Lame. Advocacy overtakes prudence.
The 100+ law professors bolster their claim of the sweeping historical application of the Commerce Clause with examples that are so far off point that they are bewildering. They refer to the Militia Act of 1792 in order to point out that the action/inaction distinction is no part of our Commerce Clause jurisprudence:
Indeed, the Framers would be surprised by this view of Congress’s powers; they enacted an individual mandate in the Second Militia Act of 1792, which required all men eligible for militia service to outfit themselves with a military style firearm, ammunition, and other equipment, even if such items had to be purchased in the marketplace.
Given their obsession with the Commerce Clause, these overeager professors never bothered to inform their readers that the Militia Act of 1792 was enacted pursuant to Congress’s powers under the militia clauses of Article I, authorizing it:
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.
via Justice Kennedy’s Million Dollar Question | Hoover Institution.