The election and the meltdown Part 2 Led by Jon Roland Austin, Texas 2008 December 18

Bill of Rights Day December 15 The Bill of Rights were the first ten amendments to the U.S. Constitution introduced to avoid broad construction of delegated powers that might infringe them. But if they were to be bars against broad construction of powers, then how does one get to the position in DC v. Heller that one of the rights, the right to keep and bear arms, was subject to “reasonable regulation”, stated in the dicta written by Justice Scalia?

Courts have allowed as constitutional the exercise of powers that have only an incidental impact on the exercise of a right, saying it does not impose an “undue burden” on the exercise. For example, a 5% sales tax on newspapers is not deemed an undue burden on the First Amendment right of free press if it is also imposed on almost all other commercial items, but would be if the rate were higher on newspapers or newsprint than on other things, or even more if it were selectively applied to a few disfavored newspapers.

The door was opened to the direct regulation of rights by the comment of Justice Oliver Wendell Holmes, jr., that one could be prosecuted for falsely yelling fire in a crowded auditorium. -- Schenck v. United States, 249 U.S. 47, 52 (1919). Strictly speaking, the act to be prosecuted is not speech per se, but “inciting a riot” that only happened to be achieved by speech, but that was enough for lawyers anxious to push the door wider.

This has led to: Pornography statutes (U.S. and state) Mail fraud statutes (U.S.) Wire fraud statutes (U.S.) “Commercial speech” regulation (U.S. and state) Campaign finance statutes (U.S. and state) “Hate speech” statutes (state) Flag burning statutes (state) Criminal libel statutes (Colorado)

And for the Second Amendment: Statute making it illegal to possess an untaxed weapon, imposing a tax on it, and refusing to accept payment of the tax. Ban on post-1986 full-auto firearms. Findings of some weapons to be “destructive devices”, prohibited without registration, then making it difficult or impossible to register them. Statutes banning possession by “felons”, drug users, mentally unbalanced, or those under restraining order.

DC Council now demands: Handguns be re-registered every 3 years. Training by “certified” firearms instructor. Keeping firearms away from children. No magazines holding more than 10 rounds. No carrying outside home.

Texas requires No open carry of handguns. No concealed carry without permit. Passing training course to get permit. But it permits unlicensed carrying in vehicle, long guns.

Doctrine of “strict scrutiny” requires that there must be an overwhelming public interest to be served to infringe on a constitutional right. But this mainly applies to the exercise of powers by states, because the U.S. government is not supposed to have general police powers to legislate for the health, safety, morals, and order of the public.

What steps were taken to get us to this point, that may have to be reversed to take us back to original understanding? On the Constitution Society website we have a spreadsheet of landmark U.S. Supreme Court decisions that traces the way we have wandered away from the Constitution like a drunken sailor. Here are some of those cases:

Goes back to 1819

Next was in 1824

This one led to the 14 th Amendment

Subversion of jury rights begins here

This led to the present financial crisis

This opened door to not applying all of the Bill of Rights to the states

This opened door to broad penal powers

First to exploit Slaughterhouse to refuse to apply right to a state

Major erosion of jury rights

Abuse of Commerce Clause begins here

This opened way to abuse of taxing power

Expansion of definition of “commerce”

Solidified precedent begun with Reid

Further expanded definition of “commerce”

Extended “commerce” to what “influences” it

Further expansion of “commerce”

Limited access to those with “standing”

Federal “police powers” start here

Opened door to regulating speech

First major step away from hard money

Long step toward present meltdown

Misconstruction of “Welfare Clause”

Another long step

“Commerce” further extended

Major step to expand federal powers

This was the clincher