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Debate on gun control should ask whether Congress has power to regulate

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The Second Amendment of the Constitution clearly 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.” And as James Madison wrote in Federalist Paper No. 45, “The powers delegated...to the Federal Government are few and defined.” Those essays were written to promote ratification of the Constitution and assure states of its limits on federal power.

Madison further explained that these powers would “be exercised principally on external objects such as war, peace, negotiation, and foreign commerce.” The states, he assured his readers, retained “numerous and indefinite” powers extending to “the lives, liberties, and properties of the people,” including “internal order.” The Supreme Court has consistently upheld the individual’s right to bear arms over several decades and court cases.

Such history lessons are usually dismissed by modern politicians.

Of course, Congress has passed laws that ban guns in the past, and many experts feel the courts have upheld the legality of some regulation and restriction of gun ownership. The 1994 “assault weapon ban,” which expired in 2004, is a prime example. But the fact that the federal government has taken an action in the past does not itself answer the question about the authority for, or legitimacy of, the action. In 1942, more than 100,000 Japanese Americans were placed in internment camps. Few would argue that this was constitutional or sets a valid precedent for a similar measure today.

In the landmark case District of Columbia v. Heller (2008), the Supreme Court recognized an individual right to bear arms, but also opined in dicta that certain “longstanding prohibitions” and regulations remained good law. The Court specifically mentioned laws prohibiting felons or the mentally ill from carrying weapons.

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