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.