If federal background checks on firearms purchases are constitutional, then why are not background checks on ammunition?


Paraphrasing, this was the question asked by Hugh Hewitt on his radio show of January 8, 2013. It’s a good question, and one that deserves an answer.

I admit, I had to meditate on it for a few days, like a Zen student. The problem is that it is a trick question. It assumes that ‘federal’ background checks are constitutional.  We usually concede that the federal government has a right to so infringe on the people’s Second Amendment right “to keep and bear arms” in the name of public safety.  But on what grounds are these provisions made?

What is the cost and consequence of sacrificing the original concept of Federalism to make them?

As I see it, Washington has no such right to infringe upon the Second Amendment. The Constitution was set up to organize and protect the states from each other and from foreign enemies, not to protect people from themselves. This means, from a federalist perspective, that the role of the federal government is primarily to provide ‘border control’ – handle matters of international and inter-state mediation and the like. As a rule of thumb, it should not be involved in matters that affect the day-to-day lives of citizens as in, for example, providing for their healthcare.

But one of the federal responsibilities enumerated in the Constitution is “to provide for the common defense.”  Therefore, Washington should have an interest in maintaining a well-armed citizenry for its defense.  As guns were not confiscated after the signing of the Constitution, and men were not otherwise  forced into militias, clearly our nation’s founders decided that the citizenry must be able to respond to both internal and external threats from that time forward.  It is said that in WWII, Japan chose not to invade America for fear of “a rifle behind every blade of grass,” as Yamamoto put it.

So it is constitutional, and in the best interest of the United States (proper), for Washington to protect the right of its citizens to keep and bear arms. Stewardship of the Second Amendment is a constitutional responsibility of the federal government.  Therefore, it also has a constitutional responsibility to guard against unreasonable state restrictions to this right, and to overrule states if necessary to defend this right.

Prudence dictates that federal law should not be unnecessarily redundant, or trump state law except when constitutionally required; otherwise, since federal law normally takes precedence over state law, the Federal Government becomes a National Government. National Government is a trap – it destroys otherwise healthy competition among the 50 states which keeps them responsive to the will of the people.

Conversely, there is no constitutional provision for Washington to infringe upon Second Amendment rights.  Therefore, it falls to the states to otherwise regulate arms as they see fit.  For example, states could contract with the federal government or hire a private firm to conduct background checks if they so desired. It is for states to decide how to best protect citizens from themselves.  It is for states to determine what is in their citizens’ best interest. Each state should be able to do what it considers to be in its best interest, short of unreasonably restricting these rights and without unconstitutional federal restriction.

Will states disagree on whether or how background checks should be done, how much weaponry, what types, restrictions on concealed carry, and whether to allow armed staff in schools?

Why, yes! There will be different laws in different states. But disagreement is a form of healthy competition. States then compete to justify the costs versus benefits of various policy proposals.  They must be responsive to the collective judgment of their citizens. If citizens don’t like living in one state they can move to another.  This is called ‘freedom.’  This is the beauty of our federation and the freedom it provides. Even though Washington may disagree with any state provision, it has no constitutional authority to interfere under normal circumstances.

It is for the states to determine their own limits on Second Amendment rights, not to exceed constitutional protections on the right to bear arms.  It is for Washington to make sure these rights remain protected.

Granted, my consideration here may be incomplete. Legal precedent is certainly against this analysis. But these same precedents seem to be leading us down the proverbial primrose path. As I stand on my property, rifle in hand, I want my state to protect my right to reasonably protect my family from threats without interference from Washington, as agreed in the Constitution. I don’t want one of these threats to turn out to be from my own government, the government that was supposed to protect this right.

So, Washington, before auctioning our rights and riches, splitting the spoils of power in late night, last-minute “negotiations,” please consider your responsibilities from a constitutional point of view. I’d love to hear this debate in the Senate, the greatest deliberative body in the world, where consideration of the proper role of the various levels of government ought to be held.  Refuse to bring to a vote, refuse to vote for, any bill that does not pass muster as necessarily federal according to the Constitution. Do not let this crisis go to waste – use it to remind citizens about Washington’s constitutional role in American life.

If we sacrifice the freedom provided by our federalist system to anyone in Washington who claims to be acting “in the public interest” or “for the children” then there will be no limit to the extent of federal power in American life.  Federalism limits this power, but only as long as we adhere strictly to it.  Every day my appreciation for the genius of the Constitution grows; and every day I realize how far we have strayed from its federalist formula.

Stray from the formula, pay the price.




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