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Guns, Felons, and the Commerce Clause

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When the Supreme Court decided that the right to bear arms extended to individuals, not just organized militias, in the Heller case in 2008, many people on the defense side were excited that they could use this to argue against felon-in-possession laws.  The fact that the Heller Court expressly said its decision did not extend to invalidate those laws strangely failed to dampen their enthusiasm.  A long string of defeats for that argument since Heller followed.

As applied to federal laws regulating who can own what, it always seemed to me that the Court's cautiously narrower view of the Commerce Clause in recent years was the more vulnerable point.

In Scarborough v. United States, 431 U.S. 563 (1977), the Supreme Court said that the mere fact that the gun had at some point moved in interstate commerce was enough.  But is it still enough today, with the changes in Commerce Clause jurisprudence since then?

Conor McEvily, a recent graduate of Georgetown Law, has a student note forthcoming in Georgetown Law Journal considering Scarborough as applied to the federal body armor law.  An advance version is available on SSRN.  The abstract follows the jump.


The federal felon body armor ban - codified at Section 931 of the United States Code Title 18 - prohibits any person who has been convicted of a felony crime of violence from possessing body armor that has been sold in interstate commerce. It is a stand-alone provision unconnected to any legislative scheme regulating body armor more broadly, and it regulates a discrete intrastate activity: the possession of body armor by felons. Because the Constitution commits to Congress the authority to regulate only interstate commerce, the Act has frequently sustained challenges that it exceeds Congress's authority. Though several jurists have acknowledged that the law fails to fall within any of the three categories composing the modern Commerce Clause framework, every court to thus far confront its constitutionality has affirmed it, reasoning that the law cannot be distinguished from the federal ban on felons' possession firearms which the Supreme Court implicitly held constitutional a generation ago in Scarborough v. United States.

This Note contends that Scarborough, as interpreted by the lower courts, not only contravenes modern Commerce Clause jurisprudence, but also threatens to tilt the balance between federal and state governments by permitting the federal government to intrude on areas of traditional state concern. By analogizing Scarborough's holding that the federal government may constitutionally regulate a gun so long as it has crossed state lines, courts have upheld similar federal enactments regulating other items that have crossed state lines - enactments like § 931's regulation of body armor. Driven to its analogical limit, Scarborough could stand for the proposition that, notwithstanding any other applicable Constitutional provision, the federal government may regulate the intrastate possession of any item so long as it has traveled interstate at some point in its existence.

To avoid result, this Note advances a 're-conceptualization' of Scarborough. By characterizing the present network of federal firearms laws as a 'comprehensive regulatory regime,' the felon firearm ban can be upheld under the rationale of Gonzales v. Raich, where the Court sanctioned federal laws regulating the intrastate possession of a commodity, so long as they constituted 'an essential part' of such a regime. In contrast to other possession laws like § 931, the felon firearm ban can be understood as an 'essential part' of a comprehensive regulatory regime. By re-conceptualizing Scarborough's holding, the Court would not only preserve a sensible law barring violent felons from having guns, it would establish a practical limit to Congress's Commerce Clause authority while staying true to well-established Commerce Clause doctrine.

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