Cite as U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993)
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
__________________
No. 92-5641
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO LOPEZ, JR.,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
______________________________________________
( September 15, 1993 )
Before REAVLEY, KING and GARWOOD, Circuit Judges.
GARWOOD, Circuit Judge:
The United States Constitution establishes a national
government of limited and enumerated powers. As James Madison put
it in The Federalist Papers, "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, at 292 (C. Rossiter ed. 1961).
Madison's understanding was confirmed by the Tenth Amendment. It is
easy to lose sight of all this in a day when Congress appropriates
trillion-dollar budgets and regulates myriad aspects of economic
and social life. Nevertheless, there are occasions on which we are
reminded of this fundamental postulate of our constitutional order.
This case presents such an occasion.
Proceedings Below
On March 10, 1992, defendant-appellant Alfonso Lopez, Jr.,
then a twelfth-grade student attending Edison High School in San
Antonio, Texas, arrived at school carrying a concealed .38 caliber
handgun. Based upon an anonymous tip, school officials confronted
Lopez, who admitted that he was carrying the weapon. Although the
gun was unloaded, Lopez had five bullets on his person. After being
advised of his rights, Lopez stated that "Gilbert" had given him
the gun so that he (Lopez) could deliver it after school to
"Jason," who planned to use it in a "gang war." Lopez was to
receive $40 for his services.
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 1 of 36
Lopez was charged in a one-count indictment with violating 18
U.S.C. section 922(q), which makes it illegal to possess a firearm
in a school zone.[1] After pleading not guilty, Lopez moved to
dismiss the indictment on the ground that section 922(q) "is
unconstitutional, as it is beyond the power of Congress to
legislate control over our public schools." His brief in support of
the motion further alleged that section 922(q) "does not appear to
have been enacted in furtherance of any of those enumerated powers"
of the federal government. The district court denied the motion,
concluding that section 922(q) "is a constitutional exercise of
Congress' well-defined power to regulate activities in an[d]
affecting commerce, and the 'business' of elementary, middle and
high schools . . . affects interstate commerce." Lopez thereafter
waived his right to a jury trial and was tried to the bench upon
stipulated evidence. The court found Lopez guilty and sentenced him
to six months' imprisonment to be followed by two years' supervised
release. Lopez now appeals his conviction and sentence. Lopez's
sole objection to his conviction is his constitutional challenge to
section 922(q); he does not otherwise contest his guilt. We now
reverse.
Overview
So far as we are aware, the constitutionality of section 922(q),
also known as "the Gun-Free School Zones Act of 1990," is a
question of first impression in the federal courts.[2] Section
922(q)(1)(A) provides: "It shall be unlawful 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."[3]
Section 922(q)(1)(B) then carves out several limited exceptions,
none of which are applicable here. [4] Section 922(q)(2) makes it
illegal, again with some exceptions, to intentionally or recklessly
discharge a firearm in a known school zone. Section 922(q)(3)
disclaims any intent on the part of Congress to preempt state law.
Violations are punishable by up to 5 years' imprisonment and a
$5,000 fine. 18 U.S.C. section 924(a)(4).
"As every schoolchild learns, our Constitution establishes a
system of dual sovereignty between the States and the Federal
Government." Gregory v. Ashcroft, 111 S.Ct. 2395, 2399 (1991).
Justice O'Connor's observation is particularly apt in the context
of this case, which pits the states' traditional authority over
education and schooling against the federal government's
acknowledged power to regulate firearms in or affecting interstate
commerce. Lopez argues that section 922(q) exceeds Congress'
delegated powers and violates the Tenth Amendment. [5] The
government counters that section 922(q) is a permissible exercise
of Congress' power under the Commerce Clause. [6] In actuality, the
Tenth Amendment and Commerce Clause issues in this case are but two
sides of the same coin. As Justice O'Connor has explained:
"In a case like this one, involving the division of authority
between federal and state governments, the two inquiries are
mirror images of each other. If a power is delegated to
Congress in the Constitution, the Tenth Amendment expressly
disclaims any reservation of that power to the States- if a
power is an attribute of state sovereignty reserved by the
Tenth Amendment, it is necessarily a power the Constitution
has not conferred on Congress." New York v. United States,
112 S.Ct. 2408, 2417 (1992).
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 2 of 36
Thus, even if Lopez is correct that section 922(q) intrudes
upon a domain traditionally left to the states, it is
constitutional as long as it falls within the commerce power. See
Gregory v. Ashcroft, 111 S.Ct. at 2400 ("As long as it is acting
within the powers granted it under the Constitution, Congress may
impose its will on the States."). This is not to say, however, that
the Tenth Amendment is irrelevant to a Commerce Clause analysis.
Our understanding of the breadth of Congress' commerce power is
related to the degree to which its enactments raise Tenth Amendment
concerns, that is concerns for the meaningful jurisdiction reserved
to the states. At a more textual level, the Tenth Amendment, though
it does not purport to define the limits of the commerce power,
obviously proceeds on the assumption that the reach of that power
is not unlimited, else there would be nothing on which the Tenth
Amendment could operate.
A good place to begin our analysis is the case of United
States v. Bass, 92 S.Ct. 515 (1971). At issue in Bass was the felon
in possession provision of the Omnibus Crime Control Act of 1968,
which made it unlawful for any felon to "receive[], possess[], or
transport[] in commerce or affecting commerce" any firearm. 18
U.S.C. former section 1202(a)(1). Because the "in commerce or
affecting commerce" language might be read to apply only to the
crime of transporting a firearm, the question for the Court was
whether, in pure possession cases, the government had to prove a
connection to commerce or whether section 1202 reached the mere
possession of firearms. The best evidence for the government's
position that the statute reached mere possession without any
commerce nexus was the floor statements of Senator Long, who
introduced section 1202, and the formal findings contained in Title
VII of this 1968 act. [7] While conceding that this legislative
history lent "some significant support" for the government's view,
id. at 521, the Court was not convinced. Were section 1202 read to
punish mere possession without a commerce nexus, the Court argued,
it would intrude upon an area of traditional state authority and
would push Congress' commerce power to its limit, if not beyond.
Because Congress had not clearly expressed its intent to do so, the
Court therefore adopted the narrower construction of the statute:
"[U]nless Congress conveys its purpose clearly, it will not
be deemed to have significantly changed the federal-state
balance. Congress has traditionally been reluctant to define
as a federal crime conduct readily denounced as criminal by
the States. . . . [Thus] we will not be quick to assume that
Congress has meant to effect a significant change in the
sensitive relation between federal and state criminal
jurisdiction." Id. at 523 (footnotes omitted).
Significantly, the Bass Court noted that "[i]n light of our
disposition of the case, we do not reach the question whether, upon
appropriate findings, Congress can constitutionally punish the
'mere possession' of firearms." Id. at 518 n.4. In a subsequent
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 3 of 36
case, the Court held that to satisfy former section 1202's commerce
nexus, it need only be shown that the possessed firearm had
traveled at some time in interstate commerce. See Scarborough v.
United States, 97 S.Ct. 1963, 1965 (1977). [8] However,
Scarborough did not purport to answer the question left open in
Bass' footnote 4.
The government argues that section 922(q) is no different from
a number of other federal firearms crimes. We are not persuaded.
With the exception of a few relatively recent, special case
provisions, federal laws proscribing firearm possession require the
government to prove a connection to commerce, or other federalizing
feature, in individual cases. For example, 18 U.S.C. section
922(g), the successor to former section 1202, makes it unlawful for
felons and some other classes of persons to "possess [a firearm] in
or affecting commerce." Because a commerce nexus is an element of
the crime defined by section 922(g), each application of that
statute is within the commerce power. See United States v. Wallace,
889 F.2d 580, 583 (5th Cir. 1989), cert. denied, 110 S.Ct. 3243
(1990) (holding that section 922(g) "reaches only those firearms
that [have] traveled in interstate or foreign commerce and is thus
constitutional"). Section 922(q), lacking such a nexus requirement,
is not on an equal footing with statutes like section 922(g). The
government points to several firearm proscriptions not requiring
the specific firearm to have traveled in commerce, such as: 18
U.S.C. section 922(a)(6) (false statement in acquisition of firearm
from licensed dealer, manufacturer, or importer); id. section
922(b)(1) & (2) (sale or delivery by licensed dealer, manufacturer,
or importer to a minor or in violation of state law); id. section
922(b)(4) (sale or delivery by licensed dealer, manufacturer, or
importer of certain specified weapons, such as machine guns or
short-barrelled rifles); id. section 922(m) (recordkeeping
violations by licensed dealer, manufacturer, or importer). However,
not only do all these proscriptions pertain to essentially
commercial actions involving the firearms business, as opposed to
mere simple possession by any individual, cf. United States v.
Nelson, 458 F.2d 556, 559 (5th Cir. 1972) ("acquisition of firearms
is more closely related to interstate commerce than mere
possession"), but each is also expressly tied to the dealer,
manufacturer, or importer in question being federally licensed. 18
U.S.C. sections 921(a)(9), (10), & (11). [9]
Historical Outline, Federal Firearms Legislation
We now digress to outline at some length the major
developments in the history of presently relevant federal firearms
control legislation.
General federal domestic legislation in this area may be
traced to two enactments, first, the National Firearms Act of 1934,
48 Stat. 1236-1240, originally codified as 26 U.S.C. section 1132,
now codified, as amended, as chapter 53 of the Internal Revenue
Code of 1986, 26 U.S.C.sections 5801-5872, and, second, the Federal
Firearms Act of 1938, 52 Stat. 1250, originally codified as former
15 U.S.C. sections 901-910, now repealed, the provisions of which,
as amended and supplemented, have been carried forward to chapter
44 of Title 18, 18 U.S.C. sections 921 et seq. [10]
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 4 of 36
The National Firearms Act of 1934
The National Firearms Act, applicable only to a narrow class
of firearms such as machine guns, "sawed-off" shotguns and rifles,
silencers, and the like, 26 U.S.C. section 5845(a),[11] is grounded
on Congress' taxing power under Article I, Section 8, Clause 1.
Sonzinsky v. United States, 57 S.Ct. 554 (1937); United States v.
Miller, 59 S.Ct. 816 (1939). Its prohibitions are keyed to the
imposition of an excise tax on the business of dealing in such
weapons and on transfers of them, together with related
requirements for registration of the dealer, the transfers, and the
weapons. See Sonzinsky; Miller; Haynes v. United States, 88 S.Ct.
772 (1968); United States v. Freed, 91 S.Ct. 1112, 1115-1117
(1971). However, section 922(q), which concerns us here, has no
roots or antecedent in the National Firearms Act, is in no way
related or tied to taxation or any character of registration or
reporting, and is applicable to all firearms. Accordingly, the
National Firearms Act, and its history and development, are
essentially irrelevant to our present inquiry, and we turn our
attention to the Federal Firearms Act and its successors. [12]
The Federal Firearms Act of 1938
The Federal Firearms Act of 1938 applied to all firearms,
former 15 U.S.C. section 901(3), and prohibited "any manufacturer
or dealer" not licensed thereunder from transporting, shipping, or
receiving any firearm or ammunition "in interstate or foreign
commerce," id. section 902(a), and also prohibited "any person"
from receiving any firearm or ammunition "transported or shipped in
interstate or foreign commerce in violation of" section 902(a). Id.
section 902(b). Licensed dealers and manufacturers could ship
firearms interstate only to other licensed dealers and
manufacturers and to those who had or were not required to have a
license under state law to purchase the firearm, id. section
902(c). Licensed dealers and manufacturers were required to keep
records of firearms transactions. Id. section 903(d). It was made
an offense for "any person" to ship or transport "in interstate or
foreign commerce" any stolen firearm or ammunition, id. section
902(g), and for "any person to transport, ship, or knowingly
receive in interstate or foreign commerce" any firearm with an
altered or removed serial number. Id. section 902(i). It was also
made unlawful for "any person" to ship or transport "in interstate
or foreign commerce" any firearm or ammunition to any felon, person
under felony indictment, or fugitive from justice, [13] id. section
902(d); and, felons, those under felony indictment, and fugitives,
could not "ship" or "transport" any firearm or ammunition "in
interstate or foreign commerce." Id. section 902(e). Further,
felons and fugitives could not "receive any firearm or ammunition
that had been shipped or transported in interstate or foreign
commerce." Id. section 902(f). The latter section included a
provision that "possession of a firearm or ammunition by any such
person shall be presumptive evidence that such firearm or
ammunition was shipped or transported or received, as the case may
be, by such person in violation of this chapter." Id. [14] In Tot
v. United States, 63 S.Ct. 1241 (1943), this presumption was held
invalid on due process grounds as applied to whether the weapon
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 5 of 36
"was received by" the defendant "in interstate or foreign commerce"
or after the effective date of the act. Id. at 1244, 1245.
