Of Arms and the Law

Navigation
About Me
Contact Me
Archives
XML Feed
Home


Law Review Articles
Firearm Owner's Protection Act
Armed Citizens, Citizen Armies
2nd Amendment & Historiography
The Lecture Notes of St. George Tucker
Original Popular Understanding of the 14th Amendment
Originalism and its Tools


2nd Amendment Discussions

1982 Senate Judiciary Comm. Report
2004 Dept of Justice Report
US v. Emerson (5th Cir. 2001)

Click here to join the NRA (or renew your membership) online! Special discount: annual membership $25 (reg. $35) for a great magazine and benefits.

Recommended Websites
Ammo.com, deals on ammunition
Scopesfield: rifle scope guide
Ohioans for Concealed Carry
Clean Up ATF (heartburn for headquarters)
Concealed Carry Today
Knives Infinity, blades of all types
Buckeye Firearms Association
NFA Owners' Association
Leatherman Multi-tools And Knives
The Nuge Board
Dave Kopel
Steve Halbrook
Gunblog community
Dave Hardy
Bardwell's NFA Page
2nd Amendment Documentary
Clayton Cramer
Constitutional Classics
Law Reviews
NRA news online
Sporting Outdoors blog
Blogroll
Instapundit
Upland Feathers
Instapunk
Volokh Conspiracy
Alphecca
Gun Rights
Gun Trust Lawyer NFA blog
The Big Bore Chronicles
Good for the Country
Knife Rights.org
Geeks with Guns
Hugh Hewitt
How Appealing
Moorewatch
Moorelies
The Price of Liberty
Search
Email Subscription
Enter your email address:

Delivered by FeedBurner

 

Credits
Powered by Movable Type 6.8.8
Site Design by Sekimori

« Prof. Barnett on terror and the unorganized militia | Main | Great Kozinski opinion (non-gun) »

The herpes theory of commerce clause jurisprudence

Posted by David Hardy · 30 June 2006 12:03 PM

The Volokh Conspiracy has an interesting posting here on the "herpes theory" -- namely, if an article has EVER moved in commerce, Congress can regulate it thereafter -- like herpes, once it's got it, it has it forever.

It cites to a 10th Circuit case that essentially recognizes that the Supreme Court, in a felon in possession case many years ago, endorsed that for the Gun Control Act -- it is sufficient to prove that a felon's gun at some point had moved in commerce. (BTW, it was a terrible Burger decision, that misread the statute in several ways. The statute, on its face, did not bar the conduct involved, but the court made it applicable -- if Congress didn't draft a law the way the Supremes felt it should have been drafted, they were going to correct that). The 10th Circuit noted that this approach to commerce couldn't be reconciled with post-Lopez rulings that say the commerce clause must be met in one of three ways, none of them including "if it has ever moved in commerce." But, the Circuit concludes, Lopez and later cases never overruled the earlier decision, and if the two groups of caselaw are to be reconciled, that's a job for the Supreme Court.

UPDATE: link fixed.

· Commerce Clause

1 Comment | Leave a comment

Stan | June 30, 2006 9:45 PM | Reply

I think the link needs to be corrected, it goes to NRO.

Leave a comment