The 2008 Supreme Court case District of Columbia v. Heller is considered the operative precedent when it comes to banning firearms. The 5-4 majority opinion in the case, authored by the late Justice Antonin Scalia, found that while “dangerous [and] unusual weapons” could be proscribed under the Second Amendment, guns in “common use” could not be.
The AR-15 is currently the country’s most popular rifle; that would appear to put it well under the “common use” umbrella.
How then to square that with Robert Francis “Beto” O’Rourke’s much-quoted, clearly much-rehearsed vociferation during Thursday’s Democratic debate in Houston: “Hell, yes, we’re going to take your AR-15, your AK-47. We’re not going to allow it to be used against our fellow Americans anymore”?
Fairly easily, if you ask Beto, since he doesn’t think his plan to force owners of AR-15s and similar rifles to sell them back to the government involves the Second Amendment at all.
Appearing Sunday on NBC’s “Meet the Press,” O’Rourke was asked by Chuck Todd whether or not his plan — such as it may actually be an actual plan and not just a line he’s going to repeat on the stump repeatedly — could pass constitutional muster.
“You heard, at one time, I believe, it was Vice President Biden offer it up and he said, ‘Don’t forget the Constitution,'” Todd said. “So let me ask it this way. What is your interpretation of what the Second Amendment allows and what the Second Amendment does not allow?”
“I’ll put it this way. This is something that we’re able to do through the Commerce Clause. And this is something that is not prevented from — wouldn’t prevent the United States from doing by the Second Amendment,” Beto said.
“So, this is constitutionally sound. This is absolutely necessary, if we care about the lives of our fellow Americans.”
The Commerce Clause is the name given to Article 1, Section 8, Clause 3 of the Constitution. That states Congress shall “regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.” In practice, this generally means that interstate commerce falls under the watchful eye of Washington, although the extent to which this power can be used and what it applies to is often controversial.
Beto didn’t actually follow up on how banning AR-15s could fall under the aegis of the Commerce Clause. (To be fair, Todd didn’t bother following up on this either, which actually seems worse: When a candidate tells you he can ban and seize an entire class of guns under the Commerce Clause, that should set off klaxons in the mind of any political chat-show host.)
Instead, O’Rourke launched into one of those interminable, unverifiable anecdotes that so often pepper political campaigns.
“And here’s something I want to tell you,” Beto said.
“Going to a gun show in Conway, Arkansas, stopping at a Buc-ee’s in Katy, Texas, yesterday, listening to owners of AR-15s, Republicans, who come up to me and say, ‘You know what? I own one of these guns. Don’t need it to hunt, don’t need it for self-defense. This is the right thing to do. I would gladly give it up, because I also have kids who are in school. And I fear for their safety,’ or, ‘I have grandkids. I want to make sure that this country is safe for them.’
“So not only is this constitutionally sound, I think there’s support beyond the Democratic Party, to include Republicans and Independents, gun owners and non-gun owners alike, to do the right thing.”
Sure. Show me one of these people.
I remember his detour to the gun show in Conway, Arkansas. During the 30-minute photo-op, judging by tweets from his communications director, they found one (1) guy who was a Republican that said he was “ok with a mandatory assault weapons buyback.” The guy was photographed from the back and didn’t give a name or appear on video. The tweet also didn’t say he owned an AR-15.
A Trump voter and Republican is, “ok with a mandatory assault weapons buy back” https://t.co/0KFapMkwyp
— Chris Evans (@ChrisEvans_TX) August 17, 2019
I wasn’t with him during his stop at Buc-ee’s in Katy, Texas, but others on social media expressed some doubt as to the veracity of the account.
New O’Rourke anecdote: He says a longtime Republican chatted him up today in @BUCEES bathroom on guns. “He said, ‘This is gonna be strange — not strange that I’m talking to you while we’re both at a urinal … but strange because I’m telling you you’re absolutely right on guns.”
— Patrick Svitek (@PatrickSvitek) September 14, 2019
Beto is a weird, weird dude. And there’s no way a guy at Buc-ee’s was chatting him up about guns at the urinal. https://t.co/Oue4gUJp6u
— James Hasson (@JamesHasson20) September 14, 2019
I digress, however, since the good citizens of Buc-ee’s have nothing to do with the application of the Commerce Clause to what’s essentially a Second Amendment argument.
I’m thoroughly confused as to how this works out constitutionally and I doubt I’m the only one. In fact, Twitter confirmed it.
Beto goes on Meet the Press and Chuck asks him if any constitutional concerns about gun confiscation. He members out Commerce Clause and concludes clearly constitutional. Chuck accepts this answer that would get a zero in law school and moves on. #spineless
— jg (@jgrier4567) September 16, 2019
The question was “what is your interpretation of the 2nd amendment? What does it allow and not allow?”
Beto dodges @chucktodd’s question by simply saying “the federal government can take semi-automatic weapons through the Commerce Clause”.
Follow-up is definitely needed. https://t.co/KwH1jvkdt5
— Anthony Leonardi (@TonyDLeonardi) September 15, 2019
To Beto the commerce clause trumps the second amendment. I’m not so sure SCOTUS would agree. #ThisWeek
— Ted S (@TiredPappy) September 15, 2019
For whatever it’s worth, the Supreme Court has already struck down one federal gun control law that relied on the Commerce Clause for its enforcement. In the 1995 case United States v. Lopez, the court found that the Gun-Free School Zones Act of 1990, which federally prohibited carrying guns on school property, was an overreach on the part of Congress.
A previous ban on so-called “assault weapons” was found to be constitutional when it was enacted in the 1990s. However, that law didn’t involve weapons seizures and grandfathered in firearms that had been purchased before the law took effect.
Circuit court decisions have found that “[t]he Supreme Court has repeatedly held that the manufacture of goods which may ultimately never leave the state can still be activity which substantially affects interstate commerce” and that a “ban on possession is a measure intended to reduce the demand for such weapons,” which can fall under the Commerce Clause.
These were circuit court decisions based on bans on transfers and possession of either illegally transferred or manufactured rifles, though, not lawful weapons — and most importantly, they occurred prior to District of Columbia v. Heller, which established the “common use” test for whether a firearm could be banned under the Second Amendment.
Moreover, Ilya Somin notes this at Reason: “In cases such as United States v. Lopez and United States v. Morrison, the Supreme Court ruled that the Commerce Clause gives Congress the power to regulate almost any ‘economic activity’ as long as it had some substantial ‘aggregate’ effect on interstate commerce.”
“But,” Somin continued, “it also emphasized the need to limit federal power under the Clause, so that it would not turn into an unconstrained general ‘police power,’ and noted that, at least as a general rule, Congress cannot use the Commerce Clause to regulate ‘noneconomic’ activity merely because it had an aggregate effect on interstate commerce.
“Otherwise, Congress would have the power to restrict almost any activity, as virtually anything we do affects interstate commerce in some way (especially in combination with similar behavior by others).”
Whatever the case, Beto didn’t elaborate as to how he thought the Commerce Clause would override Second Amendment case law, something I think Americans would like to hear before co-signing Beto’s plan as constitutional.
Until then, it’s just a throwaway line in a debate that’s good for selling T-shirts and guns but doesn’t necessarily pass constitutional muster — no matter what the folks at Buc-ee’s may or may not have said.
Of course, given Beto’s low poll numbers, it’s unlikely we’ll ever find out.
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