PDA

View Full Version : US v Lopez - 1995


BlindRacer
04-21-2011, 9:50 AM
United_States_v._Lopez (http://en.wikipedia.org/wiki/United_States_v._Lopez)

I'm trying to understand this. US v Lopez went to the supreme court, and declared in April of 1995 that the Gun Free School Zone Act of 1990, to be unconstitutional, and an overreach of Congressional power through the commerce clause.

Congress then rewrote the Gun Free School Zone Act (of 1995), and this one is still active today.

How can this be? What is so different about the 1995 version compared to the 1990 version? (from wiki) 'In a 5-4 decision, the Supreme Court affirmed the decision of the Court of Appeals. It held that while Congress had broad lawmaking authority under the Commerce Clause, the power was limited, and did not extend so far from "commerce" as to authorize the regulation of the carrying of handguns, especially when there was no evidence that carrying them affected the economy on a massive scale.'

So if the Supreme Court said that Congress can't regulate the carrying of handguns, then why are they able to get away with the 1995 GFSZ act?

With this case, how is Palmer being delayed so horribly? The Supreme Court already said in Lopez, that Congress can't regulate carry like that.

Then also, since the 2A applies to the states, how can the state keep these things up?

Am I just not understanding what was really decided here? Please someone with more legal knowledge, fill me in to what's going on?

ke6guj
04-21-2011, 10:14 AM
They rewrote the act to "comply" with the ruling.

http://www.gunlaws.com/Gun_Free_School_Zones_Act.pdf

they "clarified" that the firearm in question had to affect interstate commerce, and that made the acts lawful (at least it hasn't been thrown out yet)

(2)(A) It shall be unlawful for any individual knowingly to
possess a firearm that has moved in or that otherwise
affects interstate or foreign commerce at a place that
the individual knows, or has reasonable cause to
believe, is a school zone.

Untamed1972
04-21-2011, 10:17 AM
They rewrote the act to "comply" with the ruling.

http://www.gunlaws.com/Gun_Free_School_Zones_Act.pdf

they "clarified" that the firearm in question had to affect interstate commerce, and that made the acts lawful (at least it hasn't been thrown out yet)

(2)(A) It shall be unlawful for any individual knowingly to
possess a firearm that has moved in or that otherwise
affects interstate or foreign commerce at a place that
the individual knows, or has reasonable cause to
believe, is a school zone.


And what costitutes a gun moved in or affecting interstate commerce?

BlindRacer
04-21-2011, 10:18 AM
They rewrote the act to "comply" with the ruling.

http://www.gunlaws.com/Gun_Free_School_Zones_Act.pdf

they "clarified" that the firearm in question had to affect interstate commerce, and that made the acts lawful (at least it hasn't been thrown out yet)

(2)(A) It shall be unlawful for any individual knowingly to
possess a firearm that has moved in or that otherwise
affects interstate or foreign commerce at a place that
the individual knows, or has reasonable cause to
believe, is a school zone.

But the original decision by SCOTUS said that it doesn't affect commerce, and that carrying a handgun can not be regulated by congress.

So is this just something that hasn't been overturned yet?


Then does this mean that if something is overturned, then the legislature whether federal or state, can simply change a few words, and enact basically the same law that was overturned? That could go back and forth forever, and they could get away with basically anything if this is true.

ke6guj
04-21-2011, 10:22 AM
And what costitutes a gun moved in or affecting interstate commerce?

basically "all of them".

If a firearm was made in AZ (Ruger) and you bought it in CA, that obviously was in interstate commerce to get here. the "affects interstate commerce" is when you buy a CA-made firearm instead of that AZ firearm, you affected interstate commerce by not buying the AZ one, less sales for AZ firearms means that the demand goes down and affects the prices of AZ-made firearms. yes, it is stupid, but that is basically what the SCOTUS said when they ruled on the CA medical Marijuana case, Raich.

J.D.Allen
04-21-2011, 10:23 AM
And what costitutes a gun moved in or affecting interstate commerce?

