Judge Roberts on guns and interstate commerce
AP reports that Roberts was questioned by Diane Feinstein relating to the Gun Free School Zones Act, and responded that the problem had been that the Act had no jurisdictional requirement (i.e., a provision stating that it only applied if the possession had some specified link to interstate commerce) but that that would be easily fixed legislatively (Feinstein cuts him off, but he seems to have started to say, since guns move in interstate commerce).
As I recall, Lopez did mention the lack of a jurisdictional requirement, but concluded that wasn't the key. Rather, it was that possession simply didn't affect commerce, period. And it suggested pretty strongly that the fact a gun had once moved in commerce wasn't enough of a link.
Humorous note: Feinstein apparently has forgotten that Congress re-enacted the Act, after it was stricken, adding a jurisdictional element -- that the gun has "moved in or otherwise affected" commerce. As noted above, moved in is probably invalid under the Lopez case. But it is funny to see a Senator talking about doing a legislative fix and forgetting that she's already done that.
(Transcript of questioning follows below)
UPDATE: Dave Kopel has some interesting observations regarding Robert's other comments on the interstate commerce power. On this issue the judge (whose caselaw suggested a desirably less-than-all-encompassing view of that power, does seem to be backtracking.
FEINSTEIN: I won't go there. Let me go somewhere else.
Commerce clause, the 14th Amendment, Lopez, which began a chain of about 36 cases, striking down major pieces of legislation. It's not easy to get a bill passed here. I mean, there are hearings, there are discussions, there are markups, there's one house, there's another house, there's a president.
It goes through most of the time scrubbed pretty good before it gets to the president.
Gun-free schools -- struck down in 1995, an impermissible use of the commerce clause.
'96, Moses Lake, Washington -- shooting in a school. '97, Bethel, Alaska, principal and one student killed. '97, Pearl, Mississippi, two students killed and seven wounded by a 16-year old. 1997, West Paducah, three students killed, five wounded.
Stamps, Arkansas, two students wounded. Jonesboro, '98, four students, one teacher killed; 10 others wounded outside West Side Middle School. Edinboro, Pennsylvania, one teacher killed, two students.
And on and on and on -- an impermissible use of the commerce clause to prohibit possession of a weapon in schools.
Now, at what point does crime influence commerce?
ROBERTS: Well, I think it does.
And one of the things that's important to understand about the Lopez decision is the court analyzed it -- and, again, I'm not taking a position on whether it was correctly decided or not.
FEINSTEIN: Right, right.
ROBERTS: But as the court analyzed it, one of the things about the act was that it did not have what's known as a jurisdictional requirement. It didn't have a requirement that the firearm be transported in interstate commerce -- a requirement that I think it would be easy to meet in most cases, because guns...
FEINSTEIN: But the firearm is transported in interstate commerce -- maybe not when that student had it, but to get to the student, the firearm has been transported in interstate commerce.
ROBERTS: My point is that the fix in Lopez, all that the court was saying was missing in there, or what was different about Lopez than many of the other cases, was that lack of a jurisdictional requirement.
And if the act had been -- as I understand the court's analysis, the act had required that, which I think, again, it's fairly easy to show in almost every case.
ROBERTS: As you say, these guns are transported in interstate commerce. Then that would have been within the Congress' power under the commerce clause.
I think it was an unusual feature of the legislation that it didn't have that requirement, as so many laws do. As you know, it often says in interstate commerce. And that's -- at least as I understand the Lopez decision -- what made it unusual.
FEINSTEIN: That's very helpful. You might get it back again someday, with that fix.