I will examine the Miller decision, its form and format, the problems of its history, and how, even if taken as good case law, it has been consistently misread by those with an agenda to end the private ownership of arms.

The Miller decision and its sordid history set the basis for this bit of “uncommon sense”. Jack Miller was a former bootlegger and assisted in bank robberies for the O’Malley gang. During the gang’s bank heists, he carried a sawed-off shotgun while acting as their getaway driver. This ultimately lead to his and his accomplice’s arrest for violating the newly-passed 1934 National Firearms Act (NFA). Under advice from the District court judge, the two men entered pleas of “not guilty”, arguing on Constitutional grounds the had not violated the federal law.The district court judge in Arkansas agreed, leading the federal government to appeal to the Supreme Court. It is here that the case took its most interesting turn.

With no representation to the Supreme Court, Miller and Layton’s case was argued entirely by one side – the government’s. Knowing this, the Supreme Court’s decision was not surprising:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Note the key words “absence of any evidence” – the court intrinsically acknowledged in the decision that no argumentation occurred. In fact, the court decided only on a limited question: does the federal government have the right to limit arms that could not serve a militiaman? They said “yes”, keeping the NFA alive, but remanded further proceedings to be decided at the lower court. These proceedings would include, presumably, arguments about whether the arms in question served military purpose. However, those arguments never came. Before the lower court could review the case, Jack Miller turned up dead in a lake, and Layton took a plea bargain.

The remainder of the Miller decision uses further history to state that the only weapons outside of Congressional control were those that could serve no reasonable military purpose. It does so primarily through quotes of Constitutional contemporaries and influences, e.g. Blackstone, Adams, and Osgood, the last being quoted saying the following (citations omitted):

‘In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.’ ‘The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.’

Clearly, we come from a history of arms where those borne by the people were meant to meet those of the armed forces. In light of this, the current state of 18 USC 922, particularly the limitations set forth related to “sporting purposes”, clearly don’t stand to constitutional scrutiny. Though these purposes may be intended to be protected under the second or tenth amendments, the argument put forth in Miller shows that, if anything, it is those weapons that can serve some military purpose that are protected under modern jurisprudence. Cases such as Heller and McDonald affirmed that it is a personal right to bear arms, but Miller said what kinds of arms the government may not ban a person from bearing. This contradicts the expressed desires of the campaign during the 2008 presidency where Obama’s claim that reducing “urban violence” required “making the expired federal Assault Weapons Ban permanent, as such weapons belong on foreign battlefields.” Clearly, historically, and constitutionally, such weapons are the most protected, not the most deserving of a ban.

Ultimately, a person who is evaluating the second amendment must recognize that the point isn’t to protect government, nor to protect society from its nefarious elements. The point of the second amendment is primarily rooted in protecting the people from government deprivation of military-style arms, for the purpose of revolution should such a need be found among the people. My next post will address this need, the issue of modern rebellion, and why such a protection is neither obsolete nor impotent.

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Arizona’s SB1070 – Unconstitutional No Matter How It’s Spun

History in Brief – Immigration and Constitutional Applicability

Since the foundation of the United States, the fear of foreign invasion has perverted the public discourse on policy and its legal extent. Towards that end, the Constitution’s limitations on search, seizure, and free speech have been hotly contested since even the earliest days of the country. The Constitution was ratified in 1787, with the first ten amendments following shortly thereafter in 1791. Before two presidential terms had passed, the nascent country was facing a conflict with its once-supporter, France. Fearful of foreign operatives infiltrating the US, the Federalist government passed the Alien and Sedition Acts, reducing individual rights to free speech and granting broad Federal authority to deport resident aliens that showed any signs of subversiveness.

As the Adams administration ended, the acts expired. Thomas Jefferson and James Madison, leaders of the Democratic-Republican party, sought to gain control of the federal government, largely using anti-Federalist sentiment based on the Acts. In the Virginia Report of 1799, Madison expressed his state’s general “protest against ‘the alien and sedition-acts’" and his views on their Constitutional merit. In a modern context, his views provide an important background to a founder’s view of the Constitution’s applicability to non-citizens, even before the 14th Amendment clarified the means and extent to which such protections and laws apply to all parties. Madison stated the following:

If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens.

