United States v. Lopez

No. 93-1260

Argued November 8, 1994

Decided April 26, 1995

[U.S. Reports citation not yet available]

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus



After respondent, then a 12th-grade student, carried a concealed handgun

into his high school, he was charged with violating the Gun-Free School

Zones Act of 1990, which forbids "any individual knowingly to possess a

firearm at a place that [he] knows . . . is a school zone," 18 U.S.C. 

922(q)(1)(A).  The District Court denied his motion to dismiss the

indictment, concluding that  922(q) is a constitutional exercise of

Congress' power to regulate activities in and affecting commerce.  In

reversing, the Court of Appeals held that, in light of what it

characterized as insufficient congressional findings and legislative

history,  922(q) is invalid as beyond Congress' power under the Commerce

Clause.



Held:  The Act exceeds Congress' Commerce Clause authority.  First,

although this Court has upheld a wide variety of congressional Acts

regulating intrastate economic activity that substantially affected

interstate commerce, the possession of a gun in a local school zone is

in no sense an economic activity that might, through repetition

elsewhere, have such a substantial effect on interstate commerce. 

Section 922(q) is a criminal statute that, by its terms, has nothing to

do with "commerce" or any sort of economic enterprise, however broadly

those terms are defined.  Nor is it an essential part of a larger

regulation of economic activity, in which the regulatory scheme could be

undercut unless the intrastate activity were regulated.  It cannot,

therefore, be sustained under the Court's cases upholding regulations of

activities that arise out of or are connected with a commercial

transaction, which viewed in the aggregate, substantially affects

interstate commerce.  Second,  922(q) contains no jurisdictional element

which would ensure, through case-by-case inquiry, that the firearms

possession in question has the requisite nexus with interstate commerce.

 Respondent was a local student at a local school; there is no

indication that he had recently moved in interstate commerce, and there

is no requirement that his possession of the firearm have any concrete

tie to interstate commerce.  To uphold the Government's contention that 

922(q) is justified because firearms possession in a local school zone

does indeed substantially affect interstate commerce would require this

Court to pile inference upon inference in a manner that would bid fair

to convert congressional Commerce Clause authority to a general police

power of the sort held only by the States.  Pp. ___.



2 F.3d 1342, affirmed.



REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR,

SCALIA, KENNEDY, and THOMAS, JJ., joined.  KENNEDY, J., filed a

concurring opinion, in which O'CONNOR, J., joined.  THOMAS, J., filed a

concurring opinion.  STEVENS, J., and SOUTER, J., filed dissenting

opinions.  BREYER, J., filed a dissenting opinion, in which STEVENS,

SOUTER, and GINSBURG, JJ., joined. REHNQUIST, J., lead opinion



CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.



In the Gun-Free School Zones Act of 1990, Congress made it a federal

offense "for any individual knowingly to possess a firearm at a place

that the individual knows, or has reasonable cause to believe, is a

school zone."  18 U.S.C.  922(q)(1)(A) (1988 ed., Supp. V).  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.



On March 10, 1992, respondent, who was then a 12th-grade student,

arrived at Edison High School in San Antonio, Texas, carrying a

concealed .38 caliber handgun and five bullets.  Acting upon an

anonymous tip, school authorities confronted respondent, who admitted

that he was carrying the weapon.  He was arrested and charged under

Texas law with firearm possession on school premises.  See Tex. Penal

Code Ann.  46.03(a)(1) (Supp. 1994).  The next day, the state charges

were dismissed after federal agents charged respondent by complaint with

violating the Gun-Free School Zones Act of 1990.  18 U.S.C. 

922(q)(1)(A) (1988 ed., Supp. V).



A federal grand jury indicted respondent on one count of knowing

possession of a firearm at a school zone, in violation of  922(q). 

Respondent moved to dismiss his federal indictment on the ground that 

922(q) "is unconstitutional as it is beyond the power of Congress to

legislate control over our public schools."  The District Court denied

the motion, concluding that  922(q) is a constitutional exercise of

Congress' well-defined power to regulate activities in and affecting

commerce, and the "business" of elementary, middle and high schools . .

. affects interstate commerce. App. to Pet. for Cert. 55a.  Respondent

waived his right to a jury trial.  The District Court conducted a bench

trial, found him guilty of violating  922(q), and sentenced him to six

months' imprisonment and two years' supervised release.



On appeal, respondent challenged his conviction based on his claim that 

922(q) exceeded Congress' power to legislate under the Commerce Clause. 

The Court of Appeals for the Fifth Circuit agreed, and reversed

respondent's conviction.  It held that, in light of what it

characterized as insufficient congressional findings and legislative

history, "section 922(q), in the full reach of its terms, is invalid as

beyond the power of Congress under the Commerce Clause."  2 F.3d 1342,

1367-1368 (1993).  Because of the importance of the issue, we granted

certiorari, 511 U.S. ___ (1994), and we now affirm.



We start with first principles.  The Constitution creates a Federal

Government of enumerated powers.  See U.S.Const., Art. I,  8.  As James

Madison wrote, [t]he powers delegated by the proposed Constitution to

the federal government are few and defined.  Those which are to remain

in the State governments are numerous and indefinite. The Federalist No.

45, pp. 292-293 (C. Rossiter ed. 1961).  This constitutionally mandated

division of authority "was adopted by the Framers to ensure protection

of our fundamental liberties."  Gregory v. Ashcroft, 501 U.S. 452, 458

(1991) (internal quotation marks omitted). Just as the separation and

independence of the coordinate branches of the Federal Government serves

to prevent the accumulation of excessive power in any one branch, a

healthy balance of power between the States and the Federal Government

will reduce the risk of tyranny and abuse from either front. Ibid.



The Constitution delegates to Congress the power "[t]o regulate Commerce

with foreign Nations, and among the several States, and with the Indian

Tribes."  U.S.Const., Art. I,  8, cl. 3.  The Court, through Chief

Justice Marshall, first defined the nature of Congress' commerce power

in Gibbons v. Ogden, 9 Wheat. 1, (1824): Commerce, undoubtedly, is

traffic, but it is something more:  it is intercourse.  It describes the

commercial intercourse between nations, and parts of nations, in all its

branches, and is regulated by prescribing rules for carrying on that

intercourse. The commerce power is the power to regulate; that is, to

prescribe the rule by which commerce is to be governed.  This power,

like all others vested in Congress, is complete in itself, may be

exercised to its utmost extent, and acknowledges no limitations, other

than are prescribed in the constitution. Id. at 196.  The Gibbons Court,

however, acknowledged that limitations on the commerce power are

inherent in the very language of the Commerce Clause.



It is not intended to say that these words comprehend that commerce,

which is completely internal, which is carried on between man and man in

a State, or between different parts of the same State, and which does

not extend to or affect other States.  Such a power would be

inconvenient, and is certainly unnecessary.



Comprehensive as the word "among" is, it may very properly be restricted

to that commerce which concerns more States than one. . . .  The

enumeration presupposes something not enumerated; and that something, if

we regard the language or the subject of the sentence, must be the

exclusively internal commerce of a State. Id. at



For nearly a century thereafter, the Court's Commerce Clause decisions

dealt but rarely with the extent of Congress' power, and almost entirely

with the Commerce Clause as a limit on state legislation that

discriminated against interstate commerce.  See, e.g., Veazie v. Moor,

14 How. 568, 573-575 (1853) (upholding a state-created steamboat

monopoly because it involved regulation of wholly internal commerce);

Kidd v. Pearson, 128 U.S. 1, 17, 20-22 (1888) (upholding a state

prohibition on the manufacture of intoxicating liquor because the

commerce power "does not comprehend the purely domestic commerce of a

State which is carried on between man and man within a State or between

different parts of the same State"); see also L. Tribe, American

Constitutional Law 306 (2d ed. 1988).  Under this line of precedent, the

Court held that certain categories of activity such as "production,"

"manufacturing," and "mining" were within the province of state

governments, and thus were beyond the power of Congress under the

Commerce Clause.  See Wickard v. Filburn, 317 U.S. 111, 121 (1942)

(describing development of Commerce Clause jurisprudence).



In 1887, Congress enacted the Interstate Commerce Act, 24 Stat. 379, and

in 1890, Congress enacted the Sherman Antitrust Act, 26 Stat. 209, as

amended, 15 U.S.C.  1 et seq.  These laws ushered in a new era of

federal regulation under the commerce power.  When cases involving these

laws first reached this Court, we imported from our negative Commerce

Clause cases the approach that Congress could not regulate activities

such as "production," "manufacturing," and "mining."  See, e.g., United

States v. E. C. Knight Co., 156 U.S. 1, 12 (1895) ("Commerce succeeds to

manufacture, and is not part of it"); Carter v. Carter Coal Co., 298

U.S. 238, 304 (1936) ("Mining brings the subject matter of commerce into

existence.  Commerce disposes of it").  Simultaneously, however, the

Court held that, where the interstate and intrastate aspects of commerce

were so mingled together that full regulation of interstate commerce

required incidental regulation of intrastate commerce, the Commerce

Clause authorized such regulation.  See, e.g., Houston, E. & W. T. R.

Co. v. United States, 234 U.S. 342 (1914) (Shreveport Rate Cases).



In A. L. A. Schecter Poultry Corp. v. United States, 295 U.S. 495, 550

(1935), the Court struck down regulations that fixed the hours and wages

of individuals employed by an intrastate business because the activity

being regulated related to interstate commerce only indirectly.  In

doing so, the Court characterized the distinction between direct and

indirect effects of intrastate transactions upon interstate commerce as

"a fundamental one, essential to the maintenance of our constitutional

system."  Id. at 548.  Activities that affected interstate commerce

directly were within Congress' power; activities that affected

interstate commerce indirectly were beyond Congress' reach.  Id. at 546.

 The justification for this formal distinction was rooted in the fear

that otherwise "there would be virtually no limit to the federal power

and for all practical purposes we should have a completely centralized

government."  Id. at 548.



Two years later, in the watershed case of NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. 1 (1937), the Court upheld the National Labor Relations

Act against a Commerce Clause challenge, and in the process, departed

from the distinction between "direct" and "indirect" effects on

interstate commerce.  Id. at 36-38 ("The question [of the scope of

Congress' power] is necessarily one of degree").  The Court held that

intrastate activities that have such a close and substantial relation to

interstate commerce that their control is essential or appropriate to

protect that commerce from burdens and obstructions are within Congress'

power to regulate.  Id. at 37.



In United States v. Darby, 312 U.S. 100 (1941), the Court upheld the

Fair Labor Standards Act, stating: The power of Congress over interstate

commerce is not confined to the regulation of commerce among the states.

 It extends to those activities intrastate which so affect interstate

commerce or the exercise of the power of Congress over it as to make

regulation of them appropriate means to the attainment of a legitimate

end, the exercise of the granted power of Congress to regulate

interstate commerce. Id. at 118.  See also United States v. Wrightwood

Dairy Co., 315 U.S. 110, 119 (1942) (the commerce power "extends to

those intrastate activities which in a substantial way interfere with or

obstruct the exercise of the granted power").



In Wickard v. Filburn, the Court upheld the application of amendments to

the Agricultural Adjustment Act of 1938 to the production and

consumption of home-grown wheat.  317 U.S. at   The Wickard Court

explicitly rejected earlier distinctions between direct and indirect

effects on interstate commerce, stating: [E]ven if appellee's activity

be local and though it may not be regarded as commerce, it may still,

whatever its nature, be reached by Congress if it exerts a substantial

economic effect on interstate commerce, and this irrespective of whether

such effect is what might at some earlier time have been defined as

"direct" or "indirect." Id. at 125.  The Wickard Court emphasized that

although Filburn's own contribution to the demand for wheat may have

been trivial by itself, that was not enough to remove him from the scope

of federal regulation where, as here, his contribution, taken together

with that of many others similarly situated, is far from trivial. Id. at



Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce

Clause jurisprudence that greatly expanded the previously defined

authority of Congress under that Clause.  In part, this was a

recognition of the great changes that had occurred in the way business

was carried on in this country.  Enterprises that had once been local or

at most regional in nature had become national in scope.  But the

doctrinal change also reflected a view that earlier Commerce Clause

cases artificially had constrained the authority of Congress to regulate

interstate commerce.



But even these modern-era precedents which have expanded congressional

power under the Commerce Clause confirm that this power is subject to

outer limits.  In Jones & Laughlin Steel, the Court warned that the

scope of the interstate commerce power must be considered in the light

of our dual system of government and may not be extended so as to

embrace effects upon interstate commerce so indirect and remote that to

embrace them, in view of our complex society, would effectually

obliterate the distinction between what is national and what is local

and create a completely centralized government. 301 U.S. at 37; see also

Darby, supra, at (Congress may regulate intrastate activity that has a

"substantial effect" on interstate commerce); Wickard, supra, at 125

(Congress may regulate activity that "exerts a substantial economic

effect on interstate commerce").  Since that time, the Court has heeded

that warning and undertaken to decide whether a rational basis existed

for concluding that a regulated activity sufficiently affected

interstate commerce.  See, e.g., Hodel v. Virginia Surface Mining &

Reclamation Assn., Inc., 452 U.S. 264, (1981); Perez v. United States,

402 U.S. 146, (1971); Katzenbach v. McClung, 379 U.S. 294, (1964); Heart

of Atlanta Motel, Inc. v. United States, 379 U.S. 241, (1964).



Similarly, in Maryland v. Wirtz, 392 U.S. 183 (1968), the Court

reaffirmed that "the power to regulate commerce, though broad indeed,

has limits" that "[t]he Court has ample power" to enforce.  Id. at 196,

overruled on other grounds, National League of Cities v. Usery, 426 U.S.

833 (1976), overruled by Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528 (1985).  In response to the dissent's warnings

that the Court was powerless to enforce the limitations on Congress'

commerce powers because "[a]ll activities affecting commerce, even in

the minutest degree, [Wickard], may be regulated and controlled by

Congress," 392 U.S. at 204 (Douglas, J., dissenting), the Wirtz Court

replied that the dissent had misread precedent as [n]either here nor in

Wickard has the Court declared that Congress may use a relatively

trivial impact on commerce as an excuse for broad general regulation of

state or private activities, id. at 197, n. 27.  Rather, [t]he Court has

said only that where a general regulatory statute bears a substantial

relation to commerce, the de minimis character of individual instances

arising under that statute is of no consequence. Ibid. (first emphasis

added).



Consistent with this structure, we have identified three broad

categories of activity that Congress may regulate under its commerce

power.  Perez v. United States, supra, at 150; see also Hodel v.

Virginia Surface Mining & Reclamation Assn., supra, at   First, Congress

may regulate the use of the channels of interstate commerce.  See, e.g.,

Darby, 312 U.S. at 114; Heart of Atlanta Motel, supra, at 256 ("`[T]he

authority of Congress to keep the channels of interstate commerce free

from immoral and injurious uses has been frequently sustained, and is no

longer open to question.'" (quoting Caminetti v. United States, 242 U.S.

470, 491 (1917))).  Second, Congress is empowered to regulate and

protect the instrumentalities of interstate commerce, or persons or

things in interstate commerce, even though the threat may come only from

intrastate activities.  See, e.g., Shreveport Rate Cases, 234 U.S. 342

(1914); Southern R. Co. v. United States, 222 U.S. 20 (1911) (upholding

amendments to Safety Appliance Act as applied to vehicles used in

intrastate commerce); Perez, supra, at 150 ("[F]or example, the

destruction of an aircraft (18 U.S.C.  32), or . . . thefts from

interstate shipments (18 U.S.C.  659)").  Finally, Congress' commerce

authority includes the power to regulate those activities having a

substantial relation to interstate commerce, Jones & Laughlin Steel, 301

U.S. at 37, i.e., those activities that substantially affect interstate

commerce.  Wirtz, supra, at 196, n. 27.



Within this final category, admittedly, our case law has not been clear

whether an activity must "affect" or "substantially affect" interstate

commerce in order to be within Congress' power to regulate it under the

Commerce Clause.  Compare Preseault v. ICC, 494 U.S. 1, 17 (1990), with

Wirtz, supra, at 196, n. 27 (the Court has never declared that "Congress

may use a relatively trivial impact on commerce as an excuse for broad

general regulation of state or private activities").  We conclude,

consistent with the great weight of our case law, that the proper test

requires an analysis of whether the regulated activity "substantially

affects" interstate commerce.



We now turn to consider the power of Congress, in the light of this

framework, to enact  922(q).  The first two categories of authority may

be quickly disposed of:   922(q) is not a regulation of the use of the

channels of interstate commerce, nor is it an attempt to prohibit the

interstate transportation of a commodity through the channels of

commerce; nor can  922(q) be justified as a regulation by which Congress

has sought to protect an instrumentality of interstate commerce or a

thing in interstate commerce.  Thus, if  922(q) is to be sustained, it

must be under the third category as a regulation of an activity that

substantially affects interstate commerce.



First, we have upheld a wide variety of congressional Acts regulating

intrastate economic activity where we have concluded that the activity

substantially affected interstate commerce.  Examples include the

regulation of intrastate coal mining; Hodel, supra, intrastate

extortionate credit transactions, Perez, supra, restaurants utilizing

substantial interstate supplies, McClung, supra, inns and hotels

catering to interstate guests, Heart of Atlanta Motel, supra, and

production and consumption of home-grown wheat, Wickard v. Filburn, 317

U.S. 111 (1942).  These examples are by no means exhaustive, but the

pattern is clear.  Where economic activity substantially affects

interstate commerce, legislation regulating that activity will be

sustained.



Even Wickard, which is perhaps the most far-reaching example of Commerce

Clause authority over intrastate activity, involved economic activity in

a way that the possession of a gun in a school zone does not.  Roscoe

Filburn operated a small farm in Ohio, on which, in the year involved,

he raised 23 acres of wheat.  It was his practice to sow winter wheat in

the fall, and after harvesting it in July to sell a portion of the crop,

to feed part of it to poultry and livestock on the farm, to use some in

making flour for home consumption, and to keep the remainder for seeding

future crops.  The Secretary of Agriculture assessed a penalty against

him under the Agricultural Adjustment Act of 1938 because he harvested

about 12 acres more wheat than his allotment under the Act permitted. 

