In March of 1992, senior Alfonso Lopez carried a concealed weapon into Edison High School in San Antonio.
The Rehnquist Court (1994-2005). Seated, from left to right: Antonin Scalia and John Paul Stevens, Chief Justice William H. Rehnquist, and Justices Sandra Day O'Connor and Anthony M. Kennedy. Standing, from left to right: Ruth Bader Ginsburg, David H. Souter, Clarence Thomas, and Stephen G. Breyer.
In March of 1992, senior Alfonso Lopez carried a concealed weapon into Edison High School in San Antonio.
Initially, he was charged with violating a Texas law that banned firearms in schools. The next day, the state charges were dismissed after federal agents charged Lopez with violating the Gun-Free School Zones Act. He was tried, and found guilty. The Fifth Circuit Court of Appeals, however, reversed his conviction.
By a five to four vote, the Supreme Court held that the Gun Free School Zones Act exceeded Congress’s power under the Commerce Clause.
![During oral arguments Justice Ginsburg asked the Solicitor General “What are the limits, then?” and “What would be a case that would fall outside” the scope of federal powers. After an uncomfortable pause, he replied, “--I don't have--” Justice Scalia then interjected, “Don't give away anything here. [Laughter] [Congress] might want to do it next--” The inability of the Solicitor General to identify a “limiting principle” to its theory of Congressional power was fatal to the government’s argument.](https://conlaw.us/wp-content/uploads/2019/08/1995-US-v-Lopez-oral-argument-1024x576.png?v=1568588486)
During oral arguments Justice Ginsburg asked the Solicitor General “What are the limits, then?” and “What would be a case that would fall outside” the scope of federal powers. After an uncomfortable pause, he replied, “--I don't have--” Justice Scalia then interjected, “Don't give away anything here. [Laughter] [Congress] might want to do it next--” The inability of the Solicitor General to identify a “limiting principle” to its theory of Congressional power was fatal to the government’s argument.
“We start with first principles. The Constitution creates a Federal Government of enumerated powers.”
The Court quoted from James Madison in Federalist No. 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
The Court acknowledged that Jones & Laughlin Steel, Darby, and Wickard had “ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause.” Yet, he observed, “even these modern-era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits.”
![Rehnquist then identified “three broad categories of activity that Congress may regulate under its commerce power.” You can remember them with the helpful acronym, C.I.A. First, “Congress may regulate the use of the channels of interstate commerce.” The Court cited Darby and Heart of Atlanta as examples of Congress’s authority to keep “the channels of interstate commerce free from immoral and injurious uses.” For example, Congress can regulate local activities that block the flow of interstate commerce. Second, he explained, “Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” For example, Congress could protect ports and railroads from foreign terrorist attack, which are entirely intrastate. Third, he identified Congress’ “authority to regulate those . . . [intrastate] activities that substantially affect interstate commerce.” You will recall that the “substantial effects” test was established in in Darby and Wickard. Those decisions found that regulating such intrastate activity could be a necessary and proper means of regulating interstate commerce.With these three categories, the Court attempted to synthesize nearly a century of precedent. But then, Chief Justice Rehnquist added something new to the doctrine. He identified an outer limit of the third category: the “substantial effects test”: Congress could only regulate intrastate activity that is economic in nature.](https://conlaw.us/wp-content/uploads/2019/08/1995-US-v-Lopez-cia-1024x576.png?v=1568588388)
Rehnquist then identified “three broad categories of activity that Congress may regulate under its commerce power.” You can remember them with the helpful acronym, C.I.A. First, “Congress may regulate the use of the channels of interstate commerce.” The Court cited Darby and Heart of Atlanta as examples of Congress’s authority to keep “the channels of interstate commerce free from immoral and injurious uses.” For example, Congress can regulate local activities that block the flow of interstate commerce. Second, he explained, “Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” For example, Congress could protect ports and railroads from foreign terrorist attack, which are entirely intrastate. Third, he identified Congress’ “authority to regulate those . . . [intrastate] activities that substantially affect interstate commerce.” You will recall that the “substantial effects” test was established in in Darby and Wickard. Those decisions found that regulating such intrastate activity could be a necessary and proper means of regulating interstate commerce.With these three categories, the Court attempted to synthesize nearly a century of precedent. But then, Chief Justice Rehnquist added something new to the doctrine. He identified an outer limit of the third category: the “substantial effects test”: Congress could only regulate intrastate activity that is economic in nature.
“Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not.”
![The Gun Free School Zones Act, “has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” 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.” For this reason, Chief Justice Rehnquist concluded that the Act “cannot . . . be sustained under our cases upholding regulations of [economic] activities . . . which viewed in the aggregate, substantially affects interstate commerce.”](https://conlaw.us/wp-content/uploads/2019/08/1995-US-v-Lopez-gun-free-school-zones-act-1024x576.png?v=1568588428)
The Gun Free School Zones Act, “has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” 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.” For this reason, Chief Justice Rehnquist concluded that the Act “cannot . . . be sustained under our cases upholding regulations of [economic] activities . . . which viewed in the aggregate, substantially affects interstate commerce.”
The Gun Free School Zones Act, he concluded “has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” 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.”
“This constitutionally mandated division of authority was adopted by the Framers to ensure protection of our fundamental liberties.”
Justice Kennedy wrote a concurring opinion, joined by Justice O’Connor. He worried that “were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.”
![Justice Thomas wrote a separate concurring opinion. “In a future case,” he hoped, the Court “ought to temper [its] Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause.”](https://conlaw.us/wp-content/uploads/2019/08/1995-US-v-Lopez-Thomas-1024x576.png?v=1568588501)
Justice Thomas wrote a separate concurring opinion. “In a future case,” he hoped, the Court “ought to temper [its] Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause.”
![There were three separate dissents. Justice Stevens wrote “Whether or not the national interest in eliminating that market [for guns in schools] would have justified federal legislation in 1789, it surely does today.” Justice Souter’s dissent extolled “The practice of deferring to rationally based legislative judgments [as] a paradigm of judicial restraint.” Justice Breyer’s dissent found the Gun Free School zones Act “falls well within the scope of the commerce power as this Court has understood that power over the last half century.](https://conlaw.us/wp-content/uploads/2019/08/1995-US-v-Lopez-dissents-1024x576.png?v=1568588392)
There were three separate dissents. Justice Stevens wrote “Whether or not the national interest in eliminating that market [for guns in schools] would have justified federal legislation in 1789, it surely does today.” Justice Souter’s dissent extolled “The practice of deferring to rationally based legislative judgments [as] a paradigm of judicial restraint.” Justice Breyer’s dissent found the Gun Free School zones Act “falls well within the scope of the commerce power as this Court has understood that power over the last half century.
Implied Powers on the Rehnquist Court
A brief history of implied powers
In 1990, Congress enacted the Gun-Free School Zones Act. This law made it a federal crime “for any individual knowingly to possess a firearm” within 1,000 feet of a school zone. The law did not purport to regulate any commercial activity. Additionally, the government did not need to show that the firearm had traveled in interstate commerce — the so-called jurisdictional hook.
In March 1992, Alfonso Lopez carried a concealed handgun into Edison High School in San Antonio. Initially, the high school senior was charged with violating a Texas law that banned the possession of firearms in schools. The next day, the state charges were dismissed after federal agents charged Lopez with violating the Gun-Free School Zones Act. He was tried and found guilty. On appeal, the Fifth Circuit declared the statute unconstitutional.
The United States appealed the case to the Supreme Court.