My question exactly. I guess the answer is basically all of them. Or perhaps if I purchase a new Ruger, which then would have never left the state of AZ before I bought it, it would be exempted from that?

Edit: Guess not, I hadn't seen the post above mine when I posted this

ke6guj
04-21-2011, 10:28 AM
But the original decision by SCOTUS said that it doesn't affect commerce, and that carrying a handgun can not be regulated by congress.the original law just banned firearms in GFSZs, with no mention of "interstate commerce". SCOTUS said that law is void becuase of no shown interstate commerce connection. So, they rewrote the law to show the connection of the law to interstate commerce.



So is this just something that hasn't been overturned yet?apparantly it has gone up to various Courts of Appeal already and hasnt' been overturned yet. SCOTUS hasn't taken up the new law.


Then does this mean that if something is overturned, then the legislature whether federal or state, can simply change a few words, and enact basically the same law that was overturned? That could go back and forth forever, and they could get away with basically anything if this is true.basically. SCOTUS said the law was void because you didn't show XYZ. So they re-wrote the law to include XYZ. SCOTUS could review the law againe and say that just adding XYZ wasn't good enough and it is voided again, but they haven't done that. Stuff like that happens all the time.

J.D.Allen
04-21-2011, 10:32 AM
Read: they can basically just do whatever they want. :puke:

Untamed1972
04-21-2011, 10:36 AM
basically "all of them".

If a firearm was made in AZ (Ruger) and you bought it in CA, that obviously was in interstate commerce to get here. the "affects interstate commerce" is when you buy a CA-made firearm instead of that AZ firearm, you affected interstate commerce by not buying the AZ one, less sales for AZ firearms means that the demand goes down and affects the prices of AZ-made firearms. yes, it is stupid, but that is basically what the SCOTUS said when they ruled on the CA medical Marijuana case, Raich.

Actually in re-reading that quoted code section I didn't notice the "HAS moved in". (ie has EVER been moved basically)

So yeah....the pretty much makes it sound like all of them.

What an effin' joke! Just seems like a ridiculous stretch to me.....because once it has been purchased by a private party for private use it is no longer a part of inter- or intrastate commerce......it's now private property.

ChuangTzu
04-21-2011, 10:43 AM
I can see, using the Raich "logic" at least, how just about all guns could be linked to interstate commerce. Wouldn't congress's burden, though, be to prove that possessing a gun in a "school zone" in some way affects interstate commerce? The purchase, production, sale, transportation across state lines, etc. can be very, very tenuously linked to interstate commerce but how does bringing a gun within 1000 feet of a school or not in any way affect it? Have they ever tried to make that argument?

ke6guj
04-21-2011, 10:50 AM
I can see, using the Raich "logic" at least, how just about all guns could be linked to interstate commerce. Wouldn't congress's burden, though, be to prove that possessing a gun in a "school zone" in some way affects interstate commerce? The purchase, production, sale, transportation across state lines, etc. can be very, very tenuously linked to interstate commerce but how does bringing a gun within 1000 feet of a school or not in any way affect it? Have they ever tried to make that argument?


because they said so.

(F) the occurrence of violent crime in school zones has
resulted in a decline in the quality of education in our
country;
(G) this decline in the quality of education has an adverse
impact on interstate commerce and the foreign
commerce of the United States;

no proof shown, but they said that it does.

ALSystems
04-21-2011, 10:50 AM
I guess it time to start packing a "homebuilt" gun if you are near any school zones.

Somehow, the courts will twist even that into "has moved in or that otherwise affects interstate or foreign commerce "

ChuangTzu
04-21-2011, 10:53 AM
I guess it time to start packing a "homebuilt" gun if you are near any school zones.

Somehow, the courts will twist even that into "has moved in or that otherwise affects interstate or foreign commerce "

Raich was a case concerning "homebuilt" marijuana which the court ruled affected interstate commerce...

ke6guj
04-21-2011, 10:55 AM
I guess it time to start packing a "homebuilt" gun if you are near any school zones.

