[Chief Justice Rehnquist]
Act Exceeds the authority of Congress
To regulate Commerce among the several States.
The Act NEITHER regulates a commercial activity NOR contains a
requirement that the possession be connect in ANY way to
Madison - The Constitution creates a Federal Government of
Federal Governments powers are few and defined.
State Governments powers are number and indefinite.
Gregory v. Ashcroft Reduce Risk of Tyranny
Just as the separation and independence of the coordinate
branches of the Federal Government serve to prevent the
accumulation of excessive power in any one branch,
healthy balance of power
between the States and the Federal Government will
reduce the risk of tyranny
and abuse from either front
Jones & Laughlin Steel, Darby, Wickard
Commerce Clause was greatly expanded in which Enterprises that
had been once local had now become national in scope.
Three Broach Categories that Congress may regulate under the
U.S. Const. art. I, 8
First, Congress may regulate the
use of the channels of
Second, Congress is empowered to regulate and protect the
instrumentalities of interstate
commerce, or persons or
things in interstate commerce,
even though the threat may come only
from intrastate activities.
Finally, Congress' commerce authority includes the
power to regulate those activities
having a substantial relation to interstate commerce,
i.e., those activities that
substantially affect interstate commerce.
Has to substantially affect interstate commerce.
- 922(q) Substantially Affected Analysis
Examples Activities that affected interstate commerce
The regulation of intrastate coal
extortionate credit transactions,
restaurants utilizing substantial
interstate supplies (McClung),
inns and hotels catering to interstate
guests (Heart of Atlanta Motel), and
production and consumption of
homegrown wheat (Wickard v. Filburn).
Where economic activity substantially affects interstate
commerce, legislation regulating that activity will be sustained.
922(q) is a criminal statute that has nothing to do with
It is not an essential part of a larger regulation of economic
It does not arise out
of or is connected with a
commercial transaction, which viewed in the
aggregate, it does not
substantially affect interstate commerce.
Violent crimes affect the national economy
First, the costs of violent crime
are substantial and insurance costs are spread
throughout the population.
Second, violent crime reduces the
willingness of individuals to travel to areas within the country
that are perceived to be unsafe (Heart of Atlanta Motel).
The presence of guns in schools poses a
substantial threat to the educational
process by threatening the learning environment.
handicapped educational process, in turn, will result in a less
That, in turn, would have an adverse effect on the Nation's
As a result, Congress could rationally have concluded that
922(q) substantially affects interstate commerce.
Cost of violent crimes reasoning
Congress is saying no matter how
tenuously they relate to interstate commerce,
Congress could regulate not only all violent crime, but all
activities that might lead to violent crime
National Productivity Reasoning
Congress could regulate any activity
that it found was related to the economic productivity of
individual citizens: family law (including marriage, divorce,
and child custody), for example.
Congress could regulate everything under the above theories.
It is difficult to perceive any
limitation on federal power, even in areas such as
criminal law enforcement or education
where States historically have been
If we were to accept the Government's arguments,
we are hard pressed to posit any
activity by an individual that Congress is without
power to regulate.
- Justice Breyer Focuses On
(1) gun-related violence is a serious problem;
(2) that problem, in turn, has an adverse effect on classroom
(3) that adverse effect on classroom learning, in turn,
represents a substantial threat to trade and commerce.
Beyer Lacks Limits
Depending on the level of generality, any activity can be looked
upon as commercial.
Dissent on child rearing in relation to education
Congress has authority under the Commerce Clause to regulate
numerous commercial activities that substantially affect
interstate commerce and also affect the educational process.
That broad authority does not
include the authority to regulate
each and every
aspect of local schools.
The Constitution mandates uncertainty by withholding from
Congress a plenary police power that would authorize enactment
of every type of legislation.
Marbury established Judicial review and declares statutes that
conflicted with the Constitution invalid.
Any possible benefit from eliminating this legal uncertainty
would be at the expense of the Constitutions system of
A gun in a local school zone is not economic activity
Lopez was a local student at a local school and his possession
had not ties to interstate commerce.
To uphold this contention, we would have to
pile inference upon inference.
Connection between regulated activity and interstate commerce
The Constitution requires us to judge the connection between a
regulated activity and interstate commerce, not directly, but at
Courts must give Congress a degree of leeway in determining the
existence of a significant factual connection between the
regulated activity and interstate commerce.
The Constitution delegates the
commerce power directly to Congress
The determination requires an
empirical judgment of a kind
that a legislature is more likely than a court
to make with accuracy.
The traditional words "rational
basis" capture this leeway.
Rational Basis Review
A test whereby a court will uphold congressional action if it
bears a reasonable and rational relationship to the attainment
of an appropriate government end.
Could violent crime in a school zone affect interstate commerce?
Dont view it as a technical connection, but a practical
Numerous studies show an empirical connection.
Various percentages dealing with carrying guns to school and
being children being threatened with guns.
Congress could obviously have thought that guns and learning are
Education has long been inextricably [so intricate] intertwined
with the Nations economy
6% of inner-city schools see gun related violence which
threatens the trade and commerce that those schools support.
Congress could rationally have concluded that the links are
The only question, then, is whether the latter threat is (to use
the majority's terminology) "substantial."
The evidence of (1) the extent of the gun-related violence
problem, (2) the extent of the resulting negative effect on
classroom learning, and (3) the extent of the consequent
negative commercial effects
when taken together, indicate a threat to trade and commerce
that is "substantial."
Breyer Not obliterate the distinction between what is nation
Aimed at curbing a threat to the education process
The empirical evidence show guns and education are incompatible.
Scholars and the society a large have documented a connection
between education and the national economy.
The statute seems to remove commerce in the abstract, but there
is a significant and practical impact upon commerce.
This statute would not expand the commerce clause, but it would
apply pre-existing law to changing economic circumstances (Heart
of Atlanta Motel).
III Majorities Holding Creates Three Separate Problems
Legal Problem 1:
The Supreme Court has upheld cases despite connections to
Perez v. United States
Commerce Clause authorized a federal statute that makes it a
crime to engage in loan sharking.
As held collecting a debt by gun affects commerce among the
States, so does the frequent possession of a hand gun at school
affect the ability to teach basic skills which intern affects
the national economy.
Katzenbach v. McClung
Prohibited racial discrimination at local restaurants, because
it discourages travel by African Americans and discrimination
affected purchases of foods and supplies from other States.
The specific instance was a part of a whole that would affect
the nations economy.
In this case,
Business would be less likely to local in communities where
violence plagues the classrooms.
Families will hesitate to move to neighborhoods where students
carry handguns instead of books.
Local instances taken as a whole also affect the nations
Legal Problem 2:
Making a critical distinction between commercial and
The race-based exclusion was not commercial
The line becomes almost impossible to draw when you are
distinguishing between broad categories.
In this case,
Teaching reading, writing and math serve both social and
commercial purposes, which CANNOT be separate from one other.
Legal Problem 3:
The holding threatens legal uncertainty
Congress has enacted 100s of statutes, including criminal
statutes, that use the words affecting commerce to define
Would it alter their meaning if they do not regulate commercial