Omnibus Crime Control and Safe Streets Act of 1968
The Federal Firearms Act remained otherwise in force without
significant change until the enactment in June 1968 of the Omnibus
Crime Control and Safe Streets Act of 1968, P.L. 90-351, 90th Cong.
2d Sess. (1968) 82 Stat. 197. Title IV (sections 901-907) of P.L.
90-351 repealed the Federal Firearms Act (id. 907) and enacted a
new chapter 44 ("Firearms") of Title 18 (18 U.S.C. sections
921-928), which incorporated, with some amendments, almost all the
provisions of the Federal Firearms Act, [15] and added further
firearms offenses.
Unlike the Federal Firearms Act, this legislation required a
federal license "for any person . . . to engage in the business of
importing, manufacturing, or dealing in firearms, or ammunition"
even though the business did not operate in interstate commerce.
P.L. 90-351, section 902; 18 U.S.C. section 922(a)(1). See also id.
section 923(a). The relevant committee report states that new
section 922(a)(1) "makes it clear that a license is required for an
intrastate business as well as an interstate business. The present
Federal Firearms Act (15 U.S.C. section 902(a)) merely prohibits
the interstate or foreign shipment or receipt of firearms by a
manufacturer or dealer unless he has a license." Sen. Rep. No.
1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2112 at
2202.[16]
Public Law 90-351 section 901(a) contains, among others, the
following express Congressional findings, viz:
"(1) that there is a widespread traffic in firearms moving
in or otherwise affecting interstate or foreign commerce, and
that the existing Federal controls over such traffic do not
adequately enable the States to control this traffic within
their own borders through the exercise of their police power-
. . .
(3) that only through adequate Federal control over
interstate and foreign commerce in these weapons, and over all
persons engaging in the businesses of importing,
manufacturing, or dealing in them, can this grave problem be
properly dealt with, and effective State and local regulation
of this traffic be made possible . . . ." (emphasis added).
[17]
These Congressional findings may properly be understood as
saying that federal regulation of all firearms dealers and
manufacturers, not just those conducting an interstate business,
was necessary in order to control firearms traffic "moving in or
otherwise affecting interstate or foreign commerce." In Nelson, 458
F.2d at 559, we quoted the above set-out section 901(a)(3), and
observed that "[i]f Congress is to effectively prevent the
interstate use of guns for illegal purposes it must control their
sources: manufacturers, dealers, and importers."[18] This reasoning
from the quoted Congressional findings in support of the
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 6 of 36
requirement that all firearms manufacturers and dealers be
federally licensed is analogous to the reasoning we employed in
United States v. Lopez, 459 F.2d 949 (5th Cir.), cert. denied sub
nom. Llerena v. United States, 93 S.Ct. 130 (1972), in sustaining
federal regulation of intrastate as well as interstate narcotics
traffic. See id. at 951-53 (relying on express Congressional
findings "that intrastate incidents of the traffic in controlled
substances . . . had a substantial and direct effect on interstate
commerce" and "swelled the interstate traffic in such substances,"
that "it was impossible to distinguish between substances
manufactured and distributed intrastate from those manufactured and
distributed interstate," and thus "that control of the intrastate
incidents of traffic in controlled substances was essential to
control of interstate incidents of that traffic").
However, it is significant that, apart from the license
requirement for all firearms dealers and manufacturers, all the
numerous proscriptions of chapter 44 of Title 18, as thus enacted,
were expressly tied either to interstate commerce or to the
regulation of the conduct of, or dealings with, federally licensed
dealers, manufacturers, or importers, or to both. This was true not
only for the proscriptions that were carried over from the Federal
Firearms Act, [19] but also for the added proscriptions. [20]
In Title VII of P.L. 90-351 Congress also enacted what came to
be codified as 18 U.S.C. App. sections 1201 through 1203 (now
repealed). Title VII was added on the Senate floor, "hastily
passed, with little discussion, no hearings, and no report," and
"never received committee consideration in" either chamber. Bass,
92 S.Ct. at 520 & n.11. Section 1202(a) criminalized any felon (or
person discharged other than honorably from the Armed Forces, or
adjudged a mental incompetent, or who had renounced United States
citizenship, or was an alien unlawfully in the country) "who
receives, possesses, or transports in commerce or affecting
commerce . . . any firearm." Section 1201 contained Congressional
findings "that the receipt, possession, or transportation of a
firearm by felons" (and by the other categories of persons covered
by section 1202(a)) "constitutes (1) a burden on commerce or threat
affecting the free flow of commerce," and "a threat to the safety
of the President . . . and Vice-President" and to the continued
effective operation of the federal and all state governments, and
"an impediment or a threat" to the exercise of First Amendment
rights. In the Firearms Owners' Protection Act of 1986, P.L.
99-308, 99th Cong., 2d Sess., 104 Stat. 449, other aspects of which
we consider in more detail below, all of Title VII (including
section 1201 and all its findings) was repealed, P.L. 99-308,
section 104(b), and most of the substantive provisions of Title VII
(e.g., sections 1202 & 1203) were essentially incorporated into
section 922. P.L. 99-308, section 102.
Gun Control Act of 1968
In October 1968, Congress enacted the Gun Control Act of 1968,
P.L. 90-618, 90th Cong. 2d Sess., 82 Stat. 1213. Title I of this
legislation reenacted all of chapter 44 of Title 18 (sections
921-928), but with what are for present purposes essentially only
minor changes from the version thereof enacted earlier that year by
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 7 of 36
Title IV of the Omnibus Crime Control and Safe Streets Act of 1968.
[21] Among these changes were, for example, removal or narrowing of
most of the exemptions that Title IV had made for rifles and
shotguns (see note 20, supra, and note 23, infra), additional
coverage of transactions in ammunition in certain instances where
Title IV dealt only in firearms, and adding unlawful users of
federally regulated narcotics and adjudicated mental defectives to
felons, fugitives, and indictees as persons concerning whom certain
firearm transactions were prohibited. [22] Title I also added
certain new prohibitions on licensees, including a new section
section 922(c) prohibiting licensees from selling firearms to those
who are not licensees unless the purchaser either appeared in
person on the licensee's premises or furnished a sworn statement as
to his eligibility and seven days' notice was given the chief law
enforcement officer of the transferee's residence prior to delivery
or shipment. Other provisions relaxed some of the restrictions of
section 922(a)(3) & (5) as enacted by Title IV of P.L. 90-351.[23]
In sum, the Gun Control Act of 1968 maintained the same essential
jurisdictional bases of the earlier 1968 legislation, namely apart
from the license requirement for all dealers and manufacturers an
express nexus either to interstate commerce or to the conduct of,
or dealings with, federally licensed dealers or manufacturers, or
to both. The legislative history is consistent with this approach.
[24] The House committee report explains the purpose of the Gun
Control Act of 1968 (which originated as H.R. 17735) in relevant
part as follows:
"PURPOSE
The principal purpose of H.R. 17735, as amended, is to
strengthen Federal controls over interstate and foreign
commerce in firearms and to assist the States effectively to
regulate firearms traffic within their borders.
. . .
GENERAL STATEMENT
The increasing rate of crime and lawlessness and the
growing use of firearms in violent crime clearly attest to a
need to strengthen Federal regulation of interstate firearms
traffic.
The subject legislation responds to widespread national
concern that existing Federal control over the sale and
shipment of firearms [across] State lines is grossly
inadequate.
Handguns, rifles, and shotguns have been the chosen means
to execute three-quarters of a million people in the United
States since 1900. The use of firearms in violent crimes
continues to increase today.
. . .
The committee is persuaded that the proposed legislation
imposes much needed restrictions on interstate firearms
traffic and, at the same time, does not interfere with
legitimate recreational and self-protection uses of firearms
by law-abiding citizens. The committee urges its enactment."
H.R. Rep. No. 1577, 90th Cong., 2d Sess., reprinted in 1968
U.S.C.C.A.N. 4410 at 4411-13, 4415 (emphasis added).
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 8 of 36
Firearms Owners' Protection Act of 1986
This basic jurisdictional structure the licensing of all
firearms dealers and manufacturers, based on Congress' express
finding (in the Omnibus Crime Control and Safe Streets Act of 1968,
P.L. 90-351, section 902(a)(3)) to the effect that such was
necessary to adequate federal control of interstate and foreign
commerce in firearms, and in all other instances an express nexus
either to interstate commerce or to the activity of, or dealings
with, federally licensed dealers or manufacturers, or to both[25]
Later in 1986, in P.L. 99-408, 8, 99th Cong., 2d Sess., 100 Stat.
920, 921, the "handgun" reference in section 929(a) was changed to
"firearm," but the jurisdictional basis ("for which he may be
prosecuted in a court of the United States") of section 929(a) was
not altered. has continued to the present, with only a few,
discrete exceptions, the first of which arose in 1986, in the
Firearms Owners' Protection Act, P.L. 99-308, 99 Cong., 2d Sess.,
100 Stat. 449-461.
Section 102(5)(A) of the Firearms Owners' Protection Act, 100
Stat. 451-52, amended section 922(d), as explained in the relevant
committee report, "by extending the prohibition on transferring
firearms to disqualified persons [e.g., felons, fugitives, etc.]
from only licensees to private individuals as well." H.R. Rep. No.
99-495, 99 Cong., 2d Sess., reprinted in 1986 U.S.C.C.A.N. 1327 at
1341. The explanation for this particular amendment appears in an
"assessment" of the bill by the Bureau of Alcohol, Tobacco and
Firearms (BATF) that appears in full as a part of this committee
report, and states "This proposal would close an existing loophole
whereby qualified purchasers have acquired firearms from licensees
on behalf of prohibited persons." Id. 1986 U.S.C.C.A.N. at
1343.[26] This amendment to section 922(d) also added to the list
of disqualified persons illegal aliens and those who had been
dishonorably discharged or had renounced United States citizenship.
This amendment to section 922(d) does not render it analogous to
section 992(q), which is presently before us. To begin with,
section 922(d) deals with transfers, not mere possession, and, as
we said in Nelson, "acquisition of firearms is more closely related
to interstate commerce than mere possession." Id. 458 F.2d at 559.
Moreover, the above quoted legislative history indicates that
Congress determined that relegation of all transferors to
disqualified persons, not just federal licensee transferors, was
necessary to prevent evasion of the regulation of federal licensees
(a regulation with independent legitimacy, see note 9, supra). This
is consistent with the approach we took in Lopez in sustaining
federal regulation of intrastate, as well as interstate, narcotics
trafficking. Id. 459 F.2d at 951-53. See also Nelson, 458 F.2d at
559 (relying on Congressional finding in P.L. 90-351, section
901(a)(3), and observing that "[i]f Congress is to effectively
prevent the interstate use of guns for illegal purposes it must
control their sources: manufacturers, dealers and importers").
Finally, the overall structure and history, as well as the title,
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 9 of 36
of the Firearms Owners' Protection Act suggest no Congressional
determination that mere possession of ordinary firearms implicates
interstate commerce or other federal concerns. Indeed, Congress in
that legislation expressly found, inter alia, "that (1) the rights
of citizens (A) to keep and bear arms under the second amendment to
the United States Constitution; . . .; and (D) against
unconstitutional exercise of authority under the ninth and tenth
amendments; require additional legislation to correct existing
firearms statutes and enforcement policies." P.L. 99-308 section
1(b). [27]
Further, this legislation amended several provisions of section
922 and section 924 that contained express interstate commerce
nexus requirements without diluting those requirements. This was
true, for example, with respect to the amendments to section
922(g), prohibiting felons (and other disqualified persons) from
shipping or transporting any firearms "in interstate or foreign
commerce," from receiving any firearm "which has been shipped or
transported in interstate or foreign commerce" and, as added by the
amendment, from possessing any firearm "in or affecting commerce."