The Act was designed to regulate the volume of wheat moving in

interstate and foreign commerce in order to avoid surpluses and

shortages, and concomitant fluctuation in wheat prices, which had

previously obtained.  The Court said, in an opinion sustaining the

application of the Act to Filburn's activity: One of the primary

purposes of the Act in question was to increase the market price of

wheat and to that end to limit the volume thereof that could affect the

market.  It can hardly be denied that a factor of such volume and

variability as home-consumed wheat would have a substantial influence on

price and market conditions.  This may arise because being in marketable

condition such wheat overhangs the market and, if induced by rising

prices, tends to flow into the market and check price increases.  But if

we assume that it is never marketed, it supplies a need of the man who

grew it which would otherwise be reflected by purchases in the open

market.  Home-grown wheat in this sense competes with wheat in commerce.

317 U.S. at 128.



Section 922(q) is a criminal statute that, by its terms, has nothing to

do with "commerce" or any sort of economic enterprise, however broadly

one might define those terms.  Section 922(q) is not an essential part

of a larger regulation of economic activity, in which the regulatory

scheme could be undercut unless the intrastate activity were regulated. 

It cannot, therefore, be sustained under our cases upholding regulations

of activities that arise out of or are connected with a commercial

transaction, which viewed in the aggregate, substantially affects

interstate commerce.



Second,  922(q) contains no jurisdictional element which would ensure,

through case-by-case inquiry, that the firearm possession in question

affects interstate commerce.  For example, in United States v. Bass, 404

U.S. 336 (1971), the Court interpreted former 18 U.S.C.  1202(a), which

made it a crime for a felon to "receiv[e], posses[s], or transpor[t] in

commerce or affecting commerce . . . any firearm."  404 U.S. at 337. 

The Court interpreted the possession component of  1202(a) to require an

additional nexus to interstate commerce both because the statute was

ambiguous and because "unless Congress conveys its purpose clearly, it

will not be deemed to have significantly changed the federal-state

balance."  Id. at 349.  The Bass Court set aside the conviction because

although the Government had demonstrated that Bass had possessed a

firearm, it had failed "to show the requisite nexus with interstate

commerce."  Id. at 347.  The Court thus interpreted the statute to

reserve the constitutional question whether Congress could regulate,

without more, the "mere possession" of firearms.  See id. at 339, n. 4;

see also United States v. Five Gambling Devices, 346 U.S. 441, 448

(1953) (plurality opinion) ("The principle is old and deeply imbedded in

our jurisprudence that this Court will construe a statute in a manner

that requires decision of serious constitutional questions only if the

statutory language leaves no reasonable alternative").  Unlike the

statute in Bass,  922(q) has no express jurisdictional element which

might limit its reach to a discrete set of firearm possessions that

additionally have an explicit connection with or effect on interstate

commerce.



Although as part of our independent evaluation of constitutionality

under the Commerce Clause we of course consider legislative findings,

and indeed even congressional committee findings, regarding effect on

interstate commerce, see, e.g., Preseault v. ICC, 494 U.S. 1, 17 (1990),

the Government concedes that [n]either the statute nor its legislative

history contain[s] express congressional findings regarding the effects

upon interstate commerce of gun possession in a school zone. Brief for

United States 5-6.  We agree with the Government that Congress normally

is not required to make formal findings as to the substantial burdens

that an activity has on interstate commerce.  See McClung, 379 U.S. at

304; see also Perez, 402 U.S. at 156 ("Congress need [not] make

particularized findings in order to legislate").  But to the extent that

congressional findings would enable us to evaluate the legislative

judgment that the activity in question substantially affected interstate

commerce, even though no such substantial effect was visible to the

naked eye, they are lacking here.



The Government argues that Congress has accumulated institutional

expertise regarding the regulation of firearms through previous

enactments.  Cf. Fullilove v. Klutznick, 448 U.S. 448, 503 (1980)

(Powell, J., concurring).  We agree, however, with the Fifth Circuit

that importation of previous findings to justify  922(q) is especially

inappropriate here because the prior federal enactments or Congressional

findings [do not] speak to the subject matter of section 922(q) or its

relationship to interstate commerce.  Indeed, section 922(q) plows

thoroughly new ground and represents a sharp break with the longstanding

pattern of federal firearms legislation. 2 F.3d at 1366.



The Government's essential contention, in fine, is that we may determine

here that  922(q) is valid because possession of a firearm in a local

school zone does indeed substantially affect interstate commerce.  Brief

for United States 17.  The Government argues that possession of a

firearm in a school zone may result in violent crime and that violent

crime can be expected to affect the functioning of the national economy

in two ways.  First, the costs of violent crime are substantial, and,

through the mechanism of insurance, those costs are spread throughout

the population.  See United States v. Evans, 928 F.2d 858, 862 (CA9

1991).  Second, violent crime reduces the willingness of individuals to

travel to areas within the country that are perceived to be unsafe.  Cf.

Heart of Atlanta Motel, 379 U.S. at 253.  The Government also argues

that the presence of guns in schools poses a substantial threat to the

educational process by threatening the learning environment.  A

handicapped educational process, in turn, will result in a less

productive citizenry.  That, in turn, would have an adverse effect on

the Nation's economic wellbeing.  As a result, the Government argues

that Congress could rationally have concluded that  922(q) substantially

affects interstate commerce.



We pause to consider the implications of the Government's arguments. 

The Government admits, under its "costs of crime" reasoning, that

Congress could regulate not only all violent crime, but all activities

that might lead to violent crime, regardless of how tenuously they

relate to interstate commerce.  See Tr. of Oral Arg. 8-9.  Similarly,

under the Government's "national productivity" reasoning, Congress could

regulate any activity that it found was related to the economic

productivity of individual citizens:  family law (including marriage,

divorce, and child custody), for example.  Under the theories that the

Government presents in support of  922(q), it is difficult to perceive

any limitation on federal power, even in areas such as criminal law

enforcement or education where States historically have been sovereign. 

Thus, if we were to accept the Government's arguments, we are

hard-pressed to posit any activity by an individual that Congress is

without power to regulate.



Although JUSTICE BREYER argues that acceptance of the Government's

rationales would not authorize a general federal police power, he is

unable to identify any activity that the States may regulate but

Congress may not.  JUSTICE BREYER posits that there might be some

limitations on Congress' commerce power such as family law or certain

aspects of education.  Post at ___.  These suggested limitations, when

viewed in light of the dissent's expansive analysis, are devoid of

substance.



JUSTICE BREYER focuses, for the most part, on the threat that firearm

possession in and near schools poses to the educational process and the

potential economic consequences flowing from that threat.  Post at ___. 

Specifically, the dissent reasons that (1) gun-related violence is a

serious problem; (2) that problem, in turn, has an adverse effect on

classroom learning; and (3) that adverse effect on classroom learning,

in turn, represents a substantial threat to trade and commerce.  Post at

___.  This analysis would be equally applicable, if not more so, to

subjects such as family law and direct regulation of education.



For instance, if Congress can, pursuant to its Commerce Clause power,

regulate activities that adversely affect the learning environment,

then, a fortiori, it also can regulate the educational process directly.

 Congress could determine that a school's curriculum has a "significant"

effect on the extent of classroom learning.  As a result, Congress could

mandate a federal curriculum for local elementary and secondary schools

because what is taught in local schools has a significant "effect on

classroom learning," cf. post at ___, and that, in turn, has a

substantial effect on interstate commerce.



JUSTICE BREYER rejects our reading of precedent and argues that

"Congress . . . could rationally conclude that schools fall on the

commercial side of the line."  Post at ___.  Again, JUSTICE BREYER's

rationale lacks any real limits because, depending on the level of

generality, any activity can be looked upon as commercial.  Under the

dissent's rationale, Congress could just as easily look at child rearing

as "fall[ing] on the commercial side of the line" because it provides a

"valuable service -- namely, to equip [children] with the skills they

need to survive in life and, more specifically, in the workplace." 

Ibid.  We do not doubt that Congress has authority under the Commerce

Clause to regulate numerous commercial activities that substantially

affect interstate commerce and also affect the educational process. 

That authority, though broad, does not include the authority to regulate

each and every aspect of local schools.



Admittedly, a determination whether an intrastate activity is commercial

or noncommercial may in some cases result in legal uncertainty.  But, so

long as Congress' authority is limited to those powers enumerated in the

Constitution, and so long as those enumerated powers are interpreted as

having judicially enforceable outer limits, congressional legislation

under the Commerce Clause always will engender "legal uncertainty." 

Post at ___.  As Chief Justice Marshall stated in McCulloch v. Maryland,

4 Wheat. 316 (1819): The [federal] government is acknowledged by all to

be one of enumerated powers.  The principle, that it can exercise only

the powers granted to it . . . is now universally admitted.  But the

question respecting the extent of the powers actually granted, is

perpetually arising, and will probably continue to arise, as long as our

system shall exist. Id. at 405.  See also Gibbons v. Ogden, 9 Wheat. at

195 ("The enumeration presupposes something not enumerated").  The

Constitution mandates this uncertainty by withholding from Congress a

plenary police power that would authorize enactment of every type of

legislation.  See U.S.Const., Art. I,  8.  Congress has operated within

this framework of legal uncertainty ever since this Court determined

that it was the judiciary's duty "to say what the law is."  Marbury v.

Madison, 1 Cranch. 137, 177 (1803) (Marshall, C.J.).  Any possible

benefit from eliminating this "legal uncertainty" would be at the

expense of the Constitution's system of enumerated powers.



In Jones & Laughlin Steel, 301 U.S. at 37, we held that the question of

congressional power under the Commerce Clause "is necessarily one of

degree."  To the same effect is the concurring opinion of Justice

Cardozo in Schecter Poultry: There is a view of causation that would

obliterate the distinction of what is national and what is local in the

activities of commerce.  Motion at the outer rim is communicated

perceptibly, though minutely, to recording instruments at the center.  A

society such as ours "is an elastic medium which transmits all tremors

throughout its territory; the only question is of their size." 295 U.S.

at 554 (quoting United States v. A.L.A. Schecter Poultry Corp, 76 F.2d

617, 624 (CA2 1935) (L. Hand, J., concurring)).



These are not precise formulations, and in the nature of things they

cannot be.  But we think they point the way to a correct decision of

this case.  The possession of a gun in a local school zone is in no

sense an economic activity that might, through repetition elsewhere,

substantially affect any sort of interstate commerce.  Respondent was a

local student at a local school; there is no indication that he had

recently moved in interstate commerce, and there is no requirement that

his possession of the firearm have any concrete tie to interstate

commerce.



To uphold the Government's contentions here, we would have to pile

inference upon inference in a manner that would bid fair to convert

congressional authority under the Commerce Clause to a general police

power of the sort retained by the States.  Admittedly, some of our prior

cases have taken long steps down that road, giving great deference to

congressional action.  See supra at ___.  The broad language in these

opinions has suggested the possibility of additional expansion, but we

decline here to proceed any further.  To do so would require us to

conclude that the Constitution's enumeration of powers does not

presuppose something not enumerated, cf. Gibbons v. Ogden, supra at 195,

and that there never will be a distinction between what is truly

national and what is truly local, cf. Jones & Laughlin Steel, supra at

30.  This we are unwilling to do.



For the foregoing reasons the judgment of the Court of Appeals is



Affirmed. KENNEDY, J., concurring



JUSTICE KENNEDY, with whom JUSTICE O'CONNOR joins, concurring.



The history of the judicial struggle to interpret the Commerce Clause

during the transition from the economic system the Founders knew to the

single, national market still emergent in our own era counsels great

restraint before the Court determines that the Clause is insufficient to

support an exercise of the national power.  That history gives me some

pause about today's decision, but I join the Court's opinion with these

observations on what I conceive to be its necessary though limited

holding.



Chief Justice Marshall announced that the national authority reaches

"that commerce which concerns more States than one" and that the

commerce power "is complete in itself, may be exercised to its utmost

extent, and acknowledges no limitations, other than are prescribed in

the constitution."  Gibbons v. Ogden, 9 Wheat. 1, 194, 196 (1824).  His

statements can be understood now as an early and authoritative

recognition that the Commerce Clause grants Congress extensive power and

ample discretion to determine its appropriate exercise.  The progression

of our Commerce Clause cases from Gibbons to the present was not marked,

however, by a coherent or consistent course of interpretation; for

neither the course of technological advance nor the foundational

principles for the jurisprudence itself were self-evident to the courts

that sought to resolve contemporary disputes by enduring principles.



Furthermore, for almost a century after the adoption of the

Constitution, the Court's Commerce Clause decisions did not concern the

authority of Congress to legislate.  Rather, the Court faced the related

but quite distinct question of the authority of the States to regulate

matters that would be within the commerce power had Congress chosen to

act.  The simple fact was that, in the early years of the Republic,

Congress seldom perceived the necessity to exercise its power in

circumstances where its authority would be called into question.  The

Court's initial task, therefore, was to elaborate the theories that

would permit the States to act where Congress had not done so.  Not the

least part of the problem was the unresolved question whether the

congressional power was exclusive, a question reserved by Chief Justice

Marshall in Gibbons v. Ogden, supra, at



At the midpoint of the 19th century, the Court embraced the principle

that the States and the National Government both have authority to

regulate certain matters absent the congressional determination to

displace local law or the necessity for the Court to invalidate local

law because of the dormant national power.  Cooley v. Board of Wardens

of Port of Philadelphia, 12 How. 299, 318-321 (1852).  But the utility

of that solution was not at once apparent, see generally F. Frankfurter,

The Commerce Clause under Marshall, Taney and Waite (1937) (hereinafter

Frankfurter), and difficulties of application persisted, see Leisy v.

Hardin, 135 U.S. 100, 122-125 (1890).



One approach the Court used to inquire into the lawfulness of state

authority was to draw content-based or subject-matter distinctions, thus

defining by semantic or formalistic categories those activities that

were commerce and those that were not.  For instance, in deciding that a

State could prohibit the instate manufacture of liquor intended for

out-of-state shipment, it distinguished between manufacture and

commerce. No distinction is more popular to the common mind, or more

clearly expressed in economic and political literature, than that

between manufactur[e] and commerce.  Manufacture is transformation-the

fashioning of raw materials into a change of form for use.  The

functions of commerce are different. Kidd v. Pearson, 128 U.S. 1, 20

(1888).  Though that approach likely would not have survived even if

confined to the question of a State's authority to enact legislation, it

was not at all propitious when applied to the quite different question

of what subjects were within the reach of the national power when

Congress chose to exercise it.



This became evident when the Court began to confront federal economic

regulation enacted in response to the rapid industrial development in

the late 19th century.  Thus, it relied upon the manufacture-commerce

dichotomy in United States v. E. C. Knight Co., 156 U.S. 1 (1895), where

a manufacturers' combination controlling some 98% of the Nation's

domestic sugar refining capacity was held to be outside the reach of the

Sherman Act.  Conspiracies to control manufacture, agriculture, mining,

production, wages, or prices, the Court explained, had too "indirect" an

effect on interstate commerce.  Id. at 16.  And in Adair v. United

States, 208 U.S. 161 (1908), the Court rejected the view that the

commerce power might extend to activities that, although local in the

sense of having originated within a single state, nevertheless had a

practical effect on interstate commercial activity.  The Court concluded

that there was not a "legal or logical connection . . . between an

employee's membership in a labor organization and the carrying on of

interstate commerce," id. at 178, and struck down a federal statute

forbidding the discharge of an employee because of his membership in a

labor organization.  See also The Employers' Liability Cases, 207 U.S.

463, 497 (1908) (invalidating statute creating negligence action against

common carriers for personal injuries of employees sustained in the

course of employment, because the statute "regulates the persons because

they engage in interstate commerce and does not alone regulate the

business of interstate commerce").



Even before the Court committed itself to sustaining federal legislation

on broad principles of economic practicality, it found it necessary to

depart from these decisions. The Court disavowed E. C. Knight's reliance

on the manufacturing-commerce distinction in Standard Oil Co. of New

Jersey v. United States, 221 U.S. 1, 68-69 (1911), declaring that

approach "unsound."  The Court likewise rejected the rationale of Adair

when it decided, in Texas & New Orleans R. Co. v. Railway Clerks, 281

U.S. 548, 570-571 (1930), that Congress had the power to regulate

matters pertaining to the organization of railroad workers.



In another line of cases, the Court addressed Congress' efforts to

impede local activities it considered undesirable by prohibiting the

interstate movement of some essential element.  In the Lottery Case, 188

U.S. 321 (1903), the Court rejected the argument that Congress lacked

power to prohibit the interstate movement of lottery tickets because it

had power only to regulate, not to prohibit.  See also Hipolite Egg Co.

v. United States, 220 U.S. 45 (1911); Hoke v. United States, 227 U.S.

308 (1913).  In Hammer v. Dagenhart, 247 U.S. 251 (1918), however, the

Court insisted that the power to regulate commerce "is directly the

contrary of the assumed right to forbid commerce from moving," id. at 

and struck down a prohibition on the interstate transportation of goods

manufactured in violation of child labor laws.



Even while it was experiencing difficulties in finding satisfactory

principles in these cases, the Court was pursuing a more sustainable and

practical approach in other lines of decisions, particularly those

involving the regulation of railroad rates.  In the Minnesota Rate

Cases, 230 U.S. 352 (1913), the Court upheld a state rate order, but

observed that Congress might be empowered to regulate in this area if,

"by reason of the interblending of the interstate and intrastate

operations of interstate carriers," the regulation of interstate rates

could not be maintained without restrictions on "intrastate rates which

substantially affect the former."  Id. at 432-433.  And in the

Shreveport Rate Cases, 234 U.S. 342 (1914), the Court upheld an ICC

order fixing railroad rates with the explanation that congressional

authority, extending to these interstate carriers as instruments of

interstate commerce, necessarily embraces the right to control their

operations in all matters having such a close and substantial relation

to interstate traffic that the control is essential or appropriate to

the security of that traffic, to the efficiency of the interstate

service, and to the maintenance of conditions under which interstate

commerce may be conducted upon fair terms and without molestation or

hindrance. Id. at 351.



