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THE AMENDED GUN-FREE SCHOOL ZONES
ACT: DOUBT AS TO ITS
CONSTITUTIONALITY REMAINS
S
ETH
J. S
AFRA
The judicial decision making contemplated by the Constitution . . .
unlike at least the politics of the moment, emphatically is not a
function of labels. If it were, the Supreme Court assuredly would not
have struck down the “Gun-Free School Zones Act,” the “Religious
Freedom Restoration Act,” the “Civil Rights Act of 1871,” or the
“Civil Rights Act of 1875.” And if it ever becomes such, we will have
ceased to be a society of law, and all the codification of freedom in
the world will be to little avail.
1
In
United States v. Lopez
,
2
the Supreme Court declared the Gun-
Free School Zones Act of 1990 (GFSZA) an unconstitutional
exercise of Congress’s Commerce Clause power.
3
The repudiated
statute made it a federal offense “‘for any individual knowingly to
possess a firearm at a place that the individual knows, or has
reasonable cause to believe, is a school zone.’”
4
The Court offered several reasons why the ban on possession of
firearms in school zones was unconstitutional. First, the Court noted
that possession of firearms is not an activity traditionally associated
with the federal power over interstate commerce.
5
Regardless of this
Copyright © 2000 by Seth J. Safra.
1. Brzonkala v. Virginia Polytechnic Inst. & State Univ., 169 F.3d 820, 889 (4th Cir. 1999)
(reflecting on the political consequences of invalidating a provision in the Violence Against
Women Act),
aff’d sub nom.
United States v. Morrison, 120 S. Ct. 1740 (2000).
2. 514 U.S. 549 (1995).
3
.Id.
at 552.
4
.Id.
at 551 (quoting 18 U.S.C. § 922(q)(1)(A) (1988 & Supp. V)).
5. The majority opinion emphasized that possession of firearms is not an economic
activity.
See id.
at 560-61. Justice Kennedy’s concurring opinion, in which Justice O’Connor
joined, asserted that GFSZA
was problematic because it intruded into areas traditionally left to
the states.
See id.
at 580-83 (Kennedy, J., concurring) (“[I]t is well established that education is a
traditional concern of the States.”). Of course, if the statute’s constitutionality is contingent on
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fundamental problem, the statute could not be upheld because there
was no rational basis for concluding that possession of firearms in a
school zone affected interstate commerce and there was no
“jurisdictional element” to ensure that in each case the possession
affected interstate commerce.
6
Ultimately, the statute was
unconstitutional because it was not an exercise of any of the three
broad categories of Congress’s Commerce Clause power: (1) power
over the use of the channels of interstate commerce; (2) power over
the instrumentalities of interstate commerce, or things in interstate
commerce; and (3) power over activities substantially affecting
interstate commerce.
7
In response to
Lopez
, Attorney General Janet Reno
recommended amendments to GFSZA. These amendments were
intended to solve the problems identified in the opinion.
8
Per General
Reno’s suggestion, Congress changed the gravamen of the offense
from possessing a firearm in a school zone to possessing a firearm
“
that has moved in or that otherwise affects interstate or foreign
commerce
” in a school zone.
9
The added language
is a jurisdictional
element that limits the statute’s “reach to a discrete set of firearm
possessions that additionally have an explicit connection with or
effect on interstate commerce.”
10
In addition, the new statute includes
how “economic” possessing a firearm is or on tradition, solving the problem of the statute’s
constitutionality through a legislative fix would be impossible.
6
. See id.
at 562-63. As its name implies, a “jurisdictional element” is an element of the
offense inserted in order to bring the offense within Congress’s federal power.
See, e.g.
, United
States v. Krilich, 209 F.3d 968, 972 (7th Cir. 2000) (“[T]he nexus with interstate commerce,
which courts frequently call the ‘jurisdictional element’ . . . is ‘jurisdictional’ only in the
shorthand sense that without that nexus, there can be no federal crime . . . .”) (citation omitted).
Like any other element of the offense, the prosecution must prove that the conditions in the
“jurisdictional element” existed at the time of the offense.
See id.
at 531 (“[T]he ‘jurisdictional
element[]’ is simply one of the essential elements of [the offense].”).
7
. See Lopez
, 514 U.S. at 558-59 (citations omitted).
8
.See
Message to Congress Transmitting Proposed Legislation to Amend the Gun-Free
School Zones Act of 1990
, 1995 P
UB
. P
APERS
678 (May 10, 1995) [hereinafter
Message to
Congress
].
9. 18 U.S.C. § 922(q)(2)(A) (Supp. IV 1998) (emphasis added). As the amendments were
concealed within the Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208,
§ 657, 110 Stat. 3009, 3009-369-71 (1996)—an act having nothing to do with safety in schools or
guns—they have been widely ignored.
10
. Message to Congress
,
supra
note 8, at
678. The addition responds to the criticism in
Lopez
that Ҥ 922(q) contains no jurisdictional element which would ensure, through case-by-
case inquiry, that the firearm possession in question affects interstate commerce.”
Lopez
, 514
U.S. at 561. The jurisdictional element in this case can be described more accurately as two
alternative jurisdictional elements: (1) past movement in interstate commerce, and (2) other
effect on interstate commerce.
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639
legislative findings that possession of guns near schools affects
interstate commerce.
11
While, on the surface, the changes specifically answer the
problems addressed in
Lopez
, the criminal act remains the same—
possession of a gun in a school zone. In fact, when President Clinton
proposed the amendments to Congress, he emphasized that the
modifications had little or no effect on the ability to prosecute the
offense.
12
Accordingly, the concerns regarding Congress’s intrusion
into an area
traditionally regulated by states and the potential for
using the commerce power as a general police power remain.
13
11
.See
18 U.S.C. § 922(q)(1) (Supp. IV 1998). The findings were originally added between
the time when Mr.
Lopez was prosecuted and the time when the Supreme Court issued its
opinion.
See id.
;
Lopez
, 514 U.S. at 618 (Breyer, J., dissenting) (noting that Congress made
findings after Lopez was prosecuted). The findings are enumerated in subparagraphs A through
I:
(A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide
problem;
(B) crime at the local level is exacerbated by the interstate movement of drugs, guns,
and criminal gangs;
(C) firearms and ammunition move easily in interstate commerce and have been
found in increasing numbers in and around schools, as documented in numerous
hearings in both the Committee on the Judiciary the House of Representatives and
the Committee on the Judiciary of the Senate;
(D) in fact, even before the sale of a firearm, the gun, its component parts,
ammunition, and the raw materials from which they are made have considerably
moved in interstate commerce;
(E) while criminals freely move from State to State, ordinary citizens and foreign
visitors may fear to travel to or through certain parts of the country due to concern
about violent crime and gun violence, and parents may decline to send their children
to school for the same reason;
(F) the occurrence of violent crime in school zones has resulted in a decline in the
quality of education in our country;
(G) this decline in the quality of education has an adverse impact on interstate
commerce and the foreign commerce of the United States;
(H) States, localities, and school systems find it almost impossible to handle
gun-related crime by themselves—even States, localities, and school systems that
have made strong efforts to prevent, detect, and punish gun-related crime find their
efforts unavailing due in part to the failure or inability of other States or localities to
take strong measures; and
(I) the Congress has the power, under the interstate commerce clause and other
provisions of the Constitution, to enact measures to ensure the integrity and safety of
the Nation’s schools by enactment of this subsection.
18 U.S.C. § 922(q)(1) (Supp. IV 1998).
12
.See
Message to Congress
,
supra
note 8, at 678.
Moreover, to be convicted, a defendant
must “know only that he or she possesses the firearm” and not that the firearm ever moved in
interstate commerce.
Id.
13
. See supra
note 5. To the extent that the Gun-Free School Zones Act was
unconstitutional because it “intrude[d] upon an area of traditional state concern,”
Lopez
, 514
U.S. at 580 (Kennedy, J., concurring), and the activity was non-economic,
see id.
at 560-61, the
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This Note investigates the constitutionality of the amended Gun-
Free School Zones Act. While the end of prohibiting guns near
schools is laudable, Congress’s power to achieve this end through
federal
law is in doubt when the only connection to interstate
commerce is that the gun previously moved in interstate commerce.
Notwithstanding the problem of regulating a noneconomic
activity that is traditionally within the states’ authority, the revised
Act could only be constitutional if it fits into one of the three
categories of Congress’s commerce power. Part I investigates whether
the jurisdictional element brings the statute within one of the three
categories. Part II asks whether adding congressional findings to the
statute brings it within one of the three categories.
14
This Note
concludes that, because neither the jurisdictional element nor the
congressional findings logically give Congress the requisite power that
was lacking in
Lopez
, grave doubt exists as to the constitutionality of
applying the statute where the only nexus to interstate commerce is
the firearm’s previous movement therein.