P.L. 99-308 section 102(6). As we explained in Wallace, 889 F.2d at
583, the legislative history of this amendment clearly showed that
the phrase "in or affecting commerce" meant "interstate" commerce,
and that accordingly the possession offense of thus amended section
922(g) "reaches only those firearms that traveled in interstate or
foreign commerce and is thus constitutional." (Emphasis added).
Similarly, the legislation enacted a new section 922(n), P.L.
99-308 102(8), which proscribed those under felony indictment whom
the same legislation removed from sections 922(g) and (h) from
shipping or transporting any firearm "in interstate or foreign
commerce" and from receiving any firearm "which has been shipped or
transported in interstate or foreign commerce."[28] Also, the
express federal nexus was retained where the Firearms Owners'
Protection Act amended sections 924(c) and 929(a) to add "drug
trafficking crime" to the offenses concerning which firearm (or
certain ammunition) use was proscribed, while retaining the
requirement that the offense in any event be one that could "be
prosecuted in a court of the United States." See note 25, supra.
Similarly, the amendment made to section 922(a)(3), concerning a
non-licensee's transportation into or receipt within his state of
residence of a firearm "obtained by such person outside that state"
broadened to all types of firearms an exception previously limited
to shotguns and rifles, but retained the "obtained by such person
outside that state" language. P.L. 99-308 102(3). Likewise, the
restriction on licensed dealer sales to non-residents of the state
of the licensee's business location was amended but without
altering the interstate character of the subject matter. Id.
section 102(4). And, the legislation left unchanged other
provisions of section 922 expressly requiring an interstate
commerce nexus, such as, for example, section 922(a)(5), generally
prohibiting non-licensee transfers of firearms to other non-
licensees residing in a state other than that of the transferor's
residence.
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 10 of 36
The other Firearms Owners' Protection Act change relevant in
this connection is its section 102(9), 100 Stat. 452-53, adding a
new section 922(o) making it unlawful for "any person to transfer
or possess a machine gun" except for any "lawfully possessed before
the date this subsection takes effect." There is no committee
report, and sparse legislative history, concerning this provision,
as it was added on the House floor. The only apparent explanation
for it is the statement of its sponsor, Representative Hughes, that
"I do not know why anyone would object to the banning of machine
guns." See Farmer v. Higgins, 907 F.2d 1041, 1044-45 (11th Cir.
1990). While section 922(o) is a closer parallel than others to
section 922(q) presently before us, as both sections denounce mere
possession with no express tie either to interstate commerce or
other federalizing element, we decline to read into section 922(o)
any implied Congressional determination that possession of firearms
generally, or within one thousand feet of any school grounds,
affects interstate commerce. Section 922(o) is restricted to a
narrow class of highly destructive, sophisticated weapons that have
been either manufactured or imported after enactment of the
Firearms Owners' Protection Act, [29] which is more suggestive of
a nexus to or affect on interstate or foreign commerce than
possession of any firearms whatever, no matter when or where
originated, within one thousand feet of the grounds of any school.
The only two circuit courts that have addressed a constitutional
challenge to section 922(o), United States v. Hale, 978 F.2d 1016,
1018 (8th Cir. 1992), cert. denied, 113 S.Ct. 1614 (1993); United
States v. Evans, 928 F.2d 858 (9th Cir. 1991), have sustained it in
reliance on Congressional findings that appear to us to be
inapplicable in the present context, whatever relevance they might
have to section 922(o). [30] Hale states that, "The legislative
history of section 922(o) indicates that Congress considered the
relationship between the availability of machine guns, violent
crime, and narcotics trafficking. See H.R. Rep. No. 495, 99th
Cong., 2d Sess., at 1-5, reprinted in 1986 U.S.C.C.A.N. 1327,
1327-31." Id. at 1018. The only portion of the cited passage of the
H.R. Rep. No. 495 that relates to machine guns and it will be
recalled that neither section 922(o) nor anything comparable to it
was included in the bill (H.R. 4332) there being considered is a
discussion of the history of the legislation, including various
earlier bills that did not become law. One of the earlier bills
discussed was H.R. 3135, introduced August 1, 1985, and H.R. Rep.
No. 495 observes that H.R. 3135 "prohibited the transfer and
possession of machine guns, used by racketeers and drug traffickers
for intimidation, murder and protection of drugs and the proceeds
of crime. The bill allowed possessors of lawfully registered
machine guns to continue their lawful possession." 1986
U.S.C.C.A.N. at 1330. Whatever this may say about machine guns, it
says nothing about the mere possession of ordinary firearms. Given
the formal Congressional findings contained in the Firearms Owners'
Protection Act (see note 27, supra), which avow a purpose to
enhance Second and Tenth Amendment rights and express solicitude
for the freedom of citizens to possess ordinary firearms, it would
be entirely inappropriate to consider the above-quoted portions of
the committee report as having any relevance beyond machine guns
and similar destructive weapons. [31] We thus disagree with the
general statements in Hale and Evans respecting the Omnibus Crime
Control and Safe Streets Act of 1968 and the Gun Control Act of
1968.
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 11 of 36
Section 922(o) is not before us, and we intimate no views as to
it. However, we do not regard Hale and Evans as persuasive
respecting either the validity of section 922(q) or the existence
of express or implied Congressional findings supportive thereof.
The Undetectable Firearms Act of 1988
We note two firearms provisions enacted in 1988. The
Undetectable Firearms Act of 1988, P.L. 100-649, 100th Cong., 2d
Sess., 102 Stat. 3816, added to Title 18 section 922(p) making it
unlawful for any person to "manufacture, import, ship, deliver,
possess, transfer, or receive" any firearms either not as
detectable "by walk-through metal detectors" as an exemplar to be
developed by the Secretary of the Treasury or which "when subjected
to inspection by the type of x-ray machines commonly used at
airports, does not generate an image that accurately depicts the
shape of" any major component thereof. Section 922(p)(1). Exempted
were "any firearm manufactured in, imported into, or possessed in
the United States before the date of the enactment" of the act.
Section 922(p)(6). Although there is no express requirement of an
interstate nexus for the section 922(p) possession offense, we
reject the government's argument that this legislation is analogous
to section 922(q). Section 922(p)'s employment of the standard of
"x-ray machines commonly used at airports" plainly reflects the
act's interstate commerce related purpose and nexus. This is
confirmed by the legislative history, as the relevant committee
report notes "the threat posed by firearms which could avoid
detection at security checkpoints: airports, government buildings,
prisons, courthouses, the White House." H.R. Rep. No. 100-612,
100th Cong., 2d Sess., reprinted in 1988 U.S.C.C.A.N. 5359.[32]
Anti-Drug Abuse Amendments Act of 1988
The other 1988 firearms legislation is subtitle G (sections
6211-6215) of Title VI ("Anti-Drug Abuse Amendments Act of 1988")
of the Anti-Drug Abuse Act of 1988, P.L. 100-690, 100th Cong., 2d
Sess., 102 Stat. 4181, 4359-62. Subtitle G added to Title 18
sections 924(f) and (g) and 930. P.L. 100-960, sections 6211, 6215.
Section 924(g) denounces "[w]hoever knowingly transfers a firearm,
knowing that such firearm will be used to commit a crime of
violence (as defined in subsection (c)(3)) or drug trafficking
crime (as defined in subsection (c)(2))." There is no requirement
that the transfers have an interstate character or that the
firearms have been in interstate commerce. While "drug trafficking
crime" is limited to federal offenses and this limitation was
maintained even though the same legislation slightly amended the
definition thereof in section 924(c)92) and section 929(a)(2)[33]
"crime of violence" is not so limited. Section 924(c)(3). Our
attention has not been called to legislative history suggesting an
explanation for this seeming anomaly. [34] It seems anomalous in
several respects.
There is no apparent reason why the drug trafficking crime must
be federal, but not the crime of violence. Further, no amendment
was made to section 924(b), denouncing the shipment, transport, or
receipt of a firearm "in interstate or foreign commerce" with
"knowledge or reasonable cause to believe that" a felony "is to be
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 12 of 36
committed therewith"; nor to section 924(c)(1) denouncing use or
carrying of a firearm during or in relation to "any crime of
violence or drug trafficking crime . . . for which he may be
prosecuted in a court of the United States."[35] The seemingly
unusual result is that anyone who transfers intrastate a firearm
(which has not been in interstate commerce) knowing it will be used
in a crime of violence in that state commits a federal crime even
though the crime of violence is not a federal offense, but the
party perpetrating the crime of violence with the firearm in that
same state violates federal law only if the crime of violence is
one "for which he may be prosecuted in a court of the United
States." A possible inference from this is that transfer is deemed
more related to the regulation of interstate commerce than mere use
or possession. Cf. Nelson, 458 F.2d at 559 ("acquisition of
firearms is more closely related to interstate commerce than mere
possession").[36]
The 1988 legislation, like that before it, demonstrates neither
a pattern of regulation that abjures any express nexus to
interstate commerce or other federal element nor any express or
implied Congressional finding about mere possession of ordinary
firearms absent such a nexus.
Crime Control Act of 1990
At long last, we turn to the Crime Control Act of 1990, P.L.
101-647, 101st Cong., 2d Sess., 104 Stat. 4789-4968, which
included, as part of its XVII ("General Provisions"), section 1702,
104 Stat. 9844-45, the Gun-Free School Zone Act of 1990, that
enacted the new section 922(q).[37] Preliminarily, we note that the
Crime Control Act of 1990 also contained a Title XXII ("Firearms
Provisions"), P.L. 101-647, sections 2201-2205, 104 Stat. 4856-58,
which revised other portions of chapter 44 of Title 18. These other
revisions all retained or provided for an express interstate
commerce (or other federal jurisdiction) nexus for the various
Title 18, chapter 44, offenses the provisions of which were being
amended.[38] Finally, section 2205 of P.L. 101-647 amended section
930, which denounced possession of firearms "in a Federal
facility," so that an enhanced penalty would be applicable if the
possession were "in a Federal court facility."
Gun-Free School Zones Act of 1990
The Gun-Free School Zones Act of 1990, now section 922(q), was
introduced in the Senate by Senator Herbert Kohl as S. 2070 and a
virtually identical bill with the same title was introduced in
House by Representative Edward Feighan as H.R. 3757. The Senate
version was eventually enacted as part of Title XVII of the Crime
Control Act of 1990, P.L. 101-647 1702, 104 Stat. 4844-45. The
House Report accompanying the Crime Control Act broadly declares
that the intent of the Crime Control Act was "to provide a
legislative response to various aspects of the problem of crime in
the United States." H.R. Rep. No. 101-681(I), 101st Cong., 2d Sess.
69 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6473. However, this
report makes no mention whatsoever of the impact upon commerce of
firearms in schools. Nor does the report even mention the Gun-Free
School Zones Act. Although S. 2070 has no formal legislative
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 13 of 36
history that we know of, a House subcommittee hearing was held on
H.R. 3757. Witnesses told this subcommittee of tragic instances of
gun violence in our schools, but there was no testimony concerning
the effect of such violence upon interstate commerce. Indeed, the
noticeable absence of any attempt by Congress to link the Gun-Free
School Zones Act to commerce prompted the Chief of the Firearms
Division of the BATF and the BATF's Deputy Chief Counsel, to
testify as follows:
"Finally, we would note that the source of constitutional
authority to enact the legislation is not manifest on the face
of the bill. By contrast, when Congress first enacted the
prohibitions against possession of firearms by felons, mental
incompetents and others, the legislation contained specific
findings relating to the Commerce Clause and other
constitutional bases, and the unlawful acts specifically
included a commerce element." Gun-Free School Zones Act of
1990: Hearings on H.R. 3757 Before the Subcomm. on Crime of
the House Comm. on the Judiciary, 101st Cong., 2d Sess., at 10
(1990) (statement of Richard Cook and Bradley Buckles)
(hereinafter, House Hearings).
