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'Interstate commerce" and the Gun Control Act
There are a number of court decisions that basically extend GCA 68 to the outermost constitutional limits of the commerce power, to the point where you begin to wonder whether the Court regards Congressional action as irrelevant to the statute. E.g., the Supreme Court held in one case that the ban on felons possessing "in" commerce or receiving a gun that had ever travelled in commerce extended to a defendant who had *received* before he became a felon (thus no violation) and thereafter possessed, but not in commerce (no violation). It simply said that Congress had meant to extend its powers to the limit of the Commerce Clause... presumably since Congress COULD have written it possessed a gun that has ever travelled in commerce, that conduct was illegal, even though Congress didn't write the statute that way.
I've had two thoughts on this.
1. Congress did *not* try to write to the outer edges of the commerce power. Not only are there the limited uses of the power above, there's also a definition of interstate commerce in GCA itself. 18 USC 921(a)(2) provides that commerce "includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State." The exclusion of commerce that only coincidentally passes through another state is not found in the general definition of commerce for most Title 18, i.e., 18 USC 10. And it's hardly required by caselaw.
2. Since the commerce nexus is an element of the crime, it must be decided by the jury. If you give jury instructions based directly on the statute, a person in the situation of Dr. Emerson (not a prohibited person when gun was received, became one later while in possession) wins if the jury follows the statute. So what does a court do? Add a jury instruction that amounts to "OK, you've heard the statute. You are instructed that the Supreme Court has said the statute doesn't mean that, but rather means ... " whatever. That would not only be rather awkward, but comes rather close to a directed verdict for the prosecution.
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NOTE: The spelling of "Defence" is originally used in the Preamble to the U.S. Constitution to rhetorically distinguish it from the present day spelling of "Defense" to imply two separate methods of defense.
COMMENT: From a layman's point of view (a merchant seaman) why legislate through the Commerce Clause at all? Instead of legislating more malum prohibitum crimes through the Commerce Clause why can't or why won't Congress legislatively reinforce rights an dutis through the Common Defence clause of the Preamble to the U.S. Constitution and through the Ninth and Tenth Amendments in regards to the Second Amendment?
Why hasn't the Department of Homeland Security acted on the Second Amendment rights of the People as part of the "Common Defence?
LAW: 46 U.S.C. 2103. SUPERINTENDENCE OF THE MERCHANT MARINE:
The Secretary [Homeland Security] has general superintendence over the merchant marine of the United States and of merchant marine personnel insofar as the enforcement of this subtitle is concerned and insofar as those vessels and personnel are not subject, under other law, to the supervision of another official of the United States Government. In the interests of marine safety and seamen’s welfare, the Secretary shall enforce this subtitle and shall carry out correctly and uniformly administer this subtitle. The Secretary may prescribe regulations to carry out the provisions of this subtitle.
FACT: The U.S Government requires small arms training for merchant seamen as a prerequisite for employment aboard U.S. Government vessels.
COMMENTARY: Why compel American civilian seafarers to take up arms in defense of U.S. Government vessels but deny them the right and duty to possess firearms in intrastate and interstate travel.
This is a similar situation with the U.S. Department of Justice when they internally released their Memorandum Opinion on the Second Amendment on August 24, 2004 concluding the it is an individual right regardless of membership in any militia but didn't release it publicly until mid-December so as to not impact the November 2004 presidential election. Their was another reason that I allege why the Justice Department delayed their release of that Memorandum Opinion. My Second Amendment case employing the RICO Act alleging that the U.S. Government is racketeering an unlawful and an unconstitutional protection scheme over the Second Amendment. The Justice Department's Memorandum Opinion would have been vital evidence vendicating my Second Amendment case.
My Motion is a winner for Second Amendment freedoms, rights, and duties if the federal courts weren't so corrupt!
One more bit of evidence supporting my admitedly cynical belief that both Congress and the courts operate on the implicit assumption that the Interstate Commerce Clause doesn't apply to inanimate objects, but to people. Since people are free to travel from one state to another (regardless of whether they actualy do so, and of course subject to the edicts of the TSA), anything they might do is subject to federal regulation.
Just posted an expansive item tangiently related to the GCA on the double standard of "civilian military activity" and how weekend paintball hide & shoot games, Xbox army war games, Internet team-played combat video games, and other what-not activities are, in the strict legal interpretation, criminal activities subject registration of all such "teams" with the U.S. Department of Justice.
American Common Defence Review
http://americancommondefencereview.blogspot.com/
"You are instructed that the Supreme Court has said the statute doesn't mean that, but rather means ... " whatever."
One would hope the jury knows its rights, also.
"The jury has the right to judge both the law and the facts."
Samuel Chase, Supreme Court Justice and signer of the Declaration of Independence
"A legislative act contrary to the Constitution is not law." Justice John Marshall