Amicus Curiae Brief — United States v. Lopez
Supreme Court brief1995
Ask Donna
What actually matters in this document.
Text
No. 93-1260 aa :
In the
Supreme Court of the United States
October Term, 1993
ae
UNITED STATES OF AMERICA,
Petitioner,
V.
ALFONSO LOPEZ, JR.,
Respondent.
5 oa
On Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit
+
BRIEF AMICUS CURIAE OR PACIFIC LEGAL
FOUNDATION IN SUPPORT OF RESPONDENT
, ae
RONALD A. ZUMBRUN
* ANTHONY T. CASO
JOHN G. SCHMIDT, JR.
*Counsel of Record
Pacific Legal Foundation
2151 River Plaza Drive,
Suite 305
Sacramento, California 95833
Telephone: (916) 641-8888
Attorneys for Amicus Curiae,
Pacific Legal Foundation
TABLE OF CONTENTS
Page
BAS GP. ARTUEEEED cc cee ewe ecreserneeeses iii
IDENTITY AND INTEREST OF AMICUS CURIAE ......... l
DEPES TE GEE EOE GOI cso pc eetecepeceeseeaeas 3
fre rr reer ee eLIRer Cee ee 3
SUMMARY OF THE ARGUMENT ......cccccccsecees 6
| MEU ERTEETER TUTTE CTCL TLE EE eT Te 7
I. THE GUN FREE SCHOOL ZONES ACT
UNDERMINES OUR FEDERAL SYSTEM, WHICH WAS
CREATED TO PROTECT INDIVIDUAL LIBERTY ....... 7
Il. THIS COURT SHOULD NOT ALLOW CONGRESS TO
ALTER THE DELICATE BALANCE OF STATE-
pp i sy ee ee ee 10
III. THIS CASE PRESENTS A RARE INSTANCE WHERE THE
JUDICIARY MUST ACT AS A CHECK ON CONGRESS .. 15
A. Judicial Deference to Congressional
Ambiguity Would Be Inappropriate
eR ek a bk oho hw o's 090. a 0 0 8 ws Os 15
B. The Intent of the Ratifiers
Limits the Reach of Congress to
Its Enumerated Powers ................--.- 20
C. The Gun Free School Zones Act Renders
Article I of the Constitution
IE 6 oe wiguv eb eeg05 66 fe eee 68% 24
1. There Is No Authority for Section 922(q)
in the Commerce Clause ................ 24
il
2. There Is No Authority for Section 922(q)
in the Necessary and Proper Clause......... 25
3. There Is No Authority for Section 922(q)
in Any Other Provision of ArticleI......... 28
CALAMUS cc tccee ssi yev¥ RiSSa eee 29
TABLE OF AUTHORITIES CITED
Page
CASES
Atascadero State Hospital v. Scanlon,
Es vd we CW corse ce 6 eee e eee 11
Barrett v. United States, 423 U.S. 212 (1976) ......... 12
Carter v. Carter Coal Co., 298 U.S. 238 (1936) ........ 26
Champion v. Ames, 188 U.S. 321 (1903) ............ 12
Chisom v. Roemer, 501 U.S. _, 115 L. Ed. 2d
aaa a ane e.a.0.6 8 0. sleet 6 es 18
Cane Wy ee, BS We SE CIPESD co ccc cic ccccceers 9
EEOC v. Wyoming, 460 U.S. 226 (1983) ......... 15,27
Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528 (1985) ............... 11,19
Gibbons v. Ogden, 22 U.S. 1 (1824) ............ 5,24-25
Gregory v. Ashcroft, 501 U.S. 452, 115 L. Ed. 2d
chic us b's aut es a4 86 8 é 2 3,9-11,17-19
Griswold v. Connecticut, 381 U.S. 479 (1965) ........ 16
Heart of Atlanta Motel, Inc. v. United
ee 8,12,24-27
Hodel v. Indiana, 452 U.S. 314 (1981) ............. 11
iv
Page
Katzenbach v. McClung, 379 U.S. 294 (1964) . . 5,10,24,26-27
Marbury v. Madison, 5 U.S. 135 (1803) .......... 19-20
Maryland v. Wirtz, 392 U.S. 185 (1968) ........... 25
Michigan Protection and Advocacy
Service, Inc. v. Babin, 799 F. Supp.
ee a on so ee 6.6 a Oa 14,25
NLRB v. Jones & Laughlin Steel Corp.,
Le ee eM or ey aera ere 14,24,27
New York v. United States, 501 U.S.__,
120 L. Ed. 2d 120 (1992) ......... 3,8-9,16,18,23,28-29
New State Ice Co. v. Liebmann, 285 U.S. 262
SE 5 Sh 5 he ae eee bee cee be 8 ao oe 27
Perez v. United States, 402 U.S. 146 (1971) ........ 12,24
Pierce v. Society of Sisters, 268 U.S. 510 (1925) ....... 16
Planned Parenthood v. Casey, 505 U.S. __,
ee as ee oe a ee ees ee be 16
Printz v. United States, No. CV 94-35-M-CCL,
1994 WL 200058 (D. Mont. May 16, 1994) ....... 18-19
Russell v. United States, 471 U.S. 858 (1985) ....... 14,25
Santa Cruz Fruit Packing Co. v. NLRB, 303 U.S
TG oc vasdewnvon seve neues aeeeues 14,27
Page
Scarborough v. United States, 431 U.S. 563
1) ie ee re ee ee ee ee 11,14
Tafflin v. Levitt, 493 U.S. 455 (1990) ........--55-> 26
Taylor v. Beckham, 178 U.S. 548 (1900) .........--- 20
United States v. Bass, 404 U.S.
. 7) |) eee eee 4,11-12,18-19
United States v. Carolene Products Co.,
904 U.S. 146 (193E) . 0 wc cere cree we erensss 5,16
United States v. Darby, 312 U.S. 100 (1941) ........-. 24
United States v. Mennuti, 639 F.2d 107
rv) a. |) ene ene ee ee ee eo a 24
United States v. Osteen, No. 93-6398 (6th Cir.)
decision pending .....-.--- eee eee eee erereee 2
United States v. Pereira, 347 U.S. 1 (1954) ........-.-. 12
United States v. Tot, 319 U.S. 463 (1943) ........... 11
United States v. Voss, 787 F.2d 393
(Oth Cle, FUR) nc ccc cece c eer ccenrevnsnes 25
Wickard v. Filburn, 317 U.S.
10) ee i re 5-7,10,12,14,28
Will v. Michigan Department of State Police,
491 U.S. 58 (1989)... ee eee 13
Wilson v. Biggs, No. 93-772
(Jan. 18, 1992) 2... cece cece rere rere rerees 2
vi
Page
UNITED STATES CONSTITUTION
EY BN ital a é oo oc 4.0 Oe rea 16
Amend. X os erred ee ae 7
Art. I, § 8, cl. 3 TeTererrere ccs . 8,12
o.¢ . | Sg a-ha a 29
cl. 10 ees a ; eee wean nares 29
cl. 16 , 7 | ; | 29
DREW ee recacesvecsedevestber 29
i . re [oa
Art. Ill, § 3, cl. 2. peeueeaes wre .. 29
STATUTES
Cal. Mil. & Vet. Code §§ 120-23 ............ re).
