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The Constitution And Federal Gun Laws

by Perry Thompson

January 20, 2001

After reading the article entitled The 10th Amendment Causes all Federal Firearm Legislation & all Federal Firearm Law Enforcement to be Unconstitutional”, by Richard Wesson, I have several comments.

First, the reliance upon the Fourth and Fifth Amendments to the Constitution are inappropriate in this context.  The Bill of Rights exists to limit the powers of the federal government.  There is nothing in any of these Amendments that would suggest that they apply in any way to the actions of any of the People, except in that they list those actions from which the People may not be prohibited to engage.  This fact is clearly demonstrated by the preamble to the Bill of Rights, which states,

The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.

If the States were concerned about the actions of individuals, they would (and did) simply pass laws prohibiting burglary and larceny. 

Additionally, to suggest that the right to be free from unreasonable searches and seizures applies to the actions of private citizens would be to argue for a Constitutionally established federal crime of burglary and larceny.  This is not a result that a freedom advocate would generally support.  It would simply further add to the already voluminous federal criminal code.

However, even laying aside the Fourth and Fifth Amendment issues, the article seems to combine several arguments, and in doing so does justice to none.  Consider first the Second Amendment.  Whether the Amendment applies to every individual person in a free State or to the people of the State collectively is irrelevant to the power of this Amendment.  If one reads it in the natural manner and concludes that it is an individual right, further exploration is unnecessary.  All federal gun laws are clearly unconstitutional if the Amendment guarantees and individual right to Keep and Bear Arms. 

However, even with a collective rights reading, federal guns laws currently written are still generally unconstitutional.  First, it must be understood that the National Guard is not the Constitutional militia.  Title 10, Section 311(a) establishes that all males between 17 and 35 all females in the National Guard are part of the militia.  Subsection (b) goes on to divide the militia into the organized militia, consisting of the National Guard, and the unorganised militia, consisting of militia members not in the National Guard.  Thus, by federal statute it can be clearly seen that the National Guard is a subset of, but not the entire, militia.  However, regardless of the federal law, two additional facts show that the National Guard could not possibly be the Constitutional militia. 

First of all, the National Guard is a statutory creation that was created long after the Constitution was ratified.  Secondly, the National Guard is maintained during times of peace.  Article I, Section 10 clearly prohibits states from maintaining troops during times of peace.  Thus, the only way for the existence of the National Guard to be Constitutionally valid is to view them as what they are -- an extension of the military of the United States of America and not as the militia.  Furthermore, Article 1, Section 8 of the Constitution gives the States the right and responsibility to train their individual militias.  By tradition, the primary means of training the militia involved the militia members owning, caring for, and individually practicing with their personal weapons.  It is reasonable to assume that a number of states would prefer to adopt the traditional approach to exercising their Article 1, Section 8 right to train their militia.  Thus, federal gun laws must be invalid, even on a collective rights reading of the Second Amendment, to the extent that they prohibit ownership of any firearm which would have any value to the militia which each state is could call out during time of crisis.  Since federal gun laws generally do not apply to the National Guard, but do apply to males of military age, they do apply to the state militia, restricting their ability to engage in the traditional method of militia training, and are therefore invalid. 

Notice that the above argument in no way involves the Tenth Amendment.  The Tenth Amendment states “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.”  By its plain language this Amendment does two things.  Of primary importance to the issue at hand, it establishes the fact that the federal government is a government of limited powers.  If the federal government is not specifically granted the power to engage in an activity, it may not engage in that activity.  [i]

The federal government was granted no general police power.  Thus, it cannot pass criminal laws without some other justification.  The two such justifications most commonly relied upon are the power to regulate interstate commerce and the power to tax.  For examples, the federal gun free school zone law that was overturned in the US v. Lopez decision was based upon the power to regulate interstate commerce, and the Gun Control Act of 1934 was based on the power to tax.  For a very detailed discussion of how the 1934 act has no rational relationship whatsoever to raising revenue, see John Ross’ book Unintended Consequences.  As Mr. Ross points out, charging a $200 tax on a $5 gun cannot possibly be expected to raise revenue.  It merely makes it economically infeasible to legally own the gun.  Unfortunately, this argument has not yet been made to the US Supreme Court.  Thus, there is no way to predict if the court would agree with the reasoning. 

However, the Court did consider Congress’ overreaching of its enumerated powers in the name of gun control in the Lopez case.  Congress found that guns in schools adversely affected our educational system.  Having a defective educational system interfered with both interstate and international commerce.  Therefore, based on its power to regulate both interstate and international commerce, Congress prohibited guns near schools.  The Court found that the Tenth Amendment clearly indicated that the United States’ government was intended to have limited powers and such a broad reading of their power to regulate commerce gave them nearly unlimited powers.  Thus they relied upon the Tenth Amendment to strike down the law because Congress had no specific authority to pass the law in the first place.

Thus, while Mr. Wesson’s arguments do hold value, two separate threads must be untangled to see the true strength of the argument that all federal gun laws are invalid.  First, one must ask the question, “Does Congress had the authority to pass this law in the first place?”  If the law does not bear some rational relationship to either raising revenue through taxation or regulating the flow of goods in interstate commerce, that answer must be “No,” and the law is unconstitutional.  Assuming that the law passes this test, one must ask if the law interferes with the States’ Article 1, Section 8 right to train their militia, bearing in mind that the National Guard is not the militia.   I can only think of one federal law relating to firearms that passes both of these tests.  That is the federal law allowing for the sale of M1 Garands to the public in an effort to encourage civilian marksmanship.  Congress is empowered by Article 1, Section 8 to equip the militia.  Thus, they have the power to engage in this activity.  Furthermore, such a sale does nothing to interfere with the states right to train their militia.  Thus, sale of military surplus weapons to civilians is one federal gun law that passes Constitutional scrutiny.

[i] The second function of the Tenth Amendment is to establish that the Constitution is intended to in some ways limit the powers of states governments.  This is important when one considers that while the First Amendment says that “Congress shall make no law . . .”, and therefore clearly applies only to the federal government, the Second Amendment says “the Peoples’ right the keep and bear arms shall not be infringed.”  Note that there is no limiting statement as to the governing body that may not infringe upon the Peoples’ right the Keep and Bear Arms.  This means that no governing body may do so.  Thus, without regard to the Fourteenth Amendment, the Second Amendment applies to the States as well as the Federal government, and the Tenth Amendment makes it clear that the provisions of the Constitution can in fact impose such restrictions upon the states.  However, this fact has no bearing whatsoever upon federal gun laws and will not be explored further.