OSD 221: Gun rights are the real Commerce Clause
On being stochastically unreasonable.
This is a harder question than it seems:
There are lots of silly or intrusive laws criminalizing personal behavior. So when a particular example of such a law doesn’t exist, “it’s too silly or intrusive” isn’t a very powerful explanation. The question is what, process-wise, has blocked it.
This answer (endorsement of the underlying idea aside) seems most plausible:
You need two things to pass a law that restricts individuals’ behavior:
The consensus around the ban needs to hit activation energy. A public relations push, some catalyzing event, etc. Supporters need to decide that this ban is worth the effort.
The bill needs to clear the procedural hurdles of becoming law.
Re #2, we’ve written before about how procedural hurdles, not lofty principles written down somewhere, are the most effective bulwarks of freedom. But we’ve also written about how when procedural hurdles are eroded away and courts abdicate their role, laws simply converge on the whims of the mob:
It’s easy to point to moments where the Supreme Court spectacularly discarded people’s rights — Plessy v. Ferguson, Buck v. Bell, Wickard v. Filburn, Korematsu v. U.S., etc. etc. — as the thing that allowed a terrible chain of events. But did they allow the events, or were they caused by those same events? In the case of, say, Korematsu, you had a country that was willing to force everyone on the west coast with Japanese ancestry into camps. Would that country have been stopped by a Supreme Court that in the midst of it all piped up to say, “Hey everyone, you can’t imprison people for being Japanese, ok?” And more to the point, would such an environment produce a Supreme Court that would say that?
The Commerce Clause is an area where the brakes remain fully off today. That’s the bit in the Constitution from which Congress ostensibly gets the power to pass the vast majority of federal law, and it reads, “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
That’s it. For a while, it meant that, broadly speaking, Congress didn’t have the power to pass laws regulating behavior within a state. (Side note: this is why the National Firearms Act is a tax, not a straightforward ban on possession. In 1934, at the time of the NFA’s passage, the consensus was that the Commerce Clause did not grant Congress the power to ban possession of an item. The same section of the Constitution does explicitly give Congress the power to pass and enforce certain taxes, so the NFA’s writers felt that put the law on surer constitutional footing.)
That lasted until 1942, with Wickard v. Filburn. The government had set limits on how much wheat a farmer could grow, in an effort to centrally plan the supply and prices of the grain. Roscoe Filburn, a farmer in Ohio, exceeded his permitted limit, but he’d grown the excess in order to feed animals on his own farm. From Wikipedia:
Filburn grew more than was permitted and so was ordered to pay a penalty. In response, he said that because his wheat was not sold, it could not be regulated as commerce, let alone “interstate” commerce (described in the Constitution as “Commerce… among the several states”). The Supreme Court disagreed: “Whether the subject of the regulation in question was ‘production’, ‘consumption’, or ‘marketing’ is, therefore, not material for purposes of deciding the question of federal power before us…. But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’“
The Court decided that Filburn’s wheat-growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally, is thus interstate, and is therefore within the scope of the Commerce Clause.
Yup, that’s what brakes-off looks like. Once the Supreme Court decided that Congress could ban someone from growing wheat on their own land for their own animals’ consumption, the Commerce Clause effectively no longer existed.
So why can you still legally buy a car that goes 160 mph?
“Because Congress doesn’t have the power to ban that.” That’s been out the window for the past 90 years.
“Because freedom. We don’t ban things for precrime.” That’s a perfectly good philosophical position, but hasn’t really ever stopped Congress from … doing Congress things.
The only remaining explanation is, “Because people would absolutely lose their shit if Congress tried to ban it.” The rebuttal would be, “Well, why do you need to go 160 mph?” And the rebuttal to that would be, “Wrong question. Freakout intensifies.”
There’s a Mark Twain quote that “The best swordsman in the world doesn't need to fear the second best swordsman in the world; no, the person for him to be afraid of is some ignorant antagonist who has never had a sword in his hand before; he doesn't do the thing he ought to do, and so the expert isn't prepared for him; he does the thing he ought not to do; and often it catches the expert out and ends him on the spot.”
If the only check on legislative overreach is easy to predict and easy to manage, then it’s not really a check at all. Disproportionate backlash is effective as a bulwark of freedom because it’s unpredictable and can’t be reasoned with. The threat of backlash is more constructive than the reality of it. But fortunately, the threat is enough.
Gun rights are interesting because they’re not just a means of backlash (e.g. as tools of liberation in the Jim Crow era), but are also themselves a flashpoint for backlash. It’s the speed limiter question on steroids. “Why do you need a 30-round magazine?” The very question misunderstands the nature of freedom. Guns are also a cultural totem in a way that sports cars are not. So discussions of gun rights are like a gym where the hivemind keeps its stochastic backlash skills sharp. The more that spirit stays alive for gun rights, the more it stays alive for other things too. On the ground, that’s what keeps seemingly frivolous freedoms from being chipped away one by one.
This week’s links
After a good period of many flights across lots of states and through loads of airports without incident, I've hit a rough patch recently in my Flying With Firearms travels. In the span of just a couple weeks, I've had gun cases broken into by the TSA at multiple airports. Each incident like this represents a policy and procedural stumble that can (and hopefully will be) addressed by both the TSA as well as the airlines and the airports.
Modern air rifles are more powerful than a .22, and because they’re not firearms under federal law, they can be full auto, suppressed, and ship straight to your door.
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