Constitution And Federal Gun Laws
by Perry Thompson
January 20, 2001
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
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.
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
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
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.
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.
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.
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
[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