The Constitution gives the Federal Government certain powers and it limits certain powers of the Federal and State governments. Out side of those enumerated Federal powers, there actually IS NO governmental authority. This limit is 100% absolute. The Supreme Court can't grant the Federal Government power that the Constitution did not give the Government or the Court. How can they simply make up power they don't have?
Article 1, Section 8:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
That section is where Congress was granted the authority to pass laws that are not specified in the Constitution. James Madison recognized that if we gave Congress the power to determine what is and is not for the general welfare of the United States, then every portion of our lives would be under the control of Congress. As we see today, Congress has inserted itself into education, traffic laws, and a host of other issues. Because Congress routinely delegates their powers to the executive and judicial branches, we now live in a nation where literally everything is a federal case.
Similarly, the 2nd Amendment says "shall not be infringed." There are no exception clauses and no one can provide any constitutional reference to suggest that there are exceptions. There can't be any exceptions because, as I discussed earlier, outside of the Constitution, the Government has absolutely zero authority. If it's not written in the Constitution, then the Government just plain can not do it.
Yes, they can, and have done so many times. It all depends on your interpretation of what "infringed" means. But the Congress and the President cannot simply do whatever they want, the Supreme court has the final say over what is constitutional and what isn't. Plus, they are also constrained by the ballot box, if they go too far they can be voted our of office and they know it. In the case of background checks, it is widely accepted that requiring a background check does not infringe the rights of any law-abiding citizen who wants to buy a gun.
So many make reasonable (though incorrect in my opinion) that it's a good thing to prevent felony litterers from owning a gun, or a Naval officer kicked out of the Navy for having an affair - a limitation not applied outside of the military. OK, we disagree. But to make those laws constitutional requires a constitutional amendment.
No. When the US Congress passes legislation and the President signs it, that law IS constitutional by default. Why? Because it was passed and signed as the US Constitution prescribes. The President can't make up laws on his own authority and neither can the Congress; such laws are unconstitutional. And when a constitutional law is challenged in court, the Judicial Branch can make the determination as to whether the law has a basis in the Constitution.
As far as background checks are concerned, In March of 1981, the assassination attempt of President Ronald Reagan led to further gun legislation with the
Brady Handgun Violence Prevention Act of 1993, which amended the Gun Control Act of 1968 to now require background checks for the purchase of firearms from a retailer. The Brady Act, as it’s known today, also led to the development of the National Instant Criminal Background Check System (NICS), which launched in 1998, and is the current law on background checks for gun purchases in the U.S.
That is the law of the land and it IS constitutional until the Supreme Court says it isn't. They make that call, we don't.
