Correcting the Constitution Record - First in a Series
The Real Second Amendment
and Militia Related InformationFrom the ratification of the Constitution to two centuries of publications, proof of the manipulation of the as ratified Amendment to the Constitution,
with the intent to change what was ratified to what was, to the government, subject to various and questionable interpretations.Gary Hunt [Note" pdf of this article at http://www.outpost-of-freedom.com/documents/Real_Second_Amendment-Hunt.pdf ]
Outpost of Freedom
October 21, 2018
Preface
While doing research on another subject, reviewing the Bill of Rights and other early amendments, a rather striking irregularity kept appearing. That anomaly was the punctuation in the Second (Militia) Amendment.
This led to a change of priorities in the research, thinking that the significance between what kept occurring, then, versus what we see, now, might be worth a very thorough review of what was correct (ratified) and what the intention of the Framers was.
When such a project is laid before me, it is often years of research and hundreds of hours, as this is more a pastime than a vocation. It is my contribution to my country and my posterity.
The research, performed partially by me and my team and from the records of a friend, Brian March, whose hobby and pastime has been the collection of historical works. Together, we have reviewed documentation from 1787 to 2006, amounting to 490 books, records, and documents. Some were not conclusive, though 490 are conclusive and are accounted for in this treatise and identified thoroughly in Part 2 of this article. It is my fervent hope that this work will result in a correction of the record of what has been passed off as the Second Amendment for the past century. And, that that record be replaced with the intention of the Framers and those who ratified that amendment. That it be properly understood for what was provided for, "extending the ground of public confidence in the government"
Forward
“It is hard to be right when the Government is Wrong.” and “Question Every Thing.”
Hi, my name is Brian March. Every since 1991 (off and on as my money, career and several disabilities would allow), my eyes were opened to the some truths.
In 1991, I read an Article, about David Dodge and Tom Dunn's (both have very sadly passed away) research, which was an amendment to the Constitution of the United States of America properly proposed by Congress and ratified by the requisite number of States. Then it took the “Powers that be”, about seven decades to make it disappear. I knew if what the Article professed (I did not agree with all the possibilities), and re-recognized and enforced this would be the key to unlock the actual Republic of the USA.
So I tracked David and Tom down and from 1991 – 1996, we did as much research as my above parameters would allow. We went to many Universities and several reoccurring visits to State and Federal Archives as well as the Library of Congress, anywhere we could gather evidence to prove what was real in 1819, is real today.
Unfortunately, my money ran out and my other issues stopped me from researching. But way before all was gone, I had discovered another Amendment that was unlawfully changed. As David, Tom, and I stopped researching their discovery, other people picked up and ran with it. My research was turned into a hobby (beginning of 1997). I would, every once in a while, call the people that were then researching David and Tom’s Amendment. After several years I realized that I would not be able to do much more so I gave up most of the documented copies and Books, from what David, Tom and I had found, to a person I believed I could trust with same. Unfortunately those are now lost.
The 2nd Amendment items that I had found I kept. I have continued to collect old records, as a hobby and pastime. A little here and a little there I would keep on finding items on this Amendment, which was confirming my theory. At the same time, I had found other people's work on other Amendments.
In 1995, Gary Hunt and I collaborated on an early article on the Titles of Nobility Amendment to the Constitution. So, I talked to Gary, about three years ago on exposing some facts about the ratification of the 2nd Amendment. Gary said yes and for his organizational, computer, and writing skills, and Gary having the Patience of Job, with me and my disabilities. This and exposing facts about the ratification of other Amendments are going to come. However, without Gary Hunt they would have no chance of this being accomplished.
Acknowledgement
The Library of Congress, the NARA (National Archives and Records Administration), University of Indiana, various sources within South Carolina, North Carolina, Alabama, Archives of Delaware, Legislative Archives of Kentucky, Archives of Maryland, Archives of Pennsylvania, Archives of New Hampshire, Archives of New Jersey, Archives of Massachusetts, Archives of Connecticut, Archives of Vermont, Archives of Ohio, Archives of Virginia, Archives and Library of Georgia. Also, various on line resources, especially Google Books, from which hundreds of historical publications can be found.
Special thanks to the members of the Team (names withheld) that has been a source of many hours of input, review, proofreading, and other assistance, in the preparation of this article, and many before it.
A basic historical and grammatical analysis of the Second Amendment
This is the full, erroneous, text of the Second Amendment
Complete Second Amendment text, as ratified.
“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
Pay particular attention to punctuation and capitalization.It’s short and sweet–done so, ironically, to avoid confusion. However, it could be argued that the confusion is only an emotional one.
The Second Amendment is a compound sentence with an independent clause preceded by two modifying dependent clauses.
The Supreme Court interprets “A well-regulated militia.” as implying the imposition of proper discipline and training.” IMPOSED proper discipline and training. People that argue the second amendment protects gun ownership usually ignore this fundamental point.
Paraphrased, the second amendment modifies the keeping of arms with regulation through compelled discipline and training.
The second clause, “being necessary to the security of a free state,” modifies the first and main parts. Why do we need a well-regulated militia? It is needed "To protect the security and freedom of the state."
It is this simple. Well regulated gun ownership the security of the free states is the only function for which well-regulated gun is guaranteed.
To paraphrase, the first two, modifying clauses establish that a well-regulated and trained militia that is necessary for the security and freedom of the states.
The final part, “the right of the people to keep and bear arms shall not be infringed”, is equally clear, but maybe not at first glance. It establishes the right of “the people.” This is tied to something called the “body politic.” It’s a phrase you might have heard from some bloviated gas-bag posting in a highfalutin’ journal… ahem… and have a decent sense of what it means, yet never really checked. I used to think it meant the body of politics.
It actually means, “the people of a nation, state, or society considered collectively as a group of citizens,” and “a group of persons politically organized.” A body politic is also “a metaphor in which a nation is considered to be a corporate entity.” (Under the old use of the word corporate, also known as a municipal corporation...)
The intent of ratification is that it is ratified, as is (without change). It is to approve and sanction, not to modify. If it is modified, it is no longer the same as it was when ratified.
The House of Representatives presented to the Senate seventeen proposed amendments. Between both houses of Congress, they then reduced that to twelve and settled upon the final wording. If ratification changes that wording, then they are not ratifying that which was presented. This could result in an unending task of resolving, until the ratifications were in agreement, to determine what the final result would be. However, Congress did the final resolving. The states' only duty was to ratify, or not.
We can surmise that the acceptance of a sufficient number of states ratification of the Second Amendment was based upon that which was proposed, as well as what the greater number of states agreed upon in their ratification returns. This would mean that wording and punctuation of the Resolution of Congress of September 25, 1789, is the Second Amendment, as ratified in accordance with Article V of the Constitution. To wit:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
[Note that there is only one comma in the Amendment.]
We can understand better the intent of the amendment by reviewing Fifth Article in the initial proposal of seventeen amendments:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
It is clear that it was understood that the "militia" is "composed of the body of the people". That was so readily understood that what the militia was, the body of the people, and that it was not necessary to repeat it in the final proposed amendment.
In its final form, it follows a grammatical structure that is found in most resolutions of the day. A resolution would generally begin with a "Whereas", providing the foundation for a perceived necessity. This is followed by a "Therefore", this providing the solution or resolution of the necessity.
Applying this logic to the Second Amendment, we can easily understand:
Whereas, A well regulated militia being necessary to the security of a free state;
Therefore, The right of the people to keep and bear arms shall not be infringed.Before we consider the publications that have, over the last few centuries, published the Second amendment, we need to understand a bit about punctuation in the Eighteenth Century.
In researching punctuation of that era, I found an article, "When Did People Start Using Punctuation?" (http://www.todayifoundout.com/index.php/2016/05/origins-punctuation-marks/). It gives us an understanding of the change in use of commas and the fact that the practice of light punctuation that we use today was slowly adopted over a period of centuries.
The article explains that the use of a comma:
[B]egan to change after the publication of Ben Jonson’s English Grammar (1640) in which he illustrated how punctuation could help preserve an author’s original intention, rather than just giving a guide to how to read a text out-loud. Well received, by the time of the Restoration (1660), using punctuation for syntactical purposes was finally common, and in fact, by the 18th century, excessive punctuation (such as placing a comma between every possible phrase) had become a major problem. . . Overuse of punctuation continued to some extent through the late 19th century.
Now, that overuse went well into the late 1800s, and this is to be considered, as we continue.
During the course of researching the historical record, we have located 490 publications that include the Bill of Rights as proposed, the object being the "Article the Fourth"; or including the Bill of Rights, as ratified, being the "Second Amendment".
The publications include: Federal authorized publications, State authorized publications, general works for public consumption; Published Newspapers; a state authorized broadside; and, publications for educational purposes.
Constitution RE People and Militia
People
Preamble to the Constitution of the United States
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
In this instance, the "People" included only those who had a right to vote (being male freeholders - owning land or having an estate of a certain value). Those voters then elected delegates to a Convention. The Conventions then ratified the Constitution. In this usage of "People", it refers to a limited number, based solely upon their qualifications to vote within their respective state.
From the 1856 Supreme Court decision in Dred Scott v. Sandford, 60 U.S. 393 we can get a glimpse of the then perception of "People". From that decision, we find:
"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this [these] people, and a constituent member of this sovereignty."
Our Constitution created the first government in the history of the world that was put into place by a process that began in the community; sent delegates to state conventions; then, in convention, to determine to ratify, or not, that Constitution.
It is also the first time in the history of the world that a government was created, and within its founding document, the Constitution, had a provision for amendments, based on experience or necessity, could be ratified and become a part of the Constitution.
Two states, North Carolina and Rhode Island, would not ratify the Constitution until certain amendments were proposed for the protection of certain rights. These proposed amendments were to assure that the rights of the people and of the States would be further protected against encroachment by the newly created federal government. This was a serious concern to the people of that period, as they had thought that their charters and autonomy were protected until Britain decided that once given, the rights of the people and the authority granted by the colonial charters could be modified or extinguished.
The Ratification of the Constitution and the Bill of Rights
We can look back to a letter from George Washington, written on September 17, 1787, and addressed to "His Excellency the PRESIDENT OF CONGRESS". That Congress, of course, was the Continental Congress, operating under the Articles of Confederation. Attached to the letter was a copy of the Constitution, which had been signed by the delegates, unanimously.
Sir,
We have now the honor to submit to the consideration of the United States in Congress assembled, that Constitution which has appeared to us the most adviseable.
The friends of our country have long seen and desired, that the power of making war, peace, and treaties, that of levying money and regulating commerce, and the correspondent executive and judicial authorities should be fully and effectually vested in the general government of the Union: But the impropriety of delegating such extensive trust to one body of men is evident—Hence results the necessity of a different organization.
It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all: Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw
In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each state in the Convention to be less rigid on points of inferior magnitude, than might have been otherwise expected; and thus the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensible.
That it will meet the full and entire approbation of every state is not perhaps to be expected ; but each will doubtless consider, that had her interest been alone consulted, the consequences might have been particularly disagreeable or injurious to others ; that it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish.
With great respect, We have the honor to be, Sir, Your Excellency's
most obedient and humble servants,
GEORGE WASHINGTON, President.
by unanimous Order of the Convention.However, the Constitution would not create a new government, displacing the Continental Congress, until ratified, without changes, by nine of the 13 independent countries. The duty fell on the Continental Congress to accept and forward or simply ignore and let die, the outcome of the Philadelphia Convention.
Preface to Ratification
After the Philadelphia Convention, September 1787, wherein the Constitution was drafted and finalized, the requirement for ratification by the people began. During the course of the ratification effort, amendments were proposed, as had been requested by a number of states.
In order to put a proper perspective on these events, they will be presented in chronological order, to the final ratification of the Bill of Rights.
On June 21, 1788, the newly ratified Constitution became the law of the land. It created a government for those who joined the new Union. That government was fixed in the words of the Constitution, granting powers and authorities to the new government; placing limitations on that government, and placing certain restrictions on the State governments.
Article VI states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
In a very concise statement, this new venture into self-government sets forth a statement that the Constitution shall be the supreme Law of the Land. The lesser elements of Laws made in Pursuance of and Treaties made under its Authority shall also be the supreme Law of the Land. This, then, is the rock upon which the nation was founded.
They also had the foresight to provide for changes, through the Amendment Process; and only through that process, could any part of the Constitution be revised or repealed.
One of the earliest United States Supreme Court decisions puts a perspective on the authority of government, the laws, and the Constitution. Chief Justice John Marshall wrote the Court's decision in 1803, the case being Marbury v. Madison (5 U.S. 137), when speaking of the Constitution.
The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
We also have the corollary, which predates this decision.
About the time the Philadelphia Convention was meeting, during which the Constitution was drafted, a North Carolina Supreme Court case was being heard. That case, Bayard v Singleton (1 N.C. 42 1787) provides insight into the authority of their Constitution as a document that creates a government, grants it certain powers and authorities, and they are, in that sense, homogeneous.
But that it was clear that no act they could pass could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established [by that constitution]. Consequently, the constitution (which the judicial was bound to take notice of as much as of any other law whatever) standing in full force as the fundamental law of the land, notwithstanding the act on which the present motion was grounded, the same act must of course, in that instance, stand as abrogated and without any effect.
Ratification with Request for Amendments
"further declaratory and restrictive clauses"
On Friday, Sept 28, 1787, the Continental Congress sent the following to the member- states of the Confederation:
Sir
In obedience to an unanimous resolution of the United States in Congress Assembled, a copy of which is annexed, I have the honor to transmit to Your Excellency, the Report of the Convention lately Assembled in Philadelphia, together with the resolutions and letter accompanying the same; And have to request that Your Excellency will be pleased to lay the same before the Legislature, in order that it may be submitted to a Convention of Delegates chosen in Your State by the people of the State in conformity to the resolves of the Convention, made & provided in that case.—
with the greatest respect
I have the honor &c—
C: T—Attached thereto was the proposed Constitution for the United States of America and other documentation, including Washington's letter. The die was cast. The Constitution would live or die, based upon whether the states wanted to retain full autonomy or join together in a Union for certain purposes.
Each state was required to hold a convention, a condition not required in subsequent amendments to the Constitution. Surely, there was anxiety on the part of both the Federalists and the Anti-Federalist, as they waited for the returns from the various states.
Less than three months later, on December 7, 1787, Delaware sent their ratification of the Constitution to the Continental Congress. A section of their return indicated that they ratified the Constitution, without reservation.
We the Deputies of the People of the Delaware State, in Convention met, having taken into our serious consideration the Federal Constitution proposed and agreed upon by the Deputies of the United States in a General Convention held at the City of Philadelphia on the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty seven, Have approved, assented to, ratified, and confirmed, and by these Presents, Do, in virtue of the Power and Authority to us given for that purpose, for and in behalf of ourselves and our Constituents, fully, freely, and entirely approve of, assent to, ratify, and confirm the said Constitution.
Just a few days later, on December 12, 1787, Pennsylvania ratified the Constitution, though they also proposed 15 amendments.
In the Name of the People of Pennsylvania. Be it Known unto all Men that We the Delegates of the People of the Commonwealth of Pennsylvania in general Convention assembled Have assented to, and ratified, and by these presents Do in the Name and by the authority of the same People, and for ourselves, assent to, and ratify the foregoing Constitution for the United States of America. Done in Convention.
Next came New Jersey, on December 18, 1787, who ratified without reservation:
Now be it known that we the Delegates of the State of New-Jersey chosen by the People thereof for the purposes aforesaid having maturely deliberated on, and considered the aforesaid proposed Constitution, do hereby for and on the behalf of the People of the said State of New-Jersey agree to, ratify and confirm the same and every part thereof.
Georgia, on January 2, 1788, ratified the Constitution, expressing a hope for the success of the coming Union:
We have the honor to transmit to the United States in Congress Assembled the ratification of the Federal Constitution by the State of Georgia. We hope that the ready compliance of this State with the recommendations of Congress and of the late National Convention, will tend not only to consolidate the Union, but promote the happiness of our common Country.
Then, Connecticut, on January 9, 1788, ratified by a 3 to 1 majority.
The foregoing Ratification was agreed to, and signed as above, by one hundred and twenty eight, and dissented to by forty Delegates in Convention, which is a Majority of eighty eight.
Massachusetts, on February 6, 1788, ratified the Constitution. However, they were the first to suggest amendments, as they stated:
And as it is the opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good people of this Commonwealth & more effectually guard against an undue administration of the Federal Government, The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.
This was followed by a list of nine proposals for amendment or clarification of the Constitution, as ratified.
On April 28, 1788, Maryland ratified the Constitution, suggesting 28 amendments.
... by a Resolution of the General Assembly of Maryland in November Session Seventeen hundred and eighty seven do for ourselves and in the Name and on the behalf of the People of this State assent to and ratify the said Constitution.
South Carolina, on May 28, 1788, ratified, though with 4 recommended amendments.
DO in the name and behalf of the people of this State hereby assent to and ratify the said Constitution."
On June 21, 1788, New Hampshire ratified the Constitution, though with 12 recommendations for amendments or clarification. The Twelfth reads:
Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.
Perhaps in anticipation of what was to come some 73 years later.
With New Hampshire's ratification, the requisite nine states, as set forth on Article VII of the Constitution, meant that The United States of America, a Union of States, dissolved the "perpetual" Articles of Confederation, leaving four states (Virginia, New York, North Carolina, and Rhode Island) as independent countries. Within the next two years, all four also ratified the Constitution.
The Continental Congress then began a process, which was completed on July 8, 1788, as explained in the following resolution:
The State of Newhampshire having ratified the constitution transmitted to them by the Act [" of the Act" stricken out] of the 28 of Sept last & transmitted to Congress their ratification & the same being read, the president reminded Congress that this was the ninth ratification transmitted & laid before them.
Whereupon
Ordered That the ratifications of the constitution of the United States transmitted to Congress be referred to a committee to examine the same and report an Act to Congress for putting the said constitution into operation in pursuance of the resolutions of the late federal Convention.Virginia, recognizing that the Constitution had already been ratified, moved forward with their ratification on June 25, 1788. However, they were quite clearly dissatisfied with the Constitution, as the Notice of Ratification stated:
We the Delegates of the People of Virginia duly elected in pursuance of a recommendation from the General Assembly and now met in Convention having fully and freely investigated and discussed the proceedings of the Federal Convention and being prepared as well as the most mature deliberation hath enabled us to decide thereon Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination can be cancelled abridged restrained or modified by the Congress by the Senate or House of Representatives acting in any Capacity by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes: & that among other essential rights the liberty of Conscience and of the Press cannot be cancelled abridged restrained or modified by any authority of the United States. With these impressions with a solemn appeal to the Searcher of hearts for the purity of our intentions and under the conviction that whatsoever imperfections may exist in the Constitution ought rather to be examined in the mode prescribed therein than to bring the Union into danger by a delay with a hope of obtaining Amendments previous to the Ratification, We the said Delegates in the name and in behalf of the People of Virginia do by these presents assent to and ratify the Constitution recommended on the seventeenth day of September one thousand seven hundred and eighty seven by the Federal Convention for the Government of the United States hereby announcing to all those whom it may concern that the said Constitution is binding upon the said People according to an authentic Copy hereto annexed in the Words following; [followed by the text of the Constitution].
New York followed, shortly thereafter, on July 26, 1788. Outshining all of the other states in an effort to retain in the states and the people their inherent rights, recommended 32 amendments and clarifications.
Proposed
Initially, hundreds of suggestions were sent to the Representatives for consideration, by committee, these were consolidated into 17 suggestions that were then sent to the Senate on August 24, 1789. On September 9, 1789, the Senate returned to the House of Representatives their amended version on September 25, 1789, a Joint Resolution of the Congress of the United States submitted to the States the following resolution, these 17 were as follows:
"In the House of Representatives,
"Monday, the 24th of August, 1789.
"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, two thirds of both Houses deeming it necessary; That the following articles be proposed to the legislatures-of the several states, as amendments to the constitution of the United States; all or any of which articles, when ratified by three-fourths of the said legislatures, to be valid, to all intents and purposes, as part of the said constitution: to wit.
"Articles in addition to, and amendment of, the constitution of the United States of America, proposed by Congress, and ratified by the legislatures of the several states, pursuant to the fifth article of the original constitution.
"ART. I. After the first enumeration, required by the first article of the constitution, there shall be one representative for every thirty-thousand, until the number shall amount to one hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor less than one representative for every fifty thousand persons.
"ART. II. No law, varying the compensation to the members of Congress, shall take effect, until an election of representatives shall have intervened.
"ART. III. Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed.
"ART. IV. The freedom of speech, and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.
"ART. V. A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
"ART. VI. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.
"ART. VII. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
"ART. VIII. No person shall be subject, except in case of impeachment, to more than one trial, or one punishment, for the same offence, nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property, be taken for public use without just compensation.
"ART. IX. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.
"ART. X. The trial for all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger) shall be by an impartial jury of the vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accustomed requisites; and no person shall be held to answer for a capital, or otherways infamous, crime, unless on a presentment or indictment by a grand jury; but, if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may, by law, be authorised in some other place within the same state.
"ART. XI No appeal to the Supreme Court of the United States, shall be allowed, where the value in controversy shall not amount to one thousand dollars; nor shall any fact, triable by a jury according to the course of the common law, be otherwise reexaminable, than according to the rules of common law.
"ART. XII. In suits at common law, the right of trial by jury shall be preserved.
"ART. XIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
"ART. XIV. No state shall infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.
"ART. XV. The enumeration in the constitution of certain rights, shall not be construed to deny or disparage others, retained by the people.
"ART. XVI. The powers delegated by the constitution to the government of the United States, shall be exercised as therein appropriated, so that the legislative shall never exercise the powers vested in the executive or judicial; nor the executive the powers vested in the legislative or judicial; nor the judicial the powers vested in the legislative or executive.
"ART. XVII. The powers not delegated by the constitution, nor prohibited by it to the states, are reserved to the states respectively."
[From: 1985 Senate Report "Amendments to the Constitution: A Brief Legislative History"]
Refined by the Senate
After consideration and discussion between the two houses of Congress, the final resolution had removed Articles XIV (limiting state intrusion into juries, speech, and press), and XVI (mandating separation of powers), and consolidating others, reducing the number of proposed amendments to twelve. These were then sent to the states, on October 2, 1789, for ratification.
Congress of the United States, begun and held at the city of New-York,
on Wednesday the fourth of March,
one thousand seven hundred and eighty-nine.The conventions of a number of the states having, at the time of their adopting the constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; And as extending the ground of public confidence in the government will best insure the beneficent ends of its institution-
Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled, two thirds of both Houses concurring, That the following articles be proposed to the legislatures of the several states, as amendments to the constitution of the United States, all or any of which articles, when ratified by three fourths of the said legislatures, to be valid, to all intents and purposes as part of the said constitution, viz:
Articles in addition to, and amendment of, the Constitution of the United States of America, proposed by Congress, and ratified by the legislatures of the several states, pursuant to the fifth article of the original constitution.
Article the First.
After the first enumeration required by the first article of the constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred; after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which, the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand persons.
Article the Second.
No law varying the compensation for the services of the Senators and Representatives, shall effect, until an election of representatives shall have intervened.
Article the Third.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Article the Fourth.
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
Article the Fifth.
No soldier shall in time of peace be quartered in-any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.
Article the Sixth.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article the Seventh.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject, for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
Article the Eighth.
In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
Article the Ninth.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by Jury, shall be preserved; and no fact, tried by a Jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
Article the Tenth.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual imprisonment inflicted.
Article the Eleventh.
The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Article the Twelfth.
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.
FREDERICK AUGUSTUS MUHLENBERG,
Speaker of the House of Representatives.JOHN ADAMS,
Vice President of the United States, and President of the Senate.Attest, JOHN BECKLEY, Clerk of the House of Representatives.
SAMUEL A. OTIS, Secretary of the Senate.
[From: "Acts Passed at a Congress of the United States of America", 1789 by Childs and Swaine, Printers to the United States, George Washington's copy, available in an authentic reprint published in 2013 by the Mount Vernon Ladies' Association]
Ratification of 10 Amendments
The ratification of the Bill of Rights included a preamble:
"The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."
Note that the significant "extending the ground of public confidence in the Government" was a condition of the ratification of the first 10 amendments to the Constitution.
This would suggest that if the government were to attempt to remove or refuse to abide by any of those 10 amendments that had been ratified, the public confidence in the Government would cease to exist.
It is for that very purpose, the lack of authority of the federal government, to INFRINGE upon that right, reserved to the States, for both militia and the right to keep and bear arms. Hence the federal limitation in Infringing.
This was the concern of the Framers of the Constitution, preserving certain rights to the States, for fear that the government would, otherwise, remove those important protections of the rights of both the People and the States (9th and 10th Amendments).
Two states, North Carolina and Rhode Island, had yet to ratify the Constitution. Therefore, Congress made a point of assuring that North Carolina and Rhode Island were apprised of the ratification and after calling for a day of "general thanksgiving directed that they be included in the process, as indicated in the Senate Journal of September 28, 1789:
A message from the Senate informed the House that they had agreed to the resolution desiring the President of the United States to recommend a day of general thanksgiving: also, to the resolution desiring him to transmit to the Executives of the several States of the Union, and also to the Executives of the States of Rhode Island and North Carolina, copies of the amendments agreed to by Congress to the Constitution of the United States.
The final Senate entry for that date indicates that the final Bill was signed, then to be presented to the President.
A number of engrossed bills, and the proposed amendments to the Constitution, were brought in, passed, and signed: after which the House adjourned.
On November 20, 1789, New Jersey became the first state to ratify the eleven of the twelve proposed amendments, not ratifying the Second (Later ratified as the 27th Amendment on May 7, 1992).
New Jersey listed all of the articles that they were ratifying (11), and the Fourth was listed with no commas,
Article the fourth. A well regulated Militia being necessary to the security of a free State the right of the people to keep and bear Arms shall not be infringed.
[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]
Then, on November 21, 1789, North Carolina ratified the Constitution, making 12 states as members of the new government. North Carolina had been holding out, concerned that there would not be a "Declaration of Rights amended to the Constitution. Having received word that the proposed amendments had been submitted to the states, they went ahead with ratification of the Constitution. They also included in their documentation a listing of the twenty rights protected by their Constitution and 26 items as recommendations for the federal Constitution.
Maryland was the first state to ratify all 12 proposed amendments, on December 18, 1789.
Maryland published all twelve proposed amendments to the Constitution, with one comma after "State", and a second comma after "Arms", in the Fourth Article:
Article the fourth. A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]
North Carolina followed, just a few days later, on December 22, 1789, also ratifying all 12 proposed amendments.
North Carolina listed all twelve amendments, the Fourth, with two commas, reading:
Article IV A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed
[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]
South Carolina did likewise on January 19, 1790.
South Carolina listed all twelve amendments, with only one comma in the Fourth:
Article 4th A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed
[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]
New Hampshire, like New Jersey, rejected the Second proposed amendment, on January 25, 1790. New Hampshire did not list the amendments.
On January 28, 1790, Delaware rejected the First proposed amendment, ratifying the remainder, with the Fourth including three commas:
Article the Fourth, A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.
[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]
New York joined New Jersey and New Hampshire, on February 24, 1790, in rejecting the Second, ratifying the remainder.
New York listed all twelve proposed amendments, the Fourth having only one comma.
Article the Fourth. A well regulated Militia being necessary to the Security of a free State, the right of the People to keep and bear arms shall not be infringed.
[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]
Pennsylvania did not ratify either the First or the Second proposed amendments on March 10, 1790. However, on September 21, 1791, they reconsidered the First, ratifying it on that date. They included the Fourth
Pennsylvania listed all twelve proposed amendments, however identified the first and second as "sections" and the remainder as "articles. In the Fourth, they have only one comma.
Article 4th A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]
Rhode Island had previously refused to ratify the Constitution unless there was a Bill of Rights. Recognizing that eight states had already ratified ten of the proposed amendments to the Constitution, and realized that their ratification of the proposed amendments would result in the adoption of the amendments. On May 29, 1790, they ratified the Constitution, thereby becoming the thirteenth state of the Union, and the last of the original states to ratify the Constitution.
Just over a week later, on June 7, 1790, Rhode Island ratified all but the Second proposed amendment, the government having fulfilled Rhode Island's requirement of a Bill of Rights.
Rhode Island listed the eleven amendments they had ratified, the Fourth having only one comma.
4 A well regulated Militia being necessary to the Security of a free State, the Right of the people to keep & bear Arms shall not be infringed.
[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894 and 9/22/2017 certified True Copy from Rhode Island Secretary of State]
On January 10, 1791, Vermont, having resolved the land boundary dispute with New York, ratified the Constitution.
Ten months later, on November 3, 1791, Vermont ratified all 12 of the proposed amendments. Vermont did not list any of the proposed amendments.
Finally, on December 15, 1791, Virginia ratified all 12 proposed amendments, being the last such ratification for the next 150 years.
Virginia did not quote the amendments, though they did offer verbiage as to what they would like to see as amendments. That being the closest to the Second Amendment being their number,
Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State
[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]
On the sesquicentennial (150 years) anniversary of the submittal of the 12 proposed amendments to the Constitution, by the Congress and the President, three states which had remained silent of ratification, chose to ratify the ten amendments (Bill of Rights) already adopted, on the dates shown.
Massachusetts, March 2, 1939
Georgia, March 18, 1939
Connecticut, April 19, 1939
Kentucky ratified the Bill of Rights, though we can find no record that they submitted their ratification to the federal government.
Of those who ratified the Second Amendment in the Eighteenth Century, Three, New Hampshire, Vermont, and Virginia, did not provide the wording that they had ratified. New Jersey used no comma. Delaware opted for three commas. Maryland and North Carolina used 2 commas. And 4 states, South Carolina, New York, Pennsylvania, and Rhode Island included only one comma, being consistent with the Resolution submitted to the states by the President.
Our Constitution created the first government in the history of the world that was put into place by a process that began in the community; sent delegates to state conventions; then, in convention, determined to ratify, or not, that Constitution.
