Wisconsin Lawyer
Vol. 79, No. 11, November 2006

Homegrown Wheat, Machine Guns, and the Commerce Clause Today

by Thomas J. Coaty

Observers of the U.S. Supreme Court sat dumbfounded, trying to comprehend what they had just heard. Chief Justice William Rehnquist had delivered the Court's opinion in United States v. Lopez¹ on the constitutionality of the Gun-Free School Zones Act of 1990² and declared the law unconstitutional, stating:

"The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress `[t]o regulate Commerce … among the several States …' U.S. Const., Art. I, § 8, cl. 3."³

Lawyers immediately thought of Wickerd⁴ and the pain it had caused first-year law school students studying constitutional law. Initially taught that citizens enjoyed limited government because of enumerated powers, law students were instructed to look no further than Article I, section 8 to see the specific powers possessed by Congress⁵ or to read James Madison who sought, through the Constitution, to limit the federal government's control by giving it "few and definite"⁶ powers. Law students were reminded that the Commerce Clause was a selling point for dispensing with the Articles of Confederation and adopting the Constitution because of the "need for commercial regulation at the national level."⁷ Such commercial regulation was desired to stop self-serving state regulation and to treat each state equally.⁸ Finally, the students' lesson concluded with the topic of power sharing - or what political theorists called "separation of powers," which was present not just at the federal level, ensuring that one branch did not dominate over another,⁹ but also was present between the individual states and the federal government¹⁰ (federalism and comity), again guaranteeing that the federal government would not dominate over the citizens.

Thomas J. Coaty, John Marshall 1992, is a Brown County assistant district attorney. He is a permanent instructor at the Department of Justice Criminal Investigation School and an adjunct instructor at Concordia University of Wisconsin.

Most law students understood the enumerated powers doctrine. But with the Supreme Court's interpretation of the Commerce Clause, the entire meaning of enumerated powers had changed.¹¹ Instead of interpreting "commerce among the states" as referring to a buyer and a seller across state lines or economic activity in more than one state, the Court elected to define commerce, beginning in 1937, as the "interconnected nature of the national economy."¹² Thus, anything could be regulated by Congress, including poor farmer Wickerd's homegrown wheat that never left the farm, as long as it was interconnected with the national economy.¹³

Lopez, however, had just trumped Wickerd. The Supreme Court in Lopez reasoned that because the Gun-Free School Zones Act of 1990 was a criminal statute by its terms, it had nothing to do with "commerce," and because the Act had contained "no jurisdictional element which could ensure, by a case-by-case basis, that the firearm in question affected interstate commerce," the law was unconstitutional.¹⁴ For only the second time since the New Deal, the U.S. Supreme Court had struck down a federal law based on a lack of enumerated power.¹⁵

This article briefly discusses 18 U.S.C. § 922(o) (possession of a machine gun) and its analysis with Lopez and how proponents of using the enumerated powers doctrine to limit Congress's power ultimately were disappointed. This article also reviews how the federal court system analyzes legislation based on the Commerce Clause and pays specific attention to how Justice Samuel Alito, the newest member of the Supreme Court, determined constitutionality while sitting on the Third Circuit Court of Appeals. Finally, this article touches on what the future may bring for federal criminal legislation based on recent cases interpreting the Commerce Clause.

Magistrate Crocker Instructs the Congress

In the Western District of Wisconsin a defendant, in United States v. Kenney,¹⁶ had been charged with a federal gun violation, that is, he was charged with the "unlawful possession of a machine gun."¹⁷ According to the Court's holding in the electrically charged Lopez, however, possession of a machine gun had nothing to do with commerce nor did that same gun possession substantially affect interstate commerce. Based on this interpretation, the law outlawing machine gun possession could be struck down.

Help arrived from the Southern District of Mississippi, where Chief Judge William H. Barbour Jr. held in United States v. Bownds¹⁸ that the same machine gun possession law about to be argued in Wisconsin was unconstitutional in his court.¹⁹ Judge Barbour began his analysis with Wickerd and the homegrown wheat; he conceded, "Congress can regulate an individual's activity if that activity `exerts a substantial economic effect on interstate commerce' regardless of whether that individual's effect is direct or indirect."²⁰ Judge Barbour, however, cautioned Congress about its limited power to regulate through the Commerce Clause, which was not limitless, and stated:

"This Court is concerned with the increasing federalization of crime by Congress, when such federalization occurs in apparent disregard of the Tenth Amendment mandate that rights not delegated to the federal government be reserved to the States."²¹

On Aug. 4, 1995, Federal Magistrate Stephen L. Crocker held that 18 U.S.C. § 922(o) (possession of a machine gun) was unconstitutional. The magistrate said that the federal courts were not "apologists" for Congress and that the "Courts cannot and should not do Congress's work for it."²² Magistrate Crocker spelled out specifically what Congress should do to correct this law.

