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Commerce Clause

If you ask firearms owners if they know the provision of the Constitution the federal government is using to control their individual right to possess firearms, most people respond with a blank stare. When you tell them that every federal gun control law, except for firearms shipped in the U. S. Mail, has been enacted under the Commerce Clause, the blank stare turns to confusion. Firearms owners have either never heard of this constitutional provision, or do not understand the relationship between the private ownership of firearms and the Commerce Clause. The purpose of this article is to shed some light on this little known provision and show how the federal government is using this Clause to obliterate the individual right to possess firearms.

Found at Article I, Section 8, Clause 3 of the Constitution for the United States, this provision grants Congress the power "[t]o regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes."

In a 1993 Notre Dame Law Review entitled Freedom, Responsibility, and The Constitution," Roger Pilon wrote the following concerning the intent of the Commerce Clause:

There can be little doubt about the principle purpose of the Commerce Clause. Under the Articles of Confederation, state legislatures had become the dens of special-interest legislation aimed at protecting local manufactures and sellers from out-of-state competitors. The result was a tangle of state-by-state tariffs and regulations that impeded the free flow of commerce among the states, to the detriment of all. Only a national government could break the logjam. Indeed, the need to do so was one of the primary reasons behind the call for a new constitution.

The Commerce Clause was aimed, then, at giving Congress, rather the states, the power to regulate commerce among the states. The purpose was thus not so much to convey a power 'to regulate'- in the affirmative sense in which we use the term today- as a power 'to make regular' the commerce that might take place among the states.

At the bottom, then, the Commerce Clause was intended to enable Congress to break down state barriers, to prevent states from restricting the free flow of commerce among themselves.

This provision granted Congress the power to make regular, or normalize, commerce between individual State and individual State. It did not grant Congress the general power to control individuals or private business engaged in commerce. In fact, during the debates on the Constitution, James Madison wrote that the Commerce Clause was a harmless power that no one really opposed.

Since the adoption of the Constitution, there has been an orchestrated attempt by federal politicians to circumvent the system of limited government established by the Constitution. Politicians always look for ways to expand the power of government because when government becomes more powerful, politicians become more powerful. And when politicians become more powerful, individual freedom becomes subservient to political power. The Commerce Clause, with the aid of political appointees in the federal judiciary, has become the "constitutional basis"for every federal firearms law passed by Congress since the 1930's. In addition, Congress has used this clause to unconstitutionally expand the federal government's criminal jurisdiction over the people of the several States. The recent Emerson case was an example of the Commerce Clause being used to criminalize possession of a firearm. Emerson was prosecuted because, while under a restraining order issued by the State of Texas, he "unlawfully possessed 'in and affecting interstate commerce' a firearm, a Beretta pistol, while subject to the above mentioned September 14, 1998 order, in violation of 18 U.S.C. § 922(g)(8)."

One of the most concise statements on the expansion of federal power through the Commerce Clause was made by Supreme Court Justice Clarence Thomas in a concurring opinion in U. S. v. Lopez (1995). Justice Thomas stated: "[w]e have said that Congress may regulate not only 'Commerce among the several states,' but also anything that has a 'substantial effect' on such commerce." He went on to state that under the substantially affects interstate commerce test adopted by the Court, "[c]ongress can regulate whole categories of activities that are not themselves either 'interstate or commerce.'" An example of this broad expansion of federal regulatory power can be seen in recent legislation proposed in the House of Representatives. Entitled the "Gun Show Background Check Act of 2003" (HR 260 IH), this legislation would extend Brady background checks to gun shows across the country. This bill is one of several Commerce Clause gun control laws now pending in Congress. The reader should pay close attention to the wording because it has become the text of choice in federal firearms legislation. The bill states in part:

Congress finds that... more than 4,400 traditional gun shows are held annually across the United States... [F]irearms and ammunition that are exhibited or offered for sale or exchange at gun shows...move easily in and substantially affect interstate commerce...[I]n fact, even before a firearm is exhibited or offered for sale or exchange at a gun show...the gun, its component parts, ammunition, and the raw materials from which it is manufactured have moved in interstate commerce... [M]any persons who buy and sell firearms at gun shows...cross State lines to attend these events and engage in the interstate transportation of firearms obtained at these events... Congress has the power, under the interstate commerce clause and other provisions of the Constitution of the United States, to ensure... that criminals and other prohibited persons do not obtain firearms at gun shows, flea markets, and other organized events.