Even before the 14th Amendment made explicit the equitable protection of law offered to all People with the United States, Madison present a cogent argument for the applicability of the Constitution to non-citizens. However, this clarity of thought was not always embraced, leading to  a situation where certain people within the country, slaves, were denied the rights and equitable protection of the law. Even today, I hear people claim that the rights and protections of the Federal and State Constitutions do not apply to illegal aliens. I will address this falsehood, and then why Arizona’s law cannot be Constitutionally upheld under current jurisprudence.

Equal Protection for All People

The fourteenth amendment states, in part, the following:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

There are two standards set forth here, one that applies to the citizens of the United States, and another that applies to anyone under the jurisdiction of United State law. If the line of reasoning set forth by Madison were not convincing, the clear and explicit words in this amendment show that equal protection of rights does not disappear due to immigration status in the country. This protection was upheld in Yick Wo v. Hopkins, where it was ruled that:

The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: ‘Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. It is accordingly enacted by section 1977 of the Revised Statutes that ‘all persons within the jurisdiction of the United States shall have the same right, in every state and territory, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.’ The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court.

Obviously, then, the first objection of “the constitution doesn’t apply to illegal aliens is devoid of Constitutional support. Why, then, do I think SB1070 violates the Constitution?

Arizona’s Law Runs Afoul of Current Jurisprudence

The Pervasiveness and Ease of Intrusion

Under the amended SB1070, when an officer is in contact that amounts to a “lawful stop, detention, or arrest” with a person, if there is any reasonable suspicion a person is an immigrant, a law enforcement officer is duty bound to determine the legality of that status. This wording supersedes the initial bill’s text of “lawful contact", presumably to head off the Constitutional arguments related to search and seizure. However,  a careful reader will note that the effective requirements have not actually increased under the new wording. Under the new law, Title 13 is amended to include criminal penalties (Title 13 is “Criminal Code”) for the following:

A. In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code section 1304(e) or 1306(a).

Note that this standard applies only to illegal aliens:

F. This section does not apply to a person who maintains authorization from the federal government to remain in the United States.

Beyond failing a fourteenth amendment test for equal protection, penalties, etc, this law provides a reason for an officer to engage any suspect they believe to be here illegally, as an officer may stop and ask for the name of any person who they have reasonable suspicion “has committed, is committing, or is about to commit a crime.” Since this law makes being here illegally a matter of criminal (not just civil) law – trespassing – an officer has no higher burden under which they must operate. Previously, SB1070 required the officer see the person and have a reasonable suspicion they are an illegal immigrant in order to stop them and determine their immigration status. Now, the amended version requires them to be lawfully stopping a person under reasonable suspicion of committing a crime – such as trespassing. The wording change amounts to nothing more than a legislative hand-waving effort.

The Law Does Not Meet Search and Seizure Standards

The “reasonable suspicion” standard, established in Terry v. Ohio, requires that intrusion into the personal and Constitutionally protected rights of personal effects, papers, etc must both serve “the governmental interest which allegedly justifies official intrusion” and be justified with “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

The twofold requirements for such a warrantless search and seizure of any person’s private affairs are not met by Arizona’s law. In order to justify the warrantless intrusion upon a person’s freedoms and private affairs, there must be a “compelling” governmental interest that so outweighs the loss of any individual’s privacy that any delay would pose a threat to the United States. This standard comes from Korematsu v. United States, where the internment of Japanese Americans in WW2 was justified under the following test:

The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so ‘immediate, imminent, and impending’ as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger.

Arizona’s law does not address a situation where the failure to enact its policies poses “immediate, imminent, and impending” danger to the United States public. Moreover, the Terry standard allows only the brief frisking of an individual in order to secure the safety of an investigating officer, not a search into the person’s identification records and immigration status, which is a much higher level of personal intrusion. Under another case, Hiibel v. Nevada, it was determined that “Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop.” Arizona’s relevant statute, mentioned earlier provides that “A person detained under this section shall state the person’s true full name, but shall not be compelled to answer any other inquiry of a peace officer.” This standard does not allow Arizona’s requirement under SB1070 to provide valid identification in the course of a Terry stop. A similar law to Arizona’s was tried and found to violate the Constitution in Brown v. Texas:

The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits.