It is also the first time in the history of the world that a government was created, and within its founding document, the Constitution, had a provision for amendments, based on experience or necessity, could be ratified and become a part of the Constitution.
Two states, North Carolina and Rhode Island, would not ratify the Constitution until certain amendments were proposed for amendment. These proposed amendments were to assure that the rights of the people and of the states would be further protected against encroachment by the newly created federal government. This was a serious concern to the people of that period, as they had thought that their charters and autonomy were protected, until Britain decided that once given, the rights of the people and the authority granted by the colonial charters could be modified or extinguished.
When the proposed amendments were finally approved by the Congress and sent to the states for ratification, they chose to affix a preamble to the proposed amendments, setting out the purpose for which they are submitted to the states.
Compromise
Now, we must consider what a compromise is. Merriam-Webster provides the following:
1 a: settlement of differences by arbitration or by consent reached by mutual concessions
b: something intermediate between or blending qualities of two different things
2: concession to something derogatory or prejudicial
From a legal standpoint, we can look at what Black's Law Dictionary Free 2nd Ed. says:
An arrangement arrived at, either in court or out of court, for settling a dispute upon what appears to the parties to be equitable terms, having regard to the uncertainty they are in regarding the facts, or the law and the facts together.
Finally, we can look to Webster's 1828 Dictionary to understand the word, as the Founders understood it:
1. A mutual promise or contract of two parties in controversy, to refer their differences to the decision of arbitrators.
2. An amicable agreement between parties in controversy, to settle their differences by mutual concessions.
3. Mutual agreement; adjustment.
Now, the problem is that a compromise is between two parties. If unresolved, a third party may act as arbiter, as in the Black's Law, legal definition. Unfortunately, most often, the disagreement is not even recognized, such as when an administrative agency promulgates a rule, using the delegated authority granted by Congress, in an Act.
However, when any rule, order, or law, is challenged, the decision will be made without the participation of the people. The compromise may be made between Congress and an administrative agency. It may be made by an agency of government and a court, and it may also rise to the level of a final determination by the Supreme Court.
However, the Supreme Court has, admittedly, adopted rules by which the Constitution will be considered in a decision, only "in the last resort" (Brandeis concurring, Rule #1). And, if they do rule on constitutionality, they will limit their ruling to be "[no] broader than is required by the precise facts to which it is to be applied."
They have avoided questions of a constitutional nature, alleging that the matter requires a political decision, not a judicial one, while often ruling on the same subject, making it judicial and not political.
How can this comport with what Justice Marshall and the North Carolina Supreme Court have told us? Has something changed? Has the Constitution been amended to diminish its importance or significance? Or, is that just one example of the compromises that have taken place over the past two centuries that have compromised the rights of the people, thereby increasing the authority of the government?
However, in any instance, the decisions made are a compromise between a body or agency of the government and another body, or agency; or, between a body or agency and the Court.
So, when it comes to a test between a statute, a rule, or even a policy, the compromise is made by either Congress, an agency, or even the courts, between the statute, rule, or policy, and the Constitution.
Therein lies the problem. The Constitution was never intended to be compromised. If anything is not "in pursuance thereof", then that "anything" is nothing. It has no place, even for the mildest of consideration. It is only the Constitution, and those laws consistent with both the document and the intent. There is no debate.
This article will discuss, from ratification to present, how the right protected under the Second Amendment, has been compromised. Note that I said "right", in the singular. There are not two rights in the Second Amendment, there is only one, as you shall see, as we continue.
A Century of Publications
A Century of Publications of the Second Amendment
Now, that overuse went well into the late 1800s, and this is to be considered, as we continue.
During the search of the historical record, there have been 490 publications found that include the Bill of Rights as proposed, the object being the "Article the Fourth"; or including the Bill of Rights, as ratified, being the "Second Amendment".
The publications include: Federal authorized publications, State authorized publications, general works for public consumption; Published Newspapers; a broadside, and publications for educational purposes.
Bill of Rights
When the Bill of Rights or the Constitution is addressing an individual’s rights, it does so explicitly.
§ In the Fifth Amendment, it speaks of the individual: “No PERSON (individual) shall be held to answer for a capital, or otherwise infamous crime… nor shall any PERSON be subject for the same offence twice…”
§ In the Sixth Amendment, it speaks again of an individual: “The ACCUSED shall enjoy the right to a speedy and public trial.”
§ The Fourth Amendment drives this argument home by parsing between the collective and the individual: “The right of the people to be secure in their PERSONS, houses, papers and effects…” They first speak of the governed body, but quickly make clear people are to be secure in their persons against unreasonable search and seizure.
When the Bill of Rights or the Constitution is addressing the body politic, the people, the plurality, they do so explicitly.
§ “We the people of these united states.”
§ The first amendment, “…the right of the PEOPLE to peaceably ASSEMBLE.” This is why loitering can be illegal and protest cannot be made illegal.” (Don’t hear too many people throwing a fit over THAT one.)
§ “In the second amendment, “the right of the PEOPLE to keep and bear arms shall not be infringed.”
The Second Amendment never avows that individuals must be allowed to buy and collect guns in any capacity they choose, free of regulation. It guarantees nothing outside of a trained body serving a governing body for the body politic.
At the time of the drafting of the Constitution and the Bill of Rights, gun ownership wasn’t something considered controversial. Most guns were owned by rich, or at least land-owning white men, the gentry, traders, and pioneers. While Indians did own guns, they were usually an inferior quality of trade gun. Also, an Indian on a horse could shoot thirty arrows in the time it took a man to reload and fire a gun.
They had no cause for concern of heavily armed crowds of the poor, or blacks, or women. The power and money and almost all the land was in the hands of rich, white men who feared the power of a centralized tyrannical body. Remember that they had recently fought to free themselves from the British crown. As the states navigated their way through the ultimate structure of the federal government, the one thing that slowed the process down was near universal distrust of a federal body that could potentially have overwhelming financial and military control over the states.
There is nothing in the constitution or any of the amendments that try to curtail gun ownership, but there is also nothing that guarantees individual gun ownership. Even if you ignore my statements of facts or following assertions, you can read the words themselves; there is definitely nothing that promises uncontrolled, unregulated or untrained gun ownership. It instead attaches those each as stipulations to keeping guns. In almost all previous drafts of the second amendment, the modifying stipulations are present in some way.
Virginia Declaration of Rights, June 12, 1776
“XIII. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power."A Declaration of the Rights of the Inhabitants of the Commonwealth or State of Pennsylvania, 1776
“XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.”A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts, 1780
“Art. XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.”Proposed by James Madison June 8, 1789 to the House of Representatives:
“The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”Common misunderstanding of the Second Amendment prevails in most segments of the population mainly because of the perpetuation of incomplete or purposefully inaccurate interpretations of the Second Amendment. People seem to love quoting the second half of the amendment or cutting and selectively pasting the words of the founding fathers speaking about the issue at the time.
Ignoring part of a thing ignores all of a thing.
An example of this quote splicing. Notice how in context the message changes:
Partial: “The great object is, that every man be armed…Every one who is able may have a gun.”
Whole: “May we not discipline and arm them [the states], as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms, &c.? Every one who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for may years, endeavored to have the militia completely armed, it is still far from being the case.”
— Patrick Henry speaking at the 1788 Virginia debate to ratify the Constitution. The partial quote was used by Stephen Halbrook in The Right to Keep and Bear Arms.
Arguments against the Second Amendment
Paul Stevens, JD, in his dissenting opinion for District of Columbia et al. v. Heller, wrote, "the Framer's single-minded focus in crafting the constitutional guarantee 'to keep and bear arms' was on military use of firearms, which they viewed in the context of service in state militias," hence the inclusion of the phrase "well regulated militia." [3] "Michael Waldman, JD, President of the Brennan Center for Justice at the New York University School of Law, stated there is nothing about an individual right to bear arms in the notes about the Second Amendment when it was being drafted, discussed, or ratified; the US Supreme Court declined to rule in favor of the individual right four times between 1876 and 1939; and all law articles on the Second Amendment from 1888 to 1959 stated that an individual right was not guaranteed."
From: http://www.inkst.ink/2015/09/second-amendment-argument-is-bullshit/
Electors
Indians, Negroes, whether slaves or free, and nearly all non-white immigrants, were denied the privilege of citizenship, until 1868, with the ratification of the Fourteenth Amendment.
Next, in Article I, § 2, we find, once again, a limitation to those qualified to vote:
"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."
Further on in the Decision, the question is posed, and answered, as to just who qualifies as a citizen:
"It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. And in order to do this, we must recur to the Governments and institutions of the thirteen colonies, when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations. We must inquire who, at that time, were recognised as the people or citizens of a State, whose rights and liberties had been outraged by the English Government; and who declared their independence, and assumed the powers of Government to defend their rights by force of arms.
In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument."
At the time of the ratification of the Constitution, each state had determined just who could vote:
· New Hampshire, 'every male inhabitant of twenty-one years of age and upwards, excepting paupers
· Massachusetts 'every male inhabitant of twenty-one years of age and upwards, having a freehold estate within the commonwealth of the annual income of three pounds, or any estate of the value of sixty pounds,
· Rhode Island 'such as are admitted free of the company and society' of the colony,
· Connecticut 'maturity in years, quiet and peaceable behavior, and forty shillings freehold or forty pounds personal estate,
· New York male inhabitant of full age who shall have personally resided... six months immediately preceding the day of election . . . shall have been a freeholder, possessing a freehold of the value of twenty pounds within the county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to the State,
· New Jersey 'all inhabitants . . . of full age who are worth fifty pounds,
· Pennsylvania 'every freeman of the age of twenty-one years
· Maryland 'all freemen above twenty-one years of age having a freehold of fifty acres of land [or] having property in the State above the value of thirty pounds
· North Carolina, 'all freemen of the age of twenty-one years
· South Carolina 'every free white man of the age of twenty-one years... who hath a freehold of fifty acres of land, or a town lot of which he hath been legally seized and possessed
There is no other reference to "People" in the body of the Constitution though the Amendments, adopted as the Bill of Rights, use the term. Though in these instances, there is no reference to a voting requirement, so the usage would apply only to those who were "citizens". For example, in the First Amendment, we find:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Obviously, the right would extend to all citizens to practice the religion of their choice or speak their minds. It is implied that this applies to "people", as the right also extends to "peaceably assemble." Surely, there would be no intention of denying citizens any of these rights.
When we get to the Second Amendment, we find:
"A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."
The militia would exclude women, though the militia is separate and distinct from the second phrase providing for the right of the "people" to "keep and bear Arms." Though a slave could not "keep and bear Arms", presumably, the women citizens were not precluded from such. After all, though some disguised themselves as men, though some did not, a number of women served in combat during the Revolutionary War.
Again, we have a right not limited by voting qualification, however extending only to the citizens, with the Fourth Amendment.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
And, once again, it refers only to citizens, including women, as the protection afforded would apply to the home of a citizen, whether a man was a part of the household, or not.
The Ninth Amendment, based upon the previous application of the word "people", is properly applied, again, only and specifically to citizens, as it is applicable to the "certain rights", mentioned, as well as those commonly accepted, though not identified within the Bill of Rights.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The Tenth Amendment goes one step further in its recognition that some of the "powers not delegated" are retained by the state. However, if the state is not granted certain powers by the people, their respective constitutions, those that are not delegated to the state do remain with the 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."
To understand who the "people" are, and who they were not, in 1856, we can look at the Supreme Court decision in Dred Scott v. Sandford (60 U.S. 393). You will see that it is quite apparent that those who were not citizens of the United States, or one of the States, that they were not included within the definition of "people". From that decision:
"The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection. It declares that it is formed by the people of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity. It speaks in general terms of the people of the United States, and of citizens of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen. It does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people. It uses them as terms so well understood, that no further description or definition was necessary.
But there are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.
One of these clauses reserves to each of the thirteen States the right to import slaves until the year 1808, if it thinks proper... And by the second, they pledge themselves to maintain and uphold the right of the master in the manner specified, as long as the Government they then formed should endure. And these two provisions show, conclusively, that neither the description of persons therein referred to, nor their descendants, were embraced in any of the other provisions of the Constitution; for certainly these two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen.
For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances... Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any-one to be a witness against himself in a criminal proceeding.
But in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their Government, and interfering with their relation to each other. The powers of the Government, and the rights of the citizen under it, are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated powers, and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted."
It is clear that the "people" is inclusive of all citizens, and exclusive of all others. A foreigner, or visitor to this country, is not among those protected by the Constitution, unless and until such time as citizenship is obtained.
Table of Publications
Table of comma variations in published editions of the Second Amendment.
This study was for published editions of the Second Amendment, in chronological order of (historically representative) publications, with a few more recent publications for perspective. There was no selective removal of any documents, all that were found, at the time of this writing, were included. This study was based upon Internet searches, library/law library searches and publications held by participating team members, and state and federal archives. A subsequent Part 2 will be provided with all publications, with images, of title pages and Second Amendment as published in that document. It will include additional items, as the team continues to acquire more records.
Decade
Total Pubs.
1 comma
2 commas
3 commas
1789
23
1
2
1790 - 1799
33
2
0
1800 - 1809
21
2
0
1810 - 1819
21
0
0
1820 - 1829
49
6
0
1830 - 1839
65
3
0
1840 - 1849
61
2
2
1850 - 1859
59
2
5
1860 - 1869
43
0
0
1870 - 1879
29
0
2
1880 - 1889
17
1
2
1890 - 1899
10
0
1
1900 - 1909
3
1
1
1910 - 1919
3
0
0
1920 - 1929
2
1
0
1930 - 1939
2
0
1
1940 - 1949
0
0
1
1950 - 1959
2
0
1
1980 - 1989
QUOTE
3
0
1*
2000 - 2009
1
0
2
2010 - 2018
2
0
0
=SUM(ABOVE) 0
=SUM(ABOVE) 449
=SUM(ABOVE) 21
=SUM(ABOVE) 20
100%
92%
4%
4%
* Note: A U. S. Senate publication has both a 3 comma and a 1 comma citation of the Second Amendment.
So, of the publications thus far included, fully 92 percent, unlike most current publications, were published with only 1 comma. That is what was ratified. So, we must wonder why the government has since promoted the 3 comma version, and why we continue to use what was not ratified.
Militia
Now that we have a grasp on who the "People" were, there is another word that warrants our consideration. That word is "Militia", which is mentioned three times in the body of the Constitution. The first two mentions are in Article I, § 8:
Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Note that the federal government does not call "up" the Militia. Instead, they can call "forth" the Militia. This presumes the existence, on the State level, of existing Militia, though not yet in service to the federal government. It also provides only three authorized applications, at the federal level, for which the Militia can be applied: "to execute Laws of the Union"; "suppress Insurrections", and "repel Invasions".
Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Here is a rather interesting obligation, to provide for organizing, arming, and disciplining the Militia. And, for governing them when they have been called forth "in the Service of the United States." Then, to clearly establish that they are not federally governed, unless they are called into service of the federal government, the "Appointment of Officers" and the training "of the Militia" are reserved to the States, according to the "discipline prescribed by Congress", as required by Clause 15, above. Keep this in mind when we discuss what the Framers described as "Select Militia".
Continuing on with the body of the Constitution, we find in Article II, § 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
The President is Commander in Chief, only, when the Militia is "called into the actual Service of the United States". So, the militia is subject to federal control only when called into service, and only those units called into service.
The final reference to the Militia is in the Second Amendment to the Constitution (Bill of Rights). This Amendment went through some changes, through its course to final ratification, though these changes and the background of their purpose, will be explained shortly.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
However, we need to understand that the capitalized word "State", in the Constitution, refers to the member states of the Union, not to the federal government, though it is a nation-state to the rest of the world.
Something that must be kept in mind, as we progress through the abundance of information available on the subject, that the Constitution, as well as the Bill of Rights, were written with extreme care as to the intentions of those who authored those documents.
James Madison, who is recognized as the Father of the Constitution, was the first member of the House of Representatives to introduce the Bill of Rights (May 4, 1789) that so many states had requested, as they ratified the Constitution.
Now, before we delve into the changes, understand that Madison also realized that laws were "rules of action", recognizing that it did not serve to have laws that were constantly changing --that they must be fixed. This is especially true of the Constitution. If the Constitution is the "supreme Law of the Land" (Art. VI, US Const.), then every man should know what that "Law" is, especially when it comes to each person being able to know and understand what his rights are.
In Federalist Papers, #62, James Madison tells us:
The internal effects of a mutable [definition: liable to change] policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
The Constitution is, without question, fixed. Absent an amendment, as provided for in the Fifth Article of the Constitution, it is immutable -- it cannot be changed.
However, looking even further into those discussions that convinced the people to accept and ratify the new Constitution, we see another provision that will help us to understand the context. This, from Federalist Papers # 57, again, by the Father of the Constitution, James Madison, as he discusses laws enacted, and who shall be subject to said laws.
[Should] the House of Representatives... make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America- a spirit which nourishes freedom, and in return is nourished by it.
If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.
This last point will become apparently abused, as we proceed. Though, now we will visit the intentions of the Framers in what would eventually become the Second Amendment.
We will begin with the Fifth of the seventeen articles proposed by the House of Representatives and submitted to the Senate for concurrence:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
Since Militia has always been known as being made of the "body of the people", the Senate, for the sake of brevity and precision, omitted that phrase. They also changed "being the best security" to "being necessary to the security", and joined that phrase with the previous phrase, "A well regulated militia". This, being the later identified as the "prefatory clause".
The next phrase is without punctuation and simply reads, "the right of the people to keep and bear arms shall not be infringed". This would later be referenced as the "operative clause".
The final clause was removed by the Senate, though the status of conscientious objector, freedom of thought and religion, has had standing throughout our history.
So, the final version, concurred by both houses of Congress and submitted to the States for ratification, was titled and read as:
Article the Fourth. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
Notice that there are only two clauses, separated by a single comma. When we consider this grammatical form of the Second Amendment, we can also put it in a more easily understood format, by acknowledging the prefatory and operative clauses in a form used in resolutions:
Whereas, A well regulated militia being necessary to the security of a free state;
Therefore, the right of the people to keep and bear arms shall not be infringed.
Now, the question is, is this how the Second Amendment was ratified?
Before we go there, let's look a little further into the discussions that ensued over the necessity and clarity of the final version of the Second Amendment.
The authority of the States ("security of a free state") over the Militia was imperative. There were legitimate concerns, and though the right to hunt was among them, both British history and the recent events in the United States provided the "necessary" provision of the prefatory phrase.
William Rawle, a well recognized legal scholar of the early Nineteenth Century, provides his interpretation of the purpose of the Second Amendment.
In the second [amendment], it is declared, that a well regulated Militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.
The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
This right ought not, however, in any government, to be abused to the disturbance of the public peace.
[Source: A View of the Constitution of the United States of America, William Rawle, LL.D. 1839]
Rawle recognizes, in that last paragraph, that the right, if "abused to the disturbance of the public peace", can be curtailed. That, however, is the only exception to the prohibition of infringement. If one has not disturbed the public peace, by use of a firearm, the right to keep and bear arms cannot be infringed.
Finally, we have Justice Scalia giving a decision in a recent Supreme Court case:
The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny."
[Source: District of Columbia et al. v. Heller (554 US 570) at 594]
Today, after the near-total compromising of the Second Amendment, by both state and federal agencies, government, and judiciaries, we find that the Second Amendment has been compromised nearly to non-existence. The tool to resist tyranny has been decimated, so that to even stand, armed, in self-defense, as was done in Bunkerville, Nevada in April 2014, may result in a citizen spending much of his life in federal prison.
Select Militia (Standing Army)
One of the concerns with the Constitution, so significant that it created an outcry for clarification in the proposed amendments (specifically what became the Second Amendment), was the fear that as the Constitution was written, "select militias" could be created by the government. Here is some of the background on that concern.
It is true, the yeomanry [soldiers] of the country possess the lands, the weight of property, possess arms, and are too strong a body of men to be openly offended—and, therefore, it is urged, they will take care of themselves, that men who shall govern will not dare pay any disrespect to their opinions... [Though], they may in twenty or thirty years be by means imperceptible to them, totally deprived of that boasted weight and strength: This may be done in a great measure by congress, if disposed to do it, by modelling the militia, Should one fifth or one eighth part of the men capable of bearing arms, be made a select militia, as has been proposed, and those the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenceless.
[Source: 1888 "Pamphlets on the Constitution of the United States (1787-1788)", compiled by Paul Leicester Ford, "Letter III", by The Federal Farmer (Richard Henry Lee), dated October 10th, 1787.]
This was followed by "A Democratic Federalist", in his,
OBJECTIONS TO NATIONAL CONTROL OF THE MILITIA
A standing army in the hands of a government placed so independent of the people, may be made a fatal instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive taxes; and to carry into execution the most arbitrary measures. An ambitious man who may have the army at his devotion, may step up into the throne, and seize upon absolute power.
The absolute unqualified command that Congress have over the militia may be made instrumental to the destruction of all liberty both public and private; whether of a personal, civil or religious nature.
[T]he personal liberty of every man, probably from sixteen to sixty years of age, may be destroyed by the power Congress have in organizing and governing of the militia. As militia they may be subjected to fines to any amount, levied in a military manner; they may be subjected to corporal punishments of the most disgraceful and humiliating kind; and to death itself, by the sentence of a court martial. To this our young men will be more immediately subjected, as a select militia, composed of them, will best answer the purposes of government.
[Source: Pennsylvania Packet, on December 12, 1787.]
The concern is, of course, that should the federal government have absolute control over a standing army, or its equivalent, a select militia, they could then exert any pressure, positive or negative, to force compliance with, and destroy "all liberty both public and private". The positive being the obedience to orders; the negative, to punish those who don't comply.
These were responded to by Alexander Hamilton, on January 8, 1788, with "Federalist #29".
Concerning the Militia
By a curious refinement upon the spirit of republican jealously, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:
"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount that, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent would be unwise; and the experiment, if made, could not succeed, because if would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable, yet is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia ready to take the field whenever the defence of the State shall require it. This will not only lessen the call of military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."
So, Hamilton tried to explain away the powers granted to the government, suggesting that it would be impractical. This did not satisfy the fear in the hearts of many, hence the Second Amendment.
Law Enforcement
At the time of the founding of the country, law enforcement was conducted by constables or sheriffs, acting as civil authority. To make an arrest, unless the arrestee was willing to submit, would be enforced by citizens gathered as a Posse Comitatus (Power of the County). It was comprised of those same men who, by authority of the state's constitution, statutory authority, and/or common law practices, were the militia -- those able-bodied men within an age group and not exempt, being composed of the body of the people. The constable or Sheriff, with the exception of serving writs and warrants, had no more authority than any other man.
It wasn't until the last half of the nineteenth Century that police came into being, in the United States. However, unlike Captain Preston and his fellow soldiers that stood trial for their role in the Boston Massacre, they were not military, rather they were civil. Preston and the soldiers had to have civil authority grant them permission to use their firearms. Having none, they did stand trial before a jury.
The police, however, being civil in nature, were not bound by the requirement to obtain authority elsewhere. Their role, however, was far more peaceful than what we have, today.
Over time, the various courts, including both state and federal supreme courts, continued to rule on cases that expanded the role/authority of the police. In essence, the police became the first "select militia", hence, a "standing army", outside of the role of the military established under Article I, §8, clause 12, of the Constitution. However, the Article I military could not act on the people, they served only as a defensive force against uprisings of Indians and to protect our borders.
In 1916, Congress enacted "An Act For making further and more effectual provision for the national defense, and for other purposes." (30 Statutes at Large 166), find in right column). Within that Act, they created a "militias of the United States", contrary to the provisions of the Constitution and the Second Amendment. They also created "select militia, in the form of the National Guard and the Naval Militia. From that Act:
SEC. 57. COMPOSITION OF THE MILITIA.- The militia of the United States shall consist of all able-bodied male citizens of the United States and all other able-bodied males who have or shall have declared their intention to become citizens of the United States, who shall be more than eighteen years of age and, except as hereinafter provided, not more than forty-five years of age, and said militia shall be divided into three classes, the National Guard, the Naval Militia, and the Unorganized Militia.
The National Guard became a select militia when, on May 4, 1970, they opened fire on students/civilians at Kent State University, Ohio. In just 13 seconds, they killed four people and injured nine. This action was under the authority of the Governor and was ultimately upheld by the United States Sixth Circuit Court of Appeals. The Governor, however, was acting in his civil capacity -- just a small step away from the intentions of the Founders, though justifying the concerns expressed by "The Federal Farmer" and "The Democratic Federalist", as explained above.
The Court, in so doing, expanded the legality, though not the lawfulness, of the use of the "select militia" created by Congress in 1916.
Then, in 1967, the Los Angeles Sheriff's Department opened the first Special Weapons and Tactics (SWAT) School. Utilizing tactics used in Vietnam, and adapting them to "law enforcement", military weapons and tactics became, over the next few decades, a standard element of many local law enforcement agencies. However, in the use of SWAT, now commonly in use by nearly every law enforcement agency, the Law Enforcement Officer (LEO) acts in both the capacity of a military (militia) and is also a civil authority, himself, making determinations, often unjustified, as to the use of deadly force. Their actions, in the most egregious violation of the intent of the Second Amendment, and our rights as citizens, have been compromised by the lower, appellate, and supreme courts, of both the states and the federal government.
There are approximately 800,000 state and local, sworn law enforcement officers.
At the federal level, we know that the United States Marshals Service have carried firearms since their origin, when they were created by the Judiciary Act of 1789. The Secret Service was an investigative agency for the Treasury Department from its inception in 1865, though did not begin full-time protection of the President until 1901, after President William McKinley was assassinated. There is little doubt that they need to carry weapons to afford that service, though they did so under the right protected by the Second Amendment.
The FBI agents carried firearms, as could any citizen, under the Second Amendment, though in 1934, training and equipping agents began, as well as the authority to carry their firearms concealed. However, the FBI Hostage Rescue Team (HRT) was officially formed in 1982, based upon then Director William Webster modeled them after the US Army Delta Teams. Though it followed the creation of the local SWAT teams, it was the first major incursion by the federal government into the realm of a standing army directed at the civilian population, not a foreign enemy.
Since that time, the government has armed over 200,000 (up from 74,000 in 1996) non-military employees. Of course, they receive some training, but they do constitute a force larger than the United States Marine Corps, with only about 182,000 Marines. (There Are Now More Bureaucrats With Guns Than U.S. Marines)
Anti-federalist No. 29
OBJECTIONS TO NATIONAL CONTROL OF THE MILITIA
"A DEMOCRATIC FEDERALIST," appeared in "the Pennsylvania Packet," October 23, 1787; following #29, #30 is excerpted from THE ADDRESS AND REASONS OF DISSENT OF THE MINORITY OF THE CONVENTION OF THE STATE OF PENNSYLVANIA TO THEIR CONSTITUENTS, December 12, 1787.
A standing army in the hands of a government placed so independent of the people, may be made a fatal instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive taxes; and to carry into execution the most arbitrary measures. An ambitious man who may have the army at his devotion, may step up into the throne, and seize upon absolute power.
The absolute unqualified command that Congress have over the militia may be made instrumental to the destruction of all liberty both public and private; whether of a personal, civil, or religious nature.
First, the personal liberty of every man, probably from sixteen to sixty years of age, may be destroyed by the power Congress have in organizing and governing of the militia. As militia they may be subjected to fines to any amount, levied in a military manner; they may be subjected to corporal punishments of the most disgraceful and humiliating kind; and to death itself, by the sentence of a court martial. To this our young men will be more immediately subjected, as a select militia, composed of them, will best answer the purposes of government.
* * *
THE FEDERALIST NO 29
Concerning the Militia
by Alexander HamiltonBy a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:
"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount that, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent would be unwise; and the experiment, if made, could not succeed, because if would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable, yet is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia ready to take the field whenever the defence of the State shall require it. This will not only lessen the call of military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."
In the 1888 "Pamphlets on the Constitution of the United States (1787-1788)", compiled by Paul Leicester Ford, we find "Letter III", by The Federal Farmer (Richard Henry Lee), dated October 10th, 1787.
