PIAC Gun Control Series: Who can Create Gun Control Regulations

By:  Ridgeway Woulfe

We’ve addressed the need for a change in how America approaches gun violence.  We’ve addressed some options for reducing gun violence.  Now, we address WHO can take these steps. 

America has placed the most attention upon the federal government.  Indeed, the federal government has the best ability to take the needed steps to address gun violence.  Unfortunately, campaign contributions seem to be gridlocking any hopes for real solutions for the time being.  If the federal government is stalled, is there any hope?

How Federalism Works

The answer to this question lies in federalism.  Federalism is at the core of the American Constitution, dividing regulatory power between the federal and state governments, with all other rights granted to the people.  Effectively, this creates a “trump card” system for laws.  Where the federal government has created a law (whether by Constitution, legislation, executive order, or administrative action), a state’s laws may not conflict with it.  A state may, however, create laws within the same topic area as the federal government.  For example, the federal government has laws about federally permitted uses of police violence, but that does not prevent California from placing additional constraints upon its police officers.

The same pattern emerges for giving municipalities the right to create laws.  Though the process for each state is different, the state charters municipalities to govern specific areas in the state.  Therefore, municipalities’ power to legislate is entirely dependent upon what the states are willing to provide.  This means that, in the same way federal law is a “trump card” to state law, state law is the “trump card” to municipal law.

To simplify, the federal government only has the power to create laws which are reserved to it by the Constitution.  State governments have the power to make laws which do not infringe upon the federal government’s laws (including the Constitution).  Local governments have the power to make laws only if the state could make the laws and the state has given the power to local governments.

Federal Government Power

For those unfamiliar, there may be some confusion as to how the federal government could even enforce a gun control law.  After all, there is nothing in the Constitution that reserves gun control to the federal government.  The only mention is the 2nd Amendment, as we discussed previously in this series. 

So why are we even asking the federal government to do something about this problem?

Over the years, the Supreme Court has expanded the interpretation of certain clauses, famously, the Commerce Clause. The Commerce Clause reserves for Congress the authority “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” For about a century, the Commerce Clause was interpreted almost entirely as a limitation on states’ authority to discriminate against interstate commerce, rather than as an expansion of federal congressional authority. The Supreme Court departed from this practice in In Swift v. United States, wherein the Court ruled that the Commerce Clause allowed Congress to pass a law to prohibit price fixing in the meatpacking industry. The Court conceded although the activity was geographically “local,” it also had an important effect on the “current of commerce,” and thus could be regulated under the Commerce Clause.

Since Swift, the Supreme Court began interpreting a “Dormant Commerce Clause,” which affords the federal government the authority to regulate the channels of interstate commerce (roadways, railroads, waterways etc.), the instrumentalities of commerce (cars, planes, machines, etc.) anything that has a substantial effect on interstate commerce (marijuana grown in a garage, wheat grown for private use, trucking weights, etc.). The first “check” on Congress’ power by the courts was in United States v. Lopez,  which held that the federal Gun-Free School Zones Act of 1990, which banned possession of handguns near schools, was unconstitutional because it did not have a substantial impact on interstate commerce.

In the modern economy, just about every product purchased crosses state lines. Logistically, any number of federal regulations can be justified by the dormant commerce clause.  Gun sales undoubtedly affect interstate commerce.  Vehicles undoubtedly transport guns and gun accessories using various forms of channels. The federal government can absolutely impose many forms of gun control, leaving the only question to be whether it violates the Second Amendment.

State and Local Government Power

Even if the federal government continues its pattern of thoughts and prayers over legislative action, states and localities have the power to do something.  As long as the federal government does nothing, the only obstruction to state and local governments is the Second Amendment and existing federal regulation.  And many have tried to toe that line, to varying success.

The D.C. v. Heller struck a huge blow to the state and localities ability to legislate gun control, finding that an ordinance restricting gun registration was an unconstitutional infringement upon the Second Amendment.  A further blow was delivered by McDonald v. Chicago, which officially declared states must abide by the Second Amendment, as it was incorporated by the 14th Amendment.

There is hope, however.  The hope has not been through Supreme Court cases upholding gun control legislation, but instead by refusing to hear the cases.  In particular, the Supreme Court’s refusal to hear a case about a city’s ban on assault weapons allows the possibility of similar bans throughout the country.

This series has already explored the difficulties of gun regulation on a state-by-state or city-by-city, but Band-Aid solutions are better than none at all while we wait for the federal government to do something.

Conclusion

As we discussed earlier in this series, even court decisions are varied and without a clear answer to what regulation is permitted.  Currently, federal government, states, and municipalities have the power to enact gun control.  It is up to those governments to push the bounds of the Second Amendment, to explore the possibilities, to provide the hope of reprieve from so many killings. 

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