How a Texas student's gun at school produced the Court's Commerce Clause limit

Here is how the federal government once argued, before the Supreme Court of the United States, that a high school senior with a revolver was engaged in interstate commerce: guns in schools make students afraid, afraid students learn less, less learning means a less productive workforce, and a less productive workforce hurts the national economy. Therefore, a boy walking into a San Antonio classroom with a .38 was, in a manner of speaking, a threat to the gross domestic product.

You may think that is a parody. It is a fair summary of the government's brief. The Court, to its credit, did not laugh, but it did say no, and that "no" is one of the most important constitutional rulings of the last half-century. United States v. Lopez is a gun case on the surface and a case about the shape of the Constitution underneath. Anyone who cares about federalism, about enumerated powers, or about why Washington can't simply legislate on everything, should know it.

What happened to Alfonso Lopez Jr.?

In March 1992, Alfonso Lopez Jr., a twelfth-grader at Edison High School in San Antonio, Texas, came to school carrying a concealed .38-caliber handgun and five bullets. School officials, acting on an anonymous tip, confronted him. According to the opinion, he admitted that he was carrying the weapon.

Texas authorities charged him under state law with firearm possession on school premises. The next day, those charges were dismissed after federal agents charged him instead, under the Gun-Free School Zones Act of 1990. That statute made it a federal crime for any individual knowingly to possess a firearm at a place that the individual knew, or had reasonable cause to believe, was a school zone. Lopez was convicted in federal district court and sentenced to six months in prison and two years of supervised release. The Fifth Circuit Court of Appeals reversed the conviction, holding that the statute exceeded Congress's authority. The Supreme Court took the case.

The state had already prohibited the same conduct. That matters. Nobody in the case argued that school gun possession should be legal. The question was who gets to punish it.

What does the Commerce Clause say?

The power that Congress claimed is in Article I, Section 8, Clause 3. Congress has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." That is the whole clause. Three kinds of commerce, three words of power: regulate, commerce, among.

The Founders added the power because under the Articles of Confederation, states had taxed and obstructed each other's trade, and the nation needed a single market. James Madison, in Federalist No. 45, described the design of the new government in these terms: "The powers delegated by the proposed Constitution to the federal government are few and defined," and the powers left to the states, he went on, are numerous and indefinite. The Commerce Clause was one of the few and defined powers. It was meant to keep the roads between states open, not to hand Congress a general police power over local life.

How the clause got stretched

For the first 150 years or so, the Court read the power with some care. Then came the New Deal. After 1937, in cases such as NLRB v. Jones & Laughlin Steel, the Court accepted that Congress could reach activities that "affect" interstate commerce. In Wickard v. Filburn (1942), the Court upheld a penalty on a farmer who grew wheat on his own farm, for his own use, because if many farmers did the same the total effect on the national wheat market would be substantial. Lopez itself called Wickard perhaps the most far reaching example of Commerce Clause authority over intrastate activity.

After that, for decades, the Court treated the commerce power as nearly unbounded. Lopez is commonly described as the first case since the New Deal era in which the Court held that Congress had exceeded the commerce power. The legal profession assumed that this was how the clause worked now. The question that Lopez put was whether there was any limit left.

The decision

The Court decided Lopez on April 26, 1995, by a vote of five to four. Chief Justice William Rehnquist wrote the opinion of the Court. He held that the Gun-Free School Zones Act exceeded Congress's commerce power.

Rehnquist began with the three categories into which the Court's cases fall. Congress may regulate:

1. The channels of interstate commerce, such as highways, waterways and air lanes.
2. The instrumentalities of interstate commerce, and persons or things in interstate commerce, even if the threat comes from only intrastate activity.
3. Activities that substantially affect interstate commerce.

The statute plainly was not about the first two. The question was whether the possession of a gun in a school zone fell into the third. Rehnquist said it did not. He called the statute a criminal law that by its terms has nothing to do with "commerce" or any sort of economic enterprise, and wrote that possession of a gun in a local school zone is "in no sense an economic activity" that might, through repetition elsewhere, substantially affect interstate commerce. Further, the statute contained no requirement that the possession have anything to do with interstate commerce, no "jurisdictional element" that would ensure, case by case, that the gun had moved in commerce or that the possession affected it.

The government's chain of inference

The government had offered the reasoning I described at the start. Possession of guns in schools leads to violent crime. Violent crime imposes costs that are spread through the population by insurance. It reduces the willingness of people to travel to areas that are perceived to be unsafe. And guns in schools threaten the educational process, which results in a less productive citizenry.

Rehnquist's answer was that this reasoning proved too much. If Congress could regulate anything that, through a chain of causes, bore on the national economy, then it could regulate crime, education, marriage, family law and anything else, because all of them bear on productivity. The Court said that to uphold the Government's contentions it would have to pile inference upon inference, and that doing so would convert congressional authority under the Commerce Clause into a general police power of the sort retained by the States. The Court's point was that if everything is commerce, the enumeration of powers means little.

Kennedy and Thomas

Justice Anthony Kennedy, joined by Justice Sandra Day O'Connor, wrote a concurrence that stressed the importance of federalism and the dangers of blurring the line between national and local authority. The states, he said, are the proper place for laws on matters like this, and a clear line protects accountability: citizens should know which government to blame.

Justice Clarence Thomas wrote a separate concurrence that went further. He argued that the Court's "substantial effects" test had strayed from the original meaning of the clause. In the founding era, he wrote, "commerce" meant trade, the buying, selling and exchange of goods, as distinct from manufacturing or agriculture. The substantial-effects doctrine allowed Congress to reach things the Founders never intended to place within its power, and Thomas said the Court should be willing, in a future case, to reconsider it. That position is a minority view in the case law. But it is the textual argument at its sharpest, and a reader who has gone through the founding material in Few and Defined, the Promise About Federal Power in Madison's Federalist 45 will recognize it.

