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#761443 - 11/13/03 11:04 AM Re: Au revoir les amis !
Renauda Offline
5000 Post Club Member

Registered: 04/16/02
Posts: 5066
No I don't misunderstand anything. Rather, as Shantinik has reasonably demonstrated, it is the opposite: you read into the constitution what isn't there. Americans abrogated their rights as loyal subjects of the British Crown by enagaging in armed insurrection and rejection of British rule. Under the British, Americans did in fact have the right to bear arms as personal property but forfeited this right in favour of state militias.

On the other hand we retained this right under British Common Law and the British North America Act of 1867. As such, if Americans had been patient and negotiated Dominion status (something teh British surely would have granted)with British, you would not have lost your rights to bear personal arms under Common Law. :p
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"The older the fiddle, the sweeter the music"~ Augustus McCrae

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#761444 - 11/13/03 11:21 AM Re: Au revoir les amis !
shantinik Offline
4000 Post Club Member

Registered: 09/23/01
Posts: 4271
Loc: Olympia, WA
My take on it is slightly different. I think Americans have the common-law right to bear arms as personal property much as they have the right to bear can openers. As JBryan has correctly pointed out, a Constitutional Amendment was unnecessary for that purpose.

What both the Amendment, subsequent legislation at local, state, and federal levels, and more than 60 years of court decisions (now unchallenged by the NRA) make clear, that right is not absolute EXCEPT as it is seen in the context of maintaining a "well-regulated militia". Outside of that context, the right to bear arms can be, and has been, substantially more circumscribed than the right to bear a can opener, and the courts have ruled consistently that this is so (though I know of no court ruling related to can openers.)

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#761445 - 11/13/03 11:22 AM Re: Au revoir les amis !
shantinik Offline
4000 Post Club Member

Registered: 09/23/01
Posts: 4271
Loc: Olympia, WA
My take on it is slightly different. I think Americans have the common-law right to bear arms as personal property much as they have the right to bear can openers. As JBryan has correctly pointed out, a Constitutional Amendment was unnecessary for that purpose.

What both the Amendment, subsequent legislation at local, state, and federal levels, and more than 60 years of court decisions (now unchallenged by the NRA) make clear, that right is not absolute EXCEPT as it is seen in the context of maintaining a "well-regulated militia". Outside of that context, the right to bear arms can be, and has been, substantially more circumscribed than the right to bear a can opener, and the courts have ruled consistently that this is so (though I know of no court ruling related to can openers.)

You are entitled to disagree. The NRA, in not challenging these circumscriptions for the past two decades, apparently doesn't.

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#761446 - 11/13/03 11:29 AM Re: Au revoir les amis !
JBryan Offline
9000 Post Club Member

Registered: 01/19/02
Posts: 9798
Loc: Oklahoma City
I know you two are having a lot of fun with this but just in case you might be interested in a serious discussion of this issue:

 Quote:
What both the Amendment, subsequent legislation at local, state, and federal levels, and more than 60 years of court decisions (now unchallenged by the NRA) make clear, that right is not absolute EXCEPT as it is seen in the context of maintaining a "well-regulated militia". Outside of that context, the right to bear arms can be, and has been, substantially more circumscribed than the right to bear a can opener, and the courts have ruled consistently that this is so (though I know of no court ruling related to can openers.)
[/b]
It is by no means clear that the right to own and bear arms is limited to the context of maintaining a well-regulated militia. You have provided some rather tortured logic to represent the notion that owning and bearing arms is protected by the Second Amendment but that the use of these arms for personal defense is somehow not. It requires a strange use of logic to come to the conclusion that I am allowed to own a firearm to protect myself from government but from nothing else. That is just plain silly.

The fact that there have been some restrictions (on the federal level) placed on types of firearms that can be owned is simply a reflection of the fact that none of the rights protected by the Constitution are absolute. There have always been reasonable restrictions placed on any of these (we are all familiar with the "yelling fire in a crowded theater" scenario) but these limitations are understood not to have the effect of abrogating the right by circumscription.

Finally, you seem to be having a lot of fun representing what the NRA thinks and is willing to do. I am sure the NRA itself has quite a different view. You infer much about them from very little. I suggest you do a little more research on the NRA:

http://www.mynra.com/
_________________________
Better to light one small candle than to curse the %&#$@#! darkness.

