Outside Federal Jurisdiction

Government Control

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

We’re seeing more and more of this:

With gun rights coming under fire across the border in New York State, the Susquehanna County commissioners spoke out by resolution Wednesday in favor of the Second Amendment.

Republican Commissioner Michael Giangrieco said the issues in New York prompted him to address the matter on a county level.

He proposed a resolution stating that “any federal act, bill, law, rule or executive order that in any way infringes on our Second Amendment rights by attempting to reduce the private ownership of any firearm, magazine or ammunition shall be unenforceable in Susquehanna County.”

So, it occurred to me, “Can the federal government regulate guns at all?  And if so, how does it derive that power?”

I couldn’t find anything that expressly authorized the federal government to regulate guns but had a sneaking suspicion I would find the authority somewhere else.  And then I found this:

Congress derives its power to regulate firearms in the Commerce Clause, in Article I, Section 8, Clause 3, of the U.S. Constitution. Under the Commerce Clause, Congress may regulate commercial activity between the states and commerce with foreign countries. In reviewing federal legislation enacted pursuant to the Commerce Clause, the U.S. Supreme Court has given Congress tremendous leeway. Congress may enact criminal statutes regarding firearms if the activity at issue relates to interstate transactions, affects interstate commerce, or is such that control is necessary and proper to carry out the intent of the Commerce Clause.

Ahh yes, the Commerce Clause.  The Clause that effectively ended state’s rights and allowed the federal government massive power over those states.  In fact, the landmark case establishing such leeway seems to make Montana’s effort to try and skirt federal gun regulations by manufacturing and selling guns within the state outside federal control.  Remember, that case found that a farmer didn’t have the right to grow and use wheat on his own farm as he saw fit.

My feel is that it was never meant that the federal government could regulate firearms in general, that it be left to the states.  But that the states and local governments COULD regulate those weapons as THEY saw fit.

22 responses to “Outside Federal Jurisdiction

  1. The fact that the arguments are always made under the commerce clause isn’t because the Constitution provides no other justification, it’s because the commerce clause is a conveniently powerful tool that has been expanded greatly. The fact that you don’t like the commerce clause jurisprudence (and I don’t either, for the record), doesn’t mean there’s no other basis.

    A lot of it depends on how you read the second amendment. The amendment itself discusses a “well regulated militia”. No other right is ever granted with a preamble explaining why it was necessary, and I have a hard time believing it is irrelevant to the analysis. Who regulates that militia? If you read the Federalist Papers, it’s clearly the federal government, so I think regulating the weapons that they are entitled to would also be with the federal government.

    That’s not convincing? How about this part of Article I:
    “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;” Moreover, Congress clearly passes laws regulating land and naval forces.

    You can read the second amendment to grant an individual right to own a gun regardless of whether you’re in a militia (and, in fact, courts have done so), but I have a hard time justifying that in the face of the second amendment’s preamble and the well-established federal authority of militias and their weapons.

    None of this is the way the law has developed, of course, but if we’re going to presume that the commerce clause is over-extended, I think an examination of the original text gives lots of alternative bases for gun control legislation.

    All that aside, shouldn’t we start asking ourselves whether we really ought to be bound by gun control rules put in place before the advent of machine guns and portable single-operator artillery or stinger missiles?

    • Um, Nick, back in the day, the PEOPLE were the militia. The 2nd amendment was specifically designed to guard against what the founders were dealing with….a tyrannical government.

      Pino, I should like to reblog this at the RNL. We could go on ad nauseum about the commerce clause….

      • I should like to reblog this at the RNL. We could go on ad nauseum about the commerce clause….

        Standing promise not to become upset at reblogging. I’m not even sure you need my permission 😉 Tell B to put THAT in his pipe and smoke it!

      • The army is also made up of the people, and it’s under federal control. Your response is worthy of an “A” if you wrote it in third grade, but ever since the revolution militias were intended to be under federal or, occasionally, state control. Look it up. Here, I’ll save you the hassle of having to even type it into google: http://en.wikipedia.org/wiki/Militia#United_States

        • Please inform the citizens under Hitler, Stalin, Mao, Castro, &c. (Nevermind; they’re dead.) The founders could foresee these implications as they lived it!

          • I see, your argument for why militias, as used in the constitution, is about government tyranny, is that the drafters could foresee a bunch of madmen who were born a hundred years or so after they died. That is brilliant. You are a credit to your political group.

