Five years ago I wrote that the Second Amendment is not in force, citing a variety of federal gun control laws that have been on the books for decades. While the 2016 election was often framed as a matter of life and death for the right to keep and bear arms, the reality is that federal gun control enforcement ramped up during the Trump years and the administration made to further undermine gun rights.
The most notorious of those efforts was by President Donald Trump, who instituted a bump stock ban in 2018 by executive order. An unconstitutional restriction implemented through an unconstitutional rulemaking process, it was later overturned by the Sixth Circuit Court of Appeals. The ban drew a rebuke from both federal judges as well as Trump-appointed Supreme Court justices.
At the same time, Trump’s ATF increased enforcement of federal gun regulations compared to the Obama years. Meanwhile, then-Attorney General Jeff Sessions directed the FBI to review the National Instant Criminal Background Check System (NICS).
A report released in July “recommends that the FBI strengthen the controls over the sale of firearms to out-of-state purchasers by updating the NICS background check to verify age requirements of an out-of-state firearm purchaser in both the purchaser’s state of residence and the state of sale to ensure basic age eligibility.”
Federal judges also got into the gun control act. In 2018, a U.S. District Court judge issued a ruling prohibiting the release of computer-aided design (CAD) files containing 3D gun designs.
One instance where the feds acted in defense of gun rights was House Joint Resolution 40 nullifying an Obama-era rule mandating that the Social Security Administration report to the FBI the names of individuals receiving benefits who had a mental illness. In 2017, the U.S. House also passed the Concealed Carry Reciprocity Act of 2017 applying concealed carry permits to other states even if the rules are different.
On the surface, this appears like an admirable policy, but the proposal was based on the erroneous premise that the feds have any authority or say in the matter, or have the ability to interfere with states’ internal affairs. This is why a proposed national concealed carry policy is also a bad idea; it reinforces the belief that the feds have the authority they clearly lack.
All the historical evidence demonstrates that the Second Amendment was written to keep the feds entirely out of anything related to firearm regulations in order to ensure there remained an armed populace. The Tenth Amendment also further emphasizes this by saying any powers not given to the federal government are reserved to the states themselves.
While some states have passed legislation strengthening the right to keep and bear arms, the situation at the federal level remains as it was before: the Second Amendment is still not in force.
The good news is that we don’t have to depend on Congress or any other branch of the federal government to make inroads against federal gun control already on the books. Through anti-commandeering and nullification, state and local governments can make enforcement nearly impossible. This means federal gun control may always exist “officially,” but the day may come when they are as effective as federal marijuana regulations.
While this may seem quixotic, support for gun control among young people has dropped, the greatest reduction among the 18-29 age group.
The Second Amendment isn’t in great shape, but thankfully there’s a “rightful remedy” to address it.
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