Table of Contents
Federalism is at the heart of the design of our Constitutional form of government where power is divided between the state and national governments; an equally important component of the separation of powers as are the three separate branches of government. The states have exclusive power in certain areas while the national government is supreme in others, with some shared and overlapping areas of governance that are continually in the process of definition and resolution through our court system. The array of overlapping issues includes education, immigration, healthcare, the environment, the definition of marriage, legalization of certain types of drugs and gun control. This paper will address gun control and the need for a national policy directed by the federal government.
Current State of the Law
There are several major federal statutes that regulate firearms:
- National Firearms Act of 1934 (“NFA”): this bill limits certain types of weapons, famously including sawed-off shotguns and silencers.
- Gun Control Act of 1968 (“GCA”): expanded the NFA and added regulations concerning the sale, purchase and possession of firearms, requiring background checks of prospective buyers. However, there was a major loophole for sales made at “gun shows” and “occasional” purchases.
- Brady Handgun Violence Prevention Act of 1993 (“Brady Bill”): required background checks for all firearms and initially imposed a five-day waiting period, which was reduced after that National Instant Background Check System (“NCIC”) was put in place.
- Federal Assault Weapons Ban 0f 1994 (“AWB”): after several mass shootings with assault weapons, legislation was passed to ban certain designated weapons by a very close vote and signed into law in September 1994. The law included a sunset provision and expired in 2004. It was not replaced nor successfully challenged on a Constitutional basis.
Predominant Second Amendment Issue
- Background Checks: This issue, more than any other, has overwhelming public support for some form of enhanced background checks. In addition, many would like to close the “gun show loophole” in the law that permits “hobbyists” to bypass background checks if guns are purchased at one of these shows.
- Concealed and Open Carry: The regulations vary significantly from state to state with a patchwork of reciprocity agreements that can leave those wishing to transport weapons in a quandary.
- Increased Deterrence of “Straw Purchasers”: Existing laws restrict purchase of firearms for anyone currently excluded from gun ownership but there are frequent uses of “straw purchasers” to evade these regulations. There is a movement to increase penalties for the “straw purchasers” to tamp down violations.
- Restrictions on Types of Firearms, Accessories and Ammunition: This issue was given new life after the shooting in Las Vegas where multiple assault rifles equipped with “bump-stock” devices significantly increased the death toll. The Assault Weapons Ban was an earlier attempt at this type of legislation and there are calls to expand this type of legislation in response to ongoing mass shootings.
Constitutional Basis
- From the perspective of Congress, Constitutional support for legislation stems primarily from the Commerce Clause. The courts have repeatedly validated Congressional authority over interstate commerce, even when the activity occurs wholly within a single state, as seen in United States v. Lopez, 514 U.S. 549 (1994).
- Congress has also used its power to tax and spend to promote its aims.
- The primary limitation to date placed on Congressional legislation has stemmed from the court’s support for an individual’s right to own firearms for traditionally lawful purposes such as self-defense within the home, as seen is District of Columbia v. Heller, 554 U.S. 570 (2008). However, in spite of the Heller case, the court left the precedents intact for the ability of Congress to regulate and prohibit firearms.
Why Gun Control Should Be a Federal Issue
Gun deaths in the United States are 25 times higher than other High-income OECD countries, based on a study in the “American Journal of Medicine” from 2010. Furthermore, in comparison to an earlier study on the same basis from 2003, gun deaths had declined in other OECD countries while remaining constant in the United States, further increasing the gap with the other nations in the OECD.
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According to the CDC, there were 38,658 gun deaths in the United States in 2016. Nearly 60% of gun deaths were related to suicides; 37% were homicides and 3% were accidental or war casualties. While these statistics are shocking on their own, it is the seventy-one deaths from mass shootings in 2016 or the nearly 1,000 deaths since 1982 that heighten public sentiment to the need for gun control.
There has been a significant push at the federal level for national legislation to address the major gun issues. The rationale varies depending on the perspective of the sponsors.
Republicans typically do not support gun control legislation that restricts or in any way places a burden on ownership. The one issue where Republicans seek a national approach concerns concealed carry of weapons. In a reversal of the typical “states rights” approach, in this case a Republican bill, the “Concealed Carry Reciprocity Act” seeks to force all states to respect a concealed-carry permit issued in any state, even if that state has minimalist regulation. Republicans support this national regulation to trump state and local laws to simplify and reduce any burdens on gun owners and their free exercise of their Second Amendment rights. In response, the Democrats typically argue that public safety in their own states will be jeopardized, along with their fears of an encroachment on federalism and states rights.