I have heard several gentlemen, to get rid of objections to this part of the constitution, attempt to construe the powers relative to direct taxes, as those who object to it would have them; as to these, it is said, that congress will only have power to make requisitions, leaving it to the states to lay and collect them. I see but very little colour for this construction, and the attempt only proves that this part of the plan cannot be defended. By this plan there can be no doubt, but that the powers of congress will be complete as to all kinds of taxes whatever - Further, as to internal taxes, the state governments will have concurrent powers with the general government, and both may tax the same objects in the same year; and the objection that the general government may suspend a state tax, as a necessary measure for the promoting the collection of a federal tax, is not without foundation.—–As the states owe large debts, and have large demands upon them individually, there clearly will be a propriety in leaving in their possession exclusively, some of the internal sources of taxation, at least until the federal representation shall be properly encreased: The power in the general government to lay and collect internal taxes, will render its powers respecting armies, navies and the militia, the more exceptionable. By the constitution it is proposed that congress shall have power “to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to provide for calling forth the militia to execute the laws of the union; suppress insurrections, and repel invasions: to provide for organizing, arming, and disciplining the militia;” reserving to the states the right to appoint the officers, and to train the militia according to the discipline prescribed by congress; congress will have unlimited power to raise armies, and to engage officers and men for any number of years; but a legislative act applying money for their support can have operation for no longer term than two years, and if a subsequent congress do not within the two years renew the appropriation, or further appropriate monies for the use of the army, the army will be left to take care of itself. When an army shall once be raised for a number of years, it is not probable that it will find much difficulty in getting congress to pass laws for applying monies to its support. I see so many men in America fond of a standing army, and especially among those who probably will have a large share in administering the federal system; it is very evident to me, that we shall have a large standing army as soon as the monies to support them can be possibly found. An army is not a very agreeable place of employment for the young gentlemen of many families. A power to raise armies must be lodged some where; still this will not justify the lodging this power in a bare majority of so few men without any checks; or in the government in which the great body of the people, in the nature of things, will be only nominally represented. In the state governments the great body of the people, the yeomanry, &c. of the country, are represented: It is true they will chuse the members of congress, and may now and then chuse a man of their own way of thinking; but it is not impossible for forty, or thirty thousand people in this country, one time in ten to find a man who can possess similar feelings, views, and interests with themselves: Powers to lay and collect taxes and to raise armies are of the greatest moment; for carrying them into effect, laws need not be frequently made, and the yeomanry, &c. of the country ought substantially to have a check upon the passing of these laws; this check ought to be placed in the legislatures, or at least, in the few men the common people of the country, will, probably, have in congress, in the true sense of the word, “from among themselves.” It is true, the yeomanry of the country possess the lands, the weight of property, possess arms, and are too strong a body of men to be openly offended—and, therefore, it is urged, they will take care of themselves, that men who shall govern will not dare pay any disrespect to their opinions. It is easily perceived, that if they have not their proper negative upon passing laws in congress, or on the passage of laws relative to taxes and armies, they may in twenty or thirty years be by means imperceptible to them, totally deprived of that boasted weight and strength: This may be done in a great measure by congress, if disposed to do it, by modelling the militia, Should one fifth or one eighth part of the men capable of bearing arms, be made a select militia, as has been proposed, and those the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenceless. The state must train the militia in such form and according to such systems and rules as congress shall prescribe: and the only actual influence the respective states will have respecting the militia will be in appointing the officers. I see no provision made for calling out the posse comitatus for executing the laws of the union, but provision is made for congress to call forth the militia for the execution of them - and the militia in general, or any select part of it, may be called out under military officers, instead of the sheriff to enforce an execution of federal laws, in the first instance, and thereby introduce an entire military execution of the laws. I know that powers to raise taxes, to regulate the military strength of the community on some uniform plan, to provide for its defence and internal order, and for duly executing the laws, must be lodged somewhere; but still we ought not so to lodge them, as evidently to give one order of men in the community, undue advantages over others; or commit the many to the mercy, prudence, and moderation of the few. And so far as it may be necessary to lodge any of the peculiar powers in the general government, a more safe exercise of them ought to be secured, by requiring the consent of two-thirds or three-fourths of congress thereto—until the federal representation can be increased, so that the democratic members in congress may stand some tolerable chance of a reasonable negative, in behalf of the numerous, important, and democratic part of the community.
Between local, state, and federal law enforcement, there are over a million sworn, armed, officers. That amounts to about one officer for every 300 people or 100 families.
"Let us not deceive ourselves, sir. These are the implements of war and subjugation - the last arguments to which kings resort. I ask gentlemen, sir, what means this martial array if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it?"
Patrick Henry March 23, 1775
Armed Federal Agencies
Department of Homeland Security (DHS)
§
§ United States Coast Guard (USCG)
§ Coast Guard Police (CGPD)
§ Coast Guard Investigative Service (CGIS)
§ United States Customs and Border Protection (CBP)
§ United States Border Patrol (USBP)
§ Federal Protective Service (FPS)
§ United States Immigration and Customs Enforcement (ICE)
§ United States Secret Service (USSS)
§ Transportation Security Administration (TSA)
§ Federal Air Marshal Service (FAMS)
Department of Justice (USDOJ)
§ Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
§ Drug Enforcement Administration (since 1973)
§ Bureau of Narcotics and Dangerous Drugs (1968 – 73)
§ Federal Bureau of Narcotics (1930 – 68)
§ Bureau of Prohibition (1927 – 33)
§ Bureau of Drug Abuse Control (1966 – 68)
§ Federal Bureau of Investigation (FBI)
§ Federal Bureau of Prisons (BOP)
§ United States Marshals Service (USMS)
Department of State (DOS)
§ Bureau of Diplomatic Security
§ Diplomatic Security Service (DSS)
Department of Commerce (DOC)
§ National Oceanic and Atmospheric Administration Fisheries Office for Law Enforcement Department of Treasury
§ Internal Revenue Service Criminal Investigations Division (IRS-CID)
§ Treasury Inspector General for Tax Administration (TIGTA)
§ United States Mint Police (USMP)
§ United States Treasury Police – merged into the US Secret Service Uniformed Division in 1986.
§ Defense Criminal Investigative Service(DCIS)
§ Pentagon Force Protection Agency
§ Office of the Inspector General (OIG)
Department of Health and Human Services
§ Food and Drug Administration (FDA)
§ Office of Criminal Investigations
Department of Agriculture (USDA)
§ U.S. Forest Service Law Enforcement and Investigations
Department of the Interior (USDI)
§ Bureau of Indian Affairs Police
§ Bureau of Land Management Office of Law Enforcement & Security
§ U.S. Fish & Wildlife Service Office of Law Enforcement
Other Major Federal Law Enforcement Agencies
§ Central Intelligence Agency Security Protective Service (SPS)
§ National Security Agency Police (NSA Police)
§ Smithsonian National Zoological Park Police
§ United States Capitol Police (USCP)
§ United States Postal Inspection Service (USPIS)
§ United States Supreme Court Police
- Many of these officers are armed with AR-15 rifles with 30 round magazines, and are trained by the same contractors who train some of our military special forces troops.
- The IRS spent nearly $11 million on guns, ammunition, and military-style equipment for its 2,316 special agents. Their armament includes pump-action and semi-automatic shotguns, semi-automatic Smith & Wesson M&P 15 and Heckler & Koch HK 416 rifles, which can hold 30-round magazines.
- The Environmental Protection Agency spent $3.1 million on guns, ammo, and equipment, including drones, night vision, camouflage and other deceptive equipment, and body armor.
1934 - The Beginning of Infringement
The first "infringement" of the second amendment that I am aware of occurred in 1934.
From the Congressional Record, when Karl T. Frederick, then president of the NRA (National Rifle Association) testified before Congress.
First, the bill being discussed, followed by pertinent excerpts from Frederick's testimony.
The following is from KeepAndBearArms.com -- Congressional hearings over the National Firearms Act of 1934 (H.R. 9066) took place April 16 & 18 and May 14, 15, & 16 of 1934. Then-NRA President Karl T. Frederick testified on behalf of the National Rifle Association (NRA). Page numbers are from the Congressional Record
The text of the Hearing notice reads {nn} indicates page number:
H.R. 9066, 73dCong. 2d sess.
A BILL To provide for the taxation of manufacturers, importers, and dealers in small arms and machine guns, to tax the sale or other disposal of such weapons, and to restrict importation and regulate interstate Transportation thereof
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That for the purposes of this act the term “firearm” means a pistol, revolver, shotgun having a barrel less than sixteen inches in length, or any other firearm capable of being concealed on the person, a muffler or silencer therefor, or a machine gun. The term “machine gun” means any weapon designed to shoot automatically or semiautomatically twelve or more shots without reloading.
The term “person” includes a partnership, company, association, or corporation, as well as a natural person.
The term “continental United States” means the States of the United States and the District of Columbia.
The term “importer” means any person who imports or brings firearms into the continental United States, for sale.
The term “manufacturer” means any person who is engaged within the continental United States in the manufacture of firearms, or who otherwise produces therein any firearm for sale of disposition.
The term “dealer” means any person not a manufacturer or importer engaged within the continental Unites States in the business of selling firearms. The term “dealer” shall include pawnbrokers and dealers in used firearms.
The term “interstate commerce” means transportation from any State or Territory or District, or any insular possession of the United States (including the Philippine Islands), to any other State or Territory or District, or any insular possession of the United States (including the Philippine Islands).
Sec. 2.
(a) Within fifteen days after the effective date of this act, or upon first engaging in business, and thereafter on or before the 1st day of July of each year, every importer, manufacturer, and dealer in firearms shall register with the collector of internal revenue for each district in which such business is to be carried on his name or style, principal place of business, and places of business in such district, and pay a special tax at the following rates: Importers or manufacturers, $_____ a year; dealers, $_____ a year. Where the tax is payable on the 1st day of July in any year it shall be computed for one year; where the tax is payable on any other day it shall be computed proportionately from the 1st day of the month in which the liability to the tax accrued to the 1st day of July following.
(b) It shall be unlawful for any person required to register under the provisions of this section to import, manufacture, or deal in firearms without having registered and paid the tax imposed by this section.
(c) All laws (including penalties) relating to the assessment, collection, remission, and refund of special taxes, so far as applicable to and not inconsistent with the provisions of this act, are extended and made applicable to the taxes imposed by this section.
SEC. 3.
(a) There shall be levied, collected, and paid upon firearms sold, assigned, transferred, given away, or otherwise disposed of in the continental United States a tax at the rate of $_____ per machinegun and $_____ per other firearm, such tax to be paid by the person so disposing thereof, and to be represented by appropriate stamps to be provided by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury; and the stamps herein provided shall be affixed to the order for such firearm, hereinafter provided for. The tax imposed by this section shall be in addition to any import duty imposed on such firearm.
(b) All provisions of law (including penalties) applicable with respect to the taxes imposed by section 800 of the Revenue Act of 1926 (U.S. C., Supp. VII, title 26, sec. 900) shall, insofar as not inconsistent with the provisions of this act, be applicable with respect to the taxes imposed by this section.
SEC. 4.
(a) It shall be unlawful for any person to sell, transfer, give away, or otherwise dispose of any firearm except in pursuance of a written order from the person seeking to obtain such article; on an application form issued in blank for that purpose by the Commissioner of Internal Revenue. Such order shall identify the applicant by his name, address, fingerprints, photograph, and such other means of identification as may be prescribed by regulations under this act. If the applicant is other than an individual, such application shall be made by an executive officer thereof.
(b) Every disposing of each firearm shall set forth in each copy of such order the manufacturer's number or other mark identifying such firearm, and shall forward a copy of such order to the Commissioner of Internal Revenue. The original thereof, with stamps affixed, shall be returned to the applicant.
(c) No person shall sell, assign, transfer, give away, or otherwise dispose of a firearm which has previously been disposed of, (on or after the effective date of this act) unless such person, in addition to complying with subsection (b), transfers therewith the stampaffixed order provided for in this section, or each prior disposal, and compiles with such other rules and regulations as may be imposed by the Commissioner of Internal Revenue, with the approval of the Secretary of Treasury, for proof of payment of all taxes on such firearm.
SEC. 5. It shall be unlawful for any person to receive or possess any firearm which has at any time been disposed of in violation of section 3 or 4 of this act.
SEC. 6. Any firearm which has at any time been disposed of in violation of the provisions of this act shall be subject to seizure and forfeiture, and all the provisions of internalrevenue laws related to searches, seizures, and forfeiture of unstamped articles are extended to and made to apply to the articles taxed under this act, and the persons upon whom these taxes are imposed.
SEC. 7. Each manufacturer and importer of a firearm shall identify it with a number of other identification mark approved by the Commissioner of Internal Revenue, such number or mark to be affixed or otherwise placed thereon in a manner approved by such Commissioner.
SEC. 8. Importers, manufacturers, and dealers shall keep such books and records and render such returns in relation to the transactions in firearms specified in this act, as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may by regulations require.
SEC. 9.
(a) No firearms shall be imported or brought into the United States or any territory under its control or jurisdiction (including the Philippines Islands), except that, under regulations prescribed by the Secretary of the Treasury, any firearm may be imported or brought in when (1) the purpose thereof is shown to be lawful and (2) such firearm is unique or of a type which cannot be obtained within the United States or such territory.
(b) It shall be unlawful (I) fraudulently, or knowingly to import or bring any firearms into the United States or any territory under its control or jurisdiction in violation of the provisions of this act; or (2) knowingly to assist in so doing; or (3) to receive, conceal, buy, sell, or or in any manner facilitate the transportation, concealment, or sale of any such firearm after being imported or brought in, knowing the same to have been imported contrary to law. Whenever on trial for a violation of this section the defendant shown to have or to have had possession of such imported firearm, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains such possession to the satisfaction of the jury.
SEC. 10.
(a) It shall be unlawful for any person who has not first obtained a permit as hereinafter provided, to send, ship, carry, or deliver any firearm in interstate commerce. Nothing contained in this section shall apply
(1) To any manufacturer, importer, or dealer who has complied with the provisions of section 2;
(2) To any person who has complied with the provisions of sections 3 and 4 in respect to the firearm so sent, shipped, carried, or delivered by him;
(3) To a common carrier in the ordinary routine of its business as a common carrier;
(4) To an employee, acting within the scope of his employment, of any person not violating this section;
(5) To any person who has lawfully obtained a license for such firearm from the State, Territory , District, or possession to which such firearm is to be sent, shipped, or delivered;
(6) To any United States, State, county, municipality, District, Territorial, or insular officer or official acting within the scope of his official duties.
(b) Application for such permit may be made to the Commissioner of Internal Revenue at Washington or to such officers at such places as he may designate by regulations to be prescribed by him, with the approval of the Secretary of the Treasury, for the issuance of such permit. Such regulations shall provide for a written application containing the photograph and fingerprint of the applicant, or employee, the serial number an description of the firearm to be transported, and other information requested by the Commissioner of Internal Revenue or his agent.
(c) Such permits shall be issued upon payment of a fee of $_____, provided the Commissioner of Internal Revenue is satisfied that the proposed transaction is lawful.
(d) Any person found in possession of a firearm shall be presumed to have transported such firearm in interstate commerce contrary to the provisions hereof, unless such person has been a bona fide resident for a period of not less than sixty days of the State wherein he is found in possession of such a firearm, or unless such person has in his possession a stampaffixed order therefor required by this act. This presumption may be rebutted by competent evidence.
SEC. 11. The Commission of Internal Revenue, with the approval of the Secretary of the Treasury, shall make all needful rules and regulations for carrying the provisions of this act into effect.
SEC. 12. This act shall not apply to the sale, assignment, transfer, gift, or other disposal of firearms (1) to the United States Government, any State, Territory, or possession of the United States, or to any political subdivision thereof, or to the District of Columbia; (2) to any peace officer or any Federal officer designated by regulations of the Commissioner of Internal Revenue.
SEC. 13. Any person who violates or fails to comply with any of the requirements of this act shall, upon conviction, be fined not more than $_____ or be imprisoned for not more than _____ years, or both, in the discretion of the court.
SEC. 14. The taxes imposed by paragraph (2) of section 600 of the Revenue Act of 1926 (U.S. C., Supp. VII, title 26, sec. 1120) and by action 610 of the Revenue Act of 1932 (47 Stat. 169, 264), shall not apply to any firearm on which the tax provided by section 3 of this act has been paid.
SEC. 15. If any provision of this act, or the application thereof to any person or circumstance, is held invalid, the remainder of the act, and the application of such provision to other persons or circumstances, shall not be affected thereby.
SEC. 16. This act shall take effect on the sixtieth day after the date of its enactment.
SEC. 17. This act may be cited as the "National Firearms Act."
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General RECKORD. Mr. Doughton, if I may, I would like to present Mr. Karl Frederick, who is the President of the National Rifle Association of America. He is the vice president of the United States Revolver Association. He is a member of the Campfire Club. He is also a member of the New York Fish, Game, and Forest League and is vice president of the New York Conservation Council, Inc.; a former member of the Commission on Fire Arms Legislation of the National Crime Commission.
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Mr. FREAR. The question in my mind and I think in the majority of the committee is what we can do to aid in suppressing violations by such men as Dillinger and others. Do you think that by your proposed amendment you have aided in that result?
Mr. FREDERICK. I believe so.
* * *
Mr. FREDERICK, There is, as I see it, no provision made in the act for the jobber, who is the general distributor to dealers of pistols. It seems to me that from the little I know of the manner in which the business is conducted, because I have not and never have had any connection with the business of firearms as I understand it, the jobber plays an essential part in the firearms business. I understand that it would, be quite impossible for the manufacturer to pass upon the credit questions and the other matters which arise, as between the ultimate dealer and his supplier. It has suggested itself to my mind that one of the purposes of this bill was to destroy the jobber and, to eliminate all but the largest and the wealthiest and the strongest individual dealers.
The CHAIRMAN. Do you mean dealers or manufacturers?
Mr. FREDERICK. I mean dealers. I think an annual fee of $200 a year will eliminate 95 percent of the dealers in pistols.
Mr. LEWIS. What is your definition of dealer? What does it include? Does it include the village storekeeper who sells pistols?
Mr. FREDERICK. Yes, sir.
Mr. HILL. The definition is on page 2, beginning with line 11:
The term -"dealer" means any person not a manufacturer or importer engaged within the continental United States in the business of selling firearms. The term "dealer" shall include pawn brokers and dealers in used firearms. That would include jobbers, I take it.
Mr. FREDERICK. It is possible, but the jobber does not fit very logically into the picture that is here defined.
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Mr. FREDERICK. That takes me into the purposes .of this bill. This bill, as I see it, is intended to be a bill for the suppression of crime and is proposed to the United States Congress which ordinarily has no power in such matters, under the guise of a revenue raising bill.
Mr. FREAR. May I ask a question? Are you interested at all in arms manufacturing or anything like that?
Mr. FREDERICK. Not at all, in any way,
Mr. FREAR. They why not offer some constructive criticism? You are complaining about the character of the bill, suggesting what is behind it, the motives behind it, and so forth. Why not offer something constructive that, will be helpful to us anywhere along the line?
Mr. FREDERICK. I am trying to do so, as rapidly as I can.
Mr. FREAR. If you will read your record, you will find, I understand, that you are attacking the motives generally.
Mr. FREDERICK. Not at all. I am saying that this bill, practically speaking, destroys the business in firearms of 95 percent of the dealers.
Mr. FREAR. Then why not recommend something, as Mr. Hill has suggested?
Mr. FREDERICK. I shall be glad to submit a recommendation in that respect, as soon as I have had a chance to examine it.
Mr. FREAR. Yes; but do not attack the motives for its introduction. We are not interested in that at this time.
Mr. FREDERICK. I think that the result of this provision here will be to deprive the rural inhabitant, the inhabitant of the small town, the inhabitant of the farm, of any opportunity to secure a weapon which he perhaps more than anyone else needs for his self-defense and protection. I think that it would be distinctly harmful to destroy the opportunity for self-defense of the ordinary man in the small community, where police forces are not adequate.
Mr. HILL. Just tell us how this bill does that.
Mr. FREDERICK. It does it in two or three ways, as I see it. In the first place, it requires Federal documents to be filled out, procured from Federal officials, before a pistol can be purchased. It requires that pistol to be purchased from a: licensed dealer. Now, if the largest and most important and wealthiest dealers, those in the larger cities, are the only dealers to exist who can handle firearms and if it is required to go to a Federal official who is not to be found readily in rural communities in the country, in any except. the larger communities - if they only are allowed to handle firearms, it seems to me that the practical result will be that the countryman absolutely will be unable, in a practical sense, to obtain any firearm. There are so many impediments put in his way. He will be unable to secure a weapon that he needs for his own defense and the defense of his home and family.
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The CHAIRMAN. In what sense is the possession of a pistol essential to the self-defense of people who live in rural communities, as you have stated? Do you mean it is essential to the self-defense of an individual who is out on the highway, or in his home? In what sense is a pistol essential to the self-defense of an individual who lives in a rural community? Why is not a rifle or a shotgun, the possession of which would not be prohibited under this act, sufficient for the self-defense of an individual or an individual's home? In what sense did you mean that? You know, most of the States have laws against carrying concealed weapons.
Mr. FREDERICK. Exactly. I think those are quite proper laws and are the only effective laws.
The CHAIRMAN. Then it can be that you are referring only to the possession of a pistol in the home.
Mr. FREDERICK. No; because many people do find occasion to carry pistols, and do so under license.
The CHAIRMAN. That would not necessarily be a matter of self-defense, would it?
Mr. FREDERICK. Oh, yes, in many, many instances.
The CHAIRMAN. I never heard of it.
Mr. FREDERICK. I have heard of it in hundreds of instances.
Mr. FREAR. -My experience is that the average person who carries a revolver is not one who lives in a rural district, but in New York or Chicago and such places that Dillinger and men of his type are found.
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Mr. MCCORMACK. All of those fellows are country-born boys. They do not come from the big cities. I understand that most of them are country boys originally.
Mr. FREAR. The man against whom we are trying to legislate is Dillinger and men of his type.
Mr. FREDERICK. If there is any feasible way of getting that type of man, I would like to know it.
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Mr. FREAR. Could we not base that on the amount of sales?
Mr. FREDERICK. Yes, I think that could be quite easily done. I am referring to the makers of handmade pistol barrels, of whom there are a number in this country. They make the finest and highest type of target weapons that are to be found and they do it entirely by hand; I mean, with a hand lathe. Their guns have been used for 25 years in both the National and the International shooting competition. I have myself been a member of five or six international pistol teams and in every one of those I have used hand-made guns, hand-made barrels, because they were a little bit finer than any others that could be bought in my opinion.
Every one of those barrels was made by a man who is a past master of that field of ballistics, and who can, in my opinion, make a finer barrel than any manufacturer in the business.The CHAIRMAN. Does he make the entire gun or just the barrel?
Mr. FREDERICK. He makes the barrel.
The CHAIRMAN. He would not come under the provisions of this bill, would he?
Mr. FREDERICK. I do not know. He is a manufacturer. He goes over the whole gun, revises the trigger pull, changes the hammer and does a lot of things to it.
The CHAIRMAN. But he is not a manufacturer of a gun. He assembles the parts and puts them together. He is not a manufacturer, is he?
Mr. FREDERICK. I suspect that he is.
The CHAIRMAN. I suspect that he is not. I do not see how he can be considered a manufacturer of a gun if he only makes the barrel.
Mr. FREDERICK. He might buy the action from one man. If he made the barrel and then put it together with the other parts, he would be a manufacturer of that gun, just as much as a man who bought automobile wheels from one place and a wiring system from another and a motor from another manufacturer and assembled them and sold them under his name - he would be a manufacturer.
The CHAIRMAN. If he bought all the parts and assembled them and sold the finished gun, I suppose he would be a manufacturer.
Mr. KNUTSON. This man to whom you refer, does he assemble the gun?
Mr. FREDERICK. He will take a gun, take off the old barrel and make a new barrel, put it on, make over the hammer, make over the trigger pull, make over the spring and do a variety of other things with it, so that the gun, you might say, was a reassembled gun after he was through with it.
Mr. KNUTSON. What we would call a rebuilt gun.
Mr. FREDERICK. It really is, I should say so.
Mr. KNUTSON, And you think he would be a manufacturer?
Mr. FREDERICK. I suspect that he would be a manufacturer within the terms of this act.
Mr. HILL. Assuming he is a manufacturer, of course in a small way so far as output is concerned, there has been a suggestion made here that the situation might be met by a graduated tax, depending upon the volume of the output.
Mr. FREDERICK. I think so.
Mr. HILL. If that can be done, the objection you make there does not go to the principle of the legislation, but simply to the particular provision as to license.
Mr. FREDERICK. That is quite true.
Mr. HILL. Your objection, then, is not to the principle, but simply to the prohibitive tax?
Mr. FREDERICK. It is to the prohibitive nature of the tax.
Mr. HILL. So that if we met that by graduated tax on the manufacturer, your objection would be satisfied?
Mr. FREDERICK. I think so. I have no objection - to put it this way - to the principle of a Federal license designed not to destroy, but to secure a police registration of both manufacturers and dealers.
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Mr. KNUTSON. Let me ask you a question right at that point. Do you know of many illicit manufacturers of firearms? I think I read in the paper last evening a statement to the effect that the Department of Justice had seized an arsenal largely made up of guns manufactured illicitly, or unregistered, however they term them.
Mr. FREDERICK. I do not know of any illicit manufacturers.
Mr. LEWIS. Why should there be any illicit. manufacturers in, the absence of all law that now prevails in this field?
Mr. FREDERICK. I did not quite get your question.
Mr. LEWIS. I cannot fancy the motive for illicit manufacture of these things when we are almost without any laws on the subject whatever.
Mr. FREDERICK. I may say that a gun is. a very easy thing to make, that a third-class automobile mechanic can make a pistol which will do deadly work, and can do it in an afternoon with the materials which he can find in any automobile shop. And I can say that it has been done time and time and time again.
Mr. LEWIS. What makes it illicit?
Mr. FREDERICK. I suppose what makes it illicit is the purpose for which such guns are made. If it is not against the law to make a gun, then there is nothing illicit in connection with it. But when such a gun is manufactured in a State prison and is used by an inmate for the purpose of perpetrating his escape from jail, I think that is illicit manufacture, and such guns have been made in prison, in prison machine shops.
Mr. FREAR. It turns on the motive?
Mr. FREDERICK. Yes; it turns on the motive.
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Mr. DICKINSON. I will ask you whether or not this bill interferes in any way with the right of a person to keep and bear arms or his right to be secure in his person against unreasonable search; in other words, do you believe this bill is unconstitutional or that it violates any constitutional provision?
Mr. FREDERICK. I have not given it any study from That point of view. I will be glad to submit in writing my views on that subject, but I do think it is a subject which deserves serious thought.
Mr. DICKINSON. My mind is running along the lines that it is constitutional.
Mr. MCCORMACK. You have been living with this legislation or following this type of legislation for quite a number of years.
Mr. FREDERICK. Yes; I have.
Mr. MCCORMACK. The fact that you have not considered the constitutional aspect would be pretty powerful evidence, so far as I am concerned, that you did not think that question was involved.
Mr. FREDERICK. No; I would not say that, because my view has been that the United States has no jurisdiction to attack this problem directly. I think that under the Constitution the United States has no jurisdiction to legislate in a police sense with respect to firearms. I think that is exclusively a matter for State regulation, and I think that the only possible way in which the United States can legislate is through its taxing power, which is an indirect method of approach, through its control over interstate commerce, which was perfectly proper, and through control over importations, I have not considered the indirect method of approach as being one which was to be seriously considered until the bill began to be talked about.
Mr. MCCORMACK. You would not seriously consider that there was any constitutional question involved in this bill, would you?
Mr. FREDERICK. I think this bill goes pretty far for a revenue bill in the direction of setting up what are essentially police regulations.
Mr. MCCORMACK. Congress possesses the power, if it is required, to exercise the taxing power for the regulation of social purposes.
Mr. FREDERICK. I know, and it has been frequently exercised, and suppose that Congress can pass, under its taxing power, what are in effect regulatory statutes, as it has in many instances, such as the acts relating to oleomargarine and other things.
Mr. MCCORMACK. I quite agree with you. The thought in my mind was the fact you had not considered the constitutional phase, and being the student you are, and following this particular type of legislation as closely as you have, it would be a powerful piece of evidence, and at least I would draw the inference, that you did not think the question was seriously involved,
Mr. FREDERICK. I may say that approached as a taxing proposition I am personally of the opinion, as a lawyer, that Congress may legislate in the way of taxing certain transactions with respect to firearms. That, I think, is clear.
Mr. LEWIS. Mr. Frederick, the automobile is a dangerous, even a deadly instrument, but never intentionally a deadly instrument, of course. States uniformly have taken notice of the danger to the innocent pedestrian and others involved in the use of the automobile. They have set up around the privilege of its ownership and operation a complete regulatory system consistent with reasonable rights to the use of the automobile. Approaching the subject of firearms, would you not consider that society is under the same duty to protect the innocent that it is with regard to the automobile and that with a view to the attainment of that, result, the person who wishes the privilege of bearing firearms should submit to the same regulations as rigid as the automobile owner and driver is required to accept?
Mr. FREDERICK. You have raised a very interesting analogy, one which, to my mind, has a very decided bearing upon the practicability and the desirability of this type of legislation. Automobiles are a much more essential instrument of crime than pistols. Any, police officer will tell you that. They are much more dangerous to ordinary life, because they kill approximately 30,000 people a year. The extent, so far as I know, to which the Government, or the Congress, has attempted to legislate is with respect to the transportation in interstate commerce of stolen vehicles, which apparently has accomplished very useful results. The rest of the legislation is left to the States, and in its effect and in its mode of enforcement, it is a wholly reasonable and suitable approach, because, if I want a license for my car I can get it in 20 minutes, by complying with certain definite and well-known regulations.
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Mr. MCCORMACK. That is the exception but, as a general rule, it is recognized as inherently dangerous. The same applies to weapons; they are recognized as inherently dangerous.
Mr. FREDERICK. I do not think so.
Mr. MCCORMACK. What do people buy weapons for?
Mr. FREDERICK. People buy weapons for several purposes; one is for the protection of the person or property.
Mr. MCCORMACK. That class of people have no fear about reasonable license requirements.
Mr. FREDERICK. Not reasonable requirements.
Mr. MCCORMACK. They have no fear of reasonable regulations as to licenses, if the weapons are necessary to meet a challenge to organized society.
Mr. FREDERICK. They buy pistols also to use for training, in the event of military necessity.
Mr. MCCORMACK. Those persons need not fear reasonable regulations.
Mr. FREDERICK. I beg your pardon?
Mr. MCCORMACK. Those persons need have no fear of reasonable regulations.
Mr. FREDERICK. I think our difference may turn entirely upon what is reasonable.
Mr. MCCORMACK. You are not opposed to regulation?
Mr. FREDERICK. Not at all; I have advocated it.
Mr. MCCORMACK. You are not opposed to a Federal bill?
Mr. FREDERICK. Provided the bill will accomplish useful results in the suppression of crime, I am heartily in favor of it.
Mr. MCCORMACK. You have given two groups who buy pistols.
Mr. FREDERICK. Another group is those who indulge in the use of pistols in connection with sports.
Mr. MCCORMACK. That group need not fear any proper regulation.
Mr. FREDERICK. ,Any difference that we may have, and I do not know whether we have any, turns on the question of what is reasonable.
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Mr. FREAR. Can you point out, without interruption, the provisions to which you object?
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Mr. FREDERICK. I am quite concerned about the amount which is suggested on page 8, line 15, for a permit to transport in interstate commerce.
Mr. FREDERICK. In my opinion, the provision for fingerprints will not accomplish what is desired.
Mr. FREAR. Suppose we strike that out.
Mr. FREDERICK. I would like to mention that the bill relates to the taking of fingerprints and refers to corporations, associations, and partnerships. I do not know how the fingerprint of any' officer of such an association or corporation can have value,
Mr. FREAR. Admitting your answer is correct, that is not serious. What is your next objection?