Somehow, the courts will twist even that into "has moved in or that otherwise affects interstate or foreign commerce "

based on Raich, I'd assume so. By homebuilding that gun, you did not participate in interstate commerce, and by not participating in IC, you affected IC.

ChuangTzu
04-21-2011, 10:57 AM
(F) the occurrence of violent crime in school zones has
resulted in a decline in the quality of education in our
country;
(G) this decline in the quality of education has an adverse
impact on interstate commerce and the foreign
commerce of the United States;

no proof shown, but they said that it does.

Even given F and G, they still haven't shown a connection between carrying guns in a school zone and the decline in quality of education, merely that violent crime causes a decline in quality. Possessing a firearm in a school zone wasn't a crime until they made it one, and it's not a violent crime in any case.

:mad:

Untamed1972
04-21-2011, 11:06 AM
It's one thing to regulate actual commerce, like with guns....regulating those manufacturing them, or FFLs or regs on the commercial shipping or importation. Its quite another thing to use that excuse to regulate the carry/use/transport of a gun by a pvt. person once the gun has become pvt. property and is no longer a part of commerce.

Under the rationale of that bill there is nearly nothing congress couldn't claim power over because it has ONCE been a part of interstate commerce.

Why not pass a law on what color shirt I can/cannot wear on Thursdays because the shirts wear made in another state and sold across state lines?

Maestro Pistolero
04-21-2011, 12:08 PM
This will be like shooting fish in a bucket for the likes of Alan Gura, when the time comes. You can't use one part of the constitution in a manner that effectively could nullify and moot nearly the entire bill of rights.

Just because the new version of the law states that there is a connection doesn't mean that there is one, and the USSC us already on record saying that there isn't a connection between the GFSZS act and interstate commerce. The reasoning wouldn't even pass a rational basis test, and we know that the scrutiny is greater than that, post Heller.

BlindRacer
04-21-2011, 12:58 PM
This will be like shooting fish in a bucket for the likes of Alan Gura, when the time comes. You can't use one part of the constitution in a manner that effectively could nullify and moot nearly the entire bill of rights.

Just because the new version of the law states that there is a connection doesn't mean that there is one, and the USSC us already on record saying that there isn't a connection between the GFSZS act and interstate commerce. The reasoning wouldn't even pass a rational basis test, and we know that the scrutiny is greater than that, post Heller.

At least that gives hope for the future. It doesn't have to much of an affect on most people - those with CCW's. So it's not really a hinderance that needs to be taken care of right away. But it's good to know that it's easy pickings when the time comes.

I wounder if a case like this (going our way) would tie congresses hands when trying to use the commerce clause excuse in other areas. It seems that that clause is the most abused, and what has led to a giant government encroaching on all aspects of life.

BlindRacer
04-21-2011, 1:02 PM
Oh, you know what else is dangerous that's constantly in school zones? Gardner equipment. Lawnmowers that could cut of limbs, weed whackers that could cause severe lacerations. Hedge trimmers that could decapitate a person while showering puppies and kittens with blood. Yes, this inhumane machinery should be banned from being around schools. The potential of devastation is just too great! It's causing children to learn less. THAT is why our schools performance is declining, THAT is why our children are striving for less, THAT is why the economy is in decline. Commerce Clause to the rescue!

mdimeo
04-21-2011, 1:06 PM
My question exactly. I guess the answer is basically all of them. Or perhaps if I purchase a new Ruger, which then would have never left the state of AZ before I bought it, it would be exempted from that?

Nope. The steel it's made of moved in interstate commerce. Sigh.

mdimeo
04-21-2011, 1:10 PM
This will be like shooting fish in a bucket for the likes of Alan Gura, when the time comes.

Only if the supreme court actually takes the case. They haven't so far, and it's been upheld in multiple appellate courts.

This is a tough case to run, strategically, because it's hard for a good guy to get standing. All the cases that went to appeal were basically criminals trying to get out of a conviction.

