The US Constitution reserves to the states all powers not expressly delegated to the Federal government. What is the Constitutional provision that allows for Federal laws such as the law that felons may not possess firearms?

This appears to be 18 USC § 922(g).

So, the argument is that because a gun was at one time transported across a state line, the federal government can make laws about who can possess it?

What about a gun that was not transported across a state line, but manufactured in the same state that the felon, or stalker or whatever lives in?

  • United States vs. Miller states that the government only has the right to restrict firearms IF the firearm IS NOT in common use for a militia (military). So, if a firearm is not capable of use by a military, then it can be restricted.
    – john doe
    Commented Mar 13, 2020 at 13:51
  • @johndoe I think the question is asking about the affirmative basis for authority to do so, and not why the Second Amendment does not forbid it. The federal government unlike state government doesn't have the authority to legislative on everything it is not forbidden from legislating upon (at least in theory).
    – ohwilleke
    Commented Jun 2, 2023 at 15:44

2 Answers 2


The Interstate Commerce Clause effectively means all economic activity in the US is under Federal jurisdiction because even something that's not directly involved in interstate commerce, even something not involved in commerce at all, can have an indirect effect on interstate commerce. In Wilkard v. Filburn the government successfully argued that Federal limits on wheat production were enforceable on a farmer that grew his own wheat to feed his own animals even though the farmer never sold his wheat to anyone and the wheat never left the state. A similar more recent case, Gonzales v. Raich, confirmed that this same principle applied to someone growing medical marijuana for personal consumption in a state where medical marijuana was legal.

In your example, the felon is buying a gun manufactured in the same state. While this doesn't have a direct immediate effect on interstate commerce, its indirect effects are more obvious than in the two cases mentioned above. If it were legal for felons to buy guns made in state, but not out-of-state, then it would have a fairly dramatic effect on interstate commerce. Gun manufacturers would set up local manufacturing operations in many states to make guns for the felon market. (In theory at least, in practice I think most if not all states also ban felons from owning guns.)

Also since guns are durable items, unlike wheat and marijuana, it's all but impossible to show that the gun will never leave the state and participate in interstate commerce directly.

  • It is worth noting that, while interstate commerce is the "go to" justification for the authority of Congress to enact laws because it is so expansive, that there are other plausible theories upon which the law could have been based. For example: "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress" from U.S. Const. Art. I, § 8.
    – ohwilleke
    Commented Jun 2, 2023 at 15:51

The justification for federal jurisdiction is the commerce clause. But it doesn't automatically apply to every firearm; the connection to interstate commerce must be real for the law to apply.

In United States v. Lopez (1995), the Supreme Court held the following when striking down the related 922(q) which at that time banned firearms in schools zones but did not have a clause about interstate commerce (emphasis mine):

... although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly those terms are defined. Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under the Court's cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which, viewed in the aggregate, substantially affects interstate commerce. Second, § 922(q) contains no jurisdictional element that would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government's contention that § 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.

The constituionality of 922(g) was later also challenged in court, with a different result. In National Ass'n of Government Employees v. Barrett, (N.D. Ga. 1997), the court upheld the constitutionality of 922(g), stating (emphasis mine, some citations shortened):

Plaintiffs first assert that Congress exceeded its authority under the Commerce Clause with the enactment of § 922(g) (9) and that § 922(g) (9) is thus unconstitutional. In making this assertion, plaintiffs rely on the Supreme Court's decision of United States v. Lopez, in which the Court held that Congress exceeded its authority under the Commerce Clause by regulating the mere possession of a gun. Plaintiffs' reliance on this decision is, however, misplaced. Section 922(g) (9), unlike the statute at issue in Lopez, contains a jurisdictional element, which requires the government to demonstrate that the firearm was possessed "in or affecting commerce" or received after having "been shipped or transported in interstate or foreign commerce." This element is fatal to plaintiffs' facial challenge to the constitutionality of § 922(g) (9). See, e.g., United States v. McAllister, (upholding the constitutionality of § 922(g) (1), which makes it unlawful for felons to possess a firearm, because it contained a jurisdictional element); United States v. Turner, (noting that every court of appeals "has held that the jurisdictional element of § 922(g) provides the requisite nexus with interstate commerce that § 922(q), [the statute at issue in Lopez,] lacked"). Accordingly, defendants are entitled to dismissal of plaintiffs' claims to the extent that those claims are brought under the Commerce Clause.

I think it's clear from these decisions that the interstate commerce nexus is required for this or any similar law to be constitutional. This isn't a case like Gonzales v. Raich; the firearm is legal to sell across state lines for most people, just not for felons, and so its mere existence can't affect interstate commerce.

So, my conclusion is that a gun made totally in-state, with in-state parts, would not violate this law - and furthermore, Congress cannot constitutionally modify the law to change this.

But as the court in State v. Wahl (N.J. Super. Ct. 2004) said:

We also note that the market in firearms is heavily interstate in nature, even international in character, and it would be indeed rare that a firearm, or at least some of its component parts, would have never moved across state lines... Indeed, no more is required than a minimal nexus that the firearm had been, at some point, in interstate commerce.

So it might be difficult to find a gun that doesn't violate this law. Given that it is probably also a violation of state law for a felon to possess a gun regardless of where it was manufactured, I don't see felons going around using in-state guns just to avoid a federal charge on top of the state one.

  • The government needs to prove that weapons had “been shipped or transported in interstate or foreign commerce" because an act of Congress says so (18 U.S.C.A. § 922(g)(9)) not because the constitution says so. This judgement doesn't show that a broader law passed by Congress without this condition would be unconstitutional.
    – Ross Ridge
    Commented May 4, 2020 at 19:06
  • @RossRidge OK, but why did Congress put that interstate commerce restriction in there in the first place? Because they actually care about whether the gun crossed state lines? No, they put it in there because they were worried about the constitutionality of the law if it wasn't in there.
    – D M
    Commented May 5, 2020 at 3:43
  • @RossRidge But you're correct in that this case doesn't actually say that, so I'll edit in a case that does.
    – D M
    Commented May 5, 2020 at 3:58
  • @RossRidge How's this? I think the combination of these two cases, unlike the case I had cited before, clearly shows how the interstate commerce part of the law is actually required for the law to be constitutional.
    – D M
    Commented May 5, 2020 at 4:33

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