Mr. FREAR. What would you recommend for that?
Mr. FREDERICK. I think, inasmuch as I deem the primary purpose of this bill to be purely regulatory that that ought not to be burdensome. I should make it as nominal as possible. It seems to me that 25 cents is ample.
Mr. FREAR. Or 15 cents.
Mr. FREDERICK.- Fifteen cents or 10 cents, or anything which will not prevent compliance with it because of its burdensome nature.
Mr. FREAR. What is next?
Mr. FREDERICK. There is no provision in the act covering the situation of an owner of a weapon who loses this stamped order. As I see the operation of the bill, it will mean this: When a manufacturer sells a weapon to a jobber, he gives a stamped order; when the jobber sells the weapon to the retailer, assuming we still allow jobbers to exist, he gives a second order together with the first. When the dealer sells to the buyer, he gives the third order and the two previous ones, and the buyer gets the gun and three pieces of paper. It is essential to him, in order to keep out of jail, to keep those together.
Mr. FREAR. How would you suggest having but one piece of paper?
Mr. FREDERICK. I think the only piece useful is a piece of paper where the transfer takes place between two persons, one of whom is not a licensed dealer. In other words, if I, as a private individual, sell. a gun to a friend, a piece of paper is necessary there. Where a dealer sells to me as a buyer, a piece of paper should be useful. I do not think a string of prior papers are of value, running from the manufacturer who may be required to keep records. In the second place, when, as a matter of human experience, the owner of a gun is going to lose papers, they are going to get mislaid, they are going to get burned up, if he cannot turn them up when required to do so he is liable to go to jail. I think there ought to be a simple method of obtaining a copy of that paper from the authorities with whom the original was filed.
Mr. FREAR. We might attach a number plate to the pistol like we do to the automobile, as small as is necessary, -and have that be evidence of the privilege of transfer. You only want one?
-Mr. FREDERICK. I think the owner ought to be able to get one if it is lost. I think that machinery ought to be made simple. If not, in the actual operation, you are going to create criminals.
Mr. FREAR. What is the next objection?
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Mr. FREDERICK. On page 7 it says:
"Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such imported firearm, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains such possession to the satisfaction of the jury."
Mr. FREAR. That is taken from the other act.
Mr. FREDERICK. I do not understand why it should be necessary for such a person to go to trial,
Mr. FREAR. You think that language is too loose?
Mr. FREDERICK. Too loose and too drastic.
Mr. FREAR. You might write a substitute; we want your suggestions,
Mr. FREDERICK. I am skipping around somewhat, as I am sorry I have to do, On page 7, section 10, I do not know what that language "nothing contained in this section shall apply to any manufacturer, importer, or dealer who has complied with the provisions of section 2", means. I suppose that means that he has taken out a license.
Mr. FREAR. That is satisfactory as far as it goes?
Mr. FREDERICK. I should like very much to have the privilege of submitting some suggestions in writing, if I may.
The CHAIRMAN. Without objection, you may do so.
Mr. DICKINSON. Let me say that I have received numerous telegrams asking me to support legislation along the lines of the recommendations of the National Rifle Association. Your line of thought is in accord with the things advocated by the National Rifle Association?
Mr. FREDERICK, I am president of the National Rifle Association and I think I correctly voice its views.
Mr. DICKINSON. Your purpose is to submit to this committee recommendations desired by the National Rifle Association in connection with this bill?
Mr. FREDERICK. Among the other organizations whose views I voice.
The CHAIRMAN. When may we have, your written suggestions?
Mr. FREDERICK. I will get at it this afternoon and try and let you have it as quickly as I can. As a lawyer, I know that the drafting of legislation is an extremely difficult job. You have to do a lot of checking, and it is a difficult piece of work.
Mr. HILL. When you do that, do not forget that we are after the gangster.
FREDERICK. You have put your finger on it. My general objections to most of the regulatory .provisions are proposed with that in view. I am just as much against the gangster as any man.
I am just as much interested in seeing him suppressed, but I do not believe that we should burn down the barn in order to destroy the rats. I am in favor of some more skillful method of getting the rats without destroying the barn. In my opinion, most of the proposals the regulation of firearms, although ostensibly and properly aimed at the crook, do not reach the crook at all, but they do reach the honest man. In my opinion, the forces which are opposed to crime consist of two general bodies; one is the organized police and the second is the unorganized victims, the great mass of unorganized law-abiding citizens, and if you destroy the effective opposition of either one of those, you are inevitably going to increase crime, because as you destroy the forces of resistance in the human body to disease, you are going to increase disease. So, by destroying the resistance of any body which is opposed to crime, you are going to increase crime. I think we should be careful in considering the actual operation of regulatory measures to make sure that they do not hamstring the law-abiding citizen in his opposition to the crook.
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Mr. HILL. You concede there is a necessity for something. In politics we have an old saying that you cannot beat somebody with nobody. You cannot hope to defeat or materially alter the legislation unless you submit to the committee something that is better or that will better attain the object that this legislation seeks to accomplish.
Mr. FREDERICK. I must differ with you in principle upon one point. I do not believe that Congress or the people back home want us to attempt miracles. In my opinion, based upon a rather extensive experience with this subject and study of it, very little of practical value can be accomplished by Federal legislation on the point.
Mr. HILL. I take it then that it is your opinion that the criminal is going to get firearms regardless of any laws.
Mr. FREDERICK. I think that is the opinion of any person who has knowledge of the subject. In most instances, the guns are stolen. They are not. gotten through legitimate channels. Dillinger stole his guns. I have half-dozen cases where guns have been used in prisons to effect a break; we have had that in New York, and all over the country. If you cannot keep guns out of the hands of criminals in jails, I do not see how you can keep them out of the hands of criminals walking about on the public highways.
The CHAIRMAN. If that be true, then the laws of the various States of the Union dealing with the subject, are not accomplishing a good purpose because they do not put them all out of business?
Mr. FREDERICK. I do not take that view of it at all. I believe in regulatory methods. I think that makes it desirable that any such regulations imposed should not impose undue hardships on the law-abiding citizens and that they should not obstruct him in the right of self-defense, but that they should be directed exclusively, so far as possible, to suppressing the criminal use, or punishing the criminal use of weapons.
The CHAIRMAN. You spoke of your experience, which we realize is valuable and extensive, in dealing with this matter. This bill contemplates the suppression of crime and the protection of law-abiding citizens. Do you consider that your experience and your knowledge of this subject is superior to that of the Department of Justice? Do you consider that your experience puts you in a better position to say what is necessary to accomplish the suppression of crime than the Department of Justice?
Mr. FREDERICK. I hesitate to set myself up in any comparative sense, because I recognize the prestige of the Department of Justice.
The CHAIRMAN. You recognize also their experience in dealing with this subject?
Mr. FREDERICK. Their experience, I think, has been comparatively recent. I think I may truthfully say this, and I think Mr. Keenan would agree with me, that I have given much more study to the problem of firearms regulations, extending over a longer period of time and going into far greater detail, than any man or all of the men in the Department of Justice.
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The CHAIRMAN. Has your experience been with the sole purpose of dealing with crime?
Mr. FREDERICK. I have never been a prosecuting attorney.
The CHAIRMAN. One of the purposes of the Department of Justice is to deal with crime.
Mr. FREDERICK. I have approached it as a citizen interested in the public welfare, and the subject of crime has been a matter I have been deeply interested in ever since my college days, 30 years ago.
Mr. HILL. You expressed the opinion that perhaps any legislation would not be effective to keep firearms out of the hands of the criminal element.
Mr. FREDERICK. I am quite sure we cannot do that.
Mr. HILL. Assuming that is correct, and I am sure a great many might agree with you, if the firearms are found in the possession of the criminal element, and they cannot, under the provisions of this act, or of some similar legislation, show that they are in lawful possession of those firearms, would that not be a weapon in the hands of the Department of Justice in enabling them to hold those criminals until further investigation might be made of the crime?
Mr. FREDERICK. I think so, and.I made this suggestion to Mr. Keenan 2 months ago, that whenever a weapon, a firearm of any kind, and I would not limit it to pistols—I would say rifles or shotguns—is found in the hands of any person who has been convicted of a crime of violence, because there are many crimes which have nothing to do with the use of firearms and that is why I make the distinction; and I think he suggested that we add to that any person who is a fugitive from justice--that mere possession of such a weapon should be prima facie evidence of its transportation in interstate commerce, and that transportation in interstate Commerce of weapons by those people be made a crime.
Mr. HILL. What do you do with a man who has never been convicted of a crime although he may be a criminal?
Mr. FREDERICK. I do not know of any. way in which you can catch all the dirt in the stream no matter what kind of a skimmer you may use.
Mr. HILL. It is conceivable that some of the most desperate gangsters may never have been convicted because we have been unable to get the evidence.
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Mr. FREDERICK. I shall be glad to conclude with one more observation.
The CHAIRMAN. We are very pressed for time, as we have other matters to consider.
Mr. FREDERICK. It seems to me that any provision regarding a permit such as that contained in section 10, page 7, to transport a weapon in interstate commerce should call for a permit good indefinitely, because, it is in the nature of a restriction and I take it that is about the only purpose of it. If I should go to Camp Perry or Seagirt, or any other place where the pistol matches are held, it would be a veritable nuisance for me to get a permit to get there, and once there, to get home; it would be a nuisance to go to the country and be required to get a permit, and then be required to get another when you come back at the end of the summer. It seems to me that once a man has registered his weapon, and it is known that he has lawfully obtained a permit to transport it, that it should be good indefinitely, so far as he is concerned, and so far as the particular gun Is concerned.
I thank you for the privilege of appearing before you.
I'm not sure what happened with his legislation, but it is apparent that the final suggestion made by Mr. Frederick eventually resulted in the Felon in Possession, though the application of Felon in Possession, as it currently exists, is far broader than what was proposed by Frederick. It has not become the act of the individual, as he suggested, rather the act of the object (firearm), which has been extended to nearly any product. It has also extended the definition of "convicted of a crime of violence " to include non-violent criminal"
Conflict between State and Federal
Though I will only present one situation, with regard to a blatant violation of the 10th amendment, it must be understood that nearly every state has an equivalent to the Second Amendment.
This has to do with a story that I covered regarding Kevin Massey, who spent nearly 3 years in prison for violation of the "fellow federal felon in possession" charge. As explained in the article in the Appendix, the federal statute refers to "in and affecting commerce".
Massey's firearms were purchased from private individuals within Texas. Massey was never on federal land. So, can that be construed in the intent indicated by the wording, "in and affecting commerce"?
The government has, in WICKARD v. FILBURN, 317 U.S. 111 (1942), stated that his wheat crop could eventually end up in commerce. This, in the case of Filburn, is a presumption beyond the reach of the amendment. This decision is in the Appendix. So, can that be construed in the intent indicated by the wording, "in and affecting commerce".
Further, regarding the California Medical Marijuana Law, a similar assumption is made. That case, Gonzales v Raich , 545 US 1 (2005), suggests that marijuana grown legally under California law might end up in commerce. This decision is in the Appendix. So, can that be construed in the intent indicated by the wording, "in and affecting commerce".
The assumption, beyond the specific wording of the law, is indicative of a blatant violation, via the commerce clause, of an authority reserved to the states or people, as per said 10th Amendment. The intent of the Commerce Clause was to prohibit one state from charging any tariff, tax, or fee, for transportation of goods into or through one state to another or to any foreign location, that authority is reserved to the federal government.
So, if it might end up in commerce, it is as any assumptive step to say that if it had been in commerce. Even if it had never been in commerce but it might someday be in commerce. This, quite simply, broadens The interpretation to anything and everything, not even needing a reference to commerce. Surely, this is not what the Framers intended, nor the intent of the Ninth and Tenth Amendments.
So, let' s suppose that the firearm and the ammunition had been made in Texas. It would still be under the purview of the statute, since it could go into commerce.
That would then presume that anything purchased or to purchased in the future, subjects you to federal statutory law. Do you believe that is that the Founders intended with the Commerce Clause? Or, is it simple abuse by the federal government, whether legislatively or by administrative rulemaking?
Appendix
Camp Lone Star - Massey & The Clash of Laws
Gary Hunt
Outpost of Freedom
October 27, 2014K. C. Massey was in the area when a shooting occurred that brought numbers of Border Protection Service (BPS) agents, and Cameron County Sheriff Investigator Sergio Padilla, to the scene. The BPS agents asked that the weapons of all three individuals be turned over to BPS for reasons of safety (Explained in Massey's account of incident). They were then turned over to Padilla, though at no time was Massey read Miranda rights, nor was the transfer of the weapons voluntary. It was simply done because they were agents, with guns, and in the principle of "discretion being the better part of valor", they relinquished the weapons.
Those weapons then became the object of a Criminal Complaint, charging Massey and John Foerster (See Camp Lone Star - Update #1 on K. C. Massey) with felony possession of a firearm, based on 18 U. S. Code § 922 (g)(1).
Federal Authority and limitations
The theory behind laws, and the application of law, including ambiguity of the word, intent of the law, and misapplication of those laws is addressed in "No bended knee for me" - the Charge against Robert Beecher (for those interested in that aspect of persecution), however, the purpose of this article is to discuss what might be termed "the clash of laws" between the United States and Texas, under a Republican Form of Government (Art. IV, § 4 of the Constitution, as a member state of the Union of these United States (yes, the plural is intended).
To understand this clash, we must first look at the powers granted to, and the limitations imposed upon, on the federal government, by the Constitution.
First, there is the inevitable, and truly sacred, Second Amendment.
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Now, that reference to "free State" applies only to the states, not to the federal government, since the existence of a federal militia was never addressed in the Constitution, only the authority to call forth the militia. The first reference to what might be considered a federal militia occurred in 1916 with the enactment of law embodied in 10 U.S.C. § 311 (See A United States Militia). So, the Constitutional references to militia and bearing arms are contained in that Second Amendment and the following provisions in the Constitution"
Article I, § 8, clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Article I, § 8, clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
So, Congress can call forth the Militia, which they could not "call" if they were already under federal authority, and next, they recognize that "Part of them as may be employed in the Service of the United States". Leaving, of course, officers and training, to the "parent" of the militia, the States.
The only other provision is found in Article II, § 2, which reads,
"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..."
This makes clear that the Militia belong to the States, not to the federal government, except when called into service. Now, the only mention of "arms" is associated with that militia in the Second Amendment, which links any firearms laws only to the authority to the states (we will go further on this subject, later). The only applicability to federal authority, or should we say, prohibition, is that "the right of the people to keep and bear Arms, shall not be infringed." It appears that it wasn't until the 1930s when the government first crossed that line drawn by the Constitution, and has continued to expand overarching authority into those Constitutionally prohibited realms, since that time (See The Three Constitutions - Which One do You Defend).
There is one more concern regarding federal authority that must be addressed, before we get to the heart of the matter. That is the authority granted regarding Commerce, Article I, § 8, clause 3, says,
"The Congress shall have Power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
It does not grant any power within the states, only "among the several States". That is interstate, not intrastate, commerce.
Then, we have the only other "commerce" provision in Article I, § 9, clause 6:
"No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another."
Now, you need to keep these points in mind as we continue down a path of discovery -- to determine what We, not the government, see as the powers granted and limitations imposed.
Possession of a Firearm by a Convicted Felon (Federal)
The only charge against Massey, according to the Criminal Complaint, is a violation of 18 USC §922(g)(1) (the full text of §922(g) at 18 USC 922). The pertinent part is as follows:
(g) It shall be unlawful for any person -
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
So, let's look at the obvious intent of the law. First, "It shall be unlawful", well, no problem with that.
Next, if that person "has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year." Let's assume for the sake of discussion, that that criterion has been met -- that Massey has such a criminal record. So, now we move on to the third portion of the Statute.
It is unlawful "to ship or transport in interstate... commerce". Now, this next phrase is rather interesting. "Possess" means "To occupy in person; to have in one's actual and physical control". So this must mean that you have in your control the firearm when you affect the commerce. The possession must be done while participating in or affecting that commerce. Finally, "to receive any firearm or ammunition which has been shipped or transported in interstate commerce." Well, that last one surely must be the direct recipient, the addressee - to "receive", as opposed to "possess". For if that were the case, it would read, "to possess any firearm or ammunition which has been shipped or transported in interstate commerce."
So, let's revisit what we said about Commerce. "No Preference shall be given by any Regulation of Commerce or Revenue... one State over those of another." However, if we consider the implications of the law, if you live in a state that manufactures a firearm, then you can possess it, as it has not been involved in interstate commerce. However, if you have ammunition that was manufactured in another state, then you are guilty because of the ammunition. If you live in a state that manufactures both weapons and ammunition, you can possess those "firearms" and ammunition. However, if you live in a state that manufactures one, the other, or neither, then you may have but one, or none. That seems to give Preference to one state over another.
Further, this absolutely defies the concept of equal justice; it would defy the concept of Article IV, § 2, which states, "The Citizens of each State shall be entitled to all of the Privileges and Immunities of the Citizens of the several States." And, it would mean that if one moved to another state, with what was legal, from the federal standpoint, in the state from which he began, he would criminal in the other state.
Texas Possession Laws
So, let's see what Texas has to say about a convicted felon possessing a firearm. The applicable law is found in Texas Penal Code, Section 46.04. The pertinent part is as follows:
(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
(1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
(2) after the period described by Subdivision (1), at any location other than.
(f) For the purposes of this section, an offense under the laws of this state, another state, or the United States...
So, if one is convicted of a qualifying felony, after he has served his time gone through post conviction service, the clock starts. After five years, he cannot possess weapons, except at "the premises at which the person lives." Now, premises, in legal terminology, is the house, outbuildings and land. This is to afford protection -- once the five years has expired. It does not say house, it includes his whole dominion. He can protect his property.
Now, a question arises as to if he relocates, and lives elsewhere. In Massey's case, he has lived at Camp Lone Star for four months. The land is owned by “Rusty” Monsees, and the camp is located on his property, with his consent. That is where he lives, so the premises, though not owned by him, is the premises that are applicable in the statute. He encountered the BPS on those premises, so he had every legal right to possess the weapons, under state law.
When he was arrested, he was in a motel room, where he lived the night before he was arrested. This may be a gray area, though it seems that since he lived in that motel room, that night, and that the obvious purpose of the law is for personal protection, that he would still be legal, under state law. The alternative would have been to either secure his firearms in his truck, or to leave them unattended at Camp Lone Star. Though this may be debatable, if we look at intent, it is probable. If not, the only violation, under state law, might be him having his weapons in the motel room. However, he was not charged with that. The initial charge came when he surrendered his weapons, without Miranda, while still fully in compliance with Texas law. The Complaint was based upon his lawful (state law) possession. The Complaint led to the arrest, which might be the only exception to state law. However, the Complaint, itself, admits to "forbidden fruit".
So, where do we go, next?
Collision of Laws
Recently, Washington state and Colorado enact laws legalizing marijuana. Shortly thereafter, the Department of Justice announced that they were going to suspend prosecution of federal marijuana laws in those two states. Shall we ponder their reasoning for making such a decision?
Let's suppose that state law says you can possess marijuana, and federal law says that you cannot. To begin to understand this, and the subsequent discussion, perhaps we need to interrupt, for a minute, and understand what James Madison told us in Federalist Papers #62:
It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
So, law is "a rule of action", or, perhaps, a prohibition. But, it is there to guide us in remaining within the boundaries of law, or suffering the consequences of deviation from the law.
So, if marijuana is legal in Colorado, and criminal by federal law, which "rule of action" are we bound by? Well, the government did not want to face the consequences of a legal challenge to their presumed superiority of their laws over the state's laws. Let's look at Article IV, § 4, of the Constitution:
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."
So, we have the only "guarantee" in the Constitution, and that is that we have a "Republican Form of Government". That guarantee is that so long as the state does not enact a law in violation of the Constitution, they have every right to enact any other law -- such as the marijuana law. Gee, it also provides that the government "shall protect... them against Invasion". Golly, gee, isn't that what K. C. Massey and Camp Lone Star were doing, since the government was having so much trouble fulfilling this obligation?
However, the marijuana laws are the "Conflict of Laws", and, perhaps, the felony possession laws are also a Conflict of Laws. After all, the same dilemma arises. Can K. C. Massey possess firearms, so long as he does so in compliance with Texas Law, under their Republican Form of Government? Or, is he bound by federal law that depends so much on the Commerce provisions of the Constitution?
Let's look at what the United States Supreme Court said about the extent of authority granted by the commerce clause. The case is United States v Lopez 514 US 549 (1995).
The federal government had enacted the "Gun-Free School Zones Act of 1990", which forbids "any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone." The District Court denied Lopez, as they claimed that the law was "a constitutional exercise of Congress' power to regulate activities in and affecting commerce."
That decision was appealed to the Appellate Court, who then reversed the lower court decisions, when Chief Justice Rehnquist said,
Held:
The Act exceeds Congress' Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. Section 922(q) is a criminal statute [as is the charge against Massey] that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly those terms are defined... Second, 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite... nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government's contention that 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.
In a Certiorari to the Supreme Court, the case was heard. Chief Justice Rehnquist delivered the opinion of the Court. After a lengthy discussion, affirming most of what the Appellate Court had said in their decision, and extending even further into limitations of federal authority, the Decision concludes, "For the foregoing reasons the judgment of the Court of Appeals is Affirmed."
So, the Supreme Court, back in 1995, imposed a limitation of authority on the federal government, regarding the utilization of the Commerce Clause beyond its Constitutional intent. And, the law that was overturned, 18 U. S. Code Section 922(q), a part of the same statute that is being used against Massey, requires that there be an economic nexus to commerce for a law to be valid.
The first portion of this article explains the wording of the law, (922 (g)(1), and how it is clearly tied to commerce. Whether it was rewritten after the Lopez decision, or not, it must have the nexus to commerce. If the ownership of the gun by Lopez does not have that nexus, how, possibly, can the ownership by Massey have what the other did not?
Commerce begins when somebody "ships" something in interstate commerce. It continues when someone "transports" something interstate commerce. It finally ends when someone "receives" something that has been sent and transported. At that point, the nexus to commerce ceases, and we are back to "Equal Protection under the Law", where the state that you live in is the authority as to whether you can possess guns or ammunition.
The final point to be made on this subject is the fact that the state of Texas has three branches of government. They have, like every other state, a Legislative, and Executive, and a Judicial branch. The Judicial, of course, is to render justice. The Legislative, to enact laws, under its "Republican Form of Government", and the Executive to sign such enactments into law, and enforce them.
If what the federal government implies to be true by their persecution of K. C. Massey is true, then there is no need for the three branches of the government of Texas to exist. On the other hand, the government of Texas should take a more aggressive role, as the Supreme Court did, in limiting the overbearing and abused authority of the federal law enforcement agencies.
Let me repeat two quotations from the above. First is by Chief Justice Rehnquist in the Lopez decision, the second, my observation, from over twenty years of reporting to the Patriot community, on the ramifications and consequences of the current round of persecutions by the federal government, contrary to the state's constitutions and laws:
To uphold the Government's contention that 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.
If what the federal government implies to be true by their persecution of K. C. Massey is true, then there is no need for the three branches of the government of Texas to exist.
Therefore, We must ask ourselves whether the people are here to serve the government, or, is the government here to serve the people? If the former, then we acquiesce to a condition of servitude. If the latter, then we must, in the Court of Public Opinion, rise above the government, and force them back to the limitations imposed on them by the Constitution, by whatever means necessary.
This article can be found on line at Camp Lone Star - Massey & The Clash of Laws
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Wickard v Filburn 317 US 111 1942
WICKARD v. FILBURN, 317 U.S. 111 (1942)
317 U.S. 111
WICKARD, Secretary of Agriculture, et al.
v.
FILBURN.
No. 59.Reargued Oct. 13, 1942.
Decided Nov. 9, 1942.On Appeal from the District Court of the United States for the Southern District of Ohio.
Messrs. Francis Biddle, Atty. Gen., and Charles Fahy, Sol. Gen., for appellants.
[317 U.S. 111, 113] Mr. Webb R. Clark, of Dayton, Ohio, for appellee.
Mr. Justice JACKSON delivered the opinion of the Court.
The appellee filed his complaint against the Secretary of Agriculture of the United States, three members of the County Agricultural Conservation Committee for Montgomery County, Ohio, and a member of the State Agricultural Conservation Committee for Ohio. He sought to enjoin enforcement against himself of the marketing penalty imposed by the amendment of May 26, 1941,1 to the Agricultural Adjustment Act of 1938,2 upon that part of his 1941 wheat crop which was available for marketing in excess of the marketing quota established for his farm. He also sought a declaratory judgment that the wheat marketing quota provisions of the Act as amended and applicable to him were unconstitutional because not sus- [317 U.S. 111, 114] tainable under the Commerce Clause or consistent with the Due Process Clause of the Fifth Amendment.
The Secretary moved to dismiss the action against him for improper venue but later waived his objection and filed an answer. The other appellants moved to dismiss on the ground that they had no power or authority to enforce the wheat marketing quota provisions of the Act, and after their motion was denied they answered, reserving exceptions to the ruling on their motion to dismiss. 3 The case was submitted for decision on the pleadings and upon a stipulation of facts.
The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption; and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.
In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, as then amended, there were established for the appellee's 1941 crop a wheat acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. He was given notice of such allotment in July of 1940 before the Fall planting of his 1941 crop of wheat, and again in July of 1941, before it was harvested. He sowed, however, 23 acres, and harvested from his 11.9 acres of excess acreage 239 bushels, which under the terms of the Act as amended on May 26, 1941, constituted farm [317 U.S. 111, 115] marketing excess, subject to a penalty of 49 cents a bushel, or $117.11 in all. The appellee has not paid the penalty and he has not postponed or avoided it by storing the excess under regulations of the Secretary of Agriculture, or by delivering it up to the Secretary. The Committee, therefore, refused him a marketing card, which was, under the terms of Regulations promulgated by the Secretary, necessary to protect a buyer from liability to the penalty and upon its protecting lien. 4
The general scheme of the Agricultural Adjustment Act of 1938 as related to wheat is to control the volume moving in interstate and foreign commerce in order to avoid surpluses and shortages and the consequent abnormally low or high wheat prices and obstructions to commerce. 5 Within prescribed limits and by prescribed standards the Secretary of Agriculture is directed to ascertain and proclaim each year a national acreage allotment for the next crop of wheat, which is then apportioned to the states and their counties, and is eventually broken up into allotments for individual farms. 6 Loans and payments to wheat farmers are authorized in stated circumstances. 7
The Act provides further that whenever it appears that the total supply of wheat as of the beginning of any marketing year, beginning July 1, will exceed a normal year's domestic consumption and export by more than 35 per cent, the Secretary shall so proclaim not later than May 15 prior to the beginning of such marketing year; and that during the marketing year a compulsory national marketing quota shall be in effect with respect to the marketing [317 U.S. 111, 116] of wheat. 8 Between the issuance of the proclamation and June 10, the Secretary must, however, conduct a referendum of farmers who will be subject to the quota to determine whether they favor or oppose it; and if more than one-third of the farmers voting in the referendum do oppose, the Secretary must prior to the effective date of the quota by proclamation suspend its operation. 9
On May 19, 1941 the Secretary of Agriculture made a radio address to the wheat farmers of the United States in which he advocated approval of the quotas and called attention to the pendency of the amendment of May 26, 1941, which had at the time been sent by Congress to the White House, and pointed out its provision for an increase in the loans on wheat to 85 per cent of parity. He made no mention of the fact that it also increased the penalty from 15 cents a bushel to one-half of the parity loan rate of about 98 cents, but stated that 'Because of the uncertain world situation, we deliberately planted several million extra acres of wheat. ... Farmers should not be penalized because they have provided insurance against shortages of food.'
Pursuant to the Act, the referendum of wheat growers was held on May 31, 1941. According to the required published statement of the Secretary of Agriculture, 81 per cent of those voting favored the marketing quota, with 19 per cent opposed.
The court below held, with one judge dissenting, that the speech of the Secretary invalidated the referendum; and that the amendment of May 26, 1941, 'in so far as it increased the penalty for the farm marketing excess over the fifteen cents per bushel prevailing at the time of planting and subjected the entire crop to a lien for the payment thereof,' should not be applied to the appellee because [317 U.S. 111, 117] as so applied it was retroactive and in violation of the Fifth Amendment; and, alternatively, because the equities of the case so required Filburn v. Helke, D.C., 43 F.Supp. 1017. Its judgment permanently enjoined appellants from collecting a marketing penalty of more than 15 cents a bushel on the farm marketing excess of appellee's 1941 wheat crop, from subjecting appellee's entire 1941 crop to a lien for the payment of the penalty, and from collecting a 15-cent penalty except in accordance with the provisions of 339 of the Act as that section stood prior to the amendment of May 26, 1941.10 The Secretary and his co-defendants have appealed. 11
I.
The holding of the court below that the Secretary's speech invalidated the referendum is manifest error. Read as a whole and in the context of world events that constituted his principal theme, the penalties of which he spoke were more likely those in the form of ruinously low prices resulting from the excess supply rather than the penalties prescribed in the Act. But under any interpretation the speech cannot be given the effect of invalidating the referendum. There is no evidence that any voter put upon the Secretary's words the interpretation that impressed the court below or was in any way misled. There is no showing that the speech influenced the outcome of the referendum. The record in fact does not show that any, and does not suggest a basis for even a guess as to how many, of the voting farmers dropped work to listen to 'Wheat Farmers and the Battle for [317 U.S. 111, 118] Democracy' at 11:30 in the morning of May 19th, which was a busy hour in one of the busiest of seasons. If this discourse intended reference to this legislation at all, it was of course a public Act, whose terms were readily available, and the speech did not purport to be an exposition of its provisions.
To hold that a speech by a Cabinet officer, which failed to meet judicial ideals of clarity, precision, and exhaustiveness, may defeat a policy embodied in an Act of Congress, would invest communication between administrators and the people with perils heretofore unsuspected. Moreover, we should have to conclude that such an officer is able to do by accident what he has no power to do by design. Appellee's complaint, in so far as it is based on this speech, is frivolous, and the injunction, in so far as it rests on this ground, is unwarranted. United States v. Rock Royal Cooperative, 307 U.S. 533 , 59 S.Ct. 993
II.