Maestro Pistolero
04-21-2011, 1:40 PM
Another thought: How can the GFSZs be sensitive places in the Heller sense, if CCW licensees are exempt?

Maestro Pistolero
04-21-2011, 1:46 PM
Only if the supreme court actually takes the case. They haven't so far, and it's been upheld in multiple appellate courts.

This is a tough case to run, strategically, because it's hard for a good guy to get standing. All the cases that went to appeal were basically criminals trying to get out of a conviction.

So was the Chicago handgun ban.

BlindRacer
04-21-2011, 1:48 PM
Another thought: How can the GFSZs be sensitive places in the Heller sense, if CCW licensees are exempt?

Simple, they can't be.

If everything goes the way it should, then the only sensitive places with be after a security checkpoint...airports/courts/etc. No post offices, no schools, etc.

aklover_91
04-21-2011, 1:50 PM
This will be like shooting fish in a bucket for the likes of Alan Gura, when the time comes. You can't use one part of the constitution in a manner that effectively could nullify and moot nearly the entire bill of rights.

Just because the new version of the law states that there is a connection doesn't mean that there is one, and the USSC us already on record saying that there isn't a connection between the GFSZS act and interstate commerce. The reasoning wouldn't even pass a rational basis test, and we know that the scrutiny is greater than that, post Heller.

Could be the first step in shutting down the massive abuse of the commerce clause, too.

wildhawker
04-21-2011, 1:54 PM
Could be the first step in shutting down the massive abuse of the commerce clause, too.

I think the Healthcare Cases will hit first, and the outcome there will indicate much about the Court's deference to Congress on legislation passed under CC-derived powers.

-Brandon

CHS
04-21-2011, 2:25 PM
Another way to look at it: The 1st amendment and its relation to the separation of church and state is used to keep religion out of schools. (A good thing, in my opinion)

If the 1st amendment applies to school zones, why doesn't the 2A?

If a fundamental right applies to a zone, then ALL fundamental rights should apply to that zone.

School property may be treated as special, and we may never win that one, but an arbitrary "zone" of private dwellings and businesses that maintain zero relationship with the school are now affected as having virtually no 2nd amendment right.

Maestro Pistolero
04-21-2011, 2:43 PM
If everything goes the way it should, then the only sensitive places with be after a security checkpoint...airports/courts/etc. No post offices, no schools, etc.
I wonder if an argument could be made that if a person's 2A rights are to be suspended by the government in a sensitive area, that the responsibility for their safety would then shift to the government. Unlike now where police are not responsible for our safety at all.

Also, that if we are to be in a disarmament zone because it is, for whatever reason, truly sensitive, that EVERYONE but those burdened and bound to protect us would be disarmed. (i.e. there are metal detectors/ secure-sterile area, etc.)

J.D.Allen
04-21-2011, 2:55 PM
Another way to look at it: The 1st amendment and its relation to the separation of church and state is used to keep religion out of schools.

Not it's not. It's used to keep CHRISTIANITY out of schools, and maybe sometimes judaism. All the other religions get in just fine. They even teach them to the kids.

Now back to your regular programing.

pointedstick
04-21-2011, 3:06 PM
Not it's not. It's used to keep CHRISTIANITY out of schools, and maybe sometimes judaism. All the other religions get in just fine. They even teach them to the kids.

Now back to your regular programing.

