Gun Regulation, the States and the Second Amendment: Making Sense of Our Twisted Constitutional History

The original post that I wrote about the Professors’ letter on gun control — to which I was a signatory — generated a fair bit of comment, with many readers asking me to explain why I was prepared to sign it. The simple answer is that, with the exception of that one sentence, I thought that the letter rightly and fairly tried to find the middle way through a complex subject in ways that would allow the separation of the constitutional issues from the empirical issues. 

That seems to me to be a help to the overall debate. In a word, I signed the letter because I thought that it was correct, and still think that it is correct on the current state of the law. I realize that there is a risk that anything you sign can be used for wrong purposes, but that is also true of individual letters. In a world of rapid-response journalism, either you take that risk or remain silent. It was only the unintended slip-up that moved me to speak. 

With that issue aside, there were also many questions asking about the distribution of state and federal power in the area of gun regulation. There are so many twists and turns in constitutional law that it is hard to give a clean answer. But the historical progression runs something as follows.

First, it is appropriate to ask about the distribution of powers over gun regulation under the 1787 Constitution prior to the adoption of the Bill of Rights. Under these circumstances, the federal government has at most a limited power to regulate guns in the states. The main source of domestic federal power was the Commerce Clause, which, at that time, attempted to draw a line between local and interstate transactions. So the federal government could regulate the use of guns on stagecoaches and steamboats in connection with interstate journeys, but it could not regulate their standard use in ordinary local affairs. The issue has nothing whatsoever to do with the Second Amendment. It has to do with the limited scope of the enumerated federal powers.

The overall situation is somewhat more complex than this, because it is clear that the Congress has plenary powers of gun regulation over the District of Columbia and the territories, which means that, ironically, the one place to which there is power is Washington D.C., where there are no federal/state relations to worry about.

Third, the federal government also has some power to regulate the use of firearms under the Militia Clause of Article I, Section 16, which reads:

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;

This clause surely gives the Congress some ability to dictate the weaponry that is used by the militia, but I do not think that it gives any general power of the federal government to regulate the use of firearms apart from the dual function provision, that is in general use. It lies therefore to the states to regulate the use of firearms under their general police powers, none of which are subject to any limitations found in the federal Constitution. 

 The introduction of the Second Amendment does not, to my view, add any additional power to the federal government, but, if anything, limits the power that it has to regulate the use of arms under the Militia Clause. It 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.

In general, the correct rules of constitutional construction require that a court give due weight to all of the words. In this regard, it is instructive to note that the first clause speaks of a “well regulated militia,” where the use of the world “regulated” seems to preclude its application to the unorganized militia, which just consists of all men above a certain age. 

The function of that militia is to provide security for a free state, by which is meant security for a state in the union—New York, Virginia, whatever—where the militia is organized. The concern here is not idle, for there is much in the Constitution that addresses questions of insurrection, rebellion, or invasion across state lines by other states. 

It looks as though the fear was that the federal government, through the use of its powers under Article I, Section 16, could encroach too much on the power of states to organize their own affairs. Hence, the sensible reading of the clause is that it limits the power of the federal government to impose regulations on how the states regulate the use of firearms. I do not think that it in any way limits the power of the states to regulate their own internal affairs. The upshot is that federal powers, which were never very large, get a bit smaller.

 The third stage of the history is the radical expansion of federal power under the misreadings of the Commerce Clause during the height of the New Deal. Now there is no defined area of local activities that are outside the scope of the federal government, so it looks as though it could, if only the Commerce Clause were in issue, regulate all local activities apart from the use of guns.

But this point is not free from doubt because it is more than defensible to insist that the new Commerce Clause jurisprudence did not upset the specific balance that the Militia Clause of Article I, and the Second Amendment stake out. On this view, there is, even after 1937, no general federal power to regulate gun use at the federal level, and still no restrictions on what the states can do. Everything is as before.