Although both the House and Senate sponsors of the Gun-Free
School Zones Act made fairly lengthy floor statements about it,
neither congressman had anything to say about commerce in their
remarks. See 136 Cong. Rec. S17595 (1990) (statement of Sen. Kohl);
136 Cong. Rec. S766 (1990) (same); 135 Cong. Rec. E3988 (1989)
(inserted statement of Rep. Feighan).
The failure of section 922(q) to honor the traditional division
of functions between the Federal Government and the States was
commented upon by President Bush when he signed the Crime Control
Act of 1990:
"I am also disturbed by provisions in S. 3266 that
unnecessarily constrain the discretion of State and local
governments. Examples are found in Title VIII's 'rural drug
enforcement' program- in Title XV's 'drug-free school zones'
program- and in Title XVIII's program for 'correctional
options incentives.' Most egregiously, section 1702
inappropriately overrides legitimate State firearms laws with
a new and unnecessary Federal law. The policies reflected in
these provisions could legitimately be adopted by the States,
but they should not be imposed on the States by the Congress."
Statement by President George Bush upon Signing S. 3266, 26
Weekly Comp. Pres. Doc. 1944 (Dec. 3, 1990), reprinted in 1990
U.S.C.C.A.N. 6696-1 (emphasis added).[39]
Commerce Power
We are, of course, fully cognizant and respectful of the great
scope of the commerce power. It is generally agreed that in a
series of decisions culminating in Wickard v. Filburn, 63 S.Ct. 82
(1942), the Supreme Court fixed the modern definition of the
commerce power, returning it to the breadth of Gibbons v. Ogden, 22
U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824). As stated in one treatise:
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 14 of 36
"After Wickard, the tests for proper exercise of the
commerce power were settled. First, Congress could set the
terms for the interstate transportation of persons, products,
or services, even if this constituted prohibition or indirect
regulation of single state activities. Second, Congress could
regulate intrastate activities that had a close and
substantial relationship to interstate commerce- this
relationship could be established by congressional views of
the economic effect of this type of activity. Third, Congress
could regulate under a combined commerce clause-necessary and
proper clause analysis intrastate activities in order to
effectuate its regulation of interstate commerce." Rotunda &
Nowack, Treatise on Constitutional Law; Substance and
Procedure 2nd, 4.9 at 404-5.
Broad as the commerce power is, its scope is not unlimited,
particularly where intrastate activities are concerned. As the
Court said in Maryland v. Wirtz, 88 S.Ct. 2017, 2024 (1968):
"This Court has always recognized that the power to
regulate commerce, though broad indeed, has limits. Mr. Chief
Justice Marshall paused to recognize those limits in the
course of the opinion that first staked out the vast expanse
of federal authority over the economic life of the new Nation.
Gibbons v. Ogden, 9 Wheat. 1, 194-195, 6 L.Ed. 23.
Chief Justice Marshall explained in Gibbons v. Ogden:
"The subject to which power is next applied, is to commerce
'among the several states.'. . . Comprehensive as the word
'among' is, it may very properly be restricted to that
commerce which concerns more states than one. . . . [T]he
enumeration of the particular classes of commerce to which the
power was to be extended, would not have been made had the
intention been to extend the power to every description. The
enumeration presupposes something not enumerated- and that
something, if we regard the language or the subject of the
sentence, must be the exclusively internal commerce of a
state. The genius and character of the whole government seem
to be, that its action is to be applied to all the external
concerns which affect the states generally- but not to those
which are completely within a particular state, which do not
affect other states, and with which it is not necessary to
interfere, for the purpose of executing some of the general
powers of the government. The completely internal commerce of
a state, then, may be considered as reserved for the state
itself." Id., 9 Wheat. at 194-95, 6 L.Ed. at 69-70.
Similarly, in Wickard v. Filburn, the Court stated:
"But even if appellee's activity be local and though it may
not be regarded as commerce, it may still, whatever its
nature, be reached by Congress if it exerts a substantial
economic effect on interstate commerce and this irrespective
of whether such effect is what might at some earlier time have
been defined as 'direct' or 'indirect.'" Id., 63 S.Ct. at 89
(emphasis added).
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 15 of 36
This passage has been quoted with approval many times. See,
e.g., Katzenbach v. McClung, 85 S.Ct. 377, 383 (1964); Perez v.
United States, 91 S.Ct. 1357, 1360 (1971). In United States v.
American Building Maintenance Industries, 95 S.Ct. 2150, 2156
(1975), the Court speaks of the "full Commerce Clause power" as
extending to "all activity substantially affecting interstate
commerce" (emphasis added). Analogously, in United States v.
Wrightwood Dairy Co., 62 S.Ct. 523, 526 (1942), Chief Justice
Stone's opinion for a unanimous Court states that the commerce
power "extends to those intrastate activities which in a
substantial way interfere with or obstruct the exercise of the
granted power" (emphasis added).[40] Justice Harlan, writing for
the Court in Maryland v. Wirtz, made the message explicit: "Neither
here nor in Wickard [v. Filburn] has the Court declared that
Congress may use a relatively trivial impact on commerce as an
excuse for broad general regulation of state or private
activities." Id., 88 S.Ct. at 2024 n.27. Indeed, it could not be
otherwise as the chain of causation is virtually infinite, and
hence there is no private activity, no matter how local and
insignificant, the ripple effect from which is not in some
theoretical measure ultimately felt beyond the borders of the state
in which it took place. Hence, if the reach of the commerce power
to local activity that merely affects interstate commerce or its
regulation is not understood as being limited by some concept such
as "substantially" affects, then, contrary to Gibbons v. Ogden, the
scope of the Commerce Clause would be unlimited, it would extend
"to every description" of commerce and there would be no
"exclusively internal commerce of a state" the existence of which
the Commerce Clause itself "presupposes" and the regulation of
which it "reserved for the state itself."
We recognize, of course, that the imprecise and matter of degree
nature of concepts such as "substantially," especially as applied
to effect on interstate commerce, generally renders decision making
in this area peculiarly within the province of Congress, rather
than the Courts. And, the Supreme Court has consistently deferred
to Congressional findings in this respect, both formal findings in
the legislation itself and findings that can be inferred from
committee reports, testimony before Congress, or statutory terms
expressly providing for some nexus to interstate commerce.
Relatively recent examples of statutes upheld against Commerce
Clause attacks on the basis of formal Congressional findings
include EEOC v. Wyoming, 103 S.Ct. 1054, 1058 & n.3 (1983) (Age
Discrimination in Employment Act); FERC v. Mississippi, 102 S.Ct.
2126, 2135 (1982) (Public Utility Regulatory Policies Act); Hodel
v. Virginia Surface Mining, 101 S.Ct. 2352, 2361 (1981) (Surface
Mining Control and Reclamation Act); Perez, 91 S.Ct. at 1358 n.1,
1362 (Consumer Credit Protection Act).[41] In other cases, the
Court has looked to the legislative history and the terms of the
challenged statute itself to identify and sustain findings of a
sufficient effect on interstate commerce. For example, in McClung
the Court upheld section 201(b)(2) and (c) of Title II of the Civil
Rights Act of 1964, the terms of which covered any restaurants "if
their operations affect commerce" and presumed that any did "'if .
. . it serves or offers to serve interstate travelers or a
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 16 of 36
substantial portion of the food which it serves . . . has moved in
commerce.'" Id. at 381. In so ruling, despite the absence of
"formal findings," the Court relied on the wording of the statute
itself, which amounted to an express finding of the requisite
effect on commerce under certain facts, and on the legislative
history showing the extensive evidence before Congress implicating
interstate commerce. Thus the Court noted that
"The record is replete with testimony of the burdens placed
on interstate commerce by racial discrimination in
restaurants. . . . Moreover, there was an impressive array of
testimony that discrimination in restaurants had a direct and
highly restrictive effect upon interstate travel by Negroes."
Id. at 381.
"We believe that this testimony afforded ample basis for
the conclusion that established restaurants in such areas sold
less interstate goods because of the discrimination, that
interstate travel was obstructed directly by it, that business
in general suffered and that many new businesses refrained
from establishing there as a result of it." Id. at 382.
". . . Congress has determined for itself that refusals of
service to Negroes have imposed burdens both upon the
interstate flow of food and upon the movement of products
generally." Id. at 383.
In sustaining the statute the Court concluded by stating:
"The appellees urge that Congress, in passing the Fair
Labor Standards Act and the National Labor Relations Act, made
specific findings which were embodied in those statutes. Here,
of course, Congress has included no formal findings. But their
absence is not fatal to the validity of the statute, [citation
omitted] for the evidence presented at the hearings fully
indicated the nature and effect of the burdens on commerce
which Congress meant to alleviate.
"Confronted as we are with the facts laid before Congress,
we must conclude that it had a rational basis for finding that
racial discrimination in restaurants had a direct and adverse
effect on the free flow of interstate commerce. Insofar as the
sections of the Act here relevant are concerned, sections
201(b)(2) and (c), Congress prohibited discrimination only in
those establishments having a close tie to interstate
commerce, i.e., those, like the McClungs', serving food that
has come from out of the State. We think in so doing that
Congress acted well within its power to protect and foster
commerce in extending the coverage of Title II only to those
restaurants offering to serve interstate travelers or serving
food, a substantial portion of which has moved in interstate
commerce." Id. at 384 (footnote omitted).[42]
Where Congress has made findings, formal or informal, that
regulated activity substantially affects interstate commerce, the
courts must defer "if there is any rational basis for" the finding.
Preseault v. I.C.C., 110 S.Ct. 914, 924 (1990); Hodel v. Virginia
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 17 of 36
Surface Mining and Reclamation Association, Inc., 101 S.Ct. 2352,
2360 (1981); Heart of Atlanta Motel, Inc. v. United States, 85
S.Ct. 348, 358 (1964); McClung, 85 S.Ct. at 383. Practically
speaking, such findings almost always end the matter.[43] This
means that the states, and the people, must largely look to their
representatives in Congress to fairly and consciously fix, rather
than to simply disregard, the Constitution's boundary line between
"the completely internal commerce of a state . . . reserved for the
state itself" and the power to regulate "Commerce with foreign
Nations, and among the several States." Courts cannot properly
perform their duty to determine if there is any rational basis for
a Congressional finding if neither the legislative history nor the
statute itself reveals any such relevant finding.[44] And, in such
a situation there is nothing to indicate that Congress itself
consciously fixed, as opposed to simply disregarded, the boundary
line between the commerce power and the reserved power of the
states. Indeed, as in this case, there is no substantial indication
that the commerce power was even invoked.[45]
Congressional enactments are, of course, presumed
constitutional. But in certain areas the presumption has less
force. Cf. United States v. Carolene Products Co., 58 S.Ct. 778,
783 n.4 (1938) ("There may be a narrower scope for operation of the
presumption of constitutionality when legislation appears on its
face to be within a specific prohibition of the Constitution, such
as those of the first ten Amendments . . . ."). Here the question
is essentially a jurisdictional one, and any expansion of federal
power is at the expense of the powers reserved to the states by the
Tenth Amendment, which is, after all, as much a part of the Bill of
Rights as the First.[46] Both the management of education, and the
general control of simple firearms possession by ordinary citizens,
have traditionally been a state responsibility, and section 922(q)
indisputably represents a singular incursion by the Federal
Government into territory long occupied by the States. In such a
situation where we are faced with competing constitutional
concerns, the importance of Congressional findings is surely
enhanced.[47] In a similar vein, we note that in Woods v. Cloyd
Miller Co., 68 S.Ct. 421 (1946), the Supreme Court, relying on
legislative history (see note 43, supra), sustained the Housing and
Rent Act of 1947, which essentially contained a form of nationwide
federal rent control, on the basis of the war power. The
legislation did not expressly invoke the war power, but the Court
sustained it on that basis, relying on legislative history, despite
the Court's recognition that this principle should not extend long
after the end of hostilities, as if it did "it may not only swallow
up all other powers of Congress but largely obliterate the Ninth
and Tenth Amendments as well." Id. at 424. Significantly, the Court
never mentioned the Commerce Clause. Moreover, the Court's
referenced concern seems to implicitly assume that the Commerce
Clause would not reach so far.
