Felons, firearms, and federalism: reconsidering Scarborough in light of Lopez.
The United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. Supreme Court's decision in United States v. Lopez United States v. Lopez, (1) suggested a dramatic shift in the Court's (2) view of the Congressional power to was the first United States Supreme Court case since the Great Depression to set limits to Congress's power under the Commerce Clause of the United States Constitution. criminalize crim·i·nal·ize
tr.v. crim·i·nal·ized, crim·i·nal·iz·ing, crim·i·nal·iz·es
1. To impose a criminal penalty on or for; outlaw.
2. To treat as a criminal. conduct primarily local in nature. Lopez has contributed to an ongoing dialogue within the academic community, and on the bench, regarding the future of federalism federalism.
1 In political science, see federal government.
2 In U.S. history, see states' rights.
Political system that binds a group of states into a larger, noncentralized, superior state while allowing them . (3) Unfortunately, as is often the case, the Supreme Court's new perspective has not necessarily resulted in a clean break with tradition, leaving lower federal courts to engage in the complex process of reconsidering the impact of new precedent on older doctrines. Lopez raises questions, for example, about the continuing viability of the Court's prior decision in Scarborough v. United States, (4) which addressed Congress's power to outlaw the possession of firearms Ask a Lawyer
Country: United States of America
State: North Carolina
My friend was charged with possession of a firearm by a felon. It has been seven years since his last conviction. by felons.
As Professor Robert Justin Lipkin has observed, lower federal courts serve important roles in both the development and implementation of constitutional doctrine. (5) Characterizing dramatic shifts in constitutional interpretation as often being "revolutionary," Professor Lipkin has suggested that Lopez has the characteristics of a revolutionary decision, dramatically influencing our understanding of limitations on congressional power to criminalize local conduct through the traditional rationale of regulation of interstate commerce interstate commerce
In the U.S., any commercial transaction or traffic that crosses state boundaries or that involves more than one state. Government regulation of interstate commerce is founded on the commerce clause of the Constitution (Article I, section 8), which . (6)
The post-Lopez litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. history demonstrates, however, that such revolutionary decisions rendered by the Supreme Court are not so clean in their application. Lower federal courts are confronted with new thinking from the Supreme Court, while working within the confines con·fine
v. con·fined, con·fin·ing, con·fines
1. To keep within bounds; restrict: Please confine your remarks to the issues at hand. See Synonyms at limit. of pre-existing precedent not expressly overruled by the Court. This situation has been reflected in considerable judicial debate over whether Lopez requires scrutiny of the continuing viability of pre-Lopez federal statutes enacted pursuant to the Commerce Clause. Perhaps most typical of the problem has been the continuing viability of the federal statute criminalizing possession of firearms by felons, 18 U.S.C. [section] 922(g). (7)
Prosecutions under [section] 922(g) are burgeoning. Highly publicized pub·li·cize
tr.v. pub·li·cized, pub·li·ciz·ing, pub·li·ciz·es
To give publicity to.
Adj. 1. publicized - made known; especially made widely known
publicised and well-funded government programs, such as "Project Exile Project Exile was a controversial federal program started in Richmond, Virginia in 1997. Project Exile shifted the prosecution of illegal technical gun possession offenses to federal court, where they carried a mandatory minimum sentence of five years in federal prison under the ," have resulted in many thousands of such federal prosecutions. (8) Under federal criminal law provisions, even a person with a single prior felony felony (fĕl`ənē), any grave crime, in contrast to a misdemeanor, that is so declared in statute or was so considered in common law. conviction--including a conviction for a non-violent crime such as theft or mere possession of drugs for personal use, and even if his prior conviction occurred decades ago--faces up to ten years in prison without the possibility of parole if convicted. (9) If such persons have three or more prior convictions for violent offenses or drug-trafficking crimes, they face a minimum mandatory prison sentence of fifteen years without parole with the possibility of a sentence of life in prison. (10) Such federal prosecutions are burgeoning, notwithstanding the existence of penal laws Penal Laws, in English and Irish history, term generally applied to the body of discriminatory and oppressive legislation directed chiefly against Roman Catholics but also against Protestant nonconformists. in virtually every state that criminalize the possession of firearms by felons and a tradition in this country of state and local regulation of such matters. (11)
Relying on the Supreme Court's expansive interpretation of the federal statute in Scarborough that prohibits felons from possessing firearms This is an extensive list of small arms — pistol, machine gun, grenade launcher, anti-tank rifle — that includes variants.
: Top - 0–9 A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
See also: Pawn , (14) used firearms to hunt, (15) or possessed firearms for self-protection. (16) The only "nexus" to interstate commerce in most such cases is the simple fact that a felon An individual who commits a crime of a serious nature, such as Burglary or murder. A person who commits a felony.
felon n. a person who has been convicted of a felony, which is a crime punishable by death or a term in state or federal prison. happened to possess a firearm that was manufactured in another state and, thus, that necessarily had crossed states lines at some point in the past.