Cal. Penal Code § 1250 ............ 5 i. ae a nicek ane ae
Tex. Penal Code § 46.04(a) ........... a Fe
The Firearms Owners’ Protection Act of 1986,
Pub. L. No. 99-308, 100 Stat. 449-461 ..... ; rer
DERI OEE cee ececcenveeresvbiamees 15
EMRE. 0.066 60000 sere bebe eeeew ieee 10
ROME cecesccceseeeeetehekeuMen <a = oe
Vii
Page
|. PRAT PeRereeer ee rerre eee re 4
BERR ec cweweeebveteeereteseuetauss passim
RULES
Supreme Court Rule 37 .........2 22 ee eee eee eee: l
MISCELLANEOUS
Raoul Berger, Federalism: The Founder's Design
CED nn b0 how eee CAC Se Rew Whwhneabeve eden 24
James L. Buckley, Federalism and the Scope
of the Federal Criminal Law, 26 Am. Crim.
L, Boe GUD ec ewe tee eeeseonececvess 15
Richard A. Epstein, The Proper Scope of
the Commerce Power, 73 U. Va. L. Rev.
of rrr rr ie are te oe 20
Alexis de Tocqueville, Democracy in
America (Henry Reeve Trans., Henry
Steele Commager, ed. 1839) ..........-.6%%. io a
Friedrich A. Hayek, The Road to Serfdom
(ee rer er ee ae Se eee ee 2
Don B. Kates, The Second Amendment and the
Ideology of Self-Protection, 9 Const.
Commentary 87 (1992) .......-- 2 eee ee eeees 16-17
John G. Schmidt, Jr., The Tenth Amendment: A "New"
Limitation on Congressional Commerce Power,
45 Rutgers L. Rev. 417 (1993) ........5-550> 20-21
vill
Page
William Van Alstyne, Dual Sovereignty, Federalism and
National Criminal Law: Modernist Constitutional
Doctrine and the Nonrole of Supreme Court,
26 Am. Crim. L. Rev. 1740 (1989) ............ 20,29
The Compact Oxford English Dictionary
Pn tn si ndetpev ee ds oscus seta nieces 24
The Federalist No. 10 James Madison) ........... 21-22
The Federalist No 17 (Alexander Hamilton) .......... 22
The Federalist No. 42 (James Madison) ............. 24
The Federalist No. 45 James Madison) .......... 9,22-23
The Federalist No. 52 (James Madison) ........... 21-22
The Federalist No. 78 (Alexander Hamilton) ........ 17-18
The Federalist No. 84 (Alexander Hamilton) ......... 23
The Debate on the Constitution (Library of
ee bad. wee kee a eee e «ek 6 8 21,23,28
The Debates in the Several State Conventions
on the Adoption of the Federal Constitution
as Recommended by the General Convention
at Philadelphia in 1787 (Jonathan Elliot,
Se 6 Gh do ao be ob 60 6 5 0 200 21
Dictionary of the English Language
(Samuel Johnson ed. 3d ed. 1765) ............... 24
Laurance H. Tribe, American Constitutional Law
ER one tere a a aes 6 oe 16,19
No. 93-1260
In the
Supreme Court of the United States
October Term, 1993
,’
vv
UNITED STATES OF AMERICA
Petitioner,
ALFONSO LOPEZ, JR.,
Respondent.
+
On Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit
+
BRIEF AMICUS CURIAE OF PACIFIC LEGAL
FOUNDATION IN SUPPORT OF RESPONDENT
+
IDENTITY AND INTEREST OF AMICUS CURIAE
Pursuant to Supreme Court Rule 37, Pacific Legal
Foundation (PLF) submits this amicus curiae brief in support
of respondent Alfonzo Lopez. Written consent to the filing
of this brief has been granted by counsel to all parties and
has been lodged with the Clerk of this Court.
PLF is a nonprofit, tax-exempt corporation organized
under the laws of the State of California for the purpose of
engaging in litigation in matters affecting the public interest.
2
PLF has over 20,000 contributors and supporters located
throughout the country and maintains its principal office in
Sacramento, California. The Foundation’s policy is set by a
Board of Trustees composed of concerned citizens, the
majority of whom are attorneys. PLF’s Board evaluates the
merits of any contemplated legal action and authorizes such
action only where the Foundation’s position has broad
support within the general community. Such authority has
been granted in this action.
Amicus seeks to augment the historical discussion of
congressional authority under the Commerce Clause of the
United States Constitution. PLF has participated in
numerous cases involving the Commerce Clause. E.g.,
Wilson v. Biggs, No. 93-772 (Jan. 18, 1992), denying cert.
to, 1 F.3d 1537 (9th Cir. 1993). Environmental Protection
Agency v. Brown, 431 U.S. 99 (1977); United States v.
Osteen, No. 93-6398 (6th Cir.), reviewing, United States v.
Cortner, 834 F. Supp. 242 (M.D. Tenn. 1993). PLF has
also participated in many cases addressing the superfluous
legal obstacles that thwart effective law enforcement. E.g.,
illinois v. Gates, 462 U.S. 213 (1983) (arguing for the "good
faith exception” to the exclusionary rule). PLF’s experience
in the above areas will provide an additional viewpoint to this
case.
Congressional action beyond its constitutional
authority, effected in the name of whatever “national
emergency” happens to stoke the political fires, undermines
this Nation’s concept of ordered liberty as envisioned by the
Ratifiers of the Constitution. "By giving the government
unlimited powers, the most arbitrary rule can be made legal;
and in this way a democracy may set up the most complete
despotism imaginable.” Friedrich A. Hayek, THE ROAD TO
SERFDOM 82-83 (1944). Our federal system was established
to prevent this, yet it is being undermined through a
seemingly benevolent, yet misguided federal intrusion into
domestic matters having little or no connection with interstate
3
commerce. It is on this basis that Pacific Legal Foundation
submits this brief amicus curiae.
STATEMENT OF THE CASE
PLF adopts respondent’s Statement of the Case and
incorporates that portion of respondent’s brief herein.
OPINION BELOW
In United States v. Lopez, 2 F.3d 1342 (Sth Cir.
1993), the Fifth Circuit Court of Appeals held 18 U.S.C.
§ 922(q) (Supp. 1993) (Gun Free School Zones Act or
Section 922(q)), te be beyond the scope of the congressional
commerce power. 2 F.3d at 1367-68.’
Alfonzo Lopez, Jr., a San Antonio High School
senior, was caught on school grounds with a handgun. Jd.
Mr. Lopez was charged with violating Texas Penal Code
§ 46.04(a), which prohibits possession of a firearm on school
property. Id. at 1345 n.1. State charges were later dropped
in favor of a federal prosecution under Section 922(q). Jd.
After being found guilty in the District Court, Mr. Lopez’
successful appeal to the Fifth Circuit centered on the
constitutionality of Section 922(q).
The Fifth Circuit noted that Section 922(q) made it a
federal crime to carry an unloaded firearm in an unlocked
suitcase on the public sidewalk in front of one’s home if the
sidewalk happens to be within 1000 feet of a tiny church
kindergarten. 2 F.3d at 1346 n.4. Quoting this Court’s
opinions in Gregory v. Ashcroft, 501 U.S. 452, 115 L. Ed.
2d 410 (1991), and New York v. United States, 120 L. Ed.
2d 120 (1992), the court below stated that though the text of
' The court below also noted that the indictment failed to allege a nexus with
interstate commerce. Thus, it could not be sustained. Jd. at 1368.
