Today in Supreme Court History: December 3, 1996

12/3/1996: Printz v. U.S. argued.

Comments

[Syd Henderson]

It's always nice when the Justices remember that there is a Tenth Amendment.

[JoeFromtheBronx]

Yes, the opinion was based on the penumbra and emanations of the Tenth Amendment, where a regulation of interstate commerce was overturned due to an implicit rule against commandeering.

Scalia acknowledges that there is "no constitutional text speaking to this precise question" so he relies on "historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court."

Which the dissents challenge.

On the specific issue, the Second Amendment might be the best argument. The amendment is specifically about state control over militia, and the law arguably exceeds congressional power in that respect.

[Syd Henderson]

It would also be nice if the militia clause is mentioned in the decision.

[JoeFromtheBronx]

Note: I used "penumbra and emanations" somewhat tongue in cheek but don't begrudge the rightful usage of that concept.

[Aubrey LaVentana]

why use 'penumbra and emanation' when incident and ancillary powers will do?

[JoeFromtheBronx]

Bloomberg has a new documentary focused on a certain oral argument. "Supreme Advocacy: What It Takes to Argue at the Supreme Court."

https://news.bloomberglaw.com/us-law-week/supreme-advocacy-film-1

[wvattorney13]

I've always liked this case. The problem that it presents is that we are looking for original intent where there is none. The founders never considered this question because the federal government was supposed to be very small and limited and not at all involved in the internal affairs of the states.

The Court is trying to take that backdrop and determine how a federal regulation on every commercial firearms transaction can be enforced. The two don't mesh.