This was my experience in school, especially college.

safewaysecurity
04-21-2011, 3:14 PM
Couldn't the addition of "that has moved in or that otherwise
affects interstate or foreign commerce" be considered unconstitutionally vague? I mean they are basically not specifically stating what constitutes effecting interstate commerce. And the individual would have to decide whether or not they are breaking the law. I mean it's kind of like the handgun ammunition thing isn't it? The don't specifically state what handgun ammunition is and potentially leave it as a blanket ban on all ammunition. Same thing with this law. It says only those that effect interstate commerce well doesn't that kind of imply that there are guns that do not effect interstate commerce? Otherwise why would they have to really add that in there? I don't think it's fair to really make laws that vague.

pointedstick
04-21-2011, 3:27 PM
Couldn't the addition of "that has moved in or that otherwise
affects interstate or foreign commerce" be considered unconstitutionally vague? I mean they are basically not specifically stating what constitutes effecting interstate commerce. And the individual would have to decide whether or not they are breaking the law. I mean it's kind of like the handgun ammunition thing isn't it? The don't specifically state what handgun ammunition is and potentially leave it as a blanket ban on all ammunition. Same thing with this law. It says only those that effect interstate commerce well doesn't that kind of imply that there are guns that do not effect interstate commerce? Otherwise why would they have to really add that in there? I don't think it's fair to really make laws that vague.

You're assuming that current commerce clause jurisprudence makes sense. :p The problem is that the court has basically ruled that even if an action doesn't have any relation to interstate commerce, it actually does because declining to engage in commerce still has an effect on commerce on the whole. Up is down, black is white, war is peace, and freedom is slavery.

kcbrown
04-21-2011, 3:58 PM
I think the Healthcare Cases will hit first, and the outcome there will indicate much about the Court's deference to Congress on legislation passed under CC-derived powers.


Perhaps, but might not the effect of the legislation before the court on the exercise of a fundamental right cause the court to change its stance a bit?

I suppose the healthcare cases might be a bit "cleaner" in that regard, though, and the winning strategy for us thus far has been to put relatively simple and straightforward questions in front of the court (to the degree possible, at any rate). A case involving both the commerce clause and a fundamental enumerated right might actually be more complicated to work through, and that's obviously not as ideal as a CC-only case.

However, that raises an important question: how good do we believe the healthcare cases to be as regards getting a favorable opinion from the Court? Does not the quality of the case have great impact on the resulting opinion? A Gorski case would probably lose while a Gura case would probably win, even if the question each case was asking was the same, no? Same question, same court, different answer, right?

craneman
04-21-2011, 4:31 PM
Another way to look at it: The 1st amendment and its relation to the separation of church and state is used to keep religion out of schools. (A good thing, in my opinion)

If the 1st amendment applies to school zones, why doesn't the 2A?

If a fundamental right applies to a zone, then ALL fundamental rights should apply to that zone.

School property may be treated as special, and we may never win that one, but an arbitrary "zone" of private dwellings and businesses that maintain zero relationship with the school are now affected as having virtually no 2nd amendment right.

This!

I just can't seem to shake the feeling I get when I think an enumerated right can be restricted by the Commerce Clause. Just so happens that it is only the 2A that is effected. I just can't see how this can legally be done with no recourse.

anthonyca
04-21-2011, 5:18 PM
I guess it time to start packing a "homebuilt" gun if you are near any school zones.

Somehow, the courts will twist even that into "has moved in or that otherwise affects interstate or foreign commerce "

They already have. wickard v filburn 1942 http://www.law.cornell.edu/supct/html/historics/USSC_CR_0317_0111_ZO.html

Raich was a case concerning "homebuilt" marijuana which the court ruled affected interstate commerce...

Yes, see above link.

based on Raich, I'd assume so. By homebuilding that gun, you did not participate in interstate commerce, and by not participating in IC, you affected IC.

That is what SCOTUS ruled in Wickard v Filburn.

Growing wheat on your own property, the wheat never leaving the property, affected interstate commerce due to the plaintiff not having to buy wheat. What a travesty.

kcbrown
04-21-2011, 6:55 PM
Growing wheat on your own property, the wheat never leaving the property, affected interstate commerce due to the plaintiff not having to buy wheat. What a travesty.

The problem here is that the Supreme Court has essentially equated regulating anything that affects interstate commerce with regulating interstate commerce itself. Others much more knowledgeable than I am can correct me, but I suspect the authors of the Constitution intended the latter and not the former.