Fb
4
the Tenth Amendment does not affirmatively define the limits
of the commerce power, "the reach of that power is not
unlimited, else there would be nothing on which the Tenth
Amendment could operate." Lopez, 2 F.3d at 1347. The
lower court then discussed this Court’s opinion in United
States v. Bass, 404 U.S. 336 (1971), which construed the
federal "felon in possession" statute to maintain the sensitive
state-federal balance. Lopez, 2 F.3d at 1347. The court
below noted that the current "felon in possession” provision,
18 U.S.C. § 922(g), now contains a clear nexus to interstate
commerce, a caveat Section 922(q) lacks. Id.
The court thoroughly outlined the history of federal
firearms regulation, showing that despite the expansion of
congressional regulation since the New Deal, Section 922(q)
goes well beyond prior enactments and exceeded the
congressional commerce power. The court noted that every
single firearms regulation at the federal level applied not to
the mere passive possession of an ordinary firearm by an
ordinary person, but almost exclusively to regulating
commercial transactions, distribution, and practices
associated with the firearms business. Lopez, 2 F.3d
at 1348-57. In other words, the regulated activities all had
an express nexus to interstate commerce. Statutes that
reached intrastate commercial entities or activities, or related
transactions, were enacted "in order to control firearms
traffic "‘moving in or otherwise affecting interstate
commerce.’” Jd. at 1351. Section 922(q) also lacked this
characteristic. The court below also discussed and
distinguished the "few, discrete exceptions” to the rule
limiting federal regulation to commercial transactions Or
interstate activity. Jd. at 1354.
With that history, the Fifth Circuit turned to Section
922(q) and its legislative history, neither of which makes any
mention of interstate commerce. Jd. at 1359. Further, even
5
the President of the United States questioned the
constitutionality of Section 922(q). Jd. 1359-60 & n.39.
The Fifth Circuit then analyzed our Commerce Clause
jurisprudence, claiming that a series of cases, culminating in
Wickard v. Filburn, 317 U.S. 111 (1942), restored the
commerce power to its purported breadth under Gibbons v.
Ogden, 22 U.S. 1 (1824). 2 F.3d at 1360. But it also noted
that the Gibbons Court stated that Article I of the
Constitution does not include every type of commerce, nor
intrastate commerce. Jd. at 1361. The Court also stated
that modern doctrine (e.g., Wickard), required a “substantial
economic effect on interstate commerce." Id. Otherwise, the
Fifth Circuit noted, the chain of causation could be infinite,
reaching every private activity, because in some theoretical
sense it would affect interstate commerce. Jd. at 1362.
The lower court recognized that judicial deference to
Congress was based on either the text of the statute,
legislative findings, or inferred intent from legislative history
showing a nexus with interstate commerce. Id. at 1362-63
(citing, ¢.g., Katzenbach v. McClung, 379 U.S. 294 (1964)).
Section 922(q) has none of these. Jd. at 1363.
The lower court continued, stating that a
congressional enactment, while presumed constitutional, is
entitled to less deference if it appears "to be within a specific
prohibition of the Constitution, such as those of the first ten
amendments.” Jd. at 1364 (quoting United States v.
Carolene Products, Co., 304 U.S. 144, 152-53 n.4 (1938)).
Section 922(q) represents an “incursion by the Federal
Government into territory long occupied by the States," i.e.,
education and simple firearms possession. Jd. Employing
the "plain statement” rule, the court below required that, if
Congress intends to alter the fundamental constitutional
balance between the state and federal governments, it must
6
make its intention to do so clear in the language of the
statute. Jd. at 1365 & n.48.
Thus, because Section 922(q): (1) reaches even the
most remote acts of mere passive possession, having no
relation to interstate commerce; (2) offers no hint of a
congressional determination that such activity was related to
interstate commerce; (3) "plows through new ground and
represents a sharp break with the long-standing pattern of
federal firearms legislation," id. at 1366; and also because
(4) mere passive possession of a firearm was distinguishable
from the “class of activities" cases such as Wickard; the
lower court held Section 922(q) unconstitutional. /d.
at 1366-68 & nn. 49, 50 & 51.
SUMMARY OF THE ARGUMENT
The Gun Free School Zones Act, while seemingly
virtuous, undermines our federal system. The Fifth Circuit
correctly considered individual liberty and the interests of the
States in declaring Section 922(q) beyond the scope of
congressional commerce power. No other congressional
enactment has intruded so far into an area better left to the
States--passive, individual, noncommercial, nontransactional,
intrastate acts. The statute lacks any congressional finding
of the requisite economic effect on interstate commerce and
an interstate commerce nexus as an element of the crime. It
also conflicts with the constitutional text, the Bill of Rights,
applicable precedent, and the intent of the Ratifiers. While
case such as Heart of Atlanta Motel upheld the congressional
prohibition of certain commercial activities of certain
businesses that were found by Congress to substantia!ly affect
interstate commerce, the present activity goes much further.
It prohibits private, noncommercial acts within 1,000 feet of
the property line of any school, even though such acts were
7
never found by Congress to affect interstate commerce in any
way.
If this act is upheld, will Congress next be able to
extend its reach to any activity within 1,000 of the Heart of
Atlanta Motel, or Mr. Filburn’s wheat farm (see Wickard v.
Filburn)? May the 1,000 foot zone next be extended to one
mile, or even 1,000 miles? If the Second and Tenth
Amendments are ignored here, may the First or Fifth
Amendments be ignored next?
Mr. Lopez, a teenager, could and should be
prosecuted by Texas authorities under state law for
possessing a firearm on school property. Such a criminal
prohibition is immeasurably different from the one at issue
here, which would also criminalize and federalize the mere
possession of an otherwise legal, ordinary firearm. Such
regulation is plainly better left to the States. Otherwise, the
Ratifiers’ worst fear--of an unrestrained, centralized,
potentially despotic seat of power--will be realized. For
these reasons, Section 922(q) should be held unconstitutional
by this Court.
ARGUMENT
I
THE GUN FREE SCHOOL ZONES ACT UNDER-
MINES OUR FEDERAL SYSTEM, WHICH WAS
CREATED TO PROTECT INDIVIDUAL LIBERTY
The Tenth Amendment of the United States
Constitution states: "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people."
U.S. Const. Amend. X. The Constitution delegates to
8
Congress the power "[t]o regulate Commerce ... among the
several States." U.S. Const. Art. I, § 8, cl. 3. The Fifth
Circuit referred to both of these provisions to question
whether Congress may regulate an individual’s mere
possessory act that is intrastate, noncommercial, and has noi
been found by Congress to have any effect on interstate
commerce. Lopez, 2 F.3d passim.
Most of this Court’s recent jurisprudence dealing with
the Tenth Amendment and the authority of Congress under
its Article I powers has dealt with subjecting state
governments to generally applicable laws. E.g., New York v.
United States, 120 L. Ed. 2d at 140. The government
attempts to undercut the reasoning of the Fifth Circuit by
misconstruing this case law. According to petitioner,
because this Court has reviewed Commerce Clause questions
as they relate to state sovereignty more often than private
activity, it must hold state sovereignty in higher regard than
individual liberty. See, e.g., Brief for the United States
at 28. A more credible reason for this past focus on state
sovereignty, however, is that Congress has never intruded so
far into the private lives of individuals without specifically
finding that the given activity has a substantial effect on
interstate commerce and requiring a nexus with interstate
commerce as an element of the crime. C.f., Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 244-53 (1964).
Moreover, the government’s argument that state
sovereignty is worthier of constitutional protection than
personal liberty is contradicted by what this Court has
identified as the fundamental purpose of our federal structure
in New York v. United States, 120 L. Ed. 2d at 154:
The Constitution does not protect the
sovereignty of States for the benefit of the
States. To the contrary, the Constitution
9
divides authority between federal and state governments for
the protection of individuals. State sovereignty is not just an
end in itself: Rather, federalism secures to citizens the
liberties that derive from the diffusion of sovereign power.
