A Divided House: The Case for Federal Intervention

I consider myself a committed federalist.  To many people today, that means you favor state power at the expense of federal power.  That is usually true.  But a true federalist believes in a balance of state and federal power, as established in our Constitution.  We can argue about whether Congress’ interstate commerce powers extend to this or that, or whether Congress really has a general spending power, but since the Fourteenth Amendment was passed in 1868, Congress’ has been empowered to protect the constitutional rights of its citizens.  It has exercised this power more than a few times, first in the Civil Rights Acts of 1866, then 1871, 1875, 1957, 1960, and finally 1964, the former three establishing civil rights for freed slaves, and the latter three aimed at ending racial segregation in the South.  Protecting the rights of Americans against state abuses is one of the most important powers delegated by the Constitution to Congress, and it is with this in mind that I decided to support the Thune Amendment to force reciprocity on the states.

I’m generally not all that receptive to arguments based on what Congress might do.  Congress might turn around and ban guns entirely tomorrow.  It could attempt to impose restrictions on concealed carry between states right now if it wanted to. Crippling ourselves over what Congress might do in the future seems foolish to me.  But putting that aside, here’s why I think Congress needs to be involved in this area.

The Supreme Court is going to decide very soon whether or not the Second Amendment applies to the states through the Fourteenth Amendment.  While the Court has placed limits on how Congress may exercise it’s Section 5 powers under the fourteenth amendment, there’s nothing prohibiting Congress from assuming incorporation is already fact, and exercising its powers along the lines outlined in the Heller decision, which said the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”  In fact, having Congress do so may actually help the case for incorporation, as the Court may prove to be reluctant to second guess Congress.  More importantly, it would serve as encouragement for the federal courts, which tend to be more deferential to Congressional authority than they probably ought to be, to take a more active and less cautious role in protecting the Second Amendment rights of the citizenry.  Consider that once the federal courts begin to establish the scope of the Second Amendment right under the Fourteenth Amendment, Congress will no longer be able to have influence over its scope.  I think it might be beneficial over the long run to have Congress, which we have much more influence over than the courts, to charge in and lead the way.

I also believe that Congressional intervention may be the only way the citizens of New York, California, New Jersey, and all the other restrictive states might ever get their gun rights back.  Consider New Jersey, for instance.  Take any one law in New Jersey, and held out on its own it might seem reasonable, and might even be upheld in Court.  The problem with New Jersey is largely that it’s gun laws, taken as a whole, are intended entirely and solely to discourage law abiding people from exercising their rights, and to put those who dare at grave legal risk of walking outside of one of the exemptions and becoming a felon. The only entity that can fix this whole body of law quickly is Congress, through the exercise of its Section 5 power under the Fourteenth Amendment. Sure, there’s nothing to prevent the Court from coming in later and saying Congress got it wrong, but at least it puts the Court in the position of having to go against the will of Congress, which it might be reluctant to do.

While I understand that there’s a risk to setting a precident for Congress meddling with right-to-carry, and I am sure to receive endless barrages of “I told you so” should federal licensing standards ever come to pass, I think having Congress begin taking on its role under the Fourteenth Amendment is a smart strategic move.  We have considerably more influence over the lawmaking process than we do over the courts.  We need a strong three branch strategy toward realizing a positive outcome for the Second Amendment rights of all Americans, whether Californian or Texan, New Jerseyan or Oklahoman, Montanan or Bay Stater.  Congressional intervention under Section 5 of the Fourteenth Amendment is an important component of that.

9 thoughts on “A Divided House: The Case for Federal Intervention”

  1. Basically, I agree. Living right up against the NYS border it is a constant hassle to be sure none of my travels of the day would cause me to cross north of 42 degrees north latitude. Would this amendment been the best solution? No, but it would work until something better comes along. Assuming we get incorporation there will still be many legal battles to fight to get any where near what that amendment would have done. Had it passed I would have joined a group to take a trip to NYC and take a walkabout Central Park. Just to watch the NYPD have appleplexy.