Against this relatively clear understanding, the Scalia decision in Heller becomes a bombshell.  Now the first half of the Second Amendment disappears into the mists, so that the clause loses all its historical texture. No longer is it possible to argue that the expanded Commerce Clause doesn’t apply, because there is no Militia Clause specificity left in the doctrine. Similarly, it is no longer possible to argue that the federalism issues dominated the application of the Clause.  It is just a free-floating command whose absolutist nature makes no sense in light of a long constitutional history that notes that all constitutional rights are limited by some general sense of the police power as it deals with the health, safety, morals and general welfare of the population. So we get the Scalia balance. There is no need to read any of this in if the first half of the clause is left in place, and the better view is that the federal government only has the power to control guns under the original conception of the Commerce Clause.

But once we are in this Brave New World, there is a question of just how tightly one reads the police power exception that does not belong in the Second Amendment in the first place.  Justice Scalia notes that it is more than a low level rational basis review, and commentators are left to pick up the wreckage.

It was that issue that our joint letter sought to address, without going through this tortuous history. But as law professors, we do not deal the hands. We play with the hands that are dealt. 

I thought that our joint letter caught the mood of the occasion, even if that mood does not quite get the history right. But again, remember that the defenders of gun rights that think that the Second Amendment was meant to provide a bulwark against federal regulation of guns in the District of Columbia and against the state regulations of guns are probably wrong as well.  It is hard to make sense out of a second-best constitutional world.

  1. ConservativeFred

    A few minutes before my Evidence class was about to start, I was talking to the professor (he clerked for William Rehnquist).  Somehow we  were discussing my Constitutional History class and the Federalist Papers. 

    At this point, my professor began to chuckle and shook his head, “I can tell you all you need to know about Constitutional Law in 30 seconds.”

    “What?”

    “The Supreme Court does what it wants.”

    “But what about rational basis tests, Commerce Clause . . ” I began to inquire.

    “The rest is for intellectuals to fill-in the blanks.”

    Most meaningful discussion I had in law school.

  2. Larry3435

    Doesn’t this argument need to address the effect of the 14th Amendment?  Or is it your position that the 2nd Amendment creates rights only for states, and that there is no individual right to keep and bear arms at all?  That would seem wrong to me.  The framers knew how to refer to the states when they meant to.  The rest of the first eight Amendments were all for the protection of individuals against the federal government, and those individual rights were expanded to protect individuals against the state governments as well, by virtue of the 14th Amendment.  

    Besides, the Constitution was very clear in the first place about the division of authority over the militia between the states and the federal government.  To wit, Congress was given the power:  “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.”  I see no reason to believe the 2nd Amendment was meant to alter that balance.

  3. Skyler

    “I thought that the letter rightly and fairly tried to find the middle way through a complex subject . . . “But I’ve never met a law professor that would try to find a middle way in interpreting the first amendment. And why does this analysis ignore the 14th Amendment?

  4. James Of England

    Happily for Professor Epstein, Obama won the election and his replacement for Justice Kennedy will overturn Heller and turn the Second Amendment into a piece of legal trivia akin to the Third Amendment.

    Orwell’s view of pacifists being objectively pro-fascist seems all too often a subset of the many ways in which libertarians cheer on the developments that bring the world closer to totalitarianism. I should clarify that I recognize that most of the libertarians on Ricochet are sound on this particular issue.

  5. Tom Riehl

    This whole argument skirts the real issue for conservatives.  The professor is correct that we are holding cards we don’t necessarily find useful, or constitutional in the strict sense, but here’s the nexus.  We need to stop playing the cards that the progressives deal us and change the “game.”  Instead of wallowing in the morass the progressives have made of constitutional governance, we need to tack into the wind, create new arguments, not fear to defend pre-Wilsonian history, and make a logical, principled case to the citizens for true constitutional resurgence.   They will appreciate and approve this approach, similar to their response to Reagan, an outsider who dominated by communicating clear and effective principles.  I’m personally beginning the fight by volunteering to be a local GOP committee person.  What  we all need though is conservative intellectual and academic backup supporting a return to being a republic, wherein 51% can’t torture the entire population with impunity.   Please spend your energies in that realm.

