Monday, May 4, 2009

Libertarian comment rescue: Interstate commerce v 2nd Amendment

This comment by GRex over at Hube's place got me started thinking:

They're most likely trying to ride the Craig's List killings and that woman who drove a teenager to commit suicide. Add that to the grandstanding over NCAA football playoffs, and I wonder if there's anything at all that Congress can't mess with under the Interstate Commerce Clause?

Here's what the comment made me think: the Interstate Commerce Clause is the (supposedly) (only) Constitutional basis for virtually all major legislation for the past several decades, but what I never see is any calls for an originalist interpretation of the ICC.

Yet at the same time we are usually inundated with arguments that the 2nd Amendment was only intended to arm militias, or arguments that the Framers never anticipated automatic weapons to justify gun control.

I'm trying to distill this contradiction down to a workable premise, and I think I've got it:

Parts of the Constitution that empower the State can be constantly re-interpreted, but those parts which restrict the power of the State must remain as narrowly limited as possible.


Hube said...

Amen, Steve!

keydet aka Townie 76 said...


Very interesting post. First an interesting comments regarding a linkage between two of your points, the investigation on the need for a playoff for Division 1A football is being chaired by Representative Bobby Rush of Illinois. Representative Bobby Rush is also the same individual who has introduced HR 45 that if passed would make gun ownership illegal.

As you are aware, I am more liberal on some things and more conservative on others than you, however I find that Representative Rush legislation is nefarious. There was a point in my life, that I accepted George Will's belief that the 2nd Amendment was unfortunate; however a number of years ago when doing some in-depth study of the Origins of the Bill of Rights; I came to the conclusion that none of the rights was more scared than another; than in fact they are all fundamental, inalienable rights which the founders believed were essential to ensuring the power of the state remained checked by the citizens. I concluded that the founders knew what what they meant. (As I pointed out to you in an email--unfortunately Congress did not take the language proposed by James Madison which might have ended misunderstanding regarding the 2nd Amendment.)

The problem, is that, there is a certain group within our Society, who wishes to recast the meaning of the Constitution as they want it not as it is. Bobby Rush does not understand the purpose of the Bill of Rights nor does he understand the purpose of the Constitution; that the Bill of Rights protects the citizens and states from the concentrated power of the central government; and that the Constitution defines what the central government must do and what it can not do.

Whether Congress should be telling the NCAA how to run corrupt college sports is another debate; however I would point out that the NCAA was born out of the actions of a very activists President--Teddy Roosevelt.

Hank Foresman

Duffy said...

This divide was most recently illuminated with split between Scalia and Thomas over the medical marijuana issue before the USSC. Scalia argued that the interstate clause may apply even if the stuff was produced and consumed w/in the state exclusively as it might impact prices across the several states. Thomas countered that anything would then be covered under the clause including garage sales, quilting bees and everything else.