Bill would require all S.D. citizens to buy a gun

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[Kythas]

it is about as unconstitutional as Obama's mandatory health insurance bill.

I disagree. The Constitution gives no power to the Federal government to require we purchase a good or service. The 10th Amendment states any power neither granted to the Federal government nor specifically barred from the States is reserved to the States, or to the People.

There is nothing in the Constitution barring a State from requiring we purchase a good or service, such as auto insurance. There is nothing in the Constitution granting that power to the Federal government. That is a power, per the 10th Amendment, reserved to the States.

Massachusetts requires its citizens purchase health insurance. That is not unconstitutional.

[pt145ss]

it is about as unconstitutional as Obama's mandatory health insurance bill.

I disagree. The Constitution gives no power to the Federal government to require we purchase a good or service. The 10th Amendment states any power neither granted to the Federal government nor specifically barred from the States is reserved to the States, or to the People.

There is nothing in the Constitution barring a State from requiring we purchase a good or service, such as auto insurance. There is nothing in the Constitution granting that power to the Federal government. That is a power, per the 10th Amendment, reserved to the States.

Massachusetts requires its citizens purchase health insurance. That is not unconstitutional.

http://www.lawnix.com/cases/commerce-clause.html

In Wickard v. Filburn (1942), Congress set quotas on wheat production through the Agriculture Adjustment Act. Wickard exceeded his quota when the amount of wheat produced for his own use was included with the amount he sold. The Supreme Court held that Congress has the power to regulate local intrastate activities, such as the production of wheat for personal use, if they have an aggregate effect on interstate commerce.

I suppose the argument could be made that this mandate would have an aggregate effect on interstate commerce.

[Kythas]

In Wickard v. Filburn (1942), Congress set quotas on wheat production through the Agriculture Adjustment Act. Wickard exceeded his quota when the amount of wheat produced for his own use was included with the amount he sold. The Supreme Court held that Congress has the power to regulate local intrastate activities, such as the production of wheat for personal use, if they have an aggregate effect on interstate commerce.

I suppose the argument could be made that this mandate would have an aggregate effect on interstate commerce.

I'm not sure Wickard v Filburn would be applicable here. This is a case of a State requiring a purchase, not the Federal government. Congress may be able to prohibit someone from manufacturing his own firearm for his own personal use, as he would otherwise purchase his firearm on the open market, but South Dakota residents would, under this law, be purchasing firearms on the open market and therefore this law would not have an aggregate impact on interstate commerce except to increase it.

However, Wickard v Filburn may come back to bite us in the posterior where Obamacare is concerned. That case basically gives Congress unlimited regulatory power. Good point.

[pt145ss]

In Wickard v. Filburn (1942), Congress set quotas on wheat production through the Agriculture Adjustment Act. Wickard exceeded his quota when the amount of wheat produced for his own use was included with the amount he sold. The Supreme Court held that Congress has the power to regulate local intrastate activities, such as the production of wheat for personal use, if they have an aggregate effect on interstate commerce.

I suppose the argument could be made that this mandate would have an aggregate effect on interstate commerce.

I'm not sure Wickard v Filburn would be applicable here. This is a case of a State requiring a purchase, not the Federal government. Congress may be able to prohibit someone from manufacturing his own firearm for his own personal use, as he would otherwise purchase his firearm on the open market, but South Dakota residents would, under this law, be purchasing firearms on the open market and therefore this law would not have an aggregate impact on interstate commerce except to increase it.

However, Wickard v Filburn may come back to bite us in the posterior where Obamacare is concerned. That case basically gives Congress unlimited regulatory power. Good point.

The point is, If the SD law were to pass and then make it to SCOTUS, the argument the liberals would make would be that it is unconstitutional because the activities substantially effect commerce e.g. shipping of firearms and etc. I assume this would mean that the fact that they force the citizens to purchase something would not even be an argument. I personnally believe what SD is doing has not been well thought out and could possibly hurt our cause.

[Oldgringo]

How come a topic posted in jest draws out so many aspiring barristers?