As discussed below, the prevailing interpretation of 18 U.S.C. [section] 922(g)--and the sweeping dragnet Dragnet
radio show in which justice is always served. [Radio: Buxton, 73]
See : Crime Fighting of federal prosecutions spawned by it--far exceeds Congress's authority to regulate firearms under the Commerce Clause of the United States Constitution and is at odds with this country's system of federalism.
II. THE IRRECONCILABLE CONFLICT BETWEEN SCARBOROUGH AND LOPEZ
In Scarborough v. United States, (17) the Supreme Court held that a conviction under 18 U.S.C. [section] 1202(a) (18)--the statutory predecessor of 18 U.S.C. [section] 922(g)--only required proof that a particular firearm was manufactured outside of the state in which a felon possessed it in order to satisfy the jurisdictional (19) "interstate commerce" element of the statute. The Court in Scarborough rejected the defendant's argument that a contemporaneous con·tem·po·ra·ne·ous
Originating, existing, or happening during the same period of time: the contemporaneous reigns of two monarchs. See Synonyms at contemporary. "nexus" with interstate commerce was required; any past connection, however remote in time, was deemed sufficient. (20) Justice Thurgood Marshall's opinion for the Court in Scarborough was written during the era when the Supreme Court was broadly interpreting Congress's authority to outlaw criminal conduct pursuant to its interstate commerce regulatory power under Article 1, section 8, clause 3 of the United States Constitution. (21)
In 1986, Congress recodified section 1202(a) as 18 U.S.C. [section] 922(g)(1). (22) In addition to prohibiting felons from possessing firearms (or ammunition for firearms) that were "in or affecting" interstate or foreign commerce, the recodified statute also prohibited other classes of presumptively pre·sump·tive
1. Providing a reasonable basis for belief or acceptance.
2. Founded on probability or presumption.
pre·sump dangerous persons from possessing such firearms. (23)
In United States v. Lopez, (24) the Supreme Court, by a five-to-four vote, significantly retreated from the Court's prior expansive interpretation of Congress's regulatory power under the Commerce Clause in criminal law matters and breathed new life into the traditional approach to our nation's system of federalism. In Lopez, the Court invalidated in·val·i·date
tr.v. in·val·i·dat·ed, in·val·i·dat·ing, in·val·i·dates
To make invalid; nullify.
in·val the Gun-Free School Zones Act of 1990 (25) as being beyond Congress's authority. (26) The Court began its analysis by surveying over a century of its Commerce Clause jurisprudence jurisprudence (jr'ĭsprd`əns), study of the nature and the origin and development of law. and derived from that jurisprudence three "broad categories" of activity Congress may constitutionally regulate:
[W]e have identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things [actually] in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. (27)
In assessing the constitutionality of the Gun-Free School Zones Act of 1990, the Court subsequently concluded:
[Section] 922(q) is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of interstate commerce; nor can [section] 922(q) be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce. Thus, if [section] 922(q) is to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate commerce. (28)
The Court then considered whether Congress had the power under the third species of its Commerce Clause authority to enact [section] 922(q). In holding [section] 922(q) to be an improper exercise of Congress's power, the Court held:
Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. (29)
In the immediate wake of Lopez, criminal defendants convicted under 18 U.S.C. [section] 922(g) challenged Scarborough's interpretation of what type of interstate commerce "nexus" is required under 18 U.S.C. [section] 922(g)(1). Defendants contended that section 922(g), like the firearms statute in Lopez, must be analyzed as an attempt by Congress to exercise its authority under the "third category" of commerce regulation identified in Lopez. Engaging such an analysis, the defendants contended that Lopez unquestionably un·ques·tion·a·ble
Beyond question or doubt. See Synonyms at authentic.
un·question·a·bil established that mere intrastate in·tra·state
Relating to or existing within the boundaries of a state.
Adj. 1. intrastate - relating to or existing within the boundaries of a state; "intrastate as well as interstate commerce" firearm possession was not a "commercial" or "economic" activity and further contended that the mere fact that a firearm had crossed state lines at some point in the past, however remote, did not constitute a "substantial" effect on interstate commerce as required by Lopez for "third category" exertions of commerce regulation. (30)
Although no federal court of appeals has held that Lopez trumped Scarborough, (31) numerous federal court of appeals judges, in dissenting and concurring opinions Noun 1. concurring opinion - an opinion that agrees with the court's disposition of the case but is written to express a particular judge's reasoning
judgement, legal opinion, opinion, judgment - the legal document stating the reasons for a judicial decision; , contended in a persuasive manner that Scarborough's broad interpretation of the commerce "nexus" logically did not survive Lopez. (32) Fifth Circuit Court of Appeals Judge Will Garwood--the author of the Fifth Circuit's 1993 decision in Lopez that was affirmed by the Supreme Court in its landmark decision A landmark decision is the outcome of a legal case (often thus referred to as a landmark case) that establishes a precedent that either substantially changes the interpretation of the law or that simply establishes new case law on a particular issue. in 1995 (33)--cogently stated that "one might well wonder how it could rationally be concluded that mere possession of a firearm in any meaningful way concerns interstate commerce simply because the firearm had, perhaps decades previously before the charged possessor was even born, fortuitously for·tu·i·tous
1. Happening by accident or chance. See Synonyms at accidental.
2. Usage Problem
a. Happening by a fortunate accident or chance.
