Universal Background Checks Are Constitutionally Suspect

(Lucas Jackson/Reuters)UBCs violate the original meaning of the commerce clause — and are likely ineffective at combating the very malady they’re alleged to address.

Once more I find myself in the unenviable position of disagreeing with one of America’s brightest legal minds, John Yoo. In January, Professor Yoo and I debated the legality of various aspects of the Trump administration’s border-wall emergency declaration. Today, I’m going to dissent from his assertion in an NRO article published last week that universal background checks (UBCs) — as applied to intrastate transfers between private citizens — are constitutionally kosher.

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I agree with him that UBCs don’t violate the Second Amendment. The right to keep and bear arms does not extend to violent felons or the dangerously mentally ill. But I part company with Professor Yoo when he argues that federally mandated UBCs on intrastate transfers between private citizens (as opposed to federally licensed firearms dealers) do not violate the commerce clause. When Congress extends its regulatory authority to the simple transfer of an existing legal good between two individuals within the same state, it blasts through the plain meaning of the Constitution, and it even strains existing precedent (which

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