JMHO.....
18 USC 922(q) is unconstitutional. The Supreme Court has made that clear in Lopez and has reaffirmed that in their resent Health Care law decision (National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012)) explaining the commerce clause. The commerce clause cannot be used to get around the Bill of Rights.
18 USC 922 dealing with guns in school zones is, as Lopez made clear, not in commerce.
It is well settled that Congress has broad authority to regulate interstate commerce, but that authority is not unlimited. The Supreme Court stated in Gibbons v. Ogden, 22 U.S. 1, 3, 6 L.Ed. 23 (1824), “The power to regulate commerce is general, and has no limitations but such as are prescribed in the constitution itself.” The principle that Congress’ power to regulate interstate commerce is limited by the Constitution was reiterated in United States v. Lopez, 514 U.S. 549, 552-116 S.Ct. 1624, 131 L.Ed2d 626 (1995), where the Supreme reaffirmed Gibbons with the following statement:
We start with first principles. The Constitution creates a Federal Government of enumerated powers. See Art. I, § 8. As James Madison wrote: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority "was adopted by the Framers to ensure protection of our fundamental liberties." Gregory v .Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks omitted). "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, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Ibid.
The Constitution delegates to Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Art. I, § 8, cl. 3. The Court, through Chief Justice Marshall, first defined the nature of Congress' commerce power in Gibbons v.Ogden, 9 Wheat. 1, 189-190 (1824):
"Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse."
The commerce power "is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Id., at 196. The Gibbons Court, however, acknowledged that limitations on the commerce power are inherent in the very language of the Commerce Clause.
Again, National Federation of Independent Business v. Selelius, No. 11-393, Slip Opinion, June 28, 2012 confirms the principle that the interstate commerce powers of Congress does in deed have limits.
Quoting from McCulloch v. Maryland, 17 (4 Wheat) U.S. 316, 405, 4 L.Ed.579 (1819), Chief Justice Roberts stated,
Quote:
“The Federal Government ‘is acknowledged by all to be one of enumerated powers.’ Ibid. That is, rather than granting general authority to perform all the conceivable functions of government, the Constitution lists, or enumerates, the Federal Government’s powers.” See page 2 of Slip Opinion.
Further affirmation of the limitations of Bill of Right on Congress regarding the commerce powers is explained on page 3 of the Slip Opinion.
“Today, the restrictions on government power foremost in many Americans’ minds are likely to be affirmative prohibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.
Indeed, the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government. As Alexander Hamilton put it, ‘the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.’ The Federalist No. 84, p. 515 (C. Rossiter ed. 1961). And when the Bill of Rights was ratified, it made express what the enumeration of powers necessarily implied: “The powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people.” U. S. Const., Amdt. 10. The Federal Government has expanded dramatically over the past two centuries, but it still must show that a constitutional grant of power authorizes each of its actions. See, e.g., United States v. Comstock, 560 U. S. ___ (2010).”
Congress fixed nothing. Lopez made it clear the commerce clause will not fly under any circumstances.
United States v. Lopez, 514 U.S. 549.
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...
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 congressional Commerce Clause authority to a general police power of the sort held only by the States.
Some will tell you that federal law - 18 USC 922(q) disallows open carry in school zones. And the statute does say that. But, since Congress amended 18 USC 922(q) there has been one court that I know of that has upheld Congresses changes; United States v. Danks, 221 F.3d 1037 (8th Cir. 1999). Its decision is contrary to what Lopez said.
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981), United States v. Lopez, 514 U. S. 549 (1995) and Gonzales v. Raich, 545 U.S. 1 (2005) all made it clear that under the Commerce Clause Congress is required to show a tangible link to commerce, not a mere conceivable rational relation. “
imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.” See Lopez, supra, at 557, n. 2 (quoting Hodel, supra, at 311 (Rehnquist, J., concurring in judgment).
The Lopez Court made it clear that the Commerce Clause would not carry the day when it comes to carrying a gun in a school zone.
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. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 556-558. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do.
I suggest you read Lopez yourself.
Can anyone cite a federal case where someone has been prosecuted for just carrying a gun in a school zone since the Lopez decision?
