US v Lopez


JUDGES: Authored by Russ Caditz-Peck with whom Chief Justice Jim Hanson joins; Dissenting Joseph Wheeler.


In the Matter of: the UNITED STATES, Respondent, v. ALFONSO LOPEZ, Jr., Appellant.


October 25, 2009, Filed

PRIOR HISTORY: United States v. Lopez, 514 U.S. 549 (1995)

COUNSEL: For Appellant: Laura Powell, Walla Walla, WA.

For Respondent: Melissa C. Navarro, Walla Walla, WA.




I.                 Facts of the Case

On March 10, 1992, respondent Alfonso Lopez, Jr., who was a 12th grade student, arrived at Edison High School in San Antonio, Texas, carrying a concealed handgun and five bullets (Navarro). The student was charged under Texas law with firearm possession on school premises according to Penal Code Ann. 46.03(a)(1) (Supp. 1994) (Navarro). The state charges were then reputed after federal authorities charged the respondent with violating the Gun-Free School Zones Act of 1990 (18 U.S.C. 922) (Navarro). The respondent moved to dismiss the federal indictment on the ground that the Gun-Free School Zones Act unconstitutionally allows Congress to control activities regarding commerce in public schools beyond its legislative powers (Navarro).

Outcome: The judgment of the United States Supreme Court was overturned.

II. The Gun- School Zones Act of 1990 does not surpass the regulatory power of Congress under the Commerce Clause.

A.     Court precedent holds that The Gun-Free School Zones Act of 1990 is an appropriate regulation of interstate commerce

The Supreme Court’s majority decision ruling the GFSZA unconstitutional was a misreading of the Commerce Clause; the decision contradicts nearly six decades of precedent permitting Congress to regulate interstate commerce; and the decision overturned precedent without establishing new criteria for lower court decisions, thus creating untenable ambiguity for future decisions.

As the counsel for the appellant appropriately noted, the judicial history of the Commerce Clause has produced a number of clear tests to determine whether an activity falls under the Commerce Clause (Powell, 2). In particular, the Court is most interested in two cases that the Supreme Court majority decision indirectly overturned. In Wickard v. Filburn 317 U.S. 111 (1942), the Court found that Congress may regulate local intrastate commerce if it has an “aggregate,” or “substantial” economic effect “irrespective of whether such effect is what at some earlier time might have been defined as ‘direct’ or ‘indirect’” (Wickard v. Filburn, 317 U.S. 111). In other words, Congress has the power to determine which activities—“directly” or tangibly a part of interstate commerce—can be regulated under the Commerce Clause. Congress was given deference to determine whether issues that are arguably related to aggregate commerce are indeed legal to regulate under the Commerce Clause.

Furthermore, as counsel for the appellant noted, the recent Gonzales v. Raich 545 U.S. 1 (2005) decision upheld Wickard by ruling that the aggregate effect of home marijuana growing on interstate commerce was substantial to warrant regulation by Congress under the Commerce Clause. Gonzalez established that the economic impact of intrastate possession of marijuana is substantial enough for Congress to regulate; one recent study estimated the U.S. government (both federal and states) spends $12.9 billion per year on intrastate and interstate enforcement of marijuana laws (Miron, 2008). This Court finds that intrastate gun possession and use has similar, substantial aggregate effects on the national economy; one recent study estimated that the federal and state government spends over $4.7 billion on medical costs for nationwide gun assault-related expenses annually, not to mention billions more in legal and law enforcement costs (Public Services Research Institute, 2008). The possession and use of guns and marijuana have similarly substantial effects on the national economy, and thus as commodities warrant regulation under the Commerce Clause. Gonzalez illustrated that attempts to identify “substantial” versus “insubstantial” effects are bound to fail. Such distinctions are overly subjective to serve as a basis for legal rulings regarding interstate commerce.

B.     The possession of guns in schools has a direct, substantial impact on interstate commerce

The possession of guns in schools has a direct, substantial impact on interstate commerce and should be regulated under the Commerce Clause. The fact that many general activities have a substantial effect on interstate commerce does not supersede this rule; rather, it should be understood as an expression of the increasingly interconnected nature of modern society, including both state and national economies.  The Court has determined that the effects of in-school gun possession on interstate commerce are well-illustrated in three clear ways: the burden on federal tax funds, the costs to out-of-state insurance companies and hospitals, and the effect on quality of education—which is directly linked to the national economy.

