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
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
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. …