  6. Ryan M

    Here is my response on the subject, in “post” form.  The concern is not whether you are correct or incorrect, but whether it was a good idea, and what the ultimate result will be.  The politicians involved don’t care whether it’s technically legal or not; they have enough experience to know that they can get things rammed through.  They honestly don’t care about the nuances of your legal opinion, but now they have 50 names to back their political goals.  I think the drafter of your letter understood that.

  7. Scarlet Pimpernel

    The militia power may suggest that the federal government can require men to have certain arms, but can that same power say that must not have others–and that certain guns may only be held by full time military?

  8. Ryan M
    Tom Riehl: This whole argument skirts the real issue for conservatives.  The professor is correct that we are holding cards we don’t necessarily find useful, or constitutional in the strict sense, but here’s the nexus.  We need to stop playing the cards that the progressives deal us and change the “game.”  Instead of wallowing in the morass the progressives have made of constitutional governance, we need to tack into the wind, create new arguments, not fear to defend pre-Wilsonian history, and make a logical, principled case to the citizens for true constitutional resurgence.   They will appreciate and approve this approach, similar to their response to Reagan, an outsider who dominated by communicating clear and effective principles.  I’m personally beginning the fight by volunteering to be a local GOP committee person.  What  we all need though is conservative intellectual and academic backup supporting a return to being a republic, wherein 51% can’t torture the entire population with impunity.   Please spend your energies in that realm. · 23 minutes ago

    I like what you say.  I’ve bolded the part about which I am skeptical.  Guess it depends on who “they” refers to.

  9. Ryan M

    One more thing, though, Professor Epstein:

    I remember taking issue with something you said about the issue of gay marriage.  You threw out a caveat that you also seemed to take for granted, but that has been a huge concern for me (also versed in constitutional law, as an attorney).  You said “of course, these laws will preserve religious liberty.” 

    That concerns me, because – and I do not mean this as a personal attack – you remind me of Nicholas in his white castle (I apologize if I have the wrong Russian).  I’m not sure that you have a firm grasp on the world outside the castle walls.  On paper (and you surely study papers), SSM is fine if it only extends tax privileges, etc…, but you have to understand (by looking beyond the paper) that the whole battle is infringement of religious liberty.

    The same goes for gun control.  These people are, almost literally, anti-libertarian.  Your reading of Heller and your interpretation of constitutional jurisprudence is obviously sound – but what on earth are you thinking?  Politicians don’t need law professors to tell them that stuff; they don’t care!  They can focus on replacing Kennedy and (cont…)

  10. Ryan M

    (…cont) having a supreme court that will uphold their laws.  They learned, through Obamacare, that the court is not immune to political pressures.  You have signed a letter that states the obvious, while obfuscating the most important point:

    That, however legal, these measures will do far more harm than good – at a great expense to individual liberty.

    (if you – Richard, John, Troy – get this before recording Law Talk, I would love to hear a response!)

  11. Tuck

    The problem with the letter you signed is this:

    “Restrictions on the manufacture and sale of high-capacity ammunition magazines and assault weapons are also consistent with the Second Amendment.”

    You’ve fallen victim to a bait-and-switch. 

    The weapons that the military uses, actual “assault weapons”, have a fully-automatic fire mode and have been illegal since 1934, for the most part.  The weapons that are now called “assault weapons”, are, essentially, anything with a rate of fire higher than a musket.  Anything that automatically loads a bullet from the magazine into a chamber is a semi-automatic weapon, and this is the definition of “assault weapon” used popularly (and by opportunistic politians).

    This letter, therefore, inadvertently effectively supports full federal regulation and the banning of sale of nearly all firearms sold in the US.

    That’s a bit of an infringement.