The effect of all gun violence on the national, interstate economy is colossal. Recent studies show that firearm homicides and assaults in the United States cost the national U.S. economy approximately $100 billion annually, or about $360 for every American (Lemaire, 2005.) In particular, possession and use of guns in school is rampant: studies have shown that 12 percent of American high school students in urban areas have had guns fired at them (Centers for Disease Control 2342; Sheley, McGee, & Wright 679); four percent of American high school students—including six percent of inner city high school students—carry a gun to school at least occasionally (ibid); and that, in any 6 month period, hundreds of thousands of schoolchildren are victims of violent crimes in or near their schools, (U. S. Dept. of Justice 1 (1989); House Select Committee Hearing 15 (1989)). Much of these costs are borne by the federal government, which—in shared burden with state and local governments—pay at least $4.7 billion in medical costs for nationwide gun assault-related expenses annually. Beyond medical care, this figure also takes into account related economic costs for mental health treatment, emergency transport, additional police, additional criminal justice, and lost taxes (Public Services Research Institute, 2008). Because much of the burden of this violence paid for by federal tax funds is collected across state lines, it is reasonable to note that in-school gun violence does indeed substantially impact interstate commerce.

Furthermore—as the counsel for the appellant specifically addressed in her oral argument—the negative economic impact of in-school gun violence on out-of-state insurance companies and hospitals is substantial, and renders the GFSZA pertinent to interstate commerce.  In a 1999 study, it was found that 20 percent of the medical costs for gun assaults are paid by private insurance companies (Cook et al., 1999).  A subsequent 2005 study showed that the annual cost of gun assaults for insurance companies potentially reaches into the billions of dollars. (Lemaire, 2005). These private insurance companies are liable for in-school gun violence committed out of their home state of operations. Additionally, in many cases these insurance companies are billion-dollar enterprises with significant influence on the national economy. Further, many of these corporations offer stock that is publicly traded between investors residing across state lines (Atlantic Information Services, 2009).

Hospitals bear a similar economic burden: studies indicate that injuries from gunshots result in $802 million a year in hospital charges nationwide, with nearly a third of victims uninsured. Hospitals often absorb the costs of treating the uninsured. (Associated Press, 2003). It is reasonable to draw the conclusion that in-school gun violence similarly impacts hospitals, and that victims are treated in hospitals across state lines as well as in hospitals owned by firms outside of the state.

            Last, gun possession and use in school has a nocuous affect on the quality of education students receive. This, in turn, has a negative effect on individual students’ employment prospects, which greatly injures the national economy and interstate commerce as a whole. Appellant’s council cites Erwin Chemerinsky’s article “The Values of Federalism,” which explains that “School gun-violence, or even the mere presence of guns in school, can significantly affect a student’s ability to learn…[and to] economically compete in society” (Chemerinsky, 1995). Further, a recent study found that children who are injured by gun violence or witness violent acts at close proximity have a higher likelihood of emotional and employment problems (Garbarino, 2009). Another study found that community violence, including gun violence, has the equivalent emotional impact on children as war or natural disaster (Fowler, 2009). In our increasingly competitive and global economy, the tremendous negative effects that guns in schools have on educational quality must be understood as directly linked to the national economy and interstate commerce.

C.     Ruling the Act unconstitutional sets a precedent that undermines the ability of the federal government to regulate commerce in any meaningful way

Ruling the GFSZA unconstitutional creates a patchwork of regulation that undermines the ability of the Congress to regulate commerce in any meaningful way. If commodities such as guns, which arguably—rather than tangibly and directly—affect interstate commerce, cannot be federally regulated under the Commerce Clause, then the federal government will only have the authority to regulate guns that were transported or sold across state lines. This requires the federal government and states to create a patchwork of regulation to determine which guns merit regulation, which in turn jeopardizes the federal government’s ability to fulfill their responsibility to reduce gun violence. Every gun possession charge will require investigation to determine whether it was involved in interstate activities; this places an unnecessary burden upon the legal system, law enforcement, and the quality of education in schools. Furthermore, it sets a precedent that all commodities that arguably—rather than tangibly—affect interstate commerce will require a similar complex patchwork of regulation, which effectively undercuts the practical ability of Congress to regulate commerce in any meaningful way.

II.               Conclusion

We reverse the Supreme Court’s finding that the GFSZA is unconstitutional. The Supreme Court undermined previous precedent regarding the Commerce Clause and failed to establish clear criteria for future application of the law. Further, the possession of guns in schools—as regulated by the GFSZA—has a direct, substantial impact on interstate commerce. The effect of in-school gun possession and use has significantly affected the use of federally collected taxes, the business of out-of-state insurance companies and hospitals, and the future employment of students in contact with guns in school—which directly impacts the national economy. Finally, ruling the GFSZA unconstitutional creates a patchwork of regulation that undermines the ability of the Congress to regulate commerce in a meaningful way.