We draw support for our conclusion concerning the importance of
Congressional findings from recent holdings that when Congress
wishes to stretch its commerce power so far as to intrude upon
state prerogatives, it must express its intent to do so in a
perfectly clear fashion. In Pennsylvania v. Union Gas, 109 S.Ct.
2273 (1989) (plurality opinion), the Court held that Congress could
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 18 of 36
use its commerce power to abrogate the sovereign immunity
guaranteed to the States by the Eleventh Amendment only if its
intent to do so is "unmistakably clear." Id. at 2277 (quoting
Atascadero State Hospital v. Scanlon, 105 S.Ct. 3142, 3147 (1985)).
In another case decided the same day, the Court explained that this
rule exists because "abrogation of sovereign immunity upsets the
fundamental constitutional balance between the Federal Government
and the States, placing a considerable strain on the principles of
federalism that inform Eleventh Amendment doctrine." Dellmuth v.
Muth, 109 S.Ct. 2397, 2400 (1989) (citations and internal quotation
marks omitted). Two years later, in Gregory v. Ashcroft, the Court
held that the Age Discrimination in Employment Act (ADEA) did not
sweep away the Missouri Constitution's provision for the mandatory
retirement of state judges at age seventy. Arguing that a State's
power to set the qualifications for its judiciary "is a decision of
the most fundamental sort for a sovereign entity," 111 S.Ct. at
2400, the Court held that the ADEA did not bespeak a sufficiently
clear intent to annul this state prerogative:
"Congressional interference with this decision of the
people of Missouri, defining their constitutional officers,
would upset the usual constitutional balance of federal and
state powers. For this reason, 'it is incumbent upon the
federal courts to be certain of Congress' intent before
finding that federal law overrides' this balance." Id. at 2401
(quoting Atascadero, 105 S.Ct. at 3147).[48]
We recognize that the rule being applied in those cases is one
of statutory construction. Nevertheless, Gregory, Union Gas, and
Bass establish that Congress' power to use the Commerce Clause in
such a way as to impair a State's sovereign status, and its intent
to do so, are related inquiries. Thus, in Gregory, Congress' power
to trump the Missouri Constitution was unquestioned but its intent
to do so was unclear; hence the Court held that the State's Tenth
Amendment interests would prevail. Here, Congress surely intended
to make the possession of a firearm near a school a federal crime,
but it has not taken the steps necessary to demonstrate that such
an exercise of power is within the scope of the Commerce Clause.
In 1985, the Supreme Court held that the Tenth Amendment imposes
no internal limitation upon the Commerce Clause; as long as
Congress acts within the commerce power it cannot violate the Tenth
Amendment. See Garcia v. San Antonio Metro. Trans. Auth., 105 S.Ct.
1005 (1985) (overruling National League of Cities v. Usery, 96
S.Ct. 2465 (1976)). The Garcia Court sought to assuage the fears of
four dissenting Justices by arguing that, as a body of state
representatives, Congress would respect the sovereignty of the
several States and could be trusted to police the constitutional
boundary between the Tenth Amendment and the Commerce Clause. See
Garcia, 105 S.Ct. at 1017-19. By expecting Congress to build a more
sturdy foundation for the exercise of its commerce power than it
has done in this case, we hope to
"further[] the spirit of Garcia by requiring that decisions
restricting state sovereignty be made in a deliberate manner
by Congress, through the explicit exercise of its lawmaking
power to that end. . . . [T]o give the state-displacing weight
of federal law to mere congressional ambiguity would evade the
very procedure for lawmaking on which Garcia relied to protect
states' interests." L. Tribe, American Constitutional Law
6-25, at 480 (2d ed. 1988) (footnote omitted).
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 19 of 36
The Gun Free School Zones Act extends to criminalize any
person's carrying of any unloaded shotgun, in an unlocked pickup
truck gun rack, while driving on a county road that at one turn
happens to come within 950 feet of the boundary of the grounds of
a one-room church kindergarten located on the other side of a
river, even during the summer when the kindergarten is not in
session. Neither the act itself nor its legislative history reflect
any Congressional determination that the possession denounced by
section 922(q) is in any way related to interstate commerce or its
regulation, or, indeed, that Congress was exercising its powers
under the Commerce Clause. Nor do any prior federal enactments or
Congressional findings speak to the subject matter of section
922(q) or its relationship to interstate commerce. Indeed, section
922(q) plows thoroughly new ground and represents a sharp break
with the long-standing pattern of federal firearms legislation.
[49] (1989) (plurality opinion), in which the Court held
unconstitutional Richmond's plan requiring thirty percent of public
subcontracting work to be given to minority-owned business, in part
because of the city's failure adequately to supports its "finding"
that past discrimination necessitated race-conscious remedial
action. Specifically, the Court rejected the city's reliance upon
findings made by Congress (and used by the Court to sustain a
similar federal racial set-aside in Fullilove) that there had been
nationwide discrimination against blacks in the construction
industry, saying that "[t]he probative value of these findings for
demonstrating the existence of discrimination in Richmond is
extremely limited." Id. at 727. Further, the Court saw "absolutely
no evidence of past discrimination against Spanish-speaking,
Oriental, Indian, Eskimo, or Aleut persons in any aspect of the
Richmond construction industry." Id. at 728 (original emphasis).
The district court sustained section 922(q) on the basis that
the "'business' of elementary, middle and high schools . . .
affects interstate commerce." However, as noted, there is no
finding, legislative history, or evidence to support section 922(q)
on this basis. The management of education, of course, has
traditionally been a state charge, as Congress has expressly
recognized. See 20 U.S.C. section 3401(4) ("The Congress finds that
. . . in our Federal system, the primary public responsibility for
education is reserved respectively to the States and the local
school systems and other instrumentalities of the States.").[50] We
are unwilling to ourselves simply assume that the concededly
intrastate conduct of mere possession by any person of any firearm
substantially affects interstate commerce, or the regulation
thereof, whenever it occurs, or even most of the time that it
occurs, within 1000 feet of the grounds of any school, whether or
not then in session. If Congress can thus bar firearms possession
because of such a nexus to the grounds of any public or private
school, and can do so without supportive findings or legislative
history, on the theory that education affects commerce, then it
could also similarly ban lead pencils, "sneakers," Game Boys, or
slide rules.
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 20 of 36
The government seeks to rely on the rule that "[w]here the class
of activities is regulated and that class is within the reach of
the federal power, the courts have no power 'to excise, as trivial,
individual instances' of the class." Perez, 91 S.Ct. at 1361
(quoting Maryland v. Wirtz, 88 S.Ct. 2017, 2022 (1968)). This
theory has generally been applied to the regulation of a class of
activities the individual instances of which have an interactive
effect, usually because of market or competitive forces, on each
other and on interstate commerce. A given local transaction in
credit, or use of wheat, because of national market forces, has an
effect on the cost of credit or price of wheat nationwide. Some
such limiting principle must apply to the "class of activities"
rule, else the reach of the Commerce Clause would be unlimited, for
virtually all legislation is "class based" in some sense of the
term. We see no basis for assuming, particularly in the absence of
supporting Congressional findings or legislative history, that, for
example, ordinary citizen possession of a shotgun during July 900
feet from the grounds of an out-of-session private first grade in
rural Llano County, Texas, has any effect on education even in
relatively nearby Austin, much less in Houston or New Orleans. Nor
can we assume that elementary education in Houston substantially
affects elementary education in Atlanta. As noted, any such holding
would open virtually all aspects of education, public and private,
elementary and other, to the reach of the Commerce Clause.[51]
We hold that section 922(q), in the full reach of its terms, is
invalid as beyond the power of Congress under the Commerce
Clause.[52] Whether with adequate Congressional findings or
legislative history, national legislation of similar scope could be
sustained, we leave for another day. Here we merely hold that
Congress has not done what is necessary to locate section 922(q)
within the Commerce Clause. And, we expressly do not resolve the
question whether section 922(q) can ever be constitutionally
applied. Conceivably, a conviction under section 922(q) might be
sustained if the government alleged and proved that the offense had
a nexus to commerce.[53] Here, in fact, the parties stipulated that
a BATF agent was prepared to testify that Lopez's gun had been
manufactured outside of the State of Texas. Lopez's conviction must
still be reversed, however, because his indictment did not allege
any connection to interstate commerce. An indictment that fails to
allege a commerce nexus, where such a nexus is a necessary element
of the offense, is defective. See Stirone v. United States, 80
S.Ct. 270, 273 (1960) (Hobbs Act); United States v. Hooker, 841
F.2d 1225, 1227-32 (4th Cir. 1988) (en banc) (RICO); United States
v. Moore, 185 F.2d 92, 94 (5th Cir. 1950) (FLSA). This is true even
though the language of section 922(q) contains no such requirement.
See Russell v. United States, 82 S.Ct. 1038, 1047-48 (1962); 2 W.
LaFave & J. Israel, Criminal Procedure 19.2, at 452 (1984).
Finally, because an indictment, unlike a bill of information,
cannot be amended, the failure to allege each element is fatal. Cf.
United States v. Garrett, 984 F.2d 1402, 1415 (5th Cir. 1993);
United States v. Mize, 756 F.2d 353, 355-56 (5th Cir. 1985).
For the reasons stated, the judgment of conviction is reversed
and the cause is remanded with directions to dismiss the
indictment.[54]
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 21 of 36
REVERSED
FOOTNOTES
[1] Initially, state charges were filed against Lopez but those
charges were dropped due to the federal prosecution. What Lopez did
has been a felony under Texas law since at least 1974. See Tex.
Penal Code section 46.04(a) (whoever "with a firearm . . . goes .
. . on the premises of a school or an educational institution,
whether public or private . . ."); section 46.04(c) (third degree
felony).
[2] Section 922(q) became law November 29, 1990, as section 1702
of the Crime Control Act of 1990, P.L. 101-647, 101st Cong. 2d
Sess., 104 Stat. 4789, 4844-45. Its effective date was sixty days
later. P.L. 101-647, section 1702(b)(4).
[3] The Act defines a school zone as follows: "(A) in, or on the
grounds of, a public, parochial or private school; or (B) within a
distance of 1,000 feet from the grounds of a public, parochial or
private school." 18 U.S.C. section 921(a)(25). "School" is defined
as "a school which provides elementary or secondary education under
State law." Section 921(a)(26). Lopez stipulated that Edison High
School was and is a school zone.
[4] Section 922(q)(1)(B) provides:
"(B) Subparagraph (A) shall not apply to the possession of a
firearm
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do
so by the State in which the school zone is located or a political
subdivision of the State, and the law of the State or political
subdivision requires that, before an individual obtain such a
license, the law enforcement authorities of the State or political
subdivision verify that the individual is qualified under law to
receive the license;
(iii) which is
(I) not loaded; and
(II) in a locked container, or a locked firearms rack which is
on a motor vehicle;
(iv) by an individual for use in a program approved by a school
in the school zone;
(v) by an individual in accordance with a contract entered into
between a school in the school zone and the individual or an
employer of the individual;
(vi) by a law enforcement officer acting in his or her official
capacity; or
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 22 of 36
(vii) that is unloaded and is possessed by an individual while
traversing school premises for the purpose of gaining access to
public or private lands open to hunting, if the entry on school
premises is authorized by school authorities."
Thus, section 922(q)(1), together with sections 922(a)(25) &
(26) (note 3, supra), makes it a federal offense to carry an
unloaded firearm in an unlocked suitcase on a public sidewalk in
front of one's residence, so long as that part of the sidewalk is
within one thousand feet - two or three city blocks - of the
boundary of the grounds of any public or private school anywhere in
the United States, regardless of whether it is during the school
year or the school is in session. In Texas, at least, a tiny church
kindergarten would be included. See United States v. Echevaria, 995
F.2d 562, 563 & n.5 (5th Cir. 1993); Tex. Ed. Code Ann. 21.797
(Vernon Supp. 1993).
