Debate on Gun Control Should Ask Whether Congress Has Power to Regulate

Article excerpt

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 (automatic) 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 automatic weapons and high-capacity magazines arent necessary for home defense or hunting. On the right, the presidents critics say limiting guns wont 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 individuals 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. …