Why the U.S. Supreme Court should have upheld the Gun-Free School Zones Act

U.S. CapitolIn 1990, Congress passed the Gun-Free School Zones Act, which made it a federal crime to knowingly possess a firearm in a school zone.  The statute was based on Congress’s authority under the Commerce Clause to regulate activity that substantially affects interstate commerce.  The Supreme Court held that the law was unconstitutional because the effect of weapons near or in schools did not substantially affect interstate commerce.

First, this ruling is wrong because the majority incorrectly dismissed the argument that local education safety substantially affects interstate commerce by broadly asserting that such a conclusion would “covert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”  If Congress could regulate school safety, the Court reasoned, then nothing would stop it from infringing upon other traditional areas of state law, like family affairs.  However, the Court generalized the law’s scope far too much, allowing the majority to impermissibly reach a “slippery slope” conclusion.  The law did not touch local school policy, such as curriculum or dress codes; rather, it required a minimum level of safety to ensure a vibrant and comfortable learning environment.  And as Justice Breyer pointed out in his dissent, it is certainly no logical leap to conclude that the aggregate effect of the safety of America’s schools has a substantial (even direct) affect on the nation’s economy.

Local school safety is distinguishable from other local aspects of life traditionally left to the states, such as family law, because education has an unusually strong tie to interstate commerce.  Especially today, the connection between education and the national economy is clear.  A perfect example is the U.S. House of Representatives Committee on Education and the Workforce.[1]  Congress has recognized through structuring its committees that it is a waste of time to deal separately with education and workface development because of their inextricably intertwined relationship.  Yes, an argument can be made that extremely local activities, such as parenting and a child’s nutrition, also in the aggregate ultimately substantially affect interstate commerce.  But the pipeline from school to the workforce, and by extension interstate commerce, is much more direct and significant than other areas of local activity.

Second, the Court justified striking down the law because it “contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interest commerce.”  This is a curious argument, considering the Court has never required a jurisdictional hook.  In Gonzales v. Raich,[2] the Court upheld making local cultivation and consumption of medical marijuana a federal crime under the Commerce Clause by concluding that, even if the marijuana off which a federal conviction was based never touched interstate commerce, “the likelihood that the high demand in the interstate market will draw such marijuana into that market” was enough to assume a substantial effect on interstate commerce in the aggregate.  Essentially, the Court held that the temptation to enter the high-demand interstate market for marijuana was too great to allow local growers to avoid federal law enforcement.  Surely, if the Court can make an assumption that medical marijuana will enter the interstate market, then there is no reason to dismiss the notion that firearms in the aggregate impact an interstate market.  If the ruling of Wikard v. Filburn[3] teaches us anything, it’s that the Court cannot look at local activity in isolation, but rather must consider its aggregate effect on the national economy.  Whether the particular gun Lopez carried to school crossed state lines matters as little as whether Roscoe Filburn would have purchased interstate wheat or whether Angel Raich would have sold her medical marijuana to a drug user in Nevada.  If Congress could have found a rational basis for determining a local activity substantially affects interstate commerce, then Court is not permitted to interfere.

[1] http://edworkforce.house.gov/

[2] 545 U.S. 1 (2005)

[3] 317 U.S. 111 (1942) (Holding “[t]hat appellee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.”)

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