One wonders whether Sen. Christopher Murphy, a progressive Democrat from Connecticut, grasps the point of having a constitution.
Discussing the atrocious school shooting in Uvalde, Texas, in which 19 children and two teachers were murdered, he bemoaned the apparent inability of Congress to “do something!” about mass shootings in schools. “When people give up on us dealing with the most important and most existential issues, it means they’re giving up on democracy itself,” he told the New York Times. “And so I think the stakes are high — not just because we’ve got to save lives but also because people’s faith in this whole enterprise is going to disappear if we can’t deliver.”
How ridiculous.
“People” are not losing faith in democracy. Rather, progressives are frustrated because American democracy is based on a constitutional framework that divides power and protects such fundamental rights as dissent and the possession of firearms. Consequently, progressives are unable to get what they want by waving a bloody shirt.
In the United States, the possession of firearms is a fundamental right. It is thus beside the point to tell us, as the New York Times does, that Canada, in its latest descent into authoritarian leftism, has banned handgun sales and is poised to coerce citizens into surrendering “military-style assault weapons” (whatever that means). As a Commonwealth realm, Canada still nominally recognizes the Queen as its monarch and did not even achieve legislative independence from Great Britain until 1982. To the contrary, Americans have always been sovereign. Government is our servant, and our enshrined rights exist to keep it that way.
The right to keep and bear arms is expressly vouchsafed by the Second Amendment. As such, in the absence of a constitutional amendment, the federal government may not deny the right. Indeed, it is in the Constitution as a safeguard against unchecked government’s tendency toward tyranny — in addition to being a reflection of the natural right to self-defense. Moreover, as the Supreme Court has held, the right to bear arms is enforceable against the states through the 14th Amendment, whether under the so-called incorporation doctrine or as a privilege or immunity of citizenship.
The inability of Democrats in Washington to usurp the rights of the people is not a “failure” of democracy. It is how our constitutional democracy works. There is no general federal police power — not over the regulation of firearms or, for that matter, anything else.
Our Constitution separates power both vertically and horizontally. In the former division of authority, the states are principally responsible for their internal affairs, including gun restrictions — subject to the Second Amendment. We have federal gun laws not because the Constitution authorizes Congress to regulate firearms but because guns are deemed commodities in interstate commerce. While the courts have stretched the Commerce Clause beyond its original limitations on congressional action, that does not mean the federal government has displaced the states as the principal firearms regulator. In fact, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the agency charged with enforcing federal gun laws (which has a long track record of not enforcing them) has its roots in revenue collection, not law enforcement.
Horizontally, Congress is one of three branches, and even its legislative authority is divided into two chambers, both of which would have to approve gun bills before they could become gun laws. Though it mystifies congressional Democrats, the stubborn fact is that many people disagree intensely with their Canadian ideas about firearms. That means elected Democrats in states and districts that are not predominantly progressive (i.e., most states and districts in the country) would have exceedingly short congressional careers if they championed proposals for disarming the public.
This, in combination with the razor-thin majorities Democrats, for now, hold in the House and Senate, ensures that the kind of gun regulations progressives demand cannot garner sufficient support to be enacted. Like the right to keep and bear firearms, the right to oppose progressive policy preferences is also fundamental. The public often finds such opposition convincing even if Democrats and their media allies do not. That is why, although Democrats have controlled Congress throughout the Biden presidency, consequential gun legislation has not emerged, much less been touted.
Even if Democrats could push legislation through both chambers, they would need a president willing not only to sign it but enforce it. Congress is powerless in our system to execute the laws it enacts. As suggested above, the executive branch is notoriously lax in firearms enforcement. That is quite apart from the unavoidable fact that most gun enforcement is a state and municipal responsibility: There simply are not enough federal agents to police the gun possession and use of 330 million people, who own over 400 million firearms, even if we relieved the feds of all their other responsibilities!
And even if congressional Democrats could achieve legislative enactment and aggressive enforcement, the courts would remain as an impediment to their ambitions. Federal laws that unduly infringed on Second Amendment rights or transgressed the limits of congressional authority over intrastate firearms commerce would be struck down.
That is not the failure of American democracy. It is the proper operation of democracy in a constitutional system that prioritizes liberty and thus prevents government from running roughshod over our rights.
Andrew C. McCarthy is a contributing editor at National Review and a former federal prosecutor.
