The Ineludible (Constitutional) Politics of Guns
36 Pages Posted: 7 Mar 2015
Date Written: November 30, 2013
The murders at Newtown intensified the American political debate about guns — a debate that often fits within the framework of a larger national conversation about violent crime and the political approaches to addressing it. Yet the gun control debate has resulted in a strange but fascinating intersection of law and politics, particularly law and politics of the constitutional sort, when we consider where the historical political battle lines have been drawn on matters of crime and punishment. This Article, written as part of a symposium on the Second Amendment and gun control, explores that intersection, giving special attention to the law and politics of federalism as reflected in the narrative concerning the “overfederalization” of crime. Rather than focusing on gun rights and the Second Amendment, then, this paper focuses on Congress’s power to create federal gun crimes using the authority of the Commerce Clause. The Article traces the relevant Supreme Court and lower court decisions and evaluates the state of Commerce Clause litigation involving federal gun possession crimes. The Article ultimately suggests that, because federalism has become a consistent theme of Roberts Court jurisprudence, firearms-related litigation could be a vehicle for Commerce Clause-based federalism to reemerge as a mechanism for cabining federal criminal law-making power. This would be appealing to those, particularly on the political Right, who favor sensible gun controls and have a comparatively narrow view of gun rights, but who are also troubled by the contemporary scope of federal criminal law powers.
Keywords: second amendment, gun control, commerce clause, constitutional law, supreme court, federal criminal law, overfederalization
Suggested Citation: Suggested Citation