Guns and Commerce in Dialectical Perspective

The dialectical method of logic, commonly named the Hegelian dialectic, is founded upon the reconciliation of opposites: one concept or event (thesis) inevitably produces its opposite (antithesis), and the tension between these opposites generates a new category (synthesis). The Supreme Court's decision in Lopez v. United States marks the intersection of two dialectical progressions, one judicial and one legislative. This article identifies and analyses both of these progressions from which the Lopez synthesis emerges, and upon this basis, predicts a new movement toward the recognition of the virtues of local governance, similar to the values underpinning the European principle of subsidiarity. The Lopez case raises the issue of the extent of the United States federal government's legislative power, which is delegated to the Congress by virtue of article 1 section 1 of the Constitution. The Tenth Amendment to the Constitution stresses that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, the power of the federal government to legislate gun control relies on its inclusion into one (or more) items of its catalogue of legislative powers. Even though commentators were almost universal at the time in opining that that the right to bear arms was not a personal right but rather a right enjoyed by each state to arm a militia, the starting point is simply that the individual's right to possess a firearm is absolute (thesis). The antithesis to firearm freedom finally emerged with the 1988 machine gun banning amendment to the Firearm Owners' Protection Act. The Brady Bill enacted in 1993, requiring a five-day waiting period before buying a weapon, can be viewed in Hegelian terms as a synthesis of the two approaches, i.e., the unification of opposites (absolute freedom and prohibition). The early, narrow judicial approach regarding the reach of the interstate commerce clause as a source of federal jurisdiction presupposed a geographical transborder element (thesis). Following the announcement of President Roosevelt's “Court Packing Plan,” the Supreme Court began backing down from its protection of the supremacy of the states in economic matters. The reach of the commerce clause expanded to all activity – even intrastate – if it had some conceivable, albeit only cumulative, effect on an interstate transaction (antithesis). The new approach seemed not to limit Congress's legislative prerogative in any way, as since the New Deal of the 1930s not a single piece of commerce clause legislation had been held unconstitutional for lack of jurisdiction. The Lopez case marks a turning point and can be viewed as a synthesis of the two approaches: the jurisdiction of Congress under the interstate commerce clause is limited to economic activity with a substantial interstate effect. If Congress wished to revive the Gun-Free School Zones Act or enact more expansive gun control legislation, it could follow one of three paths: persuade the states to agree to amend the constitution, fit the legislation into one of the three Lopez categories (channels of commerce, instrumentality, or substantial effect of economic activity on interstate commerce), or entice the states into enacting legislation by offering incentives. Due to the fact that the magnitude of the gun control problem – and, indeed, whether or not it really is a problem – is subject to serious controversy, the author argues that what is lacking is the political will, not the legislative jurisdiction. The author concludes that the political forces that arouse legislative activity are too weak and diffuse to sire vigorous antithetical action by Congress in the near future.