Even the most confined interpretation of "commerce" would embrace

transportation between the States, so the rate cases posed much less

difficulty for the Court than cases involving manufacture or production.

 Nevertheless, the Court's recognition of the importance of a practical

conception of the commerce power was not altogether confined to the rate

cases.  In Swift & Co. v. United States, 196 U.S. 375 (1905), the Court

upheld the application of federal antitrust law to a combination of meat

dealers that occurred in one State but that restrained trade in cattle

"sent for sale from a place in one State, with the expectation that they

will end their transit . . . in another."  Id. at 398.  The Court

explained that "commerce among the States is not a technical legal

conception, but a practical one, drawn from the course of business." 

Id. at 398.  Chief Justice Taft followed the same approach in upholding

federal regulation of stockyards in Stafford v. Wallace, 258 U.S. 495

(1922).  Speaking for the Court, he rejected a "nice and technical

inquiry," id. at 519, when the local transactions at issue could not "be

separated from the movement to which they contribute," id. at 516.



Reluctance of the Court to adopt that approach in all of its cases

caused inconsistencies in doctrine to persist, however.  In addressing

New Deal legislation the Court resuscitated the abandoned abstract

distinction between direct and indirect effects on interstate commerce. 

See Carter v. Carter Coal Co., 298 U.S. 238, 309 (1936) (Act regulating

price of coal and wages and hours for miners held to have only

"secondary and indirect" effect on interstate commerce); Railroad

Retirement Bd. v. Alton R. Co., 295 U.S. 330, 368 (1935) (compulsory

retirement and pension plan for railroad carrier employees too "remote

from any regulation of commerce as such"); A. L. A. Schechter Poultry

Corp. v. United States, 295 U.S. 495, 548 (1935) (wage and hour law

provision of National Industrial Recovery Act had "no direct relation to

interstate commerce").



The case that seems to mark the Court's definitive commitment to the

practical conception of the commerce power is NLRB v. Jones & Laughlin

Steel Corp., 301 U.S. 1 (1937), where the Court sustained labor laws

that applied to manufacturing facilities, making no real attempt to

distinguish Carter, supra and Schechter, supra.  301 U.S. at 40-41.  The

deference given to Congress has since been confirmed.  United States v.

Darby, 312 U.S. 100, (1941), overruled Hammer v. Dagenhart, supra.  And

in Wickard v. Filburn, 317 U.S. 111 (1942), the Court disapproved E. C.

Knight and the entire line of direct-indirect and manufacture-production

cases, explaining that "broader interpretations of the Commerce Clause

[were] destined to supersede the earlier ones," id. at 122, and whatever

terminology is used, the criterion is necessarily one of degree and must

be so defined.  This does not satisfy those who seek mathematical or

rigid formulas.  But such formulas are not provided by the great

concepts of the Constitution, id. at 123, n. 24.  Later examples of the

exercise of federal power where commercial transactions were the subject

of regulation include Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241 (1964), Katzenbach v. McClung, 379 U.S. 294 (1964), and Perez

v. United States, 402 U.S. 146 (1971).  These and like authorities are

within the fair ambit of the Court's practical conception of commercial

regulation and are not called in question by our decision today.



The history of our Commerce Clause decisions contains at least two

lessons of relevance to this case.  The first, as stated at the outset,

is the imprecision of content-based boundaries used without more to

define the limits of the Commerce Clause.  The second, related to the

first but of even greater consequence, is that the Court as an

institution and the legal system as a whole have an immense stake in the

stability of our Commerce Clause jurisprudence as it has evolved to this

point. Stare decisis operates with great force in counseling us not to

call in question the essential principles now in place respecting the

congressional power to regulate transactions of a commercial nature. 

That fundamental restraint on our power forecloses us from reverting to

an understanding of commerce that would serve only an 18th-century

economy, dependent then upon production and trading practices that had

changed but little over the preceding centuries; it also mandates

against returning to the time when congressional authority to regulate

undoubted commercial activities was limited by a judicial determination

that those matters had an insufficient connection to an interstate

system.  Congress can regulate in the commercial sphere on the

assumption that we have a single market and a unified purpose to build a

stable national economy.



In referring to the whole subject of the federal and state balance, we

said this just three Terms ago:



This framework has been sufficiently flexible over the past two

centuries to allow for enormous changes in the nature of government. 

The Federal Government undertakes activities today that would have been

unimaginable to the Framers in two senses:  first, because the Framers

would not have conceived that any government would conduct such

activities; and second, because the Framers would not have believed that

the Federal Government, rather than the States, would assume such

responsibilities.  Yet the powers conferred upon the Federal Government

by the Constitution were phrased in language broad enough to allow for

the expansion of the Federal Government's role. New York v. United

States, 505 U.S. ___, ___ (1992) (emphasis omitted).    It does not

follow, however, that in every instance the Court lacks the authority

and responsibility to review congressional attempts to alter the federal

balance.  This case requires us to consider our place in the design of

the Government and to appreciate the significance of federalism in the

whole structure of the Constitution.



Of the various structural elements in the Constitution, separation of

powers, checks and balances, judicial review, and federalism, only

concerning the last does there seem to be much uncertainty respecting

the existence, and the content, of standards that allow the judiciary to

play a significant role in maintaining the design contemplated by the

Framers.  Although the resolution of specific cases has proved

difficult, we have derived from the Constitution workable standards to

assist in preserving separation of powers and checks and balances.  See,

e.g., Prize Cases, 2 Black 635 (1863); Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579 (1952); United States v. Nixon, 418 U.S. 683

(1974); Buckley v. Valeo, 424 U.S. 1 (1976); INS v. Chadha, 462 U.S. 919

(1983); Bowsher v. Synar, 478 U.S. 714 (1986); Plaut v. Spendthrift

Farm, ___ U.S. ___ (1995).  These standards are by now well accepted. 

Judicial review is also established beyond question, Marbury v. Madison,

1 Cranch 137 (1803), and though we may differ when applying its

principles, see, e.g., Planned Parenthood of Southeastern Pennsylvania

v. Casey, 505 U.S. ___ (1992), its legitimacy is undoubted.  Our role in

preserving the federal balance seems more tenuous.



There is irony in this, because of the four structural elements in the

Constitution just mentioned, federalism was the unique contribution of

the Framers to political science and political theory.  See Friendly,

Federalism:  A Forward, 86 Yale L.J. 1019 (1977); G. Wood, The Creation

of the American Republic, 1776-1787, pp. 524-532, 564 (1969).  Though on

the surface the idea may seem counterintuitive, it was the insight of

the Framers that freedom was enhanced by the creation of two

governments, not one. In the compound republic of America, the power

surrendered by the people is first divided between two distinct

governments, and then the portion allotted to each subdivided among

distinct and separate departments.  Hence a double security arises to

the rights of the people.  The different governments will control each

other at the same time that each will be controlled by itself. The

Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).  See also

Gregory v. Ashcroft, 501 U.S. 452, (1991) ("Just as the separation and

independence of the coordinate branches of the Federal Government serve

to prevent the accumulation of excessive power in any one branch, a

healthy balance of power between the States and the Federal Government

will reduce the risk of tyranny and abuse from either front. . . .  In

the tension between federal and state power lies the promise of

liberty"); New York v. United States, supra at ___ ("[T]he Constitution

divides authority between federal and state governments for the

protection of individuals.  State sovereignty is not just an end in

itself:  `Rather, federalism secures to citizens the liberties that

derive from the diffusion of sovereign power'") (quoting Coleman v.

Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting)).



The theory that two governments accord more liberty than one requires

for its realization two distinct and discernable lines of political

accountability:  one between the citizens and the Federal Government;

the second between the citizens and the States.  If, as Madison

expected, the federal and state governments are to control each other,

see The Federalist No. 51, and hold each other in check by competing for

the affections of the people, see The Federalist No. 46, those citizens

must have some means of knowing which of the two governments to hold

accountable for the failure to perform a given function.  "Federalism

serves to assign political responsibility, not to obscure it."  FTC v.

Ticor Title Ins. Co., 504 U.S. 621, 636 (1992).  Were the Federal

Government to take over the regulation of entire areas of traditional

state concern, areas having nothing to do with the regulation of

commercial activities, the boundaries between the spheres of federal and

state authority would blur and political responsibility would become

illusory.  See New York v. United States, supra at ___; FERC v.

Mississippi, 456 U.S. 742, 787 (1982) (O'CONNOR, J., concurring in

judgment in part and dissenting in part).  The resultant inability to

hold either branch of the government answerable to the citizens is more

dangerous even than devolving too much authority to the remote central

power.



To be sure, one conclusion that could be drawn from The Federalist

Papers is that the balance between national and state power is entrusted

in its entirety to the political process.  Madison's observation that

"the people ought not surely to be precluded from giving most of their

confidence where they may discover it to be most due," The Federalist

No. 46, p. 295 (C. Rossiter ed. 1961), can be interpreted to say that

the essence of responsibility for a shift in power from the State to the

Federal Government rests upon a political judgment, though he added

assurance that the State governments could have little to apprehend,

because it is only within a certain sphere that the federal power can,

in the nature of things, be advantageously administered, ibid.  Whatever

the judicial role, it is axiomatic that Congress does have substantial

discretion and control over the federal balance.



For these reasons, it would be mistaken and mischievous for the

political branches to forget that the sworn obligation to preserve and

protect the Constitution in maintaining the federal balance is their own

in the first and primary instance.  In the Webster-Hayne Debates, see

The Great Speeches and Orations of Daniel Webster 227-272 (E. Whipple

ed. 1879), and the debates over the Civil Rights Acts, see Hearings on

S. 1732 before the Senate Committee on Commerce, 88th Cong., 1st Sess.,

pts. 1-3 (1963), some Congresses have accepted responsibility to

confront the great questions of the proper federal balance in terms of

lasting consequences for the constitutional design.  The political

branches of the Government must fulfill this grave constitutional

obligation if democratic liberty and the federalism that secures it are

to endure.



At the same time, the absence of structural mechanisms to require those

officials to undertake this principled task, and the momentary political

convenience often attendant upon their failure to do so, argue against a

complete renunciation of the judicial role.  Although it is the

obligation of all officers of the Government to respect the

constitutional design, see Public Citizen v. Department of Justice, 491

U.S. 440, 466 (1989); Rostker v. Goldberg, 453 U.S. 57, 64 (1981), the

federal balance is too essential a part of our constitutional structure

and plays too vital a role in securing freedom for us to admit inability

to intervene when one or the other level of Government has tipped the

scales too far.



In the past this Court has participated in maintaining the federal

balance through judicial exposition of doctrines such as abstention,

see, e.g., Younger v. Harris, 401 U.S. 37 (1971); Railroad Comm'n of

Texas v. Pullman Co., 312 U.S. 496 (1941); Burford v. Sun Oil Co., 319

U.S. 315 (1943), the rules for determining the primacy of state law,

see, e.g., Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), the doctrine of

adequate and independent state grounds, see, e.g., Murdock v. City of

Memphis, 87 U.S. 590 (1875); Michigan v. Long, 463 U.S. 1032 (1983), the

whole jurisprudence of preemption, see, e.g., Rice v. Santa Fe Elevator

Corp., 331 U.S. 218 (1947); Cipollone v. Liggett Group, Inc., 505 U.S.

___ (1992), and many of the rules governing our habeas jurisprudence,

see, e.g., Coleman v. Thompson, supra; McCleskey v. Zant, 499 U.S. 467

(1991); Teague v. Lane, 489 U.S. 288 (1989); Rose v. Lundy, 455 U.S. 509

(1982); Wainwright v. Sykes, 433 U.S. 72 (1977).



Our ability to preserve this principle under the Commerce Clause has

presented a much greater challenge.  See supra at ___.  "This clause has

throughout the Court's history been the chief source of its

adjudications regarding federalism," and "no other body of opinions

affords a fairer or more revealing test of judicial qualities." 

Frankfurter 66-67.  But as the branch whose distinctive duty it is to

declare "what the law is," Marbury v. Madison, 1 Cranch at 177, we are

often called upon to resolve questions of constitutional law not

susceptible to the mechanical application of bright and clear lines. 

The substantial element of political judgment in Commerce Clause matters

leaves our institutional capacity to intervene more in doubt than when

we decide cases, for instance, under the Bill of Rights even though

clear and bright lines are often absent in the latter class of disputes.

 See County of Allegheny v. American Civil Liberties Union, Greater

Pittsburgh Chapter, 492 U.S. 573, 630 (1989) (O'CONNOR, J., concurring

in part and concurring in judgment) ("We cannot avoid the obligation to

draw lines, often close and difficult lines" in adjudicating

constitutional rights).  But our cases do not teach that we have no role

at all in determining the meaning of the Commerce Clause.



Our position in enforcing the dormant Commerce Clause is instructive. 

The Court's doctrinal approach in that area has likewise "taken some

turns."  Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. ___, ___

(1995).  Yet, in contrast to the prevailing skepticism that surrounds

our ability to give meaning to the explicit text of the Commerce Clause,

there is widespread acceptance of our authority to enforce the dormant

Commerce Clause, which we have but inferred from the constitutional

structure as a limitation on the power of the States.  One element of

our dormant Commerce Clause jurisprudence has been the principle that

the States may not impose regulations that place an undue burden on

interstate commerce, even where those regulations do not discriminate

between in-state and out-of-state businesses.  See Brown-Forman

Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573, 579

(1986) (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). 

Distinguishing between regulations that do place an undue burden on

interstate commerce and regulations that do not depends upon delicate

judgments.  True, if we invalidate a state law, Congress can in effect

overturn our judgment, whereas, in a case announcing that Congress has

transgressed its authority, the decision is more consequential, for its

stands unless Congress can revise its law to demonstrate its commercial

character.  This difference no doubt informs the circumspection with

which we invalidate an Act of Congress, but it does not mitigate our

duty to recognize meaningful limits on the commerce power of Congress.



The statute before us upsets the federal balance to a degree that

renders it an unconstitutional assertion of the commerce power, and our

intervention is required.  As the Chief Justice explains, unlike the

earlier cases to come before the Court here neither the actors nor their

conduct have a commercial character, and neither the purposes nor the

design of the statute have an evident commercial nexus.  See ante at

___.  The statute makes the simple possession of a gun within 1,000 feet

of the grounds of the school a criminal offense.  In a sense, any

conduct in this interdependent world of ours has an ultimate commercial

origin or consequence, but we have not yet said the commerce power may

reach so far.  If Congress attempts that extension, then at the least we

must inquire whether the exercise of national power seeks to intrude

upon an area of traditional state concern.



An interference of these dimensions occurs here, for it is well

established that education is a traditional concern of the States. 

Milliken v. Bradley, 418 U.S. 717, (1974); Epperson v. Arkansas, 393

U.S. 97, 104 (1968).  The proximity to schools, including of course

schools owned and operated by the States or their subdivisions, is the

very premise for making the conduct criminal.  In these circumstances,

we have a particular duty to insure that the federal-state balance is

not destroyed.  Cf. Rice, supra at 230 ("[W]e start with the assumption

that the historic police powers of the States" are not displaced by a

federal statute "unless that was the clear and manifest purpose of

Congress"); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,

146 (1963).



While it is doubtful that any State, or indeed any reasonable person,

would argue that it is wise policy to allow students to carry guns on

school premises, considerable disagreement exists about how best to

accomplish that goal.  In this circumstance, the theory and utility of

our federalism are revealed, for the States may perform their role as

laboratories for experimentation to devise various solutions where the

best solution is far from clear.  See San Antonio Independent School

Dist. v. Rodriguez, 411 U.S. 1, 49-50 (1973); New State Ice Co. v.

Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).



If a State or municipality determines that harsh criminal sanctions are

necessary and wise to deter students from carrying guns on school

premises, the reserved powers of the States are sufficient to enact

those measures.  Indeed, over 40 States already have criminal laws

outlawing the possession of firearms on or near school grounds.  See,

e.g., Alaska Stat. Ann.  11.61.195(a)(2)(A), 11.61.220(a)(4)(A) (Supp.

1994); Cal.Penal Code Ann.  626.9 (West Supp. 1994); Mass.Gen.Laws 

269:10(j) (1992); N.J.Stat.Ann.  2C:39-5(e) (West Supp. 1994); Va.Code

Ann.  18.2-308.1 (1988); Wis.Stat.  948.605 (1991-1992).



Other, more practicable means to rid the schools of guns may be thought

by the citizens of some States to be preferable for the safety and

welfare of the schools those States are charged with maintaining.  See

Brief for National Conference of State Legislatures et al., as Amici

Curiae 26-30 (injection of federal officials into local problems causes

friction and diminishes political accountability of state and local

governments).  These might include inducements to inform on violators

where the information leads to arrests or confiscation of the guns, see

C. Lima, Schools May Launch Weapons Hot Line, L. A. Times, Jan. 13,

1995, part B, p. 1, col. 5; Reward for Tips on Guns in Tucson Schools,

The Arizona Republic, Jan. 7, 1995, p. B2; programs to encourage the

voluntary surrender of guns with some provision for amnesty, see A.

Zaidan, Akron Rallies to Save Youths, The Plain Dealer, Mar. 2, 1995, p.

1B; M. Swift, Legislators Consider Plan to Get Guns Off Streets,

Hartford Courant, Apr. 29, 1992, p. A4; penalties imposed on parents or

guardians for failure to supervise the child, see, e.g., Okla.Stat.,

Tit. 21,  858 (Supp. 1995) (fining parents who allow students to possess

firearm at school); Tenn.Code Ann.  39-17-1312 (Supp. 1992) (misdemeanor

for parents to allow student to possess firearm at school); Straight

Shooter:  Gov. Casey's Reasonable Plan to Control Assault Weapons,

Pittsburgh Post-Gazette, Mar. 14, 1994, p. B2 (proposed bill); E.

Bailey, Anti-Crime Measures Top Legislators' Agenda, L. A. Times, Mar.

