Publicola

Was the Congress Granted the Constitutional Authority to Regulate Firearms Through its Taxing Power? Robert Greenslade answers this question. I very briefly touched on similar arguments in a previous post discussing the National Firearms Act of 1934.

"In 1833, United States Supreme Court Justice Joseph Story's commentaries on the Constitution were published in book form. These commentaries have served as a reference source for the legal community for many years. Justice Story rejected the contention that the taxing clause was an unlimited power. In fact, he asserted that the general welfare phrase did not confer any power but was simply a qualification on the taxing power:
If the clause, 'to pay the debts and provide for the common defence and general welfare of the United States,' is construed to be an independent and substantive grant of power, it not only renders wholly unimportant and unnecessary the subsequent enumeration of specific powers; but it plainly extends far beyond them, and creates a general authority in congress to pass all laws, which they may deem for the common defence or general welfare. Under such circumstances, the constitution would practically create an unlimited national government. The enumerated powers would tend to embarrassment and confusion; since they would only give rise to doubts, as to the true extent of the general power, or of the enumerated powers.
On the other hand, construing this clause in connexion with, and as a part of the preceding clause, giving the power to lay taxes, it becomes sensible and operative. It becomes a qualification of that clause, and limits the taxing power to objects for the common defence or general welfare. It then contains no grant of any power whatsoever; but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation.
Story went on to state that Congress could not use the taxing clause for anything other than raising revenue:
The power to lay taxes is a power exclusively given to raise revenue, and it can constitutionally be applied to no other purposes. The application for other purposes is an abuse of the power; and, in fact, however it may be in form disguised, it is a premeditated usurpation of authority.
As stated by Story, any attempt by Congress to use the taxing clause for anything other than raising revenue is 'a premeditated usurpation of authority'."