I agree on Stewart, but I think Lopez and Morrison are still good law. Nothing is produced or consumed by carrying a firearm in a school zone, or by raping someone. (my earlier sarcastic comment about rape being production of foetuses notwithstanding) Lopez is a really weak case, because it might be that the
only reason the GFSZA was unconstitutional was that Congress didn't specify that the gun had to have travelled in interstate commerce beforehand. Nobody's challenged the new version, have they?
Stewart, OTOH, is concerned with production of machineguns. Since production is economic in nature, and since according to the Court the Constitution allows Congress to regulate economics as long as it has a rational basis for doing so, virtually all of the NFA and FFL scheme is unassailable.
Majority Opinion said:
In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.
Someone please open the doors to the supreme court. It must stink in there.
"It's okay if Congress isn't really regulating intrastate economics, we mean intrastate commerce... no, wait, it's interstate commerce that the Constitution talks about, right? All that's important is whether Congress
thinks that it's doing something affecting economics, err, we mean commerce, yeah, commerce."
Scalia's Concurrence said:
As we implicitly acknowledged in Lopez, however, Congress’s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” 514 U.S., at 561.
The brilliant stupidity of Scalia shines through. Congress can marginalize or ban any product, and very simply: they devise an interstate commerce regulation scheme, such as the FFL scheme with firearms; then they declare that intrastate production and sale would interfere with their interstate regulation because people could simply drive the products between states subject to no controls whatsoever. That seems to be the argument with respect to drugs. The Horror! People driving products across state borders without getting licenses from the federal gestapo! Unacceptable! Production must be regulated as well to combat this possibility.
Here's Thomas's take, which I happen to agree with, on the commerce definition issue:
As I explained at length in United States v. Lopez, 514 U.S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586—589 (concurring opinion). The Clause’s text, structure, and history all indicate that, at the time of the founding, the term “ ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” Id., at 585 (Thomas, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586—587 (Thomas, J., concurring). Throughout founding-era dictionaries, Madison’s notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term “commerce” is consistently used to mean trade or exchange–not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (Thomas, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112—125 (2001). The term “commerce” commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 857—862 (2003).
Majority Opinion again - Stevens said:
One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance.
One need not have a criminal justice and law degree to understand why laws against possession of concealable items are rarely enforceable without violating federal and state constitutions, but that doesn't seem to stop Congress from passing such laws, the Court from validating them, or the executive from enforcing them.