7, 1994, part B, p. 1, col. 2 (same); G. Krupa, New Gun-Control Plans

Could Tighten Local Law, The Boston Globe, June 20, 1993, p. 29; laws

providing for suspension or expulsion of gun-toting students, see, e.g.,

Ala. Code  16-1-24.1 (Supp. 1994); Ind.Code  20-8.1-5-4(b)(1)(D) (1993);

Ky.Rev.Stat.Ann.  158.150(1)(a) (Michie 1992); Wash.Rev. Code  9.41.280

(1994), or programs for expulsion with assignment to special facilities,

see J. Martin, Legislators Poised to Take Harsher Stand on Guns in

Schools, The Seattle Times, Feb. 1, 1995, p. B1 (automatic year-long

expulsion for students with guns and intense semester-long reentry

program).



The statute now before us forecloses the States from experimenting and

exercising their own judgment in an area to which States lay claim by

right of history and expertise, and it does so by regulating an activity

beyond the realm of commerce in the ordinary and usual sense of that

term.  The tendency of this statute to displace state regulation in

areas of traditional state concern is evident from its territorial

operation.  There are over 100,000 elementary and secondary schools in

the United States.  See U.S. Dept. of Education, National Center for

Education Statistics, Digest of Education Statistics 73, 104 (NCES

94-115, 1994) (Tables 63, 94).  Each of these now has an invisible

federal zone extending 1,000 feet beyond the (often irregular)

boundaries of the school property.  In some communities, no doubt, it

would be difficult to navigate without infringing on those zones.  Yet

throughout these areas, school officials would find their own programs

for the prohibition of guns in danger of displacement by the federal

authority unless the State chooses to enact a parallel rule.



This is not a case where the etiquette of federalism has been violated

by a formal command from the National Government directing the State to

enact a certain policy, cf. New York v. United States, 505 U.S. ___

(1992), or to organize its governmental functions in a certain way, cf.

FERC v. Mississippi, 456 U.S. at 781 (O'CONNOR, J., concurring in

judgment in part and dissenting in part).  While the intrusion on state

sovereignty may not be as severe in this instance as in some of our

recent Tenth Amendment cases, the intrusion is nonetheless significant. 

Absent a stronger connection or identification with commercial concerns

that are central to the Commerce Clause, that interference contradicts

the federal balance the Framers designed and that this Court is obliged

to enforce.



For these reasons, I join in the opinion and judgment of the Court.

THOMAS, J., concurring



JUSTICE THOMAS, concurring.



The Court today properly concludes that the Commerce Clause does not

grant Congress the authority to prohibit gun possession within 1,000

feet of a school, as it attempted to do in the Gun-Free School Zones Act

of 1990, Pub.L. 101-647, 104 Stat. 4844.  Although I join the majority,

I write separately to observe that our case law has drifted far from the

original understanding of the Commerce Clause.  In a future case, we

ought to temper our Commerce Clause jurisprudence in a manner that both

makes sense of our more recent case law and is more faithful to the

original understanding of that Clause.



We have said that Congress may regulate not only "Commerce . . . among

the several states," U.S.Const., Art. I,  8, cl. 3, but also anything

that has a "substantial effect" on such commerce.  This test, if taken

to its logical extreme, would give Congress a "police power" over all

aspects of American life.  Unfortunately, we have never come to grips

with this implication of our substantial effects formula.  Although we

have supposedly applied the substantial effects test for the past 60

years, we always have rejected readings of the Commerce Clause and the

scope of federal power that would permit Congress to exercise a police

power; our cases are quite clear that there are real limits to federal

power.  See New York v. United States, 505 U.S. ___, ___ (1992) ("[N]o

one disputes the proposition that `[t]he Constitution created a Federal

Government of limited powers'") (quoting Gregory v. Ashcroft, 501 U.S.

452, 457 (1991)); Maryland v. Wirtz, 392 U.S. 183, 196 (1968); NLRB v.

Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937).  Cf. Chisholm v.

Georgia, 2 Dall. 419, 435 (1793) (Iredell, J.) ("Each State in the Union

is sovereign as to all the powers reserved.  It must necessarily be so,

because the United States have no claim to any authority but such as the

States have surrendered to them").  Indeed, on this crucial point, the

majority and JUSTICE BREYER agree in principle:  the Federal Government

has nothing approaching a police power.  Compare ante at ___ with post

at ___.



While the principal dissent concedes that there are limits to federal

power, the sweeping nature of our current test enables the dissent to

argue that Congress can regulate gun possession.  But it seems to me

that the power to regulate "commerce" can by no means encompass

authority over mere gun possession, any more than it empowers the

Federal Government to regulate marriage, littering, or cruelty to

animals, throughout the 50 States.  Our Constitution quite properly

leaves such matters to the individual States, notwithstanding these

activities' effects on interstate commerce.  Any interpretation of the

Commerce Clause that even suggests that Congress could regulate such

matters is in need of reexamination.



In an appropriate case, I believe that we must further reconsider our

"substantial effects" test with an eye toward constructing a standard

that reflects the text and history of the Commerce Clause without

totally rejecting our more recent Commerce Clause jurisprudence.



Today, however, I merely support the Court's conclusion with a

discussion of the text, structure, and history of the Commerce Clause

and an analysis of our early case law.  My goal is simply to show how

far we have departed from the original understanding and to demonstrate

that the result we reach today is by no means "radical," see post at ___

(STEVENS, J., dissenting).  I also want to point out the necessity of

refashioning a coherent test that does not tend to "obliterate the

distinction between what is national and what is local and create a

completely centralized government."  Jones & Laughlin Steel Corp, supra

at 37. I



At the time the original Constitution was ratified, "commerce" consisted

of selling, buying, and bartering, as well as transporting for these

purposes.  See 1 S. Johnson, A Dictionary of the English Language 361

(4th ed. 1773) (defining commerce as "Intercour[s]e; exchange of one

thing for another; interchange of any thing; trade; traffick"); N.

Bailey, An Universal Etymological English Dictionary (26th ed. 1789)

("trade or traffic"); T. Sheridan, A Complete Dictionary of the English

Language (6th ed. 1796) ("Exchange of one thing for another; trade,

traffick").  This understanding finds support in the etymology of the

word, which literally means "with merchandise."  See 3 Oxford English

Dictionary 552 (2d ed. 1989) (com -- "with"; merci -- "merchandise"). 

In fact, when Federalists and Anti-Federalists discussed the Commerce

Clause during the ratification period, they often used trade (in its

selling/bartering sense) and commerce interchangeably.  See The

Federalist No. 4, p. 22 (J. Jay) (asserting that countries will

cultivate our friendship when our "trade" is prudently regulated by

Federal Government); id. No. 7 at 39-40 (A. Hamilton) (discussing

"competitions of commerce" between States resulting from state

"regulations of trade"); id. No. 40 at 262 (J. Madison) (asserting that

it was an "acknowledged object of the Convention . . . that the

regulation of trade should be submitted to the general government");

Lee, Letters of a Federal Farmer No. 5, in Pamphlets on the Constitution

of the United States 319 (P. Ford ed. 1888); Smith, An Address to the

People of the State of New-York, in id. at 107.



As one would expect, the term "commerce" was used in contradistinction

to productive activities such as manufacturing and agriculture. 

Alexander Hamilton, for example, repeatedly treated commerce,

agriculture, and manufacturing as three separate endeavors.  See, e.g.,

The Federalist No. 36 at 224 (referring to "agriculture, commerce,

manufactures"); id. No. 21 at 133 (distinguishing commerce, arts, and

industry); id. No. 12 at 74 (asserting that commerce and agriculture

have shared interests).  The same distinctions were made in the state

ratification conventions.  See e.g., 2 Debates in the Several State

Conventions on the Adoption of the Federal Constitution 57 (J. Elliot

ed. 1836) (hereinafter Debates) (T. Dawes at Massachusetts convention);

id. at 336 (M. Smith at New York convention).



Moreover, interjecting a modern sense of commerce into the Constitution

generates significant textual and structural problems.  For example, one

cannot replace "commerce" with a different type of enterprise, such as

manufacturing.  When a manufacturer produces a car, assembly cannot take

place "with a foreign nation" or "with the Indian Tribes."  Parts may

come from different States or other nations and hence may have been in

the flow of commerce at one time, but manufacturing takes place at a

discrete site.  Agriculture and manufacturing involve the production of

goods; commerce encompasses traffic in such articles.



The Port Preference Clause also suggests that the term "commerce"

denoted sale and/or transport rather than business generally.  According

to that Clause, "[n]o Preference shall be given by any Regulation of

Commerce or Revenue to the Ports of one State over those of another."

U.S.Const., Art. I,  9, cl. 6.  Although it is possible to conceive of

regulations of manufacturing or farming that prefer one port over

another, the more natural reading is that the Clause prohibits Congress

from using its commerce power to channel commerce through certain

favored ports.



The Constitution not only uses the word "commerce" in a narrower sense

than our case law might suggest, it also does not support the

proposition that Congress has authority over all activities that

"substantially affect" interstate commerce.  The Commerce Clause does

not state that Congress may "regulate matters that substantially affect

commerce with foreign Nations, and among the several States, and with

the Indian Tribes."  In contrast, the Constitution itself temporarily

prohibited amendments that would "affect" Congress' lack of authority to

prohibit or restrict the slave trade or to enact unproportioned direct

taxation.  U.S.Const., Art. V.  Clearly, the Framers could have drafted

a Constitution that contained a "substantially affects interstate

commerce" clause had that been their objective.



In addition to its powers under the Commerce Clause, Congress has the

authority to enact such laws as are "necessary and proper" to carry into

execution its power to regulate commerce among the several States. 

U.S.Const., Art. I,  8, cl. 18.  But on this Court's understanding of

congressional power under these two Clauses, many of Congress' other

enumerated powers under Art. I,  8 are wholly superfluous.  After all,

if Congress may regulate all matters that substantially affect commerce,

there is no need for the Constitution to specify that Congress may enact

bankruptcy laws, cl. 4, or coin money and fix the standard of weights

and measures, cl. 5, or punish counterfeiters of United States coin and

securities, cl. 6.  Likewise, Congress would not need the separate

authority to establish post offices and post roads, cl. 7, or to grant

patents and copyrights, cl. 8, or to "punish Piracies and Felonies

committed on the high Seas," cl. 10.  It might not even need the power

to raise and support an Army and Navy, cls. 12 and 13, for fewer people

would engage in commercial shipping if they thought that a foreign power

could expropriate their property with ease.  Indeed, if Congress could

regulate matters that substantially affect interstate commerce, there

would have been no need to specify that Congress can regulate

international trade and commerce with the Indians.  As the Framers

surely understood, these other branches of trade substantially affect

interstate commerce.



Put simply, much if not all of Art. I,  8 (including portions of the

Commerce Clause itself) would be surplusage if Congress had been given

authority over matters that substantially affect interstate commerce. 

An interpretation of cl. 3 that makes the rest of  8 superfluous simply

cannot be correct.  Yet this Court's Commerce Clause jurisprudence has

endorsed just such an interpretation:  the power we have accorded

Congress has swallowed Art. I,  8.



Indeed, if a "substantial effects" test can be appended to the Commerce

Clause, why not to every other power of the Federal Government?  There

is no reason for singling out the Commerce Clause for special treatment.

 Accordingly, Congress could regulate all matters that "substantially

affect" the Army and Navy, bankruptcies, tax collection, expenditures,

and so on.  In that case, the clauses of  8 all mutually overlap,

something we can assume the Founding Fathers never intended.



Our construction of the scope of congressional authority has the

additional problem of coming close to turning the Tenth Amendment on its

head.  Our case law could be read to reserve to the United States all

powers not expressly prohibited by the Constitution.  Taken together,

these fundamental textual problems should at the very least, convince us

that the "substantial effects" test should be reexamined. II



The exchanges during the ratification campaign reveal the relatively

limited reach of the Commerce Clause and of federal power generally. 

The Founding Fathers confirmed that most areas of life (even many

matters that would have substantial effects on commerce) would remain

outside the reach of the Federal Government.  Such affairs would

continue to be under the exclusive control of the States.



Early Americans understood that commerce, manufacturing, and

agriculture, while distinct activities, were intimately related and

dependent on each other -- that each "substantially affected" the

others.  After all, items produced by farmers and manufacturers were the

primary articles of commerce at the time.  If commerce was more robust

as a result of federal superintendence, farmers and manufacturers could

benefit.  Thus, Oliver Ellsworth of Connecticut attempted to convince

farmers of the benefits of regulating commerce.  "Your property and

riches depend on a ready demand and generous price for the produce you

can annually spare," he wrote, and these conditions exist "where trade

flourishes and when the merchant can freely export the produce of the

country" to nations that will pay the highest price.  A Landholder No.

1, Connecticut Courant, Nov. 5, 1787, in 3 Documentary History of the

Ratification of the Constitution 399 (M. Jensen ed. 1978) (hereinafter

Documentary History).  See also The Federalist No. 35 at 219 (A.

Hamilton) ("[D]iscerning citizens are well aware that the mechanic and

manufacturing arts furnish the materials of mercantile enterprise and

industry.  Many of them indeed are immediately connected with the

operations of commerce.  They know that the merchant is their natural

patron and friend"); id. at 221 ("Will not the merchant . . . be

disposed to cultivate . . . the interests of the mechanic and

manufacturing arts to which his commerce is so nearly allied?"); A

Jerseyman:  To the Citizens of New Jersey, Trenton Mercury, Nov. 6,

1787, in 3 Documentary History 147 (noting that agriculture will serve

as a "source of commerce"); Marcus, The New Jersey Journal, Nov. 14,

1787, id. at 152 (both the mechanic and the farmer benefit from the

prosperity of commerce).  William Davie, a delegate to the North

Carolina Convention, illustrated the close link best: Commerce, sir, is

the nurse of [agriculture and manufacturing].  The merchant furnishes

the planter with such articles as he cannot manufacture himself, and

finds him a market for his produce.  Agriculture cannot flourish if

commerce languishes; they are mutually dependent on each other. 4

Debates 20.



Yet, despite being well aware that agriculture, manufacturing, and other

matters substantially affected commerce, the founding generation did not

cede authority over all these activities to Congress.  Hamilton, for

instance, acknowledged that the Federal Government could not regulate

agriculture and like concerns: The administration of private justice

between the citizens of the same State, the supervision of agriculture

and of other concerns of a similar nature, all those things in short

which are proper to be provided for by local legislation, can never be

desirable cares of a general jurisdiction. The Federalist No. 17 at 106.

 In the unlikely event that the Federal Government would attempt to

exercise authority over such matters, its effort "would be as

troublesome as it would be nugatory."  Ibid.



The comments of Hamilton and others about federal power reflected the

well known truth that the new Government would have only the limited and

enumerated powers found in the Constitution.  See, e.g., 2 Debates

267-268 (A. Hamilton at New York convention) (noting that there would be

just cause for rejecting the Constitution if it would enable the Federal

Government to "alter, or abrogate . . . [a state's] civil and criminal

institutions [or] penetrate the recesses of domestic life, and control,

in all respects, the private conduct of individuals"); The Federalist

No. 45 at 313 (J. Madison); 3 Debates 259 (J. Madison) (Virginia

convention); R. Sherman & O. Ellsworth, Letter to Governor Huntington,

Sept. 26, 1787, in 3 Documentary History 352; J. Wilson, Speech in the

State House Yard, Oct. 6, 1787, in 2 id. at 167-168.  Agriculture and

manufacture, since they were not surrendered to the Federal Government,

were state concerns.  See The Federalist No. 34 at 212-213 (A. Hamilton)

(observing that the "internal encouragement of agriculture and

manufactures" was an object of state expenditure).  Even before the

passage of the Tenth Amendment, it was apparent that Congress would

possess only those powers "herein granted" by the rest of the

Constitution. U.S.Const., Art. I,  1.



Where the Constitution was meant to grant federal authority over an

activity substantially affecting interstate commerce, the Constitution

contains an enumerated power over that particular activity.  Indeed, the

Framers knew that many of the other enumerated powers in  8 dealt with

matters that substantially affected interstate commerce.  Madison, for

instance, spoke of the bankruptcy power as being "intimately connected

with the regulation of commerce."  The Federalist No. 42 at 287. 

Likewise, Hamilton urged that "[i]f we mean to be a commercial people or

even to be secure on our Atlantic side, we must endeavour as soon as

possible to have a navy."  Id. No. 24 at 157 (A. Hamilton).



In short, the Founding Fathers were well aware of what the principal

dissent calls "`economic . . . realities.'"  See post at ___ (BREYER,

J.) (citing North American Co. v. SEC, 327 U.S. 686, 705 (1946)).  Even

though the boundary between commerce and other matters may ignore

"economic reality" and thus seem arbitrary or artificial to some, we

must nevertheless respect a constitutional line that does not grant

Congress power over all that substantially affects interstate commerce.

III



If the principal dissent's understanding of our early case law were

correct, there might be some reason to doubt this view of the original

understanding of the Constitution.  According to that dissent, Chief

Justice Marshall's opinion in Gibbons v. Ogden, 9 Wheat. 1 (1824)

established that Congress may control all local activities that

"significantly affect interstate commerce," post at ___.  And, "with the

exception of one wrong turn subsequently corrected," this has been the

"traditiona[l]" method of interpreting the Commerce Clause.  Post at ___

(citing Gibbons and United States v. Darby, 312 U.S. 100, (1941)).



In my view, the dissent is wrong about the holding and reasoning of

Gibbons.  Because this error leads the dissent to characterize the first

150 years of this Court's case law as a "wrong turn," I feel compelled

to put the last 50 years in proper perspective. A



In Gibbons, the Court examined whether a federal law that licensed ships

to engage in the "coasting trade" preempted a New York law granting a

30-year monopoly to Robert Livingston and Robert Fulton to navigate the

State's waterways by steamship.  In concluding that it did, the Court

noted that Congress could regulate "navigation" because [a]ll America .

. . has uniformly understood, the word "commerce," to comprehend

navigation.  It was so understood, and must have been so understood,

when the constitution was framed. 9 Wheat. at 190.  The Court also

observed that federal power over commerce "among the several States"

meant that Congress could regulate commerce conducted partly within a

State.  Because a portion of interstate commerce and foreign commerce

would almost always take place within one or more States, federal power

over interstate and foreign commerce necessarily would extend into the

States.  Id. at



At the same time, the Court took great pains to make clear that Congress

could not regulate commerce "which is completely internal, which is

carried on between man and man in a State, or between different parts of

the same State, and which does not extend to or affect other States." 