"Congress easily could have: included as an element of the crime that the possession or transfer have some effect on interstate commerce; provided a paragraph or two of legislative findings or intent; or perhaps even just incorporated by reference the legislative histories of prior gun control bills such as the Gun Control Act or the Firearm Owners' Protection Act. But Congress did not do any of these things.

"Absent some legislative history, how does Congress justify the current criminalization of the intrastate use of a machine gun that could well have been manufactured in the same state in which it is possessed? Home conversion of semi automatic firearms into fully automatic firearms is alarmingly easy and common.

"What nexus do such machine guns have to interstate commerce?"²³

Prophetically, Magistrate Crocker saw the danger in allowing Congress, through the Commerce Clause, to outlaw the mere possession of an item when there is no nexus to interstate commerce.²⁴ That recommendation was then forwarded to Barbara B. Crabb, chief judge of the federal district court for the Western District of Wisconsin.

Judge Crabb disagreed with the magistrate's recommendation and declared that the machine gun possession law was constitutional. Her reasoning was sound: although she and Magistrate Crocker both believed that the federal government could regulate machine guns, Magistrate Crocker believed that the federal government had not provided a nexus, and Judge Crabb believed a nexus was not needed. She stated that machine guns were "things in commerce" and therefore could be regulated. Furthermore, citing United States v. Perez,²⁵ Judge Crabb said that Congress did not have to make "particularized findings in order to legislate" and, borrowing from Lopez, stated "Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce."²⁶ Because Judge Crabb ruled that Congress did have the authority under the Commerce Clause to make the possession of a machine gun illegal, the defendant in Kenney pleaded to the charge with the hope of attacking the constitutionality at the appellate level.

On Feb. 5, 1996, Kenney was appealed to the U.S. Court of Appeals for the Seventh Circuit. The same argument that was advanced before Magistrate Crocker and Chief Judge Crabb - that Congress lacked the authority to outlaw mere possession of a machine gun because the law neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce - now was heard in Chicago.²⁷

On July 30, 1996, virtually a year to the day after Magistrate Crocker found 18 U.S.C. § 922(o) to be unconstitutional, the Seventh Circuit appellate court handed down its decision.²⁸ The court started its determination with the standard of review: "in Commerce Clause cases the review is narrow and deferential."²⁹ The court also cited the famous Hodel standard of review, which states, "[t]his power is `complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution.'"³⁰ The Seventh Circuit then cited United States v. Darby³¹ when it declared 18 U.S.C. § 922(o) (possession of a machine gun) constitutional and reasoned:

"The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control."³²

It appeared the Seventh Circuit was not swayed by James Madison and the Federalist Papers, the enumerated powers doctrine, or the holding in Lopez. The Seventh Circuit had just suggested that whenever Congress used the Commerce Clause, the court should virtually acquiesce. Furthermore, the court instructed that Lopez was meant to stop the outer reaches of congressional power, not roll back what has been the jurisprudence in Commerce Clause cases since the late 1930s. It was because the Gun-Free School Zones Act had a distance requirement (1,000 feet from a school) that it had no substantial effect on interstate commerce, "whether taken as a single act or in the aggregate effect of all acts," and this made the law unconstitutional.³³ Logically, therefore, because the federal statute against the possession of a machine gun had no area or zone requirement it was constitutional. Constitutional because without an area or zone requirement, the possession of a machine gun substantially affected interstate commerce and thus could be outlawed by Congress.

As the Seventh Circuit was ruling that Congress did have the power to regulate possession of a machine gun through the Commerce Clause, the U.S. Court of Appeals for the Third Circuit was hearing the same constitutional argument about Congressional power and machine gun possession in United States v. Rybar.³⁴ Like the Seventh Circuit in Kenney, the Third Circuit also declared the statute constitutional and added ominously that, "Lopez has `raised many false hopes,' [for defendants] and that challenges based on Lopez `almost invariably' fail."³⁵

The Third and Seventh Circuits had used the same analysis, pioneered in 1971 in United States v. Perez,³⁶ when ruling as to whether Congress had violated the Constitution in its use of the Commerce Clause when making legislation. The Perez Court instructed that Congress may regulate three broad categories of activity: "(1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and (3) those activities that substantially affect interstate commerce."

The Third Circuit then analyzed the machine gun statute under the third prong and followed the Kenney analysis,³⁷ stating Congress can "regulate singular instances of intrastate activity when the cumulative effect has a substantial effect on interstate commerce."³⁸ Therefore, if Congress can regulate homegrown wheat because it substantially affects interstate commerce, it can regulate possession of a machine gun. Wickerd had returned.

