Debate on gun control should ask whether Congress has power to regulate
President Obama called for more gun control in his State of the Union address last night. The effectiveness of his proposals have been the subject of heated debate. But both sides are missing the larger question: Does Congress even have the right to regulate or ban guns?
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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.Skip to next paragraph
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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.]