Id. at 194.  Moreover, while suggesting that the Constitution might not

permit States to regulate interstate or foreign commerce, the Court

observed that "[i]nspection laws, quarantine laws, health laws of every

description, as well as laws for regulating the internal commerce of a

State" were but a small part "of that immense mass of legislation . . .

not surrendered to a general government."  Id. at 203.  From an early

moment, the Court rejected the notion that Congress can regulate

everything that affects interstate commerce.  That the internal commerce

of the States and the numerous state inspection, quarantine, and health

laws had substantial effects on interstate commerce cannot be doubted. 

Nevertheless, they were not "surrendered to the general government."



Of course, the principal dissent is not the first to misconstrue

Gibbons.  For instance, the Court has stated that Gibbons "described the

federal commerce power with a breadth never yet exceeded."  Wickard v.

Filburn, 317 U.S. 111, 120 (1942).  See also Perez v. United States, 402

U.S. 146, 151 (1971) (claiming that with Darby and Wickard, "the broader

view of the Commerce Clause announced by Chief Justice Marshall had been

restored").  I believe that this misreading stems from two statements in

Gibbons.



First, the Court made the uncontroversial claim that federal power does

not encompass "commerce" that "does not extend to or affect other

States."  9 Wheat. at 194 (emphasis added).  From this statement, the

principal dissent infers that whenever an activity affects interstate

commerce, it necessarily follows that Congress can regulate such

activities.  Of course, Chief Justice Marshall said no such thing and

the inference the dissent makes cannot be drawn.



There is a much better interpretation of the "affect[s]" language: 

because the Court had earlier noted that the commerce power did not

extend to wholly intrastate commerce, the Court was acknowledging that

although the line between intrastate and interstate/foreign commerce

would be difficult to draw, federal authority could not be construed to

cover purely intrastate commerce.  Commerce that did not affect another

State could never be said to be commerce "among the several States."



But even if one were to adopt the dissent's reading, the "affect[s]"

language at most, permits Congress to regulate only intrastate commerce

that substantially affects interstate and foreign commerce.  There is no

reason to believe that Chief Justice Marshall was asserting that

Congress could regulate all activities that affect interstate commerce. 

See Ibid.



The second source of confusion stems from the Court's praise for the

Constitution's division of power between the States and the Federal

Government: The genius and character of the whole government seem to be

that its action is to be applied to all the external concerns of the

nation, and to those internal concerns which affect the States

generally; but not to those which are completely within a particular

State, which do not affect other States, and with which it is not

necessary to interfere, for the purpose of executing some of the general

powers of the government. Id. at 195.  In this passage, the Court merely

was making the well understood point that the Constitution commits

matters of "national" concern to Congress and leaves "local" matters to

the States.  The Court was not saying that whatever Congress believes is

a national matter becomes an object of federal control.  The matters of

national concern are enumerated in the Constitution:  war, taxes,

patents, and copyrights, uniform rules of naturalization and bankruptcy,

types of commerce, and so on.  See generally U.S.Const., Art. I,  8. 

Gibbons' emphatic statements that Congress could not regulate many

matters that affect commerce confirm that the Court did not read the

Commerce Clause as granting Congress control over matters that "affect

the States generally."  Gibbons simply cannot be construed as the

principal dissent would have it. B



I am aware of no cases prior to the New Deal that characterized the

power flowing from the Commerce Clause as sweepingly as does our

substantial effects test.  My review of the case law indicates that the

substantial effects test is but an innovation of the 20th century.



Even before Gibbons, Chief Justice Marshall, writing for the Court in

Cohens v. Virginia, 6 Wheat. 264  (1821), noted that Congress had "no

general right to punish murder committed within any of the States," id.

at 426, and that it was "clear that congress cannot punish felonies

generally," id. at 428.  The Court's only qualification was that

Congress could enact such laws for places where it enjoyed plenary

powers-for instance, over the District of Columbia.  Id. at 426.  Thus,

whatever effect ordinary murders, or robbery, or gun possession might

have on interstate commerce (or on any other subject of federal concern)

was irrelevant to the question of congressional power.



United States v. Dewitt, 9 Wall. 41 (1870), marked the first time the

Court struck down a federal law as exceeding the power conveyed by the

Commerce Clause.  In a two-page opinion, the Court invalidated a

nationwide law prohibiting all sales of naphtha and illuminating oils. 

In so doing, the Court remarked that the Commerce Clause has always been

understood as limited by its terms; and as a virtual denial of any power

to interfere with the internal trade and business of the separate

States. Id. at 44.  The law in question was "plainly a regulation of

police," which could have constitutional application only where Congress

had exclusive authority, such as the territories.  Id. at 44-45.  See

also License Tax Cases, 5 Wall. 462, 470-471 (1867) (Congress cannot

interfere with the internal commerce and business of a State); 

Trade-Mark Cases, 100 U.S. 82 (1879) (Congress cannot regulate internal

commerce, and thus may not establish national trademark registration).



In United States v. E. C. Knight Co., 156 U.S. 1 (1895), this Court held

that mere attempts to monopolize the manufacture of sugar could not be

regulated pursuant to the Commerce Clause.  Raising echoes of the

discussions of the Framers regarding the intimate relationship between

commerce and manufacturing, the Court declared that "[c]ommerce succeeds

to manufacture, and is not a part of it."  Id. at 12.  The Court also

approvingly quoted from Kidd v. Pearson, 128 U.S. 1, 20 (1888): "No

distinction is more popular to the common mind, or more clearly

expressed in economic and political literature, than that between

manufacture and commerce. . . .   If it be held that the term [commerce]

includes the regulation of all such manufactures as are intended to be

the subject of commercial transactions in the future, it is impossible

to deny that it would also include all productive industries that

contemplate the same thing.  The result would be that Congress would be

invested . . . with the power to regulate not only manufactures, but

also agriculture, horticulture, stock raising, domestic fisheries,

mining -- in short, every branch of human industry." E. C. Knight, 156

U.S. at 14.  If federal power extended to these types of production

"comparatively little of business operations and affairs would be left

for state control."  Id. at 16.  See also Newberry v. United States, 256

U.S. 232, 257 (1921) ("It is settled . . . that the power to regulate

interstate and foreign commerce does not reach whatever is essential

thereto.  Without agriculture, manufacturing, mining, etc., commerce

could not exist, but this fact does not suffice to subject them to the

control of Congress").  Whether or not manufacturing, agriculture, or

other matters substantially affected interstate commerce was irrelevant.



As recently as 1936, the Court continued to insist that the Commerce

Clause did not reach the wholly internal business of the States.  See

Carter v. Carter Coal Co., 298 U.S. 238, 308 (1936) (Congress may not

regulate mine labor, because "[t]he relation of employer and employee is

a local relation"); see also A. L. A. Schechter Poultry Corp. v. United

States, 295 U.S. 495, (1935) (holding that Congress may not regulate

intrastate sales of sick chickens or the labor of employees involved in

intrastate poultry sales).  The Federal Government simply could not

reach such subjects regardless of their effects on interstate commerce.



These cases all establish a simple point:  from the time of the

ratification of the Constitution to the mid-1930's, it was widely

understood that the Constitution granted Congress only limited powers,

notwithstanding the Commerce Clause.  Moreover, there was no question

that activities wholly separated from business, such as gun possession,

were beyond the reach of the commerce power.  If anything, the "wrong

turn" was the Court's dramatic departure in the 1930's from a century

and a half of precedent. IV



Apart from its recent vintage and its corresponding lack of any

grounding in the original understanding of the Constitution, the

substantial effects test suffers from the further flaw that it appears

to grant Congress a police power over the Nation.  When asked at oral

argument if there were any limits to the Commerce Clause, the Government

was at a loss for words.  Tr. of Oral Arg. 5.  Likewise, the principal

dissent insists that there are limits, but it cannot muster even one

example.  Post at ___.  Indeed, the dissent implicitly concedes that its

reading has no limits when it criticizes the Court for "threaten[ing]

legal uncertainty in an area of law that . . . seemed reasonably well

settled."  Post at ___.  The one advantage of the dissent's standard is

certainty:  it is certain that, under its analysis, everything may be

regulated under the guise of the Commerce Clause.



The substantial effects test suffers from this flaw, in part, because of

its "aggregation principle."  Under so-called "class of activities"

statutes, Congress can regulate whole categories of activities that are

not themselves either "interstate" or "commerce."  In applying the

effects test, we ask whether the class of activities as a whole

substantially affects interstate commerce, not whether any specific

activity within the class has such effects when considered in isolation.

 See Maryland v. Wirtz, 392 U.S. at (if class of activities is "`within

the reach of federal power,'" courts may not excise individual

applications as trivial) (quoting Darby, 312 U.S. at .



The aggregation principle is clever, but has no stopping point.  Suppose

all would agree that gun possession within 1,000 feet of a school does

not substantially affect commerce, but that possession of weapons

generally (knives, brass knuckles, nunchakus, etc.) does.  Under our

substantial effects doctrine, even though Congress cannot single out gun

possession, it can prohibit weapon possession generally.  But one always

can draw the circle broadly enough to cover an activity that, when taken

in isolation, would not have substantial effects on commerce.  Under our

jurisprudence, if Congress passed an omnibus "substantially affects

interstate commerce" statute, purporting to regulate every aspect of

human existence, the Act apparently would be constitutional.  Even

though particular sections may govern only trivial activities, the

statute in the aggregate regulates matters that substantially affect

commerce. V



This extended discussion of the original understanding and our first

century and a half of case law does not necessarily require a wholesale

abandonment of our more recent opinions.  It simply reveals that our

substantial effects test is far removed from both the Constitution and

from our early case law and that the Court's opinion should not be

viewed as "radical" or another "wrong turn" that must be corrected in

the future.  The analysis also suggests that we ought to temper our

Commerce Clause jurisprudence.



Unless the dissenting Justices are willing to repudiate our long-held

understanding of the limited nature of federal power, I would think that

they too must be willing to reconsider the substantial effects test in a

future case.  If we wish to be true to a Constitution that does not cede

a police power to the Federal Government, our Commerce Clause's

boundaries simply cannot be "defined" as being "`commensurate with the

national needs'" or self-consciously intended to let the Federal

Government "`defend itself against economic forces that Congress decrees

inimical or destructive of the national economy.'"  See post at ___

(BREYER, J., dissenting) (quoting North American Co. v. SEC, 327 U.S.

686, 705 (1946)).  Such a formulation of federal power is no test at

all:  it is a blank check.



At an appropriate juncture, I think we must modify our Commerce Clause

jurisprudence.  Today, it is easy enough to say that the Clause

certainly does not empower Congress to ban gun possession within 1,000

feet of a school. STEVENS, J., dissenting



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. ___, ___ (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.

SOUTER, J., dissenting



JUSTICE SOUTER, dissenting.



In reviewing congressional legislation under the Commerce Clause, we

defer to what is often a merely implicit congressional judgment that its

regulation addresses a subject substantially affecting interstate

commerce "if there is any rational basis for such a finding."  Hodel v.

Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276

(1981); Preseault v. ICC, 494 U.S. 1, 17 (1990); see Maryland v. Wirtz,

392 U.S. 183, 190 (1968), quoting Katzenbach v. McClung, 379 U.S. 294,

(1964).  If that congressional determination is within the realm of

reason, the only remaining question for judicial inquiry is whether "the

means chosen by Congress [are] reasonably adapted to the end permitted

by the Constitution." Hodel v. Virginia Surface Mining & Reclamation

Assn., Inc., supra at 276, quoting Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 241, 262 (1964); see also Preseault v. ICC,

supra at 17.



The practice of deferring to rationally based legislative judgments "is

a paradigm of judicial restraint."  FCC v. Beach Communications, Inc.,

508 U.S. ___, ___ (1993).  In judicial review under the Commerce Clause,

it reflects our respect for the institutional competence of the Congress

on a subject expressly assigned to it by the Constitution and our

appreciation of the legitimacy that comes from Congress's political

accountability in dealing with matters open to a wide range of possible

choices.  See id. at ___; Hodel v. Virginia Surface Mining & Reclamation

Assn., Inc., supra at 276; United States v. Carolene Products Co., 304

U.S. 144, 147, (1938); cf. Williamson v. Lee Optical of Okla., Inc., 348

U.S. 483, 488 (1955).



It was not ever thus, however, as even a brief overview of Commerce

Clause history during the past century reminds us.  The modern respect

for the competence and primacy of Congress in matters affecting commerce

developed only after one of this Court's most chastening experiences,

when it perforce repudiated an earlier and untenably expansive

conception of judicial review in derogation of congressional commerce

power.  A look at history's sequence will serve to show how today's

decision tugs the Court off course, leading it to suggest opportunities

for further developments that would be at odds with the rule of

restraint to which the Court still wisely states adherence. I



Notwithstanding the Court's recognition of a broad commerce power in

Gibbons v. Ogden, 9 Wheat. 1, (1824) (Marshall, C.J.), Congress saw few

occasions to exercise that power prior to Reconstruction, see generally

2 C. Warren, The Supreme Court in United States History 729-739 (rev.

ed. 1935), and it was really the passage of the Interstate Commerce Act

of 1887 that opened a new age of congressional reliance on the Commerce

Clause for authority to exercise general police powers at the national

level, see id. at 729-730.  Although the Court upheld a fair amount of

the ensuing legislation as being within the commerce power, see, e.g.,

Stafford v. Wallace, 258 U.S. 495 (1922) (upholding an Act regulating

trade practices in the meat packing industry); The Shreveport Rate

Cases, 234 U.S. 342 (1914) (upholding ICC order to equalize inter- and

intrastate rail rates); see generally Warren, supra at 729-739, the

period from the turn of the century to 1937 is better noted for a series

of cases applying highly formalistic notions of "commerce" to invalidate

federal social and economic legislation, see, e.g., Carter v. Carter

Coal Co., 298 U.S. 238, (1936) (striking Act prohibiting unfair labor

practices in coal industry as regulation of "mining" and "production,"

not "commerce"); A. L. A. Schechter Poultry Corp. v. United States, 295

U.S. 495, (1935) (striking congressional regulation of activities

affecting interstate commerce only "indirectly"); Hammer v. Dagenhart,

247 U.S. 251 (1918) (striking Act prohibiting shipment in interstate

commerce of goods manufactured at factories using child labor because

the Act regulated "manufacturing," not "commerce"); Adair v. United

States, 208 U.S. 161 (1908) (striking protection of labor union

membership as outside "commerce").



These restrictive views of commerce subject to congressional power

complemented the Court's activism in limiting the enforceable scope of

state economic regulation.  It is most familiar history that during this

same period the Court routinely invalidated state social and economic

legislation under an expansive conception of Fourteenth Amendment

substantive due process.  See, e.g., Louis K. Liggett Co. v. Baldridge,

278 U.S. 105 (1928) (striking state law requiring pharmacy owners to be

licensed as pharmacists); Coppage v. Kansas, 236 U.S. 1 (1915) (striking

state law prohibiting employers from requiring their employees to agree

not to join labor organizations); Lochner v. New York, 198 U.S. 45

(1905) (striking state law establishing maximum working hours for

bakers).  See generally L. Tribe, American Constitutional Law 568-574

(2d ed. 1988).  The fulcrums of judicial review in these cases were the

notions of liberty and property characteristic of laissez-faire

economics, whereas the Commerce Clause cases turned on what was

ostensibly a structural limit of federal power, but under each

conception of judicial review the Court's character for the first third

of the century showed itself in exacting judicial scrutiny of a

legislature's choice of economic ends and of the legislative means

selected to reach them.



It was not merely coincidental, then, that sea changes in the Court's

conceptions of its authority under the Due Process and Commerce Clauses

occurred virtually together, in 1937, with West Coast Hotel Co. v.

Parrish, 300 U.S. 379 and NLRB v. Jones & Laughlin Steel Corp., 301 U.S.

1.  See Stern, The Commerce Clause and the National Economy, 1933-1946,

59 Harv. L.Rev. 645, 674-682 (1946).  In West Coast Hotel, the Court's

rejection of a due process challenge to a state law fixing minimum wages

for women and children marked the abandonment of its expansive

protection of contractual freedom.  Two weeks later, Jones & Laughlin

affirmed congressional commerce power to authorize NLRB injunctions

against unfair labor practices.  The Court's finding that the regulated

activity had a direct enough effect on commerce has since been seen as

beginning the abandonment, for practical purposes, of the formalistic

distinction between direct and indirect effects.



In the years following these decisions, deference to legislative policy

judgments on commercial regulation became the powerful theme under both

the Due Process and Commerce Clauses, see United States v. Carolene

Products Co., 304 U.S. at  152; United States v. Darby, 312 U.S. 100,

(1941); United States v. Wrightwood Dairy Co., 315 U.S. 110, 118-119

(1942), and in due course that deference became articulate in the

standard of rationality review.  In due process litigation, the Court's

statement of a rational basis test came quickly.  See United States v.

Carolene Products Co., supra at 152; see also Williamson v. Lee Optical

Co., 348 U.S. at   The parallel formulation of the Commerce Clause test

came later, only because complete elimination of the direct/indirect

effects dichotomy and acceptance of the cumulative effects doctrine,

Wickard v. Filburn, 317 U.S. 111, 125, (1942); United States v.

Wrightwood Dairy Co., supra at 124-126, so far settled the pressing

issues of congressional power over commerce as to leave the Court for

years without any need to phrase a test explicitly deferring to rational

legislative judgments.  The moment came, however, with the challenge to

congressional Commerce Clause authority to prohibit racial

discrimination in places of public accommodation, when the Court simply

made explicit what the earlier cases had implied: where we find that the

legislators, in light of the facts and testimony before them, have a

rational basis for finding a chosen regulatory scheme necessary to the

protection of commerce, our investigation is at an end. Katzenbach v.

McClung, 379 U.S. 294, (1964), discussing United States v. Darby, supra;

see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, (1964).

