Forging Con Law Through a Gun Regulation Lens

  • Date:
  • June 19, 2019

In reading the Supreme Court’s recent double-jeopardy opinion, Gamble v. United States, it struck me just how many major constitutional law cases involve guns and guns laws, even if sometimes at the periphery. Gamble, for instance, complained that his state law conviction for being a felon in possession of a firearm precluded his indictment under 18 U.S.C. § 922(g)(1). Like in Gamble, the regulations of firearms have played a supporting role in many major cases residing in the constitutional law canon.

Take, for instance, United States v. Cruikshank. It’s read as an early case holding that the Bill of Rights applies only to the federal government and not to the states or private actors. But a key backdrop for that holding was guns. The indictments under the Enforcement Act of 1870 alleged that, among other things, the defendants tried “to hinder and prevent the exercise by [two African-American men] of the ‘right to keep and bear arms for a lawful purpose.’” And firearms were very much a part of the impetus for the lawsuit, which arose from the horrific Colfax Massacre.

Then, there’s United States v. Curtiss-Wright Export Corp. The case stands for the proposition that the Executive Branch has broad power over foreign affairs, what the Court called the “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.” But, again, guns led to the case. It arose because a  gun manufacturer sold arms to Bolivia, in violation of a presidential embargo on arms shipments to South American countries engaged in the Chaco War.

Consider also Lopez  v. United States. The case is taught as one about the scope of Congress’s powers under the Commerce Clause. But, once again, guns are at the center. The law at issue was the Gun-Free School Zones Act of 1990, which banned possession of handguns near schools. The Court ruled that the statute exceeded the scope of Congress’s power because it had no hook to interstate commerce.

Next up, we have Printz v. United States. Like the others, Printz announced a broad principle of constitutional law, but within a gun regulation context. There, the Court held that provisions of the Brady Handgun Violence Prevention Act, which required assistance of local law enforcement during an interim period, violated an “anti-commandeering principle” in the Tenth Amendment.

There are no doubt many other such cases, but these examples suffice to show the point. The fact that so many monumental cases about the structure of the federal constitution, and the role of the federal government, hinge on regulations about guns says something about American culture. As Joseph Blocher and Darrell Miller have written, we have a longstanding gun culture in the United States, and that has always meant the coexistence of both gun rights and gun regulations.