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#761447 - 11/13/03 12:23 PM Re: Au revoir les amis !
shantinik Offline
4000 Post Club Member

Registered: 09/23/01
Posts: 4271
Loc: Olympia, WA
Not silly in the least. Miller, and the subsequent Supreme Court decision in 1981 make it very clear.

The 2nd Amendment protects an absolute right to bear arms in the context of a well-regulated militia.

Common-law property rights include the right to own, sell, and use firearms. These rights, unlike the Second Amendment, are not absolute, as has been demonstrated in literally dozens of laws, regulations, and bans in several dozen states, upheld by state and federal courts. They are no more than the right to own, sell, and use a can-opener, and can be restricted. Having tried to argue otherwise in 1981 before the Supreme Court, the record is very clear that the NRA has NOT been willing to back another case before the Court in more than two decades. Don't look at what they SAY, look at what they DO. Very smart folks at the NRA, with very good lawyers. They know they'd lose.

Various state constitutions do provide for the use of arms in self-defense. They needed to do so because state legislators had a keen understanding that the 2nd Amendment did NOT enunciate such a right, and that under common law, the right could be circumscribed (as it has been.)

I'm surprised at you that you should consider such clear and easily understood distinctions to be "silly". You're entitled. The courts apparently don't.

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#761448 - 11/13/03 12:27 PM Re: Au revoir les amis !
gryphon Offline
Yikes! 10000 Post Club Member

Registered: 08/09/01
Posts: 11678
Loc: Okemos, MI
 Quote:
Originally posted by JBryan:
The logic of Miller...would lead one to reasonably conclude that the Second Amendment affirms the individual right to own whatever types of arms are standard issue in the military today. Moreover, the Miller decision does not say anything about the use of a firearm, the ownership of which is protected in any case, for the purpose of self-defense. [/b]
100% true. Miller simply chose a very narrow way to rule on the issue of gun possession under the Second Amendment, and left for another day further questions of Second Amendment construction. The Miller Court implicitly endorsed an individual rights view by refusing to adopt the collective rights view offered by the Government[/b] in its brief to the Supreme Court.

Heck, Miller was only there because he actually WON in the lower court when they threw out his indictment for NFA violation. When his case was argued before the Supremes, the government was the only party there! In their decision the court even said that in the absence of any arguments contrary to the government's...duh. Miller had already won on 2nd Amendment grounds in a lower court, but nobody argued for Miller this time. Hell, it might as well been a Russian court. Well, that's a bit strong since they also refused to adopt the government's position that the 2nd was not an individual right.

Since this is really the only decision on the 2nd Amendment in the last 100 years a test case needs to happen. But I believe both sides are afraid of the possible outcomes.
_________________________
"If we lose freedom here, there's no place to escape to."
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#761449 - 11/13/03 01:24 PM Re: Au revoir les amis !
JBryan Offline
9000 Post Club Member

Registered: 01/19/02
Posts: 9798
Loc: Oklahoma City
 Quote:
Originally posted by shantinik:

The 2nd Amendment protects an absolute right to bear arms in the context of a well-regulated militia.[/b]
That would be keep (own) and bear arms. Do try to quote the amendment under discussion correctly here. Also, "A well-regulated militia being necessary to the security of a free state" is not a limiting modifier nor has it been ruled as such by any court.

 Quote:
Common-law property rights include the right to own, sell, and use firearms. These rights, unlike the Second Amendment, are not absolute, as has been demonstrated in literally dozens of laws, regulations, and bans in several dozen states, upheld by state and federal courts.[/b]
Again, the right to own arms is protected on the federal level by the Second Amendment. The use of such arms is simply not addressed on the federal level (as long as they are not used to commit a crime) and the sale or transfer of arms is not even under discussion here. State laws are a different matter. The current state of Constitutional Law seems to recognize the power of local jurisdictions to enact their own restrictions.
_________________________
Better to light one small candle than to curse the %&#$@#! darkness.