            Now, go think about why your comment has nothing to do with this topic, or my point, or anything at all.

            Pino, still think she has a point?

          • Pino, still think she has a point?

            I do, if not in specific.

            In the years prior to the Revolutionary War, the British, in response to the colonists’ unhappiness over increasingly direct control and taxation of the colonies, imposed a powder embargo on the colonies in an attempt to lessen the ability of the colonists to resist British encroachments into what the colonies regarded as local matters. Two direct attempts to disarm the colonial militias fanned what had been a smoldering resentment of British interference into the fires of war.[24]

            These two incidents were the attempt to confiscate the cannon of the Concord and Lexington militias, leading to the Battles of Lexington and Concord of April 19, 1775, and the attempt, on April 20, to confiscate militia powder stores in the armory of Williamsburg, Virginia, which led to the Gunpowder Incident and a face off between Patrick Henry and hundreds of militia members on one side and the Royal Governor of Virginia, Lord Dunmore, and British seamen on the other. The Gunpowder Incident was eventually settled by paying the colonists for the powder.[24]

            Minutemen were members of teams of select men from the American colonial militia during the American Revolutionary War who vowed to be ready for battle against the British within one minute of receiving notice[citation needed]. On the night of April 18/April 19, 1775, minuteman Paul Revere, William Dawes, and Dr. Samuel Prescott spread the news that “the Regulars are coming out!”[25] Paul Revere was captured before completing his mission when the British marched towards the armory in Lexington and Concord to seize the Massachusetts militia’s gunpowder magazine which had been hidden there. Only Dr. Prescott was able to complete the journey to Concord.[26] The right to a militia was thus an issue in America from the very beginning.

            In the spirit of fair play: http://en.wikipedia.org/wiki/Gun_politics_in_the_United_States

            Jefferson is said to have been against a [standing] Navy because an ordinary citizen could not be expected to combat it.

            Clearly we were focused on the tyranny of the state.

          • Pino: I apparently have pushed WordPress past its reply limit, so apologies if this ends up in the wrong spot. Two points:

            1) the founders opposed a standing army because the citizens could not rebel against one effectively. By the time an army was created it was too late.

            2) Jefferson was actually a huge fan of the standing navy precisely because it couldn’t be used to suppress people the way an army can:

            “Every rational citizen must wish to see an effective instrument of coercion, and should fear to see it on any other element than the water. A naval force can never endanger our liberties, nor occasion bloodshed; a land force would do both.” –Thomas Jefferson to James Monroe, 1786

            He still thought they were expensive, and they are, but it was not a liberty based objection.

            And finally, Jefferson made it clear that militias were a congressional responsibility though they answered directly to state governments:
            “For a people who are free and who mean to remain so, a well-organized and armed militia is their best security. It is, therefore, incumbent on us at every meeting [of Congress] to revise the condition of the militia and to ask ourselves if it is prepared to repel a powerful enemy at every point of our territories exposed to invasion… Congress alone have power to produce a uniform state of preparation in this great organ of defense. The interests which they so deeply feel in their own and their country’s security will present this as among the most important objects of their deliberation.” – 1808

            This is really not a debatable point, unless someone can bring some new evidence to light that drafters of the constitution thought militias would fight a standing army of our own government.

    • No other right is ever granted with a preamble explaining why it was necessary, and I have a hard time believing it is irrelevant to the analysis.

      I agree. And I’ve argued this before against my conservative friends.

      I think the amendment is based on the fact that militia was a requirement when called AND that men had to come clothed and armed. Not that men have some right to carry weapons.

      However because the militia was meant to defend against invading armies, it was understood that the citizen be armed in a manner that would allow them to compete against invading armies.

      But, to your point, we have evolved to the point of no longer requiring militia to defend us, perhaps it IS time to allow federal regulation of firearms. But what argument is there that the feds can do this better than the states? I see none. The fact that the federal ability to regulate a militia doesn’t imply that the feds can regulate guns.

      Even in the epic “best movie for cool quotes ever” – Tombstone – Wyatt Earp outlawed guns in town. So if it’s cool for Wyatt to do it, it must be okay for Bloomberg to do it.

      Even the most strident gun supporters I know acknowledge that the citizen does not have the right to carry, as you mention, artillery pieces. So when I ask them where the line is between an AR-15 and that; they aren’t sure.