Judge Alito Takes No Prisoners

Just when it seemed the issue had been settled, on Dec. 30, 1996, Third Circuit appellate judge Samuel Alito looked at the legal landscape and wrote, in essence, "nope." In the first two sentences of his dissent in Rybar, Judge Alito made it clear he was not happy about the federal appellate courts acquiescing to Congress's regulating of intrastate activities. Indeed, he was taking no prisoners when he rhetorically asked:

"Was United States v. Lopez a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?"³⁹

Judge Alito conceded that his "sister circuits" had ruled contrary to him on the constitutionality of the possession of a machine gun,⁴⁰ and yet Judge Alito demonstrated that those same circuits could not agree on what prong of the Perez test should apply. Judge Alito pointed out that some circuits upheld the constitutionality because they claimed that machine guns fell under the first Perez prong: the use of the channels of interstate commerce. These circuits argued that because Congress could regulate lottery tickets,⁴¹ adulterated food,⁴² and the interstate transportation of women for immoral purposes,⁴³ then logically, machine guns also could be regulated. Judge Alito agreed and conceded that government is "free to exclude from commerce any article the government deems injurious to the public health, morals or welfare, even though the state has not sought to regulate that use."⁴⁴ Judge Alito objected to the confusion between an illegal transfer of a weapon and an interstate transfer of that same weapon.⁴⁵ He believed that if the courts wished to find intrastate possession of a machine gun illegal, they must use the third prong of the Perez analysis: regulation of activities that substantially affect interstate commerce.

Judge Alito criticized other circuits for finding the machine gun statute constitutional by their use of the second prong of the Perez analysis. The Lopez court had cited two statutes that would be constitutional under the Perez second prong: 18 U.S.C. § 32, which made it a crime to damage or destroy aircraft that was used in interstate commerce, and 18 U.S.C. § 659, which made it illegal to steal from interstate shipments.⁴⁶ Using Lopez as his basis for reasoning, Judge Alito believed that the U.S. Supreme Court defined "instrumentalities" of interstate commerce as "the means of conveying people and goods across state lines, such as airplanes and trains."⁴⁷ Additionally, Judge Alito believed Congressional power can be extended to protect people or goods traveling interstate by outlawing theft or setting rates.⁴⁸ Thus, Judge Alito's dissent concerning placing the statute in the Perez second category centered on definition:

"18 U.S.C. § 922(o) (the machine gun law) would fall within this second Lopez category if Congress had banned the intrastate possession of machine guns in order to prevent them from being used to damage vehicles traveling interstate, to carry out robberies of goods moving in interstate commerce, or to threaten or harm interstate travelers."⁴⁹ Because there is no such language in the statute, Judge Alito dissented on its constitutionality.

Judge Alito's final argument concerned what he called the "crux of this case:"⁵⁰ "[T]he majority argues in effect that the private, purely intrastate possession of machine guns has a substantial effect on the interstate machine gun market."⁵¹

Judge Alito argued that if one accepts the majority's argument, anything has an effect on the national economy and, therefore, Congress can regulate anything. Such a theory ignores the reasoning of the Lopez court, which began its opinion on "first principles."⁵² Those principles give the federal government enumerated powers and constitutionally mandated divisions of authority (between the federal government and the states), which "was adopted by the Framers to ensure protection of our fundamental liberties."

Moreover, Judge Alito pointedly asked the majority, how is the possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms?⁵³ Or, is the possession of a firearm in a school zone less "economical" or "commercial" than possession elsewhere - say, on one's own property?⁵⁴ Thus, the future Supreme Court justice believed the Lopez decision suggested that the mere possession of a machine gun, without more, was not "economic" or "commercial" and therefore could not be regulated by Congress through the Commerce Clause. This is in direct contrast to Farmer Wickerd and his homegrown wheat, which although intrastate, is clearly "economic" or "commercial" and thus could be regulated by Congress in its use of the Commerce Clause.⁵⁵

More thunder was created in Commerce Clause jurisprudence, when the Supreme Court in United States v. Morrison struck down 42 U.S.C. § 13981, which provided a civil remedy to victims of gender-motivated violence.⁵⁶ The Court again, when analyzing federal legislation involving the Commerce Clause, used the "third prong of the Perez test"⁵⁷ and stated that it had rejected the government's argument that "costs of crime" and "national productivity" were the substantial effect on interstate commerce.⁵⁸ The Court observed that by using this argument, Congress "could regulate any activity as it was related to economic productivity of the individual."⁵⁹ The federal government could regulate family law, criminal law, or education, areas in which "States historically have been sovereign."⁶⁰ The Court finished with a flurry by warning that Congress may "not regulate non economic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce."⁶¹ Morrison was the heir to Lopez. It appeared that the Rehnquist Court was returning limited government through enumerated powers to the people.

Homemade Machine Guns on Interstate Commerce