Congress can not regulate guns at all
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.”
Show commenting policy
TribLive commenting policy
You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.
We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.
While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.
We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers.
We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.
We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.
We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.
We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.
- Penguins trade for Toronto’s Kessel; lose Martin, Comeau via free agency
- Donora-Webster Bridge plunges into Mon River after 106 years
- Judge revokes bail for Plum High School teacher
- Pirates grind out extra-inning win against testy Tigers
- Shopping season starts up for Penguins amid onset of free agency
- Obama: U.S. embassy in Havana marks ‘new chapter’ in Cuba ties
- In historic vote, Legislature approves bill selling state liquor stores
- 1 killed, 4 hurt as police chase ends in Oakland crash
- ‘We are’ chant now a permanent fixture on Penn State campus
- Union to work while ATI talks continue
- Police identify Harmar man as victim in Washington Township crash