Lopez, United States v., 514 U.S. 549 (1995), argued 8 Nov. 1994, decided 26 Apr. 1995 by vote of 5 to 4; Rehnquist for the Court, Kennedy filing a concurring opinion, in which O'Connor joined, and Thomas filing a concurring opinion, Stevens, Souter, Breyer, and Ginsburg in dissent. Congress in 1990 enacted the Gun‐Free School Zones Act, making it a federal offense to possess a firearm in a school zone. Congress relied on the authority of the Commerce Clause of the Constitution to justify passage of the legislation as a way of stemming the rising tide of gun‐related incidents in public schools.

Alfonso Lopez, Jr., was in 1992 a senior at Edison High School in San Antonio, Texas. Acting on an anonymous tip, school authorities confronted Lopez and discovered that he was carrying a. 38 caliber handgun and five bullets. A federal grand jury subsequently indicted Lopez, who then moved to have the indictment dismissed on grounds that the federal government had no authority to legislate control over the public schools. At a bench trial, the federal district court judge found Lopez guilty and sentenced him to six months' imprisonment and two years' supervised release. Lopez then appealed to the federal Court of Appeals for the Fifth Circuit, which reversed the conviction and held the Gun‐Free School Zones Act unconstitutional as an invalid exercise by Congress of the commerce power.

The Lopez case posed the question of the extent to which Congress could exercise authority over street crime and, in so doing, intrude into constitutional space traditionally occupied by the states. Since the New Deal of the 1930s, the Supreme Court had accepted that Congress had broad authority to regulate virtually every aspect of American life under the cover of the federal Commerce Clause. Moreover, the bombing of the federal office building in Oklahoma City, while it had occurred after passage of the Gun‐Free School Zones Act, created a political environment where both the Clinton administration and Republican congressional leaders believed that the federal government had to combat domestic terrorist groups and the weapons that they used.

The case drew considerable attention from diverse interest groups. The National Education Association, for example, joined with the Clinton administration and various antigun groups to argue that schools had experienced difficulty in handling gun‐related crimes. For the government, Solicitor General Drew S. Days argued that the law was different from other statutes dealing with firearms in that it targeted possession rather than sale. Yet Days also insisted that a close connection existed between violence in schools and the movement of guns in interstate commerce. The government insisted that guns were often used as part of the drug culture that was itself carried on through national commerce. The government also argued that in this instance Congress was merely trying to supplement state law rather than trying to supplant it, hence it did not have to demonstrate as strong a link between the movement of guns in interstate commerce and the establishment of gun‐free schools zones as it might otherwise have had to do.

The National Rifle Association, the National Conference of State Legislatures, the Cato Institute, and trial lawyers and consumer groups fighting tort reform opposed the legislation. They insisted that while the goal of reducing school gun violence was laudable, Congress had failed to establish a rational relationship between banning guns and the mere possession of one. Since Congress could not make a link between firearms possession and interstate commerce, they insisted, there was no reason to regulate gun possession in schools in the first place. Such regulation, in any case, properly belonged at the state and local level, and it was simply beyond the power of Congress to regulate control over public schools. These same groups also worried that increasing federal authority over local crimes posed a threat to the states' sovereignty and to individual liberty.

A sharply divided Supreme Court affirmed the decision of the Fifth Circuit and struck down the law. Chief Justice William Rehnquist's majority opinion was one of the few times since the 1930s when the justices held a congressional action unconstitutional on the ground that it violated states' rights. Rehnquist held that the gun‐free schools law far exceeded the bounds of the federal commerce power. Indeed, the chief justice found that given the theories advanced by the federal government in this case, “it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically had been sovereign. Thus, if we were to accept the Government's arguments, we are hard‐pressed to posit any activity by an individual that Congress is without power to regulate” (p. 564). To Rehnquist's opinion, Justice Clarence Thomas added a strongly worded concurrence that offered a conservative history of the commerce power that purported to show that the Court had permitted Congress to turn it into a “blank check” (p. 602).

The dissenters in the case insisted that Congress had historically had the power to do what it had done and that the buying, selling, and possessing of guns were deeply implicated in commercial activity. Justice Stephen Breyer argued in dissent that he could not understand why the majority would accept that Congress had the power to regulate the school environment by keeping it free from controlled substances, asbestos, and alcohol but not guns. The dissenters also charged that the decision threatened to return the justices to the era of substantive due process of law and the substitution of the views of the Court for those of elected public officials.

The Lopez decision underscored the significant changes wrought by Republican presidents Ronald Reagan and George H. W. Bush on the Court. The decision was widely viewed at the time as a stalking horse by the Court's conservative justices to attack a wide range of federal social policies. Perhaps most important, however, the decision affirmed the strong interest of the high court in supporting state sovereignty, a development that has become a hallmark of the Rehnquist Court.

Kermit L. Hall

UNITED STATES V. LOPEZ

UNITED STATES V. LOPEZ, 514 U.S. 549 (1995), curtailed congressional regulatory authority under the Commerce Clause (U.S. Constitution, Article 1, section 8) and called into question the post-1937 understanding of judicial review and the separation of powers. From 1880 through 1937, the Supreme Court had often restrained congressional commerce power, relying on an artificial distinction between "manufacturing" and "commerce," as well as a supposed state sovereignty acknowledged by the Tenth Amendment. After 1937, however, the Court seemingly authorized unrestricted congressional power to regulate economic matters under its commerce power.

Chief Justice William H. Rehnquist's opinion for a 5-4 majority in Lopez therefore came as a surprise, holding unconstitutional the federal Gun-Free School Zones Act on the grounds that school violence did not "substantially affect" interstate commerce. The majority relied on a distinction between "commercial" and "noncommercial" activity to delineate federal power. Justice Clarence Thomas, concurring, tried to disinter the manufacturing-commerce distinction. The dissenting justices would have upheld the statute, finding an adequate connection between interstate commerce and the effects of school violence.

United States v. Morrison (2000) confirmed the assumption that Lopez signaled a significant departure from previous commerce clause precedent. In striking down the federal Violence Against Women Act, Chief Justice Rehnquist for the same 5-4 majority extended the doctrine of Lopez to distinguish "truly national" from "truly local" activities. He ignored a former criterion that relied on the aggregate effects of the regulated activity and thereby seemed to be returning to a pre-1937 understanding of the commerce clause.

BIBLIOGRAPHY

Lessig, Lawrence. "Translating Federalism: United States v. Lopez." Supreme Court Review 5 (1996): 125–215.

Tribe, Laurence H. American Constitutional Law. 3d ed. Mineola, N.Y.: Foundation Press, 2000.

William M.Wiecek