Bob Owens

The saddest truth in politics is that people get the leaders they deserve

Does Congress even have the jursidiction to pass gun control laws?

Written By: Bob - Feb• 14•13

As 21st Century Americans, we’re used to Congress and the White House having a very expansive view of what falls within their purview as government officials, a view that the Founding Fathers would have likely found gross and unconstitutional. William J. Watkins does a commendable job asking, then attempting to answer, a very valid question:

Across the country, Americans are debating the effectiveness of Obama’s gun-control proposals. Commentators on the left argue that automatic weapons and high-capacity magazines aren’t necessary for home defense or hunting. On the right, the president’s critics say limiting guns won’t end violence and point out that no matter what laws Congress passes, criminals will still find ways to be well armed. The proposed legislation, they contend, simply would put law-abiding citizens at a disadvantage.

Both sides are missing the larger question in this debate: Does Congress even have the right to regulate or ban guns? Where does Congress derive the power to prohibit ownership or manufacture of certain weapons or magazines?

The article is a very worthwhile for pointing out that the Commerce Clause is the “fatal funnel” of Congressional power; most of the legislative overreach achieved in this nation was achieved via an abuse of the Commerce Clause, and finding ways to successfully attack low-handing examples of this abuse in federal courts (and eventually the Supreme Court) will knock the legs out from under Congress for generations, and greatly restrain the power and size of government.

It’s getting that first “win” in SCOTUS that is going to be the hard part, and at this point it doesn’t appear anyone is even mounting a serious challenge along those lines.

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  1. Gayle says:

    Fedgov vs. the states: Where the REAL battle is happening now. The undeclared civil war is heating up.

    Nullification is the states’ end run around the FedGov’s unconstitutional power grabs. If you haven’t gotten involved in nullification measures in your states, PLEASE do so – join the battle.

    One scenario:

  2. Comrade X says:

    “It is not certain that with this aid alone [possession of arms], they would not be able to shake off their yokes. But were the people to posses the additional advantages of local governments chosen by themselves, who could collect the national will, and direct the national force; and of officers appointed out of the militia, by these governments and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned, in spite of the legions which surround it.” (The Federalist, No. 46)

    The Second Amendment ain’t about commerce and is all about fighting for liberty against tyranny, which needs to be taught again in schools all over this country, which needs to be broadcast in every debate, which needs to be shouted from the rooftops for generation after generation, over and over, we can not say it enough; EVER!

    All you have you do is just listen and then follow what our founders laid out for us, their game plan, it has been proven before and it needs to be proven again, the sooner the better.

    The battle for liberty is not a fleeting battle nor is it a short one, it is not for just a lifetime but for eternity, too many of us have been asleep too long, we are beginning to open our eyes again, nothing can open one’s eye to defending liberty better than seeing tyranny first hand as we do today!

    Death before slavery!

  3. Comrade X says:

    Sorry the 2nd you in the third paragraph should have been a “to”.

    Death before slavery!

  4. Pubius says:

    While the Commerce Clause has been used, in effect, to nullify the 10th Amendment, changing that situation is going to be extremely difficult and time-consuming.

    There’s an enormous amount of case law and previous SCOTUS decisions allowing the Commerce Clause a nearly free hand in regulating everything. A great many groups have taken advantage of this at one time or another, and as a result, there’s a wide and deep constituency for using the CC to these ends.

    Randy Barnett has written a great deal on this. His book Restoring the Lost Constitution may be the best known, but he’s written many others on these issues. See his website

    When I think of undoing this unconstitutional use of the Commerce Clause, I keep seeing an image of a swimmer in the water trying to change the course of a loaded tanker.

  5. Bill McNutty says:

    What is interesting to note in response to this ever expanding power of the FG under the inter-state commerce clause is the case of US v. Miller. The federal agents had to wait until MIller and Layton crossed state lines with the intent to sell the sawed off shot gun. With the defendants crossing the state lines to part take in inter-state commerce, the agents did not have authority to make an arrest under the NFA. Now the mere possession of a sawed off shot gun will get you 10 years in jail.

  6. Klingonwork says:

    Repost of comment I made on SHTFplan…

    True…I go to Angeles range here in L.A. and many openly admit to “training”. They dont have the ammo to spare to punch paper or pursue a hobby. The anger is palpable against the federal overlords.