It is urged that under the Commerce Clause of the Constitution, Article I, 8, clause 3, Congress does not possess the power it has in this instance sought to exercise. The question would merit little consideration since our decision in United States v. Darby, 312 U.S. 100 , 61 S.Ct. 451, 132 A.L.R. 1430,12 sustaining the federal power to regulate production of goods for commerce except for the fact that this Act extends federal regulation to production not intended in any part for commerce but wholly for consumption on the farm. The Act includes a definition of 'market' and its derivatives so that as related to wheat in addition to its conventional meaning it also means to dispose of 'by feeding (in any [317 U.S. 111, 119] form) to poultry or livestock which, or the products of which, are sold, bartered, or exchanged, or to be so disposed of.' 13 Hence, marketing quotas not only embrace all that may be sold without penalty but also what may be consumed on the premises. Wheat produced on excess acreage is designated as 'available for marketing' as so defined and the penalty is imposed thereon. 14 Penalties do not depend upon whether any part of the wheat either within or without the quota is sold or intended to be sold. The sum of this is that the Federal Government fixes a quota including all that the farmer may harvest for sale or for his own farm needs, and declares that wheat produced on excess acreage may neither be disposed of nor used except upon payment of the penalty or except it is stored as required by the Act or delivered to the Secretary of Agriculture.
Appellee says that this is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are at most 'indirect.' In answer the Government argues that the statute regulates neither production nor consumption, but only marketing; and, in the alternative, that if the Act does go beyond the regulation of marketing it is sustainable as a 'necessary and proper'15 implementation of the power of Congress over interstate commerce.
The Government's concern lest the Act be held to be a regulation of production or consumption rather than of marketing is attributable to a few dicta and decisions of this Court which might be understood to lay it down that activities such as 'production,' 'manufacturing,' and [317 U.S. 111, 120] 'mining' are strictly 'local' and, except in special circumstances which are not present here, cannot be regulated under the commerce power because their effects upon interstate commerce are, as matter of law, only 'indirect.' 16 Even today, when this power has been held to have great latitude, there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof. We believe that a review of the course of decision under the Commerce Clause will make plain, however, that questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as 'production' and 'indirect' and foreclose consideration of the actual effects of the activity in question upon interstate commerce.
At the beginning Chief Justice Marshall described the Federal commerce power with a breadth never yet exceeded. Gibbons v. Ogden, 9 Wheat. 1, 194, 195. He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial processes. 9 Wheat. at page 197. [317 U.S. 111, 121] For nearly a century, however, decisions of this Court under the Commerce Clause dealt rarely with questions of what Congress might do in the exercise of its granted power under the Clause and almost entirely with the permissibility of state activity which it was claimed discriminated against or burdened interstate commerce. During this period there was perhaps little occasion for the affirmative exercise of the commerce power, and the influence of the Clause on American life and law was a negative one, resulting almost wholly from its operation as a restraint upon the powers of the states. In discussion and decision the point of reference instead of being what was 'necessary and proper' to the exercise by Congress of its granted power, was often some concept of sovereignty thought to be implicit in the status of statehood. Certain activities such as 'production,' 'manufacturing,' and 'mining' were occasionally said to be within the province of state governments and beyond the power of Congress under the Commerce Clause.17
It was not until 1887 with the enactment of the Interstate Commerce Act18 that the interstate commerce power began to exert positive influence in American law and life. This first important federal resort to the commerce power was followed in 1890 by the Sherman Anti-Trust Act19 and, thereafter, mainly after 1903, by many others. These statutes ushered in new phases of adjudication, which required the Court to approach the interpretation of the Commerce Clause in the light of an actual exercise by Congress of its power thereunder.
When it first dealt with this new legislation, the Court adhered to its earlier pronouncements, and allowed but[317 U.S. 111, 122] little scope to the power of Congress. United States v. E. C. Knight Co., 156 U.S. 1 , 15 S.Ct. 249. 20 These earlier pronouncements also played an important part in several of the five cases in which this Court later held that Acts of Congress under the Commerce Clause were in excess of its power. 21
Even while important opinions in this line of restrictive authority were being written, however, other cases called forth broader interpretations of the Commerce Clause destined to supersede the earlier ones, and to bring about a return to the principles first enunciated by Chief Justice Marshall in Gibbons v. Ogden, supra.
Not long after the decision of United States v. E. C. Knight Co., supra, Mr. Justice Holmes, in sustaining the exercise of national power over intrastate activity, stated for the Court that 'commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business.' Swift & Co. v. United States,196 U.S. 375, 398 , 25 S.Ct. 276, 280. It was soon demonstrated that the effects of many kinds of intrastate activity upon interstate commerce were such as to make them a proper subject of federal regulation. 22 In some cases sustaining the exercise of federal power over intrastate matters the term 'direct' [317 U.S. 111, 123] was used for the purpose of stating, rather than of reaching, a result;23 in others it was treated as synonymous with 'substantial' or 'material;'24 and in others it was not used at all. 25 Of late its use has been abandoned in cases dealing with questions of federal power under the Commerce Clause.
In the Shreveport Rate Cases (Houston, E. & W.T.R. Co. v. United States), 234 U.S. 342 , 34 S.Ct. 833, the Court held that railroad rates of an admittedly intrastate character and fixed by authority of the state might, nevertheless, be revised by the Federal Government because of the economic effects which they had upon interstate commerce. The opinion of Mr. Justice Hughes found federal intervention constitutionally authorized because of 'matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of the conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance.' 234 U.S. at page 351, 34 S.Ct. at page 836.
The Court's recognition of the relevance of the economic effects in the application of the Commerce Clause ex-[317 U.S. 111, 124] emplified by this statement has made the mechanical application of legal formulas no longer feasible. Once an economic measure of the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be 'production' nor can consideration of its economic effects be foreclosed by calling them 'indirect.' The present Chief Justice has said in summary of the present state of the law: 'The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. ... The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution . ... It follows that no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.' United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 , 62 S.Ct. 523, 526.
Whether the subject of the regulation in question was 'production,' 'consumption,' or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. 26 The same consideration might help in determining whether in the absence of Congressional action it would be permissible for the state [317 U.S. 111, 125] to exert its power on the subject matter, even though in so doing it to some degree affected interstate commerce. But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'
The parties have stipulated a summary of the economics of the wheat industry. Commerce among the states in wheat is large and important. Although wheat is raised in every state but one, production in most states is not equal to consumption. Sixteen states on average have had a surplus of wheat above their own requirements for feed, seed, and food. Thirty-two states and the District of Columbia, where production has been below consumption, have looked to these surplus-producing states for their supply as well as for wheat for export and carryover.
The wheat industry has been a problem industry for some years. Largely as a result of increased foreign production and import restrictions, annual exports of wheat and flour from the United States during the ten-year period ending in 1940 averaged less than 10 per cent of total production, while during the 1920's they averaged more than 25 per cent. The decline in the export trade has left a large surplus in production which in connection with an abnormally large supply of wheat and other grains in recent years caused congestion in a number of markets; tied up railroad cars; and caused elevators in some instances to turn away grains, and railroads to institute embargoes to prevent further congestion.
Many countries, both importing and exporting, have sought to modify the impact of the world market conditions on their own economy. Importing countries have taken measures to stimulate production and self-sufficiency. The four large exporting countries of Argen- [317 U.S. 111, 126] tina, Australia, Canada, and the United States have all undertaken various programs for the relief of growers. Such measures have been designed in part at least to protect the domestic price received by producers. Such plans have generally evolved towards control by the central government. 27
In the absence of regulation the price of wheat in the United States would be much affected by world conditions. During 1941 producers who cooperated with the Agricultural Adjustment program received an average price on the farm of about $1.16 a bushel as compared with the world market price of 40 cents a bushel.
Differences in farming conditions, however, make these benefits mean different things to different wheat growers. There are several large areas of specialization in wheat, and the concentration on this crop reaches 27 percent of the crop land, and the average harvest runs as high as [317 U.S. 111, 127] 155 acres. Except for some use of wheat as stock feed and for seed, the practice is to sell the crop for cash. Wheat from such areas constitutes the bulk of the interstate commerce therein.
On the other hand, in some New England states less than one percent of the crop land is devoted to wheat, and the average harvest is less than five acres per farm. In 1940 the average percentage of the total wheat production that was sold in each state as measured by value ranged from 29 per cent thereof in Wisconsin to 90 per cent in Washington. Except in regions of large-scale production, wheat is usually grown in rotation with other crops; for a nurse crop for grass seeding; and as a cover crop to prevent soil erosion and leaching. Some is sold, some kept for seed, and a percentage of the total production much larger than in areas of specialization is consumed on the farm and grown for such purpose. Such farmers, while growing some wheat, may even find the balance of their interest on the consumer's side.
The effect of consumption of homegrown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop. Consumption on the farm where grown appears to vary in an amount greater than 20 per cent of average production. The total amount of wheat consumed as food varies but relatively little, and use as seed is relatively constant.
The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply. The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the [317 U.S. 111, 128] scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial. National Labor Relations Board v. Fainblatt, 306 U.S. 601 , 606, et seq., 307 U.S. 609 , 59 S.Ct. 668; United States v. Darby, supra, 312 U.S. at page 123, 61 S.Ct. 461, 132 A.L.R. 1430.
It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. 28 One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress [317 U.S. 111, 129] may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.
It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the selfinterest of the regulated and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. 29 Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation we have nothing to do.
III.
The statute is also challenged as a deprivation of property without due process of law contrary to the Fifth Amendment, both because of its regulatory effect on the appellee and because of its alleged retroactive effect. The court below sustained the plea on the ground of forbidden retroactivity 'or in the alternative, that the equities of the case as shown by the record favor the plaintiff.' 43 F.Supp. 1017, 1019. An Act of Congress is not to be refused application by the courts as arbitrary and capricious and forbidden by the Due Process Clause merely [317 U.S. 111, 130] because it is deemed in a particular case to work an inequitable result.
Appellee's claim that the Act works a deprivation of due process even apart from its allegedly retroactive effect is not persuasive. Control of total supply, upon which the whole statutory plan is based, depends upon control of individual supply. Appellee's claim is not that his quota represented less than a fair share of the national quota, but that the Fifth Amendment requires that he be free from penalty for planting wheat and disposing of his crop as he sees fit.
We do not agree. In its effort to control total supply, the Government gave the farmer a choice which was, of course, designed to encourage cooperation and discourage non-cooperation. The farmer who planted within his allotment was in effect guaranteed a minimum return much above what his wheat would have brought if sold on a world market basis. Exemption from the applicability of quotas was made in favor of small producers.30 The farmer who produced in excess of his quota might escape penalty by delivering his wheat to the Secretary or by storing it with the privilege of sale without penalty in a later year to fill out his quota, or irrespective of quotas if they are no longer in effect, and he could obtain a loan of 60 per cent of the rate for cooperators, or about 59 cents a bushel, on so much of his wheat as would be subject to penalty if marketed. 31Finally, he might make other disposition of his wheat, subject to the penalty. It is agreed [317 U.S. 111, 131] that as the result of the wheat programs he is able to market his wheat at a price 'far above any world price based on the natural reaction of supply and demand.' We can hardly find a denial of due process in these circumstances, particularly since it is even doubtful that appellee's burdens under the program outweigh his benefits. It is hardly lack of due process for the Government to regulate that which it subsidizes.
The amendment of May 26, 1941 is said to be invalidly retroactive in two respects: first, in that it increased the penalty from 15 cents to 49 cents a bushel; secondly, in that by the new definition of 'farm marketing excess' it subjected to the penalty wheat which had theretofore been subject to no penalty at all, i.e., wheat not 'marketed' as defined in the Act.
It is not to be denied that between seed time and harvest important changes were made in the Act which affected the desirability and advantage of planting the excess acreage. The law as it stood when the appellee planted his crop made the quota for his farm the normal or the actual production of the acreage allotment, whichever was greater, plus any carry- over wheat that he could have marketed without penalty in the preceding marketing year. 32 The Act also provided that the farmer who, while quotas were in effect, marketed wheat in excess of the quota for the farm on which it was produced should be subject to a penalty of 15 cents a bushel on the excess so marketed. 33 Marketing of wheat was defined as including disposition 'by feeding (in any form) to poultry or livestock which, or the products of which, are sold, bartered, or exchanged, ....'34 The amendment of May 26, [317 U.S. 111, 132] 1941, made before the appellee had harvested the growing crop, changed the quota and penalty provisions. The quota for each farm became the actual production of acreage planted to wheat less the normal or the actual production, whichever was smaller, of any excess acreage. 35Wheat in excess of this quota, known as the 'farm-marketing excess' and declared by the amendment to be 'regarded as available for marketing' was subjected to a penalty fixed at 50 per cent of the basic loan rate for cooperators,36 or 49 cents, instead of the penalty of 15 cents which obtained at the time of planting. At the same time there was authorized an increase in the amount of the loan which might be made to non-cooperators such as the appellee upon wheat which 'would be subject to penalty if marketed' from about 34 cents per bushel to about 59 cents. 37 The entire crop was subjected by the amendment to a lien for the payment of the penalty.
The penalty provided by the amendment can be postponed or avoided only by storing the farm marketing excess according to regulations promulgated by the Secretary or by delivering it to him without compensation;[317 U.S. 111, 133] and the penalty is incurred and becomes due on threshing. 38 Thus the penalty was contingent upon an act which appellee committed not before but after the enactment of the statute, and had he chosen to cut his excess and cure it or feed it as hay, or to reap and feed it with the head and straw together, no penalty would have been demanded. Such manner of consumption is not uncommon. Only when he threshed and thereby made it a part of the bulk of wheat overhanging the market did he become subject to penalty. He has made no effort to show that the value of his excess wheat consumed without threshing was less than it would have been had it been threshed while subject to the statutory provisions in force at the time of planting. Concurrently with the increase in the amount of the penalty Congress authorized a substantial increase in the amount of the loan which might be made to cooperators upon stored farm marketing excess wheat. That appellee is the worse off for the aggregate of this legislation does not appear; it only appears that if he could get all that the Government gives and do nothing that the Government asks, he would be better off than this law allows. To deny him this is not to deny him due process of law. Cf. Mulford v. Smith, 307 U.S. 38 , 59 S.Ct. 648.
Reversed.
Footnotes
[ Footnote 1 ] 55 Stat. 203, 7 U.S.C. (Supp. No. I) 1340, 7 U.S.C.A. 1340.
[ Footnote 2 ] 52 Stat. 31, as amended, 7 U.S.C. 1281 et seq., 7 U.S.C.A. 1281 et seq.
[ Footnote 3 ] Because of the conclusion reached as to the merits we need not consider the question whether these appellants would be proper parties if our decision were otherwise.
[ Footnote 4 ] Wheat-507, 728.240, 728.248, 6 Federal Register 2695, 2699-2701.
[ Footnote 5 ] 331, 7 U.S.C. 1331, 7 U.S.C.A. 1331.
[ Footnote 6 ] 335, 7 U.S.C. 1335, 7 U.S.C.A. 1335.
[ Footnote 7 ] 302(b)(h), 303, 7 U.S.C. 1302(b)(h), 1303, 7 U.S.C.A. 1302( b, h), 1303; 10 of the amendment of May 26, 1941, 7 U.S.C. (Supp. I) 1340(10), 7 U.S.C.A. 1340(10).
[ Footnote 8 ] 335(a), 7 U.S.C. 1335(a), 7 U.S.C.A. 1335(a).
[ Footnote 9 ] 336, 7 U.S.C. 1336, 7 U.S.C.A. 1336.
[ Footnote 10 ] 7 U.S.C. 1339, 7 U.S.C.A. 1339. This imposed a penalty of 15� per bushel upon wheat marketed in excess of the farm marketing quota while such quota was in effect. See also, amendments of July 26, 1939, 53 Stat. 1126, 7 U.S.C. 1335(c), 7 U.S.C.A. 1335(c) and of July 2, 1940, 54 Stat. 727, 7 U.S.C. 1301(b)(6)(A), (B), 7 U.S.C.A. 1301(b)(6)(A, B).
[ Footnote 11 ] 50 Stat. 752-753, 3, 28 U.S.C. 380a, 28 U.S.C.A. 380a.
[ Footnote 12 ] See, also, Gray v. Powell, 314 U.S. 402 , 62 S.Ct. 326; United States v. Wrightwood Dairy Co.,315 U.S. 110 , 62 S.Ct. 523; Cloverleaf Co. v. Patterson, 315 U.S. 148 , 62 S.Ct. 491; Kirschbaum v. Walling, 316 U.S. 517 , 62 S.Ct. 1116; Overnight Transportation, Inc., v. Missel, 316 U.S. 572 , 62 S.Ct. 1216.
[ Footnote 13 ] 54 Stat. 727, 7 U.S.C. 1301(b)(6)(A), (B), 7 U.S.C.A. 1301(b)( 6)(A, B).
[ Footnote 14 ] 1, 2, of the amendment of May 26, 1941, 7 U.S.C.A. 1340(1, 2); Wheat-507, 728.251, 6 Federal Register 2695, 2701.
[ Footnote 15 ] Constitution, Article I, 8, cl. 18.
[ Footnote 16 ] After discussing and affirming the cases stating that such activities were 'local,' and could be regulated under the Commerce Clause only if by virtue of special circumstances their effects upon interstate commerce were 'direct,' the opinion of the Court in Carter v. Carter Coal Co., 298 U.S. 238, 308 , 56 S.Ct. 855, 871, stated that: 'The distinction between a direct and an indirect effect turns, not upon the magnitude of either the cause or the effect, but entirely upon the manner in which the effect has been brought about. ... The matter of degree has no bearing upon the question here, since that question is not- What is the extent of the local activity or condition, or the extent of the effect produced upon interstate commerce? but-What is the relation between the activity or condition and the effect?' See also, cases cited infra, notes 17 and 21.
[ Footnote 17 ] Veazie v. Moor, 14 How. 568, 573, 574; Kidd v. Pearson, 128 U.S. 1 , 20-22, 9 S.Ct. 6, 9, 10.
[ Footnote 18 ] 24 Stat. 379, 49 U.S.C. 1, et seq., 49 U.S.C.A. 1 et seq.
[ Footnote 19 ] 26 Stat. 209, 15 U.S.C. 1, et seq., 15 U.S.C.A. 1 et seq.
[ Footnote 20 ] See, also, Hopkins v. United States, 171 U.S. 578 , 19 S.Ct. 40; Anderson v. United States, 171 U.S. 604 , 19 S.Ct. 50.
[ Footnote 21 ] Employers Liability Cases (Howard v. Illinois Central R. Co.), 207 U.S. 463 , 28 S.Ct. 141; Hammer v. Dagenhart, 247 U.S. 251 , 38 S.Ct. 529, 3 A.L.R. 649, Ann.Cas.1918E, 724; Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 , 55 S.Ct. 758; Schechter Corp. v. United States, 295 U.S. 495 , 55 S.Ct. 837, 97 A.L.R. 947; Carter v. Carter Coal Co., 298 U.S. 238 , 56 S.Ct. 855; cf. United States v. Dewitt, 9 Wall. 41; Trade Mark Cases (United States v. Steffens), 100 U.S. 82 ; Hill v. Wallace, 259 U.S. 44 , 42 S.Ct. 453; Heisler v. Thomas Colliery Co., 260 U.S. 245, 259 , 260 S., 43 S.Ct. 83, 86; Oliver Iron Co. v. Lord, 262 U.S. 172, 178 , 179 S., 43 S.Ct. 526, 529; Utah Power & Light Co. v. Pfost, 286 U.S. 165 , 52 S.Ct. 548.
[ Footnote 22 ] Northern Securities Co. v. United States, 193 U.S. 197 , 24 S.Ct. 436; Swift & Co. v. United States, supra; Loewe v. Lawlor, 208 U.S. 274 , 28 S.Ct. 301, 13 Ann.Cas. 815; Baltimore & O.R. Co. v. Interstate Commerce Commission, 221 U.S. 612 , 31 S.Ct. 621; Southern Ry. Co. v. United States, 222 U.S. 20 , 32 S.Ct. 2; Second Employers' Liability Cases (Mondou v. New York, N.H. & H.R. Co .), 223 U.S. 1 , 32 S.Ct. 169, 38 L.R.A.,N.S., 44; United States v. Patten, 226 U.S. 525 , 33 S.Ct. 141, 44 L.R.A.,N.S., 325.
[ Footnote 23 ] United Leather Workers v. Herkert & Meisel Trunk Co., 265 U.S. 457, 471 , 44 S.Ct. 623, 627, 33 A.L.R. 566; cf. Apex Hosiery Co. v. Leader, 310 U.S. 469, 511 , 60 S.Ct. 982, 1001, 128 A.L.R. 1044; Di Santo v. Pennsylvania, 273 U.S. 34, 44 , 47 S.Ct. 267, 271 (dissent); Northern Securities Co. v. United States, 193 U.S. 197, 395 , 24 S.Ct. 436, 484; Standard Oil Co. v. United States, 221 U.S. 1 , 66-69, 31 S.Ct. 502, 518, 519, 34 L.R.A., N.S., 834, Ann.Cas.1912D, 734.
[ Footnote 24 ] In Santa Cruz Co. v. Labor Board, 303 U.S. 453, 466 , 467 S., 58 S.Ct. 656, 660, Chief Justice Hughes said: "direct' has been contrasted with 'indirect,' and what is 'remote' or 'distant' with what is 'close and substantial'. Whatever terminology is used, the criterion is necessarily one of degree and must be so defined. This does not satisfy those who seek for mathematical or rigid formulas. But such formulas are not provided by the great concepts of the Constitution such as 'interstate commerce,' 'due process,' 'equal protection"
[ Footnote 25 ] Baltimore & O.R. Co. v. Interstate Commerce Commission, 221 U.S. 612 , 31 S.Ct. 621; Second Employers' Liability Cases (Mondou v. New York, N.H. & H.R. Co.), 223 U.S. 1 , 32 S.Ct. 169, 38 L.R.A.,N.S., 44; Interstate Commerce Commission v. Goodrich Transit Co., 224 U.S. 194 , 32 S.Ct. 436.
[ Footnote 26 ] Cf. Federal Trade Commission v. Bunte Bros., 312 U.S. 349 , 61 S.Ct. 580.
[ Footnote 27 ] It is interesting to note that all of these have federated systems of government, not of course without important differences. In all of them wheat regulation is by the national government. In Argentina wheat may be purchased only from the national Grain Board. A condition of sale to the Board, which buys at pegged prices, is the producer's agreement to become subject to restrictions on planting. See Nolan, Argentine Grain Price Guaranty, Foreign Agriculture (Office of Foreign Agricultural Relations, Department of Agriculture) May, 1942, pp. 185, 202. The Australian system of regulation includes the licensing of growers, who may not sow more than the amount licensed, and who may be compelled to cut part of their crops for hay if a heavy crop is in prospect. See Wright, Australian Wheat Stabilization, Foreign Agriculture (Office of Foreign Agricultural Relations, Department of Agriculture) September, 1942, pp. 329, 336. The Canadian Wheat Board has wide control over the marketing of wheat by the individual producer. 4 Geo. VI, c. 25, 5. Canadian wheat has also been the subject of numerous Orders in Council. E.g., 6 Proclamations and Orders in Council (1942) 183, which gives the Wheat Board full control of sale, delivery, milling and disposition by any person or individual. See, also, Wheat Acreage Reduction Act, 1942, 6 Geo. VI, c. 10.
[ Footnote 28 ] Swift & Co. v. United States, 196 U.S. 375 , 25 S.Ct. 276; Stafford v. Wallace, 258 U.S. 495 , 42 S.Ct. 397, 23 A.L. R. 229; Board of Trade of Chicago v. Olsen, 262 U.S. 1 , 43 S.Ct. 470; Coronado Coal Co. v. United Mine Workers, 268 U.S. 295 , 45 S.Ct. 551; United States v. Trenton Potteries Co., 273 U.S. 392 , 47 S.Ct. 377, 50 A.L.R. 989; Tagg Bros. & Moorhead v. United States, 280 U.S. 420 , 50 S.Ct. 220; Standard Oil Co. of Indiana v. United States, 283 U.S. 163 , 51 S.Ct. 421; Currin v. Wallace, 306 U.S. 1 , 59 S.Ct. 379; Mulford v. Smith, 307 U.S. 38 , 59 S.Ct. 648; United States v. Rock Royal Co- operative, supra; United States v. Socony-Vacuum Oil Co., 310 U.S. 150 , 60 S.Ct. 811; Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 , 60 S.Ct. 907; United States v. Darby, supra; United States v. Wrightwood Dairy Co., supra; Federal Power Commission v. Pipeline Co., 315 U.S. 575 , 62 S.Ct. 736.
[ Footnote 29 ] Cf. McCulloch v. Maryland, 4 Wheat. 316, 413-415, 435, 436; Gibbons v. Ogden, supra, 9 Wheat. at page 197; Stafford v. Wallace, 258 U.S. 495, 521 , 42 S.Ct. 397, 403, 23 A.L.R. 229; Board of Trade of Chicago v. Olsen, 262 U.S. 1, 37 , 43 S.Ct. 470, 477; Helvering v. Gerhardt, 304 U.S. 405, 412 , 58 S.Ct. 969, 971.
[ Footnote 30 ] 7 of the amendment of May 26, 1941 provided that a farm marketing quota should not be applicable to any farm on which the acreage planted to wheat is not in excess of fifteen acres. When the appellee planted his wheat the quota was inapplicable to any farm on which the normal production of the acreage planted to wheat was less than 200 bushels. 335(d) of the Agricultural Adjustment Act of 1938, as amended by 54 Stat. 232, 7 U.S.C.A. 1335(d).
[ Footnote 31 ] 6, 10(c) of the amendment of May 26, 1941.
[ Footnote 32 ] 335(c) as amended July 26, 1939, 53 Stat. 1126, 7 U.S.C. 1335( c), 7 U.S.C.A. 1335(c).
[ Footnote 33 ] 339, 7 U.S.C. 1339, 7 U.S.C.A. 1339.
[ Footnote 34 ] 301(b)(6)(A), (B), as amended July 2, 1940, 54 Stat. 727, 7 U.S. C. 1301(b)(6)(A), (B), 7 U.S.C.A. 1301(b)(6)(A, B).
[ Footnote 35 ] By an amendment of December 26, 1941, 55 Stat. 872, effective as of May 26, 1941, 7 U.S.C.A. 1340, it was provided that the farm marketing excess should not be larger than the amount by which the actual production exceeds the normal production of the farm wheatacreage allotment, if the producer establishes such actual production to the satisfaction of the Secretary, provision being made for adjustment of the penalty in the event of a downward adjustment in the amount of the farm marketing excess.
[ Footnote 36 ] 1, 2, 3 of the amendment of May 26, 1941.
[ Footnote 37 ] 302(b) had provided for a loan to non-cooperators of 60% of the basic loan rate for cooperators, which in 1940 was 64. See United States Department of Agriculture Press Release, May 20, 1940. The same percentage was employed in 10(c) of the amendment of May 26, 1941, and the increase in the amount of the loan is the result of an increase in the basic loan rate effected by 10(a) of the amendment.
[ Footnote 38 ] Wheat-507, 728.251(b), 6 Federal Register 2695, 2701.
* * *
Gonzales v Raich 545 US 1 (2005)
United States Supreme Court
GONZALES, ATTORNEY GENERAL, et al. v. RAICH et al., (2005)
No. 03-1454
Argued: November 29, 2004 Decided: June 6, 2005
California's Compassionate Use Act authorizes limited marijuana use for medicinal purposes. Respondents Raich and Monson are California residents who both use doctor-recommended marijuana for serious medical conditions. After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of Monson's cannabis plants, respondents brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA) to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. Respondents claim that enforcing the CSA against them would violate the Commerce Clause and other constitutional provisions. The District Court denied respondents' motion for a preliminary injunction, but the Ninth Circuit reversed, finding that they had demonstrated a strong likelihood of success on the claim that the CSA is an unconstitutional exercise of Congress' Commerce Clause authority as applied to the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law. The court relied heavily on United States v. Lopez, 514 U. S. 549, and United States v. Morrison, 529 U. S. 598, to hold that this separate class of purely local activities was beyond the reach of federal power.
Held: Congress' Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. Pp. 6-31.
(a) For the purposes of consolidating various drug laws into a comprehensive statute, providing meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthening law enforcement tools against international and interstate drug trafficking, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II of which is the CSA. To effectuate the statutory goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except as authorized by the CSA. 21 U. S. C. §§841(a)(1), 844(a). All controlled substances are classified into five schedules, §812, based on their accepted medical uses, their potential for abuse, and their psychological and physical effects on the body, §§811, 812. Marijuana is classified as a Schedule I substance, §812(c), based on its high potential for abuse, no accepted medical use, and no accepted safety for use in medically supervised treatment, §812(b)(1). This classification renders the manufacture, distribution, or possession of marijuana a criminal offense. §§841(a)(1), 844(a). Pp. 6-11.
(b) Congress' power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce is firmly established. See, e.g., Perez v. United States, 402 U. S. 146, 151. If Congress decides that the " 'total incidence' " of a practice poses a threat to a national market, it may regulate the entire class. See, e.g., id., at 154-155. Of particular relevance here is Wickard v. Filburn, 317 U. S. 111, 127-128, where, in rejecting the appellee farmer's contention that Congress' admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for the appellee's own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself "commercial," i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and Wickard are striking. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. In assessing the scope of Congress' Commerce Clause authority, the Court need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding. E.g., Lopez, 514 U. S., at 557. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U. S. C. §801(5), and concerns about diversion into illicit channels, the Court has no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Pp. 12-20.