 Thus, under commerce, as under due process, adoption of rational basis

review expressed the recognition that the Court had no sustainable basis

for subjecting economic regulation as such to judicial policy judgments,

and for the past half-century the Court has no more turned back in the

direction of formalistic Commerce Clause review (as in deciding whether

regulation of commerce was sufficiently direct) than it has inclined

toward reasserting the substantive authority of Lochner due process (as

in the inflated protection of contractual autonomy).  See, e.g.,

Maryland v. Wirtz, 392 U.S. at 190, 198; Perez v. United States, 402

U.S. 146, (1971); Hodel v. Virginia Surface Mining & Reclamation Assn.,

Inc., 452 U.S. at 276, 277. II



There is today, however, a backward glance at both the old pitfalls, as

the Court treats deference under the rationality rule as subject to

gradation according to the commercial or noncommercial nature of the

immediate subject of the challenged regulation.  See ante at ___.  The

distinction between what is patently commercial and what is not looks

much like the old distinction between what directly affects commerce and

what touches it only indirectly.  And the act of calibrating the level

of deference by drawing a line between what is patently commercial and

what is less purely so will probably resemble the process of deciding

how much interference with contractual freedom was fatal.  Thus, it

seems fair to ask whether the step taken by the Court today does

anything but portend a return to the untenable jurisprudence from which

the Court extricated itself almost 60 years ago.  The answer is not

reassuring.  To be sure, the occasion for today's decision reflects the

century's end, not its beginning.  But if it seems anomalous that the

Congress of the United States has taken to regulating school yards, the

act in question is still probably no more remarkable than state

regulation of bake shops 90 years ago.  In any event, there is no reason

to hope that the Court's qualification of rational basis review will be

any more successful than the efforts at substantive economic review made

by our predecessors as the century began.  Taking the Court's opinion on

its own terms, JUSTICE BREYER has explained both the hopeless porosity

of "commercial" character as a ground of Commerce Clause distinction in

America's highly connected economy, and the inconsistency of this

categorization with our rational basis precedents from the last 50

years.



Further glosses on rationality review, moreover, may be in the offing. 

Although this case turns on commercial character, the Court gestures

toward two other considerations that it might sometime entertain in

applying rational basis scrutiny (apart from a statutory obligation to

supply independent proof of a jurisdictional element):  does the

congressional statute deal with subjects of traditional state

regulation, and does the statute contain explicit factual findings

supporting the otherwise implicit determination that the regulated

activity substantially affects interstate commerce?  Once again, any

appeal these considerations may have depends on ignoring the painful

lesson learned in 1937, for neither of the Court's suggestions would

square with rational basis scrutiny. A



The Court observes that the Gun-Free School Zones Act operates in two

areas traditionally subject to legislation by the States, education and

enforcement of criminal law.  The suggestion is either that a connection

between commerce and these subjects is remote, or that the commerce

power is simply weaker when it touches subjects on which the States have

historically been the primary legislators.  Neither suggestion is

tenable.  As for remoteness, it may or may not be wise for the National

Government to deal with education, but JUSTICE BREYER has surely

demonstrated that the commercial prospects of an illiterate State or

Nation are not rosy, and no argument should be needed to show that

hijacking interstate shipments of cigarettes can affect commerce

substantially, even though the States have traditionally prosecuted

robbery.  And as for the notion that the commerce power diminishes the

closer it gets to customary state concerns, that idea has been flatly

rejected, and not long ago.  The commerce power, we have often observed,

is plenary.  Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,

312 U.S. at 276; United States v. Darby, supra at 114; see Garcia v. San

Antonio Metropolitan Transit Authority, 469 U.S. 528, (1985); Gibbons v.

Ogden, 9 Wheat. at   Justice Harlan put it this way in speaking for the

Court in Maryland v. Wirtz: There is no general doctrine implied in the

Federal Constitution that the two governments, national and state, are

each to exercise its powers so as not to interfere with the free and

full exercise of the powers of the other. . . .  [I]t is clear that the

Federal Government, when acting within a delegated power, may override

countervailing state interests. . . .   As long ago as [1925], the Court

put to rest the contention that state concerns might constitutionally

"outweigh" the importance of an otherwise valid federal statute

regulating commerce. 392 U.S. at (citations and internal quotation marks

omitted).  See also United States v. Darby, supra, at 114; Gregory v.

Ashcroft, 501 U.S. 452, 460 (1991); United States v. Carolene Products

Co., 304 U.S. at 147.



Nor is there any contrary authority in the reasoning of our cases

imposing clear statement rules in some instances of legislation that

would significantly alter the state-national balance.  In the absence of

a clear statement of congressional design, for example, we have refused

to interpret ambiguous federal statutes to limit fundamental state

legislative prerogatives, Gregory v. Ashcroft, supra at  our

understanding being that such prerogatives, through which "a State

defines itself as a sovereign," are "powers with which Congress does not

readily interfere," 501 U.S. at 460, 461.  Likewise, when faced with two

plausible interpretations of a federal criminal statute, we generally

will take the alternative that does not force us to impute an intention

to Congress to use its full commerce power to regulate conduct

traditionally and ably regulated by the States.  See United States v.

Enmons, 410 U.S. 396, (1973); United States v. Bass, 404 U.S. 336,

(1971); Rewis v. United States, 401 U.S. 808, 812 (1971).



These clear statement rules, however, are merely rules of statutory

interpretation, to be relied upon only when the terms of a statute

allow, United States v. Culbert, 435 U.S. 371, (1978); see Gregory v.

Ashcroft, supra at 470; United States v. Bass, supra at  and in cases

implicating Congress's historical reluctance to trench on state

legislative prerogatives or to enter into spheres already occupied by

the States, Gregory v. Ashcroft, supra, at 461; United States v. Bass,

supra, at 349; see Rewis v. United States, supra, at   They are rules

for determining intent when legislation leaves intent subject to

question.  But our hesitance to presume that Congress has acted to alter

the state-federal status quo (when presented with a plausible

alternative) has no relevance whatever to the enquiry whether it has the

commerce power to do so or to the standard of judicial review when

Congress has definitely meant to exercise that power.  Indeed, to allow

our hesitance to affect the standard of review would inevitably

degenerate into the sort of substantive policy review that the Court

found indefensible 60 years ago.



The Court does not assert (and could not plausibly maintain) that the

commerce power is wholly devoid of congressional authority to speak on

any subject of traditional state concern; but if congressional action is

not forbidden absolutely when it touches such a subject, it will stand

or fall depending on the Court's view of the strength of the

legislation's commercial justification.  And here, once again, history

raises its objections that the Court's previous essays in overriding

congressional policy choices under the Commerce Clause were ultimately

seen to suffer two fatal weaknesses:  when dealing with Acts of Congress

(as distinct from state legislation subject to review under the theory

of dormant commerce power) nothing in the Clause compelled the judicial

activism, and nothing about the judiciary as an institution made it a

superior source of policy on the subject Congress dealt with.  There is

no reason to expect the lesson would be different another time. B



There remain questions about legislative findings.  The  Court of

Appeals expressed the view, 2 F.3d 1342, 1363-1368 (1993), that the

result in this case might well have been different if Congress had made

explicit findings that guns in schools have a substantial effect on

interstate commerce, and the Court today does not repudiate that

position, see ante at ___.  Might a court aided by such findings have

subjected this legislation to less exacting scrutiny (or, put another

way, should a court have deferred to such findings if Congress had made

them)?  The answer to either question must be no, although as a general

matter findings are important and to be hoped for in the difficult

cases.



It is only natural to look for help with a hard job, and reviewing a

claim that Congress has exceeded the commerce power is much harder in

some cases than in others.  A challenge to congressional regulation of

interstate garbage hauling would be easy to resolve; review of

congressional regulation of gun possession in school yards is more

difficult, both because the link to interstate commerce is less obvious

and because of our initial ignorance of the relevant facts.  In a case

comparable to this one, we may have to dig hard to make a responsible

judgment about what Congress could reasonably find, because the case may

be close, and because judges tend not to be familiar with the facts that

may or may not make it close.  But while the ease of review may vary

from case to case, it does not follow that the standard of review should

vary, much less that explicit findings of fact would even directly

address the standard.



The question for the courts, as all agree, is not whether as a predicate

to legislation Congress in fact found that a particular activity

substantially affects interstate commerce.  The legislation implies such

a finding, and there is no reason to entertain claims that Congress

acted ultra vires intentionally.  Nor is the question whether Congress

was correct in so finding.  The only question is whether the legislative

judgment is within the realm of reason.  See Hodel v. Virginia Surface

Mining & Reclamation Assn., Inc., 452 U.S. at  Katzenbach v. McClung,

379 U.S. at  Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330,

391-392 (1935) (Hughes, C.J., dissenting); cf. FCC v. Beach

Communications, 508 U.S. at ___ (in the equal protection context, "those

attacking the rationality of the legislative classification have the

burden to negative every conceivable basis which might support it; . . .

it is entirely irrelevant for constitutional purposes whether the

conceived reason for the challenged distinction actually motivated the

legislature") (citations and internal quotation marks omitted); 

Ferguson v. Skrupa, 372 U.S. 726, (1963); Williamson v. Lee Optical Co.,

348 U.S. at 487.  Congressional findings do not, however, directly

address the question of reasonableness; they tell us what Congress

actually has found, not what it could rationally find.  If, indeed, the

Court were to make the existence of explicit congressional findings

dispositive in some close or difficult cases something other than

rationality review would be afoot.  The resulting congressional

obligation to justify its policy choices on the merits would imply

either a judicial authority to review the justification (and, hence, the

wisdom) of those choices, or authority to require Congress to act with

some high degree of deliberateness, of which express findings would be

evidence.  But review for congressional wisdom would just be the old

judicial pretension discredited and abandoned in 1937, and review for

deliberateness would be as patently unconstitutional as an Act of

Congress mandating long opinions from this Court.  Such a legislative

process requirement would function merely as an excuse for covert review

of the merits of legislation under standards never expressed and more or

less arbitrarily applied.  Under such a regime, in any case, the

rationality standard of review would be a thing of the past.



On the other hand, to say that courts applying the rationality standard

may not defer to findings is not, of course, to say that findings are

pointless.  They may, in fact, have great value in telling courts what

to look for, in establishing at least one frame of reference for review,

and in citing to factual authority.  The research underlying JUSTICE

BREYER's dissent was necessarily a major undertaking; help is welcome,

and it not incidentally shrinks the risk that judicial research will

miss material scattered across the public domain or buried under pounds

of legislative record. Congressional findings on a more particular plane

than this record illustrates would accordingly have earned judicial

thanks.  But thanks do not carry the day as long as rational possibility

is the touchstone, and I would not allow for the possibility, as the

Court's opinion may, ante at ___, that the addition of congressional

findings could in principle have affected the fate of the statute here.

III



Because JUSTICE BREYER's opinion demonstrates beyond any doubt that the

Act in question passes the rationality review that the Court continues

to espouse, today's decision may be seen as only a misstep, its

reasoning and its suggestions not quite in gear with the prevailing

standard, but hardly an epochal case.  I would not argue otherwise, but

I would raise a caveat.  Not every epochal case has come in epochal

trappings.  Jones & Laughlin did not reject the direct-indirect standard

in so many words; it just said the relation of the regulated subject

matter to commerce was direct enough.  301 U.S. at 41-43.  But we know

what happened.



I respectfully dissent. BREYER, J., dissenting



JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE

GINSBURG join, dissenting.



The issue in this case is whether the Commerce Clause authorizes

Congress to enact a statute that makes it a crime to possess a gun in,

or near, a school.  18 U.S.C.  922(q)(1)(A) (1988 ed., Supp. V).  In my

view, the statute falls well within the scope of the commerce power as

this Court has understood that power over the last half-century. I



In reaching this conclusion, I apply three basic principles of Commerce

Clause interpretation.  First, the power to "regulate Commerce . . .

among the several States," U.S.Const., Art. I,  8, cl. 3, encompasses

the power to regulate local activities insofar as they significantly

affect interstate commerce.  See, e.g., Gibbons v. Ogden, 9 Wheat. 1,

(1824) (Marshall, C.J.); Wickard v. Filburn, 317 U.S. 111, 125 (1942). 

As the majority points out, ante at ___, the Court, in describing how

much of an effect the Clause requires, sometimes has used the word

"substantial" and sometimes has not.  Compare, e.g., Wickard, supra at

125 ("substantial economic effect"), with Hodel v. Virginia Surface

Mining and Reclamation Assn., Inc., 452 U.S. 264, 276 (1981) ("affects

interstate commerce"); see also Maryland v. Wirtz, 392 U.S. 183, 196, n.

27 (1968) (cumulative effect must not be "trivial"); NLRB v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 37 (1937) (speaking of "close and

substantial relation" between activity and commerce, not of "substantial

effect") (emphasis added); Gibbons, supra, at 194 (words of Commerce

Clause do not "comprehend . . . commerce, which is completely internal .

. . and which does not . . . affect other States").  And, as the

majority also recognizes in quoting Justice Cardozo, the question of

degree (how much effect) requires an estimate of the "size" of the

effect that no verbal formulation can capture with precision.  See ante

at ___.  I use the word "significant" because the word "substantial"

implies a somewhat narrower power than recent precedent suggests.  See,

e.g., Perez v. United States, 402 U.S. 146, 154 (1971); Daniel v. Paul,

395 U.S. 298, 308 (1969).  But, to speak of "substantial effect" rather

than "significant effect" would make no difference in this case.



Second, in determining whether a local activity will likely have a

significant effect upon interstate commerce, a court must consider, not

the effect of an individual act (a single instance of gun possession),

but rather the cumulative effect of all similar instances (i.e., the

effect of all guns possessed in or near schools).  See, e.g., Wickard,

supra, at   As this Court put the matter almost 50 years ago: [I]t is

enough that the individual activity when multiplied into a general

practice . . . contains a threat to the interstate economy that requires

preventative regulation. Mandeville Island Farms, Inc. v. American

Crystal Sugar Co., 334 U.S. 219, 236 (1948) (citations omitted).



Third, the Constitution requires us to judge the connection between a

regulated activity and interstate commerce, not directly, but at one

remove.  Courts must give Congress a degree of leeway in determining the

existence of a significant factual connection between the regulated

activity and interstate commerce -- both because the Constitution

delegates the commerce power directly to Congress and because the

determination requires an empirical judgment of a kind that a

legislature is more likely than a court to make with accuracy.  The

traditional words "rational basis" capture this leeway.  See Hodel,

supra, at   Thus, the specific question before us, as the Court

recognizes, is not whether the "regulated activity sufficiently affected

interstate commerce," but, rather, whether Congress could have had "a

rational basis" for so concluding.  Ante at ___ (emphasis added).



I recognize that we must judge this matter independently.  "[S]imply

because Congress may conclude that a particular activity substantially

affects interstate commerce does not necessarily make it so."  Hodel,

supra at 311 (REHNQUIST, J., concurring in judgment).  And, I also

recognize that Congress did not write specific "interstate commerce"

findings into the law under which Lopez was convicted.  Nonetheless, as

I have already noted, the matter that we review independently (i.e.,

whether there is a "rational basis") already has considerable leeway

built into it.  And, the absence of findings at most, deprives a statute

of the benefit of some extra leeway.  This extra deference, in

principle, might change the result in a close case, though, in practice,

it has not made a critical legal difference.  See, e.g., Katzenbach v.

McClung, 379 U.S. 294, 299 (1964) (noting that "no formal findings were

made, which of course are not necessary"); Perez, supra at  cf. Turner

Broadcasting System, Inc. v. FCC, 512 U.S. ___, ___ (1994) (opinion of

KENNEDY, J.) ("Congress is not obligated, when enacting its statutes, to

make a record of the type that an administrative agency or court does to

accommodate judicial review"); Fullilove v. Klutznick, 448 U.S. 448, 503

(1980) (Powell, J., concurring) ("After Congress has legislated

repeatedly in an area of national concern, its Members gain experience

that may reduce the need for fresh hearings or prolonged debate . . .").

 And, it would seem particularly unfortunate to make the validity of the

statute at hand turn on the presence or absence of findings.  Because

Congress did make findings (though not until after Lopez was

prosecuted), doing so would appear to elevate form over substance.  See

Pub.L. 103-322,  320904(2)(F), (G), 108 Stat. 2125, 18 U.S.C. A. 

922(q)(1)(F), (G) (Nov. 1994 Supp.).



In addition, despite the Court of Appeals' suggestion to the contrary,

see 2 F.3d 1342, 1365 (CA5 1993), there is no special need here for a

clear indication of Congress' rationale.  The statute does not interfere

with the exercise of state or local authority.  Cf., e.g., Dellmuth v.

Muth, 491 U.S. 223, (1989) (requiring clear statement for abrogation of

Eleventh Amendment immunity).  Moreover, any clear statement rule would

apply only to determine Congress' intended result, not to clarify the

source of its authority or measure the level of consideration that went

into its decision, and here there is no doubt as to which activities

Congress intended to regulate.  See ibid.; id. at 233 (SCALIA, J.,

concurring) (to subject States to suits for money damages, Congress need

only make that intent clear, and need not refer explicitly to the

Eleventh Amendment); EEOC v. Wyoming, 460 U.S. 226, 243, n. 18 (1983)

(Congress need not recite the constitutional provision that authorizes

its action). II



Applying these principles to the case at hand, we must ask whether

Congress could have had a rational basis for finding a significant (or

substantial) connection between gun-related school violence and

interstate commerce.  Or, to put the question in the language of the

explicit finding that Congress made when it amended this law in 1994: 

could Congress rationally have found that "violent crime in school

zones," through its effect on the "quality of education," significantly

(or substantially) affects "interstate" or "foreign commerce"?  18

U.S.C.  922(q)(1)(F), (G) (Nov. 1994 Supp.).  As long as one views the

commerce connection, not as a "technical legal conception," but as "a

practical one," Swift & Co. v. United States, 196 U.S. 375, 398 (1905)

(Holmes, J.), the answer to this question must be yes.  Numerous reports

and studies -- generated both inside and outside government -- make

clear that Congress could reasonably have found the empirical connection

that its law, implicitly or explicitly, asserts.  (See Appendix, infra

at ___, for a sample of the documentation, as well as for complete

citations to the sources referenced below.)