Id. (internal quotations omitted) (emphasis added). This has
always been the principled rationale of our federal system.
"It is too early for politicians to presume on our forgetting
that the public good, the real welfare of the great body of the
people, is the supreme object to be pursued; and that no form
of government whatever has any other value than as it may
be fitted for the attainment of this object." The Federalist
No. 45, at 289 (James Madison) (Clinton Rossiter ed., 1961).
Thus, the text and structure of the Constitution, and
the Tenth Amendment, place the internal operations of a state
beyond the reach of Congress, e.g., Coyle v. Smith,
221 U.S. 551 (1911), even if they affect interstate
commerce. The rationale for this constitutional rule is that it
protects individual liberty. It would therefore be untenable
to conclude that the noncommercial, intrastate, personal
actions and decisions of individuals were within the reach of
Congress because this would be an even more egregious
assault on the individual liberty guaranteed by our federal
system. If Section 922(q) is upheld, then there is no limit to
the power of Congress. Such authority was never delegated
by the people, and te permit it creates the very real “risk of
tyranny and abuse." Gregory v. Ashcroft, 115 L. Ed. at 422.
10
II
THIS COURT SHOULD NOT ALLOW CONGRESS
TO ALTER THE DELICATE BALANCE OF STATE-
FEDERAL AUTHORITY
Section 922(q) makes it "unlawful for any individual
knowingly to possess a firearm” within 1,000 feet of school
property. 18 U.S.C. §§ 922(q)(1)(A), 921(a)(25),
921(a)(26). This prohibition is unconstitutional for two
reasons. First, Section 922(q) is more expansive than any
other federal regulation enacted under the commerce power
because it prohibits personal, intrastate, noncommercial,
nontransactional conduct. This fact is illustrated by noting
that this Court upheld enactments in both Wickard v. Filburn,
317 U.S. 111, 115-17, 130 n.30, where the enactment was
applied to the conduct of a commercial wheat farmer, not a
weekend gardener; and Katzenbach v. McClung, 379 U.S.
at 304, where the enactment was applied to Ollie’s Barbecue,
a commercial establishment, not a backyard family barbecue.
Second, it intrudes upon the delicate balance of state-federal
relations in the areas of education, local law enforcement,
and firearms regulation, areas not only “traditionally
regulated by the States," Ashcroft, 115 L. Ed. 2d at 423, but
so intimately connected with a state’s police power that
uniform national rule is unwarranted. At the very least, it is
ambiguous whether Congress intended to intrude so far into
matters so intimately connected with the states’ respective
police powers, Ashcroft, 115 L. Ed. 2d at 430, as well as the
personal passive conduct of private citizens with no link to
interstate commerce. Therefore, this Court should not
attribute such an intent to its legislative counterpart.”
2 The test for determining the constitutionality of legislation enacted under the
Commerce Clause requires that there be a “rational basis for a congressional
(continued...)
11
The government claims that, because Congress has
clearly proscribed Mr. Lopez’ conduct, this Court need not
be concerned with whether such an exercise of power has
been linked to the Constitution, or whether Congress has
even considered the Constitution. Brief of the United States
at 30-31. This Court, however, has never allowed this. E.g.,
Ashcroft, 115 L. Ed. 2d at 420-30; Bass, 404 U.S. at 339-
50; Atascadero State Hospital v. Scanlon, 473 U.S. 234,
237-47 (1985)(sovereign immunity not abrogated absent plain
statement to that effect); United States v. Tot, 319 U.S. 463,
463-64, 467 (1943)(gun possessed by felon presumed to be
shipped interstate violates due process). "States occupy a
special and specific position in our constitutional system and
. the scope of Congress’ authority under the Commerce
Clause must reflect that position." Garcia v. San Antonio
Metropolitan Transit Auth., 469 U.S. 528, 556 (1985)
(emphasis added).
In United States v. Bass, this Court found a federal
statute ambiguous as to whether Congress intended to
criminalize any possession of a firearm by a felon or only
those firearms that were proven to have traveled in interstate
commerce. 404 U.S. at 337-39. This Court rejected the
former “broad reading in the absence of a clearer direction
from Congress." Jd. at 339. Though this Court upheld the
same enactment after Congress addressed this constitutional
concern, Scarborough v. United States, 431 U.S. 563, 566
(1977), (element of crime was that the firearm at one time
traveled in interstate commerce), the court below properly
stated that it is questionable whether "Congress can
2 (...continued)
finding that the regulated activity affects interstate commerce." Hodel v. Indiana,
452 U.S. 314, 323 (1981) (emphasis added); contra Brief of United States at 14
(which, in light of cases requiring a nexus with interstate commerce, e.g., Bass,
404 U.S. 336, misconstrues the constitutional standard). There was no such
congressional finding in this case.
, Se :
12
constitutionally punish the mere possession of firearms."
Lopez, 2 F.3d at 1347 (internal quotations omitted). This is
especially so when the face of the statute does not contain a
nexus with interstate commerce as an element of the crime.
See, e.g., Barrett v. United States, 423 U.S. 212, 213 n.1,
214 (1976) (statute contained such a nexus and explicit
congressional findings of threat to interstate commerce).
Even if a nexus were supplied for Section 922(q), there is
still no credible analogy between a felon in possession, a
teenager in possession, or an ordinary law-abiding citizen in
possession (which this statute also reaches). Firearms in the
possession of felons are contraband, are nearly impossible to
trace through interstate commerce, and thus pose a much
greater threat to interstate commerce than the acts
criminalized by Section 922(q). Felons in possession also
pose a threat less readily dealt with by the states.
Despite this, the government in this case claims that
by failing to require any nexus with interstate commerce,
Congress did supply the "clearer direction" required in Bass,
404 U.S. at 339, even though Section 922(q) intrudes further
into state and private interests than any other Commerce
Clause measure. Lopez, 2 F.3d at 1348-59; see also, e.g.,
Champion v. Ames, 188 U.S. 321 (1903) (prohibition of
interstate transport of lottery tickets constitutional); Wickard,
317 U.S. 111 (use of wheat by a farmer, who was a member
of the cartel approving of the national regulation in question,
and engaged in the commercial enterprise of producing and
selling wheat, deemed to have a substantial economic effect
on interstate commerce); United States v. Pereira, 347 U.S.
1 (1954) (punishing the transportation of stolen goods across
state lines constitutional); Atlanta Motel, 379 U.S. 241 (a
commercial enterprise that catered to interstate travelers
deemed to "substantially" affect interstate commerce in the
civil rights context); Perez v. United States, 402 U.S. 146
(1971) (intrastate extortionate credit transactions with a
13
commercial business establishment normally conducted by
national organized crime organizations affect interstate
commerce). Past congressional enactments invoking the
commerce power have all been clearly linked to interstate
commerce. Because Section 922(q) presents such a sharp
break in legislative approach, to simply omit any nexus with
interstate commerce is unacceptable. Will v. Michigan
Department of State Police, 491 U.S. 58, 65 (1989).
