🚀 go-pugleaf

Ray Ubinger wrote:
> 
> Some time in the last year or two, President Sworn-to-uphold-the-Second-and-
> Tenth-Amendments-Both tried to get gun possession illegalized within 100
> feet of school zones (enforceable by the Bureau of Sworn-to-Violate-Alcohol-
> Toboacco-and-Firearms-Rights).  The Supreme Can't-Help-Doing-Something-
> Right-Once-in-a-While struck down the move as unconstitutional,
> with Justice Clarence Thomas, author of the majority opinion, citing the
> Tenth.  

United States v. Lopez, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995).
Rehnquist, wrote the opinion; Thomas joined in it.  It is a 
commerce clause case.  If the opinon cited the 10th at all, it
was merely ancillary (a quick search of the text -- without 
footnotes -- hit neither 'tenth' nor any relevant occurance
of 'amendment').

The syllabus from the case, from a search at 
http://www.law.cornell.edu/supct/

After respondent, then a 12th-grade student, carried a concealed
 handgun into his high school, he was charged with violating the
 Gun-Free School Zones Act of 1990, which forbids ``any individual
 knowingly to possess a firearm at a place that [he] knows . . . is a
 school zone,'' 18 U. S. C. 922(q)(1)(A).  The District Court denied
 his motion to dismiss the indictment, concluding that 922(q) is a
 constitutional exercise of Congress' power to regulate activities in
 and affecting commerce.  In reversing, the Court of Appeals held
 that, in light of what it characterized as insufficient congressional
 findings and legislative history, 922(q) is invalid as beyond Con-
 gress' power under the Commerce Clause.

Held:  The Act exceeds Congress' Commerce Clause authority.  First,
 although this Court has upheld a wide variety of congressional Acts
 regulating intrastate economic activity that substantially affected
 interstate commerce, the possession of a gun in a local school zone
 is in no sense an economic activity that might, through repetition
 elsewhere, have such a substantial effect on interstate commerce. 
 Section 922(q) is a criminal statute that by its terms has nothing to
 do with ``commerce'' or any sort of economic enterprise, however
 broadly those terms are defined.  Nor is it an essential part of a
 larger regulation of economic activity, in which the regulatory
 scheme could be undercut unless the intrastate activity were regu-
 lated.  It cannot, therefore, be sustained under the Court's cases
 upholding regulations of activities that arise out of or are connected
 with a commercial transaction, which viewed in the aggregate, sub-
 stantially affects interstate commerce.  Second, 922(q) contains no
 jurisdictional element which would ensure, through case-by-case
 inquiry, that the firearms possession in question has the requisite
 nexus with 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 contention that 922(q) is justified because
 firearms possession in a local school zone does indeed substantially
 affect interstate commerce would require this Court to pile inference
 upon inference in a manner that would bid fair to convert congres-
 sional Commerce Clause authority to a general police power of the
 sort held only by the States. 

-- 
Ed Green  DoD#0111    (919) 543-1757    ed_green@vnet.ibm.com