15
legislative fix cannot remedy the problem. The analysis in this Note assumes that,
notwithstanding the nature of the offense, an act of Congress that fits within one of the three
categories of its Commerce Clause power is constitutional.
14
. See supra
note 7 and accompanying text.
15. The statute should not be challenged on its face. A facial challenge to the
constitutionality of a congressional act—considered “the most difficult challenge to mount
successfully”—does not arise unless “no set of circumstances exists under which the Act would
be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). In this case, however, there are
circumstances under which the Gun-Free School Zones Act could be valid. For example, a
person transporting a gun in interstate commerce could pass through a school zone. Regulating
possession in that case might be a constitutional exercise of Congress’s power over the channels
of interstate commerce or Congress’s power over things in interstate commerce.
See
discussion
infra
Part I.B-C. Similarly, if, in the particular case, an effect on interstate commerce is
demonstrated, the act would be valid.
See
infra
note 18 and accompanying text.
The only significant exceptions to the
Salerno
rule are the doctrines of overbreadth and
vagueness.
See
City of Chicago v. Morales, 527 U.S. 41, 52 (1999) (Stevens, J., plurality opinion).
The overbreadth doctrine applies only when there is a substantial infringement, in relation to
the statute’s “legitimate sweep,” upon First Amendment rights.
Id.
(quoting Broadrick v.
Oklahoma, 413 U.S. 601, 615 (1973)). Clearly, First Amendment rights are not at issue in this
case. The vagueness doctrine applies when a statute fails to provide adequate notice of the
prohibited conduct or encourages arbitrary and discriminatory enforcement.
See id.
(citing
Kolender v. Lawson, 461 U.S. 352, 357 (1983)). For example, a statute that prohibits “remaining
in one place ‘with no apparent purpose’” is vague.
Id.
at 53. The Gun-Free School Zones Act is
not such a statute; the proscribed conduct in this case—possessing a firearm in a school zone—is
objectively clear.
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I. J
URISDICTIONAL
E
LEMENT
The most significant change to the Gun-Free School Zones Act
was the addition of the jurisdictional element, which was intended to
ensure that in each case, there is an inquiry as to whether the
particular offense falls within Congress’s commerce power.
16
While
the requirement that the particular possession affect interstate
commerce
17
makes the statute constitutional on its face,
18
the statute’s
constitutionality is doubtful as applied to the case where the only
connection to interstate commerce is that the gun “has moved in . . .
interstate . . . commerce.”
19
The key issue is whether past movement
in interstate or foreign commerce (for example, twenty years before
the person possessing the firearm in a school zone obtained it),
without more, brings regulation of possession within Congress’s
power over activities that substantially affect interstate commerce, its
power over the channels of interstate commerce, or its power over
instrumentalities of interstate commerce and things in interstate
commerce.
20
16
. See supra
notes 8-10 and accompanying text.
17
.See
18 U.S.C. § 922(q)(2)(A) (Supp. IV 1998).
18. Theoretically, one could quibble that because Congress’s power reaches only activities
that
substantially
affect interstate commerce, the statute’s requirement that the act of possession
merely
affect
interstate commerce is insufficient to make it constitutional. However, such an
argument seems to elevate form over substance. Based on
Wickard v. Filburn
, 317 U.S. 111
(1942), an action with a de minimis effect on interstate commerce is deemed to have a
substantial effect on interstate commerce if the aggregate effect from everyone doing it would
have a substantial effect on interstate commerce.
Id.
at 128-29. It is hard to imagine how an
activity that affects interstate commerce a little bit when performed by one person would not
substantially affect interstate commerce when performed by many people.
Past movement in interstate commerce has been termed a “de minimis
nexus” to
interstate commerce.
See, e.g.
, Antony Barone Kolenc,
Commerce Clause Challenges After
United States v. Lopez, 50 F
LA
. L. R
EV
. 867, 878-79 (1998) (referring to the use of a “de
minimis nexus” in Scarborough v. United States, 431 U.S. 563, 564 (1977)). This term should not
be confused with activities having a de minimis effect on interstate commerce.
See supra
note
11. Although past movement in interstate commerce might be a de minimis nexus to interstate
commerce, the impact of possession on interstate commerce remains nil. Accordingly,
movement in interstate commerce should not give subsequent possession even a de minimis
effect on interstate commerce.
19. 18 U.S.C. § 922(q)(2)(A).
20
. See supra
note 7 and accompanying text. At least one judge has recognized that adding
a jurisdictional element to a statute does not end the analysis of whether the statute is
constitutional as applied.
See
Brzonkala v. Virginia Polytechnic Inst. & State Univ., 169 F.3d
820, 903 n.4 (4th Cir. 1999) (Niemeyer, J., concurring) (noting that its analysis of a statute with
no jurisdictional element “does not present the issue of how far Congress can extend its power,
if at all, to enact legislation through the use of jurisdictional hooks”),
aff’d sub nom.
United
States v. Morrison, 120 S. Ct. 1740 (2000).
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Section I.A investigates whether the jurisdictional element
makes the statute an exercise of Congress’s power over activities
substantially affecting interstate commerce. Section I.B addresses
possible arguments that the jurisdictional element makes the Act an
exercise of Congress’s power over the channels of interstate
commerce, or over instrumentalities of interstate commerce and
things in interstate commerce. Although past movement in interstate
commerce provides a connection to interstate commerce, there is no
basis in constitutional law for the conclusion that such a connection
brings the statute within one of those three categories of Congress’s
power.
A. Activities That Substantially Affect Interstate Commerce
Although the requirement that the act of possession affect
interstate commerce makes the statute facially constitutional,
21
it is
doubtful that past movement in interstate commerce alone is enough
to “ensure,
through case-by-case inquiry
, that the firearm possession
in question affects interstate commerce.”
22
As explained below, there
is no basis in constitutional law for such a conclusion.
23
21.
See supra
note 18 (discussing the missing word “substantially”).
22. United States v. Lopez, 514 U.S. 549, 561 (1995) (emphasis added). Without clear
authority, it seems to have been assumed that if an item has moved in interstate commerce in
the past, it comes within Congress’s power. For example, the Sixth Circuit has written,
“
Lopez
. . . did not disturb the Supreme Court’s precedents which indicate that a firearm that
has been transported at any time in
interstate commerce has a sufficient effect on commerce to
allow Congress to regulate the possession of that firearm pursuant to its Commerce Clause
powers.” United States v. Chesney, 86 F.3d 564, 570-71 (6th Cir. 1996);
see also
Message to
Congress
,
supra
note 8, at 678 (assuming that limiting the statute’s reach to firearms that have
moved in interstate commerce would bring it within Congress’s Commerce Clause authority);
Donald H. Regan,
How to Think About the Federal Commerce Power and Incidentally Rewrite
United States v. Lopez, 94 M
ICH
. L. R
EV
. 554, 567-68 (1995) (concluding almost summarily that
regulating possession of a firearm that has moved in interstate commerce would be
constitutional). Even Justice Breyer has noted Congress’s ability to derive power by relating
regulations to movement in interstate commerce.
See
United States v. Morrison, 120 S. Ct. 1740,
1776 (2000) (Breyer, J., concurring) (“[I]n a world where most everyday products or their
component parts cross interstate boundaries, Congress will frequently find it possible to redraft
a statute using language that ties the regulation to the interstate movement of some relevant
object . . . .”). Disturbed by how illogical it would be to draw the line between what is
constitutional and what is not with an irrelevant hook, Justice Breyer sarcastically quipped that
Congress should amend the recently repudiated Violence Against Women Act to forbid
“‘Violence Against Women . . . by Those Who Have Moved in, or through the Use of Items that
Have Moved in, Interstate Commerce.’”
Id.
(Of course, Justice Breyer’s argument suggested the
alternative solution to resolving the conundrum—uphold the statute even though it contains no
jurisdictional element.)
23
. See infra
notes 39-64 and accompanying text.
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Congress’s power over activities that substantially affect
interstate commerce has been succinctly stated: “‘[i]f it is interstate
commerce that feels the pinch, it does not matter how local the
operation which applies the squeeze.’”
24
To assure that Congress
regulated only activities whose squeeze was felt by interstate
commerce, early-twentieth-century
Commerce Clause jurisprudence
limited Congress’s powers to activities with a direct impact on
interstate commerce.
25
Eventually, whether a pinch on interstate
commerce was sufficient to justify federal regulation became a
question of degree, much like proximate cause in tort.
26
In
application, the modern test has shifted from whether there is a direct
impact on interstate commerce to whether Congress rationally could
have believed that the activity affects interstate commerce.
27
24. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964) (quoting United
States v. Women’s Sportswear Mfg. Ass’n, 336 U.S. 460, 464 (1949)).
25
. See, e.g.
, A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 546 (1935)
(noting that Congress’s power is limited to transactions that directly affect interstate commerce
and hypothesizing that if the commerce power reached all activities with an indirect effect on
interstate commerce, “even the development of the State’s commercial facilities would be
subject to federal control”).