The position taken by the government ignores the fact
that congressional action should be dictated by the
Constitution, not that constitutional meaning should be
dictated by Congress. This head-in-the-sand approach to the
legislative process is precisely what this Court has sought to
prevent through its modest requirement that Congress
expressly refer to and heed its enumerated constitutional
grants of authority. Because the Tenth Amendment is a part
of the Bill of Rights, and because the management of
education, local law enforcement, and the ownership of
ordinary firearms by ordinary citizens have traditionally been
a state responsibility, the Gun Free School Zone Act
"indisputably represents a singular incursion by the Federal
Government into territory long occupied by the States.”
Lopez, 2 F.3d at 1364; see also Tex. Penal Code § 46.04(a)
(prohibiting possession of firearms on school grounds). Such
an incursion enhances the importance of congressional
findings and a nexus with interstate commerce.
Furthermore, because these issues are so uniquely
within the police power of the respective states, it would not
be rational to conclude that the Gun Free School Zones Act
was within the commerce power even if Congress had made
such a finding. While it may be rational to regulate the
possession of illegal firearms by convicted felons in order to
protect interstate commerce, and it may be rational to assert
jurisdiction when ordinary citizens are engaged in activities
14
that have substantial repercussions on interstate commerce,
it is irrational to federalize simple, purely local,
noncommercial firearms possession. "However difficult in
application, this principle is essential to the maintenance of
our constitutional system." Santa Cruz Fruit Packing Co. v.
NLRB, 303 U.S. 453, 466 (1938). See also Scarborough v.
United States, 431 U.S. at 571 ("Congress is aware of the
distinction between legislation limited to activities ‘in
commerce’ and an assertion of its full Commerce Clause
power so as to cover all activity substantially affecting
interstate commerce."); NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 37 (1937) (local activities may be
regulated if they have a "close and substantial relation to
interstate commerce"); Wickard, 317 U.S. at 125 (local
activity may be regulated if it has a "substantial economic
effect" on interstate commerce); Russell v. United States,
471 U.S. 858, 860-61 & n.4 (1985) (property substantially
affected interstate commerce only because it was used for
commercial purposes); Michigan Protection and Advocacy
Service, Inc. v. Babin, 799 F. Supp. 695, 735 (E.D. Mich.
1992) ("sole remaining limitation on Congress’ power under
the Commerce Clause is the requirement that the effect be
substantial").
No matter what is required of Congress, though, it
has failed to make clear that it intended to upset the sensitive
federal state balance and = intrude into personal,
noncommercial, intrastate behavior. For the additional
reason that the statute does not even require a nexus to
interstate commerce, it is invalid.
15
Il
THIS CASE PRESENTS A RARE INSTANCE
WHERE THE JUDICIARY MUST ACT
AS A CHECK ON CONGRESS
Though Commerce Clause jurisprudence has adapted
through the transition from a local to a national economy,
EEOC v. Wyoming, 460 U.S. 226, 247 (1983) (Stevens, J.,
concurring), this grant of authority is not unlimited.
Unfortunately, though, as Circuit Judge Buckley stated: "[I]t
is virtually impossible to conjure up any human activity (with
the possible exception of day-dreaming) that some court will
not find to burden interstate commerce.” James L. Buckley,
Federalism and the Scope of the Federal Criminal Law,
26 AM. CRIM. L. REV. 1737, 1738 (1989). Should this
Court decline to affirm the Fifth Circuit’s decision, Judge
Buckley’s facetious comment will become reality.
A. Judicial Deference to Congressional Ambiguity
Would Be Inappropriate in This Instance
The Gun Free School Zones Act is among the most
far reaching of congressional enactments, improperly
federalizing wholly private, noncommercial, nontransactional,
intrastate acts by individuals that have no effect on interstate
commerce. It also displaces local law, as in the present case,
which may be better tailored to local conditions to avoid the
absurd results that Section 922(q) could engender. This is
wholly inappropriate, considering the fact that mere
possession of an ordinary firearm, as well as_ the
constitutional balance between state and federal interests, are
admittedly protected by several provisions of the Bill of
Rights. E.g., The Firearms Owners’ Protection Act of 1986,
Pub. L. No. 99-308, 100 Stat. 449-461 (currently at
18 U.S.C. § 921 (Note) (protecting rights secured under the
16
Second, Fifth, and Tenth Amendments)). Cf Carolene
Products, 304 U.S. at 152 n.4 (narrower presumption of
constitutionality when legislation frustrates political processes
or reaches within the first ten amendments).’ It would
therefore be inappropriate for this Court to defer to
Congress.
As the Fifth Circuit noted, the Tenth Amendment is
as much a part of the first ten amendments as the First
Amendment. Just as Congress is constrained from regulating
the commerce of publishing, it too is constrained from
intruding into matters reserved to the states and to the
people. New York v. United States, 120 L. Ed. 2d at 137.
Thus, it reaffirms, and provides a rule of construction for,
the limits imposed on the exercise of the congressional power
contained in the text of the Constitution and its other
amendments. /d.
Additionally, no matter how one interprets the Second
Amendment,* it exists. This amendment, while
controversial, indisputably affords protection against federal
intrusion into the “right of the people to keep and bear
Arms." U.S. Const. Amend. II. The controversy attaches
to whether that right is a States’ right or an individual one.
Compare Laurence H. Tribe, American Constitutional Law
299 n.6 (2d ed. 1988) with Amicus Brief on Behalf of
Academics for the Second Amendment, et al., and Don B.
* Because Section 922(q) also reaches private conduct, it may raise Fourth
Amendment and due process concerns. See, ¢.g., Planned Parenthood v. Casey,
SOSU.S. _, 120 L. Ed. 2d 674 (1992); Griswold v. Connecticut, 381 U.S. 479
(1965); Pierce v. Society of Sisters, 268 U.S. 510 (1925).
* "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.” U.S. Const.
Amend. Il.
17
Kates, The Second Amendment and the Ideology of Self-
Protection, 9 CONST. COMMENTARY 87 (1992).
Thus, the Second Amendment, along with the Tenth
Amendment and the specific enumerations of congressional
power, do not permit federal prohibition of the mere
possession of ordinary firearms by ordinary citizens, either
as an individual right, or because it is a power retained by
the States. Furthermore, Article I of the Constitution
recognizes this reserved States’ right by explicitly "reserving
to the States respectively” at least some authority over the
militia. U.S. Const. Art. I, § 8, cl. 3.5 Hence, Texas has
prohibited children from bringing guns to school, but it still
allows sportsmen, farmers, or those concerned with home
defense who live near schools the liberty to exercise their
rights. The federal act, though, reaches too far.
Under this act, Congress has exceeded one of its
constitutional prerogatives, and it is the duty of the judiciary
* Many states today also have laws which provide for an "unorganized militia,”
comprised of the entire military-age male populace. See, e.g, Cal. Mil. & Vet.
Code §§ 120-23. “The militia of the State shall consist of ... [inter alia] the
unorganized militia.” Jd. § 120. These statutory provisions vest the Governor
with the authority to call out the National Guard and "the unorganized militia.”
Id. § 128. “The unorganized militia may be called for active duty in case of war,
rebellion, insurrection, invasion, tumult, riot ...." id. Based on events in the
recent history of this country, it is not unreasonable to think that it might be
necessary to place some reliance on an unorganized self-armed militia if the
United States were to become involved in a military conflict as large as the
Persian Gulf War, when most of the National Guard was mobilized and sent
overseas, and at the same time be faced with local domestic difficulties as
California has experienced in recent years, including earthquakes, fires, and riots.
By prohibiting the ordinary possession of ordinary handguns by law-abiding
citizens, Congress effectively prevents this necessary option, denying not only
individuals, but the States, the opportunity to maintain and protect themselves.
