Congress can regulate firearms through its commerce and taxing powers—powers enumerated in the US Constitution.
The powers of Congress are limited to those that are enumerated in the United States Constitution.1 The principal powers available to Congress to regulate firearms are the “commerce power,” arising from the Commerce Clause, and the “taxing power,” arising from the Taxing and Spending Clause.2
A regulation based on the exercise of the “taxing power” must be consistent with that power.3 The first federal regulation of firearms, the National Firearms Act (“NFA”), was enacted as part of the Internal Revenue Code in 1934.4 The NFA levied taxes on the manufacture, sale and transfer of certain classes of firearms and enacted regulatory provisions related to the collection of those taxes. For more information about the NFA and other federal statutes relating to firearms, see our summary of Key Congressional Acts Related to Firearms.
Similarly, a federal regulation based on the exercise of the “commerce power” must be consistent with the limits on that power.5 In general, Congress may exercise its commerce power to regulate channels of interstate commerce (i.e., commerce across state lines), the objects moving in interstate commerce, and commercial activities which have a substantial relation to interstate commerce.6
In Lopez, the Supreme Court struck down a provision of the Gun Free School Zones Act of 1990, which prohibited knowingly possessing a firearm in a school zone. The Court held that possession of a firearm in a school zone is not an activity that substantially affects commerce and that this provision was therefore not a proper exercise of Congress’s commerce power.7 Despite the holding in Lopez, many of the more recent federal firearms regulations have been enacted through the commerce power. The Gun Free School Zones Act8 was reenacted in 1996 with the constitutional defects of the 1990 Act remedied. The revised version has been held constitutional.9
The power of government to enact laws in the interests of the public health, safety and welfare of the people is called the “police power.” The police power is at the core of state and local authority to regulate the purchase, possession, transfer and use of firearms. Except with respect to the District of Columbia and the federal territories, the police power is not one of the powers delegated to Congress, but instead is vested in the states.10
The police power of local governments depends on state law. For more information about local authority to regulate firearms, see our page on Preemption of Local Laws.
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- McCullough v. Maryland, 17 U.S. 316 (1819).
- U.S. Const. art. I, § 8.
- Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767 (1994).
- See Sonzinsky v. United States, 300 U.S. 506 (1937).
- United States v. Morrison, 529 U.S. 598, 608 (2000); United States v. Lopez, 514 U.S. 549, 559 (1995).
- Morrison, 529 U.S. at 608-618; Lopez, 514 U.S. at 559-561.
- Lopez, 514 U.S. at 559-568.
- 18 U.S.C. § 922(q).
- See, e.g., United States v. Dorsey, 418 F.3d 1038, 1046 (9th Cir. 2005) (new version of 18 U.S.C. § 922(q) resolves the shortcomings that Lopez found in the prior version because the revised statute incorporates a jurisdictional element which would ensure that the firearm possession in question affects interstate commerce).
- Morrison, 529 U.S. at 618; Lopez, 514 U.S. at 566.