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Shotgun News, August 1, 2005, pp. 26-27

Drugs, Guns, & Commerce

I suspect that many of my readers saw the recent mention of the U.S. Supreme Court's decision about California's medical marijuana law, and just turned the page. You don't smoke marijuana, and don't particularly care what decision the Court made. You actually should care--because many of the same arguments that applied to this case, and other federal statutes relating to interstate commerce, apply to guns as well.

Almost ten years ago, California voters passed an initiative called the Compassionate Use Act of 1996 that allowed "seriously ill" people to use marijuana for medicinal purposes. It wasn't a complete legalization of marijuana; quite a number of voters who would not have voted for letting kids buy and use marijuana decided that it had enough safeguards to vote for it. (That included me.)

My daughter tells me that quite a number of her junior high peers used the passage of this initiative as proof that there was nothing wrong with marijuana. Partly because of this, I've discovered that more than a few Californians who voted for this measure now realize that they made a mistake. (That includes me, again.)

As you are probably aware, there are both state laws that regulate marijuana, and there is a federal law on the same subject: the Controlled Substances Act. As a result, a number of different government agencies can arrest you for marijuana possession or sale: the local police, your state government's drug agency, or the federal government's Drug Enforcement Agency. In practice, the DEA usually doesn't prosecute a person who grows or purchases small quantities of marijuana for personal use; they have bigger fish to fry, usually traffickers. All that California's 1996 initiative did was remove the threat of prosecution under California laws--but to emphasize that the federal government was not surrendering its authority to prosecute marijuana cases, DEA prosecuted a few situations where people supplying or using medicinal marijuana were highly visible.

The question that the federal courts heard in this case was: does the federal government have the authority to prosecute people for marijuana possession under Congress's authority to regulate interstate commerce? Now, some of you smart-alecks will immediately ask the question, "Did the marijuana cross state lines?" Ignorant sorts might read Art. I, sec. 8 of the U.S. Constitution, where it grants Congress authority "To regulate Commerce with foreign Nations, and among the several States," and come to the conclusion that Congress only has authority to regulate commerce crossing national or state boundaries. Ah, but that's why you aren't a lawyer.

The U.S. Supreme Court has a long history of wrestling with the problem of what constitutes "Commerce… among the several States." In Gibbons v. Ogden (1824), they decided that commerce was more than just merchandise crossing state lines; it included a steamship company transporting passengers between New Jersey and New York.¹ This had the effect of striking down a state granted monopoly--recognized at the time as an unfair and corrupt practice.

Over the next century, the Court often struck down state laws that regulated interstate commerce--but often distinguished manufacturing from commerce. As an example, the Court upheld an Iowa law regulating the distilling of alcoholic beverages. They reasoned that if "commerce" included manufacturing that took place entirely within one state, then every form of commerce, no matter how local, would be subject to federal regulation--and only federal regulation: "The result would be that Congress would be invested, to the exclusion of the states, with the power to regulate, not only manufacture, but also agriculture, horticulture, stock-raising, domestic fisheries, mining,-in short, every branch of human industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market?"²

Sometimes businesses tried to use the "interstate commerce" argument against particular local taxes. One example: mining companies argued that because a state tax on iron ore taxed materials that were about to cross state lines, the state was regulating interstate commerce. The Supreme Court decided that because the state tax applied to all iron ore, whether leaving the state or not, that it was not regulating interstate commerce--and this was just "manufacturing," not "commerce."³

In the nineteenth century, Congress had been reluctant to regulate business. It often granted businesses absurd subsidies (for example, to encourage the railroads to expand across the U.S.), and regulated matters involving navigation, but for the most part, the governing theory was laissez-faire: leave the marketplace alone. In the twentieth century, Congress became increasingly interested in regulating business on a national scale--and there are several theories that attempt to explain why. One of the most intriguing is that presented in Gabriel Kolko's Triumph of Conservativism. Kolko, a socialist historian, unintentionally produced a spectacular defense of laissez-faire capitalism, demonstrating that most of the reason why Congress went into a frenzy of economic regulation in the Progressive Era (1900-16) was because the robber barons of the time were unable to figure out how to monopolize major industries--and so they needed the federal government's assistance.⁴

Congress knew, however, that there were limits to how far it could go in regulating interstate commerce. It knew, for example, that it could not simply prohibit the sale of a particular good. Thus, the Harrison Narcotic Act of 1906 did not prohibit interstate sales of heroin and other opiates; instead, Congress taxed them, and required you to have the appropriate tax stamp, issued by the government, to trade in these drugs.⁵

