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Politics : PRESIDENT GEORGE W. BUSH
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To: DuckTapeSunroof who wrote (659157)11/11/2004 3:31:09 PM
From: Wayners  Read Replies (1) of 769670
 
Here is my analysis based on SCOTUS own recent opinions. This is how this court and all courts are suppossed to be determining whether there is a nexus to interstate commerce. I don't see how Raich and Stewart cannot prevail given this. Where is the wiggle room for the Supreme Court. Now people will lament you can't legalize drugs and machine guns! After they knee jerkers regain their composure they should realize that State laws can be passed re-banning them in a week, legally, if they so desire.

The first test is whether the act of possession is economic in nature. SCOTUS said that the act of possession of anything is not economic in nature, unless it can be proven there is an intent to sell or transfer the item. Possession alone does not prove this. 922(o) would have to say its illegal to possess with the intent to sell or transfer. 922(o) does not say this.

SCOTUS said a further proof of whether or not possession is economic in nature is whether the possession has been defined as a criminal act, as 922(q) and 922(o) are. If its listed as a criminal act, that's further evidence that the possession is not an economic, trade or commerce related statute.
SCOTUS said that if there is possession without an intent to sell or transfer, they would still sustain a nexus to interstate commerce, "where economic activity substantially affects interstate commerce". How is this measured?

1. If 922(o) or 922(q) has/had an economic purpose which could have been evidenced by legislative findings established in Congressional Hearings or a jurisdictional anchor or hook, whereby Congress spells out what the Commerce Link is, that may not be obvious to see.

2. Is the link between possession's effect on commerce attenuated? Its attenuated if there is no evidence of a sale or transfer. No evidence of a sale or transfer is a proof that the activity is NOT economic in nature. The statute is a criminal statute. A criminal statute shows possession's effect on commerce is attenuated.

3. Does the statute exceed Congress's enumerated Powers? The Supreme Court said flat out that even if possession leads to violent crime and there were costs of crime or costs to national productivity from that violent crime that this still does not give Congress the power to regulate possession because any activity leading to crime could then be regulated by Congress. Congress has specific enumerated powers, not unlimited powers.
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