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#761450 - 11/13/03 02:04 PM Re: Au revoir les amis !
Larry Offline
9000 Post Club Member

Registered: 05/25/01
Posts: 9217
Loc: Deep in Cherokee Country
Shantinik, I will repeat - you are totally, utterly, wrong. You have a complete misunderstanding of what the Constitution says.

Quote:

"To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."
(Richard Henry Lee, Virginia delegate to the Continental Congress, initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights.)

"The great object is that every man be armed . . . Everyone who is able may have a gun."
(Patrick Henry, in the Virginia Convention on the ratification of the Constitution.)

"The advantage of being armed . . . the Americans possess over the people of all other nations . . . Notwithstanding the military establishments in the several Kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms."
(James Madison, author of the Bill of Rights, in his Federalist Paper No. 46.)

"The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms,"
Samuel Adams

Quoting from the link I provide below, which is The Right to Keep and Bear Arms report of the
subcomittee of the United States Senate. ninety-seventh Congress:

"They argue that the Second Amendment's words "right of the people" mean "a right of the state" — apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The "right of the people" to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to "bear arms" relates only to military uses. This not only violates a consistent constitutional reading of "right of the people" but also ignores that the second amendment protects a right to "keep" arms. These commentators contend instead that the amendment's preamble regarding the necessity of a "well regulated militia . . . to a free state" means that the right to keep and bear arms applies only to a National Guard. Such a reading fails to note that the Framers used the term "militia" to relate to every citizen capable of bearing arms, and that the Congress has established the present National Guard under its own power to raise armies, expressly stating that it was not doing so under its power to organize and arm the militia."

Another quote from it:
"That the National Guard is not the "Militia" referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to "raise and support armies" and not its power to "Provide for the organizing, arming and disciplining the Militia". 65 This Congress chose to do in the interests of organizing reserve military units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions." The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec. 311(a).

The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.


Now, read the whole thing. You'll learn something. And not a single word was said about can openers.


The right of the PEOPLE to bear arms shall not be infringed
_________________________
Life isn't measured by the breaths you take. Life is measured by the things that left you breathless

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#761451 - 11/13/03 02:57 PM Re: Au revoir les amis !
apple* Offline


Registered: 01/01/03
Posts: 19862
Loc: Kansas
you are more American than we are Larry.
_________________________
accompanist/organist.. a non-MTNA teacher to a few

love and peace, Õun (apple in Estonian)

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#761452 - 11/13/03 03:57 PM Re: Au revoir les amis !
gryphon Offline
Yikes! 10000 Post Club Member

Registered: 08/09/01
Posts: 11678
Loc: Okemos, MI
No more than me. I was born in Hammond, Indiana!
_________________________
"If we lose freedom here, there's no place to escape to."
MSU - the university of Michigan!
Wheels

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#761453 - 11/13/03 04:22 PM Re: Au revoir les amis !
Jolly Offline
Yikes! 10000 Post Club Member

Registered: 06/20/01
Posts: 14036
Loc: Louisiana
Alright, Shant and Renauda,

Chew on this one awhile:
http://news.findlaw.com/hdocs/docs/gunlawsuits/emerson/emerson.pdf
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Over 1,000,000 posts where pianists discuss everything. And nothing.

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#761454 - 11/13/03 06:36 PM Re: Au revoir les amis !
TomK Offline
2000 Post Club Member

Registered: 07/06/02
Posts: 2611
No more than me either, I was born in Naugatuck, Connecticut.

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#761455 - 11/13/03 06:45 PM Re: Au revoir les amis !
apple* Offline


Registered: 01/01/03
Posts: 19862
Loc: Kansas
his detritus has been indirectly strewed by his ancestors for centuries tho.
_________________________
accompanist/organist.. a non-MTNA teacher to a few

love and peace, Õun (apple in Estonian)

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#761456 - 11/13/03 09:02 PM Re: Au revoir les amis !
Larry Offline
9000 Post Club Member

Registered: 05/25/01
Posts: 9217
Loc: Deep in Cherokee Country
Uh..... I didn't even know I *had* a "detritus"...

Where is it located - and should I keep it covered?

