The Constitutional Argument Against Universal Background Checks

As we approach the possibility of universal background checks becoming a reality, something which seems to be growing by the day, there are a lot of arguments about the constitutionality of such checks. Many of those revolve around the Second Amendment, which is fine. The Second Amendment doesn’t include a clause where it’s OK to infringe on someone’s rights if they don’t ask the FBI for an OK first.


However, over at the National Review, David French lays out a case for it being unconstitutional for its violation of the Commerce Clause.

Once more I find myself in the unenviable position of disagreeing with one of America’s brightest legal minds, John Yoo. In January, Professor Yoo and I debated the legality of various aspects of the Trump administration’s border-wall emergency declaration. Today, I’m going to dissent from his assertion in an NRO article published last week that universal background checks (UBCs) — as applied to intrastate transfers between private citizens — are constitutionally kosher.

I agree with him that UBCs don’t violate the Second Amendment. The right to keep and bear arms does not extend to violent felons or the dangerously mentally ill. But I part company with Professor Yoo when he argues that federally mandated UBCs on intrastate transfers between private citizens (as opposed to federally licensed firearms dealers) do not violate the commerce clause. When Congress extends its regulatory authority to the simple transfer of an existing legal good between two individuals within the same state, it blasts through the plain meaning of the Constitution, and it even strains existing precedent (which has long granted Congress more regulatory power than the Founders intended).

But let’s next consider that flawed Supreme Court authority. Professor Yoo may very well be correct that the Supreme Court would interpret cases such as Gonzalez v. Raich to uphold the application of UBCs to private, intrastate sales, but I’m not quite as confident as he is.

Raich is a classic example of the drug-war distortion of American constitutional jurisprudence. The Supreme Court has consistently — on matters ranging from free speech to religious liberty and beyond — granted the state an impermissible amount of power to fight the scourge of drugs. Raichis no exception. In that case, the petitioners challenged federal prohibitions against their growing, possessing, or obtaining cannabis for personal use. They brought the challenge after DEA agents destroyed six personal cannabis plants they had cultivated for medicinal purposes in compliance with California state law.

Relying on the New Deal abomination of Wickard v. Filburn (which applied federal wheat regulations to wheat grown for personal use only), the Court noted that when “Congress decides that the ‘total incidence’ of a practice poses a threat to a national market, it may regulate the entire class.” It observed that — just as in Wickard — the home growth of a crop (though insignificant in the particular case) could, in the aggregate, have a substantial effect on the supply of a good and thereby affect the interstate market.


Honestly, go and read the whole thing.

The short, short version is that requiring background checks for sales between individuals within the same state flies in the face of the Constitution. After all, firearms are legal goods. No other legal good requires one person to perform an invasive check on another’s criminal history before a monetary transaction can take place.

Some transactions are outright banned, mind you, such as selling prescription drugs, but few are permissible if you seek the state’s permission first. Referring to prescription drugs, it’s still illegal to sell your medicine to someone else, even if they have a prescription for that exact medicine.

So not only are UBCs useless for stopping crime, they’re constitutionally suspect, as the National Review‘s David French notes, though possibly not for the reason some might argue.

For those who maintain it’s a Second Amendment violation, I get it. Don’t get upset at French for saying it’s not. He still agrees it’s unconstitutional, though for a different reason. Take his argument, add it to your own, and use it to bolster your own arguments going forward.

We’re going to need them.

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