One wonders how many ridiculous levels of indirection the Supreme Court is willing to go with that (what about regulating something which affects something else which, in turn, affects interstate commerce?). I'd bet the answer is "infinite".


And yes, it's a travesty of the highest order, one which might never be undone and, if it isn't, will be a huge contributor to the demise of the republic.

command_liner
04-21-2011, 7:39 PM
Back before he got to be famous, I spoke with Alan Gura on this issue.
We were at a legal education seminar at the McCormack & Schmidt in
Irvine CA; I think it was sponsored by the Madison Society.

The 2nd is superseding law, passed after the Commerce Clause. As a
result, it is _controlling_. Congress shall make no law...

Arms are the only items that are exempted from the Commerce Clause.
The Constitution is really clear on this point. Anybody with normal
reading comprehension can figure that out.

This point has yet to be litigated. Yes, it will be 'shooting fish in a barrel'.

PsychGuy274
04-21-2011, 8:45 PM
This thread is an example of why I love Calguns.

I'm studying right now and logged on specifically to ask the exact same question the OP did.

Awesome.

hoffmang
04-21-2011, 9:02 PM
Another thought: How can the GFSZs be sensitive places in the Heller sense, if CCW licensees are exempt?

There is a dangerous blind spot in this argument. A place could be a sensitive place that would allow a state or local government to prohibit guns but could also, at the same time, be a place where a state or local government has decided to allow guns as a policy matter.

The quintessential example of this would be courthouses. Some states will allow some class of non law enforcement gun carry and some will not. I do not see a Federal Court overturning a state ban on carry in a courthouse in those that chose to ban there.

It's a subtle but important point. Allowing licensed carry there is only evidence that it's not a sensitive place...

-Gene

safewaysecurity
04-21-2011, 9:07 PM
Back before he got to be famous, I spoke with Alan Gura on this issue.
We were at a legal education seminar at the McCormack & Schmidt in
Irvine CA; I think it was sponsored by the Madison Society.

The 2nd is superseding law, passed after the Commerce Clause. As a
result, it is _controlling_. Congress shall make no law...

Arms are the only items that are exempted from the Commerce Clause.
The Constitution is really clear on this point. Anybody with normal
reading comprehension can figure that out.

This point has yet to be litigated. Yes, it will be 'shooting fish in a barrel'.

?? Alan Gura said that guns are exempt from the commerce clause? You sure that's what he said? I highly doubt it.

command_liner
04-21-2011, 10:13 PM
?? Alan Gura said that guns are exempt from the commerce clause? You sure that's what he said? I highly doubt it.

Wow, that is some creative destruction...

I spoke with Alan on this point, he did not agree or disagree with my
quick analysis.

Like any good lawyer, he wants to get paid to argue this point. The
point is totally valid, as any English reader can figure out. Gura said
nothing: the authors of the Constitution spoke and wrote volumes on
this point. Take a read through Halbrook's "The Founders' Second
Amendment" for a survey of their writings.

The truth is out there...

BlindRacer
04-22-2011, 9:13 AM
Another way to look at it: The 1st amendment and its relation to the separation of church and state is used to keep religion out of schools. (A good thing, in my opinion)

If the 1st amendment applies to school zones, why doesn't the 2A?

If a fundamental right applies to a zone, then ALL fundamental rights should apply to that zone.

School property may be treated as special, and we may never win that one, but an arbitrary "zone" of private dwellings and businesses that maintain zero relationship with the school are now affected as having virtually no 2nd amendment right.

Wouldn't teaching religion be more equated to having a shooting range on a school zone? Nothing prohibits bibles being brought, or anyone from praying while in school zones. So the first Amendment isn't completely restricted by school zones. Only the teaching of religion by public schools (but like the other poster said, it's basically only Christianity, and Judaism that are banned).

So to say that the possession of a gun within a school zone is prohibited would be equated to the possession of a bible being prohibited. Now if people were banned from having their bible 1000 feet from a school, there would be some serious problems. THAT would cause another revolution.