    Note to all: Those federal overlords ARE watching and infiltrating the ranges, overly friendly and asking questions, then suddenly disappearing. It’s happened to me, it’s happened to friends.

    Loose lips…

    NEW: 1-Be careful of who cozies up to you at the ranges. Several buddies have called and described same events…law enforcement types who cozy up during cease fires and start asking specific questions, then leave quickly.

    Ammo very scarce at best here in L.A. county.

    • Comrade X says:

      It has happened to me too, I just made sure they knew I had better weapons than they and I hit what I shot at, before they left!

      You can still get ammo on line but it ain’t cheap, 5.56 at $1.00 a round, etc.

      Got your back!

      Death before slavery.

  7. Comrade X says:

    “Missouri Democrats Introduce Legislation to Confiscate Firearms – Gives Gun Owners 90 Days to Turn in Weapons…

    Death before slavery!

  8. Comrade X says:

    “Wash. state bill would make almost all gun owners criminals….

    Death before slavery!

  9. Neo says:

    This beggars an even larger point, will the 9th Amendment ever be recognized as having jurisdiction over any court ruling ?

  10. Mudlark says:


    Aren’t you missing the point. It isn’t if Congress has the power. They do not have the power. No where in the Constitution does the government have this authority. But the reality is that this country hasn’t had a constitution since Lincoln trampled it and Wilsin and FDR buried it.

    The question is what are the American people going to do about this governmental over reach. Both Minnesota and Missouri are proposing the confiscation of various types of arms now. I am waiting for a Reichstag fire and an Enabling Act.

  11. smitty says:

    When I saw the title I thought “good, about time somebody nailed it”.

    The article makes good points, especially the misinterpretation of the Commerce Clause, which is used as the excuse for much governmental misbehavior.

    I think though, that it misses the real fly in the ointment regarding the lack of authority of Congress to enact gun control…

    The 2nd’s critical clause is “…shall not be infringed”.

    While courts have recently scraped the notion that the 2nd refers to a “collective right”, and have upheld the 2nd as an individual right, the courts still cling to the notion that Congress can enact “reasonable restrictions”.

    For Congress to do so amounts to amending the 2nd Amendment.

    Congress cannot, merely by legislation, amend the Constitution. There is a process, under the Constitution, to amend the document. See Article V.

    [Congress]…is not given power by itself…to amend the Constitution.
    Meyers v. United States, 47 S.Ct. 21, 37 (1926).

    Congress [may not] change the meaning of the Constitution through the passage of ordinary legislation.
    In re Young, 141 F.3rd 854, 859 (8th Cir. 1998)

    The problem is that the courts are corrupt and cannot be counted on to faithfully address “original intent” on a regular basis in their adjudication of the cases before them.

    This was supposedly to be addressed by Congress by impeaching and removing misbehaving judges. Jefferson saw the problem:

    Experience has already shown that the impeachment the Constitution has provided is not even a scarecrow.
    -Thomas Jefferson

    It rarely happens because Congress loves to enact stuff that is contrary to the Constitution, so, lacking intense pressure from the electorate (who instead, regularly returns the critters office each election), they are not about to remove judges from the bench in order to see that the Constitution is strictly observed, as the result would be for massive amounts of their legislatives acts to be nullified as unConstitutional.

    The design was supposedly that the three branches of government were to each perform checks and balances upon each other…

    What may have not been anticipated by the Framers was the advance of corruption that has enveloped the entire government-all three branches.

    Lysander Spooner recognized well over 100 years ago that the Constitution was a failure-that it either authorized the government we have, or was powerless to limit it.

    Experience seems to have validated that view…

    There remains no effective practical limits to government powers…only window-dressing that provides false comfort.

    It may not be possible to reform this government by peaceable means, as it certainly appears to be FUBAR…

  12. smitty says:

    “It’s getting that first “win” in SCOTUS that is going to be the hard part, and at this point it doesn’t appear anyone is even mounting a serious challenge along those lines.”

    There have apparently been attempts, and those firearms-rights-related cases have been dismissed without the question “where does Congress get the authority to bypass Article V and amend the Constitution by means of legislation alone?” being addressed on its merits, in the lower courts.

    The appeals of such cases have suffered similar fates…

    And, if that wasn’t so, odds are SCOTUS would avoid such cases like the plague. Scotus does pick and choose the cases it reviews…or does not review.