b. Lucky or fortunate. traveled in interstate commerce." (34)
Remarkably, a total of twelve members of the Fifth Circuit eventually opined, or at least strongly suggested, that Scarborough's broad reading of the interstate commerce "nexus" element is inconsistent with Lopez's more restrictive interpretation of the federal government's powers under the Commerce Clause. (35) Nevertheless, the Fifth Circuit has stated that, as an intermediate federal appellate court A court having jurisdiction to review decisions of a trial-level or other lower court.
An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. , it has no authority to overrule The refusal by a judge to sustain an objection set forth by an attorney during a trial, such as an objection to a particular question posed to a witness. To make void, annul, supersede, or reject through a subsequent decision or action. Scarborough in light of Lopez and that such action could only be taken by the Supreme Court itself. (36)
Despite such unrest in the lower courts and the clear conflict between Scarborough and Lopez, the Supreme Court has denied certiorari certiorari
In law, a writ issued by a superior court for the reexamination of an action of a lower court. The writ of certiorari was originally a writ from England's Court of Queen's (King's) Bench to the judges of an inferior court; it was later expanded to include writs in every case to date in which defendants sought to have the Court overrule Scarborough in view of Lopez. (37)
III. THE FURTHER DISINTEGRATION disintegration /dis·in·te·gra·tion/ (-in?ti-gra´shun)
1. the process of breaking up or decomposing.
2. OF SCARBOROUGH: JONES AND MORRISON
In 2000, the Supreme Court rendered decisions in two more cases that set further limits on Congress's authority to regulate criminal conduct under the Commerce Clause.
In Jones v. United States
The Court's response to the Government's proposal that the federal arson statute should be applied to private residences based on a "minimal [interstate commerce[ nexus" interpretation of the statute--that is, where components of a building previously had traveled in interstate commerce--is telling. In rejecting this proposal, the Court in Jones stated:
Were we to adopt the Government's expansive interpretation of [section] 844(i), hardly a building in the land would fall outside the statute's domain. Practically every building in our cities, towns, and rural areas is constructed with supplies that have moved in interstate commerce, served by utilities that have an interstate connection, financed or insured by enterprises that do business across state lines, or bears some other trace of interstate commerce. (43)
In order to avoid having to address the "grave and doubtful question" about whether Congress's Commerce Clause regulatory powers could reach matters with only a "trace" of a connection to interstate commerce, the Court applied the "constitutional doubt" canon of statutory construction and interpreted the arson statute to require more than the "minimal" commerce nexus proposed by the Government in Jones. (44)
In United States v. Morrison United States v. Morrison, , (45) the Supreme Court held that the Violence Against Women Act (46)--which is a United States Supreme Court decision that examined the limits of Congress's power to make laws under the Commerce Clause and the Fourteenth Amendment of the Constitution. authorized au·thor·ize
tr.v. au·thor·ized, au·thor·iz·ing, au·thor·iz·es
1. To grant authority or power to.
2. To give permission for; sanction: federal civil rights actions by women who were sexually assaulted-exceeded Congress's power under the Commerce Clause. The Court expressly held that Congress cannot constitutionally regulate intrastate non-economic criminal conduct without a "substantial" effect on interstate commerce, even if such conduct, when considered in the "aggregate" along with other such conduct nationwide, would have such an effect:
We accordingly reject the argument that Congress may regulate noneconomic violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local. In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. (47)
Armed with Jones and Morrison, defendants convicted under 18 U.S.C. [section] 922(g) renewed their constitutional attacks. To date, although no federal court of appeals has shown any interest in revisiting the issue of whether Jones and Morrison have undermined Scarborough, (48) a recent decision by a federal district court has thrown down the gauntlet gauntlet /gaunt·let/ (gawnt´let) a bandage covering the hand and fingers like a glove. . In United States v. Coward, (49) Eastern District of Pennsylvania District Court Judge Stewart Dalzell Stewart Dalzell is a judge on the United States District Court for the Eastern District of Pennsylvania. Born in 1943 in Hackensack, New Jersey, Judge Dalzell graduated from the University of Pennsylvania, Wharton School of Business in 1965 and received his J.D.. , although finding himself bound by Third Circuit Court of Appeals precedent that has continued to follow Scarborough, asked the appellate court to reverse the defendant's conviction under 18 U.S.C. [section] 922(g). In so doing, Judge Dalzell highlighted Scarborough's "legal fiction":
Scarborough may fairly be read to establish the legal fiction that has prevailed in these cases since it was announced.... Simply phrased, Scarborough's legal fiction is that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession sufficient interstate aspect to fall within the ambit of the statute. This fiction is indelible and lasts as long as the gun can shoot. Thus, a felon who has always kept his father's World War II trophy Luger in his bedroom has the weapon "in" [or "affecting"] commerce. (50)
Focusing on Jones's strong suggestion that more than the past interstate movement of components of a private residence is required for a constitutional application of the arson statute and Morrison's clear statement that Congress cannot constitutionally regulate mere intrastate "non-economic" criminal conduct, Judge Dalzell concluded that the "Scarborough fiction" was constitutionally moribund moribund /mor·i·bund/ (mor´i-bund) in a dying state.