(c) Respondents' heavy reliance on Lopez and Morrison overlooks the larger context of modern-era Commerce Clause jurisprudence preserved by those cases, while also reading those cases far too broadly. The statutory challenges at issue there were markedly different from the challenge here. Respondents ask the Court to excise individual applications of a concededly valid comprehensive statutory scheme. In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress' commerce power in its entirety. This distinction is pivotal for the Court has often reiterated that "[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power 'to excise, as trivial, individual instances' of the class." Perez, 402 U. S., at 154. Moreover, the Court emphasized that the laws at issue in Lopez and Morrison had nothing to do with "commerce" or any sort of economic enterprise. See Lopez, 514 U. S., at 561; Morrison, 529 U. S., at 610. In contrast, the CSA regulates quintessentially economic activities: the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational means of regulating commerce in that product. The Ninth Circuit cast doubt on the CSA's constitutionality by isolating a distinct class of activities that it held to be beyond the reach of federal power: the intrastate, noncommercial cultivation, possession, and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law. However, Congress clearly acted rationally in determining that this subdivided class of activities is an essential part of the larger regulatory scheme. The case comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the CSA's findings and the undisputed magnitude of the commercial market for marijuana, Wickard and its progeny foreclose that claim. Pp. 20-30.
352 F. 3d 1222, vacated and remanded.
Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in the judgment. O'Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined as to all but Part III. Thomas, J., filed a dissenting opinion.
ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. ANGEL McCLARY RAICH et al.
on writ of certiorari to the united states court ofappeals for the ninth circuit
[June 6, 2005]
Justice Stevens delivered the opinion of the Court.
California is one of at least nine States that authorize the use of marijuana for medicinal purposes.1 The question presented in this case is whether the power vested in Congress by Article I, §8, of the Constitution "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its authority to "regulate Commerce with foreign Nations, and among the several States" includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.
I
California has been a pioneer in the regulation of marijuana. In 1913, California was one of the first States to prohibit the sale and possession of marijuana,2 and at the end of the century, California became the first State to authorize limited use of the drug for medicinal purposes. In 1996, California voters passed Proposition 215, now codified as the Compassionate Use Act of 1996.3 The proposition was designed to ensure that "seriously ill" residents of the State have access to marijuana for medical purposes, and to encourage Federal and State Governments to take steps towards ensuring the safe and affordable distribution of the drug to patients in need.4 The Act creates an exemption from criminal prosecution for physicians,5 as well as for patients and primary caregivers who possess or cultivate marijuana for medicinal purposes with the recommendation or approval of a physician.6 A "primary caregiver" is a person who has consistently assumed responsibility for the housing, health, or safety of the patient.7
Respondents Angel Raich and Diane Monson are California residents who suffer from a variety of serious medical conditions and have sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use Act. They are being treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat respondents' conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursuant to their doctors' recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, Raich's physician believes that forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal.
Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers, litigating as "John Does," to provide her with locally grown marijuana at no charge. These caregivers also process the cannabis into hashish or keif, and Raich herself processes some of the marijuana into oils, balms, and foods for consumption.
On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson's home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants.
Respondents thereafter brought this action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA), 84 Stat. 1242, 21 U. S. C. §801 et seq., to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. In their complaint and supporting affidavits, Raich and Monson described the severity of their afflictions, their repeatedly futile attempts to obtain relief with conventional medications, and the opinions of their doctors concerning their need to use marijuana. Respondents claimed that enforcing the CSA against them would violate the Commerce Clause, the Due Process Clause of the Fifth Amendment, the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity.
The District Court denied respondents' motion for a preliminary injunction. Raich v. Ashcroft, 248 F. Supp. 2d 918 (ND Cal. 2003). Although the court found that the federal enforcement interests "wane[d]" when compared to the harm that California residents would suffer if denied access to medically necessary marijuana, it concluded that respondents could not demonstrate a likelihood of success on the merits of their legal claims. Id., at 931.
A divided panel of the Court of Appeals for the Ninth Circuit reversed and ordered the District Court to enter a preliminary injunction.8 Raich v. Ashcroft, 352 F. 3d 1222 (2003). The court found that respondents had "demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress' Commerce Clause authority." Id., at 1227. The Court of Appeals distinguished prior Circuit cases upholding the CSA in the face of Commerce Clause challenges by focusing on what it deemed to be the "separate and distinct class of activities" at issue in this case: "the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law." Id., at 1228. The court found the latter class of activities "different in kind from drug trafficking" because interposing a physician's recommendation raises different health and safety concerns, and because "this limited use is clearly distinct from the broader illicit drug market--as well as any broader commercial market for medicinal marijuana--insofar as the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce." Ibid.
The majority placed heavy reliance on our decisions in United States v. Lopez, 514 U. S. 549 (1995), and United States v. Morrison, 529 U. S. 598 (2000), as interpreted by recent Circuit precedent, to hold that this separate class of purely local activities was beyond the reach of federal power. In contrast, the dissenting judge concluded that the CSA, as applied to respondents, was clearly valid under Lopez and Morrison; moreover, he thought it "simply impossible to distinguish the relevant conduct surrounding the cultivation and use of the marijuana crop at issue in this case from the cultivation and use of the wheat crop that affected interstate commerce in Wickard v. Filburn." 352 F. 3d, at 1235 (Beam, J., dissenting) (citation omitted).
The obvious importance of the case prompted our grant of certiorari. 542 U. S. 936 (2004). The case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress' power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. We accordingly vacate the judgment of the Court of Appeals.
II
Shortly after taking office in 1969, President Nixon declared a national "war on drugs."9 As the first campaign of that war, Congress set out to enact legislation that would consolidate various drug laws on the books into a comprehensive statute, provide meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthen law enforcement tools against the traffic in illicit drugs.10 That effort culminated in the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236.
This was not, however, Congress' first attempt to regulate the national market in drugs. Rather, as early as 1906 Congress enacted federal legislation imposing labeling regulations on medications and prohibiting the manufacture or shipment of any adulterated or misbranded drug traveling in interstate commerce.11 Aside from these labeling restrictions, most domestic drug regulations prior to 1970 generally came in the guise of revenue laws, with the Department of the Treasury serving as the Federal Government's primary enforcer.12 For example, the primary drug control law, before being repealed by the passage of the CSA, was the Harrison Narcotics Act of 1914, 38 Stat. 785 (repealed 1970). The Harrison Act sought to exert control over the possession and sale of narcotics, specifically cocaine and opiates, by requiring producers, distributors, and purchasers to register with the Federal Government, by assessing taxes against parties so registered, and by regulating the issuance of prescriptions.13
Marijuana itself was not significantly regulated by the Federal Government until 1937 when accounts of marijuana's addictive qualities and physiological effects, paired with dissatisfaction with enforcement efforts at state and local levels, prompted Congress to pass the Marihuana Tax Act, Pub. L. 75-238, 50 Stat. 551 (repealed 1970).14 Like the Harrison Act, the Marihuana Tax Act did not outlaw the possession or sale of marijuana outright. Rather, it imposed registration and reporting requirements for all individuals importing, producing, selling, or dealing in marijuana, and required the payment of annual taxes in addition to transfer taxes whenever the drug changed hands.15 Moreover, doctors wishing to prescribe marijuana for medical purposes were required to comply with rather burdensome administrative requirements.16 Noncompliance exposed traffickers to severe federal penalties, whereas compliance would often subject them to prosecution under state law.17 Thus, while the Marihuana Tax Act did not declare the drug illegal per se, the onerous administrative requirements, the prohibitively expensive taxes, and the risks attendant on compliance practically curtailed the marijuana trade.
Then in 1970, after declaration of the national "war on drugs," federal drug policy underwent a significant transformation. A number of noteworthy events precipitated this policy shift. First, in Leary v. United States,395 U. S. 6 (1969), this Court held certain provisions of the Marihuana Tax Act and other narcotics legislation unconstitutional. Second, at the end of his term, President Johnson fundamentally reorganized the federal drug control agencies. The Bureau of Narcotics, then housed in the Department of Treasury, merged with the Bureau of Drug Abuse Control, then housed in the Department of Health, Education, and Welfare (HEW), to create the Bureau of Narcotics and Dangerous Drugs, currently housed in the Department of Justice.18 Finally, prompted by a perceived need to consolidate the growing number of piecemeal drug laws and to enhance federal drug enforcement powers, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act.19
Title II of that Act, the CSA, repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs. The main objectives of the CSA were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.20 Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels.21
To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U. S. C. §§841(a)(1), 844(a). The CSA categorizes all controlled substances into five schedules. §812. The drugs are grouped together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body. §§811, 812. Each schedule is associated with a distinct set of controls regarding the manufacture, distribution, and use of the substances listed therein. §§821-830. The CSA and its implementing regulations set forth strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping. Ibid. 21 CFR §1301 et seq. (2004).
In enacting the CSA, Congress classified marijuana as a Schedule I drug. 21 U. S. C. §812(c). This preliminary classification was based, in part, on the recommendation of the Assistant Secretary of HEW "that marihuana be retained within schedule I at least until the completion of certain studies now underway."22 Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. §812(b)(1). These three factors, in varying gradations, are also used to categorize drugs in the other four schedules. For example, Schedule II substances also have a high potential for abuse which may lead to severe psychological or physical dependence, but unlike Schedule I drugs, they have a currently accepted medical use. §812(b)(2). By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration pre-approved research study. §§823(f), 841(a)(1), 844(a); see also United States v. Oakland Cannabis Buyers' Cooperative, 532 U. S. 483, 490 (2001).
The CSA provides for the periodic updating of schedules and delegates authority to the Attorney General, after consultation with the Secretary of Health and Human Services, to add, remove, or transfer substances to, from, or between schedules. §811. Despite considerable efforts to reschedule marijuana, it remains a Schedule I drug.23
III
Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress' commerce power. Brief for Respondents 22, 38. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents' challenge is actually quite limited; they argue that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause.
In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress' assertion of authority thereunder, has evolved over time.24 The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation.25 For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible.26 Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress "ushered in a new era of federal regulation under the commerce power," beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U. S. C. §2 et seq.27
Cases decided during that "new era," which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U. S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). Only the third category is implicated in the case at hand.
Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce. See, e.g., Perez, 317 U. S. 111, 128-129 (1942). As we stated in Wickard, "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the " 'total incidence' " of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 274 U. S. 256, 259 (1927) ("[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so")). In this vein, we have reiterated that when " 'a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.' "E.g., Lopez, 392 U. S. 183, 196, n. 27 (1968)).
Our decision in Wickard, 317 U. S. 111 [1942], is of particular relevance. In Wickard, we upheld the application of regulations promulgated under the Agricultural Adjustment Act of 1938, 52 Stat. 31, which were designed to control the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and consequent abnormally low prices. The regulations established an allotment of 11.1 acres for Filburn's 1941 wheat crop, but he sowed 23 acres, intending to use the excess by consuming it on his own farm. Filburn argued that even though we had sustained Congress' power to regulate the production of goods for commerce, that power did not authorize "federal regulation [of] production not intended in any part for commerce but wholly for consumption on the farm." Wickard, 317 U. S., at 118. Justice Jackson's opinion for a unanimous Court rejected this submission. He wrote:
"The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial." Id., at 127-128.
Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself "commercial," in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.
The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market.28 Just as the Agricultural Adjustment Act was designed "to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses ..." and consequently control the market price, id., at 115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. See nn. 20-21, supra. In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.
More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U. S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.29
Nonetheless, respondents suggest that Wickard differs from this case in three respects: (1) the Agricultural Adjustment Act, unlike the CSA, exempted small farming operations; (2) Wickard involved a "quintessential economic activity"--a commercial farm--whereas respondents do not sell marijuana; and (3) the Wickard record made it clear that the aggregate production of wheat for use on farms had a significant impact on market prices. Those differences, though factually accurate, do not diminish the precedential force of this Court's reasoning.
The fact that Wickard's own impact on the market was "trivial by itself " was not a sufficient reason for removing him from the scope of federal regulation. 317 U. S., at 127. That the Secretary of Agriculture elected to exempt even smaller farms from regulation does not speak to his power to regulate all those whose aggregated production was significant, nor did that fact play any role in the Court's analysis. Moreover, even though Wickard was indeed a commercial farmer, the activity he was engaged in--the cultivation of wheat for home consumption--was not treated by the Court as part of his commercial farming operation.30 And while it is true that the record in the Wickard case itself established the causal connection between the production for local use and the national market, we have before us findings by Congress to the same effect.
Findings in the introductory sections of the CSA explain why Congress deemed it appropriate to encompass local activities within the scope of the CSA. See n. 20, supra. The submissions of the parties and the numerous amici all seem to agree that the national, and international, market for marijuana has dimensions that are fully comparable to those defining the class of activities regulated by the Secretary pursuant to the 1938 statute.31 Respondents nonetheless insist that the CSA cannot be constitutionally applied to their activities because Congress did not make a specific finding that the intrastate cultivation and possession of marijuana for medical purposes based on the recommendation of a physician would substantially affect the larger interstate marijuana market. Be that as it may, we have never required Congress to make particularized findings in order to legislate, see Lopez, 512 U. S. 622, 664-668 (1994) (plurality opinion). While congressional findings are certainly helpful in reviewing the substance of a congressional statutory scheme, particularly when the connection to commerce is not self-evident, and while we will consider congressional findings in our analysis when they are available, the absence of particularized findings does not call into question Congress' authority to legislate.32
In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding. Lopez, 452 U. S. 264, 276-280 (1981); Perez, 379 U. S. 294, 299-301 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 252-253 (1964). Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U. S. C. §801(5), and concerns about diversion into illicit channels,33 we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to "make all Laws which shall be necessary and proper" to "regulate Commerce ... among the several States." U. S. Const., Art. I, §8. That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme.
IV
To support their contrary submission, respondents rely heavily on two of our more recent Commerce Clause cases. In their myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases. Moreover, even in the narrow prism of respondents' creation, they read those cases far too broadly. Those two cases, of course, are Lopez, 514 U. S. 549, and Morrison, 529 U. S. 598. As an initial matter, the statutory challenges at issue in those cases were markedly different from the challenge respondents pursue in the case at hand. Here, respondents ask us to excise individual applications of a concededly valid statutory scheme. In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress' commerce power in its entirety. This distinction is pivotal for we have often reiterated that "[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power 'to excise, as trivial, individual instances' of the class." Perez, 402 U. S., at 154 (emphasis deleted) (quoting Wirtz, 392 U. S., at 193); see also Hodel, 452 U. S., at 308.
At issue in Lopez, 514 U. S. 549, was the validity of the Gun-Free School Zones Act of 1990, which was a brief, single-subject statute making it a crime for an individual to possess a gun in a school zone. 104 Stat. 4844-4845, 18 U. S. C. §922(q)(1)(A). The Act did not regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity. Distinguishing our earlier cases holding that comprehensive regulatory statutes may be validly applied to local conduct that does not, when viewed in isolation, have a significant impact on interstate commerce, we held the statute invalid. We explained:
"Section 922(q) is a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." 514 U. S., at 561.
The statutory scheme that the Government is defending in this litigation is at the opposite end of the regulatory spectrum. As explained above, the CSA, enacted in 1970 as part of the Comprehensive Drug Abuse Prevention and Control Act, 84 Stat. 1242-1284, was a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five classes of "controlled substances." Most of those substances--those listed in Schedules II through V--"have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people." 21 U. S. C. §801(1). The regulatory scheme is designed to foster the beneficial use of those medications, to prevent their misuse, and to prohibit entirely the possession or use of substances listed in Schedule I, except as a part of a strictly controlled research project.
While the statute provided for the periodic updating of the five schedules, Congress itself made the initial classifications. It identified 42 opiates, 22 opium derivatives, and 17 hallucinogenic substances as Schedule I drugs. 84 Stat. 1248. Marijuana was listed as the 10th item in the third subcategory. That classification, unlike the discrete prohibition established by the Gun-Free School Zones Act of 1990, was merely one of many "essential part[s] of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Lopez, 514 U. S., at 561.34 Our opinion in Lopez casts no doubt on the validity of such a program.
Nor does this Court's holding in Morrison, 529 U. S. 598. The Violence Against Women Act of 1994, 108 Stat. 1902, created a federal civil remedy for the victims of gender-motivated crimes of violence. 42 U. S. C. §13981. The remedy was enforceable in both state and federal courts, and generally depended on proof of the violation of a state law. Despite congressional findings that such crimes had an adverse impact on interstate commerce, we held the statute unconstitutional because, like the statute in Lopez, it did not regulate economic activity. We concluded that "the noneconomic, criminal nature of the conduct at issue was central to our decision" in Lopez, and that our prior cases had identified a clear pattern of analysis: " 'Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.' "35Morrison, 529 U. S., at 610.
Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. "Economics" refers to "the production, distribution, and consumption of commodities." Webster's Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.36 Such prohibitions include specific decisions requiring that a drug be withdrawn from the market as a result of the failure to comply with regulatory requirements as well as decisions excluding Schedule I drugs entirely from the market. Because the CSA is a statute that directly regulates economic, commercial activity, our opinion in Morrison casts no doubt on its constitutionality.
The Court of Appeals was able to conclude otherwise only by isolating a "separate and distinct" class of activities that it held to be beyond the reach of federal power, defined as "the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law." 352 F. 3d, at 1229. The court characterized this class as "different in kind from drug trafficking." Id., at 1228. The differences between the members of a class so defined and the principal traffickers in Schedule I substances might be sufficient to justify a policy decision exempting the narrower class from the coverage of the CSA. The question, however, is whether Congress' contrary policy judgment, i.e., its decision to include this narrower "class of activities" within the larger regulatory scheme, was constitutionally deficient. We have no difficulty concluding that Congress acted rationally in determining that none of the characteristics making up the purported class, whether viewed individually or in the aggregate, compelled an exemption from the CSA; rather, the subdivided class of activities defined by the Court of Appeals was an essential part of the larger regulatory scheme.
First, the fact that marijuana is used "for personal medical purposes on the advice of a physician" cannot itself serve as a distinguishing factor. 352 F. 3d, at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Moreover, the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner. Indeed, most of the substances classified in the CSA "have a useful and legitimate medical purpose." 21 U. S. C. §801(1). Thus, even if respondents are correct that marijuana does have accepted medical uses and thus should be redesignated as a lesser schedule drug,37 the CSA would still impose controls beyond what is required by California law. The CSA requires manufacturers, physicians, pharmacies, and other handlers of controlled substances to comply with statutory and regulatory provisions mandating registration with the DEA, compliance with specific production quotas, security controls to guard against diversion, recordkeeping and reporting obligations, and prescription requirements. See 21 U. S. C. §§821-830; 21 CFR §1301 et seq. (2004). Furthermore, the dispensing of new drugs, even when doctors approve their use, must await federal approval.United States v. Rutherford, 442 U. S. 544 (1979). Accordingly, the mere fact that marijuana--like virtually every other controlled substance regulated by the CSA--is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA.
Nor can it serve as an "objective marke[r]" or "objective facto[r]" to arbitrarily narrow the relevant class as the dissenters suggest, post, at 6 (O'Connor, J., dissenting); post, at 12 (Thomas, J., dissenting). More fundamentally, if, as the principal dissent contends, the personal cultivation, possession, and use of marijuana for medicinal purposes is beyond the " 'outer limits' of Congress' Commerce Clause authority," post, at 1 (O'Connor, J., dissenting), it must also be true that such personal use of marijuana (or any other homegrown drug) for recreational purposes is also beyond those " 'outer limits,' " whether or not a State elects to authorize or even regulate such use. Justice Thomas' separate dissent suffers from the same sweeping implications. That is, the dissenters' rationale logically extends to place any federal regulation (including quality, prescription, or quantity controls) of any locally cultivated and possessed controlled substance for any purpose beyond the " 'outer limits' " of Congress' Commerce Clause authority. One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance. The congressional judgment that an exemption for such a significant segment of the total market would undermine the orderly enforcement of the entire regulatory scheme is entitled to a strong presumption of validity. Indeed, that judgment is not only rational, but "visible to the naked eye," Lopez, 514 U. S., at 563, under any commonsense appraisal of the probable consequences of such an open-ended exemption.
Second, limiting the activity to marijuana possession and cultivation "in accordance with state law" cannot serve to place respondents' activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is " 'superior to that of the States to provide for the welfare or necessities of their inhabitants,' " however legitimate or dire those necessities may be. Wirtz, 266 U. S. 405, 426 (1925)). See also 392 U. S., at 195-196; Wickard, 312 U. S. 100, 114 (1941) ("That power can neither be enlarged nor diminished by the exercise or non-exercise of state power").38
Respondents acknowledge this proposition, but nonetheless contend that their activities were not "an essential part of a larger regulatory scheme" because they had been "isolated by the State of California, and [are] policed by the State of California," and thus remain "entirely separated from the market." Tr. of Oral Arg. 27. The dissenters fall prey to similar reasoning. See n. 38, supra this page. The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more importantly, one that Congress could have rationally rejected.
Indeed, that the California exemptions will have a significant impact on both the supply and demand sides of the market for marijuana is not just "plausible" as the principal dissent concedes, post, at 16 (O'Connor, J., dissenting), it is readily apparent. The exemption for physicians provides them with an economic incentive to grant their patients permission to use the drug. In contrast to most prescriptions for legal drugs, which limit the dosage and duration of the usage, under California law the doctor's permission to recommend marijuana use is open-ended. The authority to grant permission whenever the doctor determines that a patient is afflicted with "any other illness for which marijuana provides relief," Cal. Health & Safety Code Ann. §11362.5(b)(1)(A) (West Supp. 2005), is broad enough to allow even the most scrupulous doctor to conclude that some recreational uses would be therapeutic.39 And our cases have taught us that there are some unscrupulous physicians who overprescribe when it is sufficiently profitable to do so.40
The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market.41 The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients' medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious.42Moreover, that the national and international narcotics trade has thrived in the face of vigorous criminal enforcement efforts suggests that no small number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it is feasible to do so.43 Taking into account the fact that California is only one of at least nine States to have authorized the medical use of marijuana, a fact Justice O'Connor's dissent conveniently disregards in arguing that the demonstrated effect on commerce while admittedly "plausible" is ultimately "unsubstantiated," post, at 14, 16, Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial.
So, from the "separate and distinct" class of activities identified by the Court of Appeals (and adopted by the dissenters), we are left with "the intrastate, noncommercial cultivation, possession and use of marijuana." 352 F. 3d, at 1229. Thus the case for the exemption comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the findings in the CSA and the undisputed magnitude of the commercial market for marijuana, our decisions in Wickard v. Filburn and the later cases endorsing its reasoning foreclose that claim.
V
Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals. We therefore do not address the question whether judicial relief is available to respondents on these alternative bases. We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress. Under the present state of the law, however, the judgment of the Court of Appeals must be vacated. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. ANGEL McCLARY RAICH et al.
on writ of certiorari to the united states court ofappeals for the ninth circuit
[June 6, 2005]
Justice Scalia, concurring in the judgment.
I agree with the Court's holding that the Controlled Substances Act (CSA) may validly be applied to respondents' cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced.
Since Perez v. United States, 402 U. S. 146 (1971), our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that "substantially affect" interstate commerce. Id., at 150; see United States v. Morrison, 529 U. S. 598, 608-609 (2000); United States v. Lopez, 514 U. S. 549, 558-559 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276-277 (1981). The first two categories are self-evident, since they are the ingredients of interstate commerce itself. See Gibbons v. Ogden, 9 Wheat. 1, 189-190 (1824). The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete.
It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. Id., at 78; Katzenbach v. McClung, 379 U. S. 294, 301-302 (1964); United States v. Wrightwood Dairy Co., 315 U. S. 110, 119 (1942); Shreveport Rate Cases, 234 U. S. 342, 353 (1914); United States v. E. C. Knight Co., 156 U. S. 1, 39-40 (1895) (Harlan, J., dissenting).1 And the category of "activities that substantially affect interstate commerce," Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.
I
Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 36-37 (1937). That is why the Court has repeatedly sustained congressional legislation on the ground that the regulated activities had a substantial effect on interstate commerce. See, e.g., Hodel, supra, at 281 (surface coal mining); Katzenbach, supra, at 300 (discrimination by restaurants); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 258 (1964) (discrimination by hotels); Mandeville Island Farms v. American Crystal Sugar Co., 334 U. S. 219, 237 (1948) (intrastate price-fixing); Board of Trade of Chicago v. Olsen, 262 U. S. 1, 40 (1923) (activities of a local grain exchange); Stafford v. Wallace, 258 U. S. 495, 517, 524-525 (1922) (intrastate transactions at stockyard). Lopez and Morrison recognized the expansive scope of Congress's authority in this regard: "[T]he pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." Lopez, supra, at 560; Morrison, supra, at 610 (same).
This principle is not without limitation. In Lopez and Morrison, the Court--conscious of the potential of the "substantially affects" test to " 'obliterate the distinction between what is national and what is local,' " Lopez, supra, at 566-567 (quoting A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 554 (1935)); see also Morrison, supra, at 615-616--rejected the argument that Congress may regulate noneconomic activity based solely on the effect that it may have on interstate commerce through a remote chain of inferences. Lopez, supra, at 564-566; Morrison, supra, at 617-618. "[I]f we were to accept [such] arguments," the Court reasoned in Lopez, "we are hard pressed to posit any activity by an individual that Congress is without power to regulate."Lopez, supra, at 564; see also Morrison, supra, at 615-616. Thus, although Congress's authority to regulate intrastate activity that substantially affects interstate commerce is broad, it does not permit the Court to "pile inference upon inference," Lopez, supra, at 567, in order to establish that noneconomic activity has a substantial effect on interstate commerce.
As we implicitly acknowledged in Lopez, however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." 312 U. S. 100, 118-119 (1941); Shreveport Rate Cases, 234 U. S., at 353. As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, "it possesses every power needed to make that regulation effective." 315 U. S., at 118-119.
Although this power "to make ... regulation effective" commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce,2 and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.
In Darby, for instance, the Court explained that "Congress, having ... adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards," 312 U. S., at 121, could not only require employers engaged in the production of goods for interstate commerce to conform to wage and hour standards, id., at 119-121, but could also require those employers to keep employment records in order to demonstrate compliance with the regulatory scheme, id., at 125. While the Court sustained the former regulation on the alternative ground that the activity it regulated could have a "great effect" on interstate commerce, id., at 122-123, it affirmed the latter on the sole ground that "[t]he requirement for records even of the intrastate transaction is an appropriate means to a legitimate end," id., at 125.
As the Court said in the Shreveport Rate Cases, the Necessary and Proper Clause does not give "Congress ... the authority to regulate the internal commerce of a State, as such," but it does allow Congress "to take all measures necessary or appropriate to" the effective regulation of the interstate market, "although intrastate transactions ... may thereby be controlled." 234 U. S., at 353; see also Jones & Laughlin Steel Corp., 301 U. S., at 38 (the logic of the Shreveport Rate Cases is not limited to instrumentalities of commerce).
II
Today's principal dissent objects that, by permitting Congress to regulate activities necessary to effective interstate regulation, the Court reduces Lopez and Morrison to "little more than a drafting guide." Post, at 5 (opinion of O'Connor, J.). I think that criticism unjustified. Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could ... undercut" its regulation of interstate commerce. See Lopez, supra, at 561; ante, at 15, 21, 22. This is not a power that threatens to obliterate the line between "what is truly national and what is truly local." Lopez, supra, at 567-568.
Lopez and Morrison affirm that Congress may not regulate certain "purely local" activity within the States based solely on the attenuated effect that such activity may have in the interstate market. But those decisions do not declare noneconomic intrastate activities to be categorically beyond the reach of the Federal Government. Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation; Lopez expressly disclaimed that it was such a case, 514 U. S., at 561, and Morrison did not even discuss the possibility that it was. (The Court of Appeals in Morrison made clear that it was not. See Brzonkala v. Virginia Polytechnic Inst., 169 F. 3d 820, 834-835 (CA4 1999) (en banc).) To dismiss this distinction as "superficial and formalistic," see post, at 6 (O'Connor, J., dissenting), is to misunderstand the nature of the Necessary and Proper Clause, which empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation. See McCulloch v. Maryland, 4 Wheat. 316, 421-422 (1819).
And there are other restraints upon the Necessary and Proper Clause authority. As Chief Justice Marshall wrote in McCulloch v. Maryland, even when the end is constitutional and legitimate, the means must be "appropriate" and "plainly adapted" to that end. Id., at 421. Moreover, they may not be otherwise "prohibited" and must be "consistent with the letter and spirit of the constitution." Ibid. These phrases are not merely hortatory. For example, cases such as Printz v. United States, 521 U. S. 898 (1997), and New York v. United States, 505 U. S. 144 (1992), affirm that a law is not " 'proper for carrying into Execution the Commerce Clause' " "[w]hen [it] violates [a constitutional] principle of state sovereignty." Printz, supra, at 923-924; see also New York, supra, at 166.
III
The application of these principles to the case before us is straightforward. In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce "extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it." Darby, 220 U. S. 45, 58 (1911); Lottery Case, 188 U. S. 321, 354 (1903). To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances--both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). See 21 U. S. C. §§841(a), 844(a). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress's authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce.
By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish "controlled substances manufactured and distributed intrastate" from "controlled substances manufactured and distributed interstate," but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market--and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.3 See ante, at 23-30. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for "medical" marijuana and the more general marijuana market. See id., at 26-27, and n. 38. "To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution." McCulloch, supra, at 424.
Finally, neither respondents nor the dissenters suggest any violation of state sovereignty of the sort that would render this regulation "inappropriate," id., at 421--except to argue that the CSA regulates an area typically left to state regulation. See post, at 6-7, 11 (opinion of O'Connor, J.); post, at 8-9 (opinion of Thomas, J.); Brief for Respondents 39-42. That is not enough to render federal regulation an inappropriate means. The Court has repeatedly recognized that, if authorized by the commerce power, Congress may regulate private endeavors "even when [that regulation] may pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress." National League of Cities v. Usery, 426 U. S. 833, 840 (1976); see Cleveland v. United States, 329 U. S. 14, 19 (1946); McCulloch, supra, at 424. At bottom, respondents' state-sovereignty argument reduces to the contention that federal regulation of the activities permitted by California's Compassionate Use Act is not sufficiently necessary to be "necessary and proper" to Congress's regulation of the interstate market. For the reasons given above and in the Court's opinion, I cannot agree.
