High Stakes Machine Gun Case Could Finally Settle Decades-Long Constitutional Battle

In Federalist 51, James Madison recognized the “great difficulty” of self-governance: “ou must first enable the government to control the governed; and in the next place oblige it to control itself.”

The Gun Control Act has controlled the governed — us — and Americans’ access to a range of weapons. But has Congress’ approach to machine guns overstepped its powers? A new lawsuit from a Texas gun club seeks to enforce the Framers’ vision of a limited federal government.

Our Constitution’s genius is that it separates powers. Not only are powers separated between branches, but the Constitution also separates powers between the federal and state governments. This is largely accomplished by defining the federal government’s enumerated powers in Article I and the Tenth Amendment’s reservation of powers not granted to the states or the people.

Texas Public Policy Foundation’s newest case tests whether those limits are still meaningful. The Constitution does not give Congress the power to enact a comprehensive criminal code.

In fact, the Constitution only mentions four crimes: counterfeiting U.S. currency and bonds, piracies and felonies committed on the high seas, offenses against the law of nations, and treason.

Yet by the 1980s, the Department of Justice counted at least 3,000 federal criminal offenses. Congress justifies many of these crimes under the Interstate Commerce Clause.

Ever since the Supreme Court held that Congress could regulate homegrown wheat that never crossed state lines or even entered the market, Congress has expanded the Commerce Clause’s scope to regulate nearly anything that can be bought or sold.

But few of these criminal laws actually have any tangible connection to interstate commerce.

Enter machine guns. Congress has tightly regulated the possession and transfer of machine guns since the National Firearms Act (NFA) of 1934. Congress nominally based its power to enact the NFA on its taxing power.

But in 1986 Congress went further, banning the possession of machine guns manufactured after 1986 — whether you paid your tax stamp or not. This new restriction, codified at 18 U.S.C. § 922(o), was based solely on Congress’s Commerce Clause powers.

The problem is that a person can be convicted under § 922(o) without ever proving any connection to interstate commerce. That makes § 922(o) look more like an ordinary criminal law — a reserved power for states — than a regulation of interstate commerce. But remember, Congress does not have the power to enact ordinary criminal laws.

That is why TPPF is filing a lawsuit on behalf of the Temple Gun Club. This case challenges § 922(o) as exceeding Congress’s Commerce Clause powers. Students of Constitutional Law may remember United States v. Lopez, where the Supreme Court struck down the Gun-Free School Zones Act (GFSZA) as unconstitutional under the Commerce Clause.

Shortly after Lopez, then- Third Circuit Judge Samuel Alito called § 922(o) “the closest extant relative of the statute struck down in Lopez.”

Like the GFSZA, § 922(o) regulates merely possessing a gun — not buying, selling, or transferring a gun. Like the original GFSZA, § 922(o) lacks an interstate commerce jurisdictional element in the statute.

Congress amended the GFSZA to add an interstate jurisdictional element after Lopez, but it did not similarly fix § 922(o).

There is also the problem of attenuation. If Congress can regulate any item capable of being bought or sold because it crossed a state line at some point in the supply chain, what can’t Congress regulate?

Nearly every item bought or sold in the modern age moves through an interstate—and often global—supply chain. Limiting Congress’ power to any item that has crossed a state line is no limit at all.

This lawsuit admittedly faces an uphill battle, as binding Fifth Circuit precedent has upheld § 922(o) against prior constitutional challenges. But at least six judges on the Fifth Circuit have questioned whether the Commerce Clause authorizes 18 U.S.C. § 922’s bans on merely possessing a firearm.

This lawsuit provides the Fifth Circuit an opportunity to revisit its erroneous precedent and restore the Commerce Clause’s original meaning.

Eric Heigis is an attorney for the Texas Public Policy Foundation’s Center for the American Future.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.

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