Gun Control Debate and the Constitution

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    With all the rage about gun control and new policy to ban certain guns, I have been thinking about how this is tied to the Constitution.

    So, people seem to be discussing the 2nd amendment and its original intent and what the founders would have thought about automatic and assault weapons, etc, etc.

    However, to me, this conversation about the 2nd amendment seems to be entirely irrelevant. I simply ask, WHERE in the Constitution is the federal government given the authority to ban any type of guns? On what grounds did the Clinton administration ban certain automatic weapons? It seems that these regulations ought to be left entirely up to the states.

    My guess is this non-existent authority would be justified using the commerce clause? Anyway, I’m not well-researched on the whole gun-rights debate, but I would love to hear peoples’ thoughts on how this relates to the constitution.


    Suppose the 2nd amendment were never drafted. I still cannot find how the Feds would justify banning firearms. I suppose they could use the old “substantial effects” line associated with the commerce clause.


    1. “general welfare” clause
    2. commerce clause

    They justify literally anything by pointing to one of these two things.


    As this guy wrote, sardonically:

    But as we all know by now, there is nothing in the Bill of Rights that can’t be circumvented, either by appeals to the Commerce Clause or by calling something a tax — even when it wasn’t introduced as one and had magically to be transformed into one by a powerful judicial wizard.

    He (and SmartMuffin) forgot to mention the 14th Amendment. They throw that out there a lot, too; equal protection clause + “incorporation” doctrine/jurisprudence in practical terms means that the federal government can do whatever it feels it needs to limit states & individuals (basically it amounted to inverting the original limits; now the Federal Government has unlimited power to limit any institution and individual under its jurisdiction).

    Also, don’t forget that your real constitution is Footnote Four, which gives the Federal Government “plenary” (literally) power over the economy – which in practice is practically everything, because as Austrians know, economic means just are the means to pursue any goal/end you might have.

    (See Also: West Coast Hotel & Wickard v Filburn).

    As another man wrote:

    These precedents establish the Fourth Republic as a universal and absolute government, subject only to a few isolated limitations, which in practice do not matter at all. For example, no European country has any clear equivalent of our First Amendment, either in its original meaning or in its Footnote Four restatement. If dissidents are being lined up and shot in stadiums in Europe, I have somehow remained ignorant of it. ‘Constitutional law’ in the Fourth Republic is a very real and very substantial body of law, but its connection to the original charter of the Second Republic is entirely nominal.

    No, the US government is the 800-pound gorilla. It sits wherever it wants. But ‘it’ is not one entity. It is, again, a network of competing power centers.

    (P.S. this also applies to foreign governments – such as, say, Iran. Which is why – and I’m sorry to say this, but it needs to be said – I always lulz whenever a libertarian says something that suggests they see the government of Iran as a rational unitary actor. The USG isn’t, so why should foreign governments be? Is ours somehow unique in its absurdity? Have you looked at the EU lately – another relatively “civilized” superstructure, but hardly a “rational unitary actor in world affairs.” Meanwhile, Iran has a political structure that would make the government of my namesake look absolutely simple and coherent. Sorry; I don’t mean to dump on “libertarians” since for all practical purposes I am one. But that doesn’t mean we’re above criticism. End of digression; back to the USG, which certainly does bear close analysis.)


    Thanks. Well I suppose it doesn’t hurt for people to continue pointing out they have no legitimate authority to do the things they do under the commerce clause or the taxing power. As a side note, I would guess that Nullification might see some push if they try to pass a lot of Federal restrictions on guns.


    Further question:

    I’ve hear that the President may try to enact gun legislation by executive order. Does anyone know the constitutional limits of executive orders? It seems that they should not exceed the enumerated executive powers in Article II, but Presidents have used them for all kinds of things.

    Does anyone know the historical context of how this power expanded? What CANNOT be enacted by executive order?


    Well I suppose it doesn’t hurt for people to continue pointing out they have no legitimate authority to do the things they do under the commerce clause or the taxing power. As a side note, I would guess that Nullification might see some push if they try to pass a lot of Federal restrictions on guns.

    Oh I totally agree with you on that. I also believe it’s useful to point out what “our actual constitution” is, and how (and when, and where) it became at variance with the written one everyone (including, I admit, I) still fetishize. Then hit them with the argument of what is actually legitimate (not much that the current federal government does). Then people start to see that the movement they believe “protects our constitutional rights the most” is actually the opposite (progressivism is actually the opposite of what most people think of when they hear the phrase “progressive” – I say this as someone raised in Wisconsin, who still has some respect for Robert Lafollette; but, of course, in many ways “Fighting Bob” was one of the few people who truly believed the rhetoric. Still, the program was wrongheaded – but my respect is for his sincerity).

    Does anyone know the historical context of how this power expanded?

    Tom mentions this in either the lecture on the Spanish American War or the Progressive Era (or both, I truly forget now); anyhow as with much else it started with Theodore Roosevelt, then got progressively worse over time.

    Apparently now you can do practically anything you want with an executive order – witness how the current occupant rewrote welfare law with one, used one to compel people to violate their consciences, and rewrote immigration law with another; rule by decree is de rigur and limited only by how bold you’re willing to be (if you go to far you might alienate enough people in congress that it’ll take all of six months for them to get over it). The only practical limit on executive orders is the amount of public outrage, which gets less and less as people get accustomed to their abuse (aka “enlargement”).

    The courts may or (almost always) may not reverse them, but in practice this is as likely as with any regular piece of federal legislation & regulation – that is, executive orders are treated, as a practical matter, identically to constitutionally-passed legislation (and regulatory codes enacted by agencies are, if anything, given even more latitude – see recent environmental regulations. Of course these are usually tied to some open-ended legislation passed through congress – or to an executive order – worded such that the agency is given the power to determine what the law on such and such will be, or, if the legislation is old enough, retroactively interpreted as to give agencies the power to determine the substantive content on the law regarding such and such. As a legislative body, Congress’ main role now is to enact bills that delegate legislative responsibility to other agencies – delegating the responsibility delegates the blame, so when a Congresscritter goes home and gets questioned by constituents, even if they voted for a bill, they can say “oh, that’s really bad how the agency is treating you. When I get back to Washington, I’ll be sure to look into that for you.”)


    Thanks for your input Porphy. Isn’t it odd that such a thing as the executive order could be used in place of legislation? It seems like another instance of newspeak or something the way they torture the meaning of language.

    The executive branch is supposed to ensure that “laws are faithfully executed.” Any elementary school student can see that this PRESUPPOSES that legislation has already been passed. The idea of the executive making up his own laws and executing them couldn’t be more foreign to the Constitution. Ok, done preaching to the choir now. Thanks for responses

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