Gun control supporters - Local gun control

[Emsworth]

I'm tired of people misreading the Second Amendment.  The Amendment refers to allowing people to own guns to protect the nation since the first citizens of the new nation were to form a militia in the case of war.

The first part of the sentence (which expresses the rationale) does not affect the second part of the sentence (which actually guarantees the right). The Second Amendment states, in absolute terms, "the right of the people to keep and bear Arms, shall not be infringed." The "right" in this case is not a collective right of militias, but the individual right of each person.

That said, federal gun control laws are unconstitutional simply for the reason that the Constitution does not enumerate the power to make them. When arguing about federal assault weapons bans, we need not trouble ourselves with the meaning of the Second Amendment; the case that there is no enumerated power is, I think, a much easier one to make.

[Emsworth]

Just because the Constitution does not mention a particular power or ability for the government doesn't mean the government cannot take action without being Constitutional.

That line of reasoning completely ignores the Tenth Amendment.

[Emsworth]

So, long story short, the Second Amendment pertains only to the militia, and not the general public, and therefore the blanket statement that all citizens have the right to own weapons without limitations is false.

If any government can decide what weapons people may or may not own (itself a doubtful proposition), then it is the government of the states. The federal government certainly has no authority.

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8.

These clauses only allow Congress to regulate the militia. Nothing here indicates that Congress may regulate the bearing of arms by the people in general (those who are not members of the militia).

[Emsworth]

And nothing in the Constitution says they cannot either...

As I said, Congress cannot pass a law unless it is actually authorized by the Constitution. To state that Congress may pass any law it pleases, unless there is a specific clause prohibiting that specific action, would ignore all constitutional jurisprudence whatsoever and completely disregard the federal system on which this nation is founded. The federal government only has those powers actually delegated to it, and none other.

[Emsworth]

So, for the last 150+ years, most of the stuff crossing the Congresses plate has been unconstitutional?

Yes.

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Just because the Supreme Court has not taken action, or has taken the wrong action, it does not follow that what the government has been doing is unconstitutional. For nearly a century after the ratification of the Fourteenth Amendment, the Supreme Court took no action against segregation. Does that mean that segregation was constitutional?

Which clause authorizes the passage of federal gun laws?

[Emsworth]

I'm not going to repeat the fact that the there is not a specific line in the Constitution that authorizes federal gun legislation, just like there is not a line that bars the same legislation. 

Unless there is some part of the Constitution that authorizes it, a federal law is unconstitutional. The argument that the federal government may do anything unless specifically prohibited is contrary to the original Constitution, and even more so to the Tenth Amendment.

A18 is correct.

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Of course, the federal government can build nuclear weapons; this is a part of the power to support armies.

[Emsworth]

Close, but not quite.  "Unconstitutional" means it is in direct contradiction what is listed in the Constitution.  Aconstitutional (for the lack of a better term) powers are reserved by the Congress under various grounds, including the general welfare and comerce clauses.

The distinction you make between "unconstitutional" and "aconstitutional" legislation is arbitrary and capricious. A legal provision is either constitutional, or it is not constitutional; there is no middle ground.

The powers of Congress (and I mean true powers, not those that the Supreme Court has invented) under the commerce clause are not "aconstitutional." They are just as valid as any other enumerated powers. 

Furthermore, to argue that Congress is not restrained by the enumeration of certain powers ignores almost all constitutional jurisprudence whatsoever, not to mention the explicit text of the Tenth Amendment.

[Emsworth]

It's the easiest way to show that Congress does have the right to pass laws that are not specifically layed out in the Constitution, like the right to pass federal gun legislation (which is what triggered the recent debate).

In order for a federal law to be constitutional, it must be made in pursuance of one or more enumerated powers. You have not yet indicated which enumerated power Congress is exercising when making gun laws. On the contrary, you seem to have argued that the enumeration of a power is entirely unnecessary in order for a law to be constitutional.

[Emsworth]

The general welfare clause is a spending power. It is not a generic lawmaking power.

Embracing Madison's interpretation (rather than Hamilton's), I would go even further: the term "general welfare" is only a convenient means of referring to all the other enumerated powers, and does not confer any independent spending authority.

Moreover, the debt, common defense, and general welfare clauses are not powers at all, but rather restrictions--limitations on the power to tax.

[Emsworth]

It is a spending power, but it is also design to defend the general public.

If it is a power in the first place, then, at most, the general welfare clause is a spending power. Congress cannot make any particular action illegal under the general welfare clause.

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That is a very strained interpretation of the terms "commerce ... among the states." Interstate commerce does not exist when there is no transportation across state lines. If a citizen of a particular state purchases a gun from a manufacturer in the same state, then his action is not subject to federal regulation, no matter what the situation is in any other state.

As John Marshall held in Gibbons v. Ogden, the commerce clause does not extend to "commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State."