Guns & Government: The Anti-Federalist Solution

With the gun control debate still raging nationwide, we should carefully consider the original intent of the Founding Fathers in applying the U.S. Constitution – including the Bill of Rights — to federal, state and local governance.

While many arguments and interpretations have been directed at parsing the language of the Second Amendment there’s a larger concept at stake here that dates back to colonial times: federalism versus anti-federalism.

These are terms we don’t hear about often enough. Yet they may hold the solution to the larger debate over guns and government, which appears to spiraling out of control based on the escalating vitriol.

Ironically enough, the orginal Federalists of the late 1700s called for a decentralized government. Yet it was the anti-federalists who ultimately espoused the belief of preserving and protecting states rights. It’s a question of whether government works best from the bottom up, or the top down? It may just depend on the specific issue at hand, in this case gun laws.

Will of the People

We often forget that the Founding Fathers envisioned a relatively weak central government with limited power — a stark contrast to today’s sprawling bureaucracy of about two million civil servants working for Uncle Sam. In theory, at least, a limited central government better reflects the will of the people — or so the crafters of the Constitution thought.

However, it’s obvious by now that the original theory of federalism (decentralized government) has been flipped on its head. The federal government has assumed more and more power over the states, over time, on a wide range of policies and predicaments. Scholars even coined the term “Imperial Presidency” in reference to all of the additional powers assumed by the Executive Branch — and that was about half a century ago.

States Rights

Yet states rights appear to have be discarded from the national gun debate. This begs the question of what the federal government’s role should actually be in relation to gun control laws and regulations? Has Uncle Sam bitten off more than he can chew?

States still have unique and unequivocal constitutional rights, at least as originally articulated and intended. The Tenth Amendment states:

  • “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.”

While Congress and the White House continue to disagree with vehemence, the solution to the issue of firearms and gun control may actually be found at the state and local levels — where the people are not just self-serving superficial politicians in Washington.

Lens of Anti-Federalism

What if the Executive Branch got out of the way altogether by delegating authority over gun laws exclusively to the states? Could this be a viable solution when viewed through the lens of federalism vs. anti-federalism?

Why not further empower states to formulate their own gun laws, as they already have, according to the will of people at the grassroots level? Why does the federal government need to be Big Brother?

Deferring gun law decision making to the states makes sense due to clear differences among the 50 states on numerous fronts, including regional geography, population size and other demographic variables, ideological and moral philosophy, as well a codes of conduct and standards of living, among other factors.

Diversity of Gun Laws

Having gun laws decided on a state-by-state basis may be preferable to the Executive and Legislative Branches imposing a one-size-fits-all solution — along with the accompanying political dysfunction and partisan gridlock.

For instance, gun sentiments and gun laws in New York and Maryland are very different – if not completely opposite — from Texas and Florida. Thus what’s wrong with a diversity of gun laws?

While anti-federalism may not solve all the gun-related problems we face, at least state and local governments would be more empowered to reflect the will of the people on this unique issue.

We’ve witnessed the regretful results of today’s out-of-touch lawmakers in Washington, who are solely consumed by political self-interest. Whatever happened to the will of the people from the grassroots up?

Isn’t that what democracy is supposed to be all about?

Also see:

Guns & Government: What’s the Solution?

Guns & Gov: Banning Assault Weapons

Should U.S. Schools Have Police Presence? The NRA Says YES…

What the NRA Should Have Said


* All views and opinions expressed herein are those of the author only.

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Peter Sperry

So how would you apply this logic to: civil rights, gender equity issues, Defense of Marriage Act, EEOC, speech, press, religion etc?

If each state can decide for themselves which sections of the Bill of Rights will be respected within their borders, what would be the legal foundation for enforcement of the Voting Rights act? What would be the legal basis for challanging DOMA?

The issue of whether or not individual states have the authority to disregard fundamental individual rights recognized in the Constitution was setteled between 1861 and 1865. The decision was codified in the 14th Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

States have the right to act as labratories of Democracy by trying different methods of delivering government services or even determining for themselves which services they will or will not provide. But they do not have the authority to overide the Constitution regarding fundamental liberties. it will be interesting to see how the Supreme Court rules on some of the new state laws. Particularly in light of the Heller decision.

David B. Grinberg

Thanks for your constructive and thought-provoking comments, Peter. As always, your valuable views are most welcome and appreciated. However, I would make the following points:

  • As the saying goes, “Politics make strange bedfellows”. Therefore, something must be amiss when a purported conservative from a gun-loving state argues against states rights and for more Big Government through Executive Branch imposition – regardless of the issue at hand. What would Ronald Reagan think?
  • The NRA know full well that many state gun laws – like in New York and other liberal states — are stronger and arguably more effective than federal gun laws. That’s why the NRA is now aggressively targeting its lobbying efforts at the state and local levels, having already locked up support in the U.S. Congress a long time ago.
  • Regarding individual rights, what about the right to protect yourself and your family from harm and to safeguard your own well being? What about the right to “Life, liberty and the pursuit of happiness?” What about the Second Amendment’s right for individuals “to keep and bear arms”? This individual right is the most important underlying principle at the heart of the NRA’s mission and that of other pro-gun groups. Notice the language of the Second Amendment recognized both the “security of a free state” as well as “thr right of the people” — hence, the Founding Fathers must have recognized the Constitutional conflict between states rights and individual rights, which buttresses my point about original intent.

