Two of the most misunderstood clauses in the Constitution are the Commerce Clause and the
Second Amendment. But in both cases, the misunderstanding centers around the meaning of the word “regulate.”
Nowadays, we consider the word “regulate” to mean restriction and prohibition. But is
this what it has always meant? Is this how we should read the word when it appears in
the Constitution?
The Commerce Clause is Article I Section 8 Clause 3, which says that Congress shall have
the power to regulate commerce among the several states. This is commonly known as the “interstate
commerce” clause, although as you can see the words “interstate commerce” appear
nowhere. It is widely interpreted today to mean that Congress can pass whatever restrictions
it likes against forms of commerce that move from state to state, again based on what we
today consider the meaning of the word “regulate.”
The Second Amendment is another place in the Constitution where we see the word “regulate.”
Here it is being used by gun control advocates as justification: if Congress has the power
to regulate the militia, then it must be able to restrict arms, require licenses, etc.,
because as we all know the word “regulate” means “prohibit,” right?
First of all, remember from Lecture 3 that the Bill of Rights confers no new powers on
Congress, it only restricts Congress’s enumerated powers. But even so, we’ll look at the meaning
of “regulate” and see if there is any justification here at all.
One note: you usually see two extra commas in this amendment, one after Militia and the
other after Arms. This is due to a transcription error and was not in the amendment as proposed
by Congress and ratified by the states. No special meaning or changes to the amendment
should be inferred by their presence, as some gun control advocates do.
So, what does the word “regulate” mean? Does it include the power to prohibit? Remember
from Lecture 2 that we must go by the meaning of the word as it existed at the time of ratification.
So, what did people at the time mean by “regulate”? Perhaps a good place to start is with the
dictionary definition, from a dictionary widely used at the time.
At the time, the biggest English dictionary was Samuel Johnson’s. His name was used
the way Noah Webster’s is used today. He began his work in 1746, and was finished nine
years later, with only a single clerk for assistance. It came to be seen as definitive,
used throughout the English-speaking world. The entire text is available for free at books.google.com.
Johnson’s dictionary defined “regulate” as “to adjust by rule; to direct.” In
other words, regulate, at its core, means “to make regular.” Essentially, to regulate
something is to say, “If you want to do this, here is the process you must go through.”
This is in diametric opposition to prohibition or limitation. So, to regulate commerce among
the states means to make such commerce regular, to stop states from imposing restrictions,
duties, or excises on goods from other states, and to encourage the free flow of commerce.
In the case of the Second Amendment—remember that it is the militia that is well-regulated
and not arms—this means that the militia should have sufficient resources to make it
“regular,” and have the ability to follow the necessary requirements to make it effective.
An armed citizenry is crucial to this end. In fact, since the whole point of the amendment
is to stop the government restricting arms, then regulating as prohibition is nonsensical.
Another place to look for the meaning is in the ratification conventions. In the records
from these conventions, we see the word “regulate” being used to describe the government’s
role in elections, jury trials, courts, and many other aspects of government. Obviously
there is no plausibility in the reading of “regulate” to mean restriction or prohibition
in these cases.
Another good place to go to see the commonly used meaning of words is in newspapers. The
Pennsylvania Gazette is the newspaper for which the most articles survive to this day.
According to a study by Constitutional Law Professor Randy E. Barnett of George Mason
University, during the period of ratification the Gazette used the word “regulate” 393
times, and “regulation” 410 times. In each and every case, the usage was consistent
with the meaning “to make regular.” There was no sense at all in which it implied restriction
or prohibition.
But perhaps the most obvious and unimpeachable source for this is the Constitution itself,
as it mentions regulate in many other places. Seeing how the word is used elsewhere in the
Constitution demands a consistent reading in the Commerce Clause and the Second Amendment.
For example, in Article I Section 4, the state legislatures are given the power to set the
times, places, and manners of holding their elections. It also gave the Congress the power
to alter “such regulations.” Setting a time, place, and manner of something is therefore
regulating, but there is no sense in which this is any kind of prohibition. Prohibiting
an election or restricting the votes would be an affront to our liberties.
Also, Clause 5 of Article I Section 8 gives Congress the power to regulate the value of
money. Notice that this does not confer any kind of power on Congress to prohibit money
or restrict who can use it. It can’t even “regulate” its value to “zero.”
But nowhere is it more plain than in Article III Section 2 Clause 2. Here, it gives Congress
the power to make both “exceptions” and “regulations” to the appellate power of
the Supreme Court. By making exceptions separate from regulations, it makes it completely clear
beyond any doubt that the word “regulation” does not in any way include restrictions or
prohibitions, or else there would have been no need to also explicitly grant them the
power to make exceptions.
Now, does giving Congress the power to “regulate” mean that absolutely no power to restrict
is inferred? No, because quite clearly there are cases where restrictions are necessary
to regulate. But it is not the thing being regulated that the restrictions are levied
against. That would be contradictory.
For example, the Commerce Clause makes sure that commerce shall be regular. In that sense,
there are many restrictions that should not be placed on commerce. So in the power to
regulate is the power to stop the states from placing restrictions on commerce, which is
itself a restriction. It’s not a restriction on commerce, however; it’s a restriction
on the states’ ability to interfere with commerce.
The defining case on this issue, and indeed one of the biggest defining cases on the Constitution
itself, is Gibbons vs. Ogden. The State of New York had restricted navigation of its
waters from a privately-run ferry from New Jersey that competed with a ferry run by the
state of New York. The Supreme Court found that, since by restricting navigation they
were restricting commerce, specifically the service of a ferry, that the State of New
York was in violation of the Commerce Clause. Indeed, how can one engage in commerce among
the states without something crossing the state lines? Here is the Commerce Clause used
in its proper scope: stopping the states from putting restrictions on commerce that moves
in or out of them.
So, despite how this word “regulate” has been misinterpreted by politicians, pundits,
and the courts, it is very easy to see that the Commerce Clause in no way restricts how
people and businesses may conduct commerce with each other, merely preserving and “making
regular” the means by which they can do so. Likewise, in the Second Amendment, the
word “regulate” in no way allows the government to restrict or prohibit the keeping and bearing
of arms; in fact, it’s just the opposite. The understanding of this one crucial word
shows how the Constitution is there to preserve our liberty from the power of the state more
than anything else in the entire text. We must therefore vocally correct those who would
misinterpret our rights into nonexistence. Until next time, stay strong and be free.