_________________________
Life isn't measured by the breaths you take. Life is measured by the things that left you breathless

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#761457 - 11/13/03 09:06 PM Re: Au revoir les amis !
Renauda Offline
5000 Post Club Member

Registered: 04/16/02
Posts: 5066
 Quote:
Originally posted by shantinik:
My take on it is slightly different. I think Americans have the common-law right to bear arms as personal property much as they have the right to bear can openers. As JBryan has correctly pointed out, a Constitutional Amendment was unnecessary for that purpose.

[/b]
Indeed I failed to perceive the nuance of your point. It is now quite clear to me now that under Common Law any state guarantee entitling an individual to bear or possess can openers (or any personal property for that matter) as right is an assumption. Therefore without the specific Common Law tradition upholding a right to bear arms the whole argument becomes moot and a matter of public discourse.

It is then settled. There is no right per se to bear arms but rather a tradition of personal possession at His or Her Majesty's pleasure.
_________________________
"The older the fiddle, the sweeter the music"~ Augustus McCrae

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#761458 - 11/13/03 09:16 PM Re: Au revoir les amis !
Jolly Offline
Yikes! 10000 Post Club Member

Registered: 06/20/01
Posts: 14036
Loc: Louisiana
That's not what the Federal judge wrote.
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#761459 - 11/13/03 09:17 PM Re: Au revoir les amis !
TomK Offline
2000 Post Club Member

Registered: 07/06/02
Posts: 2611
 Quote:
Posted by Larry: I didn't even know I *had* a "detritus"...[/b]
apple is the "Katie Winter" of the 21s Century.

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#761460 - 11/13/03 09:20 PM Re: Au revoir les amis !
Renauda Offline
5000 Post Club Member

Registered: 04/16/02
Posts: 5066
Jolly: Perhaps then the judge did not understand the nuances of British Common Law either.
_________________________
"The older the fiddle, the sweeter the music"~ Augustus McCrae

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#761461 - 11/13/03 09:22 PM Re: Au revoir les amis !
JBryan Offline
9000 Post Club Member

Registered: 01/19/02
Posts: 9798
Loc: Oklahoma City
Renauda,

I really don't know what the hell you are talking about. His or his majesty can kiss my ass. :rolleyes:
_________________________
Better to light one small candle than to curse the %&#$@#! darkness.

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#761462 - 11/13/03 09:35 PM Re: Au revoir les amis !
TomK Offline
2000 Post Club Member

Registered: 07/06/02
Posts: 2611
I was hopeing to work up to being a "Majesty" someday myself.

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#761463 - 11/13/03 09:52 PM Re: Au revoir les amis !
Jolly Offline
Yikes! 10000 Post Club Member

Registered: 06/20/01
Posts: 14036
Loc: Louisiana
Thought we worked that majesty thang out around 1776, or so. \:\)
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Over 1,000,000 posts where pianists discuss everything. And nothing.

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#761464 - 11/13/03 09:56 PM Re: Au revoir les amis !
Renauda Offline
5000 Post Club Member

Registered: 04/16/02
Posts: 5066
 Quote:
Originally posted by JBryan:
Renauda,

I really don't know what the hell you are talking about. His or his majesty can kiss my ass. :rolleyes: [/b]
Rubbish! The whole British Commonwealth marvels at the way Americans emulate and bow to the Royals.

Have I hit upon a raw nerve or "roid"? A wee bit o' jealousy perhaps?
_________________________
"The older the fiddle, the sweeter the music"~ Augustus McCrae

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#761465 - 11/13/03 10:03 PM Re: Au revoir les amis !
Larry Offline
9000 Post Club Member

Registered: 05/25/01
Posts: 9217
Loc: Deep in Cherokee Country
Somehow Renauda, I don't think you bothered to read the link I provided. It pretty well makes it clear that not only did the framers of the Constitution acknowledge the right to bear arms as being a natural right, they *expected* the people to keep and bear arms - just like they do in Kennesaw, GA.

I can't remember the town, but there's a town up north somewhere that did the same thing as Kennesaw, and had the same results. Crime dropped to nearly nothing.
_________________________
Life isn't measured by the breaths you take. Life is measured by the things that left you breathless

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#761466 - 11/13/03 10:06 PM Re: Au revoir les amis !
JBryan Offline
9000 Post Club Member

Registered: 01/19/02
Posts: 9798
Loc: Oklahoma City
No, I stopped taking you seriously about four or five posts ago. ;\)
_________________________
Better to light one small candle than to curse the %&#$@#! darkness.

