“Rather than attempting to resurrect a nineteenth century notion that Congress cannot regulate goods wholly within a state – as the California plaintiffs did in the marijuana case, and Kansas’s Second Amendment Protection Act would do – what we should be asking is whether Congress has the power to drive products out of the market altogether. Or whether that is a choice each state can make for itself. To the extent Congress is regulating to ensure a safe and wide-open interstate market, that’s fine. To the extent Congress is making value judgments about what is or is not good for us, that’s not its job – at least not so long as the states disagree.” – Barry Friedman in Guns, Pot and States Rights [via huffingtonpost.com]

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26 Responses to Quote of the Day: Commerce Clause Edition

    • I think that everyone that loves liberty is finally realizing that it’s not just their individual area of interest at stake. It’s an all or nothing proposition.

    • wow I read that paragraph three times Still not sure if it says what I think it says.
      I think I woke up in opposite day.

  1. The Commerce Clause was never meant to be abused in this fashion and was not until the 1930’s. Now we have laws that use the CC to circumvent the Second Amendment. It was never intended to be used to create laws that dictate to a doctor how a surgery is performed because a scalpel crossed state lines.

      • No. He’s right to cite the Commerce Clause. Lok up Heart of Atlanta Motel v. U.S. The Feds used the Commerce Clause tom force a motel to take Non-White guests. I not saying that the purpose was wrong but it opened a Pandora’s Box of uses of that clause to advance a large number of causes that had nothing to do with Commerce. if you read the Federalist Papers you’ll see that the purpose of the clause was to prevent trade wars between the states.

  2. haha Someone commented at huff post ATF, for alcohol tobacco and firearms should be a chain of stores not a government bureau. Come on down to the ATF and tell us double barrel biden sent ya to receive a free 12pk of pabst blue ribbon and cohiba with the purchase of any double barrel shotgun.

  3. “Congress only has the power to regulate commerce, not prohibit it altogether. Although the Supreme Court has casually assumed the former necessarily includes the latter, that’s wrong if one thinks for just a moment about why the framers of the Constitution put the Commerce Clause in the Constitution in the first place. The Commerce Clause was intended to open borders, not close them. It was concerned that the states might engage in trade wars, impose tariffs on goods from other states, or flat out ban them. The framers realized that the commercial health of the nation required a free flow of commerce.”

    Nice to know people are waking up all over the country.

  4. ding ding ding. we have a winner. this is another case of SCOTUS telling us the Federal government has the authority to ban something under the interstate commerce clause, when in fact, they do not. And the sheeples respond: bleat!

    • Look, I honestly am a little confused here.. why would Congress need to use the Commerce Clause for anything? They have this :

      Necessary and Proper Clause (Article 1, section 8, clause 18):
      The Congress shall have Power – 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.

      Am I missing something?

      • Yes, you are.

        Seriously though, the Necessary and Proper clause, as you quote, is limited to “the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States…”

        So without a commerce clause there’s be no hook for N&P to regulate interstate trade.

      • The “powers” vested in the federal government by the Constitution are rather limited, so the necessary and proper clause is a relatively narrow thread on which to base legislation. Thus, the reliance on the Commerce Clause since FDR’s successful court-packing scheme.

  5. Because the Feds have significantly over-reached time and time again, at least four SCOTUS judges want to give the Commerce Clause a new look. They are constrained by stare decisis, but showed in United States v. Lopez that they don’t like the status quo.

    Will it overrule Wickard v. Filburn? Probably not. Until it does, we are all slaves to the Feds.

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