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[pt145ss]

The point is, If the SD law were to pass and then make it to SCOTUS, the argument the liberals would make would be that it is unconstitutional because the activities substantially effect commerce e.g. shipping of firearms and etc. I assume this would mean that the fact that they force the citizens to purchase something would not even be an argument. I personnally believe what SD is doing has not been well thought out and could possibly hurt our cause.

I think there would have to be a conflicting Federal law for an interstate commerce clause challenge to hold water.

States already have numerous laws regulating commerce within their borders. Consider the Texas laws regulating alcohol sales on Sunday. Or, back on the subject of firearms, Illinois requires a FOID to purchase a firearm or ammunition. I can't recall the Democrats claiming that's unconstitutional because of Wickard v Filburn.

I can only imagine the brady bunch filing a friend of the court breif saying something to the affect that the SD law would substantially effect interstate commerce and therefore SD does not have the right to mandate such a thing.

you might be right, there may need to be some sort contradicting federal law. Does anyone know if there is any case law surrounding Kennesaw, GA's law?

As for other state laws regulating intrastate commerce, i must assume these laws do not substantially affect interstate commerce.

It's a good thing I'm not a lawyer and I'm fortunate enough to be humble and learn from others. I almost always put my 2 cents in just to foster debate so i can learn.

[surprise_i'm_armed]

My Georgia home was in Acworth, right next to Kennesaw.
Some Kennesaw stories:

1. The Kennesaw "you must have a gun" act was passed in 1982.
In 1988, when we were looking for a house, the realtor brought us to
one in Kennesaw.

She knocked on the door lightly, didn't give anyone
inside the chance to answer the door, then she just barged right in.
We would not follow her since we expected some "Castle Doctrine" lead
might start flying. Sure enough, the resident was a day sleeper and surprised
her when he appeared (but no gun).

2. In downtown Kennesaw there is a business known as "Dent Myers - Best Little
Warhouse in Georgia." Mr. Dent Myers runs the store, which has various Rebel
items for sale, such as Civil War books.

He is a quiet guy (racist) who paces his store in dirty jeans, bare feet, and in his
US Army web belt he has matching 1911's facing backwards, on each hip, open carried.
Before he started his own store he was a technical writer for Lockheed Martin at the Marietta, GA plant.

This was quite a change of pace for a transplanted Yankee from anti-gun Massachusetts!!

3. Kennesaw, GA was the place where 2 GG's were open-carrying some Springer .45's in a diner
of some sort. When the BG's came in to rob the place, they saw the OC guns and turned right
around to leave. They had drawn the suspicions of Kennesaw PD, who promptly arrested them.

SIA

[Oldgringo]

My Georgia home was in Acworth, right next to Kennesaw.
Some Kennesaw stories:

1. The Kennesaw "you must have a gun" act was passed in 1982.
In 1988, when we were looking for a house, the realtor brought us to
one in Kennesaw.

She knocked on the door lightly, didn't give anyone
inside the chance to answer the door, then she just barged right in.
We would not follow her since we expected some "Castle Doctrine" lead
might start flying. Sure enough, the resident was a day sleeper and surprised
her when he appeared (but no gun).

2. In downtown Kennesaw there is a business known as "Dent Myers - Best Little
Warhouse in Georgia." Mr. Dent Myers runs the store, which has various Rebel
items for sale, such as Civil War books.

He is a quiet guy (racist) who paces his store in dirty jeans, bare feet, and in his
US Army web belt he has matching 1911's facing backwards, on each hip, open carried.
Before he started his own store he was a technical writer for Lockheed Martin at the Marietta, GA plant.

This was quite a change of pace for a transplanted Yankee from anti-gun Massachusetts!!

3. Kennesaw, GA was the place where 2 GG's were open-carrying some Springer .45's in a diner
of some sort. When the BG's came in to rob the place, they saw the OC guns and turned right
around to leave. They had drawn the suspicions of Kennesaw PD, who promptly arrested them.

SIA

A racist in Georgia? Are you kiddin' me? Get out!

I bet there ain't no racists in New York City or Chicago or Boston!

