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GCA 68, the Commerce nexus, and Dr. Emerson
Dr. Tim Emerson, who brought the interesting Second Amendment appeal -- the Fifth Circuit held the Amendment was an individual right, but that the statute in question passed muster -- was on remand convicted.
Question: had he actually violated the Gun Control Act? The charge against him was that he had continued to possess a gun after being subject to a domestic violence restraining order. As the Supreme Court noted in the Lopez case, there are several ways Congress can deal with its Commerce Clause powers/limitations, and the most direct way is to write the required Commerce connection into the statute as an element to be alleged and proven by the prosecution.
The relevant section of the GCA, 18 USC 922(g,) makes it unlawful for a prohibited person (including anyone subject to a restraining order ) "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
Let's parse that.
1. It is illegal to be a prohibited person and to ship or transport a gun in interstate commerce. Emerson hadn't shipped or transported it anywhere after he became a prohibited person, so he's safe there.
2. It is illegal to be a prohibited person and possess a gun in or affecting commerce. Emerson wasn't in interstate commerce at the time, and it's hard to see how the gun in his bedroom affected commerce. (More on this anon).
3. It is illegal to be a prohibited person and to receive a gun which has ever been shipped in commerce. Emerson received the gun -- but he wasn't a prohibited person at the time he did so. So, again, he seems home free.
This isn't a constitutional issue. It's a simple question of the face of the statute and what Congress chose to criminalize. For whatever reason, it chose a different Commerce nexus to define each prohibited act, and Emerson's actions appear to have violated none of the statutory provisions.
So how could he have been convicted?
Tracking the caselaw is a bit complex, because this portion of the Gun Control Act was extensively rewritten in 1986 (prior to that time the statute simply forbade a prohibited person from receiving, possessing, or transporting a gun in or affecting commerce -- that is, there was no splitting of Commerce requirements depending upon whether the firearm was possessed, received, or transported. As a further complication, there were two sets of statutes covering receipt, passed in two different acts.
In US v. Bass, 404 U.S. 336 (1971), the Court ruled that this earlier statute did require the prosecution to prove that the firearm had been received or possessed in or affecting commerce. It went on to note that a possession charge could be proven by proof the defendant was moving the gun interstate or had it at a facility of interstate commerce, and that a receiving charge could be based upon the fact that the gun had ever moved in interstate commerce. (The Court then drops a footnote stating that this view preserves the differences between the receipt offenses in the two different statutes -- no explanation, unfortunately, as to why proof that a item had moved in interstate commerce a decade ago would sustain its regulation now as within Congressional power).
The Bass decision has been followed subsequent to the 1986 amendments. See, e.g., United States v. Pierson, 139 F.3d 501 (5th Cir. 1998) (" As this court has previously held, the "in or affecting" commerce element can be satisfied if the illegally possessed firearm had previously traveled in interstate commerce. ")
The present viability of Bass and its progeny does seem rather questionable. First, Congress in the 1986 rewrite clearly did draw a distinction between the "in and affecting" and the "has ever moved" nexuses (nexi?). To read one as identical to the other is to disregard basic rules of statutory interpretation. Secondly, there is of course the Lopez decision, invalidating the "gun free school zones" federal law as beyond the Commerce power, and in the course of that rejecting generalized arguments that crime affects insurance rates affects commerce. Third ... it seems a bit incongruous that Congress may enact a statute making X an element in a criminal offense, yet the jury is apparently instructed not to make its own judgment on whether X occurred, but to accept a legal finding that if Y is proven then X is established. If a legislature had done that, there would be a serious question as to whether it had created an unconstitutional presumption. For the same result to be achieved absent legislative intervention is, I'd suggest, considerably worse.
This may be an issue that is ripe for another run at cert. -- especially if the two Commerce Clause cases now before the Court turn out properly.
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