Lawrence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard University. He has published more than 100 books and articles, argued more than three dozen cases before the Supreme Court of the United States and has frequently testified before Congress on a broad range of constitutional issues. In his newest book, The Invisible Constitution, he argues that there is an unseen Constitution-impalpable but powerful-that accompanies the parchment version. Tribe illustrates how some of our more cherished and widely held beliefs about constitutional rights are not part of the written document but can be discerned only by piecing together hints and clues from its design and history. In the excerpt below we look at Congress’s power over States and Cities.
It should go without saying that liberals aren’t the only ones who would suffer buyer’s remorse were we to accept a text-only Constitution as our lot. Consider an act of Congress-the “Above-Average Gun Violence Act”-that requires any city in the United States with a higher-than-average annual per capita rate of violent crimes involving the use of firearms to enact, within one month of the Justice Department’s release of the relevant annual figures, a gun control law (i.e., a law regulating the purchase, sale, and possession of firearms) that has been submitted to, and approved by, the attorney general, who in turn is directed to approve no gun control law that is not “at least as strict as that of the city or county in the United States with the lowest annual per capita rate of violent crime involving the use of firearms.” Would such a congressional enactment be constitutional? Can the question be answered by looking at the imaginary statute on its face, or would the answer depend on whether the statute was being applied to a city other than the nation’s capital, the District of Columbia?
As to the District of Columbia, there would be no difficulty finding an affirmative source of the authority being exercised by Congress. It would be the Article I, section 8, clause 17, stating that “Congress shall have Power To…exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Accepting of Congress, become the Seat of the Government of the United States.” Whether acting directly, or through power it has delegated to the District of Columbia government, Congress is affirmatively authorized to regulate economic and social life throughout the nation’s capital, and thus to direct those whom it entrusts with governmental power over Washington, D.C., to adopt the firearms measures specified in the Above-Average Gun Violence Act-subject, of course, to any limitations we conclude the Second Amendment imposes on laws enacted by Congress.
As for other cities, it is at least strongly arguable that Congress, acting pursuant to the Commerce Clause, would be exercising one of the “powers…delegated to the United States by the Constituion,” as the Tenth Amendment requires. The inclusion in the statute of firearms “possession” along with “purchase” and “sale” would, at least under modern precedent, be justified by the power of Congress, conferred by Article I, section 8, clause 18, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” on the theory that Congress could reasonably deem federal control of possession essential to effective enforcement of a federal ban on purchase and sale-a theory articulated most recently by Justice Scalia in connection with the congressional ban on the possession as well as sale of marijuana, even under close supervision by a state that permits medically licensed marijuana use.
At most, however, this analysis establishes that the imagined federal statue falls within the affirmative authority of Congress under the Constitution, leaving open the question whether the statute nonetheless runs afoul of some negative constitutional prohibition.
The most obvious one would seem to be the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bare Arms, shall not be infringed.” Does the statute “infringe” that Second Amendment right?
There is precious little judicial precedent, but a mass of academic writing addresses the meaning and scope of the Second Amendment, with a majority of scholars concluding that it is only each state’s “well regulated Militia” that the Second Amendment protects from federal interference, and a minority arguing that the preamble’s reference to the necessity of a “well regulated Militia” should not render irrelevant or totally dilute “the right of the people”- even as individuals unconnected to any organized state military force-“to keep and bear Arms.” Sorting through this body of precedent and scholarhsip would be well beyond the point of this book; it suffices here to recognize that neither pole in this ongoing debate can point to decisive textual support for its conclusion and that both must rely on sources of meaning well beyond the visable text.
A District of Columbia statute undergoing judicial challenge as of the writing of this book raises the question whether, whatever else it might mean, the Second Amendment has either no application or at most a far less obust application to congressional measures to regulate firearms traffic, possession, and use in the nation’s capital. Even if the preamble of the amendment is not read to limit its reach to weaponry in the hands of state militias as such, that preamble might well be read to limit the amendment’s reach to federal control of firearms in the hands of citizens in the several states, as opposed to federal control of firearms in distinctly federal territoris, and especially in the seat of the federal government. If that reading were adopted, then the imagined statute would seem to pose no great constitutional difficulty in its application to the District of Columbia. But what of its application to New Orleans or Dallas or Los Angeles?…