26
.See
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937) (describing the
boundary of Congress’s power as a question of degree, bounded by activities with “effects upon
interstate commerce so indirect and remote that to embrace them, in view of our complex
society, would effectually obliterate the distinction between what is national and what is local
and create a completely centralized government”). Perhaps the question of degree is best
illustrated by the metaphor in Justice Cardozo’s concurring opinion in
Schechter Poultry
, two
years before the approach was adopted by a majority of the Court:
Motion at the outer rim is communicated perceptibly, though minutely, to recording
instruments at the center . . . . Activities local in their immediacy do not become
interstate and national because of distant repercussions. What is near and what is
distant may at times be uncertain.
Schechter Poultry
, 295 U.S. at 554 (Cardozo, J., concurring).
27
. See, e.g.
,
Heart of Atlanta Motel
, 379 U.S. at 258. Although the Court’s recent opinion
in
Morrison
recognized that the modern commerce power is much broader than it was
historically,
see
United States v. Morrison, 120 S. Ct. 1740, 1748 (2000) (“Congress has had
considerably greater latitude in regulating conduct and transactions under the Commerce
Clause than our previous case law permitted.”), language in that opinion could in fact narrow
Congress’s power. Citing cases that stood for the proposition that the Court is the ultimate
arbiter of whether Congress could have had a rational basis for concluding that an activity
substantially affected interstate commerce, the Court asserted that “‘[w]hether particular
operations affect interstate commerce sufficiently to come under the constitutional power of
Congress to regulate them is ultimately a
judicial rather than a legislative
question, and can be
settled finally only by this Court.’”
Id.
at 1752 (emphasis added) (quoting
Lopez
, 514 U.S. at 557
n.2). Although it remains to be seen how this language will be applied, this assertion could limit
the deference traditionally given to Congress’s determination of the extent of its power.
Compare id. with
J
OHN
E. N
OWAK
& R
ONALD
D. R
OTUNDA
, C
ONSTITUTIONAL
L
AW
§ 4.8, at
154 (4th ed. 1991) (“The Court [before
Lopez
] now will defer to the legislature’s choice of
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For example, because Congress rationally could have believed
that local discrimination in hotels and restaurants substantially affects
interstate commerce, the Supreme Court has upheld legislation
prohibiting such discrimination.
28
Similarly, Congress successfully
regulated the manufacturing of goods before they enter into the
stream of interstate commerce.
29
Although the precise limit of this
power is unclear, “even under our modern, expansive interpretation
of the Commerce Clause, Congress’ regulatory authority is not
without effective bounds.”
30
To be sure, Congress does not have the
power to make it a federal offense “‘for any individual knowingly to
possess a firearm at a place that the individual knows, or has
reasonable cause to believe, is a school zone.’”
31
Possession of a
firearm in a school zone, without more,
does not substantially affect
interstate commerce.
32
This line leads one to question how, if possession of a firearm in
a school zone does not substantially affect interstate commerce,
possession of a “special” firearm—one that previously moved in
interstate commerce—could substantially affect interstate commerce.
The logical response is that previous movement in interstate
commerce has nothing to do with whether a particular act of
possession affects interstate commerce; the item’s history, therefore,
should not affect the statute’s constitutionality.
33
Nevertheless, courts
have distinguished
Lopez
precisely on that basis.
economic rationale . . . . The justices will defer to the legislative choices in this area and uphold
laws if there is a rational basis upon which Congress could find a relation between its regulation
and commerce.”).
28
.See
Katzenbach v. McClung, 379 U.S. 294, 303-04 (1964) (upholding a federal ban on
discrimination in an intrastate restaurant that received a substantial amount of its food in
interstate commerce, because the restaurant sold less food as a result of the discrimination,
thereby affecting the quantity of food moving in interstate commerce);
Heart of Atlanta Motel
,
379 U.S. at 252-53 (holding that Congress could ban discrimination in a hotel because such
discrimination hinders interstate travel of African Americans, thereby interrupting interstate
commerce).
29
.See
United States v. Darby, 312 U.S. 100, 117-20 (1941) (upholding federal wage and
hour requirements on the basis that employees’ labor conditions substantially affect interstate
commerce).
30
. Morrison
, 120 S. Ct. at 1748 (citing
Lopez
, 514 U.S. at 557).
31
.Lopez
, 514 U.S. at 551 (quoting 18 U.S.C. § 922(q)(1)(A) (Supp. V 1988)).
32
. See id.
at 562 (noting that a substantial effect on interstate commerce was not plainly
visible and that there were no findings within the statute or legislative history demonstrating the
effects of possessing a gun in a school zone on interstate commerce).
33
.See
Steven D. Clymer,
Unequal Justice: The Federalization Of Criminal Law
, 70 S. C
AL
.
L. R
EV
. 643, 667 (1997) (noting that
Lopez
might change the existing doctrine by “precluding
the federal government from using proof of a minimal effect on interstate commerce [past
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645
Since 1995, statutes such as 18 U.S.C. § 922(g)—which makes it a
crime for convicted felons to “possess
in or affecting commerce
, any
firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign
commerce”
34
—have withstood constitutional challenges due to the
presence of a jurisdictional element.
35
While there is little argument
that the jurisdictional element makes the statute constitutional on its
face,
36
courts have used the language to perform a constitutional
sleight of hand, declaring that “affecting interstate commerce” can be
“satisfied if the illegally possessed firearm had previously traveled in
interstate commerce.”
37
Such a conclusion amounts to the ultimate
triumph of form over substance.
38
The conclusion that “in or affecting commerce” are
“jurisdictional words of art”
39
requiring only a showing that the
firearm previously traveled in interstate commerce
40
is based on the
Supreme Court’s opinions in
United States v. Bass
41
and
Scarborough
movement] as a jurisdictional hook to support federal prosecution”); Eric Grossman, Comment,
Where Do We Go From Here? The Aftermath and Application of
United States v. Lopez, 33
H
OUS
. L. R
EV
. 795, 799 (1996) (questioning whether “Congress [is] really regulating ‘interstate
commerce’ simply because an object happened to travel in interstate commerce six months, five
years, or thirty years ago” and noting that this finding alone is being used by lower courts to
distinguish
Lopez
).
34. 18 U.S.C. § 922(g) (1994) (emphasis added).
35
. See, e.g.
, United States v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998) (distinguishing 18
U.S.C. § 922(g) from the statute repudiated in
Lopez
because it had the element the absence of
which was “[c]entral to the
Lopez
court’s holding”—a jurisdictional element reaching only
possession that affects commerce).
36
. See supra
note 18.
37
.Pierson
, 139 F.3d at 503-04 (citing United States v. Rawls, 85 F.3d 240, 242 (5th Cir.
1996));
see also
United States v. Wells, 98 F.3d 808, 811 (4th Cir. 1996) (citing Scarborough v.
United States, 431 U.S. 563, 575 (1977)).
38
.Cf.
United States v. Bishop, 66 F.3d 569, 596 (3d Cir.)
(Becker, J., dissenting)
(conceiving that jurisdictional words of art “would permit a federal law outlawing the theft of a
Hershey kiss from a corner store in Youngstown, Ohio by a neighborhood juvenile on the basis
that the candy once traveled in interstate commerce to the store from Hershey, Pennsylvania”),
cert. denied
, 516 U.S. 1032 (1995),
and
cert. denied sub nom.
Stokes v. United States, 516 U.S.
1066 (1996); Carlo D’Angelo,
The Impact of
United States v. Lopez
upon Selected Firearms
Provisions of Title 18 U.S.C. § 922
, 8 S
T
. T
HOMAS
L. R
EV
. 571, 583-84 (1996) (questioning the
authority of
Scarborough
in light of
Lopez
on the basis that virtually everything has “at one
time or another seen the borders of a foreign state”).
39. United States v. Gillies, 851 F.2d 492, 493 (1st Cir. 1988).
40
. See Wells
, 98 F.3d at 811 (asserting that “in or affecting commerce” requires a minimal
nexus to interstate commerce);
see also
Pierson
, 139 F.3d at 503-04 (asserting that the minimal
nexus required is a showing that the firearm previously traveled in interstate commerce).
41. 404 U.S. 336 (1971).
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v. United States
.
42
Although courts and scholars have treated the
opinions as constitutional law,
43
the cases never settled the
constitutional issue.
In
Bass
, the Supreme Court interpreted a statute prohibiting a
convicted felon from “receiv[ing], possess[ing], or transport[ing]
in
commerce or affecting commerce
. . . any firearm.”
44
Specifically, the
Court was asked whether “in commerce or affecting commerce”
applied to “receive” and “possess” or whether it applied only to
“transport.”
45
Because ambiguity of criminal statutes “should be
resolved in favor of lenity,”
46
the Court concluded that the
jurisdictional element applied to “possess.”