      • “But what argument is there that the feds can do this better than the states? I see none. The fact that the federal ability to regulate a militia doesn’t imply that the feds can regulate guns.”

        I think the best argument is that we want to be able to run background checks to ensure that a guy who is wanted for murder in Kentucky can’t buy a gun in California, or similar issues. It’s certainly doable without the feds, but they can do it much more efficiently while ensuring uniformity of regulation. Can you imagine the problems with state-by-state gun regulation? You could commit five different crimes just driving from your house to a great hunting lodge in Arkansas, all without loading your rifle that is secured in your trunk. I think state-by-state regulations wouldn’t be a disaster, honestly, but it’s going to lead to gun nuts buying guns in ‘bama and stockpiling illegally in their home state. Why give them easy access states that defeat the purpose of being able to ban them in your own? (And imagine how great it’ll be when someone proposes putting GPS chips in guns to make sure they dont enter interstate commerce….)

        “Even the most strident gun supporters I know acknowledge that the citizen does not have the right to carry, as you mention, artillery pieces. So when I ask them where the line is between an AR-15 and that; they aren’t sure.”

        I’ve met crazier people than you have, apparently. I met a guy once who assured me he had no qualms with his neighbor owning a bazooka, as long as the guy was American. Of course, he also told me that the police had no authority to stop you unless you got license plates, and thus he never got any. I hope he was the extreme edge of the population.

        Seriously, though, line drawing is hard, and that’s why I’m skeptical of anyone who wants to talk about it in terms of the second amendment. They will never admit that there’s a reasonable line to draw, so they want no lines at all (just like the NRA). Much better to say “Look, as a nation we have a lot of decent people who use guns responsibly, let’s just find some rules that allow them to do most of what they want while limiting the damage that the people who shouldn’t have guns can do.”

        • I think the best argument is that we want to be able to run background checks to ensure that a guy who is wanted for murder in Kentucky can’t buy a gun in California, or similar issues. It’s certainly doable without the feds, but they can do it much more efficiently while ensuring uniformity of regulation.

          Fair point.

          However, those problems can be solved without a federal mandate on what we can buy and what we can’t in terms of chassis and magazine size.

          Can you imagine the problems with state-by-state gun regulation?

          My most obvious parallel is gasoline blend requirements.

          And imagine how great it’ll be when someone proposes putting GPS chips in guns to make sure they dont enter interstate commerce…

          You don’t have to engage in literal interstate commerce. You only have to have reasonable justification that you impact interstate commerce. Remember, the farmer didn’t buy or sell his wheat across state lines, he didn’t buy or sell his wheat across county lines. He didn’t even buy or sell his wheat; he just wanted to feed it to his livestock..

          I’ve met crazier people than you have, apparently. I met a guy once who assured me he had no qualms with his neighbor owning a bazooka, as long as the guy was American. Of course, he also told me that the police had no authority to stop you unless you got license plates, and thus he never got any.

          Whoa buddy!

          Much better to say “Look, as a nation we have a lot of decent people who use guns responsibly, let’s just find some rules that allow them to do most of what they want while limiting the damage that the people who shouldn’t have guns can do.”

          I admit the questions are wrong.

          We need to be asking what we can do to remove guns from the hands of people who shouldn’t have them.

    • The 2nd amendment was specifically designed to guard against what the founders were dealing with….a tyrannical government.

      She has a point. There was/is a valid fear of a government that would go too far. Remember, the idea was that government arose from the right of people. Not the other way around.

      • There was a fear of tyrants, which is why we have frequent elections, we banned nobility, and we allowed for impeachment.

        The biggest threat to our liberty was not a lack of militia, it was allowing a standing army. That’s disallowed by the constitution and the founders were VERY concerned about it because it could easily lead to tyranny. I don’t hear any conservatives looking down that line of thought.

        If you read through the history of american militias, you’ll find that the idea of standing up to a tyrannical government is almost completely absent. Militias were national guard units, and they were almost always under federal control. I’m not making this up, go check wikipedia and other publicly available sources. Check the federalist papers. If y’all have a source that isn’t a World Net Daily editorial, I’ll check it out and reconsider.

        • The biggest threat to our liberty was not a lack of militia, it was allowing a standing army. That’s disallowed by the constitution and the founders were VERY concerned about it because it could easily lead to tyranny.

