Once more I find myself in the unenviable position of disagreeing with one of America’s brightest legal minds, John Yoo. In January, Professor Yoo and I debated the legality of various aspects of the Trump administration’s border-wall emergency declaration. Today, I’m going to dissent from his assertion in an NRO article published last week that universal background checks (UBCs) — as applied to intrastate transfers between private citizens — are constitutionally kosher.
I agree with him that UBCs don’t violate the Second Amendment. The right to keep and bear arms does not extend to violent felons or the dangerously mentally ill. But I part company with Professor Yoo when he argues that federally mandated UBCs on intrastate transfers between private citizens (as opposed to federally licensed firearms dealers) do not violate the commerce clause. When Congress extends its regulatory authority to the simple transfer of an existing legal good between two individuals within the same state, it blasts through the plain meaning of the Constitution, and it even strains existing precedent (which has long granted Congress more regulatory power than the Founders intended).
Professor Yoo is exactly right when he states that “the regulation of purely private intrastate sales of guns . . . violates the original understanding of the commerce clause.” From a conservative lawmaker’s perspective, that should end the inquiry right there. It’s the responsibility of each branch of government to not just “support and defend” the Constitution, but to bear “true faith and allegiance” to our controlling legal document.
To put this in plain English — Congress has just as much responsibility to defend the Constitution as does the Supreme Court, and members should not vote for legislation that violates the original public meaning of the text. Flawed Supreme Court authority isn’t a permission slip for unconstitutional lawmaking.
But let’s next consider that flawed Supreme Court authority. Professor Yoo may very well be correct that the Supreme Court would interpret cases such as Gonzalez v. Raich to uphold the application of UBCs to private, intrastate sales, but I’m not quite as confident as he is.
Raich is a classic example of the drug-war distortion of American constitutional jurisprudence. The Supreme Court has consistently — on matters ranging from free speech to religious liberty and beyond — granted the state an impermissible amount of power to fight the scourge of drugs. Raich is no exception. In that case, the petitioners challenged federal prohibitions against their growing, possessing, or obtaining cannabis for personal use. They brought the challenge after DEA agents destroyed six personal cannabis plants they had cultivated for medicinal purposes in compliance with California state law.
Relying on the New Deal abomination of Wickard v. Filburn (which applied federal wheat regulations to wheat grown for personal use only), the Court noted that when “Congress decides that the ‘total incidence’ of a practice poses a threat to a national market, it may regulate the entire class.” It observed that — just as in Wickard — the home growth of a crop (though insignificant in the particular case) could, in the aggregate, have a substantial effect on the supply of a good and thereby affect the interstate market.
Yet as my colleague Charles C. W. Cooke recently observed, UBCs don’t apply to the manufacture of weapons (the act that would have the Wickard-like effect on supply and demand) but rather to the transfer of existing weapons only. There is no measurable aggregate effect on interstate commerce that would exist if people grew wheat or cannabis — at scale — for personal use. If there are 100 guns in a community, for example, at the end of a private transfer there are still only 100 guns in that community. Moreover, unlike in Raich, the regulated good isn’t “contraband” under applicable law. Instead, its possession is, by default, constitutionally protected.
To be clear, there are few areas where I have less confidence in the Court to apply the original public meaning of the Constitution than in commerce-clause jurisprudence. The Supreme Court may well look at that distinction, shrug its shoulders, and proceed immediately to upholding UBCs. But if it does so, it will be extending, not merely applying, some of the most expansive and intrusive precedents in American constitutional history.
Compounding the potential constitutional error, UBCs strain the commerce clause past the breaking point for the sake of a policy that doesn’t appear to make a material impact on gun violence: The laws wouldn’t have stopped a single modern mass shooting, and they don’t appear to have a measurable effect on the number of background checks — in part because people simply ignore the laws, which are notoriously difficult to enforce.
In short, UBCs violate the original meaning of the commerce clause, would require the Supreme Court to go beyond existing precedent to uphold them, and are likely ineffective at combating the very malady they’re alleged to address.
Something to Consider
If you enjoyed this article, we have a proposition for you: Join NRPLUS. Members get all of our content (including the magazine), no paywalls or content meters, an advertising-minimal experience, and unique access to our writers and editors (through conference calls, social media groups, and more). And importantly, NRPLUS members help keep NR going.