[5] "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people." U.S. Const., Amend. X.
[6] "The Congress shall have Power . . . To regulate Commerce
with foreign Nations, and among the several States, and with the
Indian Tribes." U.S. Const., Art. I, section 8, cl. 3.
[7] "Congress hereby finds and declares that the receipt,
possession, or transportation of a firearm by felons . . .
constitutes (1) a burden on commerce or threat affecting the free
flow of commerce." 18 U.S.C. section 1201. See Bass, 92 S.Ct. at
521 n.14.
[8] See also Barrett v. United States, 96 S.Ct. 498 (1976) (same
under 18 U.S.C. section 922(h) as to felon's receipt of firearm
previously transported in interstate commerce).
[9] It does not seem surprising that those who choose to hold a
federal license, or to deal with federal licensees, may be required
in reference to the activities licensed to conform to federal
requirements. See, e.g., Westfall v. United States, 47 S.Ct. 629
(1957) (defrauding a state bank that is voluntarily a member of the
Federal Reserve System may be made a federal offense because of
that membership); United States v. Dunham, 995 F.2d 45 (5th Cir.
1993) (robbery of federally insured state bank); United States v.
Hand, 497 F.2d 929, 934-5 (5th Cir. 1974), adhered to en banc, 516
F.2d 472, 477 (5th Cir. 1975), cert. denied, 96 S.Ct. 1427 (1976)
(status as federally chartered institution supports federal
jurisdiction); United States v. Fitzpatrick, 581 F.2d 1221, 1223
(5th Cir. 1978) (federal chartering or federal insurance may each
support federal jurisdiction). See also United States v. Mize, 756
F.2d 353 (5th Cir. 1985).
[10] We lay to one side, as irrelevant to our inquiry, diverse
federal legislation enhancing the penalty for use or possession of
a firearm in the commission of some other federal offense. The
jurisdictional basis of such legislation is obviously that
applicable to the underlying federal offense, and the legislation
is properly seen as a regulation of the latter. The same reasoning
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 23 of 36
applies even where, as in the case of 18 U.S.C. section 924(c), the
firearms provision is treated as a separate offense (rather than a
mere sentence enhancement), as its jurisdictional basis is still
that of the other federal offense. See, e.g., United States v.
Owens, 996 F.2d 59, 61 (5th Cir. 1993); United States v. Young, 936
F.2d 1050, 1054-55 (10th Cir. 1991); United States v. Dumas, 934
F.2d 1387, 1390 (6th Cir. 1990), cert. denied, 112 S.Ct. 641
(1991); United States v. McDougherty, 920 F.2d 569, 572 (9th Cir.
1990), cert. denied, 111 S.Ct. 1119 (1991); United States v.
Thornton, 901 F.2d 738, 741 (9th Cir. 1990). Section 922(q), with
which we are here concerned, is not tied or related to any other
federal offense. Also put to one side is legislation dealing solely
with specific matters such as national defense, foreign relations,
foreign commerce, federal facilities, and use of the mails, none of
which are related to section 922(q).
[11] See also former 26 U.S.C. section 1132(a); United States v.
Miller, 59 S.Ct. 816, 816 n.1 (1939); Haynes v. United States, 88
S.Ct. 722, 725 (1968); United States v. Anderson, 885 F.2d 1248,
1250 (5th Cir. 1989).
[12] One might speculate that the 1968 repeal of the Federal
Firearms Act and the concomitant incorporation of its
proscriptions, as then broadened, into the newly enacted chapter 44
of Title 18, as discussed in detail in the text infra, were
prompted by the Supreme Court's 1968 decision in Haynes, which
partially invalidated the National Firearms Act on Fifth Amendment,
self-incrimination grounds. However, the congressional committee
reports on the 1968 legislation do not reflect such a connection,
except in respect to Title II of the Gun Control Act of 1968, which
amended the National Firearms Act itself to meet the concerns of
Haynes. P.L. 90-618, 201, 90th Cong., 2d Sess. (1968); H.R. Conf.
Rep. No. 1956, 90 Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N.
4426, 4434-35. In 1971 in Freed the Supreme Court sustained the
thus amended National Firearms Act, holding that the Haynes
problems had been cured.
[13] Fugitive from justice was defined to mean one who had fled
any state to avoid felony prosecution or testifying in a criminal
proceeding. Id. section 901(b).
[14] An analogous presumption applied to possession of a firearm
with an altered or removed serial number. Id. section 902(i).
[15] The presumption considered in Tot was dropped, as was the
analogous presumption concerning altered serial numbers (see note
14, supra).
[16] See also id. at 2206 (discussing new section 923(a) "The
licensing requirements of the present Federal Firearms Act, 15
U.S.C. section 903(a), are based upon dealers and manufacturers
(includes importers) shipping or receiving firearms in interstate
or foreign commerce. Here, the requirement is on engaging in
business and would also include one engaging in such a business in
intrastate commerce").
[17] Other findings in section 901 of P.L. 90-351 include the
following from section 901(a):
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 24 of 36
"(2) that the ease with which any person can acquire
firearms other than a rifle or shotgun (including criminals,
juveniles without the knowledge or consent of their parents or
guardians, narcotics addicts, mental defectives, armed groups
who would supplant the functions of duly constituted public
authorities, and others whose possession of such weapons is
similarly contrary to the public interest) is a signficant
factor in the prevalence of lawlessness and violent crime in
the United States;
. . .
(4) that the acquistiion on a mail-order basis of firearms
other than a rifle or shotgun by nonlicensed individuals, from
a place other than their State of residence, has materially
tended to thwart the effectiveness of State laws and
regulations, and local ordinances;
(5) that the sale or other disposition of concealable
weapons by importers, manufacturers, and dealers holding
Federal licenses, to nonresidents of the State in which the
licensees' places of business are located, has tended to make
ineffective the laws, regulations, and ordinances in the
several States and local jurisdictions regarding such
firearms;
(6) that there is a causal relationship between the easy
availability of firearms other than a rifle or shotgun and
juvenile and youthful criminal behavior, and that such
firearms have been widely sold by federally licensed importers
and dealers to emotionally immature, or thrill-bent juveniles
and minors prone to criminal behavior;
. . .
(8) that the lack of adequate federal control over
interstate and foreign commerce in highly destructive weapons
(such as bazookas, mortars, antitank guns, and so forth, and
destructive devices such as explosive or incendiary grenades,
bombs, missiles, and so forth) has allowed such weapons and
devices to fall into the hands of lawless persons, including
armed groups who would supplant lawful authority, thus
creating a problem of national concern; . . . ."
Findings in section 901(b) are as follows:
"(b) The Congress further hereby declares that the purpose
of this title is to cope with the conditions referred to in
the foregoing subsection, and that it is not the purpose of
this title to place any undue or unnecessary Federal
restrictions or burdens on law- abiding citizens with respect
to the acquisition, possession, or use of firearms appropriate
to the purpose of hunting, trap shooting, target shooting,
personal protection, or any other lawful activity, and that
this title is not intended to discourage or eliminate the
private ownership or use of firearms by law-abiding citizens
for lawful purposes, or provide for the imposition by Federal
regulations of any procedures or requirements other than those
reasonably necessary to implement and effectuate the
provisions of this title."
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 25 of 36
[18] Nelson upheld a conviction under 18 U.S.C. section
922(a)(6) proscribing false statements to a licensed dealer in
acquiring a firearm from the dealer if "material to the lawfulness
of the sale" under chapter 44; the false statement was that the
defendant had not been convicted of a felony, which was "material
to the lawfulness of the sale" in that 18 U.S.C. section 922(d)(1)
made it unlawful for a licensed dealer to sell a firearm to a
felon, regardless of whether the particular sale had a nexus to
interstate commerce. Id. at 557-58.
[19] The Federal Firearms Act provisions against felons (or
indictees or fugitives) shipping or transporting firearms in
interstate commerce, 15 U.S.C. section 902(e), against felons (or
fugitives) receiving any firearm "which has been shipped in
interstate commerce," id. section 902(f), and against any person
shipping or transporting stolen firearms in interstate commerce or
shipping, transporting, or receiving in interstate commerce
firearms with altered or obliterated serial numbers, id. sections
902(g) & (i), were carried forward without alteration of the
interstate nexus, though with slight other alterations, into
respectively 18 U.S.C. sections 922(e), 922(f) (persons under
felony indictment added; presumption removed); section 922(g) and
section 922(i) (presumption removed). The character of ammunition
covered was restricted to that used in destructive devices, such as
rockets, bombs, or the like. 18 U.S.C. sections 921(a)(4), (16).
The provision of the Federal Firearms Act against licensed dealers
or manufacturers shipping or transporting in interstate commerce to
other than licensed dealers or manufacturers where the recipient
was required to but did not have a local license, 15 U.S.C. section
902(c), was retained but altered in 18 U.S.C. section 922(a)(2) so
that it did not apply to rifles or shotguns but did prohibit almost
all interstate shipments by licensed dealers or manufacturers to
those who were not licensed dealers or manufacturers.
[20] Added Title 18 provisions with an express interstate
commerce nexus include: section 922(a)(3) proscribing
transportation or receipt by any non-licensee into or within his
state of residence of any firearm "obtained by him outside that
State" (except for a shotgun or rifle that he could lawfully
possess in his state of residence); section 922(a)(4) forbidding
any unlicensed person to "transport in interstate or foreign
commerce" any "destructive device" (such as a bomb, missile, or
rocket, section 921(a)(4)), machine gun, or "sawed off" shotgun or
rifle; section 922(a)(5) forbidding transfer or delivery by a
person resident in one state to a person (other than a licensed
dealer or manufacturer) resident in a different state of any
firearm (other than a rifle or shotgun proper under the laws of the
latter state); section 924(b) denouncing whoever "ships,
transports, or receives a firearm in interstate or foreign
commerce" with intent to commit therewith a felony or knowing or
with cause to believe a felony is to be committed therewith.
Added Title 18 provisions with an express nexus to federally
licensed dealers or manufacturers include: section 922(b)
proscribing firearms transfers by licensed dealers or manufacturers
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 26 of 36
to minors (except for shotguns or rifles) (1), or where local law
in the state of transfer forbids possession by the transferee (2),
or where the transferee resides in another state (except for
shotguns or rifles) (3), or of "destructive devices" (bombs,
missiles, etc.) or machine guns or "sawed-off" shotguns or rifles
(4), in all cases except for transfers to other licensed dealers or
manufacturers; section 922(a)(6) forbidding false statements to
licensed dealers in acquisition of firearms that are material to
the lawfulness under chapter 44 of the acquisition; and section
922(c) forbidding transfer by a licensed dealer or manufacturer to
a felon, fugitive from justice, or one under felony indictment.
[21] Title II of P.L. 90-618 amended the National Firearms Act
at least in part to eliminate the Fifth Amendment self-
incrimination problems that the Supreme Court had found in Haynes.
See note 12, supra.
[22] As enacted by Title IV of P.L. 90-351, section 922(c)
prohibited a licensee from selling or disposing of a firearm to a
felon, fugitive, or indictee, section 922(e) prohibited any such
individual (felon, etc.) from shipping or transporting a firearm in
interstate or foreign commerce and section 922(f) denounced any
such individual (felon, etc.) who received any firearm that had
been shipped or transported in interstate commerce. Title I of P.L.
90-618 shifted these sections to, respectively, sections 922(d),
(g), and (h), and added to the disqualified individuals adjudicated
mental defectives and unlawful users or addicts of various
federally controlled drugs. No change was made in the provisions
for nexus to interstate or foreign commerce or to a federal
licensee.