47
The decision was not
42. 431 U.S. 563 (1977).
43
. See,
e.g.
,
Pierson
, 139 F.3d at 503-04 (citing, albeit indirectly,
Scarborough
, 431 U.S. at
575, for the proposition that “the ‘in or affecting’ commerce element can be satisfied if the
illegally possessed firearm had previously traveled in interstate commerce”);
Wells
, 98 F.3d at
811 (citing
Scarborough
, 431 U.S. at 575, for the proposition that “the existence of [a]
jurisdictional element . . . distinguishes
Lopez
and satisfies the minimal nexus required for the
Commerce Clause”); Harry Litman & Mark D. Greenberg,
Federal Power and Federalism: A
Theory of Commerce-Clause Based Regulation of Traditionally State Crimes
, 47 C
ASE
W. R
ES
.
L. R
EV
. 921, 932
(1997) (referring to
Scarborough
’s “necessar[y], if implicit[],” holding that
regulating guns that have moved in interstate commerce is within Congress’s constitutional
power);
supra
note 22.
44
.Bass
, 404 U.S. at 337 (quoting 18 U.S.C.A. § 1202(a) (1968)) (emphasis added). Section
1202(a) was the predecessor to section 922(g). The relevant parts of this statute are now found
in 18 U.S.C. § 922(g) (1994).
45
.See
id.
at 338. Mr. Bass argued in the alternative that if “in commerce or affecting
commerce” applied only to transport, the statute was not within Congress’s constitutional
power.
See id
. Because the Court held that “in commerce or affecting commerce” also applied
to “receive” and “possess,” the Court never reached the question of whether the statute could
be constitutional if it prohibited receipt and possession without the “in commerce or affecting
commerce” limitation.
See id.
at 338-39.
46
.Id.
at 347 (quoting Rewis v. United States, 401 U.S. 808, 812 (1971)).
47
. See id.
at 347. The Court also mentioned a desire to protect the federal-state balance.
See id.
at 349 (asserting that a statute will not be interpreted “to have significantly changed the
federal-state balance” unless Congress conveys a clear purpose to do so). Reaching possession
that did not affect interstate commerce would have broadened Congress’s power significantly.
The Court reasoned that if such broad power was Congress’s intent, Congress would have made
such an intent more clear.
See id
.
Although recent decisions might make the traditional federal-state balance part of the
constitutional analysis,
see,
e.g.
, United States v. Lopez, 514 U.S. 549, 577 (1995) (Kennedy, J.,
concurring) (“Were the Federal Government to take over the regulation of entire areas of
traditional state concern, areas having nothing to do with the regulation of commercial
activities, the boundaries between the spheres of federal and state authority would blur and
political responsibility would become illusory.”); Brzonkala v. Virginia Polytechnic Inst. & State
Univ., 169 F.3d 820, 903 (4th Cir. 1999) (Niemeyer, J., concurring) (considering whether a
statute “unduly intrudes on the general police power retained by the States”),
aff’d
sub. nom.
United States v. Morrison, 120 S. Ct. 1740 (2000), the focus on federal-state balance in
Bass
is
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based on the constitutional limits of Congress’s commerce power.
Indeed, because the government never attempted to prove the “in
commerce or affecting commerce” element of possession,
48
the Court
never had an opportunity to opine whether past movement in
interstate commerce would meet
the minimum threshold for
satisfying the jurisdictional element.
Although
Bass
did not establish a minimum threshold for
satisfying “in commerce or affecting commerce,” the Court suggested
in dictum what possession “in commerce or affecting commerce”
might have meant.
49
Possession “in commerce” referred to possession
while the item was moving in interstate commerce or located within an
interstate facility
.
50
Possession “affecting commerce” required a
showing of how the possession affected commerce.
51
The opinion did
not suggest how one might show that possession affected commerce.
52
Thus, there was no suggestion that past movement in interstate
commerce brought possession within Congress’s power over activities
that substantially affect commerce.
The meaning of “in commerce or affecting commerce” was
revisited in
Scarborough
.
53
Although the Court held that previous
movement in interstate commerce satisfied the
statutory
requirement
of “in commerce or affecting commerce,” the Court did not address
the question of whether past movement satisfied the
constitutional
requirement.
54
The
Scarborough
holding was based on legislative
history,
not
upon constitutional law.
55
The record indicated that
Congress intended to outlaw
all
possession of weapons by convicted
felons.
56
In this regard, the legislative history included findings that
purely prudential.
48
.Bass
, 404 U.S. at 338-39 (noting that the government assumed that the statute banned
possession of firearms by convicted felons regardless of whether there was a connection to
interstate commerce).
49
. See id.
at 350-51.
50
. See id.
at 350.
51
. See id
.
52
. See id.
at 350-51.
Bass
never asserted that mere possession of an item that moved in
interstate commerce would satisfy the requirement.
See id.
53
.
Scarborough v. United States, 431 U.S. 563, 567-71 (1977).
54
. See id.
at 575.
55. Like most exercises in statutory construction, the
Scarborough
Court
started by
attempting to interpret the statutory language. However, because the Court found “in or
affecting commerce” to be ambiguous, it examined the legislative history.
See
id.
(discussing the
language of the statute and shifting to the rationale for its insertion).
56
. See id.
at 572-73 (quoting Senator Long’s statement, 114 C
ONG
. R
EC
. 14,773-74 (1968),
that the amendment “‘would deny
every
assassin, murderer, thief and burglar of [
sic
] the right to
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possession of firearms by felons was “a burden on commerce or
threat affecting the free flow of commerce.”
57
Because Congress was
not sure whether its findings were sufficient to give it power over all
possession,
58
Congress added the restriction that the possession had to
be “in commerce or affecting commerce.”
59
As Congress’s ultimate
intent was to reach all possession, the Court was able to conclude that
Congress intended “or affecting commerce” to be satisfied when the
gun had moved in interstate commerce.
60
While the Court articulated
Congress’s intended meaning of the language, it did not address the
question of whether Congress’s intended meaning was constitutional.
Although the Court generally avoids constitutionally doubtful
statutory constructions,
61
Scarborough
’s statutory construction should
not be relied upon as constitutional precedent.
Scarborough
was
written eighteen years before
Lopez
. At that time, the Commerce
Clause had not been used to limit Congress’s power in forty years.
62
Because the parties never raised the question of constitutionality, the
Court had no reason to consider the issue. It was simply assumed
either that possession of firearms always affects interstate commerce
or that past movement in interstate commerce made possession of the
firearm affect interstate commerce.
63
From the line drawn by
Lopez
possess a firearm in the future’”) (emphasis added).
57
.Id.
at 571 n.10 (quoting 18 U.S.C. § 1201(1)).
58
.See
id
. at 575 (“It seems apparent . . . that the purpose of Title VII was to proscribe
mere possession but that there was some concern about the constitutionality of such a statute.”).
59
.Id.
at 567.
60
.See
id.
61
. See
DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.
568, 575 (1988) (“[W]here an otherwise acceptable construction of a statute would raise serious
constitutional problems, the Court will construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress.”).
62. During the period beginning with
NLRB v. Jones & Laughlin Steel Corp
. and ending
with
Lopez
, every Commerce Clause challenge to a regulation of private sector commercial
activity failed.
See
N
OWAK
& R
OTUNDA
,
supra
note 27, § 4.9,
at 160 (“The Court since 1938 has
not restricted the scope of federal power to regulate private sector commercial activity even
though the regulation might seem to be local in nature.”); L
AURENCE
H. T
RIBE
, A
MERICAN
C
ONSTITUTIONAL
L
AW
, § 5-4, at 308-09 (2d ed. 1988) (“[W]ith its watershed decision in
NLRB
v. Jones and Laughlin Steel Corp.
, the Court acceded to political pressure and to its own
recognition of its doctrine’s irrelevance and manipulability . . . .”). Treatises predating
Lopez
observed that the commerce power was virtually unlimited.
See, e.g.
, N
OWAK AND
R
OTUNDA
,
supra
note 27, § 4.8, at 154 (“The Supreme Court today interprets the commerce cause [sic] as a
complete grant of power.”); T
RIBE
,
supra
, § 5-4, at 309 (“Since 1937 . . . the Supreme Court has
exercised little independent judgment, choosing instead to defer to the expressed or implied
findings of Congress to the effect that regulated activities have the requisite ‘substantial
economic effect.’”).
63
. See Scarborough
, 431 U.S. at 575.
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CONSTITUTIONALITY OF GFSZA AMENDMENTS
649
around Congress’s commerce power, it is now clear that at least one
of these assumptions was wrong—possession of firearms does not
always affect interstate commerce.
64
Now that the assumptions are
open to scrutiny, treatment of
Scarborough
as constitutional
precedent should be questioned.