At the point of death; dying.
mor . (51)
IV. SCARBOROUGH AND ITS DRAMATIC IMPLICATIONS FOR PERVASIVE FEDERAL FIREARMS REGULATION
During a recent federal prosecution under 18 U.S.C. [section] 922(g) in Houston, Texas “Houston” redirects here. For other uses, see Houston (disambiguation).
Houston (pronounced /'hjuːstən/) is the largest city in the state of Texas and the , the Government's own expert witness (52) on firearm manufacturing and distribution admitted that approximately 95 percent of all firearms in the United States--with all fifty states considered "in the aggregate"--have been "imported into the state [in which they are present] across the state line[s]." (53) Such evidence of the huge number of firearms in this country that have crossed state lines is highly relevant in assessing whether Scarborough survives Lopez and its progeny PROGENY - 1961. Report generator for UNIVAX SS90. .
Just as the undisputed fact in Jones that "[p]ractically every building in our cities, towns, and rural areas is constructed with supplies that have moved in interstate commerce" cast serious "constitutional doubt" on the application of the federal arson statute to private residences, (54) the evidence of the huge percentage of firearms in this country that has crossed state lines casts similar doubt on Scarborough's interpretation of 18 U.S.C. [section] 922(g). (55) Under Scarborough, "hardly a [firearm] in the land would fall outside [[section] 922(g)'s] domain." (56) The evidence of the number of firearms that have crossed states lines is also relevant insofar in·so·far
To such an extent.
Adv. 1. insofar - to the degree or extent that; "insofar as it can be ascertained, the horse lung is comparable to that of man"; "so far as it is reasonably practical he should practice as the Supreme Court in Lopez suggested that the felon-in-possession statute should be interpreted to "reach to a discrete set of firearm possessions that ... have an explicit connection with or effect on interstate commerce." Ninety-five percent of all firearms in this country cannot fairly be considered a "discrete set."
In interpreting [section] 922(g), courts must keep in mind that the statute's interstate commerce element is based on a particular firearm's "nexus" with interstate commerce--not on a felon's "nexus" with interstate commerce. (58) Indeed, a felon's possession of a firearm that has never crossed state lines is not an offense under [section] 922(g). (59) With this in mind, under Scarborough's grant of regulatory authority Noun 1. regulatory authority - a governmental agency that regulates businesses in the public interest
administrative body, administrative unit - a unit with administrative responsibilities under the Commerce Clause, Congress presumably pre·sum·a·ble
That can be presumed or taken for granted; reasonable as a supposition: presumable causes of the disaster. could enact a statute that criminalizes anyone's purely local possession of a firearm that, at some point in the past, had crossed state lines and, thus, "affected" commerce. (60) The suggestion that Congress has the jurisdiction under the Commerce Clause to criminalize all citizens' possessions of 95 percent of firearms in this country surely would cause tremendous concern among federal judges who believe in preserving our constitutional system of federalism.
Yet the Scarborough theory of interstate commerce jurisdiction, although it only applies to felons' possessions of firearms, nevertheless rests on this fallacious reasoning. The mere fact that [section] 922(g) is aimed only at felons and other prohibited classes of persons does not mean that its jurisdictional element (as interpreted by Scarborough) is somehow constitutionally valid. As noted, the statute is based on a firearm's nexus to interstate commerce, not a felon's nexus to interstate commerce.
For reasons that are not entirely clear, the Supreme Court to date has not granted certiorari in order to resolve the irreconcilable conflict between its 1977 decision in Scarborough and its subsequent decisions in Lopez and its progeny--the latter of which clearly undermine the "Scarborough fiction." Although typically the Supreme Court requires a circuit conflict on an issue before certiorari will be granted, (61) the lack of such a circuit conflict regarding the proper interpretation of 18 U.S.C. [section] 922(g) is not a valid basis for foregoing review any longer. As noted above, each federal circuit to have addressed the issue has held that, as an intermediate appellate court, it has no power to "overrule" Scarborough. Therefore, very likely there never will be a circuit split on this issue. Moreover, the Supreme Court's own rules provide that, even without a circuit split, a clear conflict between its own prior decisions is a basis to grant certiorari and resolve the conflict. (62)
Scarborough cannot logically survive the Court's recent shift in its Commerce Clause jurisprudence. (63) Although it may not be popular in this "conservative" era of strict law enforcement for the Court to significantly narrow the scope of 18 U.S.C. [section] 922(g), (64) an intellectually honest adherence to the "conservative" principles of federalism followed in Lopez and its progeny requires nothing less. (65)
(1.) 514 U.S. 549 (1995).