The Logical Conclusion of Enforcement Amounts to Racial Discrimination

Given this framework, one must find and show that objective criteria exists by which to identify illegal aliens. Even though the amended bill states that officers may not “consider race, color or national origin in implementing the requirements” of the bill, that does not meet previously established guidelines. Namely, in Reitman v. Mulkey, it was decided that a court must “assess the potential impact of official action in determining whether the State has significantly involved itself with invidious discriminations.” That means, if the logical conclusion the enforcement of a law amounts to racial discrimination, the law itself must be repealed, even if it is not on its face racially discriminatory. Analyzing the situation in Arizona under any sort of objective lens, one must conclude the law will have the effect of targeting Mexicans in particular, leading to an unequal invasion in their personal effects and papers.

The Law Impedes Upon Freedom to Contract

Under Yick Wo v. Hopkins, “all persons within the jurisdiction of the United States shall have the same right, in every state and territory, to make and enforce contracts.” Arizona’s law sets an unequal standard:

C. IT IS UNLAWFUL FOR A PERSON WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS AN UNAUTHORIZED ALIEN TO KNOWINGLY APPLY FOR WORK, SOLICIT WORK IN A PUBLIC PLACE OR PERFORM WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR IN THIS STATE.

A simple thought experiment shows the invalidity of this statute under the equal contract framework. Two individuals, both are immigrants, and both are of the same race, age, build, et cetera are seeking a job as a day laborer. Both stand on a private parking lot, waiting to be hired. One person is illegally present within the United States, the other is not. Under Arizona’s bill, the person who is not legally present may not make a contract for such work. Moreover, should they engage in work anyway, but are not paid, they lose a means for legal recourse, as the state will not enforce the contract they make. This violates both Wo and Reitman, and clearly shows that the law is unequally applied to different persons within the jurisdiction of Arizona state.

Conclusion

Arizona’s law fails to meet Constitutional scrutiny on multiple levels. While groups such as the ACLU have addressed this statute’s violation of the Supremacy Clause, I attempt in this post to demonstrate how the clause runs afoul of fourth and fourteenth amendment jurisprudence. The law allows for seizure of personal information at a level more pervasive than allowed under Terry or Hiibel. Its identification  requirements are akin to those overturned in Brown.  It does not provide justification that meets the bar of Korematsu. The effect of the law can be reasonably seen to enable racial discrimination, invalidating it under Reitman. The unequal ability of illegal immigrants to make and, especially, enforce contracts shows that it cannot be reasonably viewed under Wo. Due to all of these issues, plus those put forth by groups such as the ACLU, Arizona’s bill should be stricken due to being Constitutionally invalid.

It is my opinion that the solution to this problem is a federal expansion of legal avenues for immigration, with strict federal penalties for failure to follow the channels. We should not be turning away those people who are willing to come here and work, but should see them as seekers of the American dream. Millions of people could be productive contributors to our society, if we provided a path that did not have a many-year backlog from application through acceptance. In providing such a means to citizenship, we could turn the tide of illegal immigration into a means of raising our country’s GDP through an increase of legal workers, positively contributing to our economy and our country’s rich cultural heritage.

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Uncommon Sense – Part 1

If you’ve ever had the misfortune of hearing the likes of Paul Helmke or Carolyn McCarthy discussing firearms, this post series is for you. Perhaps it’s just me, but I think that legislation should have to prove its efficacy to some degree in order to be vigorously pursued. More than that, those people claiming to represent us should not be voting on issues they have not read and/or do not understand.

“How does this relate to Senator McCarthy or lobbyist Helmke?” you ask. Consider the propositions put forth by Helmke and his group at the Brady Campaign, as well as the obvious lack of knowledge McCarthy displays when asked about even simple firearm questions. I’m sure she’s been prepped in case she encounters the question again, but just in case not, here’s the clue. A “barrel shroud” is a shroud that surrounds the barrel (generally to protect the user from burning themselves after shooting a few rounds). I know, I know, it’s a bit complicated to have the definition be so easy, but the fact she got on national television and couldn’t even identify what it was she desired to ban scares me.