This flies directly in the face of our Constitution, which “looks to an
indestructible Union, composed of indestructible States." Ashcrojt, 115 L. Ed.
2d at 422.
18
to correct the “encroachments and oppressions of the
representative body." The Federalist No. 78, at 465
(Alexander Hamilton) (Clinton Rossiter ed., 1961). The fact
that Congress did not require a nexus with interstate
commerce on the face of its enactment lends proof to the fact
that it did not adequately consider the intrusion it was
effecting into matters traditionally and primarily left to the
States. E.g., Ashcroft, 115 L. Ed. 2d at 426, 430; Bass,
404 U.S. at 350. Should this Court find some sort of
psychoanalyzed congressional intent, Chisom v. Roemer,
501 U.S. ___, 115 L. Ed. 2d 348, 378 (1991) (Scalia, J.,
dissenting), within the Gun Free School Zones Act and rule
otherwise, the enumeration of Article I powers becomes
meaningless verbiage, allowing Congress to reach into
absolutely any area regardless of the nexus § such conduct
might have with interstate commerce.
This is especially so because Section 922(q) reaches
not only Mr. Lopez’ possession of a gun on school property,
but also what otherwise would be legal handgun possession,
2 F.3d at 1346 n.4, 1366, 1367, marking a more egregious
"inroad” than the original "felon in possession" statute in
Bass, 404 U.S. at 339. The Gun Free School Zone Act, as
such, was enacted for the evening news, not to protect
interstate commerce. While Mr. Lopez, as a teenager
possessing a firearm at school, could and should be
prosecuted under the applicable criminal statutes of the State
of Texas, it is beyond the reach of Congress to so punish.°
* Additionally, the government's claim that Congress places no obligation on the
States, Brief of the United States at 28-29, is fallacious. Section 922(q)(1)(B)(ii)
requires the States to license firearms and to “verify that the individual is
qualified under law to receive the license.” As such, the federal government is
commandeering the "legislative processes of the States by directly compelling
them to enact and enforce a federal regulatory program." New York v. United
States, 120 L. Ed. 2d at 140. See also Printz v. United States, No. CV 94-35-M-
(continued...)
19
As Chief Justice Marshall said when the Supreme
Court recognized the constitutional limits imposed on its
jurisdiction: "To what purposes are powers limited, and to
what purpose is that limitation committed to writing, if these
limits may, at any time, be passed by those intended to be
restrained." Marbury v. Madison, 5 U.S. 135, 176 (1803).
With regard to Section 922(q), deference to the
political process would be inappropriate, considering the fact
that the political process in this case has produced an
obviously flawed product. See Ashcroft, 115 L. Ed. 2d
at 426. “{T]o give state displacing weight of federal law to
mere congressional ambiguity would evade the very
procedure for lawmaking on which [Garcia, 469 U.S. 528]
relied to protect states’ interests." Jd. (quoting Tribe, supra
at 480). See also Bass, 404 U.S. at 339. Thus, the courts
must act as "bulwarks of a limited Constitution against
legislative encroachments." The Federalist No. 78, supra,
at 469. Fulfilling such a duty is hardly judicial activism. "It
only supposes that the power of the people is superior to
both, and that where the will of the legislature, declared in
its statutes, stands in opposition to that of the people,
declared in the Constitution, the judges ought to be governed
by the latter rather than the former." Jd. at 468.
* (...continued)
CCL, 1994 WL 200058 (D. Mont. May 16, 1994). Under this command, if
someone walks across a public sidewalk located within 1,000 feet of a school to
his house with a .22 caliber rifle after returning from hunting, that individual is
committing a federal crime unless the State enacts a licensing mechanism for that
individual. See 18 U.S.C. § 922(q)(1)(B)(i), (ii), (iii). Also, States that already
have (concealed-carry) licensing procedures, ¢.g., California, Cal. Penal Code
§§ 12050, ef seq., normally have very strict limitations for issuing a license
which will conflict with the vague mandates of Section 922(q). Finally, these
concealed-carry permits generally apply only to certain weapons (usually
handguns). In effect, then, Section 922(q) presents » burdensome and confusing
array of options for the States and firearms owners who live near or travel within
1,000 feet of school property. ,
i
20
Excessive deference to the legislative branch,
especially when an enactment lacks a nexus to that body’s
constitutional authority, is the mirror image of the
"legislation by judicial fiat” so often complained about by
unsuccessful litigants and dissenting jurists. Excessive
judicial deference and judicial activism both allow the union
of law making and law interpreting in one body. While
judicial activism may undermine the republican spirit of our
tripartite constitutional order, the obeisant deference of the
judiciary to the Legislature undermines our individual liberty,
by abandoning the constitutional duty "to declare all acts
contrary to the manifest tenor of the Constitution void.” /d.
at 466. See also Marbury v. Madison, 5 U.S. at 175-76;
Taylor v. Beckham, 178 U.S. 548, 609 (1900) (Harlan, J.,
dissenting). The Fifth Circuit did this by declaring Section
922(q) contrary to the manifest tenor of the Constitution.
This Court must do the same.
B. The Intent of the Ratifiers Limits the Reach
of Congress to Its Enumerated Powers
In 1787, the individual States of this country were
presented with a new constitution that provided for a federal
system where certain enumerated powers were delegated to
the national government. Many of the Ratifiers of the
Constitution, however, feared that the national government
would ignore the jurisdictional restraints imposed on it by the
proposed constitution in the form of its few and defined
delegated powers and threaten state sovereignty and personal
liberty. See generally Richard A. Epstein, The Proper Scope
of the Commerce Power, 73 U. VA. L. REV. 1387 (1987);
William Van Alstyne, Dual Sovereignty, Federalism and
National Criminal Law: Modernist Constitutional Doctrine
and the Nonrole of the Supreme Court, 26 AM. CRIM. L.
REV. 1740 (1989); John G. Schmidt, Jr., The Tenth
Amendment: A "New" Limitation on Congressional Commerce
21
Power, 45 RUTGERS L. REV. 417 (1993). Such a
government, located thousands of miles from its constituents,
could, many thought, become isolated from its constituents,
corrupt, and self-perpetuating. "After we have given them
all our money, established them in a federal town, given
them the power ... to establish their arbitrary government,
what resources do the people have left?” II THE DEBATES IN
THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF
THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE
GENERAL CONVENTION AT PHILADELPHIA IN 1787 at 62
(Jonathan Elliot ed., 2d ed. 1836) (Elliot’s Debates).
Many of the Ratifiers predicted that the powers
granted to the federal government by the proposed
constitution would result in the despotism of an unresponsive
aristocracy within the federal district. "What an inexhaustible
Fountain of Corruption are we opening?" Letter of Samuel
Osgood to Samuel Adams (Jan. 5 1788), reprinted in I THE
DEBATE ON THE CONSTITUTION 704, 708 (Library of
America 1993). “Liberty! What is Liberty? The power of
governing yourselves. If you adopt this Constitution, have
you this power? No: you give it into the hands of a set of
men who live one thousand miles distant from you."
IV ELLioT’S DEBATES, supra, at 313.
In an attempt to calm these fears, and assure
ratification, the Federalists claimed that the structure of the
Constitution would actually protect state sovereignty and
personal liberty. The Federalist No. 10 (James Madison).
Madison described this structure in The Federalist No. 52:
In the compound republic of America, the
power surrendered by the people is first
divided between two distinct governments, and
then the portion allotted to each subdivided
among distinct and separate departments.