  2. Boy, I don’t know, Sebastian. Gamble the privileges of 40 States in an uncertain endeavor to correct the mistakes of the other 10? And look at how many votes those 10 (New York, California, et al.) have in the House to take away my State’s already hard-won privilege to concealed carry! I really think I’d prefer to work with my own legislature where I can throw the bums out (we have term limits) than let Californian and New Yorker delegates, for/against whom I cannot vote, dictate my State’s policy. I’ll let Californians and New Yorkers fix their own problems that they voted themselves into rather than let them impose their anti-gun ilk on me. I am sorry, Sebastian, but I am inclined thus far to agree with your wife and noble daughter of the Honorable Jefferson Davis on this one. But I’ll keep an open mind as you continue your debate – it is very stimulating and educational. Thanks!

  3. The States Rights vs. Federal Power is a red herring when we are dealing with an INDIVIDUAL RIGHT being infringed or protected.

    It is the duty of both governments, state and federal, to protect the rights of Americans and this includes resisting the power of the other to enforce those individual rights.

    The true American hierarchy is: Individual rights, state rights and powers, and then federal powers. which are specifically delegated.

    it is the job of the national government to force states to respect individual rights of all Americans and this in no way weakens the State rights trumps Federal powers position.

  4. Don’t look at me, I’m seriously thinking of moving back to Texas (my second most disliked state). Where they have a clue and are willing to stand up for it.

  5. I truly believe that a person has the unobstructed fundamental right to transport, on his person, a firearm any where in the United States. I liken this to the reciprocity of a Drivers License.

  6. Gentlemen, all good points, and I think that is what Sebastian and his dear wife are debating: since Congress has the duty to protect our rights from State gov’t abuse, should we encourage Congress to take an active role on this issue knowing that both houses are controlled by the party that is predominantly inimical to our individual right to keep and bear firearms, especially militia-style arms? The risk is States with liberal CC laws could see those curtailed, while the reward is those States without CC would be compelled to respect the right of other States’ citizens to carrry concealed weapons while traveling through their jurisdictions. And the rewards could be greater depending on the Supreme Court’s response to a reciprocity law, possibly even incorporation. But oh those risks!
    Isn’t this fascinating?
    By the way, take a look at youtube CNN Morning in America: Missouri car dealer gives out AK-47s with every truck sold (you will have to google it). The interview is GREAT!

  7. I’m pretty sure that the 1964 Civil Rights Act is not merely an exercise of the powers granted to Congress by the fifth article of the 14th amendment.

    Several provisions point to the Commerce Clause power… for example the public accomodations provisions which affect non-state actors such as hotel and restaurant owners.

  8. Sebastian, you say “I’m generally not all that receptive to arguments based on what Congress might do.” But, every time we go into a voting booth to cast a vote for or against a congressman, our votes are based on an educated guess about what congress might do, given two or more potential scenarios. When you think of it, our NRA-EVCs are charged with delivering what are supposed to be the logic behind those educated guesses.

    Too often during the almost fifty years I have had a more or less adult awareness of the gun rights movement, gun owners and their leadership have been like chess players who were only looking at the board that lay before them, and not the board as it might look two or three moves after the move they are about to make. For example, I can remember when a local gun rights group in my county would send out candidate questionnaires, and would gig a candidate who responded that he or she opposed “Instant Background Checks,” even if that candidate appended an opinion that background checks were a violation of fundamental rights, being a prior restraint on the practice of those rights. The gun group’s immediate interest was the convenience of gun hobbyists, and the supposed advantage that IBCs enabled those who needed a gun quickly, could sidestep a waiting period. Unfortunately, implementation of IBCs provided the necessary tool for later implementation of gun rationing. Sure, technology may have dictated that eventually that tool would be implemented with or without gun owners support, but we collectively could hardly criticize it after we had lobbied for years to put it in place as a “pro-gun” measure.

    To my recall, it was five years or more before implementation of IBCs that some among us began to predict their abuse, once they were introduced, and since then it has come to pass in several states, the latest being New Jersey. But, those predictions of abuse were pooh-poohed by the mainstream gun rights advocates, who by that time “owned” the concept and were committed to it.

    In my opinion it is never too early to be looking a move or two ahead, regarding what congress might do.

  9. People aren’t citizens of a State anymore. I live first in CA, then WA, now IL. I don’t think of any State in the same way that, say, Robt E Lee did when he turned down the Union’s offer of command of the army because his ‘Country’, that is to say, Virginia, needed him.

    I think most people view the various layers of government monolithically. In their day-to-day lives it matters little to them which layer of the government is doing any particular thing to or for them.

    Federalism makes little sense to the average person. In my opinion, the only thing it really does anymore is limit somewhat the democratic power of large urban areas.

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