United States v. Lopez: Summary
by Claire Prestel

After a half-century of deference to congressional legislation, the Supreme Court in United States v.Lopez, 514 U.S. 549 (1995) raised the "dormant" Commerce Clause to strike down the Gun-Free School Zones Act of 1990. n1 Rejecting any suggestion that possession of guns near public schools is a commercial activity, the Court held that by prohibiting such possession, Congress exceeded its authority to regulate interstate commerce. In so holding, the Supreme Court affirmed reversal of Lopez's conviction. n2

Chief Justice Rehnquist begins his Lopez majority opinion by emphasizing that protection of our fundamental liberties demands a limited federal government with clearly enumerated powers. The Supreme Court's commitment to limited government has been, Rehnquist argues, a hallmark of its Commerce Clause jurisprudence. As proof of the Court's commitment, the Chief Justice first cites language in the early case of Gibbons v. Ogden, 22 U.S. 1 (1824): "Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more states than one. . . . The enumeration presupposes something not enumerated; and that something . . . must be the exclusively internal commerce of a State." n3 Rehnquist goes on to identify similar limiting language in a series of pre-New Deal cases which approved some federal commercial regulations (by finding the intrastate and interstate aspects of an activity so connected as to be inextricable), but struck down others (by declaring "production" and "manufacturing" distinct from commerce and not subject to regulation or by labeling the regulated behavior as having too "indirect" an effect on commerce). The Chief Justice then comes to NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) which marked the beginning of a new era in the Court's approach to Commerce Clause authority. Rejecting the somewhat confused distinctions between "production" and "commerce" and between "direct" and "indirect," the New Deal Court instead established a single constitutional test: Congress' regulatory authority extends only to those activities which "substantially affect" interstate commerce.

In Lopez, Rehnquist adopts the "substantially affects" test but emphasizes that the Court has consistently interpreted Commerce Clause authority as limited, as preventing a centralized government or federal police power, and as necessarily consistent with the maintenance of our federal system. Given these limitations, the Commerce Clause gives Congress the authority to regulate in three areas: the "channels of interstate commerce," the "instrumentalities of interstate commerce," and those additional activities having "a substantial relation to interstate commerce." n4 Rehnquist argues that the Gun-Free School Zones Act falls only in the third category and that even the Court's broadest interpretation of the Commerce Clause (in Wickard v. Filburn, 317 U.S. 111 (1942)) never contemplated regulation of an activity so remotely connected to any "economic enterprise." n5 The Chief Justice also notes that while specific congressional findings as to the connection between school violence and interstate commerce would perhaps have been helpful, they are entirely absent from the congressional record.

Rehnquist rejects the Government's arguments that the costs of violent crime in our nation's schools are paid nationally, not locally, and that violence in school undermines the educational system in such a way as to create less productive citizens and a crippled economy. According to Rehnquist, an extension of the Commerce Clause power to cover activities with such an attenuated connection to interstate commerce would allow for no rational limits to Congressional regulatory authority. If Congress is left free to regulate gun possession near schools - something which is "in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce" n6 - it could conceivably control almost any area of the law for which the States have traditionally taken responsibilty, including education or even family law. To find the possession of guns near schools a commercial activity subject to Congressional regulation would, according to the majority, require the piling of "inference upon inference" and would open the door to a "general police power." n7

In a concurring opinion joined by Justice O'Connor, Justice Kennedy places even greater emphasis on the Court's obligation to protect our federal system. Kennedy argues that federalism - the revolutionary idea that two governments can protect liberty better than one - was in many ways the Framers' most unique insight. In order for the federal system to work, however, two types of political accountability are required: between citizens and the federal government and between citizens and state government. To hold both governments appropriately accountable, citizens must be able to easily identify each government's sphere of responsibility; there must be a clarity of roles and a sensible transparency. That necessary clarity is lost as soon as the federal government substantially invades areas of the law traditionally left to the States. Kennedy sees such an invasion here; the States have long governed our educational system and been held responsible for its effectiveness. For Justice Kennedy, the possession of a gun near school is not only beyond commerce "in the ordinary and usual sense of that term," it is, perhaps more importantly, an activity that has been and should be regulated by the States. n8 The States should remain free to experiment with solutions to the problem of school violence, and Justice Kennedy points to several states which have begun to do so.

