Title: Supreme Court vs Congress
(1) Of course the exercise of Congress's
powers is bounded by the Bill of Rights. There's no doubt that, even
within the broad, post-1940 Congressional power to regulate commerce, Congress
may not regulate in ways that violate the First, Second, Fourth, etc.
Amendments. That's not the debate. The debate is (a) over whether
the Second Amendment secures an individual right, (b) what the scope of the
right is (e.g., whether it bars registration, licensing fees, etc.), and (c) in
some measure, whether Congressional power should be cut back even independently
of the Bill of Rights constraints (though I highly doubt that it will be so cut
back in any material way).
(2) Talking about whether "reasonable regulation" of guns or
the press is permissible in the abstract isn't terribly helpful here. The
First Amendment, for instance, does allow the government to engage in reasonable
regulation of some aspects of speech or press -- the test for content-neutral
restrictions on speech that leave open ample alternative channels, for instance,
is more or less a reasonableness test, though it's called "intermediate
scrutiny." (See generally Ward v. Rock Against Racism; Kovacs v. Cooper;
etc.) It doesn't allow the government to engage in "reasonable regulation"
of the content of speech (unless the speech is within one of the First Amendment
exceptions). Likewise the Second Amendment might apply differently to
different types of burdens on gun ownership.
(3) More broadly, casual, general analogies between
constitutional rights are not, I think, going to advance the debate much
here. It helps a lot if one can talk a lot more specifically about the
particular issue involved (bans, registration, licensing, taxation, etc.), draw
analogies to some fairly specific caselaw in the field to which you're
analogizing, and explain exactly why the analogy is sound.
Eugene
Don Williams
writes:
Congress' attempt to claim an unlimited power to regulate
commerce --as
a rationale for gun control which
bypasses the Second Amendment --should be rejected by the
courts. If
this abuse is suffered , then
Congress
could later use a similar argument to destroy
the free press --e.g., by
a law requiring a publisher to
pay a
tax of $100 for every newspaper he sells.
If we accept "reasonable regulation" of guns, then we will
later have to
accept "reasonable regulation" of the
press--
e.g., the argument that the First Amendment is
satisfied by having the
news disseminated solely by
three "socially
responsible" TV networks whose product
is extensively censored by the
FCC and the Department
of Homeland
Security.
Some might dismiss my concerns by arguing that guns are
destructive and
the press is not. That argument
is absurd to anyone who has ever
visited a gun
show. If I were an insurgent, I would not buy a
registered AK-47 whose bullets cannot penetrate modern body army ,
which
would probably put me on a dozen watch lists,
and which has a very loud
noise instantly
raising an alarm and identifying my location. I would
instead buy books --e.g, the US Army's "Improvised Munitions
Handbook" ,
which explains how to make improvised
explosives , shaped charges,
thermite
,etc. Or maybe books on spy tradecraft -- covert
communications, the unbreakable one time pad encryption, lock
picking,
detection of surveillance, etc.
Timed incendiaries and anonymous sabotage of expensive
factory
equipment, fiber optic lines, oil and water
pipelines, railroads, and
the electrical grid
would be a far more effective protest --would have
far
more influence on the wealthy backers of an unconstitutional coup
--than would suicidal firefights. Just look at
Iraq. Or maybe
California.
(I'm speaking hypothetically , of course -- and I'm doing so
because I
suspect that some people who presume
to
mess with the Constitution don't get out
much.)
