COMMERCE CLAUSE IN MILITIA LEADER'S INDICTMENT SUSPECT

(Ed.'s Note: The indictment in federal court of Kevin Massey, a self-styled militia leader arrested in Brownsville after he was caught in possession of four firearms, is being challenged by his defense on the grounds that the government's use of the Commerce Clause of the Constitution is unjustified. Prosecutors charge that since Massey had a felony burglary conviction in 1988, he could be charged under the clause because the weapons had been transported in interstate commerce. His defense is challenging the indictment saying that the nexus between possession and the effect on interstate commerce is tenuous at best. In the case below, the U.S. Supreme Court ruled in the defendant's favor in United States v. Lopez (1995) when he was charged under the Gun-Free School Zones Act of 1990 and he challenged the power of Congress to pass such a law under the Commerce Clause.)

United States v. Lopez (1995)

"[W]e have identified three broad categories of activity that Congress may regulate under its commerce power. . . . 

First, Congress may regulate the use of the channels of interstate commerce. . . . 

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. . . . 

We now turn to consider the power of Congress, in the light of this framework, to enact [the Gun Free School Zones Act]. The first two categories of authority may be quickly disposed of. . . . 

Thus, if [the Act] is to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate commerce. The Government’s essential contention, in fine, is that we may determine here that [the Act] is valid because possession of a firearm in a local school zone does indeed substantially affect interstate commerce. . . . 

The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those 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. . . . 

The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation’s economic well-being. As a result, the Government argues that Congress could rationally have concluded that [the Act] substantially affects interstate commerce.
Under the theories that the Government presents in support of [the Act], 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 sovereign. 

Thus, 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. . . . [This] rationale lacks any real limits because, depending on the level of generality, any activity can be looked upon as commercial. Under the dissent’s rationale, Congress could just as easily look at child rearing as “fall[ing] on the commercial side of the line” because it provides a “valuable service - namely, to equip [children] with the skills they need to survive in life and, more specifically, in the workplace.” . . . 

We do not doubt that Congress has authority under the Commerce Clause to regulate numerous commercial activities that substantially affect interstate commerce and also affect the educational process. That authority, though broad, does not include the authority to regulate each and every aspect of local schools. . . . 

The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. 

To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."

The court ruled in favor of Lopez.

From: http://www.streetlaw.org/en/Page/401/How_Interpretation_of_the_Commerce_Power_Has_Changed_over_Time