Before past movement in interstate commerce is accepted as
enough to meet the “substantial effect on interstate commerce”
requirement, there must be a reasoned explanation of how past
movement—an event wholly independent of possession—can change
possession from a nonregulable activity to a regulable one. The fact is
that the relationship between possession and interstate commerce is
independent of the item’s source; because possession of an item does
not affect interstate commerce, possession of an item that moved
previously in interstate commerce should not affect interstate
commerce. Accordingly, the jurisdictional element should not bring
regulation of possession of firearms in school zones within Congress’s
power over activities that substantially affect interstate commerce.
B. The Alternative: Channels of Interstate Commerce or
Instrumentalities of Interstate Commerce and Things in Interstate
Commerce
Although past movement in interstate commerce does not bring
possession of a firearm within Congress’s power over activities that
substantially affect interstate commerce, one might argue that the
jurisdictional element brings the act within the other two prongs of
Congress’s Commerce Clause power.
65
Harry Litman and Mark
Greenberg have made such an argument: limiting the offense to
possession of a firearm that “has moved in . . . interstate commerce”
64
. See
United States v. Lopez, 514 U.S. 549, 562 (1995) (noting the government’s
concession that “‘[n]either the [Gun-Free School Zones Act] nor its legislative history contain[s]
express congressional findings regarding the effects upon interstate commerce of gun possession
in a school zone’” (quoting Brief for the United States at 5-6, United States v. Lopez, 514 U.S.
549 (1995) (No. 93-1260))). The Court’s recent opinion in
United States v. Morrison
provides
further clarification that Congress’s assumptions about the extent of its power must be
reexamined. United States v. Morrison, 120 S. Ct. 1740, 1748 (2000) (stating the principle—not
raised in
Scarborough
—that Congress’s power still has limits).
65. Justifying the statute under one of those powers clearly distinguishes
Lopez
.
Lopez
,
514 U.S. at 559 (noting that the original Gun-Free School Zones Act was “not a regulation of
the use of the channels of interstate commerce . . . [or] an attempt to prohibit the interstate
transportation of a commodity through the channels of commerce . . . [or] a regulation . . .
[seeking] to protect an instrumentality of interstate commerce or a thing in interstate
commerce”).
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brings the statute within Congress’s “power to regulate things in
interstate commerce [or] . . . Congress’s power to regulate the
channels of interstate commerce.”
66
To support their argument, Litman and Greenberg rely upon
Scarborough
; they argue that
Scarborough
“necessarily, if implicitly,
held that Congress has the power to regulate guns that have traveled
in interstate commerce.”
67
Like the cases citing
Scarborough
discussed
above,
68
Litman and Greenberg argue that “[b]ecause the Court’s
interpretation of the statute depended on its finding that the statute
had the same reach as the commerce power, the decision necessarily
establishes that the commerce power reaches to the possession of any
gun that has traveled in interstate commerce.”
69
This argument, however, is misplaced. As discussed above,
70
Scarborough
interpreted Congress’s intended meaning for “or
affecting commerce.”
71
Because its focus was on affecting interstate
commerce,
Scarborough
clearly does not support the notion that the
insertion of “has moved . . . in interstate . . . commerce” makes the
statute an exercise of Congress’s power over the channels of
interstate commerce or the power over things in interstate commerce.
Although
Scarborough
is unrelated to the channels of interstate
commerce or things in interstate commerce, treatment by U.S. courts
of appeals of 18 U.S.C. § 922(o), which criminalizes possession of
machine guns, can be used to construct arguments that past
movement in interstate commerce brings the firearm within those
prongs of Congress’s power.
72
Such arguments and their frailties are
addressed below.
66
.
Litman & Greenberg,
supra
note 43, at 930.
67
.Id.
at 932 (quoting
Scarborough
, 431 U.S. at 572).
68
. See supra
notes 35-40 and accompanying text.
69. Litman & Greenberg,
supra
note 43, at 932-33;
see also
Grossman,
supra
note 33, at
798-99 (“If the indictment in
Lopez
had alleged that the firearm traveled in interstate
commerce, the Court, as it had done in
Scarborough
, would have been free to uphold the
constitutionality of the GFSZA by finding that Congress was regulating ‘things in interstate
commerce.’”). The author’s disagreement with this characterization of
Scarborough
’s implicit
holding is discussed above.
See supra
notes 61-64 and accompanying text.
70
. See supra
notes 53-59 and accompanying text.
71. The court looked only at Congress’s intent “‘to cover all activity
substantially affecting
interstate commerce
.’”
Scarborough
, 431 U.S. at 571 (emphasis added) (quoting United States v.
American Bldg. Maintenance Indus., 422 U.S. 271, 280 (1975)).
72.
See
18 U.S.C. § 922(o)(1) (1994). The statute has also been justified as an exercise of
Congress’s power over activities that substantially affect interstate commerce.
See, e.g.
, United
States v. Beuckelaere, 91 F.3d 781, 785 (6th Cir. 1996) (“We find that the regulation of
machinegun transfer and possession
sufficiently affects
interstate commerce in order to come
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651
1.
The Channels of Interstate Commerce.
Lower courts have
found Congress’s regulation of machine gun possession to be a
constitutional exercise of the power over the channels of interstate
commerce under the following theory: Congress intended to prohibit
“the introduction into the stream of commerce machineguns
manufactured, imported, or otherwise illegally obtained.”
73
Theoretically, “there could be no unlawful possession under section
922(o) without an unlawful transfer.”
74
Possession, therefore, is “a
necessary and proper measure meant to allow law enforcement to
detect illegal transfers where the banned commodity has come to rest:
in the receiver’s possession.”
75
Without any jurisdictional element, this
justification makes the statute overbroad; while possession may
require transfer, there is no justification for assuming that it requires
interstate
transfer.
76
Because the jurisdictional element being
considered relates to
interstate
transfer, however, overbreadth is not a
problem with regard to section 922(q).
There is no reason the same logic would not be applicable to
possession of any firearm. The power to regulate the channels of
interstate commerce focuses on the channels—roads, airspace,
waterways, etc.—not on the goods that are moving. The goods
within Congress’ power to legislate under the Commerce Clause.”) (emphasis added). Because
the only difference between machine guns and other firearms is their potential danger, and
because the
Lopez
court specifically rejected the cost of crime rationale, this justification for
section 922(o) should be reconsidered.
73. United States v. Kirk, 70 F.3d 791, 796 (5th Cir. 1995).
74
.Id.
75
.Id.
76. Perhaps, however, all possession could be reached on the theory that there cannot be
transfer without possession. Because one cannot transfer a machine gun without first possessing
it, regulating possession might be necessary and proper for preventing transfer.
See generally
Russell F. Pannier, Lopez
and Federalism
, 22 W
M
. M
ITCHELL
L. R
EV
. 71, 97-98 (1996)
(suggesting that Congress could avoid the limitations of
Lopez
via the “
Darby
method of
legislation,” whereby the statute would have two sections: (1) prohibiting interstate transport of
a gun that was previously possessed by a person in a school zone, and (2) prohibiting possession
in a school zone as a necessary and proper means for reducing violation of the prohibition
against transport). This suggestion is problematic, however, because if possession of all items
was regulable as a necessary and proper means for regulating transfer, there would be no
limitation of Congress’s power, and the problem
Lopez
tried to avoid would remain.
See infra
note 90 and accompanying text. While part one of the Pannier suggestion is surely within
Congress’s power over use of the channels of interstate commerce, part two is troublesome
because it is a step removed from the ultimate power.
See supra
notes 86-90 and accompanying
text. Nevertheless, Pannier’s suggestion is more rational than the one offered in relation to
section 922(o), because it includes a legitimate statute and a second provision rationally related
to executing the legitimate statute’s goal.
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regulated can be anything Congress pleases.
77
The commodity’s level
of danger is not a factor.
78
Thus, application of the power to regulate
use of the channels of commerce is the same whether Congress is
regulating machine guns or other firearms. Accordingly, the
“possession to reach transfer” logic should give Congress the power
to regulate possession of all firearms.
But this conclusion is curious in light of
Lopez
, which did not
leave open the possibility that the Gun-Free School Zones Act could
be constitutional as a regulation of the channels of interstate
commerce. The doctrine was so well settled that the Court simply
announced that Ҥ 922(q) [was] not a regulation of the use of the
channels of interstate commerce.”
79
Perhaps the version of section 922(q) repudiated in
Lopez
was
distinguishable from section 922(o) because, as a necessary and
proper measure to regulate transfer of firearms, it would have been
underbroad; if Congress intended to regulate transfer by regulating
possession, it would have regulated all possession, not just possession
in a school zone. However, such a distinction would lead to the
illogical conclusion that Congress can regulate possession of all
firearms but cannot regulate possession of firearms in a specific
place.
80
To avoid such a conclusion, the scope of Congress’s power
over the channels of interstate commerce should be examined.
77
.See
Regan,
supra
note 22, at 560 (noting that the “goods” regulated can even be
people).