Works Cited

Atlantic Information Services.“10 Largest Publicly Traded Managed Care Companies” 2009. 24 Oct. 2009. <>

Associated Press. “Study: Gun Injuries Cost $802 Million Nationwide” Jan. 2 2003. Oct 24 2009. <>

Cook, Philip J., Bruce A. Lawrence, Jens Ludwig, Ted R. Miller, The Medical Costs of Gunshot Injuries in the United States, JAMA 281 (1999): 447-54.

Chemerinsky, Erwin. “The Values of Federalism.” Florida Law Review. 46 (1995): September: 499-530.

Fowler, Patrick J., et al, Community Violence: A Meta-Analysis on the Effect of Exposure and Mental Health Outcomes of Children and Adolescents, Development and Psychopathology 21 (2009): 227-259 <>

Garbarino, James, Catherine P. Bradshaw, and Joseph A. Vorrasi, Mitigating the Effects of Gun Violence on Children and Youth. The Future of Children: Children, Youth, and Gun Violence, <>

Lemaire, Jean. The Cost of Firearm Deaths in the United States: Reduced Life Expectancies and Increased Insurance Costs, The Journal of Risk and Insurance, (2005) 72 (3), 359-374 <>

Miron, Jeffrey A. The Budgetary Implications of Drug Prohibition, The Criminal Justice Policy Foundation, (2008), 1.<>

Public Services Research Institute, National Crime Firearm Violence Costs and Costs for Illinois, Oregon, Utah, and California (2005). <>

“Wickard v. Filburn – Case Brief.” Lawnix. 21 Jan. 2009. 24 Oct. 2009. <>



Dissenting, Justice Joe Wheeler


I. Federal Regulation in this Case Would be Unconstitutional

            Placing emphasis on reducing gun violence to ensure the safety of children at schools is a worthwhile state interest. However, this should not be done at the cost of infringing upon the Constitution. The Guns-Free School Zones Act (GFSZA) exceeds Congress’ legislative powers under the Commerce Clause. The Commerce Clause in the Constitution states Congress’ power as the ability to “regulate Commerce…among the several states,” (US Const., art. 1, 8, cl. 3) (Navarro). In the landmark case of Gibbons v. Odgen, 22 U.S. 1 (1824), the Supreme Court set a criteria to determine Congress’ ability to regulate commercial activity, which is as follows: first, the regulated activity had to be ‘commercial;’ and second, it had to affect commerce in more than one state” (Jost, 200) (Navarro).

More recently, the Supreme Court has made it immediately clear that “the proper test requires an analysis of whether the regulated activity 'substantially affects' interstate commerce," (Lopez, 514 U.S. at 559). As such, purely intrastate activities must impact interstate activities in a very significant way before Congress may legislate under the Commerce Clause. Chief Justice Rehnquist wrote in United States v. Morrison, 529 U.S. 598 (2000), that there are three categories of activities that Congress “may regulate and protect under its commerce power: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce; and (3) those activities that substantially affect interstate commerce (Jost 210). As explained by the First Circuit, the ‘substantial effect’ test requires that there be evidence of “impacts” within the United States, and that these be of a “sufficient character and magnitude to give the United States a reasonable strong interest in the litigation” (International Law Office).

In his concurring opinion, Justice Thomas wrote: “[I]t seems to me that the power to regulate commerce can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States … Today, it is easy enough to say that the Clause certainly does not empower Congress to ban gun possession within 1,000 feet of a school.”

Council for Appellants argues that school gun violence impacts commerce by increasing public medical costs and decreasing employment prospects (Powell). However, the existence of gun violence is distinct from guns near school zones. 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 those terms are defined. Nor is it 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 the Court's 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 ( Moreover, 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite Page II nexus with interstate commerce ( Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce (

Council also claims school gun violence decreases employment prospects (Powell). However, when asked to provide specific evidence as to how school gun violence decreases employment prospects, Counsel for Appellants gave no specific evidence in her presentation.

The Supreme Court looked at two factors in its ruling: (I) jurisdictional element: whether the gun had moved in interstate commerce and (II) whether there had been Congressional findings of an economic link between guns and schools (Rehnquist). Council for Appellants provides no solid evidence that the gun Lopez was carrying had moved in interstate commerce. Council also provides no evidence, based upon Congressional findings, that there is an economic link between guns and schools. This case rests upon whether the presence of Lopez’ gun significantly impacted interstate commerce, which is still unclear. It is entirely possible that the gun was purchased and produced within the state; the law should not assume that it was not. Recently, a lawsuit has been filed against U.S. Attorney General Eric Holder seeking a court order that the federal government stay out of the way of Montana's management of its own firearms (Unruh). The law provides that guns and ammo made, sold, and used in Montana could not be federally regulated (Unruh). Similarly, the “Tennessee Firearms Freedom Act” was recently passed, asserting that if a firearm and/or ammunition is made totally within the state of Tennessee, then the federal government has no jurisdiction over that item in any fashion, so long as it remains in the state (Locker).