The dissents

Four Justices disagreed. Justice Stephen Breyer wrote the principal dissent, joined by Justices Stevens, Souter and Ginsburg. Breyer's point was that the Court's own precedent allowed Congress to regulate activities that, taken together, significantly affect commerce, and that Congress could reasonably have concluded that violent crime in and around schools harmed education, and that harm to education harmed the national economy. The question for a court, he said, was whether Congress had a rational basis for the finding. And he thought it did.

Justice Stevens and Justice Souter wrote separate dissents of their own. Souter in particular warned about returning to a pre-1937 approach that tried to draw lines between commerce and local matters and that the Court had given up as unworkable.

Let me state the dissent fairly, since that is that discipline. Their best case is this: the economy of the late twentieth century is integrated, schools produce the workers of the economy, and it is not absurd to say that a safe school is an economic asset. Congress, a political body that responds to voters, is better placed than courts to judge these connections. If the voters dislike a federal law, they can elect a different Congress. A court should hesitate before substituting its judgment of economic causation for Congress's.

The answer

Here is why that does not hold.

1. The argument has no stopping point. If the link from school violence to productivity is enough, the link from family breakdown, bad diet or poor reading skills is enough too. Breyer himself tried to respond by saying that the Court could draw a line around education, but he did not explain how a line drawn on rational-basis review would hold.
2. The Constitution lists powers for a reason. If a "rational" economic link were all it took, the enumeration in Article I would be decoration. The Tenth Amendment says that "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." That text assumes that some subjects lie outside federal power. A theory under which none do reads the amendment out of the Constitution.
3. The "let the voters decide" answer ignores the point of enumerated powers. The structure protects liberty because it limits what Congress may do at all, not merely because voters can later complain. As Federalism Lets Fifty States Experiment, and the Constitution Planned It explains, the design lets fifty states try different approaches to local problems.
4. Texas had already acted. The state prohibited the conduct. A federal duplicate was not needed to fill a gap, and it removed the case from the accountable local authorities who knew the facts.

What followed

Congress responded promptly. In 1996 it rewrote the Gun-Free School Zones Act. The new version prohibits knowingly possessing a firearm "that has moved in or that otherwise affects interstate or foreign commerce" at a place the individual knows, or has reasonable cause to believe, is a school zone. That is the jurisdictional element that Lopez said was missing. Some federal appeals courts, among them the Eighth Circuit in United States v. Danks, have considered the amended statute, and challengers there argued that adding a commerce nexus does not cure the defect. Critics point out that this is a drafting fix more than a constitutional restoration, since nearly every firearm has moved in commerce at some point. They have a point, and you should check the current case law before relying on the amended text.

Lopez also opened a short line of cases. In United States v. Morrison (2000), the Court struck down the civil-remedy provision of the Violence Against Women Act on similar reasoning, again stressing that the conduct was not economic. But in Gonzales v. Raich (2005), the Court upheld the application of federal drug law to homegrown marijuana, relying on Wickard, and the limit announced in Lopez seemed to narrow. Anyone reading the case law should therefore keep two things in mind: Lopez was real, and it was not a revolution. It drew a line, and the Court has since been cautious about how much to draw on it. The fuller story of the case, with a focus on the Court, appears in United States v. Lopez Was the First Commerce Clause Limit Since the New Deal.

Why this belongs in a guns blog

A reader might ask what a Commerce Clause case is doing in a series on firearms. The answer is that the federal gun laws of the last century are built on the commerce power. The National Firearms Act of 1934 was a tax measure; the Gun Control Act of 1968 and the Brady Act of 1993 relied in various ways on federal authority over interstate commerce and the federal spending power. Understanding the limit in Lopez helps explain why federal gun law has the structure it has, and why a complete list of federal rules, such as ninety years of federal gun law in the dates that changed the rules, is a list of statutes that were written around the Court's view of the commerce power. The same federalism principle shows up in a different form in Printz v. United States and the sheriffs who refused to be drafted by Washington.

There is also a point about conservatives and consistency that is worth making. Lopez was a case where a conservative Court limited federal power over a gun-control statute. Gun-rights advocates sometimes forget that the principle cuts in more than one direction: the same enumerated-powers logic that limits Congress when it bans guns near schools also limits Congress when it wants to regulate something else we like. A limit that applies only when it is convenient is not a limit. And, yes, it is a mildly awkward thing to say that Congress lacked the power to ban guns in schools. Be awkward. The Constitution does not promise that every good idea belongs to Washington.

The case in brief

1. The Gun-Free School Zones Act of 1990 made it a federal crime to possess a gun in a school zone, and Alfonso Lopez Jr. was convicted under it after Texas dropped its own charge.
2. In United States v. Lopez (1995), the Court held five to four that the statute exceeded Congress's power under the Commerce Clause, because the possession was not economic activity and the statute had no jurisdictional element.
3. Rehnquist's three categories, channels, instrumentalities and substantial effects, remain the framework, and his warning against piling inference upon inference protects the distinction between national and local power.
4. The dissenters offered a serious rational-basis argument, but it has no stopping point and reads the Tenth Amendment out of the Constitution.
5. Congress added an interstate-commerce element in 1996, and later cases, Morrison and Raich, show that the limit is real but narrow.

What you can do: read Article I, Section 8 and the Tenth Amendment on the Constitution page, and ask your member of Congress which clause of Article I authorizes the next bill he or she votes for.