[23] As enacted by P.L. 90-351, section 922(a)(3) prohibited
transport or receipt by a non-licensee into or within his state of
residence of any firearm (except for a shotgun or rifle he could
lawfully possess in his state of residence) "obtained by him
outside that state." P.L. 90-618 revised section 922(a)(3) to
narrow the shotgun or rifle exception and to add an exception for
firearms acquired by testate or intestate succession. As enacted by
P.L. 90-351, section 922(a)(5) prohibited non-licensees from
transferring any firearm (other than a rifle or shotgun) to a non-
licensee resident "in any State other than that in which the
transferor resides." P.L. 90-618 revised section 922(a)(5) to
eliminate the shotgun or rifle exception and to add exceptions for
transfers by testate or intestate succession and for temporary
loans "for lawful sporting purposes." In both section 922(a)(3) and
section 922(a)(5) the revisions of P.L. 90-618 retained the
jurisdictional basis of the prior sections, namely out-of-state
acquisition or disposition to a resident of a different state.
[24] An exception to this was the addition by P.L. 90-618 of a
new section 924(c) (and the concomitant renumbering of the former
section 924(c)) enacted by P.L. 90-351 as section 924(d)) providing
that any person who used a firearm to commit (or unlawfully carried
a firearm during the commission of) "any felony which may be
prosecuted in a court of the United States" "shall be sentenced to"
one to ten years' imprisonment. While this did not rely for
jurisdictional purposes on either interstate commerce or the
involvement of a federally licensed party, it was obviously based
on the same federal jurisdictional footing as that on which the
underlying felony rested. See note 10, supra.
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 27 of 36
[25] As observed in Note 24, supra, there was in section 924(c)
(using or carrying a firearm in a federal felony) the separate
jurisdictional basis of the underlying federal offense. In 1984,
section 924(c) was amended to make the penalty additional to that
for the underlying federal offense, to eliminate the element of
"unlawfully" from the carrying branch of the offense, and to
describe the underlying federal offense as "any crime of violence"
(instead of "any felony") "for which he may be prosecuted in a
court of the United States." P.L. 98-473, 1005, 98th Cong., 2d
Sess., 98 Stat. 1837, 2138-39. At the same time 18 U.S.C. section
929(a) was enacted providing enhanced punishment for whoever uses
or carries a "handgun" loaded with "armor piercing ammunition"
during or in relation to "the commission of a crime of violence .
. . for which he may be prosecuted in a court of the United
States." P.L. 98-473, 1006, 98 Stat. 2139. In 1986, in the Firearms
Owners' Protection Act, P.L. 99-308, sections 104(a)(2) & 108, 99th
Cong., 2d Sess., 100 Stat. 449, 456-57, 460, sections 924(c) and
929(a) were amended to add to "crime of violence" any "drug
trafficking crime" as occasions on which use of a firearm was
prohibited; nevertheless, the offense still had to be one (as it
does today) "for which he may be prosecuted in a court of the
United States" (sections 924(c)(1); 929(a)(1)). Also, "drug
trafficking crime" was (and is) defined so as to limit it to
federal felonies (sections 924(c)(2); 929(a)(2)); and "crime of
violence" was (and is) defined, but its definition did not itself
require a federal element (section 924(c)(3)).
[26] This portion of the BATF assessment reads in full:
"2. Sales to Prohibited Persons. This bill makes it
unlawful for any person, not only licensees, to sell or
otherwise dispose of firearms to certain prohibited categories
of persons, e.g., a convicted felon. Under existing law it is
only unlawful for a licensee to sell or otherwise dispose of
firearms knowing or having reasonable cause to believe that
such a person is in a prohibited category. This proposal would
close an existing loophole whereby qualified purchasers have
acquired firearms from licensees on behalf of prohibited
persons." Id.
[27] The full text of P.L. 99-308 1, 100 Stat. 449, is as
follows:
"(a) Short Title. This Act may be cited as the 'Firearms
Owners' Protection Act'.
(b) Congressional Findings. The Congress finds that (1) the
rights of citizens
(A) to keep and bear arms under the second amendment to the
United States Constitution;
(B) to security against illegal and unreasonable searches
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 28 of 36
and seizures under the fourth amendment;
(C) against uncompensated taking of property, double
jeopardy, and assurance of due process of law under the fifth
amendment; and (D) against unconstitutional exercise of
authority under the ninth and tenth amendments;
require additional legislation to correct existing firearms
statutes and enforcement policies; and
(2) additional legislation is required to reaffirm the
intent of the Congress, as expressed in section 101 of the Gun
Control Act of 1968, that 'it is not the purpose of this title
to place any undue or unnecessary Federal restrictions or
burdens on law-abiding citizens with respect to the
acquisition, possession, or use of firearms appropriate to the
purpose of hunting, trap-shooting, target shooting, personal
protection, or any other lawful activity, and that this title
is not intended to discourage or eliminate the private
ownership or use of firearms by law- abiding citizens for
lawful purposes'."
[28] As previously observed, these amendments repealed former 18
U.S.C. section 1202 and incorporated the provisions of former
section 1202 into sections 922(g) and (n). Prior to the amendment,
sections 922(g) and (h) had not applied to possession as such, but
had included those under felony indictment, while section 1202(a)
included possession "in commerce or affecting commerce" but did not
include those under felony indictment.
[29] The grandfather clause in section 922(o)(2)(B) applies only
to machine guns "lawfully" possessed before enactment;
nevertheless, with respect to those possessed earlier but
unlawfully there would be a jurisdictional nexus in the federal law
making that earlier possession unlawful, such as the National
Firearms Act or various provisions of chapter 44 of Title 18.
[30] Farmer did not address the validity of section 922(o).
[31] Hale also states: "When it first enacted section 922,
Congress found facts indicating a nexus between the regulation of
firearms and the commerce power. See Omnibus Crime Control and Safe
Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 225 (1968)."
Id. 978 F.2d at 1018. The citation given is to the findings in
section 901(a) of P.L. 90-351, in connection with Title IV thereof.
As previously discussed, those findings (set out in note 17 and
accompanying text, supra), and that enactment, with one exception,
do no more than speak to the need to regulate both interstate (and
foreign) commerce in firearms and federally licensed dealers; the
one exception is the finding that for this purpose it is necessary
to require intrastate, as well as interstate, dealers to be
federally licensed. There is nothing to suggest any finding that
mere private party intrastate possession of firearms that have not
moved in interstate commerce has any effect on interstate commerce
or must be regulated in order to effectively regulate interstate
commerce. In Evans the court stated:
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 29 of 36
"Congress specifically found that at least 750,000 people
had been killed in the United States by firearms between the
turn of the century and the time of the Act's enactment. It
was thus reasonable for Congress to conclude that the
possession of firearms affects the national economy, if only
through the insurance industry. Since Evans does not contend
that any specific Constitutional rights are implicated, this
rather tenuous nexus between the activity regulated and
interstate commerce is sufficient." Id. 928 F.2d at 862.
The Congressional finding alluded to is not contained in the
Firearms Owners' Protection Act, and the only similar finding we
can locate is that contained in H.Rep. No. 1577 in reference to
H.R. 17735, which became the Gun Control Act of 1968. See H.Rep.
No. 1577, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 4410
at 4411-15. We have quoted this language in the text, supra, in our
discussion of that legislation. Nothing in this committee report
mentions insurance or suggests that mere intrastate possession of
firearms that have not moved in interstate commerce has any affect
on interstate commerce or must be regulated in order to effectively
regulate interstate commerce. The committee states that "the
proposed legislation imposes much needed restrictions on interstate
firearms traffic," id. at 4415 (emphasis added), and that there is
"a need to strengthen Federal regulation of interstate firearms
traffic." Id. at 4412 (emphasis added). This is consistent with
what the legislation did, and it did not (apart from continuing the
requirement of the Omnibus Crime Control and Safe Streets Act that
intrastate, as well as interstate, dealers be federally licensed)
purport to regulate mere private party possession of firearms that
had not moved in interstate commerce.
[32] Moreover, section 922(p) applies only to nondetectable
firearms manufactured in or imported into the United States after
its November 10, 1988, enactment, which is suggestive of a closer
relation to commerce than mere possession of any firearm whenever
and wherever made. Section 922(p)(6). The cited committee report
also observes that "No firearms currently manufactured in the
United States are known to be subject to the proposed
prohibitions." Id. 1988 U.S.C.C.A.N. 5359 at 5363.
[33] P.L. 100-690, 6212, 102 Stat. 4360.
[34] The 1988 U.S.C.C.A.N. states respecting the Anti-Drug Abuse
Act of 1988 that "No Senate or House Report was submitted with this
legislation." Id. at 5937. New section 924(g) was applied in a
"crime of violence" context in United States v. Callaway, 938 F.2d
907 (8th Cir. 1991), which observes that it "was designed to curb
the supply of firearms used in the commission of drug related and
violent crimes," but cites no legislative history. Id. at 909.
Callaway does not address the validity of section 924(g), its
relationship to the regulation of interstate commerce, or any
express or implied Congressional findings related thereto, nor
whether the offense there had an interstate or other jurisdictional
nexus (though the facts recited suggest none).
[35] Nor to section 929(a)(1) denouncing possession of armor
piercing ammunition during or in relation to "a crime of violence
or drug trafficking crime . . . for which he may be prosecuted in
a court of the United States."
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 30 of 36
[36] We also observe that the other additions to chapter 44 of
Title 18 made by subtitle G of Title VI of the Anti-Drug Abuse Act
of 1988 expressly provided for an interstate commerce or other
federal nexus. Thus, new section 924(f), P.L. 100-960, 6211, 102
Stat. 4359, denounces whoever "travels from any State or foreign
country into any other State" and acquires or transfers "a firearm
in such other State" with the purpose of engaging in conduct
constituting any of various offenses including "a crime of violence
(as defined in subsection (c)(3))." New section 930, P.L. 100-960,
6215, 102 Stat. 4361, denounces "whoever knowingly possesses or
causes to be present a firearm or other dangerous weapon in a
Federal facility."
[37] Section 1702 also added to section 921(a) new subsections
(25), (26), and (27) defining terms used in new section 922(q)
("school zone," "school," and "motor vehicle") and added to section
924(a) new subsection (4) fixing the penalty for violation of new
section 922(q).
[38] Public Law 101-647 2201 amended section 922(a)(5), which
formerly proscribed (with exceptions) transfer of a firearm by a
nonlicensee to a nonlicensee who "resides in any state other than
that in which the transferor resides" (or that in which the place
of business of the transferor, if a business entity, is located) so
that it proscribed (with the same exceptions) such a transfer if
the nonlicensee transferee "does not reside in (or if the person is
a corporation or other business entity, does not maintain a place
of business in) the State in which the transferor resides." The
purpose of this was apparently to include among disqualified
transferees "an alien or transient who does not reside in the State
in which the transferor resides." H.Rep. No. 101-681(I), 101st
Cong., 2d Sess., at 106, reprinted in 1990 U.S.C.C.A.N. 6472 at
6510. It also appears to have the effect of clarifying section
922(a)(5) by removing its otherwise arguable prohibition of
transfer to a nonlicensee business entity having a place of
business in the transferor's state of residence but existing under
the laws of and having its principal place of business in a
different state. Also, Public Law 101-647 2202(a) amended section
922(j), which prohibited any person from receiving, concealing,
disposing of, pledging, or accepting as security any stolen firearm
"moving as, which is a part of, or which constitutes, interstate or
foreign commerce," by expanding it to also cover any stolen firearm
"which has been shipped or transported in, interstate or foreign
commerce." H.Rep. No. 101-681(i), supra, explains that the
amendment will "permit prosecution . . . where the firearms have
already moved in interstate or foreign commerce." Id. at 106, 1990
U.S.C.C.A.N. at 6510. Further, Public Law 101-647 section 2202(b)
amended section 922(k), which made it unlawful "to transport, ship
or receive, in interstate or foreign commerce" any firearm whose
serial number had been removed, altered, or obliterated, by
expanding it to also make it unlawful "to possess or receive" any
such firearm that "has, at any time, been shipped or transported in
interstate or foreign commerce." And, Section 2204 of P.L. 101-647
added section 922(r) making it "unlawful for any person to assemble
from imported parts" any rifle or shotgun "identical" to any
"prohibited from importation under section 925(d)(3)." House Report
101-68(I), supra, reflects that this amendment "is to prevent the
circumvention of the importation restrictions by persons who would
simply import the firearms in a disassembled form and then
reassemble them in the United States." Id. at 107, 1990
U.S.C.C.A.N. at 6511.