(2.) The majority opinion in Lopez was written by Rehnquist, C.J., joined by O'Connor, Scalia, Kennedy, & Thomas, JJ.
(3.) See e.g. Steve France, Laying the Groundwork, 86 ABA Aba (ä`bä), city (1991 est. pop. 264,000), SE Nigeria. It is an important regional market, a road and rail hub, and a manufacturing center for cement, textiles, pharmaceuticals, processed palm oil, shoes, plastics, soap, and beer. J. 40 (May 2000).
(4.) 431 U.S. 563 (1977).
(5.) See Robert Justin Lipkin, Constitutional Revolutions: A New Look at Lower Court Appellate Relating to appeals; reviews by superior courts of decisions of inferior courts or administrative agencies and other proceedings. Review in American Constitutionalism con·sti·tu·tion·al·ism
1. Government in which power is distributed and limited by a system of laws that must be obeyed by the rulers.
a. A constitutional system of government.
b. , 3 J. App. Prac. & Process 1 (2001).
(6.) Id. at 22-23.
(7.) That statute provides:
It shall be unlawful for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year [i.e., a felony] ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
18 U.S.C. [section] 922(g)(1) (1994).
(8.) Gary Fields, Ashcroft Aims to Step Up Efforts to Curb Illegal-Firearm Possessions, Wall St. J. A16 (July 3, 2001).
(9.) See 18 U.S.C. [section] 924(a)(2) (1994).
(10.) See 18 U.S.C. [section] 924(e) (1994).
(11.) The Supreme Court has recognized that penal laws that prohibit felons from possessing firearms are within a traditional area of state or local concern. U.S. v. Bass, 404 U.S. 336, 349-50 (1971).
(12.) Scarborough, 431 U.S. 563.
(13.) The author has handled approximately fifty such cases as a defense attorney. He has never handled--or even heard of--a [section] 922(g) prosecution in which a felon actually crossed state lines while in possession of a firearm or acquired a firearm from out of state.
(14.) See e.g. U.S. v. Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000) (per curiam [Latin, By the court.] A phrase used to distinguish an opinion of the whole court from an opinion written by any one judge.
Sometimes per curiam signifies an opinion written by the chief justice or presiding judge; it can also refer to a brief oral announcement ).
(15.) See e.g. U.S. v. Bates Bates , Katherine Lee 1859-1929.
American educator and writer best known for her poem "America the Beautiful," written in 1893 and revised in 1904 and 1911. , 77 F.3d 1101, 1103 (8th Cir. 1996).
(16.) See e.g. U.S. v. Rice, 214 F.3d 1295, 1296-98 (11th Cir. 2000).
(17.) 431 U.S. 563 (1977).
(18.) That statute provided: "Any person who ... has been convicted ... of a felony ... and who receives, possesses, or transports in commerce or affecting commerce ... any firearm shall be fined not more than $10,000 or imprisoned im·pris·on
tr.v. im·pris·oned, im·pris·on·ing, im·pris·ons
To put in or as if in prison; confine.
[Middle English emprisonen, from Old French emprisoner : en- for not more than two years, or both." 18 U.S.C. App. [section] 1202(a)(1) (repealed 1986). See 18 U.S.C. App. [section] 1202 (Supp. IV 1986).
(19.) The commerce element has been treated as a "jurisdictional" element because 18 U.S.C. [section] 1202(a)--like its statutory successor, 18 U.S.C. [section] 922(g)(1)--was enacted pursuant to Congress's authority to regulate interstate commerce under Article 1, section 8, clause 3 of the United States Constitution. That is, the "interstate commerce" element provides federal jurisdiction over a felon who possesses a firearm. See e.g. U.S. v. Dupree, 258 F.3d 1258, 1259 (11th Cir. 2001).
(20.) Scarborough, 431 U.S. at 569-77.
(21.) See e.g. Perez v. U.S., 402 U.S. 146 (1971) (upholding congressional power under the Commerce Clause to regulate local loan sharking Loan Sharking
When a borrower is charged interest above an established legal rate. Depending on where you live, lenders typically cannot charge more than 60% interest per annum.
For example, I lend you $10,000 today and you must pay me back $20,000 within 30 days. because of the overall effect of organized crime on interstate commerce).