***
I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market "could be undercut" if those activities were excepted from its general scheme of regulation. See Lopez, 514 U. S., at 561. That is sufficient to authorize the application of the CSA to respondents.
ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. ANGEL McCLARY RAICH et al.
on writ of certiorari to the united states court ofappeals for the ninth circuit
[June 6, 2005]
Justice O'Connor, with whom The Chief Justice and Justice Thomas join as to all but Part III, dissenting.
We enforce the "outer limits" of Congress' Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. United States v. Lopez, 514 U. S. 549, 557 (1995); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). One of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility 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." New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting).
This case exemplifies the role of States as laboratories. The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Brecht v. Abrahamson, 507 U. S. 619, 635 (1993); Whalen v. Roe, 429 U. S. 589, 603, n. 30 (1977). Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause--nestling questionable assertions of its authority into comprehensive regulatory schemes--rather than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in Lopez, supra, and United States v. Morrison, 529 U. S. 598 (2000). Accordingly I dissent.
I
In Lopez, we considered the constitutionality of the Gun-Free School Zones Act of 1990, which made it a federal offense "for any individual knowingly to possess a firearm ... at a place the individual knows, or has reasonable cause to believe, is a school zone," 18 U. S. C. §922(q)(2)(A). We explained that "Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce ... , i.e., those activities that substantially affect interstate commerce." 469 U. S. 528, 585-586 (1985) (O'Connor, J., dissenting) (explaining that United States v. Darby, 312 U. S. 100 (1941), United States v. Wrightwood Dairy Co., 315 U. S. 110 (1942), and Wickard v. Filburn, 317 U. S. 111 (1942), based their expansion of the commerce power on the Necessary and Proper Clause, and that "the reasoning of these cases underlies every recent decision concerning the reach of Congress to activities affecting interstate commerce"); ante, at 2 (Scalia, J., concurring in judgment). We held in Lopez that the Gun-Free School Zones Act could not be sustained as an exercise of that power.
Our decision about whether gun possession in school zones substantially affected interstate commerce turned on four considerations. Lopez, supra, at 559-567; see also Morrison, supra, at 609-613. First, we observed that our "substantial effects" cases generally have upheld federal regulation of economic activity that affected interstate commerce, but that §922(q) was a criminal statute having "nothing to do with 'commerce' or any sort of economic enterprise." Lopez, 514 U. S., at 561. In this regard, we also noted that "[s]ection 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." Ibid. Second, we noted that the statute contained no express jurisdictional requirement establishing its connection to interstate commerce. Ibid.
Third, we found telling the absence of legislative findings about the regulated conduct's impact on interstate commerce. We explained that while express legislative findings are neither required nor, when provided, dispositive, findings "enable us to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the naked eye." Id., at 563. Finally, we rejected as too attenuated the Government's argument that firearm possession in school zones could result in violent crime which in turn could adversely affect the national economy. Id., at 563-567. The Constitution, we said, does not tolerate reasoning that would "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Id., at 567. Later in Morrison, supra, we relied on the same four considerations to hold that §40302 of the Violence Against Women Act of 1994, 42 U. S. C. §13981, exceeded Congress' authority under the Commerce Clause.
In my view, the case before us is materially indistinguishable from Lopez and Morrison when the same considerations are taken into account.
II
A
What is the relevant conduct subject to Commerce Clause analysis in this case? The Court takes its cues from Congress, applying the above considerations to the activity regulated by the Controlled Substances Act (CSA) in general. The Court's decision rests on two facts about the CSA: (1) Congress chose to enact a single statute providing a comprehensive prohibition on the production, distribution, and possession of all controlled substances, and (2) Congress did not distinguish between various forms of intrastate noncommercial cultivation, possession, and use of marijuana. See 21 U. S. C. §§841(a)(1), 844(a). Today's decision suggests that the federal regulation of local activity is immune to Commerce Clause challenge because Congress chose to act with an ambitious, all-encompassing statute, rather than piecemeal. In my view, allowing Congress to set the terms of the constitutional debate in this way, i.e., by packaging regulation of local activity in broader schemes, is tantamount to removing meaningful limits on the Commerce Clause.
The Court's principal means of distinguishing Lopez from this case is to observe that the Gun-Free School Zones Act of 1990 was a "brief, single-subject statute," ante, at 20, see also ante, at 19, whereas the CSA is "a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five classes of 'controlled substances,' " ibid. Thus, according to the Court, it was possible in Lopez to evaluate in isolation the constitutionality of criminalizing local activity (there gun possession in school zones), whereas the local activity that the CSA targets (in this case cultivation and possession of marijuana for personal medicinal use) cannot be separated from the general drug control scheme of which it is a part.
Today's decision allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential (and the Court appears to equate "essential" with "necessary") to the interstate regulatory scheme. Seizing upon our language in Lopez that the statute prohibiting gun possession in school zones was "not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated," 514 U. S., at 561, the Court appears to reason that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme. Ante, at 21-22. If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as "transfer or possession of a firearm anywhere in the nation"--thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones. Furthermore, today's decision suggests we would readily sustain a congressional decision to attach the regulation of intrastate activity to a pre-existing comprehensive (or even not-so-comprehensive) scheme. If so, the Court invites increased federal regulation of local activity even if, as it suggests, Congress would not enact a new interstate scheme exclusively for the sake of reaching intrastate activity, see ante, at 22, n. 33; ante, at 6 (Scalia, J., concurring in judgment).
I cannot agree that our decision in Lopez contemplated such evasive or overbroad legislative strategies with approval. Until today, such arguments have been made only in dissent. See Morrison, 529 U. S., at 657 (Breyer, J., dissenting) (given that Congress can regulate " 'an essential part of a larger regulation of economic activity,' " "can Congress save the present law by including it, or much of it, in a broader 'Safe Transport' or 'Worker Safety' act?"). Lopez and Morrison did not indicate that the constitutionality of federal regulation depends on superficial and formalistic distinctions. Likewise I did not understand our discussion of the role of courts in enforcing outer limits of the Commerce Clause for the sake of maintaining the federalist balance our Constitution requires, see Lopez, 514 U. S., at 557; id., at 578 (Kennedy, J., concurring), as a signal to Congress to enact legislation that is more extensive and more intrusive into the domain of state power. If the Court always defers to Congress as it does today, little may be left to the notion of enumeratedpowers.
The hard work for courts, then, is to identify objective markers for confining the analysis in Commerce Clause cases. Here, respondents challenge the constitutionality of the CSA as applied to them and those similarly situated. I agree with the Court that we must look beyond respondents' own activities. Otherwise, individual litigants could always exempt themselves from Commerce Clause regulation merely by pointing to the obvious--that their personal activities do not have a substantial effect on interstate commerce. See Maryland v. Wirtz, 392 U. S. 183, 193 (1968); Wickard, 317 U. S., at 127-128. The task is to identify a mode of analysis that allows Congress to regulate more than nothing (by declining to reduce each case to its litigants) and less than everything (by declining to let Congress set the terms of analysis). The analysis may not be the same in every case, for it depends on the regulatory scheme at issue and the federalism concerns implicated. See generally Lopez, 514 U. S., at 567; id., at 579 (Kennedy, J., concurring).
A number of objective markers are available to confine the scope of constitutional review here. Both federal and state legislation--including the CSA itself, the California Compassionate Use Act, and other state medical marijuana legislation--recognize that medical and nonmedical (i.e., recreational) uses of drugs are realistically distinct and can be segregated, and regulate them differently. See 21 U. S. C. §812; Cal. Health & Safety Code Ann. §11362.5 (West Supp. 2005); ante, at 1 (opinion of the Court). Respondents challenge only the application of the CSA to medicinal use of marijuana. Cf. United States v. Raines, 362 U. S. 17, 20-22 (1960) (describing our preference for as-applied rather than facial challenges). Moreover, because fundamental structural concerns about dual sovereignty animate our Commerce Clause cases, it is relevant that this case involves the interplay of federal and state regulation in areas of criminal law and social policy, where "States lay claim by right of history and expertise." Lopez, supra, at 583 (Kennedy, J., concurring); see also Morrison, supra, at 617-619; Lopez, supra, at 580 (Kennedy, J., concurring) ("The statute before us upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power, and our intervention is required"); cf. Garcia, 469 U. S., at 586 (O'Connor, J., dissenting) ("[S]tate autonomy is a relevant factor in assessing the means by which Congress exercises its powers" under the Commerce Clause). California, like other States, has drawn on its reserved powers to distinguish the regulation of medicinal marijuana. To ascertain whether Congress' encroachment is constitutionally justified in this case, then, I would focus here on the personal cultivation, possession, and use of marijuana for medicinal purposes.
B
Having thus defined the relevant conduct, we must determine whether, under our precedents, the conduct is economic and, in the aggregate, substantially affects interstate commerce. Even if intrastate cultivation and possession of marijuana for one's own medicinal use can properly be characterized as economic, and I question whether it can, it has not been shown that such activity substantially affects interstate commerce. Similarly, it is neither self-evident nor demonstrated that regulating such activity is necessary to the interstate drug control scheme.
The Court's definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market. Putting to one side the problem endemic to the Court's opinion--the shift in focus from the activity at issue in this case to the entirety of what the CSA regulates, see Lopez, supra, at 565 ("depending on the level of generality, any activity can be looked upon as commercial")--the Court's definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal regulatory reach.
The Court uses a dictionary definition of economics to skirt the real problem of drawing a meaningful line between "what is national and what is local," Jones & Laughlin Steel, 301 U. S., at 37. It will not do to say that Congress may regulate noncommercial activity simply because it may have an effect on the demand for commercial goods, or because the noncommercial endeavor can, in some sense, substitute for commercial activity. Most commercial goods or services have some sort of privately producible analogue. Home care substitutes for daycare. Charades games substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the supermarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic. We have already rejected the result that would follow--a federal police power. Lopez, supra, at 564.
In Lopez and Morrison, we suggested that economic activity usually relates directly to commercial activity. See Morrison, 529 U. S., at 611, n. 4 (intrastate activities that have been within Congress' power to regulate have been "of an apparent commercial character"); Lopez, 514 U. S., at 561 (distinguishing the Gun-Free School Zones Act of 1990 from "activities that arise out of or are connected with a commercial transaction"). The homegrown cultivation and personal possession and use of marijuana for medicinal purposes has no apparent commercial character. Everyone agrees that the marijuana at issue in this case was never in the stream of commerce, and neither were the supplies for growing it. (Marijuana is highly unusual among the substances subject to the CSA in that it can be cultivated without any materials that have traveled in interstate commerce.) Lopez makes clear that possession is not itself commercial activity. Ibid. And respondents have not come into possession by means of any commercial transaction; they have simply grown, in their own homes, marijuana for their own use, without acquiring, buying, selling, or bartering a thing of value. Cf. id., at 583 (Kennedy, J., concurring) ("The statute now before us forecloses the States from experimenting ... and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term").
The Court suggests that Wickard, which we have identified as "perhaps the most far reaching example of Commerce Clause authority over intrastate activity," Lopez, supra, at 560, established federal regulatory power over any home consumption of a commodity for which a national market exists. I disagree. Wickard involved a challenge to the Agricultural Adjustment Act of 1938 (AAA), which directed the Secretary of Agriculture to set national quotas on wheat production, and penalties for excess production. 317 U. S., at 115-116. The AAA itself confirmed that Congress made an explicit choice not to reach--and thus the Court could not possibly have approved of federal control over--small-scale, noncommercial wheat farming. In contrast to the CSA's limitless assertion of power, Congress provided an exemption within the AAA for small producers. When Filburn planted the wheat at issue in Wickard, the statute exempted plantings less than 200 bushels (about six tons), and when he harvested his wheat it exempted plantings less than six acres. Id., at 130, n. 30. Wickard, then, did not extend Commerce Clause authority to something as modest as the home cook's herb garden. This is not to say that Congress may never regulate small quantities of commodities possessed or produced for personal use, or to deny that it sometimes needs to enact a zero tolerance regime for such commodities. It is merely to say that Wickard did not hold or imply that small-scale production of commodities is always economic, and automatically within Congress' reach.
Even assuming that economic activity is at issue in this case, the Government has made no showing in fact that the possession and use of homegrown marijuana for medical purposes, in California or elsewhere, has a substantial effect on interstate commerce. Similarly, the Government has not shown that regulating such activity is necessary to an interstate regulatory scheme. Whatever the specific theory of "substantial effects" at issue (i.e., whether the activity substantially affects interstate commerce, whether its regulation is necessary to an interstate regulatory scheme, or both), a concern for dual sovereignty requires that Congress' excursion into the traditional domain of States be justified.
That is why characterizing this as a case about the Necessary and Proper Clause does not change the analysis significantly. Congress must exercise its authority under the Necessary and Proper Clause in a manner consistent with basic constitutional principles. Garcia, 521 U. S. 898, 923 (1997) (the Necessary and Proper Clause is "the last, best hope of those who defend ultra vires congressional action"). Indeed, if it were enough in "substantial effects" cases for the Court to supply conceivable justifications for intrastate regulation related to an interstate market, then we could have surmised in Lopez that guns in school zones are "never more than an instant from the interstate market" in guns already subject to extensive federal regulation, ante, at 8 (Scalia, J., concurring in judgment), recast Lopez as a Necessary and Proper Clause case, and thereby upheld the Gun-Free School Zones Act of 1990. (According to the Court's and the concurrence's logic, for example, the Lopez court should have reasoned that the prohibition on gun possession in school zones could be an appropriate means of effectuating a related prohibition on "sell[ing]" or "deliver[ing]" firearms or ammunition to "any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age." 18 U. S. C. §922(b)(1) (1988 ed., Supp. II).)
There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market--or otherwise to threaten the CSA regime. Explicit evidence is helpful when substantial effect is not "visible to the naked eye." See Lopez, 514 U. S., at 563. And here, in part because common sense suggests that medical marijuana users may be limited in number and that California's Compassionate Use Act and similar state legislation may well isolate activities relating to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self-evidently substantial.
In this regard, again, this case is readily distinguishable from Wickard. To decide whether the Secretary could regulate local wheat farming, the Court looked to "the actual effects of the activity in question upon interstate commerce." 317 U. S., at 120. Critically, the Court was able to consider "actual effects" because the parties had "stipulated a summary of the economics of the wheat industry." Id., at 125. After reviewing in detail the picture of the industry provided in that summary, the Court explained that consumption of homegrown wheat was the most variable factor in the size of the national wheat crop, and that on-site consumption could have the effect of varying the amount of wheat sent to market by as much as 20 percent. Id., at 127. With real numbers at hand, the Wickard Court could easily conclude that "a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions" nationwide. Id., at 128; see also id., at 128-129 ("This record leaves us in no doubt" about substantial effects).
The Court recognizes that "the record in the Wickard case itself established the causal connection between the production for local use and the national market" and argues that "we have before us findings by Congress to the same effect." Ante, at 17 (emphasis added). The Court refers to a series of declarations in the introduction to the CSA saying that (1) local distribution and possession of controlled substances causes "swelling" in interstate traffic; (2) local production and distribution cannot be distinguished from interstate production and distribution; (3) federal control over intrastate incidents "is essential to effective control" over interstate drug trafficking. 21 U. S. C. §§801(1)-(6). These bare declarations cannot be compared to the record before the Court in Wickard.
They amount to nothing more than a legislative insistence that the regulation of controlled substances must be absolute. They are asserted without any supporting evidence--descriptive, statistical, or otherwise. "[S]imply because Congress may conclude a particular activity substantially affects interstate commerce does not necessarily make it so." Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 311 (1981) (Rehnquist, J., concurring in judgment). Indeed, if declarations like these suffice to justify federal regulation, and if the Court today is right about what passes rationality review before us, then our decision in Morrison should have come out the other way. In that case, Congress had supplied numerous findings regarding the impact gender-motivated violence had on the national economy. 379 U. S. 241, 273 (1964) (Black, J., concurring)). If, as the Court claims, today's decision does not break with precedent, how can it be that voluminous findings, documenting extensive hearings about the specific topic of violence against women, did not pass constitutional muster in Morrison, while the CSA's abstract, unsubstantiated, generalized findings about controlled substances do?
In particular, the CSA's introductory declarations are too vague and unspecific to demonstrate that the federal statutory scheme will be undermined if Congress cannot exert power over individuals like respondents. The declarations are not even specific to marijuana. (Facts about substantial effects may be developed in litigation to compensate for the inadequacy of Congress' findings; in part because this case comes to us from the grant of a preliminary injunction, there has been no such development.) Because here California, like other States, has carved out a limited class of activity for distinct regulation, the inadequacy of the CSA's findings is especially glaring. The California Compassionate Use Act exempts from other state drug laws patients and their caregivers "who posses[s] or cultivat[e] marijuana for the personal medical purposes of the patient upon the written or oral recommendation of a physician" to treat a list of serious medical conditions. Cal. Health & Safety Code Ann. §§11362.5(d), 11362.7(h) (West Supp. 2005) (emphasis added). Compare ibid. with, e.g., §11357(b) (West 1991) (criminalizing marijuana possession in excess of 28.5 grams); §11358 (criminalizing marijuana cultivation). The Act specifies that it should not be construed to supersede legislation prohibiting persons from engaging in acts dangerous to others, or to condone the diversion of marijuana for nonmedical purposes. §11362.5(b)(2) (West Supp. 2005). To promote the Act's operation and to facilitate law enforcement, California recently enacted an identification card system for qualified patients. §§11362.7-11362.83. We generally assume States enforce their laws, see Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795 (1988), and have no reason to think otherwise here.
The Government has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime. Nor has it shown that Compassionate Use Act marijuana users have been or are realistically likely to be responsible for the drug's seeping into the market in a significant way. The Government does cite one estimate that there were over 100,000 Compassionate Use Act users in California in 2004, Reply Brief for Petitioners 16, but does not explain, in terms of proportions, what their presence means for the national illicit drug market. See generally Wirtz, 392 U. S., at 196, n. 27 (Congress cannot use "a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities"); cf. General Accounting Office, Marijuana: Early Experience with Four States' Laws That Allow Use for Medical Purposes 21-23 (Rep. No. 03-189, Nov. 2002), http://www.gao.gov/new.items/d03189.pdf (as visited June 3, 2005 and available in Clerk of Court's case file) (in four California counties before the identification card system was enacted, voluntarily registered medical marijuana patients were less than 0.5 percent of the population; in Alaska, Hawaii, and Oregon, statewide medical marijuana registrants represented less than 0.05 percent of the States' populations). It also provides anecdotal evidence about the CSA's enforcement. See Reply Brief for Petitioners 17-18. The Court also offers some arguments about the effect of the Compassionate Use Act on the national market. It says that the California statute might be vulnerable to exploitation by unscrupulous physicians, that Compassionate Use Act patients may overproduce, and that the history of the narcotics trade shows the difficulty of cordoning off any drug use from the rest of the market. These arguments are plausible; if borne out in fact they could justify prosecuting Compassionate Use Act patients under the federal CSA. But, without substantiation, they add little to the CSA's conclusory statements about diversion, essentiality, and market effect. Piling assertion upon assertion does not, in my view, satisfy the substantiality test of Lopez and Morrison.
III
We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: "The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite... . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961).
Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.
ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. ANGEL McCLARY RAICH et al.
on writ of certiorari to the united states court ofappeals for the ninth circuit
[June 6, 2005]
Justice Thomas, dissenting.
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers.
I
Respondents' local cultivation and consumption of marijuana is not "Commerce ... among the several States." U. S. Const., Art. I, §8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents' conduct, however, is not "necessary and proper for carrying into Execution" Congress' restrictions on the interstate drug trade. Art. I, §8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents' conduct.
A
As I explained at length in United States v. Lopez, 514 U. S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586-589 (concurring opinion). The Clause's text, structure, and history all indicate that, at the time of the founding, the term " 'commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes." Id., at 585 (Thomas, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586-587 (Thomas, J., concurring). Throughout founding-era dictionaries, Madison's notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term "commerce" is consistently used to mean trade or exchange--not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (Thomas, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112-125 (2001). The term "commerce" commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 857-862 (2003).
Even the majority does not argue that respondents' conduct is itself "Commerce among the several States." Art. I, §8, cl. 3. Ante, at 19. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California--it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.
On this traditional understanding of "commerce," the Controlled Substances Act (CSA), 21 U. S. C. §801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market--intrastate or interstate, noncommercial or commercial--for marijuana. Respondents are correct that the CSA exceeds Congress' commerce power as applied to their conduct, which is purely intrastate and noncommercial.
B
More difficult, however, is whether the CSA is a valid exercise of Congress' power to enact laws that are "necessary and proper for carrying into Execution" its power to regulate interstate commerce. Art. I, §8, cl. 18. The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power.1 Nor is it, however, a command to Congress to enact only laws that are absolutely indispensable to the exercise of an enumerated power.2
In McCulloch v. Maryland, 4 Wheat. 316 (1819), this Court, speaking through Chief Justice Marshall, set forth a test for determining when an Act of Congress is permissible under the Necessary and Proper Clause:
"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Id., at 421.
To act under the Necessary and Proper Clause, then, Congress must select a means that is "appropriate" and "plainly adapted" to executing an enumerated power; the means cannot be otherwise "prohibited" by the Constitution; and the means cannot be inconsistent with "the letter and spirit of the [C]onstitution." Ibid.; D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, pp. 163-164 (1985). The CSA, as applied to respondents' conduct, is not a valid exercise of Congress' power under the Necessary and Proper Clause.
1
Congress has exercised its power over interstate commerce to criminalize trafficking in marijuana across state lines. The Government contends that banning Monson and Raich's intrastate drug activity is "necessary and proper for carrying into Execution" its regulation of interstate drug trafficking. Art. I, §8, cl. 18. See 21 U. S. C. §801(6). However, in order to be "necessary," the intrastate ban must be more than "a reasonable means [of] effectuat[ing] the regulation of interstate commerce." Brief for Petitioners 14; see ante, at 19 (majority opinion) (employing rational-basis review). It must be "plainly adapted" to regulating interstate marijuana trafficking--in other words, there must be an "obvious, simple, and direct relation" between the intrastate ban and the regulation of interstate commerce. Sabri v. United States, 541 U. S. 600, 613 (2004) (Thomas, J., concurring in judgment); see also United States v. Dewitt, 9 Wall. 41, 44 (1870) (finding ban on intrastate sale of lighting oils not "appropriate and plainly adapted means for carrying into execution" Congress' taxing power).
On its face, a ban on the intrastate cultivation, possession and distribution of marijuana may be plainly adapted to stopping the interstate flow of marijuana. Unregulated local growers and users could swell both the supply and the demand sides of the interstate marijuana market, making the market more difficult to regulate.Ante, at 9-10, 19 (majority opinion). But respondents do not challenge the CSA on its face. Instead, they challenge it as applied to their conduct. The question is thus whether the intrastate ban is "necessary and proper" as applied to medical marijuana users like respondents.3
Respondents are not regulable simply because they belong to a large class (local growers and users of marijuana) that Congress might need to reach, if they also belong to a distinct and separable subclass (local growers and users of state-authorized, medical marijuana) that does not undermine the CSA's interstate ban.Ante, at 6-7 (O'Connor, J., dissenting). The Court of Appeals found that respondents' "limited use is distinct from the broader illicit drug market," because "th[eir] medicinal marijuana ... is not intended for, nor does it enter, the stream of commerce." Raich v. Ashcroft, 352 F. 3d 1222, 1228 (CA9 2003). If that is generally true of individuals who grow and use marijuana for medical purposes under state law, then even assuming Congress has "obvious" and "plain" reasons why regulating intrastate cultivation and possession is necessary to regulating the interstate drug trade, none of those reasons applies to medical marijuana patients like Monson and Raich.
California's Compassionate Use Act sets respondents' conduct apart from other intrastate producers and users of marijuana. The Act channels marijuana use to "seriously ill Californians," Cal. Health & Safety Code Ann. §11362.5(b)(1)(A) (West Supp. 2005), and prohibits "the diversion of marijuana for nonmedical purposes," §11362.5(b)(2).4 California strictly controls the cultivation and possession of marijuana for medical purposes. To be eligible for its program, California requires that a patient have an illness that cannabis can relieve, such as cancer, AIDS, or arthritis, §11362.5(b)(1)(A), and that he obtain a physician's recommendation or approval, §11362.5(d). Qualified patients must provide personal and medical information to obtain medical identification cards, and there is a statewide registry of cardholders. §§11362.715-.76. Moreover, the Medical Board of California has issued guidelines for physicians' cannabis recommendations, and it sanctions physicians who do not comply with the guidelines. See, e.g., People v. Spark, 121 Cal. App. 4th 259, 263, 16 Cal. Rptr. 3d 840, 843 (2004).
This class of intrastate users is therefore distinguishable from others. We normally presume that States enforce their own laws, Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795 (1988), and there is no reason to depart from that presumption here: Nothing suggests that California's controls are ineffective. The scant evidence that exists suggests that few people--the vast majority of whom are aged 40 or older--register to use medical marijuana. General Accounting Office, Marijuana: Early Experiences with Four States' Laws That Allow Use for Medical Purposes 22-23 (Rep. No. 03-189, Nov. 2002), http://www.gao.gov/new.items/d01389.pdf (all Internet materials as visited on June 3, 2005, and available in Clerk of Court's case file). In part because of the low incidence of medical marijuana use, many law enforcement officials report that the introduction of medical marijuana laws has not affected their law enforcement efforts.Id., at 32.
These controls belie the Government's assertion that placing medical marijuana outside the CSA's reach "would prevent effective enforcement of the interstate ban on drug trafficking." Brief for Petitioners 33. Enforcement of the CSA can continue as it did prior to the Compassionate Use Act. Only now, a qualified patient could avoid arrest or prosecution by presenting his identification card to law enforcement officers. In the event that a qualified patient is arrested for possession or his cannabis is seized, he could seek to prove as an affirmative defense that, in conformity with state law, he possessed or cultivated small quantities of marijuana intrastate solely for personal medical use. People v. Mower, 28 Cal. 4th 457, 469-470, 49 P. 3d 1067, 1073-1075 (2002); People v. Trippet, 56 Cal. App. 4th 1532, 1549 (1997). Moreover, under the CSA, certain drugs that present a high risk of abuse and addiction but that nevertheless have an accepted medical use--drugs like morphine and amphetamines--are available by prescription. 21 U. S. C. §§812(b)(2)(A)-(B); 21 CFR §1308.12 (2004). No one argues that permitting use of these drugs under medical supervision has undermined the CSA's restrictions.
But even assuming that States' controls allow some seepage of medical marijuana into the illicit drug market, there is a multibillion-dollar interstate market for marijuana. Executive Office of the President, Office of Nat. Drug Control Policy, Marijuana Fact Sheet 5 (Feb. 2004), http://www.whitehousedrugpolicy.gov/publications/factsht/marijuana/index.html. It is difficult to see how this vast market could be affected by diverted medical cannabis, let alone in a way that makes regulating intrastate medical marijuana obviously essential to controlling the interstate drug market.
To be sure, Congress declared that state policy would disrupt federal law enforcement. It believed the across-the-board ban essential to policing interstate drug trafficking. 21 U. S. C. §801(6). But as Justice O'Connor points out, Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power. Ante, at 13-14 (dissenting opinion). Congress cannot define the scope of its own power merely by declaring the necessity of its enactments.
In sum, neither in enacting the CSA nor in defending its application to respondents has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress' goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. That is, unless Congress' aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana.
2
Even assuming the CSA's ban on locally cultivated and consumed marijuana is "necessary," that does not mean it is also "proper." The means selected by Congress to regulate interstate commerce cannot be "prohibited" by, or inconsistent with the "letter and spirit" of, the Constitution. McCulloch, 4 Wheat., at 421.
In Lopez, I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general "police power" over the Nation. 529 U. S. 598, 627 (2000) (Thomas, J., concurring).
Even if Congress may regulate purely intrastate activity when essential to exercising some enumerated power, see Dewitt, 9 Wall., at 44; but see Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183, 186 (2003) (detailing statements by Founders that the Necessary and Proper Clause was not intended to expand the scope of Congress' enumerated powers), Congress may not use its incidental authority to subvert basic principles of federalism and dual sovereignty. Printz v. United States, 521 U. S. 898, 923-924 (1997); Alden v. Maine, 527 U. S. 706, 732-733 (1999); Garcia v. San Antonio Metropolitan Transit Authority,469 U. S. 528, 585 (1985) (O'Connor, J., dissenting); The Federalist No. 33, pp. 204-205 (J. Cooke ed. 1961) (A. Hamilton) (hereinafter The Federalist).
Here, Congress has encroached on States' traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens.5 Brecht v. Abrahamson, 507 U. S. 619, 635 (1993); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 719 (1985). Further, the Government's rationale--that it may regulate the production or possession of any commodity for which there is an interstate market--threatens to remove the remaining vestiges of States' traditional police powers. See Brief for Petitioners 21-22; cf. Ehrlich, The Increasing Federalization of Crime, 32 Ariz. St. L. J. 825, 826, 841 (2000) (describing both the relative recency of a large percentage of federal crimes and the lack of a relationship between some of these crimes and interstate commerce). This would convert the Necessary and Proper Clause into precisely what Chief Justice Marshall did not envision, a "pretext ... for the accomplishment of objects not intrusted to the government." McCulloch, supra, at 423.
II
The majority advances three reasons why the CSA is a legitimate exercise of Congress' authority under the Commerce Clause: First, respondents' conduct, taken in the aggregate, may substantially affect interstate commerce, ante, at 19; second, regulation of respondents' conduct is essential to regulating the interstate marijuana market, ante, at 21-22; and, third, regulation of respondents' conduct is incidental to regulating the interstate marijuana market, ante, at 19-20. Justice O'Connor explains why the majority's reasons cannot be reconciled with our recent Commerce Clause jurisprudence. The majority's justifications, however, suffer from even more fundamental flaws.