DEFINITIONS Section 921(a) of title 18, United States Code, is amended by adding at the end the following... GUN SHOW The term 'gun show' means any event...at which 50 or more firearms are offered or exhibited for sale, transfer, or exchange, if 1 or more of the firearms has been shipped or transported in, or otherwise affects, interstate or foreign commerce...[Emphasis added]

After reading this proposed legislation and Justice Thomas' statement, every American, irrespective of their position of the private ownership of firearms, should be demonstrating in the streets over this blatant usurpation of power. Where in the Constitution does it state that Congress has the power to regulate activities that "substantially affect interstate commerce?" Where in the Constitution does it state that Congress has the power to "regulate whole categories of activities that are not themselves either interstate or commerce?" Under this unconstitutional rewrite of the Constitution, there are virtually no limits to federal regulatory power. The magnitude of this usurpation of power was expressed by Justice Thomas when he wrote: "if Congress passed an omnibus 'substantially affects interstate commerce' statute, purporting to regulate every aspect of human existence, the Act apparently would be constitutional."

If Congress wanted to ban or criminalize the possession of all firearms, it could, as stated by Justice Thomas, invoke the Commerce Clause and adopt a statute that made it unlawful to purchase or possess a firearm that moved in, or affected, interstate commerce. This definition, as shown above, is so broad, that such a law would affect every firearm and every firearm owner in the United States. As stated in the "Gun Show Background Check Act of 2003," referenced above, if a component used to produce a firearm moved in interstate commerce, or if it was packaged in cardboard that moved in interstate commerce, that is sufficient to give the federal government regulatory power even if the firearm, after completed, is never sold outside of the State in which it was produced.

Since the individual right to possess firearms exists independent of the Second Amendment, and federal government was never granted the constitutional authority to regulate this right in the first place, the federal government's usurpation of power under the Commerce Clause has become the crucial issue. This was made crystal clear in the recent Emerson case. Even though the Fifth Circuit Court of Appeals ruled that the right enumerated in the Second Amendment is an individual right, it sustained the federal government's power to impose criminal sanctions on firearms owners within the several States through the Commerce Clause.

If the federal government was not unconstitutionally seizing power through the Commerce Clause, the intent and wording of the Second Amendment would be a non-issue. It is the usurpation of power through the Commerce Clause that gives the Second Amendment debate meaning. The prohibition in the Second Amendment negates any Commerce Clause power because the Amendment was passed after the adoption of the Constitution. It is a cardinal rule of statutory construction that the statute passed last prevails if there is a conflict. This is one of the underlying reasons the anti-firearms community attempts, at all costs, to advance the "collective right" interpretation of the Second Amendment.

In the author's opinion, the firearms community is making a huge mistake by not making the Commerce Clause a core issue in debates and discussions surrounding the Second Amendment and the right to possess firearms. Organizations that support the private ownership of firearms have done a disservice to their members by not putting the Commerce Clause on the same level as the Second Amendment in their meetings and publications.

The intent of the Commerce Clause should be embedded in the memory banks of every firearms owner so they can accurately and intelligently refute the assertions that the federal government was granted the constitutional authority to regulate the right to keep and bear arms in the first place. If the firearms community does not shift some of its resources and focus to the provision being used to unconstitutionally control the private ownership firearms, it's only a matter of time before the federal government attempts to use the Commerce Clause to completely obliterate the individual right to possess a firearm.

Robert Greenslade focuses his writing on issues surrounding the federal government and the Constitution. He believes politicians at the federal level, through ignorance or design, are systematically dismantling the Constitution in an effort to expand their power and consolidate control over the American people. He has dedicated himself to resurrecting the true intent of the Constitution in the hope that the information will contribute, in some small way, to restoring the system of limited government established by the Constitution.