78
. See Kirk
, 70 F.3d at 799 (Jones, J., dissenting) (noting that the commerce power is not a
function of the item’s level of danger and reflecting that “[o]bviously, eggs as well as toxic
chemicals can be regulated if they have the appropriate nexus to interstate commerce”); Regan,
supra
note 22, at 560
.
79. United States v. Lopez, 514 U.S. 549, 559 (1995). If possession of a firearm in a school
zone is not a use of the channels of interstate commerce, how can it be that the same act of
possession becomes a use of the channels of interstate commerce just because the firearm
moved in interstate commerce years before?
80. In an analogous situation, however, courts have upheld the Drug-Free School Zones
Act even though “trafficking in controlled substances near schools does not affect interstate
commerce any more than trafficking elsewhere.” United States v. McKinney, 98 F.3d 974, 977
(7th Cir. 1996). Such regulation is distinguishable, however, from regulation of possession of a
firearm in a school zone because “a key element of the crime—drug trafficking—clearly
‘substantially affects interstate commerce.’” United States v. Tucker, 90 F.3d 1135, 1140 (6th
Cir. 1996). In addition, although the penalty is more severe for drug trafficking in a school zone,
drug trafficking itself is prohibited without regard to location.
See
21 U.S.C. § 841(a)(1) (1994)
(making it unlawful “to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance”);
id.
§ 860(a) (describing an
increased penalty for drug trafficking in a school zone).
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The channels of interstate commerce are roads, waterways,
airspace, and other loci for moving goods from one state to the next.
81
Congress’s broad power to regulate how the channels of interstate
commerce are used is based on the Constitution’s Necessary and
Proper Clause.
82
Because interstate commerce relies on the channels
for moving goods across state lines, regulation of the way the
channels are used is “necessary and proper” for the execution of the
enumerated power. To facilitate execution of its power over interstate
commerce, Congress has broad authority to keep these channels “free
from immoral and injurious uses.”
83
This power allows Congress to
“prohibit the movement across state lines of anything it pleases.”
84
For example, Congress can regulate the shipment of stolen goods or
of kidnapped persons.
85
Although Congress’s power over the channels of interstate
commerce is so broad that Congress’s motive need not even be
related to commerce,
86
the power is not unlimited. Its scope is
restricted
to regulating use of the channels to perform certain tasks
81
.See
Perez v. United States, 402 U.S. 146, 150 (1971).
82. U.S. C
ONST
. art. I, § 8, cl. 18 (empowering Congress “[t]o make all Laws which shall be
necessary and proper for carrying into Execution” its enumerated powers).
83. Caminetti v. United States, 242 U.S. 470, 491 (1917);
see also
North Am. Co. v.
Securities & Exch. Comm’n, 327 U.S. 686, 705 (1946) (reiterating “the well-settled principle that
Congress may impose relevant conditions and requirements on those who use the channels of
interstate commerce in order that those channels will not become the means of promoting or
spreading evil, whether of a physical, moral or economic nature”) (citing Brooks v. United
States, 267 U.S. 432, 436-37 (1925)).
84. Regan,
supra
note 22, at 560;
cf.,
e.g.
, United States v. Orito, 413 U.S. 139, 144 (1973)
(upholding the prohibition against transporting obscene materials in interstate commerce);
United States v. Darby, 312 U.S. 100, 112 (1941) (holding that, while Congress may not have the
authority to impose labor standards on the manufacture of lumber, the prohibition against
shipping in interstate commerce lumber produced with child labor was a legitimate regulation of
interstate commerce); Brooks v. United States, 267 U.S. 432, 438-39 (1925) (holding that
Congress had authority to prohibit the transport of stolen motor vehicles in interstate commerce
because such conduct is a “gross misuse of [the channels of] interstate commerce”);
Caminetti
,
242 U.S. at 491 (upholding Congress’s power to regulate “[t]he transportation of passengers [in
this case, prostitutes] in interstate commerce” under its authority “to keep the channels of
interstate commerce free from immoral and injurious uses”).
85
.See
Perez
, 402 U.S. at 150.
86
. See,
e.g.
,
Darby
, 312 U.S. at 115-16 (upholding Congress’s attempt to restrict child labor
by prohibiting use of the channels of interstate commerce to transport goods produced via child
labor). Other examples of Congress’s use of its power over the channels of interstate commerce
to achieve goals unrelated to commerce include restricting theft by prohibiting the use of the
channels of interstate commerce to ship stolen goods, and restricting kidnapping by prohibiting
the use of the channels of interstate commerce to ship persons who have been kidnapped.
See
Perez
, 402 U.S. at 150 (citing 18 U.S.C. §§ 2312-15 (regulating shipment of stolen goods); 18
U.S.C. § 1201 (regulating shipment of kidnapped persons)).
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and use of the channels after performing certain tasks; the focus is on
regulating how the channels are used.
87
Peripheral activities not
involving transport are excluded. An action that is not itself a use of
the channels of interstate commerce—here, possession of a gun—
cannot become regulable simply because it is necessary and proper to
execute the power over use of the channels of interstate commerce. It
must be necessary and proper for execution of the power to regulate
interstate commerce.
Congress does not have the power to bootstrap new powers onto
powers that are necessary and proper for the execution of
enumerated powers unless the new power is also necessary and
proper for the execution of the enumerated power. For Congress’s
power to arise, four conditions must be met: (1) the regulation must
be plainly adapted to a constitutional end; (2) the regulation may not
be otherwise prohibited by the Constitution; (3) the regulation must
be “appropriate”; and (4) the regulation “must be consistent with
both the letter and the spirit of the Constitution.”
88
To uphold a
regulation as necessary and proper to execute the power over use of
the channels of interstate commerce would violate the first and fourth
requirements.
87
.See
Darby
, 312 U.S. at 115-16 (holding that Congress could prohibit transport in
interstate commerce of goods produced through child labor because Congress’s power is
plenary, regardless of motive and purpose);
see also Perez
, 402 U.S. at 150 (summarizing the
power over the channels of interstate commerce as a power over the “use of channels . . . which
Congress deems are being misused”).
88. Stephen Gardbaum,
Rethinking Constitutional Federalism
, 74 T
EX
. L. R
EV
. 795, 815-16
(1996) (breaking down Chief Justice Marshall’s famous proclamation in
M’Culloch v. Maryland
,
17 U.S. 316, 421 (1819): “Let the end be legitimate, let it be within the scope of the Constitution,
and all means which are appropriate, which are plainly adapted to
that
end which are not
prohibited, but consist with the letter and spirit of the Constitution, are constitutional”)
(emphasis added);
see also
David M. Burke,
The “Presumption of Constitutionality” Doctrine
and the Rehnquist Court: A Lethal Combination for Individual Liberty
, 18 H
ARV
. J.L. & P
UB
.
P
OL
’
Y
73, 160 (1994) (concluding that a measure that “does not
directly
advance or promote a
legitimate interest identified by Congress” should be invalidated) (emphasis added); David E.
Engdahl,
Intrinsic Limits of Congress’ Power Regarding the Judicial Branch
, 1999 BYU L. R
EV
.
75, 101 (asserting that Congress’s broad power under the Necessary and Proper Clause is
limited to executing the Constitution’s design, as opposed to altering it); David G. Wille,
The
Commerce Clause: A Time for Reevaluation
, 70 T
UL
. L. R
EV
. 1069, 1084 (1996) (asserting that
“[a]n ‘end’ refers to one of the enumerated powers of Congress in Article I” and “[a] ‘means’ is
simply a particular power used to exercise a more general enumerated power, or a tool used in
exercising an enumerated power”). Although reliance on a case as old as
M’Culloch
is unusual,
Gardbaum asserts that “it is because
M’Culloch
is not simply
a
case but is effectively
the only
case interpreting the Necessary and Proper Clause that the emphasis placed on it here is
justified.” Gardbaum,
supra
, at 814.
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First, the power over the use of the channels of interstate
commerce is not a constitutional end. Accordingly, it is not enough
that the assertion of power is necessary and proper for the execution
of the power over the channels of interstate commerce. Second,
allowing Congress to bootstrap new powers onto powers necessary
and proper for the execution of enumerated powers would be
inconsistent with the letter and spirit of the Constitution—the interest
in federalism would be eradicated.
89
Part of the rationale in
Lopez
was that creative reasoning should not be used to enable Congress to
reach virtually any activity.
90
If Congress could create powers
necessary and proper to execute powers necessary and proper to
execute enumerated powers, eventually Congress would avoid the
Lopez
reasoning to reach virtually any activity. To the extent that
Congress rationally could have believed that regulating possession
was necessary and proper for regulating interstate commerce, the
justification would either create a new category or be an assertion
that possession
substantially affects
interstate commerce.