  • I agree that the Judiciary in general, and the Supreme Court in particular, should be the ultimate arbiters in interpreting gun laws and Constitutional law. While the federal government provides and performs a multitude of beneficial services for the public, it can neither legislate national solutions for every major problem, nor impose the purported will of the people through executive actions only. Thus, let the states make gun laws and let the courts make legal rulings based on strict Constitutional interpretation.
  • Last but not least, this blog post is a theoretical argument applied to the gun issue only. I don’t pretend to be a Constitutional law scholar and I don’t favor extending this particular legal theory to all the other noble causes you cited. Nevertheless, thinking outside-the-box helps to encourage open dialogue and stimulate debate, a healthy bi-product of any well functioning democracy.

Again, when the pro-gun crowd aggressively argues against states rights and for more Big Government, one immediately senses an ideological contradiction for political purposes. Nice try, Peter.

John L. Waid

Very interesting observations. Your historical analysis is absolutely correct — the nature of government today is most definitely not what the Founding Fathers envisioned. Towards the end if his life, Supreme Court Justice William O. Douglas said in a speech that he and Hugo Black and the other liberal members of the court decided that the state had blown it government-wise, and everyone would be happy if they just turned all power over to the Feds. As a result, the court proceeded to turn the Constitution upside down and arrogate more power to the federal government. The Supremes also reduced the Tenth Amendment to the level of a historical footnote, because it stood in their way. At the end of his speech, Justice Douglas noted that all they really accoplished was creating an octopus that no one could control.

You note that the states have already adopted gun policies. The only role the feds should have is to keep people from one state from being arrested when they cross into another with a weapon that is legal where they come from. NYC Mayor Bloomberg loves doing that to gun owners.

We are, unfortunately dealing with politicians who have their own personal agendas. Mr Obama is interested in pushing his long-held anti-gun agenda, not solving a problem. Legislators pay attention to whatever will get them through the next election. While it would be nice for them to calmly consider the policy implications and what might actually be effective in dealing these issues, I don’t hold out much hope.

David B. Grinberg

Yesterday’s Washington Post reports in a front page article:

The NRA: Flexing muscle in states, group serves notice (newspaper headline)

“In state capitals and city halls nationwide, the National Rifle Association is demonstrating its enduring ability to thwart new firearms regulations and expand rights for gun owners — even after a school massacre in Newtown, Conn., gave the gun-control cause new momentum…”

“The group and its allies, confident in their traditional ability to influence congressional action, consider state capitals the prime battlegrounds and are planning to shore up their influence where they may be vulnerable…”

“The post-Newtown efforts by gun rights activists follow two decades of success in transforming the policy and political landscape from the ground up. With the debate largely at a stand-off in Washington over the past 20 years, state after state has expanded gun owners’ rights…”

Also check out infographic: A snapshot of state gun laws.

Tom Sullivan

David, thanks for the invitation to comment. I’ll start by saying I think you pretty much nail it with respect to the history and your references to the intent of the founders (I could nit-pick a bit, but…), at least as far as my understanding and analysis goes.

You state that you think an anti-federalist approach might “hold the solution” to this issue. Although I would certainly prefer a state-level, or even better a local-level solution; when it comes to our inalienable rights, there is no solution which involves government at any level. “…shall not be infringed” is pretty clear language to me (SCOTUS rulings not withstanding), and any government rule that impedes, delays, restricts, or increases the cost of my access to a particular firearm or accessory is an infringement. So even as desirable as I would find a state solution as compared to a federal solution in most instances, there is a third option…get government, at any level out of issue all together.

You reference “state’s rights” several times, and are simply echoing language from the constitution itself. This is unfortunate language though as people have rights; governments have powers. Our Creator, nature, whatever did not create and endow with inalienable rights, governments. Governments are creations of people and therefore only exercise powers delegated to them by the people…in a perfect world anyway.

You also refer to this issue a couple of times as unique. I beg to differ. This right is a right the same our right to be secure in our possessions, to speak our mind, to worship (or not) as we see fit, etc., etc. There should be no distinction between rights. All that does is attempt to set them up in a hierarchal, rank structure where one is “valued” more than another. The fact that a majority are willing to give some level of government some level of control or power over their right does not (should not) impact or affect me in any way shape or form. That moves away from a republic the founders envisioned directly towards mob rule.

This brings me to my last point. Although what we have today is more like a democracy, it was envisioned as and designed to be a representative republic. Democracy is nothing but a fancy word for mob rule and I think the founders would be horrified to see us in the state we’re in today.