[Kythas]

In Wickard v. Filburn (1942), Congress set quotas on wheat production through the Agriculture Adjustment Act. Wickard exceeded his quota when the amount of wheat produced for his own use was included with the amount he sold. The Supreme Court held that Congress has the power to regulate local intrastate activities, such as the production of wheat for personal use, if they have an aggregate effect on interstate commerce.

I suppose the argument could be made that this mandate would have an aggregate effect on interstate commerce.

I'm not sure Wickard v Filburn would be applicable here. This is a case of a State requiring a purchase, not the Federal government. Congress may be able to prohibit someone from manufacturing his own firearm for his own personal use, as he would otherwise purchase his firearm on the open market, but South Dakota residents would, under this law, be purchasing firearms on the open market and therefore this law would not have an aggregate impact on interstate commerce except to increase it.

However, Wickard v Filburn may come back to bite us in the posterior where Obamacare is concerned. That case basically gives Congress unlimited regulatory power. Good point.

The point is, If the SD law were to pass and then make it to SCOTUS, the argument the liberals would make would be that it is unconstitutional because the activities substantially effect commerce e.g. shipping of firearms and etc. I assume this would mean that the fact that they force the citizens to purchase something would not even be an argument. I personnally believe what SD is doing has not been well thought out and could possibly hurt our cause.

If they argue this, then they would also be relegating Obamacare to unconstitutional status, as their argument would be the same. Does forcing people to purchase health insurance not constitute an activity which would substantially affect interstate commerce? If their argument were to stand in that case, then states forcing us to purchase auto insurance would also be deemed unconstitutional as that mandate, I'm sure, also affects interstate commerce.

Of course, not mandating the purchase - of either a firearm or insurance - would also affect interstate commerce for that commodity, per Wickard v Filburn. So, according to the logic of that case, either requiring a purchase or prohibiting an action which would prevent a purchase both substantially affect interstate commerce, and hence both are constitutional for Congress to regulate.

You can't separate the act of purchasing (or not purchasing) from its effect on interstate commerce, as one could not exist without the other.

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[surprise_i'm_armed]

As a side note, the reason that the Federal government got so involved
with the interstate commerce activity was that in the early days of
this country, the states were very protectionist of their own citizens'
industries and passed onerous tariffs and such against other states'
goods.

The Feds stepped in so that interstate commerce could be conducted
more fairly. But of course now the interstate commerce angle is what
the feds use to stick their nose into all kinds of things.

SIA

[Bart]

Of course, not mandating the purchase - of either a firearm or insurance - would also affect interstate commerce for that commodity, per Wickard v Filburn. So, according to the logic of that case, either requiring a purchase or prohibiting an action which would prevent a purchase both substantially affect interstate commerce, and hence both are constitutional for Congress to regulate.

You can't separate the act of purchasing (or not purchasing) from its effect on interstate commerce, as one could not exist without the other.

Don't believe the big lies of the socialists.

Congress has the constitutional power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".

However, they don't have any legitimate power to regulate local activities merely because they affect those kinds of commerce. Only the power to regulate the actual cross border commerce. The Federal abuse of the commerce clause is no more legitimate than if they banned Islam in America.

[Kythas]

Of course, not mandating the purchase - of either a firearm or insurance - would also affect interstate commerce for that commodity, per Wickard v Filburn. So, according to the logic of that case, either requiring a purchase or prohibiting an action which would prevent a purchase both substantially affect interstate commerce, and hence both are constitutional for Congress to regulate.

You can't separate the act of purchasing (or not purchasing) from its effect on interstate commerce, as one could not exist without the other.

Don't believe the big lies of the socialists.

Congress has the constitutional power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".

However, they don't have any legitimate power to regulate local activities merely because they affect those kinds of commerce. Only the power to regulate the actual cross border commerce. The Federal abuse of the commerce clause is no more legitimate than if they banned Islam in America.

I agree with you completely that the Commerce Clause has been completely warped. However, due to Wickard v Filburn, Congress does have the power to regulate local activity if that local activity can be shown to impact interstate commerce. I'm not saying I agree with it, but rather this is the world in which we find ourselves.

I would love to go back to the original intent of the Constitution, where Congress has limited, specifically enumerated powers.