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#761467 - 11/13/03 10:19 PM Re: Au revoir les amis !
Renauda Offline
5000 Post Club Member

Registered: 04/16/02
Posts: 5066
 Quote:
Originally posted by Larry:
Somehow Renauda, I don't think you bothered to read the link I provided. It pretty well makes it clear that not only did the framers of the Constitution acknowledge the right to bear arms as being a natural right, they *expected* the people to keep and bear arms - just like they do in Kennesaw, GA.

I can't remember the town, but there's a town up north somewhere that did the same thing as Kennesaw, and had the same results. Crime dropped to nearly nothing. [/b]
Actually Larry I did read your post. Frankly speaking I was was shocked to discover how common people would allow such government encroachment on their personal lives. But then that's a symptom of privitization of all public services. To each their own. Tansi - that's Woodland Cree for Greetings or All the Best.
_________________________
"The older the fiddle, the sweeter the music"~ Augustus McCrae

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#761468 - 11/13/03 10:31 PM Re: Au revoir les amis !
Larry Offline
9000 Post Club Member

Registered: 05/25/01
Posts: 9217
Loc: Deep in Cherokee Country
You see a Congressional document written for the express purpose of upholding our rights, making it clear that government doesn't have a right to encroach on personal lives..... as government encroaching on our personal lives????

Interesting.
_________________________
Life isn't measured by the breaths you take. Life is measured by the things that left you breathless

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#761469 - 11/13/03 10:33 PM Re: Au revoir les amis !
JBryan Offline
9000 Post Club Member

Registered: 01/19/02
Posts: 9798
Loc: Oklahoma City
 Quote:
Original brain fart by Renauda :p : Actually Larry I did read your post. Frankly speaking I was was shocked to discover how common people would allow such government encroachment on their personal lives. But then that's a symptom of privitization of all publis services. To each their own. Tansi - that's Woodland Cree for Greetings or All the Best. [/b]
I was shocked as well, at the realization that some small corner of the country does not want to hand over the responsibility for their security to the burgeoning police state. There may be hope for us after all.
_________________________
Better to light one small candle than to curse the %&#$@#! darkness.

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#761470 - 11/13/03 10:36 PM Re: Au revoir les amis !
apple* Offline


Registered: 01/01/03
Posts: 19862
Loc: Kansas
detritus is a flexible word. In this case it could be any refuse.. the cells that drift off your arms and into the air, or bodily waste, or hair that falls out. The detritus of your ancestors enlivens us all.
_________________________
accompanist/organist.. a non-MTNA teacher to a few

love and peace, Õun (apple in Estonian)

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#761471 - 11/13/03 10:37 PM Re: Au revoir les amis !
gryphon Offline
Yikes! 10000 Post Club Member

Registered: 08/09/01
Posts: 11678
Loc: Okemos, MI
Well, as long as we're talking nutty here...

The new Commerce Clause jurisprudence (Lopez and Morrison) comes home to roost in the Ninth Circuit's pathbreaking decision today that holds that the federal government may not ban a homemade machine gun.

http://www.ca9.uscourts.gov/ca9/newopini...pdf?openelement

Here are the two key paragraphs of the opinion:

We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) is a criminal statute that by its terms has nothing to do with commerceor any sort of economic enterprise, however broadly one might define those terms. Lopez, 514 U.S at 561. Unlike in Wickard v. Filburn, 317 U.S. 111 (1942), where growing wheat in one’s backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred—and there is none here—its relationship to interstate commerce is highly attenuated.

Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals—an admirable goal, but not a commercial one.

And later...

This case fails Morrison other requirements as well.

As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where—as here—such findings would enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye. Lopez, 514 U.S. at 563.

The Ninth Circuit says we can build and own machine guns as long as we don't sell them.
_________________________
"If we lose freedom here, there's no place to escape to."
MSU - the university of Michigan!
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#761472 - 11/13/03 10:38 PM Re: Au revoir les amis !
JBryan Offline
9000 Post Club Member

Registered: 01/19/02
Posts: 9798
Loc: Oklahoma City
Are brain farts detritus?
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