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López, United States v. 514 U.S. 549 (1995)

LÓPEZ, UNITED STATES v. 514 U.S. 549 (1995)

inUnited States v. López, a 5–4 Supreme Court struck down the Gun-Free School Zones Act, a federal statute that made it unlawful to carry a gun in a school zone. The law was supposedly passed under Congress's power to regulate interstate commerce, but the statute did not require any specific "commercial" act. That is, the mere possession of a gun in a school zone, no matter how acquired or what its intended use, was made unlawful. In a cautiously stated but revolutionary opinion, Chief Justice william h. rehnquist objected to the law principally on the ground that the mere possession of a gun had nothing to do with "commerce" or any kind of economic enterprise. The Chief Justice was particularly critical of the statute's failure to require that a particular act of gun possession be shown to have some kind of impact on interstate commerce, in the sense of commercial enterprise. While striking down the statute, the Court also emphasized that Congress had not made "findings regarding the effects of firearm possession in and around schools upon interstate and foreign commerce." To summarize, under the majority's opinion (1) federal power to regulate interstate commerce must have some limits; and (2) those limits are exceeded when the government shows no relationship between interstate commerce and a specific act of gun possession; but (3) Congress probably could save the statute either by requiring that in each particular case an impact on interstate commerce be shown, or by making specific background findings that gun possession generally has such an effect.

three dissenting opinions representing the views of four Justices criticized the majority for (1) underestimating the impact of guns on interstate commerce, which seemed obvious and could well be presumed; and (2) rolling back congressional power to regulate under the commerce clause—an area where the Court had given Congress virtually unlimited discretion since the new deal, after several decades of close scrutiny during the late nineteenth and early twentieth centuries.

The most controversial opinion in López is a concurrence by Justice clarence thomas, arguing that the Court should reconsider the meaning of the commerce clause in light of the way that the constitutional words "commerce among the several states" were used in the late eighteenth century when the Constitution was written. Under his reading those words conveyed to Congress much less power than Congress had actually assumed, and in fact reached only commercial transactions ("commerce") where the goods or services in question actually crossed a state line ("interstate").

The original meaning of "commerce among the several states" has been subject to a great deal of historical scholarship, much of which is inconsistent with Thomas's position. For example, late-eighteenth-century writers were much more careful than most people today about the different usage of "between" and the commerce clause word "among." Thomas's requirement of an activity that moves from one state to another is more consistent with the term "between." Something that happened "among" the states in the eighteenth century could easily have included interstate and purely intrastate activities. For example, "there is a great deal of activity among the bees this morning" would not necessarily mean that the bees were engaging in transactions with one another; each could be busily doing its own work. In his very famous 1953 book, Politics and the Constitution in the History of the United States, the late william w. crosskey also pointed out that the late-eighteenth-century meaning of "commerce" was significantly less technical than it is today, and could refer to a variety of commercial and noncommercial activities, including such things as conversation or household management. Nevertheless, Thomas's opinion invites constitutional historians to return to these issues.

Herbert Hovenkamp

(see also: Federalism.)


Graglia, Lino 1996 United States v. López: Judicial Review under the Commerce Clause. Texas Law Review 74:719–771.

Hovenkamp, Herbert 1996 Judicial Restraint and Constitutional Federalism: the Supreme Court's López and Seminole Tribe Decisions. Columbia Law Review 96:2213–2247.

Symposium 1995 Reflections on United States v. López. Michigan Law Review 94:533–830.

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