For one thing, reports, hearings, and other readily available literature

make clear that the problem of guns in and around schools is widespread

and extremely serious.  These materials report, for example, that four

percent of American high school students (and six percent of inner-city

high school students) carry a gun to school at least occasionally,

Centers for Disease Control 2342; Sheley, McGee, & Wright 679; that 12

percent of urban high school students have had guns fired at them,

ibid.; that 20 percent of those students have been threatened with guns,

ibid.; and that, in any 6-month period, several hundred thousand

schoolchildren are victims of violent crimes in or near their schools,

U.S. Dept. of Justice 1 (1989); House Select Committee Hearing 15

(1989).  And, they report that this widespread violence in schools

throughout the Nation significantly interferes with the quality of

education in those schools.  See, e.g., House Judiciary Committee

Hearing 44 (1990) (linking school violence to dropout rate); U.S. Dept.

of Health 118-119 (1978) (school-violence victims suffer academically);

compare U.S. Dept. of Justice 1 (1991) (gun violence worst in inner city

schools), with National Center 47 (dropout rates highest in inner

cities).  Based on reports such as these, Congress obviously could have

thought that guns and learning are mutually exclusive.  Senate Labor and

Human Resources Committee Hearing 39 (1993); U.S. Dept. of Health 118,

123-124 (1978).  And, Congress could therefore have found a substantial

educational problem -- teachers unable to teach, students unable to

learn -- and concluded that guns near schools contribute substantially

to the size and scope of that problem.



Having found that guns in schools significantly undermine the quality of

education in our Nation's classrooms, Congress could also have found,

given the effect of education upon interstate and foreign commerce, that

gun-related violence in and around schools is a commercial, as well as a

human, problem.  Education, although far more than a matter of

economics, has long been inextricably intertwined with the Nation's

economy.  When this Nation began, most workers received their education

in the workplace, typically (like Benjamin Franklin) as apprentices. 

See generally Seybolt; Rorabaugh; U.S. Dept. of Labor (1950).  As late

as the 1920's, many workers still received general education directly

from their employers -- from large corporations, such as General

Electric, Ford, and Goodyear, which created schools within their firms

to help both the worker and the firm.  See Bolino 15-25.  (Throughout

most of the 19th century, fewer than one percent of all Americans

received secondary education through attending a high school.  See id.

at 11.)  As public school enrollment grew in the early 20th century, see

Becker 218 (1993), the need for industry to teach basic educational

skills diminished.  But, the direct economic link between basic

education and industrial productivity remained.  Scholars estimate that

nearly a quarter of America's economic growth in the early years of this

century is traceable directly to increased schooling, see Denison 243;

that investment in "human capital" (through spending on education)

exceeded investment in "physical capital" by a ratio of almost two to

one, see Schultz 26 (1961); and that the economic returns to this

investment in education exceeded the returns to conventional capital

investment, see, e.g., Davis & Morrall 48-49.



In recent years, the link between secondary education and business has

strengthened, becoming both more direct and more important.  Scholars on

the subject report that technological changes and innovations in

management techniques have altered the nature of the workplace so that

more jobs now demand greater educational skills.  See, e.g., MIT 32

(only about one-third of hand-tool company's 1,000 workers were

qualified to work with a new process that requires high-school-level

reading and mathematical skills); Cyert & Mowery 68 (gap between wages

of high school dropouts and better trained workers increasing); U.S.

Dept. of Labor 41 (1981) (job openings for dropouts declining over

time).  There is evidence that service, manufacturing or construction

jobs are being displaced by technology that requires a better educated

worker or, more likely, are being exported overseas, Gordon, Ponticell,

& Morgan 26; that "workers with truly few skills by the year 2000 will

find that only one job out of ten will remain," ibid.; and that, [o]ver

the long haul, the best way to encourage the growth of high-wage jobs is

to upgrade the skills of the work force. . . .  [B]etter trained workers

become more productive workers, enabling a company to become more

competitive and expand. Henkoff 60.



Increasing global competition also has made primary and secondary

education economically more important.  The portion of the American

economy attributable to international trade nearly tripled between 1950

and 1980, and more than 70 percent of American-made goods now compete

with imports.  Marshall 205; Marshall & Tucker 33.  Yet, lagging worker

productivity has contributed to negative trade balances and to real

hourly compensation that has fallen below wages in 10 other

industrialized nations.  See National Center 57; Handbook of Labor

Statistics 561, 576 (1989); Neef & Kask 28, 31.  At least some

significant part of this serious productivity problem is attributable to

students who emerge from classrooms without the reading or mathematical

skills necessary to compete with their European or Asian counterparts,

see, e.g., MIT 28, and, presumably, to high school dropout rates of 20

to 25 percent (up to 50 percent in inner cities), see, e.g., National

Center 47; Chubb & Hanushek 215.  Indeed, Congress has said, when

writing other statutes, that "functionally or technologically

illiterate" Americans in the work force "erod[e]" our economic "standing

in the international marketplace," Pub. L. 100-418,  6002(a)(3), 102

Stat. 1469, and that our Nation is . . . paying the price of scientific

and technological illiteracy, with our productivity declining, our

industrial base ailing, and our global competitiveness dwindling.

H.R.Rep. No. 98-6, pt. 1, p. 19 (1983).



Finally, there is evidence that, today more than ever, many firms base

their location decisions upon the presence, or absence, of a work force

with a basic education.  See MacCormack, Newman, & Rosenfield 73; Coffee

296.  Scholars on the subject report, for example, that today, "[h]igh

speed communication and transportation make it possible to produce most

products and services anywhere in the world," National Center 38; that

"[m]odern machinery and production methods can therefore be combined

with low wage workers to drive costs down," ibid.; that managers can

perform "`back office functions anywhere in the world now,'" and say

that if they "`can't get enough skilled workers here'" they will "`move

the skilled jobs out of the country,'" id. at 41; with the consequence

that "rich countries need better education and retraining, to reduce the

supply of unskilled workers and to equip them with the skills they

require for tomorrow's jobs," Survey of Global Economy 37.  In light of

this increased importance of education to individual firms, it is no

surprise that half of the Nation's manufacturers have become involved

with setting standards and shaping curricula for local schools, Maturi

65-68, that 88 percent think this kind of involvement is important, id.

at 68, that more than 20 States have recently passed educational reforms

to attract new business, Overman 61-62, and that business magazines have

begun to rank cities according to the quality of their schools, see

Boyle 24.



The economic links I have just sketched seem fairly obvious.  Why then

is it not equally obvious, in light of those links, that a widespread,

serious, and substantial physical threat to teaching and learning also

substantially threatens the commerce to which that teaching and learning

is inextricably tied?  That is to say, guns in the hands of six percent

of inner-city high school students and gun-related violence throughout a

city's schools must threaten the trade and commerce that those schools

support.  The only question, then, is whether the latter threat is (to

use the majority's terminology) "substantial."  And, the evidence of (1)

the extent of the gun-related violence problem, see supra at ___, (2)

the extent of the resulting negative effect on classroom learning, see

supra at ___, and (3) the extent of the consequent negative commercial

effects, see supra at ___, when taken together, indicate a threat to

trade and commerce that is "substantial."  At the very least, Congress

could rationally have concluded that the links are "substantial."



Specifically, Congress could have found that gun-related violence near

the classroom poses a serious economic threat (1) to consequently

inadequately educated workers who must endure low paying jobs, see,

e.g., National Center 29, and (2) to communities and businesses that

might (in today's "information society") otherwise gain, from a

well-educated work force, an important commercial advantage, see, e.g.,

Becker 10 (1992), of a kind that location near a railhead or harbor

provided in the past.  Congress might also have found these threats to

be no different in kind from other threats that this Court has found

within the commerce power, such as the threat that loan sharking poses

to the "funds" of "numerous localities," Perez v. United States, 402

U.S. at 157, and that unfair labor practices pose to instrumentalities

of commerce, see Consolidated Edison Co. v. NLRB, 305 U.S. 197, 221-222

(1938).  As I have pointed out, supra at ___, Congress has written that

"the occurrence of violent crime in school zones" has brought about a

"decline in the quality of education" that "has an adverse impact on

interstate commerce and the foreign commerce of the United States."  18

U.S.C. A.  922(q)(1)(F), (G) (Nov. 1994 Supp.).  The violence-related

facts, the educational facts, and the economic facts, taken together,

make this conclusion rational.  And, because under our case law, see

supra at ___; infra at ___, the sufficiency of the constitutionally

necessary Commerce Clause link between a crime of violence and

interstate commerce turns simply upon size or degree, those same facts

make the statute constitutional.



To hold this statute constitutional is not to "obliterate" the

"distinction of what is national and what is local," ante at ___

(citation omitted; internal quotation marks omitted); nor is it to hold

that the Commerce Clause permits the Federal Government to "regulate any

activity that it found was related to the economic productivity of

individual citizens," to regulate "marriage, divorce, and child

custody," or to regulate any and all aspects of education.  Ante at ___.

 For one thing, this statute is aimed at curbing a particularly acute

threat to the educational process -- the possession (and use) of

life-threatening firearms in, or near, the classroom.  The empirical

evidence that I have discussed above unmistakably documents the special

way in which guns and education are incompatible.  See supra at ___. 

This Court has previously recognized the singularly disruptive potential

on interstate commerce that acts of violence may have.  See Perez,

supra, at   For another thing, the immediacy of the connection between

education and the national economic wellbeing is documented by scholars

and accepted by society at large in a way and to a degree that may not

hold true for other social institutions.  It must surely be the rare

case, then, that a statute strikes at conduct that (when considered in

the abstract) seems so removed from commerce, but which (practically

speaking) has so significant an impact upon commerce.



In sum, a holding that the particular statute before us falls within the

commerce power would not expand the scope of that Clause.  Rather, it

simply would apply preexisting law to changing economic circumstances. 

See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 251

(1964).  It would recognize that, in today's economic world, gun-related

violence near the classroom makes a significant difference to our

economic, as well as our social, wellbeing.  In accordance with

well-accepted precedent, such a holding would permit Congress "to act in

terms of economic . . . realities," would interpret the commerce power

as "an affirmative power commensurate with the national needs," and

would acknowledge that the commerce clause does not operate so as to

render the nation powerless to defend itself against economic forces

that Congress decrees inimical or destructive of the national economy.

North American Co. v. SEC, 327 U.S. 686, 705 (1946) (citing Swift & Co.

v. United States, 196 U.S. at 398 (Holmes, J.)). III



The majority's holding -- that  922 falls outside the scope of the

Commerce Clause -- creates three serious legal problems.  First, the

majority's holding runs contrary to modern Supreme Court cases that have

upheld congressional actions despite connections to interstate or

foreign commerce that are less significant than the effect of school

violence.  In Perez v. United States, supra the Court held that the

Commerce Clause authorized a federal statute that makes it a crime to

engage in loan sharking ("[e]xtortionate credit transactions") at a

local level.  The Court said that Congress may judge that such

transactions, "though purely intrastate, . . . affect interstate

commerce."  402 U.S. at 154 (emphasis added).  Presumably, Congress

reasoned that threatening or using force, say with a gun on a street

corner, to collect a debt occurs sufficiently often so that the activity

(by helping organized crime) affects commerce among the States.  But,

why then cannot Congress also reason that the threat or use of force --

the frequent consequence of possessing a gun -- in or near a school

occurs sufficiently often so that such activity (by inhibiting basic

education) affects commerce among the States?  The negative impact upon

the national economy of an inability to teach basic skills seems no

smaller (nor less significant) than that of organized crime.



In Katzenbach v. McClung, 379 U.S. 294 (1964), this Court upheld, as

within the commerce power, a statute prohibiting racial discrimination

at local restaurants, in part because that discrimination discouraged

travel by African Americans and in part because that discrimination

affected purchases of food and restaurant supplies from other States. 

See id. at 300; Heart of Atlanta Motel, supra at 274 (Black, J.,

concurring in McClung and in Heart of Atlanta).  In Daniel v. Paul, 395

U.S. 298 (1969), this Court found an effect on commerce caused by an

amusement park located several miles down a country road in the middle

of Alabama -- because some customers (the Court assumed), some food, 15

paddleboats, and a juke box had come from out of State.  See id. at 

308.  In both of these cases, the Court understood that the specific

instance of discrimination (at a local place of accommodation) was part

of a general practice that, considered as a whole, caused not only the

most serious human and social harm, but had nationally significant

economic dimensions as well.  See McClung, supra, at 301; Daniel, supra

at 307, n. 10.  It is difficult to distinguish the case before us, for

the same critical elements are present.  Businesses are less likely to

locate in communities where violence plagues the classroom.  Families

will hesitate to move to neighborhoods where students carry guns instead

of books.  (Congress expressly found in 1994 that "parents may decline

to send their children to school" in certain areas "due to concern about

violent crime and gun violence."  18 U.S.C. A.  922(q)(1)(E) (Nov. 1994

Supp.)).  And (to look at the matter in the most narrowly commercial

manner), interstate publishers therefore will sell fewer books and other

firms will sell fewer school supplies where the threat of violence

disrupts learning.  Most importantly, like the local racial

discrimination at issue in McClung and Daniel, the local instances here,

taken together and considered as a whole, create a problem that causes

serious human and social harm, but also has nationally significant

economic dimensions.



In Wickard v. Filburn, 317 U.S. 111 (1942), this Court sustained the

application of the Agricultural Adjustment Act of 1938 to wheat that

Filburn grew and consumed on his own local farm because, considered in

its totality, (1) home-grown wheat may be "induced by rising prices" to

"flow into the market and check price increases," and (2) even if it

never actually enters the market, home-grown wheat nonetheless "supplies

a need of the man who grew it which would otherwise be reflected by

purchases in the open market" and, in that sense, "competes with wheat

in commerce."  Id. at 128.  To find both of these effects on commerce

significant in amount, the Court had to give Congress the benefit of the

doubt.  Why would the Court, to find a significant (or "substantial")

effect here, have to give Congress any greater leeway?  See also United

States v. Women's Sportswear Manufacturers Assn., 336 U.S. 460, 464

(1949) ("If it is interstate commerce that feels the pinch, it does not

matter how local the operation which applies the squeeze"); Mandeville

Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. at 236 ("[I]t

is enough that the individual activity when multiplied into a general

practice . . . contains a threat to the interstate economy that requires

preventative regulation").



The second legal problem the Court creates comes from its apparent

belief that it can reconcile its holding with earlier cases by making a

critical distinction between "commercial" and noncommercial

"transaction[s]."  Ante at ___.  That is to say, the Court believes the

Constitution would distinguish between two local activities, each of

which has an identical effect upon interstate commerce, if one, but not

the other, is "commercial" in nature.  As a general matter, this

approach fails to heed this Court's earlier warning not to turn

"questions of the power of Congress" upon "formula[s]" that would give

controlling force to nomenclature such as "production" and "indirect"

and foreclose consideration of the actual effects of the activity in

question upon interstate commerce. Wickard, supra, at 120.  See also

United States v. Darby, 312 U.S. 100,  (1941) (overturning the Court's

distinction between "production" and "commerce" in the child labor case,

Hammer v. Dagenhart, 247 U.S. 251, (1918)); Swift & Co. v. United

States, 196 U.S. at 398 (Holmes, J.) ("[C]ommerce among the States is

not a technical legal conception, but a practical one, drawn from the

course of business").  Moreover, the majority's test is not consistent

with what the Court saw as the point of the cases that the majority now

characterizes.  Although the majority today attempts to categorize

Perez, McClung, and Wickard as involving intrastate "economic activity,"

 ante at ___, the Courts that decided each of those cases did not focus

upon the economic nature of the activity regulated.  Rather, they

focused upon whether that activity affected interstate or foreign

commerce.  In fact, the Wickard Court expressly held that Wickard's

consumption of home grown wheat, "though it may not be regarded as

commerce," could nevertheless be regulated -- "whatever its nature" --

so long as "it exerts a substantial economic effect on interstate

commerce."  Wickard, supra, at 125 (emphasis added).



More importantly, if a distinction between commercial and noncommercial

activities is to be made, this is not the case in which to make it.  The

majority clearly cannot intend such a distinction to focus narrowly on

an act of gun possession standing by itself, for such a reading could

not be reconciled with either the civil rights cases (McClung and

Daniel) or Perez -- in each of those cases the specific transaction (the

race-based exclusion, the use of force) was not itself "commercial." 

And, if the majority instead means to distinguish generally among broad

categories of activities, differentiating what is educational from what

is commercial, then, as a practical matter, the line becomes almost

impossible to draw.  Schools that teach reading, writing, mathematics,

and related basic skills serve both social and commercial purposes, and

one cannot easily separate the one from the other.  American industry

itself has been, and is again, involved in teaching.  See supra at ___. 

When, and to what extent, does its involvement make education

commercial?  Does the number of vocational classes that train students

directly for jobs make a difference?  Does it matter if the school is

public or private, nonprofit or profit-seeking?  Does it matter if a

city or State adopts a voucher plan that pays private firms to run a

school?  Even if one were to ignore these practical questions, why

should there be a theoretical distinction between education, when it

significantly benefits commerce, and environmental pollution, when it

causes economic harm?  See Hodel v. Virginia Surface Mining &

Reclamation Assn., Inc., 452 U.S. 264 (1981).



