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Congress can not regulate guns at all

| Thursday, Feb. 14, 2013, 8:55 p.m.

Gun control has become one of the pre-eminent battles of 2013. President Obama again called for more regulation in his State of the Union address. Naming those affected by gun violence, he asserted to a cheering, standing crowd: “They deserve a vote.”

Americans are debating the effectiveness of Obama's gun-control proposals. Commentators on the left argue that automatic weapons and high-capacity magazines aren't necessary for home defense or hunting. On the right, the president's critics say limiting guns won't end violence and point out that no matter what laws Congress passes, criminals will find ways to be well armed. The proposed legislation, they contend, simply would put law-abiding citizens at a disadvantage.

Both sides are missing the larger question in this debate: Does Congress even have the right to regulate or ban guns? Where does Congress derive the power to prohibit ownership or manufacture of certain weapons or magazines?

The Second Amendment of the Constitution clearly states: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” And as James Madison wrote in Federalist Paper No. 45, “The powers delegated ... to the Federal Government are few and defined.” The Supreme Court has consistently upheld the individual's right to bear arms.

Of course, Congress has passed laws that ban guns, and many experts feel the courts have upheld the legality of some regulation and restriction of gun ownership. But the fact that the federal government has taken an action in the past does not itself answer the question about the authority for, or legitimacy of, the action.

In the landmark case District of Columbia v. Heller (2008), the Supreme Court recognized an individual right to bear arms, but also opined in dicta that certain “longstanding prohibitions” remained good law. The court specifically mentioned laws prohibiting felons or the mentally ill from carrying weapons.

Undoubtedly, the common law as received from Britain at the time of the ratification of the U.S. Constitution recognized such reasonable restrictions on the right to bear arms. But nothing in the common law of the time supports an outright ban on certain weapons possessed by sane, law-abiding citizens, as urged by Obama.

If anyone were asking, Congress and the president would likely point to the Commerce Clause as the source of constitutional authority for current gun-control proposals. But the original purpose of the Commerce Clause has little to do with today's debate over gun control.

Under the Constitution, Congress may “regulate Commerce with foreign Nations, and among the several States.” Dictionaries in use during the Founding period defined commerce as “intercourse, exchange of one thing for another, interchange of anything; trade; traffick.” Congress was given the power to make trade (i.e., trafficking) regular among the states and with foreign powers. It's hard to find anything in the record that indicates anyone ever contemplated that the Commerce Clause would encompass national laws that regulate manufacturing or ownership of guns or anything else.

Unfortunately, many lawmakers are now bent on enacting national gun-control laws, and too many of their opponents are debating the merits of these laws when they should be questioning their constitutionality. They will continue to do so unless the American public asks them the fundamental questions about the source of their authority and demand a reasoned response.

William J. Watkins is a research fellow with The Independent Institute and author of “Reclaiming the American Revolution.”

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