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

JUSTICE STEVENS, dissenting.

The welfare of our future "Commerce with foreign Nations, and among the several States," U.S.Const., Art. I, § 8, cl. 3, is vitally dependent on the character of the education of our children. I therefore agree entirely with JUSTICE BREYER’s explanation of why Congress has ample power to prohibit the possession of firearms in or near schools -- just as it may protect the school environment from harms posed by controlled substances such as asbestos or alcohol. I also agree with JUSTICE SOUTER’s exposition of the radical character of the Court’s holding and its kinship with the discredited, pre-Depression version of substantive due process. Cf. Dolan v. Tigard, 512 U.S. 374, 405-411 (1994) (STEVENS, J., dissenting). I believe, however, that the Court’s extraordinary decision merits this additional comment.

Guns are both articles of commerce and articles that can be used to restrain commerce. Their possession is the consequence, either directly or indirectly, of commercial activity. In my judgment, Congress’ power to regulate commerce in firearms includes the power to prohibit possession of guns at any location because of their potentially harmful use; it necessarily follows that Congress may also prohibit their possession in particular markets. The market for the possession of handguns by school-age children is, distressingly, substantial.* Whether or not the national interest in eliminating that market would have justified federal legislation in 1789, it surely does today.

1. In this case, no question has been raised about means and ends; the only issue is about the effect of school zone guns on commerce.

2. Unlike the Court, (perhaps), I would see no reason not to consider Congress’s findings, insofar as they might be helpful in reviewing the challenge to this statute, even though adopted in later legislation. See the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, § 320904, 108 Stat. 2125 ("[T]he occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country; . . . this decline . . . has an adverse impact on interstate commerce and the foreign commerce of the United States; . . . Congress has power, under the interstate commerce clause and other provisions of the Constitution, to enact measures to ensure the integrity and safety of the Nation’s schools by enactment of this subsection"). The findings, however, go no further than expressing what is obviously implicit in the substantive legislation at such a conclusory level of generality as to add virtually nothing to the record. The Solicitor General certainly exercised sound judgment in placing no significant reliance on these particular afterthoughts. Tr. of Oral Arg. 24-25.