NAPOLITANO: Shooting up the Constitution

Feds have no legitimate role in regulating firearms

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If you have listened to President Obama and Vice President Joseph R. Biden talk about guns in the past month, you have heard them express a decided commitment to use the powers of the federal government to maintain safety in the United States. You also have heard congressional voices from politicians in both parties condemning violence and promising to do something about it. This sounds very caring and inside the wheelhouse of what we hire and pay the federal government to do.

Yet it is clearly unconstitutional.

When the Founders created the American republic, they did so by inducing constitutional conventions in each of the original 13 states to ratify the new Constitution. The idea they presented, and the thesis accepted by those ratifying conventions, was that the states are sovereign; they derive their powers from the people who live there. The purpose of the Constitution was to create a federal government of limited powers — powers that had been delegated to it by the states. The opening line of the Constitution contains a serious typographical error: “We the People” should read “We the States.” As President Ronald Reagan reminded us in his first inaugural address, the states created the federal government, and not the other way around.

Notwithstanding the Constitution’s typo, the states delegated only 16 unique, discrete powers to the new federal government, and all of those powers concern nationhood. The Constitution authorizes the feds to regulate in areas of national defense, foreign affairs, keeping interstate commerce regular, establishing a post office, protecting patents and artistic creations, and keeping the nation free. The areas of health, safety, welfare and morality were not delegated to the feds and were retained by the states.

How do we know that? We know it from the language in the Constitution itself and from the records of the debates in the state ratifying conventions. The small-government types, who warned at these conventions that the Constitution was creating a behemoth central government not unlike the one in Great Britain from which they had all just seceded, were assured that the unique separation of powers between the states and the new, limited federal government would guarantee that power could not become concentrated in the central government.

It was articulated even by the big-government types in the late 18th century — such as George Washington and Alexander Hamilton — as well as by the small-government types — such as Thomas Jefferson and James Madison — that the new government was limited to the powers delegated to it by the states, and the states retained the governmental powers that they did not delegate away. At Jefferson’s insistence, the Bill of Rights was added to the Constitution to keep the new government from interfering with natural rights such as speech, worship, self-defense, privacy and property rights, and the 10th Amendment was included to assure that the Constitution itself would proclaim affirmatively that the powers not delegated to the feds were retained by the states or the people.

The Supreme Court has ruled consistently and countless times that the “police power,” that is, the power to regulate for health, safety, welfare and morality, continues to be reposed in the states, and that there is no federal police power. All of this is consistent with the philosophical principle of “subsidiarity,” famously articulated by St. Thomas Aquinas. Aquinas argued that the problems that are closest to the people needing government intervention should be addressed by the government closest to those people. Its corollary is that all governmental intervention should be the minimum needed.

Now, back to Mr. Obama, Mr. Biden and their colleagues in the government. If the feds have no legitimate role in maintaining safety, why are they getting involved in the current debate over guns? We know that they don’t trust individuals to address their own needs, from food to health to safety, and they think — the Constitution to the contrary notwithstanding — that they know better than we do how to take care of us. Mr. Obama and Mr. Biden and many of their colleagues in government are the same folks who gave us Obamacare, with its mandates, invasions of privacy, increased costs and federal regulation of health care. They call themselves progressives, as they believe that the federal government possesses unlimited powers and can do whatever those who run it want it to do, except that which is expressly prohibited.

This brings us back to guns. The Constitution expressly prohibits all governments from infringing upon the right of the people to keep and bear arms. This permits us to defend ourselves when the police can’t or won’t, and it permits a residue of firepower in the hands of the people with which to stop any tyrant who might try to infringe upon our natural rights — and it will give second thoughts to anyone thinking about tyranny.

The country is ablaze with passionate debate about guns, and the government is determined to do something about it. Debate over public policy is good for freedom, but the progressives want to use the debate to justify the coercive power of the government to infringe upon the rights of law-abiding folks because of what some crazies among us have done. We must not permit this to happen.

The whole purpose of the Constitution is to insulate personal freedom from the lust for power of those in government and from the passions of the people who sent them there.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey and senior judicial analyst at Fox News Channel, has written seven books on the U.S. Constitution.

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