Everything You Need to Know About US Gun Rights, Part 2

Fast forward several decades and there’s a case called Wickard v Filburn. Roscoe Filburn was growing wheat on the Filburn family property in the state of Ohio to use mostly as animal feed for animals also kept on the property (thought the family also ate a bit of it). To regulate interstate commerce in wheat, the feds had set limits on “personal use” wheat-growing. The theory was that wheat is a fungible commodity: one grain of wheat is fairly interchangeable for nearly any other grain of wheat. So if you’re growing a lot, even if you’re not selling it, that changes the in-state demand for out-of-state wheat. The feds clearly had the power to regulate interstate commerce, but do they have they power to regular entirely in-state activities simply because those activities have an effect on an interstate market?

Well, yes. Yes they do, is what SCOTUS decided.

This decision effectively created a new power of the federal government to regulate local activities. FDR’s administration actively advocated for this power, in part as a response to the Great Depression and the need for coordinated regulations that could revive the national economy as a whole (and also in part on a law-and-order theme that required more police powers to be given to a federal government that had been granted very few), though not all of FDR’s reasoning was so generously based. From the time FDR’s administration entered, he encouraged Congress to pass legislation based on the theory that local action could be regulated to the extent that such regulation or local action has an effect on interstate commerce. In 1934 the National Firearms Act was passed, the first attempt at a comprehensive, federal regulation aimed at firearms. The principal effective language is found here:

[T]he 1st day of July of each year, every importer, manufacturer, and dealer in firearms shall register with the collector of internal revenue for each district in which such business is to be carried on his name or style, principal place of business, and places of business in such district, and pay a special tax …

It shall be unlawful for any person required to register under the provisions of this section to import, manufacture, or deal firearms without having registered and paid the tax imposed by this section …

There were also some provisions dealing with the sale/transfer of firearms by persons not dealing in firearms as a business, but those were decidedly secondary to the above.

Note that this does not attempt to control firearms in any sense other than an economic market: the federal government, under the prevailing understanding of the time, had no ability to control guns per se. Nor could this constitutional innovation of the 1930s have been predicted in 1789: it was entirely novel and quite radical in its day, not a logical outgrowth of conventional constitutional understandings common amongst the first Framers.

In this sense a right against the federal government to bear arms is nonsensical and the 2A is utterly irrelevant. Almost 150 years after the constitution’s initial passage and the feds still don’t have inherent authority to enact gun control? Again, this substantiates the argument that the 2A was never about providing a right against federal regulation. But if we understand that the original 1787 Constitution was a federal document and was not seen as possessing any power to regulate relationships to which the federal government was not a party (state/individual relationships being the most relevant here) then the 2A is further cemented as a regulation on the state/federal relationship by the elimination of the possibility of any federal/individual regulation.

But we’re not done yet with the Commerce Clause. In 1995 the case US v Lopez decided the question of how analogous Filburn’s wheat-growing could be said to be with (Lopez’s) gun possession. The answer is that the two are not analogous, or at least not sufficiently analogous to justify congressional regulation of gun possession. While it is obvious that someone with a need for wheat who then grows some will buy less, there is no obvious impact on general commerce likely to cross state lines that is created by the simple possession of a firearm.

Justice Breyer argued that the Filburn reasoning implies looking at cumulative impact of all similar actions. After all, the fluctuations in demand for wheat within an entire state are such that Filburn’s wheat growing alone would not have changed intrastate demand for wheat. It would be a mere rounding error in the amount of wheat needed, representing just a bit more wheat imported that might go to waste but that intrastate dealers would need to have on hand anyway in case it was needed by customers. Thus, cumulative impact should be considered, and here it’s clear that all of the people in Ohio, grouped together, who grew some wheat on private property for private use would ultimately reap a crop substantial enough to affect the orders placed across state lines by Ohio dealers. Breyer argued that the behavior at issue in Lopez (gun possession within a certain distance of a school) could easily said to have an effect on interstate commerce simply by noting that the total impact of all gun possession on or near school grounds has an effect on education. Violence in schools is associated with poorer grades and standardized test scores and can be logically explained as one result caused by the distractions imposed by normal fears that occur in the presence of significant dangers … such as the dangers created by the presence of firearms. For Breyer this logical chain could justify the constitutionality of the underlying statute, but his view did not persuade the court.

Note again that the court is not here deciding that the provisions of the 2A trump legitimate constitutional action. The court here is stating that Congress had no right to regulate gun possession in the first place! If, in fact, Congress had had such a right from a power other than the Commerce Clause, the court would have had to determine the extent to which such a right was infringed by the law and whether such infringement was permissible. The court did not engage such a test because it simply wasn’t necessary.

But if Congress had no right to regulate gun possession from 1787 right through 1995, then, again, what the hell was the 2A supposed to be doing in a document spelling out the powers, limits, and relationships of the federal government?

Again, it was regulating a relationship between the states and the feds. That’s it. That’s all. It’s not a mystery. What it is to present-day folks is confusing. We’re confused because the horror of slavery was so extreme that the nation as a whole came together and gave the feds the right to regulate the state/individual relationship.

Now that this ability of the feds to interfere in the state/individual relationship is taken for granted, people have forgotten that this wasn’t taken for granted when the federal constitution was written in 1787 and the 2A in 1789. Nonetheless, this was a distinction made and it was the common understanding in the late-18th century context within which the 2A was drafted, passed, and ratified. We can’t change that now.

Part 3 in the works.

Everything You Need to Know About US Gun Rights, Part 1

This post grows out of a discussion on Mano’s blog about gun rights and the US constitution. If you like, please read the beginnings of this discussion where it originated. However, in response to questions raised by EnlightenmentLiberal, I felt the need to write a comment whose length kept increasing. (No, Crip Dyke! Say it isn’t so!) Ultimately, I thought this history/argument was better presented as its own post here.

The real problems in the interpretation of the 2nd amendment can be found in a Commerce Clause case about the growing of wheat on private property and the anti-slavery reconstruction amendments.

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