Roberts on the Interstate Commerce Power:

The David Hardy analysis of Judge Robert’s answers on the Second Amendment, which Eugene noted, do bode well for Roberts’ attitude towards individual rights. However, his answers on the interstate commerce power, which for right to arms advocates is a very important secondary issue (comparable in importance to the Fourth Amendment, in terms of its practical effect on Second Amendment rights) are very disappointing. On Wednesday he characterized Lopez as merely requiring that Congress attach some jurisdictional hook, in order to prohibit the entirely local possession of an object which decades ago might have been sold in Interstate Commerce. This might be called “the herpes theory” of Interstate Commerce; once something crosses state lines, it remains forever after an object of Interstate Commerce. I agree with the federal district judge who wrote:

To say . . . that because something once traveled interstate it remains in interstate commerce after coming to rest in a given state, is sheer sophistry. This Court, at one time, owned a 1932 Ford which was manufactured in Detroit in the year 1931 and transported to the state of Tennessee. It remained in Tennessee thereafter. Now if this car were hijacked today, some sixty years later, is it still in interstate commerce?

United States v. Cortner, 834 F. Supp. 242, 243 (M.D. Tenn. 1993), rev’d sub nom. United States v. Osteen, 30 F.3d 135 (6th Cir. 1994).

Today, Judge Roberts assured Senator Schumer that Congress has the power under the Interstate Commerce clause to ban the intra-state cloning of a toad. Glenn Reynolds and I argue to the contrary, and suggest that such a view destroys Lopez and Morrison. Compared to Justice Rehnquist, Justice Roberts appear to have similar views on the Second Amendment (good), on the Fourth Amendment (bad), and to be a step backwards on Interstate Commerce. Given that the Rehnquist Court’s timid steps towards restoring the Interstate Commerce to its textual limits (rather than allowing it to be a power to regulate everything) were only decided by 5-4 votes, the replacement of Rehnquist with Roberts may end any efforts to change Congress’s anti-constitutional presumption that it possess limitless powers over every activity in the United States.