In the same way that  McCarthy is unable to identify the commies gun parts she is hunting, Helmke seems unwilling to examine the effectiveness of his groups’ proposed laws. Both he and McCarthy claim that assault weapons should be regulated because they pose an immediate threat to the public, yet Christopher S. Koper, writing for (yet not officially representing) the US Department of Justice, concluded that “the ban’s effects on gun violence are likely to be small at best and perhaps too small for reliable measurement. AWs were rarely used in gun crimes even before the ban.” Moreover, even after looking at the data (charts to come in a later post), the correlation between the desired legislation and the effect seem unrelated at best, opposed at worst.

What’s uncommon in my view is the boldness to come forth and look at the real numbers, refusing to stand by something for an ideological viewpoint without having the empirical backing to support it. Lacking empirical data for plans that remain untested, it seems sensible that a sunset clause should be mandatory for at least the first iteration of a bill. Unfortunately, we’re left with lobbyists on pedestals claiming “all we want is common sense rules that will block <group> from getting <item>.” In my uncommon sense, these arguments could only be strengthened by using reality. The short of it: don’t legislate from emotion, but from effectivity.

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Law and Reform, Healthcare and the Forum of Change – Part 2

Last week I addressed the Constitutionally mandated limits on the powers of Congress. Today’s topic investigates the history of these limits being violated, how the courts (Supreme, especially) reacted, and the status quo in light of this history.

America’s Great Depression was a four year period in which the gears of the worldwide economy jarringly halted. Numerous causes have been proposed, but those are a topic for another post. Today’s topic focuses on proposed and attempted solutions and their impact on the landscape of American policy.

Similar to the recent election, Roosevelt and the broader Democratic party entered office with significant political capital. This capital came in the form of backlash against a Republican party that espoused “rugged individualism” in the face of adverse economic climate. The Federal Reserve, a mere 16 years old at the time of the crash, is oft blamed for the problems leading to the economic downturn. Whether by the Monetarists’ view that the crash was due to the Fed not pumping enough liquidity into the markets or the Austrians’ view that it was a previous shift from gold that caused the crash does not change that the crash happened. Addressing that crash was viewed by the People as the responsibility of the Federal government – they created the Fed, the Fed didn’t stop the crash, they should fix the problem. The result was Roosevelt’s political capital, and its outcome – the New Deal.

Roosevelt met staunch resistance from the Supreme Court during the beginning of the New Deal. Though the policies put forth by Congress and approved by Roosevelt were disparate, they shared one common thread: increased federal power. There are those that argue the expanse of federal power predate those policies Roosevelt approved. However, the policies predating Roosevelt, as well as his first-term policies, met repeated Constitutional challenge. A central piece of New Deal legislation was tested and found unconstitutional in Panama Refining Co. v. Ryan. Reading the majority opinion, it becomes clear that the Supreme Court was concerned that the breadth of power Congress was trying to vest in the Federal government were beyond prudence:

The point is not one of motives, but of constitutional authority, for which the best of motives is not a substitute. While the present controversy relates to a delegation to the President, the basic question has a much wider application. If the Congress can make a grant of legislative authority of the sort attempted by section 9(c), we find nothing in the Constitution which restricts the Congress to the selection of the President as grantee.

The court saw that, despite the best intentions of both Congress and the President to help the People, they are not granted unlimited authority in all legislative manner. Ultimately, they struck down the “Hot Oil Act” as unconstitutional, setting up the confrontation that would ultimately grant the Federal Government the growth it desired.

After reelection in 1936, stinging with the rulings in Panama Refining Co. v. Ryan, Schechter Poultry Corp. v. United StatesUnited States v. Butler, etc, and still upholding New Deal ideals, Roosevelt proposed the Judiciary Reorganization Bill of 1937. Known by many as the “Court Packing Bill,” Roosevelt saw the interference of the Supreme Court as an unacceptable hindrance to his New Deal. Roosevelt proposed appointing a new justice for every federal court justice over 70, providing a means to replace those justices standing in the path of his new policies. Though the packing bill was defeated (after a historical anecdote known as the “switch in time that saved nine“), it marked a radical shift in judicial policy.

