The Justice Department’s new policy reverses a 30 year-old interpretation that held federal restrictions on gun ownership don’t conflict with the Constitution.
“Progressives” whose basic urge is to control others’ lives via the central government were immediately outraged. Gun owners, as represented by the National Rifle Association, treated Ashcroft’s appeal to what he calls the Constitution’s “plain meaning” as unambiguously good news for them. But is it? Maybe not.
The Second Amendment to the Constitution states that “…the right to bear arms shall not be infringed.” Therefore, according to the NRA, the federal government has no right to regulate ownership of guns. Okay so far.
But the NRA also reflexively raises Second Amendment arguments in defending gun owners against restrictions imposed by state and local governments. In essence, they want the federal government meddling in local affairs when it comes to “their” issues, just like their opponents do. But here’s the rub: In light of the Ninth and Tenth Amendments, which preserve local autonomy, a proper reading of the Constitution means that while the federal government is prohibited from restricting the right to bear arms, similar laws enacted by state and local governments foolish as they may be are constitutional. It’s the only logical way to read the Constitution.
Now we know the NRA decries activist judges who make, rather than interpret, the law. It scorns the Supreme Court for usurping power not granted to it by the Constitution, improperly applying the Bill of Rights to the states in case after case. And, of course, the NRA stands for less federal government intrusion, recapturing our lost self-governing powers and regaining control of our communities back from Washington.
Except when it applies to them.
The NRA's ambivalence on the matter of big government is not, of course, unique to them. The Nanny State offers some advantages to everyone. That’s its fatal charm. But it does point up a basic truth at the heart of much of our current troubles: Almost no one, not even self-proclaimed Constitutionalists, takes the Constitution seriously anymore.
This is not to single out the NRA, but merely to show how even the most earnest defenders of the Constitution have been led to accept the “Big Lie” that words don’t mean what their obvious meaning tells you they mean. Even “liberty loving” citizens now supinely accept whatever our leaders tell us, no matter how absurd or untruthful it may be.
If Ashcroft is sincere about interpreting laws according to the Constitution’s “original intent,” then a sea change in our thinking is in order. Few even ask anymore if a new federal program is constitutional. But the true principles of federalism provide for a minimum of federal government interference and a maximum of local governing authority. Only specific powers are delegated to the federal government; all other powers are reserved to the states or to the people.
It follows then that the federal government's legislative authority is restricted by the Bill of Rights, including the Second Amendment, but those restrictions don’t affect the power of the states or the people. Therefore, federally mandated background checks and bans on assault rifles are unconstitutional. However, if a city like New York or Los Angeles enacts gun control curbs, though these restrictions may be unwise, they are certainly not unconstitutional.
It’s tempting to take the left's arguments and employ the federal government's unauthorized powers for conservative purposes, in essence saying, “now its our turn”. But a central government as powerful as ours is a threat to liberty in anyone's hands, reminding us of Thomas Jefferson's metaphor of the
predicament of holding a wolf by the ears: one dares neither to hold on nor let go.
The Constitution doesn’t guarantee that states or regional authorities won’t act capriciously or oppressively, and the NRA has other solid grounds for opposing gun control laws. But raising Second Amendment claims against local governments is wrong-headed and ultimately self-defeating, playing right into the liberals' hands. It’s hypocritical for the NRA to bemoan big government on the one hand and demand its protection on the other. You simply can't have it both ways.