The Commerce Clause and Federal Restraints on the Intrastate Possession of Firearms
By David T. Hardy
Publication Date
September 22, 2026
Abstract
The Constitution grants Congress many powers, including the power to “regulate Commerce with foreign Nations, and among the several States. . . .” The Court’s view of this power has been cyclical: at various points over the last century the Supreme Court has seen the Commerce Clause as important, a trifle, “anything goes,” and then again important (but not always consistently so).
This paper explores those cycles and one area of the law where, despite the turn of the cycle toward a serious view of the Commerce Clause, the “anything goes” approach survives, supported by a 1977 Supreme Court ruling. It survives precisely because, while the Court has entirely undermined that opinion’s precedential value, it has never expressly overruled it, and the lower courts have understandably been reluctant to take that initiative.
That one legal area consists of the Gun Control Act’s restrictions on “prohibited persons”: persons who are federally restrained from receiving or possessing firearms. The federal prohibitions are tied to interstate commerce nexuses, and two 1970s rulings seemingly held that the commerce power encompassed proscribing possession of any firearm that had ever traveled in commerce. Seemingly, because upon closer examination the rulings are seen to involve statutory construction rather than application of the Commerce Clause—that is, they determined what Congress meant to do, not whether Congress had the power to do so. Indeed, the parties at oral argument conceded that the cases posed no constitutional issues.
This paper suggests that the 1970s rulings have been misread as Commerce Clause cases. At that, they are precedent that survives from an earlier “anything goes” era, cannot be reconciled with the present position of the Court, and conflict with several other constitutional values.
Recommended Citation
David T. Hardy, The Commerce Clause and Federal Restraints on the Intrastate Possession of Firearms (Firearms Rsch. Ctr., Working Paper No. 2026-11).