(22.) Section 922(g)(1) was first codified cod·i·fy
tr.v. cod·i·fied, cod·i·fy·ing, cod·i·fies
1. To reduce to a code: codify laws.
2. To arrange or systematize. at 18 U.S.C. [section] 922(g)(1) (Supp. IV 1986).
(23.) In addition to prohibiting felons from possessing firearms, section 922(g) also applies to other classes of prohibited persons, such as illegal aliens and persons dishonorably dis·hon·or·a·ble
1. Characterized by or causing dishonor or discredit.
2. Lacking integrity; unprincipled.
dis·hon discharged from the military. See 18 U.S.C. [section] 922(g)(1)--(9). The vast majority of prosecutions under [section] 922(g) are of felons.
(24.) 514 U.S. 549 (1995).
(25.) The Gun-Free School Zones Act of 1990 was codified at 18 U.S.C. [section] 922(q)(1)(A) (Supp. II 1990). That statute forbade for·bade
A past tense of forbid.
forbade or forbad
the past tense of forbid
forbade forbid "`any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.'" Lopez, 514 U.S. at 551 (quoting 18 U.S.C. [section] 922(q)(1)(A)).
(26.) Lopez, 514 U. S. at 558.
(27.) Id. at 559 (citations omitted).
(28.) Id. (emphasis added).
(29.) Id. at 561.
(30.) See e.g. U.S. v. Rawls, 85 F.3d 240 (5th Cir. 1996) (per curiam).
(31.) Every circuit court to have addressed the issue has held that Scarborough has survived Lopez in terms of its precedential prec·e·den·tial
1. Of, relating to, or constituting a precedent.
2. Having precedence.
Adj. 1. precedential value in the lower federal courts. See U.S. v. Dorris, 236 F.3d 582, 586 & n. 1 (10th Cir. 2000) (collecting cases).
(32.) See e.g. U.S. v. Kuban, 94 F.3d 971, 976-79 (5th Cir. 1996) (DeMoss, J., dissenting in part); U.S. v. Chesney, 86 F.3d 564, 574-82 (6th Cir. 1996) (Batchelder, J., concurring con·cur
intr.v. con·curred, con·cur·ring, con·curs
1. To be of the same opinion; agree: concurred on the issue of preventing crime. See Synonyms at assent.
(33.) U.S. v. Lopez, 2 F.3d 1342 (5th Cir. 1993), aff'd, 514 U.S. 549 (1995).
(34.) Rawls, 85 F.3d at 243 (Garwood, J., specially concurring, joined by Wiener & E. Garza, JJ.).
(35.) See U.S. v. Kirk, 105 F.3d 997, 1004 (5th Cir. 1997) (per curiam) (Higginbotham, J., concurring, joined by Politz, C.J. & Davis & Wiener, JJ.); id. at 1005-16 (Jones, J., dissenting, joined by Garwood, Jolly, Smith, Duhe, Barksdale, E. Garza, & DeMoss, JJ.).
(36.) Rawls, 85 F.3d 240; Kirk, 105 F.3d at 1015 n. 25. The Fifth Circuit's belief that Scarborough forecloses lower federal courts from addressing constitutional issues regarding 18 U.S.C. [section] 922(g) is, however, mistaken. The constitutional issue of whether Congress exceeded its authority under the Commerce Clause was not raised in Scarborough and was not decided by the Court. The briefs filed in Scarborough demonstrate that the parties in that 1977 appeal were in agreement that Congress possessed the authority under the Commerce Clause to penalize pe·nal·ize
tr.v. pe·nal·ized, pe·nal·iz·ing, pe·nal·iz·es
1. To subject to a penalty, especially for infringement of a law or official regulation. See Synonyms at punish.
2. a felon's mere possession of a firearm that had traveled interstate at some point in the past; the only issue in dispute was whether the statutory predecessor to [section] 922(g)(1), 18 U.S.C. [section] 1202(a), could be fairly interpreted to be an expression of such a sweeping power. See Br. for Pet., at 23-24, Scarborough v. U.S., 431 U.S. 563 (1977) ("Congress has the power to confer federal authority to prosecute crimes previously in the state domain [including a felon's possession of a firearm], and even eliminate the requirement of proof that a particular transaction has a specific connection with interstate commerce."); Br. for U.S., at 10, Scarborough v. U.S., 431 U.S. 563 (1977) ("There can be no doubt about the power of Congress under the Commerce Clause to prohibit felons from possessing firearms that have moved in commerce.... The only issue in this case ... is whether Congress in fact exercised its broad power over commerce to prohibit possession of firearms that have moved in commerce when it prohibited possession `affecting' commerce."). Thus, the parties in Scarborough did not "join issue" regarding whether the felon-in-possession statute would operate unconstitutionally in a case where the only interstate commerce nexus was the fact that a firearm had traveled interstate some time in the past, even if that interstate movement was long before a felon's possession of the weapon.