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 31 of 36
[39] Rep. William Hughes, the Chairman of the Subcommittee on
Crime of the House Judiciary Committee, made the same point in a
colloquy with Richard Cook, the Chief of the BATF's Firearms
Division, during the hearings on H.R. 3757:
"Mr. Hughes. This would be a major change, would it not, in
Federal jurisdiction, in that basically, we've played a
supportive role in endorsement of gun laws throughout the
country, supportive of local and State efforts to attempt to
license and, as a matter of fact, to restrict and punish. This
would, it seems to me, put us in the position of, for the
first time, playing a direct role in the enforcement of a
particular Federal law- a gun law- at the local level, the
school district level.
Mr. Cook. ATF has always been involved with supporting
State and local people in their prosecutions.
Mr. Hughes. I say that's been our role-as supportive. Does
this give us the original jurisdiction?
Mr. Cook. In this particular instance, this legislation
would give us original Federal jurisdiction, which would -
Mr. Hughes: That would be a major departure from basically
what has been the practice of the past.
Mr. Cook. As far as schools as concerned, yes, it is.
Mr. Hughes. A major departure from a traditional federalism
concept which basically defers to State and local units of
government to enforce their laws.
Mr. Cook. Yes." House Hearings, supra, at 14.
[40] See also Heart of Atlanta Motel, Inc. v. United States, 85
S.Ct. 348 (1964), where the Court noted that the "discriminatory
practices" the regulation of which it sustained were "now found
substantially to affect interstate commerce," id. at 355 (emphasis
added), and that under the Commerce Clause Congress' regulatory
powers extend to "local activities . . . which might have a
substantial and harmful effect upon" interstate "commerce." Id. at
358 (emphasis added).
[41] Perez does contain the statement that: "We have mentioned
in detail the economic, financial, and social setting of the
problem as revealed to Congress. We do so not to infer that
Congress need make particularized findings in order to legislate."
Id. at 1362. No citation of authority is given, nor is the meaning
of the second sentence entirely clear. However, the opinion as a
whole shows extensive consideration of and reliance on not only the
evidence before Congress and the legislative history, but also the
formal Congressional findings, which the Court had already observed
were "quite adequate" to sustain the act. Id.
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 32 of 36
[42] Similarly, in Heart of Atlanta Motel, Inc. v. United
States, 85 S.Ct. 348 (1964), the Court upheld the same act "as
applied here to a motel which concededly serves interstate
travelers." Id. at 360. The Court noted that the act, by its
express terms, applied to an establishment "if its operations
affect commerce," which was defined to include "any inn, hotel,
motel, or other establishment which provides lodging to transient
guests." Id. at 352-53. It observed that statute was "carefully
limited to enterprises having a direct and substantial relation to
the interstate flow of goods and people, except where state action
is involved." Id. at 355. In sustaining the act as applied the
Court stated:
"While the Act as adopted carried no congressional findings
the record of its passage through each house is replete with
evidence of the burdens that discrimination by race or color
places upon interstate commerce. See Hearings before Senate
Committee on Commerce on S. 1732, 88th Cong., 1st Sess.;
S.Rep. No. 872, supra; Hearings before Senate Committee on the
Judiciary on S. 1731, 88th Cong., 1st Sess.; Hearings before
House Subcommittee No. 5 of the Committee on the Judiciary on
miscellaneous proposals regarding Civil Rights, 88th Cong.,
1st Sess., ser. 4; H.R.Rep. No. 914, supra. . . . We shall not
burden this opinion with further details since the voluminous
testimony presents overwhelming evidence that discrimination
by hotels and motels impedes interstate travel" Id. at 355.
[43] We know of no Supreme Court decision in the last half
century that has set aside such a finding as without rational
basis. However, the Court has never renounced responsibility to
invalidate legislation as beyond the scope of the Commerce Clause.
See, e.g., Maryland v. Wirtz, 88 S.Ct. 2017, 2025 (1968) ("This
Court has examined and will continue to examine federal statutes to
determine whether there is a rational basis for regarding them as
regulations of commerce among the states."). Nor may we renounce
that duty.
[44] Conceivably, a purely informational void could be filled by
evidence in court of the same general kind that might have been
presented to a Congressional committee or the like concerning any
relationship between the legislation and interstate commerce.
However, in such a situation the court could only guess at what
Congress' determination would have been. In any event, there is no
such evidence here.
[45] We recognize that "the constitutionality of action taken by
Congress does not depend on recitals of the power which it
undertakes to exercise." Woods v. Cloyd W. Miller Co., 68 S.Ct.
421, 424 (1948). But in that case, the Court went on immediately to
say: "Here it is plain from the legislative history that Congress
was invoking its war power to cope with a current condition of
which the war was a direct and immediate cause." Id. (footnote
omitted). See also id. at 423 ("The legislative history of the
present Act makes absolutely clear that there has not yet been
eliminated the deficit in housing which in considerable measure was
caused by the heavy demobilization of veterans and by the cessation
or reduction in residential construction during the period of
hostilities due to the allocation of building materials to military
projects"; footnote omitted). The Court proceeded to sustain the
legislation under the war power. Here, by contrast, the legislative
history does not show that Congress, in enacting the Gun-Free
School Zones Act, was invoking the Commerce Clause.
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 33 of 36
[46] It is also conceivable that some applications of section
922(q) might raise Second Amendment concerns. Lopez does not raise
the Second Amendment and thus we do not now consider it.
Nevertheless, this orphan of the Bill of Rights may be something of
a brooding omnipresence here. For an argument that the Second
Amendment should be taken seriously, see Levinson, The Embarrassing
Second Amendment, 99 Yale L.J. 637 (1989).
[47] As we have observed (note 42, supra), in Heart of Atlanta
Motel, Inc. v. United States, 85 S.Ct. 348 (1964), the Court upheld
section 201(b)(1) & (c) of Title II of the Civil Rights Act of
1964, respecting hotels, motels, and inns, as a proper exercise of
the commerce power, relying on the wording of the statute and its
legislative history. The Court distinguished the Civil Rights
Cases, 3 S.Ct. 18 (1883), which had stricken down the Civil Rights
Act of 1875. The Heart of Atlanta opinion observes that the opinion
in Civil Rights Cases "specifically . . . note[d] that the Act was
not conceived in terms of the commerce power." Heart of Atlanta, 85
S.Ct. at 354. The Heart of Atlanta opinion also in this connection
contrasts the 1875 and 1964 acts:
"Unlike Title II of the present legislation, the 1875 Act
broadly proscribed discrimination in 'inns, public conveyances on
land or water, theaters, and other places of public amusement,'
without limiting the categories of affected businesses to those
impinging upon interstate commerce. In contrast, the applicability
of Title II is carefully limited to enterprises having a direct and
substantial relation to the interstate flow of goods and people,
except where state action is involved." Id. at 354.
The suggestion is that it is questionable whether an act which
has neither an express or facial commerce nexus nor legislative
history demonstrating such a nexus may be sustained as an exercise
of the commerce power.
[48] The Court then quoted extensively from Will v. Michigan
Dep't of State Police, 109 S.Ct. 2304 (1989). The Will Court had
stated:
"[I]f Congress intends to alter the 'usual constitutional
balance between the States and the Federal Government,' it
must make its intention to do so 'unmistakably clear in the
language of the statute.' Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d
171 (1985); . . . Atascadero was an Eleventh Amendment case,
but a similar approach is applied in other contexts. Congress
should make its intention 'clear and manifest' if it intends
to pre-empt the historic powers of the States, Rice v. Santa
Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91
L.Ed.2d 1447 (1947), or if it intends to impose a condition on
the grant of federal moneys, Pennhurst State School and
Hospital v. Halderman, 451 U.S. 1, 16, 101 S.Ct. 1531, 1539,
67 L.Ed.2d 694 (1981); South Dakota v. Dole, 483 U.S. 203,
207, 107 S.Ct. 2793, 2795, 97 L.Ed.2d 171 (1987). 'In
traditionally sensitive areas, such as legislation affecting
the federal balance, the requirement of clear statement
assures that the legislature has in fact faced, and intended
to bring into issue, the critical matters involved in the
judicial decision.' United States v. Bass, 404 U.S. 336, 349,
92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971)." Id. at 2308-09.
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 34 of 36
[49] Thus, we are not faced with a situation such as that
addressed by Justice Powell in his concurrence in Fullilove v.
Klutznick, 100 S.Ct. 2758 (1980). See id. at 2787 (Powell, J.,
concurring) ("After Congress has legislated repeatedly in an area
of national concern, its Members gain experience that may reduce
the need for fresh hearings or prolonged debate when Congress again
considers action in that area."). See also City of Richmond v. J.A.
Croson Co., 109 S.Ct. 706.
[50] We reject two related arguments by the government in this
connection. First it urges that section 922(q) "is not
fundamentally different from the 'schoolyard statute,' 21 U.S.C.
860, which provides greater punishment for drug offenses occurring
within 1000 feet of a school." However, this statement ignores the
fundamental difference that all drug trafficking, intrastate as
well as interstate, has been held properly subject to federal
regulation on the basis of detailed Congressional findings that
such was necessary to regulate interstate trafficking. See United
States v. Lopez, 459 F.2d 949, 951-53 (5th Cir.), cert. denied sub
nom. Llerena v. United States, 93 S.Ct. 130 (1972). Thus, section
860 is not a regulation of schools but of drugs, and its
jurisdictional foundation is the now unchallenged federal authority
over intrastate as well as interstate narcotics trafficking. See
cases cited in note 10, supra.
Second, the government urged the district court that "[t]he
federal government has provided thousands and thousands of dollars
in federal educational grant moneys to the San Antonio Independent
School District . . . . The federal government is entitled to
protect its investment in education . . . ." We reject this
contention. Although Congress may attach conditions to the receipt
of federal funds, it must do so unambiguously. See South Dakota v.
Dole, 107 S.Ct. 2793, 2796 (1987); Pennhurst State School &
Hospital v. Halderman, 101 S.Ct. 1531, 1540 (1981). We cannot view
section 922(q) as a condition meant to "protect the federal
investment in schools," as the government puts it, because Congress
has in no way tied section 922(q) to federal funding. Section
922(q), which expressly extends to "private" and "parochial" as
well as "public" schools, does not even mention federal funding,
and applies whether or not such funding is received.
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 35 of 36
[51] The government also urges that we have sustained the
prohibition of all simple narcotics possession. See United States
v. Lopez, 461 F.2d 499 (5th Cir. 1972) (per curiam). However, there
we relied on our decision in the earlier, different Lopez case, 459
F.2d 949, where we in turn relied on Congressional findings that
such was necessary to effectively regulate the interstate
trafficking in narcotics. The possession proscription was a
necessary means to regulate the interstate commercial trafficking
in narcotics. There is nothing analogous in the present case.
Section 922(q) is not related (either in terms or by legislative
findings or history) to the regulation of interstate trafficking in
firearms or to any scheme for such purpose, and there has been no
general outlawing of the possession of ordinary firearms by
ordinary citizens. Moreover, firearms do not have the fungible and
untraceable characteristics of narcotics.
[52] No other basis for section 922(q) has been suggested.
[53] Cf. Heart of Atlanta, 85 S.Ct. at 360 ("We, therefore,
conclude that the action of the Congress in the adoption of the Act
as applied here to a motel which concededly serves interstate
travelers is within the power granted it by the Commerce Clause of
the Constitution.") (emphasis added). However, the "as applied"
issue has not been briefed or argued with respect to section 922(q)
and, as noted, we expressly do not resolve it.
[54] Because we reverse Lopez's conviction, we do not reach the
challenge he raises to his sentence.
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993): Page 36 of 36
# # #
Return to Table of Contents for
U.S. v. Lopez