David Hardy wrote: > > Some stuff Congress just had no power to > do, so no need to ask whether the BoR took the power away. Some have > pointed out that the very expansive view of federal power puts > pressure on the BoR which it was never meant to hold. For a > government of limited powers, 8-10 amendments were enough. Look at > the BoRs of most states, created with the assumption they would have > general powers, and you'll see far more guarantees with lots more > detail.
Stewart can be cited in support of the proposition that under the Constitution a Second Amendment prohibition on federal criminalization of gun ownership should be seen as unremarkable and entirely akin to the repudiation of implied powers to criminalize speech, seize property without due process, or quarter troops in homes. I think David and I are really more or less in accord. It is true that Wickham and progeny indicate that Congress, via the commerce power, can limit the scope of the amendment, and Stewart does next to nothing to change that. But Stewart does support the originalist and structuralist arguments that the amendment protected an existing right (gun ownership) from a non-existent federal power. This is even more visible from the opposite perspective: the anti-individualist argument that Madison and the rest of Congress never intended to renounce federal power to criminalize gun possession. I've seen cited in support of this proposition the disarming of Pennsylvanians during the Whiskey Rebellion, "proof" that the Constitution contemplated federal gun-banning and the Second Amendment did not prohibit same. Now that the 9th Cir. has decided that the Constitution does not contemplate a federal power to criminalize gun ownership, what of the argument that Madison et. al intended to retain a federal power to criminalize gun ownership? Stewart is in conflict with the implied-power aspect of the anti-individual model. I'm not hidebound by originalism. But the Second Amendment is interpretively almost a blank slate: given the dispute over Miller, it must be said that the courts haven't established to whom the amendment applies, let alone its scope. It has never been applied by the federal courts to any party at all; not individuals, nor state legislatures, nor state militia. I think Stewart confirms the structuralist inference, if not the originalist argument, that Congress was never delegated the power to criminalize gun ownership, and that this militates in favor of the Standard Model. Norman Heath _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof
