David T. Hardy (Independent) has posted The Commerce Clause and Federal Restraints on the Intrastate Possession of Firearms on SSRN. Here is the abstract:
The Constitution grants Congress many powers, but none exceed the domestic effect of the power to “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 article will explore 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 massively undermined its precedential value, it has never expressly overruled its holding, 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, but in a 1977 opinion, the Supreme Court essentially re-wrote the statute as enacted, and made meaningless the most significant nexus. This article suggests that the 1977 ruling represents precedent that survives from an earlier “anything goes” era, cannot be reconciled with the present position of the Court, and conflicts with several other constitutional values.