    To take us back to the original intent, IMHO, we’d have to remove the ban on automatic weapons, since these are the weapons that an actual militia would use (see the weapons kept at home by the Swiss or Israeli Militia).

  12. Tom Riehl

    Ryan M, thanks for the kind comment.

    “they” refers to the electorate at large.  The GOP is likely about to charge off the diversity cliff now, wringing their hands about connecting to youth, the Latinos, women, and all the other Balkanized groups in America.  We don’t want to play that game, firstly because it was invented by progressives who write the rules on-the-fly, secondly because it is intellectually perverse and people aren’t that stupid, thirdly because the progressives will always be better at it due to no moral or factual underpinnings hindering them, and lastly, at best it may result in one last GOP electoral victory before the republic’s end.  People will gravitate towards truth and their true self interest, given a fighting chance.

    The purpose of my original post was to ask the professor and others in his slightly insulated and rarefied world to help we who will struggle in our streets for freedom.  Sadly, this is not hyperbolic.

  13. curtmilr

    Frankly, the Professor speaks as a Progressive for Progressives in opposition to the plain words of the 2nd A. The Rights of the People are not to be infringed. PERIOD!

    All males capable of bearing arms are the whole militia, and they supply their own arms. The regular militia (National Guard) is armed and trained by the government and commanded by the Governor other than in times of war & call up. Obviously that regular militia can be dictated to as to the arms the government is willing to supply. But the whole of the militia NOT within the regulars cannot!

    The parsing of the not-infringiable and entrail massaging is absolutely disgusting!

  14. Ryan M
    Tom Riehl:

    The purpose of my original post was to ask the professor and others in his slightly insulated and rarefied world to help we whowillstruggle in our streets for freedom.  Sadly, this is not hyperbolic.

    No, sadly not hyperbolic.

    I see that you live in the greater Portland metro area…. Freedom lovers going up against hoards of idealistic but ignorant children (my term for college kids) and hippies.  I am highly sympathetic to your position.

  15. ConservativeFred

    Did anyone else find it ironic that when clicking on this post by Richard Epstein, a pop-up Ricochet advertisement appeared with a Revolutionary War soldier with a musket appeared?  Yes, the Revolution starts at Ricochet, but make sure you are unarmed.

  16. Tom Riehl

    Ryan M,

    Yeah, this is enemy territory!  Most of Oregon is quite conservative, but we’re overwhelmed numerically by the progressives in the PDX tri-county area.  They say “keep Portland weird”, and are they ever successful!  But, the fight goes on.  I remember Jimmy.

  17. Tom Riehl

    Dear curtmilr,

    Jonah Goldberg propitiously reminds that the sheep-entrail reading priests of ancient Rome were called haruspices.  Gotta love words!

    And, I definitely agree about the noisome parsing.

  18. Tommy De Seno
    C

    Does the professor have an example of an enumerated power in a State Constitution that allows that state to ban arms, outside of a vague general welfare clause?

  19. Clark Judge
    C

    The Second Amendment strikes me as particularly anti-federalist in origin and construction.  

    Critics of the new constitution did not believe that the machine would run reliably of itself.  They wanted to import guarantees from the English Bill of Rights, including, both for public and private safety, the right to keep and bear arms — but with a difference.  

    In Britain, gun rights were qualified by class and confession, entirely unsuited for the new nation based on universal rights.  Then, too, Britain’s government was unitary, while under the new American charter sovereignty was divided.  

    As did no other protected right, the British gun right traversed federal and state sovereignties.  For example, invoking private safety would have implied federal police powers.  How to guarantee this universal right without implying that the national government possessed powers not intended for it — and that anti-federalists especially were determined it not acquire? 

     The answer?  With these phrasings:

    • “A well regulated militia being necessary to the security of a free state” kept the amendment within the limits of federal reach;  

    • “the right of the people” established universality;
    • “shall not be infringed” incorporated into the U.S. Constitution the full sweep of British protections. 

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