91
Thus, regulation of possession cannot be justified as necessary
and proper for executing the power over use of the channels of
interstate commerce. The jurisdictional element does not bring
89
.See
Gardbaum,
supra
note 88, at 816 (“Marshall did not mean some free-floating,
textually disembodied, open-ended and indeterminate metanorm, but was rather referring to
certain specific and widely acknowledged background principles—such as federalism and the
separation of powers—which
even if not
specifically incorporated into the text of the
Constitution, nonetheless inform its interpretation.”).
90
.See
United States v. Lopez, 514 U.S. 549, 564 (1995) (asserting that “cost of crime”
reasoning and “national productivity” reasoning could not be accepted because such reasoning
would make it “difficult to perceive any limitation of federal power, even in areas such as
criminal law enforcement or education where States historically have been sovereign”);
Transcript of Oral Argument,
Lopez
(No. 93-1260), 1994 WL 758950, at *5 (Nov. 8, 1994)
(“QUESTION [by Justice O’Connor]: If [possession of a gun in a school zone] is covered,
what’s left of enumerated powers? What is there that Congress could not do, under this
rubric . . .?”);
see also
Burke,
supra
note 88, at 110 (noting that the Necessary and Proper Clause
restates a power that inevitably would have been implied); Thomas B. McAffee,
The Federal
System as Bill of Rights: Original Understandings, Modern Misreadings
, 43 V
ILL
.
L. R
EV
. 17, 46-
47 (1998) (reflecting on the Federalists’ position that the Necessary and Proper Clause “was
purely declaratory in nature and that it merely set forth the principle of agency that would have
followed naturally, with or without such an explicit text, from the necessity of ancillary authority
in a system of limited grants of power”); Wille,
supra
note 88, at 1083 (“If, in the absence of [the
Necessary and Proper Clause], Congress would have the same scope of power by implication as
it does with the presence of the Clause, the Necessary and Proper Clause cannot expand those
powers otherwise enumerated.”). This rationale was revisited in
United States v. Morrison
, 120
S. Ct. 1740 (2000).
See infra
note 121.
91. Of course, this brings the analysis back to determining when an activity substantially
affects interstate commerce.
See
supra
notes 21-64 and accompanying text.
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section 922(q) within Congress’s power over use of the channels of
interstate commerce.
92
2.
Instrumentalities of Interstate Commerce and Things in
Interstate Commerce.
Lower courts have found Congress’s regulation
of machine gun possession to be a constitutional exercise of the
power over instrumentalities of interstate commerce and things in
interstate commerce under the following theory: machine guns are “‘a
commodity . . . transferred across state lines for profit by business
entities’” and are, therefore, per se regulable.
93
To reach this
conclusion, courts have compared machine guns to narcotics and
other products that Congress regulates.
94
Because machine guns are
transferred across state lines for profit as commerce, they are
regulable as are any other things in interstate commerce.
95
Although
regulating possession of all machine guns may be overbroad on the
ground that there is no guarantee that all machine guns are in
interstate
commerce, limitation to machine guns that have in the past
moved in interstate commerce would provide the individualized link
required by
Lopez
.
There is no reason this logic would not apply to possession of
ordinary firearms. The power over things in interstate commerce is
not a function of dangerousness. If machine guns are regulable as
items in commerce, so are other firearms.
96
If firearms are items in
interstate commerce, over which Congress has plenary power,
Congress would have the power to regulate possession of firearms in
92. The power only allows Congress to prohibit transfer after the firearm has been
possessed within a school zone.
See
Pannier,
supra
note 76, at 97-98. Such a prohibition,
however, would not be very practical. By the time the gun is transferred out of the school zone,
it may be too late.
93. United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir. 1995) (quoting United States v.
Hunter, 843 F. Supp. 235, 249 (E.D. Mich. 1994)).
94
.See
id.
(citing United States v. Atkinson, 513 F.2d 38, 39-40 (4th Cir. 1975) (allowing
Congress to regulate possession of narcotics); United States v. Evans,
712 F. Supp. 1435, 1442
(D. Mont. 1989) (upholding the regulation of interstate transportation of products, including
firearms).
95
.See
Wilks
, 58 F.3d at 1521; United States v. Beuckelaere, 91 F.3d 781, 786 (6th Cir.
1996) (“[M]achineguns . . . by their very nature are a commodity that move in interstate
commerce.”).
96. Theoretically, if all items that ever moved in interstate commerce were regulable as
things in interstate commerce, Congress would have limitless power to regulate possession. For
example, Congress would be able to regulate possession of alcohol. The federal government
would have the power to impose a mandatory minimum sentence on a high school valedictorian
caught holding an open container for the first time during fraternity rush!
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a school zone. This logic, however, once again fails to distinguish
Lopez
.
97
Examining Congress’s power over things in interstate commerce
explains why
Lopez
does not discuss whether section 922(q) was a
regulation of things in interstate commerce. The power to regulate
things in interstate commerce is not a broad power to regulate all
commodities that ever moved across state lines. Although the power
reaches intrastate activities, it covers only “the instrumentalities of
interstate commerce, or persons or things in interstate commerce.”
98
Like the power over the channels of interstate commerce, the
power over the instrumentalities of interstate commerce and things in
interstate commerce is a necessary and proper derivative of
Congress’s power over interstate commerce.
99
The rationale is that
“interstate and intrastate transactions are interwoven.”
100
Congress
needs power over intrastate vehicles to assure that regulation over
interstate vehicles will be effective.
101
For example, regulating
intrastate vehicles may be necessary to assure that safety goals for
interstate traffic will be achieved.
102
Similarly, in order to regulate
interstate commerce effectively, it is necessary to regulate goods
while they are in commerce. Based on the relationship between
instrumentalities of interstate commerce and things in interstate
commerce, Congress’s power over instrumentalities of interstate
commerce and things in interstate commerce is as follows.
“Instrumentalities of interstate commerce” are vehicles or other
facilities, such as warehouses or depots, used for moving goods in
interstate commerce.
103
For example, a stockyard is considered an
97
. See
United States v. Lopez, 514 U.S. 549, 559 (1995) (“[N]or can § 922(q) be justified as
a regulation by which Congress has sought to protect an instrumentality of interstate commerce
or a thing in interstate commerce.”). Indeed, the addition of the jurisdictional element has
almost no effect on the “things in interstate commerce” logic.
98
.Id.
at 558.
99
.See
Houston, E. & W. Tex. Ry. Co. v. United States, 234 U.S. 342, 353 (1914)
(authorizing Congress to “take all measures necessary or appropriate” to the exercise of its
“paramount power” over interstate commerce); Southern Ry. Co. v. United States, 222 U.S. 20,
26-27 (1911) (justifying regulation of vehicles used for intrastate traffic on the basis that the
goals of achieving safety for vehicles used for interstate travel would be promoted by regulating
vehicles used for intrastate travel).
100. United States v. New York Cent. R.R. Co., 272 U.S. 457, 464 (1926).
101
.See
id
.
102
.See
Southern Ry. Co.
, 222 U.S. at 26.
103
. See,
e.g.
, Perez v. United States, 402 U.S. 146, 150 (1971) (suggesting that the power
over the instrumentalities of interstate commerce authorizes Congress to prohibit “the
destruction of an aircraft”);
Houston, E. & W. Tex. Ry. Co.
, 234 U.S. at 352-53 (allowing
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instrumentality of interstate commerce because it is a “throat through
which [interstate commerce] flows, and the transactions which occur
therein are only incident” to the movement of goods in interstate
commerce.
104
Under this definition,
a firearm clearly is not an
instrumentality of interstate commerce.
“Things in interstate commerce” are items stored in an
instrumentality of interstate commerce or specifically set aside as
interstate commerce.
105
Such items are regulable only while they are in
the flow of interstate commerce.
106
Once a good comes to rest in a
state, the flow in interstate commerce comes to an end.
107
Thus, while
an item stored temporarily in a warehouse with the intention of being
shipped to another state is regulable as an item in interstate
commerce, an item resting in a retail outlet for resale to a local
customer is not a “thing in interstate commerce.”
108
Accordingly, the
fact that a firearm previously moved in interstate commerce is not
enough to make the firearm a regulable “thing in interstate
commerce.”
Furthermore, the comparison to narcotics and other products
that Congress has the power to regulate does not support the
conclusion that section 922(o) is justified as regulation of a thing in
interstate commerce. While congressional regulations of many
products have survived constitutional challenges, the justification has
not been that all products are things in interstate commerce. Rather,
Congress to regulate carriers of intrastate traffic because such regulation was necessary in order
to facilitate regulation of carriers of interstate traffic);
Southern Ry. Co.
, 222 U.S. at 25
(upholding federal safety requirements for railroad cars without requiring a limitation to the
cars actually moving in interstate commerce).
104. Stafford v. Wallace, 258 U.S. 495, 516 (1922).
105
.See
United States v. Gollin, 176 F.2d 889, 893-94 (3d Cir. 1949) (upholding a federal
prohibition of theft from interstate shipments where the defendant had stolen goods that were
stored in a truck and set aside for shipment in interstate commerce).
