In United States v. Alderman, a May 12 opinion by the Ninth Circuit Court of Appeals, the court considered whether Congress has the authority under the Commerce Clause of the United States Constitution, art. I, § 8, cl. 3, to criminalize the possession by a felon of body armor that has been “sold or offered for sale in interstate commerce.” 18 U.S.C. §§ 931 and 921(a)(35). Put another way, the issue was whether the sale of body armor in interstate commerce creates a sufficient nexus between possession of the body armor and commerce to allow for federal regulation under Congress’s Commerce Clause authority.
In recent years, the Supreme Court has significantly altered the landscape of congressional power under the Commerce Clause. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (striking down statute that provided a federal civil remedy for victims of gender-motivated violence); United States v. Lopez, 514 U.S. 549 (1995) (striking down federal statute regulating possession of guns in school zones). Nonetheless, the court said tha the resolution to this case is found in Supreme Court and Ninth Circuit precedent that addresses a jurisdictional element nearly identical to the one that applies to § 931. See Scarborough v. United States, 431 U.S. 563, 575, 577 (1977) (concluding that, in the context of Title VII of the Omnibus Crime Control Act, proof that a firearm traveled in interstate commerce satisfies the required nexus between possession of the firearm and commerce); United States v. Cortes, 299 F.3d 1030, 1037 n.2 (9th Cir. 2002) (upholding carjacking statute and stating that “the vitality of Scarbourough engenders significant debate,” but “ntil the Supreme Court tells us otherwise… we follow Scarborough unwaveringly.”). The Ninth Circuit concluded that it was bound by this precedent — absent the Supreme Court or the entire court sitting en banc saying otherwise — and that the felon-in-possession of body armor statute passes muster.
Cedrick Alderman was arrested in 2005 during a sting operation involving an attempted controlled purchase of cocaine. Alderman had been previously convicted of felony robbery. The arresting officer discovered that Alderman was wearing a bullet-proof vest. Alderman was booked for possession of the vest and for violating the conditions of his supervision. Because Washington state law does not criminalize felon possession of body armor, the matter was referred to the federal authorities. Alderman was indicted under 18 U.S.C. § 931(a), which makes it unlawful for a person convicted of a felony involving a “crime of violence” to possess body armor. See James Guelff and Chris McCurley Body Armor Act of 2002, § 11009(e)(2)(A), 18 U.S.C. § 931 (criminalizing the possession of body armor by felons as of Nov. 2, 2002).
It was clear that the body armor possessed by Alderman had previously been sold in interstate commerce and that he was a felon in possession of it. The only question was whether Congress could criminalize his possession of body armor.
The court determined that Lopez case did not overrule Scarborough. It noted that it had a situation where a nearly identical jurisdictional hook had been blessed by the Supreme Court. Therefore, it did not engage in careful parsing of post-Lopez case law that would otherwise be required. Rather, it said that “ntil the Supreme Court tells us otherwise… we [must] follow Scarborough unwaveringly.”
Thus, Alderman could be punished by Congress for being a felon in possession of body armor.
As you may recall, in Lopez, the statute that the Supreme Court considered did not have an express "jurisdictional hook" that the firearm have traveled in interstate commerce; subsequent to Lopez's conviction, the statute was amended so to provide. The Supreme Court has not ruled on the amended statute. Therefore one should expect the federal courts to uphold convictions under the federal gun-free school zone law until the Supreme Court addresses the issue whether the jurisdictional hook here (and in the amended federal gun-free school zone law) is sufficient.
By the way, there was a dissent, which I think was better reasoned.
In recent years, the Supreme Court has significantly altered the landscape of congressional power under the Commerce Clause. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (striking down statute that provided a federal civil remedy for victims of gender-motivated violence); United States v. Lopez, 514 U.S. 549 (1995) (striking down federal statute regulating possession of guns in school zones). Nonetheless, the court said tha the resolution to this case is found in Supreme Court and Ninth Circuit precedent that addresses a jurisdictional element nearly identical to the one that applies to § 931. See Scarborough v. United States, 431 U.S. 563, 575, 577 (1977) (concluding that, in the context of Title VII of the Omnibus Crime Control Act, proof that a firearm traveled in interstate commerce satisfies the required nexus between possession of the firearm and commerce); United States v. Cortes, 299 F.3d 1030, 1037 n.2 (9th Cir. 2002) (upholding carjacking statute and stating that “the vitality of Scarbourough engenders significant debate,” but “ntil the Supreme Court tells us otherwise… we follow Scarborough unwaveringly.”). The Ninth Circuit concluded that it was bound by this precedent — absent the Supreme Court or the entire court sitting en banc saying otherwise — and that the felon-in-possession of body armor statute passes muster.
Cedrick Alderman was arrested in 2005 during a sting operation involving an attempted controlled purchase of cocaine. Alderman had been previously convicted of felony robbery. The arresting officer discovered that Alderman was wearing a bullet-proof vest. Alderman was booked for possession of the vest and for violating the conditions of his supervision. Because Washington state law does not criminalize felon possession of body armor, the matter was referred to the federal authorities. Alderman was indicted under 18 U.S.C. § 931(a), which makes it unlawful for a person convicted of a felony involving a “crime of violence” to possess body armor. See James Guelff and Chris McCurley Body Armor Act of 2002, § 11009(e)(2)(A), 18 U.S.C. § 931 (criminalizing the possession of body armor by felons as of Nov. 2, 2002).
It was clear that the body armor possessed by Alderman had previously been sold in interstate commerce and that he was a felon in possession of it. The only question was whether Congress could criminalize his possession of body armor.
The court determined that Lopez case did not overrule Scarborough. It noted that it had a situation where a nearly identical jurisdictional hook had been blessed by the Supreme Court. Therefore, it did not engage in careful parsing of post-Lopez case law that would otherwise be required. Rather, it said that “ntil the Supreme Court tells us otherwise… we [must] follow Scarborough unwaveringly.”
Thus, Alderman could be punished by Congress for being a felon in possession of body armor.
As you may recall, in Lopez, the statute that the Supreme Court considered did not have an express "jurisdictional hook" that the firearm have traveled in interstate commerce; subsequent to Lopez's conviction, the statute was amended so to provide. The Supreme Court has not ruled on the amended statute. Therefore one should expect the federal courts to uphold convictions under the federal gun-free school zone law until the Supreme Court addresses the issue whether the jurisdictional hook here (and in the amended federal gun-free school zone law) is sufficient.
By the way, there was a dissent, which I think was better reasoned.
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