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.