A
The majority holds that Congress may regulate intrastate cultivation and possession of medical marijuana under the Commerce Clause, because such conduct arguably has a substantial effect on interstate commerce. The majority's decision is further proof that the "substantial effects" test is a "rootless and malleable standard" at odds with the constitutional design. Morrison, supra, at 627 (Thomas, J., concurring).
The majority's treatment of the substantial effects test is rootless, because it is not tethered to either the Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce--any more than Congress may regulate activities that do not fall within, but that affect, the subjects of its other Article I powers. Lopez, supra, at 589 (Thomas, J., concurring). Whatever additional latitude the Necessary and Proper Clause affords, supra, at 9-10, the question is whether Congress' legislation is essential to the regulation of interstate commerce itself--not whether the legislation extends only to economic activities that substantially affect interstate commerce.Supra, at 4; ante, at 5 (Scalia, J., concurring in judgment).
The majority's treatment of the substantial effects test is malleable, because the majority expands the relevant conduct. By defining the class at a high level of generality (as the intrastate manufacture and possession of marijuana), the majority overlooks that individuals authorized by state law to manufacture and possess medical marijuana exert no demonstrable effect on the interstate drug market. Supra, at 7-8. The majority ignores that whether a particular activity substantially affects interstate commerce--and thus comes within Congress' reach on the majority's approach--can turn on a number of objective factors, like state action or features of the regulated activity itself. Ante, at 6-7 (O'Connor, J., dissenting). For instance, here, if California and other States are effectively regulating medical marijuana users, then these users have little effect on the interstate drug trade.6
The substantial effects test is easily manipulated for another reason. This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U. S., at 613 ("[T]hus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature" (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the " 'the production, distribution, and consumption of commodities.' "7 Ante, at 23 (quoting Webster's Third New International Dictionary 720 (1966) (hereinafter Webster's 3d). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 8-9 (O'Connor, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined," while those of the States are "numerous and indefinite." The Federalist No. 45, at 313 (J. Madison).
Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate "Commerce," and respondents' conduct does not qualify under any definition of that term.8 The majority's opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from " 'commerce,' " ante, at 1, to "commercial" and "economic" activity, ante, at 20, and finally to all "production, distribution, and consumption" of goods or services for which there is an "established ... interstate market," ante, at 23. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it.
The majority's rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively. Ante, at 15-16; Lopez, 514 U. S., at 573-574 (Kennedy, J., concurring). The interconnectedness of economic activity is not a modern phenomenon unfamiliar to the Framers. Id., at 590-593 (Thomas, J., concurring); Letter from J. Madison to S. Roane (Sept. 2, 1819), in 3 The Founders' Constitution 259-260 (P. Kurland & R. Lerner eds. 1987). Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce--not to mention a host of local activities, like mere drug possession, that are not commercial.
One searches the Court's opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that " '[t]he Constitution created a Federal Government of limited powers.' " New York v. United States, 505 U. S. 144, 155 (1992) (quoting Gregory v. Ashcroft, 501 U. S. 452, 457 (1991)). That is why today's decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of "Commerce among the several States." Congress may regulate interstate commerce--not things that affect it, even when summed together, unless truly "necessary and proper" to regulating interstate commerce.
B
The majority also inconsistently contends that regulating respondents' conduct is both incidental and essential to a comprehensive legislative scheme. Ante, at 19-20, 21-22. I have already explained why the CSA's ban on local activity is not essential. Supra, at 7-8. However, the majority further claims that, because the CSA covers a great deal of interstate commerce, it "is of no moment" if it also "ensnares some purely intrastate activity." Ante, at 19. So long as Congress casts its net broadly over an interstate market, according to the majority, it is free to regulate interstate and intrastate activity alike. This cannot be justified under either the Commerce Clause or the Necessary and Proper Clause. If the activity is purely intrastate, then it may not be regulated under the Commerce Clause. And if the regulation of the intrastate activity is purely incidental, then it may not be regulated under the Necessary and Proper Clause.
Nevertheless, the majority terms this the "pivotal" distinction between the present case and Lopez and Morrison. Ante, at 20. In Lopez and Morrison, the parties asserted facial challenges, claiming "that a particular statute or provision fell outside Congress' commerce power in its entirety." Ante, at 20. Here, by contrast, respondents claim only that the CSA falls outside Congress' commerce power as applied to their individual conduct. According to the majority, while courts may set aside whole statutes or provisions, they may not "excise individual applications of a concededly valid statutory scheme." Ante, at 20-21; see also Perez v. United States, 402 U. S. 146, 154 (1971); Maryland v. Wirtz, 392 U. S. 183, 192-193 (1968).
It is true that if respondents' conduct is part of a "class of activities ... and that class is within the reach of federal power," Perez, supra, at 154 (emphases deleted), then respondents may not point to the de minimis effect of their own personal conduct on the interstate drug market, Wirtz, supra, at 196, n. 27. Ante, at 6 (O'Connor, J., dissenting). But that begs the question at issue: whether respondents' "class of activities" is "within the reach of federal power," which depends in turn on whether the class is defined at a low or a high level of generality. Supra, at 5. If medical marijuana patients like Monson and Raich largely stand outside the interstate drug market, then courts must excise them from the CSA's coverage. Congress expressly provided that if "a provision [of the CSA] is held invalid in one of more of its applications, the provision shall remain in effect in all its valid applications that are severable." 21 U. S. C. §901 (emphasis added); see also United States v. Booker, 543 U. S. ___, ___ (2005) (slip op., at 9, and n. 9) (Thomas, J., dissenting in part).
Even in the absence of an express severability provision, it is implausible that this Court could set aside entire portions of the United States Code as outside Congress' power in Lopez and Morrison, but it cannot engage in the more restrained practice of invalidating particular applications of the CSA that are beyond Congress' power. This Court has regularly entertained as-applied challenges under constitutional provisions, see United States v. Raines, 362 U. S. 17, 20-21 (1960), including the Commerce Clause, see Katzenbach v. McClung, 379 U. S. 294, 295 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 249 (1964); Wickard v. Filburn, 317 U. S. 111, 113-114 (1942). There is no reason why, when Congress exceeds the scope of its commerce power, courts may not invalidate Congress' overreaching on a case-by-case basis. The CSA undoubtedly regulates a great deal of interstate commerce, but that is no license to regulate conduct that is neither interstate nor commercial, however minor or incidental.
If the majority is correct that Lopez and Morrison are distinct because they were facial challenges to "particular statute[s] or provision[s]," ante, at 20, then congressional power turns on the manner in which Congress packages legislation. Under the majority's reasoning, Congress could not enact--either as a single-subject statute or as a separate provision in the CSA--a prohibition on the intrastate possession or cultivation of marijuana. Nor could it enact an intrastate ban simply to supplement existing drug regulations. However, that same prohibition is perfectly constitutional when integrated into a piece of legislation that reaches other regulable conduct. Lopez, 514 U. S., at 600-601 (Thomas, J., concurring).
Finally, the majority's view--that because some of the CSA's applications are constitutional, they must all be constitutional--undermines its reliance on the substantial effects test. The intrastate conduct swept within a general regulatory scheme may or may not have a substantial effect on the relevant interstate market. "[O]ne always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce." Id., at 600 (Thomas, J., concurring). The breadth of legislation that Congress enacts says nothing about whether the intrastate activity substantially affects interstate commerce, let alone whether it is necessary to the scheme. Because medical marijuana users in California and elsewhere are not placing substantial amounts of cannabis into the stream of interstate commerce, Congress may not regulate them under the substantial effects test, no matter how broadly it drafts the CSA.
***
The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. It does so without any serious inquiry into the necessity for federal regulation or the propriety of "displac[ing] state regulation in areas of traditional state concern," id., at 583 (Kennedy, J., concurring). The majority's rush to embrace federal power "is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union." United States v. Oakland Cannabis Buyers' Cooperative, 532 U. S. 483, 502 (2001) (Stevens, J., concurring in judgment). Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent.
FOOTNOTES
Footnote 1
See Alaska Stat. §§11.71.090, 17.37.010-17.37.080 (Lexis 2004); Colo. Const., Art. XVIII, §14, Colo. Rev. Stat. §18-18-406.3 (Lexis 2004); Haw. Rev. Stat. §§329-121 to 329-128 (2004 Cum. Supp.); Me. Rev. Stat. Ann., Tit. 22, §2383-B(5) (West 2004); Nev. Const., Art. 4, §38, Nev. Rev. Stat. §§453A.010-453A.810 (2003); Ore. Rev. Stat. §§475.300-475.346 (2003); Vt. Stat. Ann., Tit. 18, §§4472-4474d (Supp. 2004); Wash. Rev. Code §§69.51.010-69.51.080 (2004); see also Ariz. Rev. Stat. Ann. §13-3412.01 (West Supp. 2004) (voter initiative permitting physicians to prescribe Schedule I substances for medical purposes that was purportedly repealed in 1997, but the repeal was rejected by voters in 1998). In November 2004, Montana voters approved Initiative 148, adding to the number of States authorizing the use of marijuana for medical purposes.
Footnote 2
1913 Cal. Stats. ch. 324, §8a; see also Gieringer, The Origins of Cannabis Prohibition in California, Contemporary Drug Problems, 21-23 (rev. 2005).
Footnote 3
Cal. Health & Safety Code Ann. §11362.5 (West Supp. 2005). The California Legislature recently enacted additional legislation supplementing the Compassionate Use Act. §§11362.7-11362.9 (West Supp. 2005).
Footnote 4
"The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
"(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
"(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
"(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana." §11362.5(b)(1) (West Supp. 2005).
Footnote 5
"Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes." §11362.5(c) (West Supp. 2005).
Footnote 6
"Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." §11362.5(d) (West Supp. 2005).
Footnote 7
§11362.5(e) (West Supp. 2005).
Footnote 8
On remand, the District Court entered a preliminary injunction enjoining petitioners " 'from arresting or prosecuting Plaintiffs Angel McClary Raich and Diane Monson, seizing their medical cannabis, forfeiting their property, or seeking civil or administrative sanctions against them with respect to the intrastate, non-commercial cultivation, possession, use, and obtaining without charge of cannabis for personal medical purposes on the advice of a physician and in accordance with state law, and which is not used for distribution, sale, or exchange.' " Brief for Petitioners 9.
Footnote 9
See D. Musto & P. Korsmeyer, The Quest for Drug Control 60 (2002) (hereinafter Musto & Korsmeyer).
Footnote 10
H. R. Rep. No. 91-1444, pt. 2, p. 22 (1970) (hereinafter H. R. Rep.); 26 Congressional Quarterly Almanac 531 (1970) (hereinafter Almanac); Musto & Korsmeyer 56-57.
Footnote 11
Pure Food and Drug Act of 1906, ch. 3915, 34 Stat. 768, repealed by Act of June 25, 1938, ch. 675, §902(a), 52 Stat. 1059.
Footnote 12
See United States v. Doremus, 249 U. S. 86 (1919); Leary v. United States, 395 U. S. 6, 14-16 (1969).
Footnote 13
See Doremus, 249 U. S., at 90-93.
Footnote 14
R. Bonnie & C. Whitebread, The Marijuana Conviction 154-174 (1999); L. Grinspoon & J. Bakalar, Marihuana, the Forbidden Medicine 7-8 (rev. ed. 1997) (hereinafter Grinspoon & Bakalar). Although this was the Federal Government's first attempt to regulate the marijuana trade, by this time all States had in place some form of legislation regulating the sale, use, or possession of marijuana. R. Isralowitz, Drug Use, Policy, and Management 134 (2d ed. 2002).
Footnote 15
Leary, 395 U. S., at 14-16.
Footnote 16
Grinspoon & Bakalar 8.
Footnote 17
Leary, 395 U. S., at 16-18.
Footnote 18
Musto & Korsmeyer 32-35; 26 Almanac 533. In 1973, the Bureau of Narcotics and Dangerous Drugs became the Drug Enforcement Administration (DEA). See Reorg. Plan No. 2 of 1973, §1, 28 CFR §0.100 (1973).
Footnote 19
The Comprehensive Drug Abuse Prevention and Control Act of 1970 consists of three titles. Title I relates to the prevention and treatment of narcotic addicts through HEW (now the Department of Health and Human Services). 84 Stat. 1238. Title II, as discussed in more detail above, addresses drug control and enforcement as administered by the Attorney General and the DEA. Id., at 1242. Title III concerns the import and export of controlled substances. Id., at 1285.
Footnote 20
In particular, Congress made the following findings:
"(1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.
"(2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.
"(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because--
"(A) after manufacture, many controlled substances are transported in interstate commerce,
"(B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and
"(C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.
"(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.
"(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.
"(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic." 21 U. S. C. §§801(1)-(6).
Footnote 21
See United States v. Moore, 423 U. S. 122, 135 (1975); see also H. R. Rep., at 22.
Footnote 22
H. R. Rep., at 61 (quoting letter from Roger E. Egeberg, M. D. to Hon. Harley O. Staggers (Aug. 14, 1970)).
Footnote 23
Starting in 1972, the National Organization for the Reform of Marijuana Laws (NORML) began its campaign to reclassify marijuana. Grinspoon & Bakalar 13-17. After some fleeting success in 1988 when an Administrative Law Judge (ALJ) declared that the DEA would be acting in an "unreasonable, arbitrary, and capricious" manner if it continued to deny marijuana access to seriously ill patients, and concluded that it should be reclassified as a Schedule III substance, Grinspoon v. DEA, 828 F. 2d 881, 883-884 (CA1 1987), the campaign has proved unsuccessful. The DEA Administrator did not endorse the ALJ's findings, 54 Fed. Reg. 53767 (1989), and since that time has routinely denied petitions to reschedule the drug, most recently in 2001. 66 Fed. Reg. 20038 (2001). The Court of Appeals for the District of Columbia Circuit has reviewed the petition to reschedule marijuana on five separate occasions over the course of 30 years, ultimately upholding the Administrator's final order. See Alliance for Cannabis Therapeutics v. DEA, 15 F. 3d 1131, 1133 (1994).
Footnote 24
United States v. Lopez, 514 U. S. 549, 552-558 (1995); id., at 568-574 (Kennedy, J., concurring); id., at 604-607 (Souter, J., dissenting).
Footnote 25
See Gibbons v. Ogden, 9 Wheat. 1, 224 (1824) (opinion of Johnson, J.); Stern, That Commerce Which Concerns More States Than One, 47 Harv. L. Rev. 1335, 1337, 1340-1341 (1934); G. Gunther, Constitutional Law 127 (9th ed. 1975).
Footnote 26
See Lopez, 514 U. S., at 553-554; id., at 568-569 (Kennedy, J., concurring); see also Granholm v. Heald, 544 U. S. __, __ (2005) (slip op., at 8-9).
Footnote 27
Lopez, 317 U. S. 111, 121 (1942) ("It was not until 1887, with the enactment of the Interstate Commerce Act, that the interstate commerce power began to exert positive influence in American law and life. This first important federal resort to the commerce power was followed in 1890 by the Sherman Anti-Trust Act and, thereafter, mainly after 1903, by many others. These statutes ushered in new phases of adjudication, which required the Court to approach the interpretation of the Commerce Clause in the light of an actual exercise by Congress of its power thereunder" (footnotes omitted)).
Footnote 28
Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. App. 59, 74, 87. See also Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767, 770, 774, n. 12, and 780, n. 17 (1994) (discussing the "market value" of marijuana); id., at 790 (Rehnquist, C. J., dissenting); id., at 792 (O'Connor, J., dissenting); Whalen v. Roe, 429 U. S. 589, 591 (1977) (addressing prescription drugs "for which there is both a lawful and an unlawful market"); Turner v. United States, 396 U. S. 398, 417, n. 33 (1970) (referring to the purchase of drugs on the "retail market").
Footnote 29
To be sure, the wheat market is a lawful market that Congress sought to protect and stabilize, whereas the marijuana market is an unlawful market that Congress sought to eradicate. This difference, however, is of no constitutional import. It has long been settled that Congress' power to regulate commerce includes the power to prohibit commerce in a particular commodity. Lopez, 188 U. S. 321 (1903), the Court rejected the argument that Congress lacked [the] power to prohibit the interstate movement of lottery tickets because it had power only to regulate, not to prohibit"); see also Wickard, 317 U. S., at 128 ("The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon").
Footnote 30
See Wickard, 317 U. S., at 125 (recognizing that Wickard's activity "may not be regarded as commerce").
Footnote 31
The Executive Office of the President has estimated that in 2000 American users spent $10.5 billion on the purchase of marijuana. Office of Nat. Drug Control Policy, Marijuana Fact Sheet 5 (Feb. 2004), available at http://www.whitehousedrugpolicy.gov/publications/factsht/marijuana/index.html (all Internet materials as visited June 2, 2005, and available in Clerk of Court's case file).
Footnote 32
Moreover, as discussed in more detail above, Congress did make findings regarding the effects of intrastate drug activity on interstate commerce. See n. 20, supra. Indeed, even the Court of Appeals found that those findings "weigh[ed] in favor" of upholding the constitutionality of the CSA. 352 F. 3d 1222, 1232 (CA9 2003) (case below). The dissenters, however, would impose a new and heightened burden on Congress (unless the litigants can garner evidence sufficient to cure Congress' perceived "inadequa[cies]")--that legislation must contain detailed findings proving that each activity regulated within a comprehensive statute is essential to the statutory scheme. Post, at 13-15 (O'Connor, J., dissenting); post, at 8 (Thomas, J., dissenting). Such an exacting requirement is not only unprecedented, it is also impractical. Indeed, the principal dissent's critique of Congress for "not even" including "declarations" specific to marijuana is particularly unpersuasive given that the CSA initially identified 80 other substances subject to regulation as Schedule I drugs, not to mention those categorized in Schedules II-V. Post, at 14 (O'Connor, J., dissenting). Surely, Congress cannot be expected (and certainly should not be required) to include specific findings on each and every substance contained therein in order to satisfy the dissenters' unfounded skepticism.
Footnote 33
See n. 21, supra (citing sources that evince Congress' particular concern with the diversion of drugs from legitimate to illicit channels).
Footnote 34
The principal dissent asserts that by "[s]eizing upon our language in Lopez," post, at 5 (opinion of O'Connor, J.), i.e., giving effect to our well-established case law, Congress will now have an incentive to legislate broadly. Even putting aside the political checks that would generally curb Congress' power to enact a broad and comprehensive scheme for the purpose of targeting purely local activity, there is no suggestion that the CSA constitutes the type of "evasive" legislation the dissent fears, nor could such an argument plausibly be made.Post, at 6 (O'Connor, J., dissenting).
Footnote 35
Lopez, 514 U. S., at 560; see also id., at 573-574 (Kennedy, J., concurring) (stating that Lopez did not alter our "practical conception of commercial regulation" and that Congress may "regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy").
Footnote 36
See 16 U. S. C. §668(a) (bald and golden eagles); 18 U. S. C. §175(a) (biological weapons); §831(a) (nuclear material); §842(n)(1) (certain plastic explosives); §2342(a) (contraband cigarettes).
Footnote 37
We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I. See, e.g., Institute of Medicine, Marijuana and Medicine: Assessing the Science Base 179 (J. Joy, S. Watson, & J. Benson eds. 1999) (recognizing that "[s]cientific data indicate the potential therapeutic value of cannabinoid drugs, primarily THC [Tetrahydrocannabinol] for pain relief, control of nausea and vomiting, and appetite stimulation"); see also Conant v. Walters, 309 F. 3d 629, 640-643 (CA9 2002) (Kozinski, J., concurring) (chronicling medical studies recognizing valid medical uses for marijuana and its derivatives). But the possibility that the drug may be reclassified in the future has no relevance to the question whether Congress now has the power to regulate its production and distribution. Respondents' submission, if accepted, would place all homegrown medical substances beyond the reach of Congress' regulatory jurisdiction.
Footnote 38
That is so even if California's current controls (enacted eight years after the Compassionate Use Act was passed) are "[e]ffective," as the dissenters would have us blindly presume, post, at 15 (O'Connor, J., dissenting); post, at 6, 12 (Thomas, J., dissenting). California's decision (made 34 years after the CSA was enacted) to impose "stric[t] controls" on the "cultivation and possession of marijuana for medical purposes," post, at 6 (Thomas, J., dissenting), cannot retroactively divest Congress of its authority under the Commerce Clause. Indeed, Justice Thomas' urgings to the contrary would turn the Supremacy Clause on its head, and would resurrect limits on congressional power that have long since been rejected. See post, at 8 (Scalia, J., concurring in judgment) (quoting McCulloch v. Maryland, 4 Wheat. 316, 424 (1819)) (" 'To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution' ").
Moreover, in addition to casting aside more than a century of this Court's Commerce Clause jurisprudence, it is noteworthy that Justice Thomas' suggestion that States possess the power to dictate the extent of Congress' commerce power would have far-reaching implications beyond the facts of this case. For example, under his reasoning, Congress would be equally powerless to regulate, let alone prohibit, the intrastate possession, cultivation, and use of marijuana for recreational purposes, an activity which all States "strictly contro[l]." Indeed, his rationale seemingly would require Congress to cede its constitutional power to regulate commerce whenever a State opts to exercise its "traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens." Post, at 9-10 (dissenting opinion).
Footnote 39
California's Compassionate Use Act has since been amended, limiting the catchall category to "[a]ny other chronic or persistent medical symptom that either: ... [s]ubstantially limits the ability of the person to conduct one or more major life activities as defined" in the Americans with Disabilities Act of 1990, or "[i]f not alleviated, may cause serious harm to the patient's safety or physical or mental health." Cal. Health & Safety Code Ann. §§11362.7(h)(12)(A) to (12)(B) (West Supp. 2005).
Footnote 40
See, e.g., United States v. Moore, 423 U. S. 122 (1975); United States v. Doremus, 249 U. S. 86 (1919).
Footnote 41
The state policy allows patients to possess up to eight ounces of dried marijuana, and to cultivate up to 6 mature or 12 immature plants. Cal. Health & Safety Code Ann. §11362.77(a) (West Supp. 2005). However, the quantity limitations serve only as a floor. Based on a doctor's recommendation, a patient can possess whatever quantity is necessary to satisfy his medical needs, and cities and counties are given carte blanche to establish more generous limits. Indeed, several cities and counties have done just that. For example, patients residing in the cities of Oakland and Santa Cruz and in the counties of Sonoma and Tehama are permitted to possess up to 3 pounds of processed marijuana. Reply Brief for United States 19 (citing Proposition 215 Enforcement Guidelines). Putting that quantity in perspective, 3 pounds of marijuana yields roughly 3,000 joints or cigarettes. Executive Office of the President, Office of National Drug Control Policy, What America's Users Spend on Illegal Drugs 24 (Dec. 2001), http://www.whitehousedrugpolicy.gov/publications/pdf/american_users_spend_2002.pdf. And the street price for that amount can range anywhere from $900 to $24,000. DEA, Illegal Drug Price and Purity Report (Apr. 2003) (DEA-02058).
Footnote 42
For example, respondent Raich attests that she uses 2.5 ounces of cannabis a week. App. 82. Yet as a resident of Oakland, she is entitled to possess up to 3 pounds of processed marijuana at any given time, nearly 20 times more than she uses on a weekly basis.
Footnote 43
See, e.g., People ex rel. Lungren v. Peron, 59 Cal. App. 4th 1383, 1386-1387 (1997) (recounting how a Cannabis Buyers' Club engaged in an "indiscriminate and uncontrolled pattern of sale to thousands of persons among the general public, including persons who had not demonstrated any recommendation or approval of a physician and, in fact, some of whom were not under the care of a physician, such as undercover officers," and noting that "some persons who had purchased marijuana on respondents' premises were reselling it unlawfully on the street").
FOOTNOTES
Footnote 1
See also Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 584-585 (1985) (O'Connor, J., dissenting) (explaining that it is through the Necessary and Proper Clause that "an intrastate activity 'affecting' interstate commerce can be reached through the commerce power").
Footnote 2
Wickard v. Filburn, 317 U. S. 111 (1942), presented such a case. Because the unregulated production of wheat for personal consumption diminished demand in the regulated wheat market, the Court said, it carried with it the potential to disrupt Congress's price regulation by driving down prices in the market. Id., at 127-129. This potential disruption of Congress's interstate regulation, and not only the effect that personal consumption of wheat had on interstate commerce, justified Congress's regulation of that conduct. Id., at 128-129.
Footnote 3
The principal dissent claims that, if this is sufficient to sustain the regulation at issue in this case, then it should also have been sufficient to sustain the regulation at issue in United States v. Lopez, 514 U. S. 549 (1995). See post, at 11-12 (arguing that "we could have surmised in Lopez that guns in school zones are 'never more than an instant from the interstate market' in guns already subject to federal regulation, recast Lopez as a Necessary and Proper Clause case, and thereby upheld the Gun-Free School Zones Act"). This claim founders upon the shoals of Lopez itself, which made clear that the statute there at issue was "not an essential part of a larger regulation of economic activity." Lopez, supra, at 561 (emphasis added). On the dissent's view of things, that statement is inexplicable. Of course it is in addition difficult to imagine what intelligible scheme of regulation of the interstate market in guns could have as an appropriate means of effectuation the prohibition of guns within 1000 feet of schools (and nowhere else). The dissent points to a federal law, 18 U. S. C. §922(b)(1), barring licensed dealers from selling guns to minors, see post, at 12, but the relationship between the regulatory scheme of which §922(b)(1) is a part (requiring all dealers in firearms that have traveled in interstate commerce to be licensed, see §922(a)) and the statute at issue in Lopez approaches the nonexistent--which is doubtless why the Government did not attempt to justify the statute on the basis of that relationship.
FOOTNOTES
Footnote 1
McCulloch v. Maryland, 4 Wheat. 316, 419-421 (1819); Madison, The Bank Bill, House of Representatives (Feb. 2, 1791), in 3 The Founders' Constitution 244 (P. Kurland & R. Lerner eds. 1987) (requiring "direct" rather than "remote" means-end fit); Hamilton, Opinion on the Constitutionality of the Bank (Feb. 23, 1791), in id., at 248, 250 (requiring "obvious" means-end fit, where the end was "clearly comprehended within any of the specified powers" of Congress).
Footnote 2
McCulloch, supra, at 413-415; D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, p. 162 (1985).
Footnote 3
Because respondents do not challenge on its face the CSA's ban on marijuana, 21 U. S. C. §§841(a)(1), 844(a), our adjudication of their as-applied challenge casts no doubt on this Court's practice in United States v. Lopez,514 U. S. 549 (1995), and United States v. Morrison, 529 U. S. 598 (2000). In those cases, we held that Congress, in enacting the statutes at issue, had exceeded its Article I powers.
Footnote 4
Other States likewise prohibit diversion of marijuana for nonmedical purposes. See, e.g., Colo. Const., Art. XVIII, §14(2)(d); Nev. Rev. Stat. §§453A.300(1)(e)-(f) (2003); Ore. Rev. Stat. §§475.316(1)(c)-(d) (2003).
Footnote 5
In fact, the Anti-Federalists objected that the Necessary and Proper Clause would allow Congress, inter alia, to "constitute new Crimes, . . . and extend [its] Power as far as [it] shall think proper; so that the State Legislatures have no Security for the Powers now presumed to remain to them; or the People for their Rights." Mason, Objections to the Constitution Formed by the Convention (1787), in 2 The Complete Anti-Federalist 11, 12-13 (H. Storing ed. 1981) (emphasis added). Hamilton responded that these objections were gross "misrepresentation[s]." The Federalist No. 33, at 204. He termed the Clause "perfectly harmless," for it merely confirmed Congress' implied authority to enact laws in exercising its enumerated powers. Id., at 205; see also Lopez, 514 U. S., at 597, n. 6 (Thomas, J., concurring) (discussing Congress' limited ability to establish nationwide criminal prohibitions); Cohens v. Virginia, 6 Wheat. 264, 426-428 (1821) (finding it "clear that [C]ongress cannot punish felonies generally," except in areas over which it possesses plenary power). According to Hamilton, the Clause was needed only "to guard against cavilling refinements" by those seeking to cripple federal power. The Federalist No. 33, at 205; id., No. 44, at 303-304 (J. Madison).
Footnote 6
Remarkably, the majority goes so far as to declare this question irrelevant. It asserts that the CSA is constitutional even if California's current controls are effective, because state action can neither expand nor contract Congress' powers. Ante, at 27, n. 38. The majority's assertion is misleading. Regardless of state action, Congress has the power to regulate intrastate economic activities that substantially affect interstate commerce (on the majority's view) or activities that are necessary and proper to effectuating its commerce power (on my view). But on either approach, whether an intrastate activity falls within the scope of Congress' powers turns on factors that the majority is unwilling to confront. The majority apparently believes that even if States prevented any medical marijuana from entering the illicit drug market, and thus even if there were no need for the CSA to govern medical marijuana users, we should uphold the CSA under the Commerce Clause and the Necessary and Proper Clause. Finally, to invoke the Supremacy Clause, as the majority does, ibid., is to beg the question. The CSA displaces California's Compassionate Use Act if the CSA is constitutional as applied to respondents' conduct, but that is the very question at issue.
Footnote 7
Other dictionaries do not define the term "economic" as broadly as the majority does. See, e.g., The American Heritage Dictionary of the English Language 583 (3d ed. 1992) (defining "economic" as "[o]f or relating to the production, development, and management of material wealth, as of a country, household, or business enterprise" (emphasis added)). The majority does not explain why it selects a remarkably expansive 40-year-old definition.
Footnote 8
See, e.g., id., at 380 ("[t]he buying and selling of goods, especially on a large scale, as between cities or nations"); The Random House Dictionary of the English Language 411 (2d ed. 1987) ("an interchange of goods or commodities, esp. on a large scale between different countries ... or between different parts of the same country"); Webster's 3d 456 ("the exchange or buying and selling of commodities esp. on a large scale and involving transportation from place to place").
Links to reference article and citations:
Camp Lone Star - Massey & The Clash of Laws
Gonzales v Raich 545 US 1 (2005)
Wickard v Filburn 317 US 111 (1942)