When Congress debated passage of the National Firearms Act of 1934, regulating machine guns, short-barreled shotguns and rifles, and other oddities, a member of the Ways & Means Committee questioned why the proposed law used this same tax stamp strategy, instead of a complete ban. Attorney General Cummings, who wished to have a comprehensive ban, admitted that Congress lacked the authority. "If we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question in­volved. But when you say, ‘we will tax the machine gun' and when you say that ‘the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated', you are easily within the law."⁶

Unfortunately, this sort of self-restraint did not last. President Roosevelt's New Deal attempted to bring all sorts of business activity under the federal government's control, in an honest but unsuccessful attempt at ending the Great Depression. As Roosevelt appointees to the Supreme Court became the majority, the definition of "interstate commerce" became increasingly broad. What is often considered the high point of this view was a 1942 case involving a farmer named Filburn who was growing wheat: some for sale; some to feed his livestock; some to make bread for his own consumption. Filburn was threatened with a fine for growing more wheat than the government had decided was appropriate; the federal government's marketing program tried to keep total wheat production down, in the hopes of driving wheat prices up. (If you try to work out that same cozy deal with your competitors, it is a violation of the Sherman Anti-Trust Act; see you in court.)

The Court decided that even if Filburn's wheat never crossed state lines--indeed, never even left his farm--he was engaged in interstate commerce. Home-grown and consumed wheat, at the time, appears to have been a significant part of the national wheat crop, and the Court argued that Filburn's "own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial."⁷

If you don't see how broadly this defines interstate commerce, consider the well that I just had drilled for my new house. As a result of having my own very pure water supply, I will probably reduce my purchases of Brita water filters and bottled water. To the extent that I have withdrawn my purchases from the interstate market for these goods, my decision to drill a well has affected interstate commerce. If Congress wanted to regulate my decision to drill a well in southern Idaho based on the "interstate commerce" clause, it would make just as much sense as the decision involving Filburn's wheat, grown on his own farm, ground into flour, and baked into bread for his own consumption.

In the last few years, the Supreme Court has taken a new look at this broad notion of interstate commerce. In U.S. v. Lopez (1995), the Supreme Court struck down a conviction under the Gun-Free School Zones Act of 1990 because the carrying of a gun to school did not "substantially affect" interstate commerce.⁸ Similarly, the Court struck down a federal law that allowed for civil suits for violence against women, arguing that the violent crimes in question did not "substantially affect" interstate commerce.⁹ This insistence that the Commerce clause means something is good; I've seen gun control advocates argue that the federal government has the authority to completely prohibit possession of handguns, on the theory that the metals used to make them, or the ore from which that metal was smelted, or the coal used to smelt that ore, must, at some point, have crossed state lines.

Now, back to Gonzales v. Raich, the medical marijuana case. We ended up with an interesting split: six justices agreed that the federal marijuana law applies to the defendants--because the defendants' personal growing and use of marijuana, entirely within California, affects interstate commerce. Interestingly enough, it was the five most liberal members of the Court, plus Justice Scalia, who took this position--and dashed the hopes of potheads across America.  

Justices O'Connor, Thomas, and Rehnquist wrote dissenting opinions, of which Justice Thomas's opening paragraph really captures the absurdity of this reading of the commerce clause: "Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers."

As I said at the beginning of this essay, you don't have to be interested in the question of marijuana to be concerned about this decision. The liberal wing of the Court looked at where following Lopez and Morrison would take future decisions about the commerce clause--and recognized that an astonishing amount of federal regulation would almost certainly fall, if the federal government lost this case. It would unleash a storm of suits challenging whether the federal laws prohibiting discrimination in public accommodations, protecting the environment--and many of the gun control laws--really were constitutional under the commerce clause.

Certainly, many of these laws would still be applicable. The Atlanta motel that refused to rent to blacks, and was the case that upheld the Civil Rights Act of 1964, was clearly engaged in interstate commerce. It advertised in national magazines, and three-quarters of its business was from out of state.¹⁰ There might be legitimate argument, however, about whether some much more local businesses that discriminate are actually engaged in interstate commerce. Of more interest to gun owners, what about someone who makes a machine gun from scratch, and does not sell it? Does his action "substantially affect" interstate commerce? You can see why the left wing of the Court had no choice but to uphold the federal government's authority to punish sick people growing and using marijuana for personal use.

Watch carefully how the Supreme Court handles not only your rights, but also how it handles larger issues of the limits of governmental power. It may not be your ox being gored this month, but overreaching power seldom stops with the death of one animal.