From ca-firearms-owner Tue Apr 19 10:42:01 1994 Received: (chan@localhost) by jobe.shell.portal.com (8.6.7/8.6.5) id KAA11474 for ca-firearms-outgoing; Tue, 19 Apr 1994 10:41:51 -0700 Received: from nova.unix.portal.com (nova.unix.portal.com [156.151.254.3]) by jobe.shell.portal.com (8.6.7/8.6.5) with ESMTP id KAA11463 for ; Tue, 19 Apr 1994 10:41:49 -0700 Received: from hubbub.cisco.com (hubbub.cisco.com [198.92.30.32]) by nova.unix.portal.com (8.6.7/8.6.5) with ESMTP id KAA26543 for ; Tue, 19 Apr 1994 10:41:47 -0700 Received: from feta.cisco.com (feta.cisco.com [192.31.7.22]) by hubbub.cisco.com (8.6.8+c/CISCO.GATE.1.1) with SMTP id KAA20624; Tue, 19 Apr 1994 10:40:05 -0700 Message-Id: <199404191740.KAA20624@hubbub.cisco.com> To: ca-firearms@shell.portal.com, fap@dixie.com Subject: The Lopez decision Date: Tue, 19 Apr 94 10:40:05 PDT From: "David S.A. Stine" Sender: ca-firearms-owner@shell.portal.com Precedence: bulk Status: RO As Ron Phillips posted this AM, the SC is examining the Lopez decision on the "gun-free schools zone" law and how the 5th circuit decided that the "safe schools act" was not constitutional because it exceeded the reach of Congress to regulate this area. Here is a more detailed message I dug out from some time past on the Lopez decision. dsa =========================================================================== BBS: Paul Revere Network/Central Date: 10-01-93 (00:00) From: STEVEN SPRINGER To: ALL Subj: US v Lopez - short version Conf: (1) PR_NETWORK --------------------------------------------------------------------------- The citizens of the United States received a major victory on September 23, 1993 when the United States Court of Appeals for the Fifth Circuit issued an opinion in the case of U.S.A. vs Lopez, Jr. Alfonso Lopez, Jr. was a twelfth-grade student attending Edison High School in San Antonio, Texas. On March 19, 1992, he carried a .38 caliber handgun to school. School officials confronted Lopez after receiving an anonymous tip and Lopez admitted that he was carrying the gun to school so that he could deliver the gun to another person who planned to use the gun in a gang war. Initially, a state charge of carrying a weapon in a prohibited place (State Penal code 46.04) was filed against Lopez. This violation is a third degree felony. But this charge was dropped in order to pursue a federal charge of violating 18 U.S.C. @ 922(q), which makes it illegal to possess a firearm within 1000 feet of a school. Lopez moved to dismiss the indictment on the grounds that section 922(q) is unconstitutional, as it is beyond the power of Congress to legislate control over public schools. He 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 and affecting commerce, and the 'business' of elementary, middle and high schools... affects interstate commerce." Lopez was found guilty and sentenced to six months' imprisonment and two years' supervised probation. Lopez's case was decided by Judges Reavley, King and Garwood of the Fifth Circuit Court of Appeals in New Orleans. Judge Garwood wrote the opinion. In part it reads: " 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 aspect 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." This case addresses the the area between the Tenth Amendment of the Constitution which reads "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." and Article I, Section 8, clause 3 which reads, "To regulate commerce with foreign Nations,and among the several States, and with the Indian Tribes". Judge Garwood wrote in his opinion, "...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." "...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." "...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." Even former President George Bush had reservations about the language in section 922(q) when he signed the Crime Control Act of 1990. His comments were: "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." Judge Garwood concludes his opinion by stating: "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. 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. ... 