The Commerce Clause gives Congress the power to regulate interstate commerce. However, the Supreme Court has found that the Commerce Clause, working in conjunction with the Necessary and Proper Clause, allow Congress to regulate certain types of intrastate activity.
Most Americans are familiar with the major elements of the Constitution such as the Bill of Rights and some of the later amendments and even the Articles related to the division of power from the co-equal branches of government. Not very many—a fractional percentage, perhaps—could even begin to explain what the Commerce Clause is and yet it is has proven to be one of the significant and controversial elements America’s foundational legal document. This particular clause has created a number of showdowns over the country’s seminal ideological divide: states’ rights versus federal rights. The controversies have stemmed largely (as is often the case with the Constitution) from the vague and ambiguous wording. What, for example, qualifies as “commerce” and what marks the difference between “inter” and “intra” relative to commerce within or between states.
The Second Amendment provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” District of Columbia v. Heller (2008) held that the Second Amendment protects an individual right to bear arms that was not conditioned on militia service.
Thanks to mass shootings that kill dozens of people in schools, restaurants, and attending concerts becoming almost a weekly occurrence, the Second Amendment is one of those elements of the Constitution with which everybody is familiar. Except, of course, that they aren’t. Ask most Americans what the Second Amendment guarantees and the answer would likely be the right to own guns. This is not exactly correct. Alone among the Bill of Rights, the Second Amendment guarantees Americans a specific right—but with a condition attached.
The wording is also less ambiguous than most of the Constitution. It is not the right comes first in priority, but the condition, thus the actual right quite clearly states that Americans have a right to keep and bear arms on the condition that they are part of a militia charged with the purpose of maintaining security. The meaning and intent could not be clearer, really. And yet, Columbia v. Heller resulted in a majority of Supreme Court justices essentially redlining the conditional part of this right, so that it essentially means exactly what people mistakenly think it meant all along and never did. As the date of the case at hand makes more than clear.
This framework came to be known as the Sherbert test:
1. If the government imposed a substantial burden on the free exercise of religion.
2. the state must demonstrate that its law is the least restrictive means to achieve a compelling state interest.
If the state interest was not “compelling,” or if there was another “less restrictive means” to accomplish that interest, the state cannot enforce its law that imposes a “substantial burden” on the free exercise of religion.
The free exercise of religion is another of those elements of the Constitution with which most people think they are familiar but actually do not understand in its entirety. Unlike the right to keep and bear arms, however, this misunderstanding is not attributable to concerted efforts to misinterpret meaning but back again to the vagueness of the wording. The plain, unvarnished fact of the matter is that over the course of American history, millions of people have denied or somehow obstructed from practicing this First Amendment right to religious expression. The Sherbert test is, essentially, the tool used by constitutional scholars to make a determination of whether the government is infringing upon that right to religious freedom. It derives from a 1963 decision in the case Sherbert v. Verner.
