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Enumerated Powers, Again

In the federal system, who has the authority to decide whether and under what circumstances persons previously convicted of crimes will be allowed to possess guns, bullet-proof vests, and similar items that can be used to commit crimes or to defend against them?

Today, in Alderman v. United States, the U.S. Supreme Court declined to review a decision of the Ninth Circuit upholding a federal statute which forbids persons previously convicted of crimes of violence to possess "body armor."  Justice Thomas, joined by Justice Scalia, dissented, arguing the Court should take the case.  The federal law is supposed to come within the power to regulate interstate commerce because it requires that the body armor have moved in interstate commerce at some point.  That is a very tenuous hook, under some relatively recent* Supreme Court precedents, Lopez and Morrison.  See this prior post.

I have long contended that enumerated powers and not the Second Amendment was the way to go after Congress's more extreme limitations on firearm ownership (e.g., a lifetime ban for a single misdemeanor conviction of domestic violence).  The fact that only one other Justice joined the opinion is somewhat surprising, but a Justice's decision not to join an opinion such as this does not necessarily indicate disagreement on the underlying point.

Particularly in light of the tragedy in Tucson, let me make clear that I am not taking a broad stand against restrictions on firearm ownership.  Some restrictions are needed, obviously.  However, I do believe that these decisions come within the state's authority in our federal structure.
A footnote for Ninth Circuit watchers -- the dissent from denial of rehearing en banc is by Judge O'Scannlain joined by Judge Paez et al.  Not a lineup you see every day.

* Relatively recent compared to, e.g., Wickard v. Filburn (1942).

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