Justice Thomas referred back to Gibbons v. Ogden to make clear that Congress could not regulate commerce “which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States” (Navarro). Moreover, while suggesting that the Constitution might not permit States to regulate interstate or foreign commerce, the Court observed that "inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State" were but a small part "of that immense mass of legislation . . . not surrendered to a general government" (U.S. Supreme Court) Id., at 203. That the internal commerce of the States and the numerous state inspection, quarantine, and health laws had substantial effects on interstate commerce cannot be doubted (U.S. Supreme Court). Nevertheless, they were not "surrendered to the general government” (U.S. Supreme Court). 

II. States Have Jurisdiction to Regulate Gun Laws

            In his majority opinion, Rehnquist stated that if Congress were allowed to regulate guns in schools, Congress would be able to regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce (39 Akron L. Rev. 323). This ruling is consistent with the majority opinion first articulated in National League of Cities v. Usery (426 U.S. 833 (1976)). The majority opinion held that:

Insofar as the 1974 [Fair Labor Standards Act] amendments operate directly to displace the States' abilities to structure employer-employee relationships in areas of traditional governmental functions, such as fire prevention, police protection, sanitation, public health, and parks and recreation, they are not within the authority granted Congress by the Commerce Clause. In attempting to exercise its Commerce Clause power to prescribe minimum wages and maximum hours to be paid by the States in their sovereign capacities, Congress has sought to wield its power in a fashion that would impair the States' "ability to function effectively in a federal system," (Fry v. United States, 421 U.S. 542, 547 n. 7), and this exercise of congressional authority does not comport with the federal system of government embodied in the Constitution. Pp. 840-852.

            Congress may not exercise its power to regulate commerce to infringe on the states’ ability to make essential decisions regarding the conduct of integral governmental functions. (Fry v. United States, supra, distinguished; Maryland v. Wirtz, 392 U.S. 183 , overruled. Pp. 852-855). Rehnquist’s “substantial effects” test established the justification required for federal regulation; the activity in both Usery and Lopez were ruled as insubstantial, and thus not authorized to be federally regulated. This does not mean that the federal government cannot regulate any commercial activity, just those that do not meet the tests of the Commerce Clause and that do not have clear, substantial effects on interstate commerce.

III. States can more Effectively Regulate Gun Laws

            Justice Caditz-Peck argues that the “effect of all gun violence on the national, interstate economy is colossal.” Certainly, this is a significant factor worth considering. However, states have legal authority to regulate in an effort to minimize these effects. This constitutional authority should be upheld given that states have closer ties to residents than the federal government; the state can make better informed regulations that are customized to meet certain needs, depending on the state (Navarro).

Council for Appellants provides no proof that the federal government is better fit to regulate gun violence than state governments. Council provides extensive information concerning the negative impacts of gun violence, but there is no mention of the root of this violence. Most aggressors of gun violence in schools are males, to varying degrees not a part of the mainstream school social structure, and subject to bullying (McGoey). This factor is important when considering the government’s goal of reducing gun violence. Rather than justifying an unconstitutional act of Congressional authority, implementing state funded programs reaching out to children who are socially outcast would be a more direct way to mitigate the root of gun violence. For example, the North Carolina School Violence Prevention Act was passed earlier this year (Palmquist). Similarly, the Ceasefire Oregon Education Foundation works to reduce gun violence by educating the public and providing opportunities to dispose of unwanted firearms.

The Framers intended to prevent the accumulation of excessive power in any one branch by separating federal and state governments; this reduces the risk of tyranny and abuse from either front (Navarro). Federal regulation of commerce should be permitted only when the activity is commercial, and when it affects commerce in more than one state; to rule otherwise would violate the principles of federalism. Moreover, states can more effectively protect individuals within their own borders.

III. Conclusion

Council for Appellants has made no specific findings­ with any support that guns in schools have an effect on interstate commerce. Authorizing federal regulation in this case is unconstitutional under the Commerce Clause. For this reason, gun violence in schools should be reduced through state—not federal—sanctions, upholding the importance of the separation of powers set forth by the Framers.

As such, I respectfully dissent.