In a dissent joined by Justices Stevens, Souter and Ginsburg, Justice Breyer argues that the Gun-Free School Zones Act falls within the Commerce Clause power as it has been interpreted by the Court for the past half century. In support of his argument, Breyer identifies three key elements in the Court's Commerce Clause jurisprudence. First, the Court has held that Congress' Commerce Clause power allows for regulation of activities which "significantly affect" interstate commerce. n9 Second, Breyer argues that in prior cases the Court has not considered the activities in question as individual incidents but has looked to the cummulative effect on interstate commerce of all similarly situated acts. Finally, Breyer emphasizes that investigating the fundamental connection between the regulated activity and interstate commerce has traditionally been the province of Congress. The Court need only consider whether Congress had a "rational basis" for finding that gun possession near schools (when considered in the aggregate) substantially affects interstate commerce. n10 To this end, Breyer cites several empirical studies which document the problem of guns and violence in the public schools and which see that problem as a serious threat to educational quality. Breyer then argues that in the new information economy, a well-educated citizenry is necessary for competitive development and thriving commerce. Given what he describes as these "obvious" links n11, the only remaining question for Breyer is whether the effect of school violence on interestate commerce is "substantial." n12 His answer is that the "extent of the gun-realted violence problem," the "extent of the resulting negative effect on classroom learning," and the "extent of the consequent negative commercial effects" clearly indicate a substantial threat to commerce. n13 "At the very least," according to Breyer, Congress could rationally have come to such a conclusion. n14

After making this argument in favor of the Gun-Free School Zones Act, Justice Breyer responds to the majority's expressed concern that finding the Gun-Free School Zones Act constitutional leaves no rational basis for limiting Congressional regulatory authority in the future. Breyer argues that not all Congressional regulation will meet his test for constitutionality, but that this statute does because it is aimed at a "particularly acute threat to the educational process" and because the "immediacy of the connection between education and commerce has been documented and accepted in a way that may not be true of other social instiutions." n15 In fact, Breyer says, it will be the "rare" statute that strikes at conduct which may seem removed from commerce in the abstract but which has so significant a commercial impact in practical terms. n16

Justice Breyer concludes his dissent with three legal problems he sees in the majority's holding. First, he finds Rehnquist's opinion contrary to earlier Court decisions which approved Congressional regulation of activity less connected to interestate commerce than school violence (As an example, Breyer cites Katzenbach v. McClung, 379 U.S. 294 (1964), which upheld federal regulation of race discrimination in local restuarants). Breyer also sees the majority's distinction between "commercial" and noncommercial "transaction[s]" as resurrecting discredited distinctions abandoned during the New Deal era. n17 Finally, Breyer suggests that the majority opinion unnecessarily introduces new "legal uncertainty" to a "well settled" area of the law. n18

Three main arguments - Rehnquist's belief that the Gun-Free School Zones Act regulates a non-commercial activity, Kennedy's emphasis on maintaining the federal system, and Breyer's reliance on both empirical evidence of commercial effects and on recent Supreme Court deference to Congressional legislation - articulate the Court's approach to Lopez. All three arguments will again be addressed in the Court's disposition of United States v. Morrison.

For a summary of the concurrence written by Justice Thomas, go here.

For a summary of the dissent written by Justice Stevens, go here.

For a summary of the dissent written by Justice Souter, go here.

Additional Dissents and the Thomas Concurrence

In his own concurrence, Justice Thomas suggests that this is an easy case for the Court as gun possession has precious little to do with commerce. In anticipation of more difficult cases, Thomas calls on the Court to entirely reconsider its "substantial effects" test. According to Justice Thomas, even those words allow for an inappropriate, ahistorical and unconstitutional extension of Congressional authority.

In a characteristically brief dissent, Justice Stevens echoes Justice Breyer's emphasis on the importance of education to our nation's commerce and Justice Souter's criticism of the majority opinion as a "radical" departure from precedent and as similar to the discredited pre-New Deal understanding of substantive due process. Stevens goes on to emphasize that guns are a commercial product whose possession is always a direct or indirect result of commerce, and he concludes by noting that the national interest in eliminating the distressing market for guns near schools is enough to justify federal legislation today, even if it might not have been enough to justify such legislation in 1789.

Justice Souter begins his own dissent with an argument forjudicial restraint and for a broad reading of the commerce clause: the Courtshould accept Congress' conclusion that an activity affects interstate commerceif there is "any rational basis for such a finding." n19 If a connection between gun possession and interstate commerce can be found"within the realm of reason," the "only remaining question for judicial inquiryis whether 'the means chosen by Congress [are] reasonably adapted to the endpermitted by the Constitution.'" n20 Instead of addressingthat question alone, Souter sees the Court's majority returning to pre-New Dealjudicial activism. He warns of an effort by the Court to further its ownsubstantive political aims with discredited legal theory.


n1: Lopez, 514 U.S. at 579 (Kennedy, J., concurring).

n2: While in the twelfth grade, Lopez was caught carrying a .38 caliber handgun at school; he was subsequently convicted in District Court of violating the Act.

n3: Gibbons, 22 U.S. at 194-95.

n4: Lopez, 514 U.S. at 558.

n5: Id. at 561.

n6: Id. at 567.

n7: Id.

n8: Id. at 583 (Kennedy, J., dissenting)..

n9: Id. at 615.

n10: Id. at 617.

n11: Id. at 622.

n12: Id. at 623.

n13: Id.

n14: Id.

n15: Id. at 624.

n16: Id.

n17: Id. at 627.

n18: Id. at 630.

n19: Id. at 603 (Souter, J., dissenting).

n20: Id.