In Federalist 51, James Madison acknowledged the complexities of self-government, noting that a government must manage those it governs while also keeping itself in check.
Gun control laws regulate access to various weapons in the U.S., but does Congress overstep its authority regarding machine guns? A new lawsuit from Texas gun clubs aims to enforce a limited view of federal government power.
The Constitution’s strength lies in its separation of powers—not just among branches of government but also between federal and state authorities. This is primarily achieved by outlining federal powers in Article I and reserving others to the states or the people through the Tenth Amendment.
A recent lawsuit by the Texas Public Policy Foundation questions whether these restrictions still hold significance, as the Constitution does not grant Congress the authority to create comprehensive criminal laws.
In fact, only four specific crimes are outlined in the Constitution: counterfeiting, piracy and high-seas felonies, violations of national laws, and treason.
However, by the 1980s, the Department of Justice had created around 3,000 federal criminal offenses, with many justified by the Interstate Commerce Clause.
The Supreme Court ruled that Congress could regulate domestic wheat, even when it neither crossed state lines nor entered the market, leading to a broadened interpretation of the Commerce Clause to encompass nearly all trade-related activities.
Yet, very few of these federal laws directly relate to interstate commerce.
The case in point is the machine gun regulation. Since the National Firearms Act (NFA) of 1934, Congress has restricted the possession and transfer of machine guns, claiming authority through its taxing powers.
In 1986, Congress took further action by banning the ownership of machine guns made after that year, regardless of tax compliance. This is codified in 18 USC § 922(o) and is largely based on the Commerce Clause.
The flaw is that an individual can be convicted under § 922(o) without any proof of a connection to interstate commerce. This makes it seem more like typical criminal law, which is a power reserved for the states, rather than a regulation of interstate trade. After all, Congress lacks the authority to create general criminal laws.
That’s why the Texas Public Policy Foundation is suing on behalf of the Temple Gun Club, contesting § 922(o) as exceeding Congress’ authority under the Commerce Clause. Advocates of constitutional law may recall the case Commonwealth v. Lopez, where the Supreme Court deemed the Gun Free School Zones Act unconstitutional, citing the Commerce Clause.
Following that, then-Third Circuit Judge Samuel Alito referred to § 922(o) as “the closest living relative” of the law struck down in Lopez.
Similar to GFSZA, § 922(o) merely regulates gun possession—not the purchase or sale of firearms. The statute does not include any interstate commerce element, unlike the amended GFSZA, which was modified to add such a jurisdictional requirement.
This brings up another point about attenuation: if Congress can regulate items that are traded across state lines, what can’t it regulate?
Most goods sold today traverse interstate and even global supply chains, so limiting Congress’ power regarding interstate goods might not really limit it at all.
This lawsuit faces a tough road ahead, as Fifth Circuit precedent has upheld § 922(o) against prior constitutional challenges. Still, six judges on the Fifth Circuit have expressed doubts about whether the Commerce Clause applies to § 922(o) prohibitions.
This case opens the door for the Fifth Circuit to re-evaluate previous decisions and potentially realign with the original intent of the Commerce Clause.