22
Hence a double security arises to the rights of
the people. The different governments will
control each other, at the same time that each
will be controlled by itself.
Id. at 323 (James Madison) (Clinton Rossiter ed., 1961).
That the power was divided between the two governments is
evident in the text of the Constitution itself, with "the great
and aggregate interests being referred to the national, the
local and particular to the State legislatures." The Federalist
No. 10, at 83 (James Madison) (Clinton Rossiter ed., 1961).
"The powers reserved to the several States will extend to all
objects which, in the ordinary course of affairs, concern the
lives, liberties, and properties of the people, and the internal
order, improvement, and prosperity of the State." The
Federalist No. 45, supra, at 292-93.
Alexander Hamilton noted that the administration of
criminal justice was reserved to the States. The Federalist
No. 17, at 120 (Alexander Hamilton) (Clinton Rossiter ed.,
1961).
This, of all others, is the most powerful, most
universal, and most attractive source of
popular obedience and attachment. It is this
which, being the immediate and visible
guardian of life and property, having its
benefits and its terrors in constant activity
before the public eye ... contributes more than
any other circumstance to ... render [the
States] at all times a complete counterpoise ...
to the power of the Union.
Id.
By comparison, the powers delegated to the federal
government were described as "few and defined." The
23
Federalist No. 45, supra, at 292. These few and defined
powers, as described by de Tocqueville, "have been confined
to a certain sphere; and although the despotism of the
majority may be galling upon one point, it cannot be said to
extend to all." Alexis de Tocqueville, DEMOCRACY IN
AMERICA 170 (Henry Reeve trans. , Henry Steele Commager,
ed. 1839). Those who opposed the ratification of the
proposed constitution were not convinced, though. They
wanted a Bill of Rights to assure state sovereignty and
individual liberty. In the Virginia ratification debates,
George Mason wondered why, if these two items were not
“given up, where are they secured? Let the gentlemen show
that they are secured in a plain, direct, unequivocal manner."
III ELLIOT’s DEBATES, supra at 266. See also George
Mason, "Objections to the Constitution," reprinted in 1 THE
DEBATE ON THE CONSTITUTION, supra, at 345-49. After the
Constitution was ratified these two items were secured by the
Bill of Rights, which includes the Tenth Amendment's
reiteration of the textual limits on the federal government.
New York v. United States, 120 L. Ed. 2d at 137-38.
It should also be noted that the characterization of the
powers of the federal government as few and defined came
before the adoption of the Bill of Rights. In fact, Hamilton
predicted that the adoption of a Bill of Rights would give the
federal government the “colorable pretext" to run roughshod
over the jurisdictional restraints imposed on it in the text of
the Constitution by legislating right up to the edge of
whatever individual rights were enumerated. The Federalist
No. 84, at 513 (Alexander Hamilton) (Clinton Rossiter ed.,
1961). Section 922(q) epitomizes the fears and concerns of
the Ratifiers of the Constitution and betrays their intent.
24
C. The Gun Free School Zones Act Renders
Article I of the Constitution Meaningless
1. There Is No Authority for Section 922(q)
in the Commerce Clause
The purpose of the Commerce Clause was to quell
interstate trade rivalries and to meet the challenges of foreign
competition. The Federalist No. 42, at 266-69 (James
Madison) (Clinton Rossiter ed., 1961). Even in Gibbons v.
Ogden, 22 U.S. 1, which is often cited for the broad power
Congress has under the Commerce Clause, this Court
declared that federal power to regulate commerce was
“complete in itself, may be exercised to its utmost extent,
and acknowledges no limitations other than those prescribed
in the constitution." Id. at 196, quoted in, e.g., United
States v. Darby, 312 U.S. 100, 114 (1941) (emphasis added).
One such limitation is that Congress can only regulate
commerce. The Ogden Court defined "commerce" as
“commercial intercourse." Jd. at 189-90; see also United
States v. Mennuti, 639 F.2d 107, 109-10 (2d Cir. 1981)
(noting that Ogden, Wickard, Atlanta Motel, Jones &
Laughlin Steel Co., Katzenbach v. McClung, and Perez all
involved businesses or their transactions). Samuel Johnson’s
DICTIONARY OF THE ENGLISH LANGUAGE (3d ed. 1765)
defined commerce as "[i]ntercourse, exchange of one thing
for another, interchange of anything; trade; traffick.” Raoul
Berger, FEDERALISM: THE FOUNDERS’ DESIGN 123 (1987).
This definition remains substantially unchanged to this day:
"Exchange between men of the products of nature or art;
buying and selling together; trading; exchange of
merchandise." THE COMPACT OXFORD’ ENGLISH
DICTIONARY 295 (2d ed. 1992). Not every facet of
American life can be said to be commercial intercourse, or
to have a substantial effect on such intercourse. If Section
922(q) is upheld, however, this truth will be rendered a nullity.
25
Another limitation prescribed by the Commerce
Clause is that the commerce must be among the several
States. "The enumeration fof particular classes of
commerce] presupposes something not enumerated." Ogden,
22 U.S. at 194-95. See also, e.g., Russell, 471 U.S. at 860-
61 & n.4 (residential property substantially affected interstate
commerce under federal arson statute only because it was
used for commercial purposes). United States v. Voss,
787 F.2d 393, 397 (8th Cir. 1986) (vacant residence owned
by a business and insured by interstate insurer does not affect
interstate commerce); Babin, 799 F. Supp. at 728-35. As
this Court stated in Maryland v. Wirtz, 392 U.S. 183, 196
(1968), overruled on other grounds by National League of
Cities v. Usery, 426 U.S. 833 (1976), federal power is
limited to “‘commerce,’ and not all commerce but
‘commerce ... among the several States.’ The expansion of
enterprise has vastly increased the interests of interstate
commerce but the constitutional difference still obtains." Jd.
The Constitution itself, read logically and with knowledge of
the intent of the Ratifiers, should limit congressional
authority over an activity only if it was both "among the
several States" and "Commerce." This Court should thus
hold that Section 922(q) is not within the commerce power.
2. There Is No Authority for Section 922(q)
in the Necessary and Proper Clause
Even an analysis that attempts to borrow from the
Necessary and Proper Clause, U.S. Const. Art. I, § 8, cl.
18, to find congressional authority for Section 922(q) fails.
By comparing the present case to Heart of Atlanta Motel,
Inc. v. United States, 379 U.S. 241, a case that looked to the
Necessary and Proper Clause, the shortcomings of the
present statute become even more evident. As discussed by
the court below, the present enactment goes even further than
a
26
the unconstitutional statute in The Civil Rights Cases. Lopez,
2 F.3d at 1364 n.47.
The Civil Rights Act of 1964, at issue in Atlanta
Motel, stated, on its face, that it was “only” applicable to
business establishments that were found to affect interstate
commerce or were supported by state action. 379 U.S
at 247. By comparison, the Gun Free School Zones Act is
not limited in its scope to business establishments or those
transacting with such establishments, but to any individual
who possesses an ordinary firearm within 1,000 feet of
school property. Will Congress next seek to expand the
zones to encompass the cities and towns where the schools or
businesses are located? Could it also ban all guns within
1,000 miles when it finds that the 1,000 foot zones are not
enough? If the commerce power may justify the present
enactment, it is boundless. "The underlying thought is merely
this, that the law is not indifferent to considerations of
degree.” Carter v. Carter Coal Co., 298 U.S. 238, 327
(1936) (Cardozo, J., separate opinion).