          This weakens the gun control argument.

          Standing armies being tyrannical with the solution being militias where citizens must come armed implies that these citizens be armed with competitive charges of war. Not just including artillery and missiles, but by necessity, REQUIRING that they include them.

          • No, the constitutional solution was that congress couldn’t have a standing army. “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;”

            To say that militias were the solution is to ignore the carefully thought out provision that banned them in the first place.

          • No, the constitutional solution was that congress couldn’t have a standing army. “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;”

            Why provide for both? What purpose does a militia have that an army of less than two years doesn’t?

          • Militias were for local problems or in case of sudden invasion. There is no provision saying that congress should make a two year army, they simply had to keep reauthorizing it if a war went longer.

  2. Jefferson was actually a huge fan of the standing navy precisely because it couldn’t be used to suppress people the way an army can:

    As to comments, I restrict nesting to 3; after that the text wraps so badly that it’s unreadable.

    Great conversation. I have to admit to not researching the Jefferson/Navy aspect. I was having a discussion with a young law student just a little while ago and he mentioned that fact. I found it interesting and pushed him on it a little bit but never followed up.

    Anyway, I’ve done some [little amount of] reading this morning. I can’t find the concept that he feared a standing navy as my young friend maintained. However, I didn’t get the impression that he was in favor of a standing anything; navy or army. In fact, I think he wanted to abolish both but couldn’t quite get the Federalists to agree which led to the founding of West Point.

    Anyway – great conversation and thanks for correcting me on the navy thing.

    • As a former young law student, I can tell you they are totally unreliable sources. 🙂

      I shouldn’t say he was a huge fan of standing navies, because he certainly would rather not have one at all, it was just that he didn’t see the same threats to liberty that an army would pose. Life was just so different back then, it’s hard to even conceive of the problems they faced or why they set things up the way they did.

      That’s why it terrifies me when people talk about the Constitution as some holy thing (a la Glenn Beck). It’s an amazing document, it was a huge step forward for the human race, the same way the Magna Carta was a huge step forward, and hopefully the same way we’ll make more steps forward in the future. But that doesn’t mean that the Founders were magical prophets that created a perfect governmental form that would never fail, and our duty is to make sure we preserve the union by evolving when necessary.

      Scalia, of course, isn’t quite that bad. He doesn’t argue that the Constitution was absolutely perfect, he simply argues that whatever the text meant is what we should take it as, and that our recourse is not to reinterpret the language to make it more relevant but rather to amend it when it becomes outdated. That would be fine in a world where amending the constitution were possible, but politically it was already difficult the last time we did it, and the subsequent 20 years have made it impossible (I think).

  3. ” 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. ”

    Infringe : To defeat, or invalidate, or limit .

    Pretty clear as to meaning .

    Commerce Clause : Congress has power ” To regulate commerce with foreign nations and among the several states and with the Indian tribes . ”

    What is ” Commerce ” ? What ever the government says it means, as proven by the infamous Wickard v. Filburn ruling that growing wheat for one’s own use can affect Interstate Commerce .

    What activity cannot be regulated under this clause, including Abortion, free speech, guns, marriage, or religion ? Name one that never affects interstate commerce .

    Unfortunately the Supreme Court refuses to consistently enforce clarity when telling us what the words of the Constitution actually mean .

    How about we argue the meaning of the word ” is ” . You got to love American lawyers .

    • You got to love American lawyers .

      You would prefer German lawyers? French lawyers? Or no lawyers at all? 35 of the 55 delegates to the constitutional convention were lawyers, I assume they’re okay for some reason or another…

      You just said the meaning of the second amendment is “pretty clear” because you defined a single word with no context. Why is there a preamble to it? What kind of arms may be kept? What limits may be placed on their use? Keeping refers to actually owning the weapons, bearing refers to carrying them, so the second amendment doesn’t actually protect any right to fire a weapon under your literal analysis. I guess the federal government could pass any law banning interstate hunting, then? Or the states could all pass laws making it illegal to ever fire a gun?

      Unlike the First Amendment that says Congress shall make no law blah blah blah, this amendment simply says “shall not be infringed”. Sounds like anyone who wants a gun can have one and no part of the government can stop them? I suppose I should bring a pistol with me next time I’m locked up in jail.

      The law is complicated. The Constitution is complicated. Admitting those notions is your first step towards actually being able to discuss things.

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