Debate on gun control should ask whether Congress has power to regulate

Gun control has become one of the preeminent battles of 2013. During a press conference last month, in which he was surrounded by children, President Obama urged Congress to ban “assault” (semiautomatic) weapons, limit magazines to 10 bullets, and introduce universal background checks for all firearm buyers. And last night, Mr. Obama again called for this 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."

Across the country, Americans are debating the effectiveness of Obama's gun-control proposals. Commentators on the left argue that semiautomatic 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 still 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? It seems that many gun-rights advocates and opponents have forgotten their basic civics in assuming that Congress can act as long as 51 percent of the members agree.

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.” Those essays were written to promote ratification of the Constitution and assure states of its limits on federal power.

Madison further explained that these powers would “be exercised principally on external objects such as war, peace, negotiation, and foreign commerce.” The states, he assured his readers, retained “numerous and indefinite” powers extending to “the lives, liberties, and properties of the people,” including “internal order.” The Supreme Court has consistently upheld the individual’s right to bear arms over several decades and court cases.

Such history lessons are usually dismissed by modern politicians.

Of course, Congress has passed laws that ban guns in the past, and many experts feel the courts have upheld the legality of some regulation and restriction of gun ownership. The 1994 “assault weapon ban,” which expired in 2004, is a prime example. 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 1942, more than 100,000 Japanese Americans were placed in internment camps. Few would argue that this was constitutional or sets a valid precedent for a similar measure today.

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” and regulations remained good law. The Court specifically mentioned laws prohibiting felons or the mentally ill from carrying weapons.

The Heller majority, however, failed to explain the fount of federal authority for these prohibitions. Undoubtedly, the common law as received from Britain at the time of the ratification of the US Constitution recognized and permitted such reasonable restrictions on the right to bear arms. Such a historical understanding could support some modern circumscribing of the right to bear arms as constitutionally valid.

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 the current gun-control proposals. But the original purpose of the Commerce Clause is far removed from the sale and purchase of guns – and 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.”

From the ratification debates on the Constitution, we further glean that the Founders wanted the states to be united in the face of European protectionism. Britain, France, and other countries placed many restrictions on American trade, depriving the newly independent United States of America of lucrative markets. Because Congress did not have a commerce power under the Articles of Confederation, it could not effectively negotiate trade pacts or retaliate when European countries restricted American trade.

Moreover, states without deep-water ports were forced to import through states that had such ports. New York, for instance, placed high duties on items that consumers elsewhere ultimately would be forced to pay. This caused tension between the states. The Framers believed that a uniform system of commercial regulation would create a national free trade zone and remove the ability for certain states to exploit their neighbors. 

With the Commerce Clause, 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.

How the commerce power has been transformed is a long story. But in essence, Congress now claims the power to regulate any matter that affects the national economy. Such a reading of the Commerce Clause swallows up the Framers’ careful enumeration of powers, making the federal government omnipotent.

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, Jr. is a research fellow with The Independent Institute and author of the book, “Reclaiming the American Revolution.”

[Editor's Note: The original version of this piece misidentified the kind of firearm covered in the 1994 "assault weapons ban" and in current proposals to reinstate it.]