Post-West Coast Hotel, many New Deal and subsequent policies went unchallenged or were decided in favor of allowing increased Federal control. I opine the shift towards Federal control was bolstered at this point, perhaps irreversibly. Though the government had established over 100 years earlier, in McCulloch v. Maryland, that the Necessary and Proper clause granted broad Congressional power within Article 1 Section 8 guidelines, it was in 1937 that the US saw its first span of minimally-fettered federal growth. In what I consider a sad misappropriation of the reasons for the 10th Amendment’s existence, United States v. Darby Lumber Co. stated, in part:

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

Even in writing the above, the Supreme Court acknowledged the fear that the Federal government would exceed its granted power. Moreover, it clearly shows that the purpose of the 10th Amendment was known to stand as a restriction of such excess. The court’s next paragraph even seems to contradict the thought as put forth (emphasis mine):

From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.

Under this interpretation, the Supreme Court should not, in my opinion, grant such broad authority to the Federal government to exercise any power even tangentially related to those powers enumerated. The “plainly adapted” clause in Darby indicates that the laws under consideration must be obviously permitted by the Constitution when considering 10th Amendment inquiry. The Court dismissively refers to the 10th Amendment as “but a truism” – a tautology which does nothing but restates the basic premise of the Federal government. Somehow the entirety of the above, bolded statement is lost in pursuit of the first two words, “all means.”

Bringing this back to its origin, a nationalized health care program, I invite those who think it’s within the current purview of the government’s power to show how. Moreover, that explanation should manage to stand without a tortured path of tangential relations to commerce.

I don’t address the need for single payer healthcare, because I think the forum must be decided, first. Should enough of the People find it within the legitimate interests of Congressional control, I contend those people should follow the amendment process. Until then, each State, county, municipality, etc should have the choice to enact or reject its own program. Should the experiment of such be found effective, other states can witness the resounding success, convincing them such a plan benefits them. Moreover, the state-by-state competition allows the People a manner by which to compare the real-world quality and impact of such plans, before deciding which is better, if any at all. It is then the forum can be expanded, only after the experiment has been proven worthwhile within our system of governance.

Supreme Court Justice Louis D. Brandeis is famous for his dissenting opinion in New State Ice Co. v. Liebmann, oft called “Laboratories of Democracy” quote:

It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

Though others point to other countries as examples of these laboratories, the comparison falls short. Our government, its rules, and the composition of our nation’s heritage differs than those other countries. While such countries may inspire states of a similar bent to follow their plans, it is hardly a just comparison to state the entirety of the states must plunge into the murky waters of such a plan. This holds doubly true when one considers our legal history and the requirements placed upon our Federal government. Ultimately, the move towards a single-payer system lies in the hands of the States, or the People. Taking another path subverts and short-circuits the nature of our country’s policies. Perhaps it’s a city v. countryside issue, but that is in the realm of another post.

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Law and Reform, Healthcare and the Forum of Change – Part 1

Currently, there is a debate raging through the nation, asking about and criticizing President Obama’s federalized healthcare plan. Instead of putting more argumentation into an already muddied debate on the need for taxpayer-funded healthcare, I will focus on the forum for the plan. This requires taking a look at the Constitution, the applicability of federal law, and the means by which such laws can be enacted and enforced.

As previously mentioned, I think Congress has overstepped its mandate granted through Article 1 Sections 8 in the United States Constitution. That section states, in part, the following regarding the Powers of Congress:

Section 8 – Powers of Congress

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

This states, in no uncertain terms, the initial powers granted to Congress. Specifically, they may do what is necessary and proper to execute the long list of things in Section 8, anything else in the Constitution stated to be under federal control, and any power listed in the Constitution as prohibited to the states (under Section 10, for example). Congress is further restrained in what it may do by Section 9 and Amendment 10, which states the following:

Amendment 10 – Powers of the States and People.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This mean that Congress only has the powers given within the Constitution, or restricted from State control by the Constitution. No other powers exist for the United States Federal Government. Those powers are under control of the individual states, and if the states don’t restrict the actions, then they are up to the people to decide. Pre-ratification debate centered on the ability of Congress to pass laws under such broad power, with the Anti-Federalist papers remarking “when the people once part with power, they can seldom or never resume it again but by force”. Debate on such ended with the passage of the Bill of Rights, the last guaranteeing that Congress would be limited from enacting any law that suits their fancy.