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." This conclusion seems to have far reaching implications. This decision seems to reiterate that the law making capability of Congress is restricted to those items outlined in Article I and further if Congress passes legislation that is normally covered by the Tenth amendment, they must clearly justify their legislation by referencing this legislation with their powers in Article I. (eof) From ca-firearms-owner Tue Apr 19 08:11:19 1994 Received: (chan@localhost) by jobe.shell.portal.com (8.6.7/8.6.5) id IAA00659 for ca-firearms-outgoing; Tue, 19 Apr 1994 08:11:12 -0700 Received: from nova.unix.portal.com (nova.unix.portal.com [156.151.254.3]) by jobe.shell.portal.com (8.6.7/8.6.5) with ESMTP id IAA00653 for ; Tue, 19 Apr 1994 08:11:10 -0700 Received: from hound.edaca.ingr.com (hound.dazixca.ingr.com [129.135.106.43]) by nova.unix.portal.com (8.6.7/8.6.5) with SMTP id IAA12925 for ; Tue, 19 Apr 1994 08:11:07 -0700 Received: by hound.edaca.ingr.com (4.1/SMI-4.1) id AA02341; Tue, 19 Apr 94 08:09:11 PDT From: crphilli@hound.edaca.ingr.com (Ron Phillips) Message-Id: <9404191509.AA02341@hound.edaca.ingr.com> Subject: SC to rule on school gun bans To: ca-firearms@shell.portal.com (California Firearms), fap@dixie.com (Firearms Politics) Date: Tue, 19 Apr 94 8:09:10 PDT X-Mailer: ELM [version 06.00.01.12 (2.3 PL11)] Sender: ca-firearms-owner@shell.portal.com Precedence: bulk Status: RO >From the Tuesday, April 19, 1994 edition of the San Jose Mercury News (Page 8A). ====================================================================== High court to rule on school gun bans. Ruling in favor of scrapping law could limit Congress' authority over crime. (Los Angeles Times) WASHINGTON -- With Congress' power in the war on crime hanging in the balance, the Supreme Court said Monday that it will decide whether the federal government can make it a crime to carry a gun within 1,000 feet of a school. The case of a San Antonio, Texas, teen-ager who was arrested and convicted of violating federal law after carrying a .38-caliber handgun to school in 1992 raises a potentially far-reaching issue of federal authority to combat crime. These days, Congress often is assumed to have the power to get involved in any national problem, including crime, on the theory that it is related to interstate commerce. But last year, the federal appeals court based in New Orleans struck down the Gun-Free School Zones Act of 1990 on the grounds that Congress did not have the constitutional authority to regulate the "mere possession of a firearm" at school. Under the Constitution, Congress can "regulate commerce ... among the several states," but carrying a gun to school does not involve interstate commerce, the appeals court said. This decision in the case of U.S. vs. Lopez, No. 93-1260, if allowed to stand, not only would scrap the 1990 gun law but also would put a major crimp in Congress' power. Since the New Deal era of the 1930's, the Supreme Court has allowed Congress to regulate virtually every aspect of American life because it is said to be affected by interstate commerce. But some conservative legal scholars and judges dispute whether Congress indeed has the constitutional power to regulate matters that are inherently local. The pending anti-crime bill on Capitol Hill includes provisions such as "three strikes, you're out" or the Violence Against Women Act, which would transform state offenses into federal crimes. These days, members of Congress often say that if it is a national problem, they have the authority to intervene. But in the guns-in-school case, the 5th U.S. Circuit Court of Appeals looked to the Constitution and its more constricted view of Congress' authority. "The U.S. Constitution establishes a national government of limited and enumerated powers," wrote Judge Will Garwood of Austin, Texas. To regulate a new area, Congress must show a clear link to interstate commerce, he said. But if Congress can make "the mere possession by any person of any firearm ... within 1,000 feet of the grounds of any school ... then it could similarly ban lead pencils, sneakers, Game boys or slide rules," the appellate judge wrote. ====================================================================== -- ************************************************************ * Ron Phillips crphilli@hound.edaca.ingr.com * * Senior Customer Engineer * * Intergraph Electronics * * 381 East Evelyn Avenue VOICE: (415) 691-6473 * * Mountain View, CA 94041 FAX: (415) 691-0350 * ************************************************************