In May, Reps. Alex Mooney, R-W.Va., and Steve Scalise, R-La., introduced a bill called the “The Firearms Interstate Commerce Reform Act” (House Resolution 2443). In short order, Mooney also published op-eds across West Virginia crowing about how his bill “defends the Second Amendment.”
But HR 2443 doesn’t have anything to do with the Second Amendment. It has to do with commerce. The title of their bill makes that very clear: “firearms” and “interstate” are describing what kind of commerce reform is in the bill.
And what so-called constitutional conservatives don’t want people to realize is that commerce is not covered in the Second Amendment.
The text of the Second Amendment is only twenty-six words long:
“A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
If we are going to insist on originalist and textualist interpretations of the Constitution, then we have to acknowledge that there is not one word in the Constitution or the Bill of Rights that guarantees anyone the right to buy or sell a gun in the United States of America.
The Second Amendment does not say one word about “buying” “selling” “acquiring” “trading” “exchanging” or any other synonym that vests an individual with the inalienable right to arms dealing. For that matter, there is no guarantee to the inalienable right of arms manufacturing either.
And there is no reasonable interpretation of “keeping” or “bearing” that implies that our Founders intended them to mean “buying” or “selling.”
And even if we accept Antonin Scalia’s tortuous reasoning that the Second Amendment guarantees an individual right to bear arms — there is no way to conceive of that individual right to bear arms as an individual right to buy or sell arms.
The buying, selling, trading and exchanging of goods and services is broadly called “commerce.” Commerce is explicitly covered in Article I, Section 8, Clause 3 of the U.S. Constitution.
Article I, Section 8 is a hotly contested section, in part, because of the broad range of interpretations about what Congress may deem “necessary and proper.” But the simple fact is, Article I, Section 8, Clause 3 (called the “Commerce Clause”) gives explicit and unlimited power to Congress “To regulate Commerce with foreign Nations, and among the several States.”
This means at least two things:
If a gun is manufactured outside of the U.S., Congress can pass laws regulating the purchase and sale of that gun, or could completely ban those guns from crossing into the United States. Secondly, when a gun crosses state lines to be sold, Congress can pass laws regulating the purchase and sale of that gun.
Both of those things can be easily accomplished legislatively without in any way infringing on a gun owner’s rights.
The Second Amendment does not guarantee that every gun owner can be a gun buyer or gun dealer; in fact, it would be very bad if a militiaman sold a state-provided gun in order to buy bread or to pay off a gambling debt.
The Second Amendment, at most, only guarantees that the federal government will not actively disarm people.
Congressmen Mooney and Scalise and the other co-sponsors of HR 2443 may support everyone’s right to buy a gun and to carry their guns anywhere — but that doesn’t make them defenders of the Second Amendment. It only makes them defenders of arms dealers and their D.C. lobbyists.