The president’s remarks about gun control yesterday promoted fallacies about the Constitution and the scope of federal regulatory power under it. Under the Constitution, the federal government — unlike state governments — has only certain enumerated powers, like the powers to regulate commerce among the states or with Indian Tribes or foreign nations. It cannot regulate everything under the sun, even if doing so seems like a good idea, or it promotes public safety. Thus, the Supreme Court invalidated the federal Gun-Free School Zones Act in United States v. Lopez (1995), because it exceeded Congress’s power under the Commerce Clause. Regulating guns in schools is a matter for state governments, not the federal government. Similarly, the Supreme Court invalidated part of the federal Violence Against Women Act in United States v. Morrison (2000), because Congress lacked the power to regulate private conduct that does not affect commerce. Such regulations are matters for state legislatures, not Congress, to regulate. The Court noted in its Morrison decision that Constitutional rights only apply against the government, not other private individuals, so the federal government cannot rely on constitutional rights as a basis for regulating private — as opposed to governmental — conduct. It has to rely on a federal power specifically listed in the Constitution instead. (Disclosure: I was co-counsel for one of the prevailing parties in that case.)
The president plainly does not agree with, or understand, these principles, arguing that the federal government can regulate private activity (including activity otherwise protected by the Second Amendment) simply in order to promote the “pursuit of happiness,” and that it can restrict the exercise of constitutional rights, in order to protect other, competing rights. The Washington Post reports,
In making his case Wednesday for tighter controls on gun ownership, President Obama turned to the document most often cited by firearms advocates in defense of gun rights — the Constitution. By doing so, Obama sought to turn a perceived political weakness — his image as an aloof intellectual — into a strength, and, at the same time, to turn a perceived strength of gun advocates — the constitutional right to bear arms — into a potential weakness. Citing a series of mass shootings, Obama listed several amendments, as well as the defining phrase of the Declaration of Independence, to argue that the right to bear arms should not compromise other rights. “We have the right to worship freely and safely — that right was denied to Sikhs in Oak Creek, Wisconsin,” Obama said at a midday event. “The right to assemble peacefully — that right was denied shoppers in Clackamas, Oregon, and moviegoers in Aurora, Colorado.” Obama added that “that most fundamental set of rights to life, liberty and the pursuit of happiness” were “denied to college students at Virginia Techand high school students at Columbine and elementary school students in Newtown, and kids on street corners in Chicago on too frequent a basis to tolerate.” “All the families who never imagined they’d lose a loved one to a bullet, those rights are at stake,” he said. “We’re responsible.” Obama, a former constitutional law lecturer at the University of Chicago, has at times been forced to defend the legality of his efforts, in particular the health-care law he secured nearly three years ago.
President Obama’s interpretation of the Constitution may be at odds with Supreme Court rulings and the original intent of the Founding Fathers, but the Post plainly empathizes with our “aloof intellectual” president, rather than the “emotional” simpletons who disagree with his “professorial” understanding of all things constitutional:
But Obama made clear Wednesday that he is eager to have an argument on constitutional grounds over whether a ban on the sale of assault weapons, new limits on high-capacity magazines and other elements of his gun-control package are legal.
At times in his first term, Obama has been criticized for sounding too much like a seminar leader at moments of ideologically charged and emotional debate.
His penchant for discursive explanations has bothered no constituency more than his base, whose members see in his sometimes professorial tone a lack of passion for the cause at hand.
If the press were interested in a genuine discussion of constitutional limits on gun control regulation, it would contact lawyers or law professors who actually know something about the Constitution and have a perspective different than Obama’s (like the University of Tennessee’s Glenn Harlan Reynolds, or the Independence Institute’s David Kopel). But I doubt journalists will do that, since doing that would not leave a cartoon caricature of the issue that sells newspapers to certain demographics. Instead, it will probably follow traditional techniques of slanted journalism, such as interviewing a “dummy with the coon skin hat” in the NRA parking lot in response to what Obama says, to make President Obama look like a sage by comparison.
If you take issue with any of President Obama’s gun proposals, or factual inaccuracies used to justify support for them, you get dismissed as being part of the gun lobby, even if you never lobby legislators about gun legislation, don’t own a gun, seldom take any position on gun-control issues, and don’t receive any money from gun manufacturers. Anyone who disagrees with Obama gets depicted by his supporters as being a corporate shill or part of the gun lobby.
As The Washington Examiner‘s Timothy P. Carney notes, Obama on Wednesday suggested that those who opposed his proposals did so to appease “the gun lobby that funds” them. “In his press conference, he credited ‘an economic element’ to ‘those who oppose any common-sense gun control or gun safety measures.’ Obama rules out the possibility that some people deeply value the constitutionally enshrined right to bear arms. Concerns about unintended consequences? Obama doesn’t acknowledge those. Anyone studying the 1994 ‘assault weapons ban’ can see it did little to curb violence. But in Obama’s mind, that argument is just another cover story for ‘I Want More NRA Contributions!’”
Whether gun control regulations satisfy the Constitution depends on whether they comply with the Second Amendment, and are within Congress’s Commerce Clause power. The extraneous considerations that President Obama seeks to inject into the debate play no role in whether they are constitutional. Legally, they are just red herrings that muddy the water.