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Federalism and “the Right…to Keep and Bear Arms”

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?…

Recent Comments

  1. Karl

    the right to keep and bear arms isn’t exclusively about hunting or self-defense, although these are an important part of it.
    The right to keep and bear arms is the realization of the Founding Fathers that citizens had to have a way of protecting themselves from a tyrannical government.
    If you doubt this, read the Federalist Papers.

  2. John Gillman

    A hot oven, being necessary to the creation of an excellent pizza, the right of the people to keep and bear arms, shall not be infringed.

    That statement means exactly the same as this one:

    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.

    At least it does to anyone with a fourth grade reading comprehension.

    There are only three points left to be made.

    1. Rights come from the Creator so governments can not take them away.

    2. Arms are weapons of war. Nothing to do with hunting.

    3. Keep it up libtards, and you’ll get what you want, and you’ll get it good and hard.

  3. Mark W. Scott

    The Invisible Constitution is apprpriately named,which indeed is what most liberals and leftists would prefer. With Obama in the White House, Pelosi in the People’s House and Reid in the Senate – I really fear for the integrity of our Constitution.

  4. red

    No, the legal scholarship clearly shows that it is an individual’s right to bear arms that is protected. Further, read the Federalist papers. Gun ownership is a check on tyrannical government according to our founding fathers.

    It is also interesting to learn the history that the civil rights movement drawing on my many sources of strength also relied upon gun ownership by blacks.

    Lets start arguing that the First Ammnendment can be tinkered with on a geographical basis.

  5. Ray

    Of course this would infringe upon 2nd amendment rights. Any fool knows that the overwhelming statistics show that gun restrictions have and always will INCREASE the crime rate. What does any outlaw (including politicians)desire but a defenseless populace. Ask Hitler…

  6. ansel12

    “Deadly assault weapons have no place in Massachusetts,” Romney said, at a bill signing ceremony with legislators, sportsmen’s groups and gun safety advocates.
    “These guns are not made for recreation or self-defense. They are instruments of destruction with the sole purpose of hunting down and killing people.”

    Governor Mitt Romney 2002

  7. Alex

    Curious case of inverted logic.
    For the “above-average-gun-crime” city the author proposes to institute a gun law which is AT LEAST as restrictive as exist in another, less violent city.
    Recent statistics show that cities with less restrictive gun laws are also less violent.
    So, if the violent city currently has MORE restrictive laws than the non-violent one – does it mean that the first one’s gun laws should be relaxed?

  8. alan sharpe

    “The right to…bare arms” is God-given and I intend to exercise that right, even in inclement weather. I am proud of my arms, as they are well-muscled and manly.

    It is not fair to make me refrain from baring my arms.

    It is a Constitutional Right!

  9. Zach

    Did you dust this off from your archives? It doesn’t matter what “a mass of academic writing” says about the subject anymore. The supreme court has ruled, and the second amendment protects the individual’s right. You might want to read up on a case heard last summer, District of Columbia v. Heller.

  10. Flick

    [sarcasm]No, wait, but guys, the author is a constitutional scholar, so that means his opinions carry more weight than any of your hard researched facts or anything written in the Federalist Papers! You obviously need to stop reading books and watch more TeeVee.[/sarcasm]

    There is one point that no one seems to bring up, however, regarding the Second Amendment. That with rights come responsibilities is widely if not universally accepted. So what is the responsibility that comes with the right to keep and bear arms? It’s in the opening phrase of the Second Amendment. “Owning guns and complaining to your representatives being sufficient to the security of a free state,…” Right? Well that’s what most gun owners seem to think.

    Owning guns is good, but it’s not what’s necessary to preserve liberty in America. For any who are interested in taking seriously the responsibility that comes with the right to keep and bear arms, I invite you to check out today’s militia at http://www.awrm.org, or my own site (click on my name). We might surprise you, especially if you still believe what the mainstream media and groups like the SPLC say about us.


  11. John

    “Above-Average Gun Violence Act” – Wow, just wow. If can’t decide if such a bill is more analagous to the “Anti-dog-eat-dog Act” or the “Equalization of Opportunity Act”. Who is John Galt?

  12. Gary

    NO abridgment of the Second Amendment is constitutional. Period. What is so hard to understand about that? EVERY law governing the possession, use or sale or firearms since 1934 has been a violation of the Constitution’s Second Amendment. This is simply not subject to debate. It is a fact. The Second Amendment contains, within itself, the words that make this all abundantly clear to any literate person:

    “…the right of the people to keep and bear arms shall not be infringed.”

    Nowhere does it specify WHO may keep and bear arms, nor does it specify HOW, WHEN or WHERE they may do. It also doesn’t specify WHAT particular weapons are considered to be “arms.” The intent is clear: this amendment is to protect our INALIENABLE right (that is, a right, not granted by the government, but as a condition of our existence) to defend our lives from any and all who would take it from us – including a fascistic government.

  13. David S. Bloch

    I assume (as does Zack, I think) that Prof. Tribe wrote this section before Heller was decided. Post-Heller, it’s beyond cavil that Prof. Tribe’s “Above-Average Gun Violence Act” is unconstitutional, in D.C. or elsewhere.

    I’m also a little surprised to see Prof. Tribe equivocate concerning Second Amendment scholarship. It is my strong impression that most modern scholarship (ably surveyed by Justice Scalia in Heller) supports the “individual rights” interpretation of the Second Amendment. The most recent edition of Prof. Tribe’s “American Constitutional Law” textbook “made headlines . . . because in it Tribe embraced a more individual rights view of the Second Amendment than he had before — a shift that the National Rifle Association and other gun rights advocates seized on as vindication of their longtime assertions.” http://www.law.com/jsp/article.jsp?id=1117011910589 . Weird that he seems to be backtracking here.

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