beauty

I'm really likin' this video I randomly found on Youtube. Jeremy Fischer's other stuff is really good, too.

I'm in the computer lab, yet again procrastinating as I half-assedly listen to oral arguments on United States v. Lopez, trying to find a reason to curtail the federal government's commerce clause crutch. So, forgive me if I start rambling here, I'm just trying to get my head in order.

So, Lopez was a kid who brought a gun to his high school to give to another kid, and the thing was gang-related. He was federally prosecuted under the Gun Free Schools Act. This begs the question:

Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause?

The commerce clause was originally included to mediate trade disputes and regulate "Commerce among the several states". Over the last century and-a-bit, this has been constantly expanded to cover not just the strictest sense of interstate commerce, three aspects of interstate commerce that were mentioned by the State's attorney in Lopez: Channels, Instrumentality, and non-commercial activities that affect interstate commerce. The expansion peaked with Wickard v. Filburn in 1942 where the Court ruled that a farmer hadn't the right to produce more than the allowed amount of wheat for his own consumption...he had to buy it from the general market at federally controlled prices.

On the one hand, you could look at this expansion and say "sure, it makes sense, the economy goes down the tube and the SC gives congress increased power to fortify the economy". On the other hand, though, the decision in Filburn essentially said that an individual cannot provide for his own family under the rationale that, were everyone to be self-sufficient, it would negatively affect interstate commerce. That's ridiculous on so many levels...Jon, come up with a crazy analogy for that.

So, the application of the commerce clause has been drastically widened from its literal interpretation, but back to the original question: Is the Gun-Free School Zones Act unconstitutional? First off, the rationale that was used was because guns in schools negatively impacted education, and education was decidedly a non-commercial activity that affected interstate commerce, then gun possession could be regulated in cases where it would negatively impact education (according to the legislation, school zones and anywhere within 1k yards of a school zone border).

To a certain extent, the government has a point: gun violence in schools pretty clearly negatively impacts education, especially when it becomes commonplace (an urban gang-heavy neighborhood as opposed to a Columbine-type incident, which isn't to say "event" shootings aren't detrimental to education, just that there's not been much studied about them). Poor education or places of education, furthermore, results in physical relocation of families from that school district...the array of *potential* effects, at least those that are imaginable, goes on forever. It's worth noting that in passing the act, the government didn't produce any evidence of detrimental effects, which is an entirely new can of worms.

(Aside: Woah...makes me wonder if it works the other way around: brit-metal hollaback girl, anyone? B..a.n.a.n.a.S!)

(damnit, side-tracked again)

Secondly, this theory of non-commercial activity that affects commerce was in keeping with

(crap. as in, crap, i'm ADD)

previous court rulings, such as Wickard v. Filburn and Swift & Co. v. United States (in which the court ruled that "practical" connections to commerce (such as manufacture and transportation) fall under potential Commerce Clause regulation. Basically, the government was saying "We want you to uphold our law, so here's the argument using language that, given your previous decisions, you will absolutely love" and the supreme court just pulls the carpet out from under them by overturning at least a half-century of rampant commerce clause abuse by upholding the court of appeals' ruling that the Act was unconstitutional.

(rofl)

In the decision, Rehnquist writes that were the arguments put forth by the government attorneys accepted by the court, there would be very few, if any, areas of public policy which could be left to the states to regulate. Further, Rehnquist would be "hard-pressed to posit any activity by an individual that Congress is without power to regulate", which is even slightly more scary, as it implies that, accepting the government's arguments in this case, anything can be connected to interstate commerce by either having some cost associated with the act or through a reduction in "national productivity". Therefore, anything can be regulated. The conservative judges were willing to stop this train of thought before it got out of hand.

But the wierd part is, the majority doesn't decide the case on these grounds: that the current interpretation of the commerce clause afforded the government illegal amounts of power, and it should be trimmed back to a more strict interpretation of "commerce between the several states". Instead, Rehnquist chooses to strike down this particular law because he finds the possession of a firearm in a school zone NOT an economic activity...in a sense, instead of striking a blow to the government's overuse of the commerce clause, he just refuses to acknowledge that small arms trafficking is a gang-related, and thus economic (and more than likely interestate) business. The rationale here used could be similarly used to strike down a law prohibiting alchohol in schools if the person in question was just "in possession of it with intent to pass on to another" and not sell it, or more accurately, in possession of a still with intent to pass it to another to be used in making an illegal product.

The court here missed out on an opportunity to clarify the commerce clause to reign in government power while still allowing federal restrictions when it very clearly relates to commerce, traffic, or intercourse between the states; they instead truncated federal power as relates to a great, great many things and left it at that.

The problem with the decision made by the court, as far as I can tell, is that they made themselves the determinants of effect, instead of the interpreters of constitutionality. As pointed out in the dissent, previous cases have made it clear that Congress isn't required to present proof that something is bad, therefore they make it illegal, they're only required to have a "rational basis" for law, and perhaps "[Congress thought] guns and learning are mutually exclusive?"

I guess (and this is pre-Thorson shredfest, so it'll probably change in myriad manner) my conclusion is that were the supreme court to overturn the appeals court's decision, based on two factors. First, Congress had a "rational basis" for enacting the law. This means that their reasoning for doing so, as far as the courts are concerned, is unimportant, because it's reasonable to assume that guns aren't conducive to learning.

Second, as was pointed out in the dissent, things that have an effect on interstate commerce but are non-commercial in nature can be regulated by the federal government for the same reason that commercial activities that have an effect on interstate commerce are: the mere existence of their effect is enough to drop them into the purview of the federal government. For example, pollution is not always "commercial in nature" it is regulated by the federal government because its existence affects commerce in multiple states. Furthermore, "substantial" and "significant effects" were required, as per the earlier decisions, which would likely rule out government interference in every single aspect of your lives. In this case, however, gang-violence and its associated social ills would have counted as "significant", methinks.

More later, perhaps. That was a pretty good rough draft, eh?