Consequently, the Supreme Court's opinion in Scarborough did not address the threshold constitutional issue. After engaging in an extensive statutory-construction analysis and review of relevant legislative history, the Supreme Court concluded that "we see no indication that Congress intended to require any more than the minimal nexus that the firearm ha[d] been, at some time, in interstate commerce.... Congress sought to reach possessions broadly, with little concern for when the nexus with commerce occurred.... IT]here is no question that Congress intended no more than a minimal nexus requirement." Scarborough, 431 U.S. at 575, 577. Thus, the only issue decided in Scarborough was Congress's intent--not whether Congress's expression of that intent, in the felon-in-possession statute, was unconstitutional unconstitutional adj. referring to a statute, governmental conduct, court decision or private contract (such as a covenant which purports to limit transfer of real property only to Caucasians) which violate one or more provisions of the U. S. Constitution. . The latter issue was not decided by the Supreme Court. At most, Scarborough contains what the Supreme Court has characterized as a "sub silentio [Latin, Under silence; without any notice being taken.]
Passing a thing sub silentio may be evidence of consent.
SUB SILENTIO. Under silence, without any notice being taken. Sometimes passing a thing sub silentio is evidence of consent. See Silence. " holding on the Commerce Clause constitutionality issue. However, it is well established that such sub silentio holdings--that is, "unstated assumptions Unstated assumption is a type of propaganda message which foregoes explicitly communicating the propaganda's purpose and instead states ideas derived from it. This technique is used when a propaganda's main idea lacks credibility, and thus when mentioned directly will result in the on non-litigated issues"--have no precedential value. See e.g. Ill. State Bd. of Elections v. Socialist Workers Party There are various political parties using the name Socialist Workers' Party throughout the world. Socialist Workers' Parties include:
(37.) See e.g. Chesney v. U.S., 520 U.S. 1282 (1997) (denying certiorari); Kuban v. U.S., 519 U.S. 1070 (1997) (denying certiorari).
(38.) 529 U.S. 848 (2000).
(39.) That doctrine provides that "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [the Supreme Court's] duty is to adopt the latter." Id. at 857 (citations and internal quotation marks quotation marks
the punctuation marks used to begin and end a quotation, either `` and '' or ` and '
quotation marks npl → comillas fpl
(40.) The Court's own "question presented" posed to the parties in Jones made it clear that the Court was considering invalidating in·val·i·date
tr.v. in·val·i·dat·ed, in·val·i·dat·ing, in·val·i·dates
To make invalid; nullify.
in·val the federal arson statute (on constitutional grounds) as applied to private residences. See Jones v. U.S., 528 U.S. 1002, 1002 (1999) (limiting the petition for writ of certiorari Noun 1. writ of certiorari - a common law writ issued by a superior court to one of inferior jurisdiction demanding the record of a particular case
judicial writ, writ - (law) a legal document issued by a court or judicial officer to the question of "whether its application to the private residence in the present case is constitutional"). The Court ultimately avoided having to strike down the statute as applied to private residences by interpreting it in a manner that avoided the "grave and doubtful question" about whether its application to private residences would be unconstitutional. See Jones v. U.S., 529 U.S. 848 (2000).
41. That statute provides:
Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years....
18 U.S.C. [section] 844(i) (Supp. V 1999).
(42.) Jones, 529 U.S. at 856-58.
(43.) Id. at 857 (emphasis added).
(44.) Id. at 857-58.
(45.) 529 U. S. 598 (2000).
(46.) 42 U.S.C. [section] 13981 (1994).
(47.) Morrison, at 617 (citations omitted).
(48.) See e.g. U.S. v. Daugherty, 264 F.3d 513, (5th Cir. 2001); U.S. v. Santiago, 238 F.3d 213, 216 (2d Cir. 2001). Such cases have attempted to distinguish Jones's reasoning from Scarborough's broad interpretation of 18 U.S.C. [section] 922(g) on the ground that the arson statute's jurisdictional element required a burned building to be "used in" interstate commerce, while [section] 922(g) only requires a firearm to have been possessed "in or affecting" interstate commerce. See e.g. Santiago, 238 F.3d at 216. Such a distinction based on differences in statutory language is one without a meaningful difference, however, because the Government's proposed interpretation of the arson statute in Jones was a "minimal nexus" requirement, i.e., that a building's components had traveled across state lines at some point in the past, however remote. As discussed above, the Supreme Court in Jones stated that such a sweeping exercise of Congress's Commerce Clause power raised grave constitutional doubts. See supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. n. 42 and accompanying text (summarizing the Supreme Court's response to the government's position in Jones).
(49.) 151 F. Supp. 2d 544 (E.D. Pa. 2001).
(50.) Id. at 549 (citations omitted).
(51.) Id. at 549-55.
(52.) That expert, George Michael
Georgios Kyriacos Panayiotou (Greek: Taylor, was a senior Special Agent of the Bureau of Alcohol, Tobacco and Firearms ("ATF ATF Molecular virology Activating transcription factor A cellular protein that stimulates transcription of adenovirus E4 transcription unit, which acts early in infection at any of several 'enhancer' binding sites "). Agent Taylor, a thirty-year veteran of the ATF, has testified as an expert for the ATF in countless federal firearms prosecutions.