Regardless, if there is a principled distinction that could work both

here and in future cases, Congress (even in the absence of vocational

classes, industry involvement, and private management) could rationally

conclude that schools fall on the commercial side of the line.  In 1990,

the year Congress enacted the statute before us, primary and secondary

schools spent $230 billion -- that is, nearly a quarter of a trillion

dollars -- which accounts for a significant portion of our $5.5 trillion

Gross Domestic Product for that year.  See Statistical Abstract 147, 442

(1993).  The business of schooling requires expenditure of these funds

on student transportation, food and custodial services, books, and

teachers' salaries.  See U.S. Dept. of Education 4, 7 (1993).  And these

expenditures enable schools to provide a valuable service -- namely, to

equip students with the skills they need to survive in life and, more

specifically, in the workplace.  Certainly, Congress has often analyzed

school expenditure as if it were a commercial investment, closely

analyzing whether schools are efficient, whether they justify the

significant resources they spend, and whether they can be restructured

to achieve greater returns.  See, e.g., S.Rep. No. 100-222, p. 2 (1987)

(federal school assistance is "a prudent investment"); Senate

Appropriations Committee Hearing (1994) (private sector management of

public schools); cf. Chubb & Moe 185-229 (school choice); Hanushek

85-122 (performance based incentives for educators); Gibbs (decision in

Hartford, Conn., to contract out public school system).  Why could

Congress, for Commerce Clause purposes, not consider schools as roughly

analogous to commercial investments from which the Nation derives the

benefit of an educated work force?



The third legal problem created by the Court's holding is that it

threatens legal uncertainty in an area of law that, until this case,

seemed reasonably well settled.  Congress has enacted many statutes

(more than 100 sections of the United States Code), including criminal

statutes (at least 25 sections), that use the words "affecting commerce"

to define their scope, see, e.g., 18 U.S.C.  844(i) (destruction of

buildings used in activity affecting interstate commerce), and other

statutes that contain no jurisdictional language at all, see, e.g., 18

U.S.C.  922(o)(1) (possession of machine guns).  Do these, or similar,

statutes regulate noncommercial activities?  If so, would that alter the

meaning of "affecting commerce" in a jurisdictional element?  Cf. United

States v. Staszcuk, 517 F.2d 53, 57-58 (CA7 1975) (en banc) (STEVENS,

J.) (evaluation of Congress' intent "requires more than a consideration

of the consequences of the particular transaction").  More importantly,

in the absence of a jurisdictional element, are the courts nevertheless

to take Wickard, 317 U.S. at  (and later similar cases) as inapplicable,

and to judge the effect of a single noncommercial activity on interstate

commerce without considering similar instances of the forbidden conduct?

 However these questions are eventually resolved, the legal uncertainty

now created will restrict Congress' ability to enact criminal laws aimed

at criminal behavior that, considered problem by problem rather than

instance by instance, seriously threatens the economic, as well as

social, wellbeing of Americans. IV



In sum, to find this legislation within the scope of the Commerce Clause

would permit "Congress . . . to act in terms of economic . . .

realities."  North American Co. v. SEC, 327 U.S. at 705 (citing Swift &

Co. v. United States, 196 U.S. at 398 (Holmes, J.)).  It would interpret

the Clause as this Court has traditionally interpreted it, with the

exception of one wrong turn subsequently corrected.  See Gibbons v.

Ogden, 9 Wheat. at 195 (holding that the commerce power extends "to all

the external concerns of the nation, and to those internal concerns

which affect the States generally"); United States v. Darby, 312 U.S. at

("The conclusion is inescapable that Hammer v. Dagenhart [the child

labor case], was a departure from the principles which have prevailed in

the interpretation of the Commerce Clause both before and since the

decision. . . .   It should be and now is overruled").  Upholding this

legislation would do no more than simply recognize that Congress had a

"rational basis" for finding a significant connection between guns in or

near schools and (through their effect on education) the interstate and

foreign commerce they threaten.  For these reasons, I would reverse the

judgment of the Court of Appeals.  Respectfully, I dissent. APPENDIX

Congressional Materials (in reverse chronological order) Private Sector

Management of Public Schools, Hearing before the Subcommittee on Labor,

Health and Human Services, and Education and Related Agencies of the

Senate Committee on Appropriations, 103d Cong.,2d Sess. (1994) (Senate

Appropriations Committee Hearing (1994)). Children and Gun Violence,

Hearings before the Subcommittee on Juvenile Justice of the Senate

Committee on the Judiciary, 103d Cong., 1st Sess. (1993) (Senate

Judiciary Committee Hearing (1993)). Keeping Every Child Safe:  Curbing

the Epidemic of Violence, Joint Hearing before the Subcommittee on

Children, Family, Drugs and Alcoholism of the Senate Committee on Labor

and Human Resources and the House Select Committee on Children, Youth,

and Families, 103d Cong., 1st Sess. (1993). Recess from Violence: 

Making our Schools Safe, Hearing before the Subcommittee on Education,

Arts and Humanities of the Senate Committee on Labor and Human

Resources, 103d Cong., 1st Sess. (1993) (Senate Labor and Human

Resources Committee Hearing (1993)). Preparing for the Economy of the

21st Century, Hearings before the Subcommittee on Children, Family,

Drugs and Alcoholism of the Senate Committee on Labor and Human

Resources, 102d Cong.,2d Sess. (1992). Children Carrying Weapons:  Why

the Recent Increase, Hearing before the Senate Committee on the

Judiciary, 102d Cong.,2d Sess. (1992). Youth Violence Prevention,

Hearing before the Senate Committee on Governmental Affairs, 102d

Cong.,2d Sess. (1992). School Dropout Prevention and Basic Skills

Improvement Act of 1990, Pub. L. 101-600,  2(a)(2), 104 Stat. 3042.  

2(a)(2). Excellence in Mathematics, Science and Engineering Education

Act of 1990, 104 Stat. 2883, 20 U.S.C.  5301(a)(5) (1988 ed., Supp. V).

Oversight Hearing on Education Reform and American Business and the

Implementation of the Hawkins-Stafford Amendments of 1988, Hearing

before the Subcommittee on Elementary, Secondary, and Vocational

Training of the House Committee on Education and Labor, 101st Cong.,2d

Sess. (1990). U.S. Power in a Changing World, Report Prepared for the

Subcommittee on International Economic Policy and Trade of the House

Committee on Foreign Affairs, 101st Cong.,2d Sess., 43-66 (1990). Gun

Free School Zones Act of 1990, Hearing before the Subcommittee on Crime

of the House Committee on the Judiciary, 101st Cong.,2d Sess. (1990)

(House Judiciary Committee Hearing (1990)). Restoring American

Productivity:  The Role of Education and Human Resources, Hearing before

the Senate Committee on Labor and Human Resources, 101st Cong., 1st

Sess. (1989). Children and Guns, Hearing before the House Select

Committee on Children, Youth, and Families, 101st Cong., 1st Sess.

(1989) (House Select Committee Hearing (1989)). Education and Training

for a Competitive America Act of 1988, Pub. L. 100-418, Title VI, 102

Stat. 1469. S.Rep. No. 100-222, (1987). Education and Training for

American Competitiveness, Hearings before the House Committee on

Education and Labor, 100th Cong., 1st Sess. (1987). Competitiveness and

the Quality of the American Work Force, Hearings before the Subcommittee

on Education and Health of the Joint Economic Committee, 100th Cong.,

1st Sess., pts. 1 and 2 (1987). Oversight Hearing on Illiteracy, Joint

Hearing before the Subcommittee on Elementary, Secondary, and Vocational

Education of the House Committee on Education and Labor and the

Subcommittee on Education, Arts and Humanities of the Senate Committee

on Labor and Human Resources, 99th Cong.,2d Sess. (1986). Oversight on

Illiteracy in the United States, Hearings before the Subcommittee on

Elementary, Secondary, and Vocational Education of the House Committee

on Education and Labor, 99th Cong.,2d Sess. (1986). Crime and Violence

in the Schools, Hearing before the Subcommittee on Juvenile Justice of

the Senate Committee on the Judiciary, 98th Cong.,2d Sess. (1984).

H.R.Rep. No. 98-6, pts. 1 and 2 (1983). S.Rep. No. 98-151, (1983).

Education for Economic Security Act, Hearings before the Subcommittee on

Education, Arts and Humanities of the Senate Committee on Labor and

Human Resources, 98th Cong., 1st Sess. (1983). Pub. L. 93-380,  825, 88

Stat. 602 (1974). I. Clarke, Art and Industry:  Instruction in Drawing

Applied to the Industrial and Fine Arts, S. Exec. Doc. No. 209, 46th

Cong.,2d Sess., pt. 2 (1891). Other Federal Government Materials (in

reverse chronological order) U.S. Dept. of Education, Office of

Educational Research and Improvement, First Findings:   The Educational

Quality of the Workforce Employer Survey (Feb. 1995). Economic Report of

the President 108 (Feb. 1994). U.S. Dept. of Commerce, Statistical

Abstract of the United States (1993) (Statistical Abstract (1993)). U.S.

Dept. of Education, Office of Educational Research and Improvement,

Public School Education Financing for School Year 1989-90 (June 1993)

(U.S. Dept. of Education (1993)). Economic Report of the President 101

(Feb. 1992). U.S. Dept. of Labor, Secretary's Commission on Achieving

Necessary Skills, Skills and Tasks For Jobs:  A SCANS Report for America

2000 (1992). U.S. Dept. of Labor, Employment and Training

Administration, Beyond the School Doors:  The Literacy Needs of Job

Seekers Served by the U.S. Department of Labor (Sept. 1992). U.S. Dept.

of Justice, Bureau of Justice Statistics, School Crime:  A National

Crime Victimization Survey Report (Sept. 1991) (U.S. Dept. of Justice

(1991)). U.S. Dept. of Commerce, Bureau of Census, 1990 Census of

Population:  Education in the United States 474 (Jan. 1994). U.S. Dept.

of Justice, Office of Juvenile Justice and Delinquency Prevention,

Weapons in Schools, OJJDP Bulletin 1 (Oct. 1989) (U.S. Dept. of Justice

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J., lead opinion (Footnotes)



1. The term "school zone" is defined as "in, or on the grounds of, a

public, parochial or private school" or "within a distance of 1,000 feet

from the grounds of a public, parochial or private school."  

921(a)(25).



2. See also Hodel, 452 U.S. at 311 ("[S]imply because Congress may

conclude that a particular activity substantially affects interstate

commerce does not necessarily make it so") (REHNQUIST, J., concurring in

judgment); Heart of Atlanta Motel, 392 U.S. at 273 ("[W]hether

particular operations affect interstate commerce sufficiently to come

under the constitutional power of Congress to regulate them is

ultimately a judicial rather than a legislative question, and can be

settled finally only by this Court") (Black, J., concurring).



3. Under our federal system, the "`States possess primary authority for

defining and enforcing the criminal law.'"  Brecht v. Abrahamson, 507

U.S. ___, ___ (1993) (quoting Engle v. Isaac, 456 U.S. 107, 128 (1982));

see also Screws v. United States, 325 U.S. 91, 109 (1945) (plurality

opinion) ("Our national government is one of delegated powers alone. 

Under our federal system the administration of criminal justice rests

with the States except as Congress, acting within the scope of those

delegated powers, has created offenses against the United States"). 

When Congress criminalizes conduct already denounced as criminal by the

States, it effects a "`change in the sensitive relation between federal

and state criminal jurisdiction.'"  United States v. Enmons, 410 U.S.

396, (1973) (quoting United States v. Bass, 404 U.S. 336, 349 (1971)). 

The Government acknowledges that  922(q) "displace[s] state policy

choices in . . . that its prohibitions apply even in States that have

chosen not to outlaw the conduct in question."  Brief for United States

29, n. 18; see also Statement of President George Bush on Signing the

Crime Control Act of 1990, 26 Weekly Comp. of Pres. Doc. 1944, 1945

(Nov. 29, 1990) ("Most egregiously, section [922(q)] inappropriately

overrides legitimate state firearms laws with a new and unnecessary

Federal law.  The policies reflected in these provisions could

legitimately be adopted by the States, but they should not be imposed

upon the States by Congress").



4. We note that on September 13, 1994, President Clinton signed into law

the Violent Crime Control and Law Enforcement Act of 1994, Pub.L.

103-322, 108 Stat. 1796.  Section 320904 of that Act, id. at 2125,

amends  922(q) to include congressional findings regarding the effects

of firearm possession in and around schools upon interstate and foreign

commerce.  The Government does not rely upon these subsequent findings

as a substitute for the absence of findings in the first instance.  Tr.

of Oral Arg. 25 ("[W]e're not relying on them in the strict sense of the

word, but we think that at a very minimum they indicate that reasons can

be identified for why Congress wanted to regulate this particular

activity"). THOMAS, J., concurring (Footnotes)



1. All references to The Federalist are to the Jacob E. Cooke 1961

edition.



2. Even to speak of "the Commerce Clause" perhaps obscures the actual

scope of that Clause.  As an original matter, Congress did not have

authority to regulate all commerce; Congress could only "regulate

Commerce with foreign Nations, and among the several States, and with

the Indian Tribes."  U.S.Const., Art. I,  8, cl. 3.  Although the

precise line between interstate/foreign commerce and purely intrastate

commerce was hard to draw, the Court attempted to adhere to such a line

for the first 150 years of our Nation.  See infra at ___.



3. There are other powers granted to Congress outside of Art. I,  8 that

may become wholly superfluous as well due to our distortion of the

Commerce Clause.  For instance, Congress has plenary power over the

District of Columbia and the territories.  See U.S.Const., Art. I,  8,

cl. 15 and Art. IV,  3, cl. 2.  The grant of comprehensive legislative

power over certain areas of the Nation, when read in conjunction with

the rest of the Constitution, further confirms that Congress was not

ceded plenary authority over the whole Nation.



4. Cf. 3 Debates 40 (E. Pendleton at the Virginia convention) (the

proposed Federal Government "does not intermeddle with the local,

particular affairs of the states.  Can Congress legislate for the state

of Virginia?  Can [it] make a law altering the form of transferring

property, or the rule of descents, in Virginia?"); id. at 553 (J.

Marshall at the Virginia convention) (denying that Congress could make

"laws affecting the mode of transferring property, or contracts, or

claims, between citizens of the same state"); The Federalist No. 33 at

206 (A. Hamilton) (denying that Congress could change laws of descent or

could preempt a land tax); A Native of Virginia:  Observations upon the

Proposed Plan of Federal Government, Apr. 2, 1788, in 9 Documentary

History 692 (States have sole authority over "rules of property").



5. None of the other Commerce Clause opinions during Chief Justice

Marshall's tenure, which concerned the "dormant" Commerce Clause, even

suggested that Congress had authority over all matters substantially

affecting commerce.  See Brown v. Maryland, 12 Wheat. 419 (1827);

Willson v. Black Bird Creek Marsh Co., 2 Pet. 245 (1829).



6. It is worth noting that Congress, in the first federal criminal Act,

did not establish nationwide prohibitions against murder and the like. 

See Act of April 30, 1790, ch. 9, 1 Stat. 112.  To be sure, Congress

outlawed murder, manslaughter, maiming, and larceny, but only when those

acts were either committed on United States territory not part of a

State or on the high seas.  Ibid.  See U.S.Const., Art. I,  8, cl. 10

(authorizing Congress to outlaw piracy and felonies on high seas); Art.

IV,  3, cl. 2 (plenary authority over United States territory and

property).  When Congress did enact nationwide criminal laws, it acted

pursuant to direct grants of authority found in the Constitution. 

Compare Act of April 30, 1790, supra  1 and 14 (prohibitions against

treason and the counterfeiting of U.S. securities) with U.S.Const., Art.

I,  8, cl. 6 (counterfeiting); Art. III,  3, cl. 2 (treason). 

Notwithstanding any substantial effects that murder, kidnaping, or gun

possession might have had on interstate commerce, Congress understood

that it could not establish nationwide prohibitions.  Likewise, there

were no laws in the early Congresses that regulated manufacturing and

agriculture.  Nor was there any statute which purported to regulate

activities with "substantial effects" on interstate commerce.



7. To be sure, congressional power pursuant to the Commerce Clause was

alternatively described less narrowly or more narrowly during this

150-year period.  Compare United States v. Coombs, 12 Pet. 72, 78 (1838)

(commerce power "extends to such acts, done on land, which interfere

with, obstruct, or prevent the due exercise of the power to regulate

[interstate and international] commerce" such as stealing goods from a

beached ship) with United States v. E. C. Knight Co., 156 U.S. 1, 13

(1895) ("Contracts to buy, sell, or exchange goods to be transported

among the several States, the transportation and its instrumentalities .

. . may be regulated, but this is because they form part of interstate

trade or commerce"). During this period, however, this Court never held

that Congress could regulate everything that substantially affects

commerce.



8. Although I might be willing to return to the original understanding,

I recognize that many believe that it is too late in the day to

undertake a fundamental reexamination of the past 60 years. 

Consideration of stare decisis and reliance interests may convince us

that we cannot wipe the slate clean.



9. Nor can the majority's opinion fairly be compared to Lochner v. New

York, 198 U.S. 45 (1905).  See post at ___ (SOUTER, J., dissenting). 

Unlike Lochner and our more recent "substantive due process" cases,

today's decision enforces only the Constitution and not "judicial policy

judgments."  See post at ___.  Notwithstanding JUSTICE SOUTER's

discussion, "`commercial' character'" is not only a natural but an

inevitable "ground of Commerce Clause distinction."  See post at ___

(emphasis added).  Our invalidation of the Gun-Free School Zones Act

therefore falls comfortably within our proper role in reviewing federal

legislation to determine if it exceeds congressional authority as

defined by the Constitution itself.  As John Marshall put it: If

[Congress] were to make a law not warranted by any of the powers

enumerated, it would be considered by the judges as an infringement of

the Constitution which they are to guard. . . .   They would declare it

void. 3 Debates 553 (before the Virginia ratifying convention); see also

The Federalist No. 44 at 305 (James Madison) (asserting that if Congress

exercises powers "not warranted by [the Constitution's] true meaning"

the judiciary will defend the Constitution); id. No. 78 at 526 (A.

Hamilton) (asserting that the "courts of justice are to be considered as

the bulwarks of a limited constitution against legislative

encroachments").  Where, as here, there is a case or controversy, there

can be no "misstep", post at ___, in enforcing the Constitution.

STEVENS, J., dissenting (Footnotes)



* Indeed, there is evidence that firearm manufacturers -- aided by a

federal grant -- are specifically targeting school children as consumers

by distributing at schools, hunting-related videos styled "educational

materials for grades four through 12," Herbert, Reading, Writing,

Reloading, N. Y. Times, Dec. 14, 1994, p. A23, col. 1. SOUTER, J.,

dissenting (Footnotes)



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.