An additional difference between Aflanta Motel and
the present case is that the Court in Atlanta Motel had before
it ample proof that Congress had considered the constitutional
ramifications and bases of its enactment. 379 U.S. at 244-
53. See also Katzenbach v. McClung, 379 U.S. at 302.
There is no such proof here.’ Even in these two civil rights
cases which justify the furthest reach of Congress to regulate
local commercial activities "to foster and protect interstate
commerce,” 379 U.S. at 272, Congress explicitly relied on
a nexus with interstate commerce. The Court also had
’ Indeed, because legislative history is often unreliable, Tafflin v. Levitt,
493 U.S. 455, 472 (1990) (Scalia, J., concurring), the government's citation to
mynad educational, sociological, psychological and political authorities, see Brief
of the United States at VUI-IX (Table of Authorities), is also suspect, if not
irrelevant
27
available to it a record of legislative history replete with
evidence, not that discrimination was an evil worthy of
attack," but of local, commercial activities burdening
interstate commerce. Aflanta Motel, 379 U.S. at 245-53,
257, 261; Katzenbach v. McClung, 379 U.S. at 299-301.
Thereafter, the Court also concluded that it was necessary
and proper for Congress to regulate these local, commercial
activities because they had "a substantial and harmful effect"
On interstate commerce. Atlanta Motel, 379 U.S. at 258.
It would be improper for this Court to reverse the
Fifth Circuit’s decision, in effect, doing what Congress itself
failed to do in finding its authority within the Constitution.
To do so would “obliterate what is national and what is
local," NLRB v. Jones & Laughlin Steel Corp., 301 U.S.
at 37, via congressional ambiguity. For the simple reason
that Section 922(q), unlike the enactments at issue in Atlanta
Motel and Katzenbach v. McClung, reaches behavior that is
purely local, private, nontransactional, and noncommercial,
it is not a necessary or proper exercise of congressional
power. This is especially so because state and local law
enforcement efforts are much better suited to deal with local
illegal ordinary firearms possession. "Congress is simply not
as well equipped as state legislators to make decisions
involving purely local needs.” EEOC v. Wyoming, 460 U.S.
at 263 n.8 (Burger, C.J., dissenting); see also New State Ice
Co. v. Liebmann, 285 U.S. 262, 311 (1932). In fact, the
federal prosecution in this case, as well as the enactment,
were wholly superfluous to bringing Mr. Lopez to justice.
* CS, the government's attempt to extrapolate evidence of the evils of violence
into an economic effect of such violence on interstate commerce. Brief of the
United States at 19-20 (quoting a gun control activist discussing the effect that a
fearful environment has on the learning ability of children). Were such evidence
relevant, it might also be applied to federalize family discipline, playground
fisticuffs, the content of Stephen King novels, or even the content of childhood
nightmares
|
28
He was initially dealt with by educational officials and local
police. Lopez, 2 F.3d at 1345.
By respecting the sovereignty of the states, and the
authority of the people of their respective states to shape
their governments to their local needs, this Court will further
the public safety by recognizing the impropriety of Section
922(q). If Section 922(q) is struck down, "the People would
govern themselves more easily, the Laws of each State being
well adapted to its own Genius & Circumstances, and the
Liberties of the United States would be more secure." Letter
of Samuel Adams to Richard Henry Lee (Dec. 3, 1787),
reprinted in | THE DEBATE ON THE CONSTITUTION, supra,
at 47 (emphasis in original).’
3. There Is No Authority for Section 922(q)
in Any Other Provision of Article I
Reading Article I of the Constitution as a whole
provides further evidence that the Gun Free School Zones
Act is invalid. Under Article I, Congress is given authority
* Additionally, a primary consideration of the judiciary when upholding federal
regulation is whether excluding a given activity from “the scheme of [federal]
regulation would have a substantial effect in defeating and obstructing its
purpose.” E.g., Wickard, 317 U.S. at 129. This rationale has no application to
the present case. The federal government may enforce its law against illegal
firearms transactions, transportation, or other such acts having a nexus with
interstate commerce, while Texas and its political subdivisions are fully capable
of enforcing their laws locally. Neither the federal, nor the local, scheme will
be thwarted by limiting the authorities to their respective jurisdictions. Any
overlap into purely intrastate affairs will actually result in a waste of resources,
as in the present case (where Mr. Lopez was arrested by state authorities), and/or
a dilution of the republican accountability our federal system seeks to protect
Cf New York v. United States, 120 L. Ed. 2d at 154-56. In other words, federal
crminalization of purely local crimes will allow state officials to deflect
responsibility for high crime rates by claiming they are hampered by federal
interference, or alternatively, by a lack of federal effort. The Fifth Circuit
removed such unrepublican obfuscation.
a
29
to punish select crimes such as counterfeiting, maritime
piracy, and military crimes. U.S. Const. Art. I, § 8, cls. 6,
10, and 16. Under Article III, it is also given the power to
define the punishment for treason. /d. Art. III, § 3, cl. 2.
These are the sole grants of congressional authority in the
realm of criminal law. Furthermore, if Congress can
regulate any human activity under its commerce power, then
the clause granting the power of "exclusive Legislation in all
Cases whatsoever" in the District of Columbia, U.S. Const.
Art. I, § 8, cl. 17, is redundant. This is further support for
the conclusion that Section 922(q) goes well beyond what the
Constitution may tolerate. Van Alstyne, supra, at 1746.
As this Court stated in New York v. United States,
120 L. Ed. 2d at 137: “If a power is delegated to Congress
in the Constitution, the Tenth Amendment expressly
disclaims any reservation of that power to the States.” /d.
Such is the case with maritime piracy. But "if a power is an
attribute of state sovereignty reserved by the Tenth
Amendment, it is necessarily a power the Constitution has
not conferred on Congress." Id. Such is the case with
purely local crime, firearms regulation, education, and the
noncommercial, intrastate acts of individuals, which are
reserved to the States and to the people. Otherwise, "the
chain of causation is virtually infinite, and hence there is no
private activity, no matter how local and insignificant, the
ripple effect from which is not in some theoretical measure
ultimately felt beyond the borders of the state in which it
took place." Lopez, 2 F.3d at 1362.
CONCLUSION
By upholding Section 922(q), this Court may be
appeasing what some might portray as protection of our
children, or ending violence in our cities, both very
important ends. At the very least, though, Congress has
EE
30
made this impossible by failing to find a link with interstate
commerce, and by failing to require it as an element of the
crime. Under the Gun Free School Zones Act, Congress
seeks to do the same in the 5O states as it may do in the
District of Columbia--exercise a general police power. By
so doing, it undermines the sanctity of our written
Constitution, turning that compact and its express protections
from tyranny, into a manipulable series of suggestions that
may be disregarded at will.
The Fifth Circuit took a very restrained account of
individual liberty and the principles of federalism in
declaring Section 922(q) beyond the scope of congressional
commerce power. Congress has intruded too far into an area
better left to the States and to the people--passive, individual,
noncommercial, nontransactional, intrastate acts--upsetting
the delicate state-federal balance. This Court should
therefore adopt and expand upon the lower court’s reasoning.
DATED: July, 1994.
Respectfully submitted,
RONALD A. ZUMBRUN
* ANTHONY T. CASO
JOHN G. SCHMIDT, JR.
*Counsel of Record
Pacific Legal Foundation
2151 River Plaza Drive,
Suite 305
Sacramento, California 95833
Teiephone: (916) 641-8888
Attorneys for Amicus Curiae,
Pacific Legal Foundation
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.