(53.) Special Agent Taylor testified that, with respect to "the country as a whole ... about 5 percent of the guns in the average state [in] the country were [manufactured within that state]; 95 percent would be imported into the state across the state line." Tr. R., Vol. 5, at 47, U.S. v. Ramoune Lanier Johnson, Ct. No. H-00-733 (S.D. Tex.--Houston Div.) (Jan. 9, 2001). According to according to
1. As stated or indicated by; on the authority of: according to historians.
2. In keeping with: according to instructions.
3. Special Agent Taylor, in certain of the fifty states--e.g., Connecticut and New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of , where major firearms manufacturers, such as Winchester, are located--considerably less than 95 percent of all firearms possessed within the state's borders were manufactured out-of-state. Id. Special Agent Taylor's 95% estimate was based on the fifty states considered in the "aggregate." Id.
(54.) Jones, 529 U.S. at 857.
(55.) In the past, without actually having such evidence before them, certain judges have taken judicial notice that "few guns have never crossed a state line." Kirk, 105 F.3d at 1005 (Higginbotham, J., concurring, joined by Politz, C.J., Davis & Wiener, JJ.).
(56.) Jones, 529 U.S. at 857.
(57.) U.S. v. Lopez, 514 U.S. 549, 562 (1995) (emphasis added).
(58.) Any argument that [section] 922(g)'s application to a felon's mere intrastate possession of firearm could be upheld based on the aggregate effect of all felons' possessions of firearms would be foreclosed by U.S. v. Morrison, 529 U.S. 598, 617 (2000) ("We ... reject the argument that Congress may regulate noneconomic ... criminal conduct based solely on that conduct's aggregate effect on interstate commerce.").
(59.) 18 U.S.C. [section] 921(a)(2) (1994).
(60.) Kirk, 105 F.3d at 1005 (noting that the Scarborough theory of federal jurisdiction would authorize To empower another with the legal right to perform an action.
The Constitution authorizes Congress to regulate interstate commerce.
authorize v. to officially empower someone to act. (See: authority) "congressional power to outlaw possession of guns in general") (Higginbotham, J., concurring, joined by Politz, C.J., Davis & Wiener, JJ.).
(61.) Sup. Ct. R. 10(a) (1999).
(62.) Sup. Ct. R. 10(c).
(63.) This article does not intend to suggest that 18 U.S.C. [section] 922(g) is facially unconstitutional. Rather, the language of the firearm statute, like the arson statute at issue in Jones, simply must be interpreted in a manner consistent with the limits of Congress's power under the Commerce Clause. Such an interpretation must require more of an "effect" on interstate commerce than the fact that a firearm crossed state lines at some point in the past.
(64.) It should be noted that the dramatic reduction in federal prosecutions of felons who possess firearms that would result from an overruling o·ver·rule
tr.v. o·ver·ruled, o·ver·rul·ing, o·ver·rules
a. To disallow the action or arguments of, especially by virtue of higher authority: of Scarborough would not permit felons to possess firearms with impunity IMPUNITY. Not being punished for a crime or misdemeanor committed. The impunity of crimes is one of the most prolific sources whence they arise. lmpunitas continuum affectum tribuit delinquenti. 4 Co. 45, a; 5 Co. 109, a. . As noted above, state laws already prohibit felons from possessing firearms. Congress, consistent with the Constitution, could simply provide federal funds Federal Funds
Funds deposited to regional Federal Reserve Banks by commercial banks, including funds in excess of reserve requirements.
These non-interest bearing deposits are lent out at the Fed funds rate to other banks unable to meet overnight reserve to states to implement their own "Project Exile" programs.
(65.) "The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport See COM port. with the Constitution." Planned Parenthood Planned Parenthood
A service mark used for an organization that provides family planning services. of Southeastern Pa. v. Casey, 505 U.S. 833,963 (1992) (Rehnquist, C.J., concurring in part and dissenting in part, joined by White, Scalia & Thomas, JJ.).
Brent E. Newton Assistant Federal Public Defender public defender, governmental official who represents indigent persons accused of crime. U.S. Supreme Court decisions expanding the right to counsel to pretrial proceedings and holding that a person cannot be sentenced to even one day in jail unless a lawyer was , Houston, Texas.; adjunct professor of law, University of Houston Law Center The University of Houston Law Center—founded in 1947 as Bates College of Law—is an American Bar Association accredited law school and one of the 13 academic colleges at the University of Houston. It awards the Juris Doctor (J.D. ; J.D., Columbia University Columbia University, mainly in New York City; founded 1754 as King's College by grant of King George II; first college in New York City, fifth oldest in the United States; one of the eight Ivy League institutions. School of Law; B.A., University of North Carolina at Chapel Hill The University of North Carolina at Chapel Hill is a public, coeducational, research university located in Chapel Hill, North Carolina, United States. Also known as The University of North Carolina, Carolina, North Carolina, or simply UNC .