Given those limitations, I am in awe at the multitude of things the federal government seeks to control through legislative mandate. The most common “hook” used to circumvent these limitations is combining the necessary and proper clause with the commerce clause in regulating anything that has been or could be involved in interstate commerce. The abusive nature of this should be evident to any who read the commerce clause: “[Congress shall have the Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”. This wording suggests that it is the exchange of goods between parts of the country that should be regulated. That interpretation appears to be strongly upheld in the Federalist Paper 6 – Concerning Dangers from Dissentions Between States:

… The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.

The Founders of these United States saw that the competitive nature of commercial enterprise could be detrimental to the success and prosperity of the unified states. Thus, the commerce clause was included as a means to insure trade would remain free within the republic, because such commerce reduced the chance of war. In fact, it was commerce – or disparity thereof – that sparked the Civil War. Reading the Confederate States of America’s Constitution next to the United States Constitution, it becomes clear that the economy was at the forefront of conflict. States rights played a distant second when one considers the changes made to the CSA’s Constitution, which granted the states manners to raise revenue through regulating their waterways to insuring their economic reality of slavery was upheld. I’m sure in future posts I’ll return to this issue; currently, I use it to illustrate the nature of the “commerce clause” and how its present invocation runs amok through Constitutional intent and construction.

Ultimately, Congress was meant to be – needed to be – limited in its power to gain state support for a federal program. How, then, have we come so far, where the majority of people believe Congress to be empowered to enact almost any law? Moreover, at what level does the Constitution apply to the states? Why is the federal government the wrong forum for healthcare, as currently proposed?  I hope to answer these questions, and maybe more, next week. Until them, cheers!

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Origins

I don’t know to what end this blog will find itself. Originally it was registered in the run up to Obama’s election, in response to how often “common sense” was thrown around in reference to laws, politics, or other aspects of the governance of the United States of America. As time marched its steady pace forth, I found myself wanting to write yet never finding the time.

Over the course of this blog’s existence, I hope to address a number of issues. The first and primary is gun control. Astute readers, or those well versed in modern political rhetoric, will recognize Common Sense Thought Control (hereafter CSTC) as a modification of the Brady Campaign’s “common sense gun control” rhetoric. In many ways, their approach towards the debate on firearms laws and restrictions is based entirely on controlling public thought on firearms. Deconstructing their rhetoric and that of similar control advocates in an effort to address the myriad variety of questions and retorts commonly employed by them will take many posts. At time, in response, my own musings may exceed both my ability to word them and/or depth of thought yet invested. Bear with me, as this is as much a journey for my own expository exploration of thoughts as it is a formalized set of arguments or positions in which I traditionally find myself engaged.

Beyond the issue of gun control, I would also like to investigate Constitutional parameters in the modern context. The modern US view seems to have lost the idea of limited national governance. Congress is expected to hold near absolute authority in the realm of law. In my eyes, this flies in the face of Article 1, Sections 8 (and the associated Amendments 9-10).

Though it’s not a topic I intend to delve into deeply or often, the thoughts and debates come up enough to warrant mention. Religion and its effects on people, the world, et cetera will likely end up discussed.

Finally, as other political, economic, or social happenings occur, I may provide commentary thereupon. As previously stated, this is exploratory. Though I will try to be straight with my words and thoughts, logically consistent, et cetera, I cannot guarantee perfection upon genesis. Thoughts are iterative, and must be examined, stretched, refined, or even removed as new information or analysis is encountered. It is in that willingness to think we overcome adversity, preconceived ideas of what is right or wrong, and ultimately define a viewpoint that, while not consensus, serves the ends determined best for the People. Welcome, and enjoy!

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