Hardcase said,
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Somehow the Commerce Clause has lately become the wildcard of the Constitution. Since virtually anything that anybody does involves some sort of interstate action, the Commerce Clause has been twisted to cover it.
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Not to split hairs, but the federal government has been bastardizing the commerce clause for three quarters of a century. See cases such as National Labor Rights Board vs. Jones & Laughlin Steel Corp. (1937) (saying that anything produced in one state and which has
some effect on interstate commerce may be federally regulated); Wickard vs. Filburn (1942) (during WWII Congress enacted mandatory limits on grain production for sale. One farmer who grew wheat solely for his own use was told that he had to abide by the Congressionally mandated limit because refraining from buying someone else's grain could affect interstate commerce); Heart of Atlanta Motel vs. United States and Katzenbach v. McClung (1964) (civil rights cases where Court used Commerce Clause rather than the 14th Amendment's Due Process clause to declare racial discrimination illegal in business settings). I point these cases out to show that 1) broad use of the Commerce Clause has been ongoing for decades; 2) the Commerce Clause is often used to justify things which may be politically popular but legally untenable; 3) once in effect, legislation justified through the use of Commerce Clause becomes nearly impossible to attack and further forms the basis for later, more expansive legislation.
To Al's point, justifying this legislation under the 2nd and 14th Amendments and the recent Heller and McDonald cases would have made this a different piece of legislation. It would have, in effect, said that Congress is only able to pass this law
because it is in accord with laws already in effect, namely the Constitution. (Although, as discussed much earlier in this chain, such unnecessary federal legislation is redundant and, in my mind, not preferable.)
However, as it stands, justification under the Commerce Clause communicates that the individual right to bear arms
on one's person (whether concealed or open) from state to state stems from Congress and not from the states and not from the Constitution. Instead, according to the Constitutional interpretation now in place, you may possess a weapon in your house. If you can carry it concealed in your home state, that authority stems from your state. If you can carry it to another state--if H.R. 822 becomes law--you may do so because Congress is kind enough to allow you to do so. So, no one can prevent you from owning a weapon in your home (unless you're a felon), the States have authority to issue or not issue carry permits, and Congress gets to say whether you can carry outside your home state. When someone decides to sue because of an issue resulting from carrying in another state, the question will be what Congress intended by passing this bill, not what the Founders intended when they wrote the Constitution. There will be no Constitutional protection in such case and if such a case ever reaches the Supreme Court, they will rule on the laws passed by Congress rather than pertinent Constitutional issues. So, not only are we giving Congress more power here, we are postponing and perhaps permanently preventing the Supreme Court from ruling on the extent of the 2A's authority to
carry a weapon for self-defense.