106
.See
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 543 (1935).
107
. See id
.
108
. See id.
This distinction also helps explain why drug trafficking is justified under the
substantial effects
prong rather than regulation of things in interstate commerce. Even if drug
trafficking could be reached under the power over things in interstate commerce (on a theory
that the flow continues until the final purchase), it would not reach possession without intent to
distribute. Similarly, while possession of a firearm alone does not fall within Congress’s power
over things in interstate commerce, perhaps a more successful argument could be made to reach
possession with intent to distribute. Of course, to be successful, such an argument would require
extension of the power over things in interstate commerce.
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the power has been justified as regulation of items
substantially
affecting
interstate commerce.
109
Thus, the jurisdictional element does not make section 922(q) a
constitutional exercise of Congress’s power over the channels of
interstate commerce and things in interstate commerce. Accordingly,
past movement in interstate commerce does not automatically give
Congress the power to regulate possession. The final change to the
Gun-Free School Zones Act that must be considered is the addition
of Congress’s findings to the face of the statute.
II. F
INDINGS
In addition to the jurisdictional element, the revisions to 18
U.S.C. § 922(q) include congressional findings regarding the
relationship between possession of firearms in a school zone and
interstate commerce.
110
The decision to include findings likely resulted
from Chief Justice Rehnquist’s comments in
Lopez
that, although
findings are not normally required, “to the extent that congressional
findings would enable us to evaluate the legislative judgment that the
109
. See,
e.g.
, United States v. Crump, 120 F.3d 462, 465 (4th Cir. 1997) (“‘Trafficking,’ of
course, not only substantially affects commerce; it is commerce.”); United States v. Orozco, 98
F.3d 105, 107 (3d Cir. 1996) (“Drug trafficking is an inherently commercial activity; the mere
possession of a firearm is not. Drug trafficking near a school zone is an economic activity that,
through repetition, substantially affects interstate commerce.”); United States v. Tucker, 90 F.3d
1135, 1140 (6th Cir. 1996) (“[D]rug trafficking is an ‘economic enterprise’ that
substantially
affects
interstate commerce in numerous clear ways. Each individual instance of cocaine dealing,
for example, represents the end point of a manufacturing, shipping, and distribution network
that is interstate—and international—in nature.”) (emphasis added); United States v. Staples,
85 F.3d 461, 463 (9th Cir. 1996) (“[D]rug trafficking is a commercial activity which substantially
affects interstate commerce.”).
Furthermore, cases since
Lopez
analyzing Congress’s regulation of drugs note the
distinction between mere possession and possession related to interstate commerce through
intent to distribute or the act of trafficking.
See, e.g.
,
Orozco
, 98 F.3d at 107 (“The Gun-Free
School Zones Act and the Drug-Free School Zones Act are distinguishable. [The Gun-Free
School Zones Act] punished mere possession of a firearm near a school. In contrast, [the Drug-
Free School Zones Act] prohibits the sale, distribution and possession with intent to distribute
illegal drugs near a school.”).
110
.See
18 U.S.C. § 922(q)(1) (Supp. IV 1998);
see also supra
note 11 (listing the findings).
The findings were originally added before the Supreme Court issued its opinion in
Lopez
.
However, because they were not added until after
Mr. Lopez was prosecuted, the
Lopez
Court
did not treat the findings as part of the statute’s text.
See
18 U.S.C. § 922(q)(1) (1994); United
States v. Lopez, 514 U.S. 549, 617-18 (1995) (Breyer, J., dissenting);
id.
at 562 (“[T]he
government concedes that ‘[n]either the statute nor its legislative history contain[s] express
congressional findings regarding the effects upon interstate commerce of gun possession in a
school zone.’” (quoting Brief for the United States at 5-6, United States v. Lopez, 514 U.S. 549
(1995) (No. 93-1260))).
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activity in question substantially affected interstate commerce, even
though no such substantial effect was visible to the naked eye, they
are lacking here.”
111
The addition of findings in this case, however,
does nothing to make the statute survive the reasoning in
Lopez
.
Before proscribing possession of firearms that have moved in
interstate commerce in school zones, Congress found that “crime . . .
is a pervasive, nationwide problem.”
112
This nationwide problem is
“exacerbated by the interstate movement of drugs, guns, and criminal
gangs.”
113
Fear of guns may lead to citizens and foreign visitors being
afraid to travel.
114
The same concern may also lead to parents
“declin[ing] to send their children to school.”
115
Moreover, “violent
crime in school zones has resulted in a decline in the quality of
education in our country.”
116
This decline in education adversely
affects interstate commerce.
117
Accordingly, “Congress [asserted] the
power, under the interstate commerce clause” to regulate possession
of firearm in school zones.
118
By asserting that guns in school zones lead to a decline in
education and therefore adversely affect interstate commerce, the
findings codify the “cost of crime” reasoning that was specifically
rejected in
Lopez
.
119
The Court’s recent opinion in
United States v.
Morrison
120
confirms that adding congressional findings with nothing
more to the face of the statute should have no effect.
121
In
Morrison
,
the Court repudiated part of the Violence Against Women Act
122
even though it was “supported by numerous findings regarding the
111
.Lopez
, 514 U.S. at 563.
112. 18 U.S.C. § 922(q)(1)(A) (Supp. IV 1998).
113
.Id.
§ 922(q)(1)(B).
114
. See id.
§ 922(q)(1)(E).
115
.Id.
116
.Id.
§ 922(q)(1)(F).
117
. See id.
§ 922(q)(1)(G).
118
.Id.
§ 922(q)(1)(I).
119
.
United States v. Lopez, 514 U.S. 549, 564 (1995) (rejecting “cost of crime” reasoning).
120. 120 S. Ct. 1740 (2000).
121. The Court reasserted that “cost of crime” reasoning would unacceptably give Congress
unlimited power.
See
id.
at 1752-53:
If accepted, petitioners’ reasoning would allow Congress to regulate any crime as long
as the nationwide, aggregated impact of that crime has substantial effects on
employment, production, transit, or consumption. Indeed, if Congress may regulate
gender-motivated violence, it would be able to regulate murder or any other type of
violence since gender-motivated violence, as a subset of all violent crime, is certain to
have lesser economic impacts than the larger class of which it is a part.
122. 42 U.S.C. § 13,981 (1994).
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serious impact that gender-motivated violence has on victims and
their families.”
123
The Court held that “the existence of congressional
findings is not sufficient, by itself, to sustain the constitutionality of
Commerce Clause legislation.”
124
Where the findings rely on
reasoning that the Court has already rejected, they are insufficient to
make the statute constitutional.
125
Because the Court rejected the
findings in
Lopez
, the fact that they are now on the face of the statute
does not bring the statute within Congress’s Commerce Clause
power.
Nevertheless, appropriate findings could one day make the
statute constitutional. The “cost of crime” findings were rejected by
Lopez
because of fear that the same reasoning could be used to reach
any activities potentially related to violent crime.
126
This logic,
however, should not rule out the possibility that Congress could
commission a legitimate study that reaches conclusions specifically
demonstrating the effect that possession of firearms in school zones
has on interstate commerce. If such findings distinguished possession
of guns in school zones from other activities relating to violent crime,
it would be possible for Congress to enact legislation tailored to
eradicate the adverse effects on interstate commerce. Because the
risk of giving Congress jurisdiction over all criminal activity would be
avoided, such legislation conceivably could be constitutional.
127
However, until it has specific findings, Congress will not be able to
assert its power through the formality of “finding” an effect on
interstate commerce.
C
ONCLUSION
The addition of a jurisdictional element and findings to the Gun-
Free School Zones Act addresses the problems raised in
Lopez
.
Limiting the offense to possession “affecting interstate or foreign
commerce” at least makes the statute constitutional on its face.
However, doubt remains as to whether the jurisdictional element
123
. Morrison
, 120 S. Ct. at 1752.
124
.Id.
at 1752.
125
. See id.
at 1752-53.
126
.
United States v. Lopez, 514 U.S. 549, 564 (1995).
127. Ultimately, however, only the Court can determine whether the findings demonstrate a
sufficient effect on interstate commerce to come under Congress’s commerce power.
See
Morrison
, 120 S. Ct
.
at 1752 (“Whether particular operations affect interstate commerce
sufficiently to come under the constitutional power of Congress to regulate them . . . can be
settled finally only by [the Supreme] Court.”).
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makes the statute constitutional when the only connection to
interstate commerce is that the firearm has moved in interstate
commerce. Until Congress offers a reasoned explanation of how past
movement in interstate commerce makes subsequent possession
affect interstate commerce, the constitutionality of a federal crime
prohibiting possession in a school zone of a gun that has moved in
interstate commerce, with nothing more, remains in grave doubt.
