2 F.3d 1342 (5th Cir. 1993), 92-5641, United States v. Lopez

Docket Nº:92-5641.
Citation:2 F.3d 1342
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Alfonso LOPEZ, Jr., Defendant-Appellant.
Case Date:September 15, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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2 F.3d 1342 (5th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,


Alfonso LOPEZ, Jr., Defendant-Appellant.

No. 92-5641.

United States Court of Appeals, Fifth Circuit

September 15, 1993

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Rehearing and Suggestion for Rehearing En Banc Denied Nov. 10, 1993.

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John R. Carter, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, San Antonio, TX, for defendant-appellant.

Richard L. Durbin, Jr., Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, KING and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

The United States Constitution establishes a national government of limited and enumerated powers. As James Madison put it in The Federalist Papers, "The 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, at 292 (C. Rossiter ed. 1961). Madison's understanding was confirmed by the Tenth Amendment. It is easy to lose sight of all this in a day when Congress appropriates trillion-dollar budgets and regulates myriad aspects of economic and social life. Nevertheless, there are occasions on which we are reminded of this fundamental postulate of our constitutional order. This case presents such an occasion.

Proceedings Below

On March 10, 1992, defendant-appellant Alfonso Lopez, Jr., then a twelfth-grade student attending Edison High School in San Antonio, Texas, arrived at school carrying a concealed .38 caliber handgun. Based upon an anonymous tip, school officials confronted Lopez, who admitted that he was carrying the weapon. Although the gun was unloaded, Lopez had five bullets on his person. After being advised of his rights, Lopez stated that "Gilbert" had given him the gun so that he (Lopez) could deliver it after school to "Jason," who planned to use it in a "gang war." Lopez was to receive $40 for his services.

Lopez was charged in a one-count indictment with violating 18 U.S.C. Sec. 922(q), which makes it illegal to possess a firearm in a school zone. 1 After pleading not guilty, Lopez moved to dismiss the indictment on the ground that section 922(q) "is unconstitutional, as it is beyond the power of Congress to legislate control over our public schools." His brief in support of the motion further alleged that section 922(q) "does not appear to have been enacted in furtherance of any of those enumerated powers" of the federal government. The district court denied the motion, concluding that section 922(q) "is a constitutional exercise of Congress' well-defined power to regulate activities in an[d] affecting commerce, and the 'business' of elementary, middle and high schools ... affects interstate commerce." Lopez thereafter waived his right to a jury trial and was tried to the bench upon stipulated evidence. The court found Lopez guilty and sentenced him to six months' imprisonment to be followed by two years' supervised release. Lopez now appeals his conviction and sentence. Lopez's sole objection to his conviction is his constitutional challenge to section 922(q); he does not otherwise contest his guilt. We now reverse.


So far as we are aware, the constitutionality of section 922(q), also known as "the Gun-Free School Zones Act of 1990," is a question of first impression in the federal courts. 2 Section 922(q)(1)(A) provides: "It shall be unlawful for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to

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believe, is a school zone." 3 Section 922(q)(1)(B) then carves out several limited exceptions, none of which are applicable here. 4 Section 922(q)(2) makes it illegal, again with some exceptions, to intentionally or recklessly discharge a firearm in a known school zone. Section 922(q)(3) disclaims any intent on the part of Congress to preempt state law. Violations are punishable by up to 5 years' imprisonment and a $5,000 fine. 18 U.S.C. Sec. 924(a)(4).

"As every schoolchild learns, our Constitution establishes a system of dual sovereignty between the States and the Federal Government." Gregory v. Ashcroft, --- U.S. ----, ----, 111 S.Ct. 2395, 2399, 115 L.Ed.2d 410 (1991). Justice O'Connor's observation is particularly apt in the context of this case, which pits the states' traditional authority over education and schooling against the federal government's acknowledged power to regulate firearms in or affecting interstate commerce. Lopez argues that section 922(q) exceeds Congress' delegated powers and violates the Tenth Amendment. 5 The government counters that section 922(q) is a permissible exercise of Congress' power under the Commerce Clause. 6 In actuality, the Tenth Amendment and Commerce Clause issues in this case are but two sides of the same coin. As Justice O'Connor has explained:

"In a case like this one, involving the division of authority between federal and state governments, the two inquiries are mirror images of each other. If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress." New York v. United States, --- U.S. ----, ----, 112 S.Ct. 2408, 2417, 120 L.Ed.2d 120 (1992).

Thus, even if Lopez is correct that section 922(q) intrudes upon a domain traditionally left to the states, it is constitutional as long as it falls within the commerce power. See Gregory v. Ashcroft, --- U.S. at ----, 111

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S.Ct. at 2400 ("As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States."). This is not to say, however, that the Tenth Amendment is irrelevant to a Commerce Clause analysis. Our understanding of the breadth of Congress' commerce power is related to the degree to which its enactments raise Tenth Amendment concerns, that is concerns for the meaningful jurisdiction reserved to the states. At a more textual level, the Tenth Amendment, though it does not purport to define the limits of the commerce power, obviously proceeds on the assumption that the reach of that power is not unlimited, else there would be nothing on which the Tenth Amendment could operate.

A good place to begin our analysis is the case of United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). At issue in Bass was the felon in possession provision of the Omnibus Crime Control and Safe Streets Act of 1968, which made it unlawful for any felon to "receive[ ], possess[ ], or transport[ ] in commerce or affecting commerce" any firearm. 18 U.S.C. former Sec. 1202(a)(1). Because the "in commerce or affecting commerce" language might be read to apply only to the crime of transporting a firearm, the question for the Court was whether, in pure possession cases, the government had to prove a connection to commerce or whether section 1202 reached the mere possession of firearms. The best evidence for the government's position that the statute reached mere possession without any commerce nexus was the floor statements of Senator Long, who introduced section 1202, and the formal findings contained in Title VII of this 1968 act. 7 While conceding that this legislative history lent "some significant support" for the government's view, id. 404 U.S. at 345, 92 S.Ct. at 521, the Court was not convinced. Were section 1202 read to punish mere possession without a commerce nexus, the Court argued, it would intrude upon an area of traditional state authority and would push Congress' commerce power to its limit, if not beyond. Because Congress had not clearly expressed its intent to do so, the Court therefore adopted the narrower construction of the statute:

"[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States.... [Thus] we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction." Id. 404 U.S. at 349, 92 S.Ct. at 523 (footnotes omitted).

Significantly, the Bass Court noted that "[i]n light of our disposition of the case, we do not reach the question whether, upon appropriate findings, Congress can constitutionally punish the 'mere possession' of firearms." Id. 404 U.S. at 339 n. 4, 92 S.Ct. at 518 n. 4. In a subsequent case, the Court held that to satisfy former section 1202's commerce nexus, it need only be shown that the possessed firearm had traveled at some time in interstate commerce. See Scarborough v. United States, 431 U.S. 563, 566, 97 S.Ct. 1963, 1965, 52 L.Ed.2d 582 (1977). 8 However, Scarborough did not purport to answer the question left open in Bass' footnote 4.

The government argues that section 922(q) is no different from a number of other federal firearms crimes. We are not persuaded. With the exception of a few relatively recent, special case provisions, federal laws proscribing firearm possession require the government to prove a connection to commerce, or other federalizing feature, in individual cases. For example, 18 U.S.C. Sec. 922(g), the successor to former section 1202, makes it unlawful for felons and some other classes of persons to "possess [a firearm] in or affecting commerce." Because a commerce nexus is an element of the crime defined by section

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