We just finished Commerce Clause and
Lopez a couple of weeks ago, and I just read
Rybar, including Judge Alito’s dissent, so I’ll add some more law student-speak.
The Commerce Clause is located in Article I, Section 8, Clause 3 of the Constitution:
“[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
There are several ways to analyze the Constitution, one of which is structural analysis, i.e., where the language fits in the architecture of the document. Article I grants power to Congress, and follows the general structural theme consisting of a vestiture clause, followed by housekeeping provisions, detailed powers, and finally limits on power. The Commerce Clause lies in the detailed powers section, thus it is clearly an enumerated power of Congress.
In our system of federalism, power is shared between the federal government and the states. This is a vertical delineation of power, whereas separation of powers among the branches of government can be thought of as a horizontal delineation of power. The question has always been what is the extent of this congressional power, namely, what can the federal government regulate, and what should be left to the states?
The Framers inserted the Commerce Clause to allow the federal government to prevent states from enacting restrictive trade regulations hostile to other states, thus promoting a smooth national market. As the nation developed and problems which required national attention arose, the Commerce Clause became a useful device with which Congress could intervene. Starting from the New Deal era on, The Supreme Court deferred to Congress and did not limit the reach of its commerce power.
That run of congressional power ended in 1995 with the Court’s decision in
United States v. Lopez, 514 U.S. 549 (1995). In a 5-4 opinion delivered by Chief Justice Rehnquist, the Court held that the Gun-Free School Zones Act of 1990, which made it a federal offense to possess a firearm in a school zone, exceeded Congress’ commerce power. The majority chose a more literal reading of the term commerce, and found that it was too much of a reach to connect possession of a firearm in a school zone to interstate commerce.
The Court identified three categories of activity that Congress may regulate:
1) Use of channels of interstate commerce
2) Instrumentalities of interstate commerce, or things and people
3) Activities having a substantial relation to interstate commerce
In
United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), the defendant challenged his conviction for violating 18 U.S.C. §922(o) (making it “unlawful for any person to transfer or possess a machinegun.”) on the basis that the district court was wrong in rejecting his commerce power challenge to the provision. There’s also a 2nd Amendment challenge, but I won’t be able to get into that until the spring.
The majority held that §922(o) was within Congress’ commerce power. The court cited a long list of legislative history behind a series of congressional statutes related to firearms to reach a conclusion that possession of a machinegun sufficiently impacted interstate commerce (the third category from
Lopez) such that Congress may regulate it. The court distinguishes
Lopez by finding in that case Congress attempted to regulate possession of firearms only inside school zones, making it less likely to have an impact on interstate commerce, whereas in the present case the regulation of machineguns is over a wider area.
Judge Alito, in his dissent, argues that
Lopez should control, as AL mentioned. He finds that the regulation of intrastate firearm possession in the present case is similar to the possession of a firearm in a school zone. Judge Alito also finds the legislative history does not show enough to link the intrastate possession of firearms to interstate commerce, thus failing the category 3 test.
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