Issue: Is Congress given the power to regulate guns in schools under the Commerce Clause?
Analysis: Breyer says he will use three principles of Commerce Clause interpretation to answer the question before the Court.
1. Congress may regulate local (intrastate) activities so long as they “significantly affect” interstate commerce.
2. When determining whether an activity has a “significant effect”, a court should consider the “cumulative effect of all similar instances” of the activity.
3. Courts must judge the connection between an activity and interstate commerce “at one remove”. In other words, courts should uphold actions of Congress for which there is a “rational basis” under the Commerce Clause.
Breyer says the question boils down to Congress could have had a rational basis for finding a substantial connection between gun related school violence and interstate commerce.
Breyer’s approach is to document lots and lots of independent studies and congressional findings that indicate that (1) the problem of guns in schools is serious and widespread, (2) guns in schools have a “negative effect on classroom learning”, and (3) education has a substantial impact on interstate commerce.
Breyer claims that holding this statute constitutional would not expand the powers of Congress under the Commerce Clause, but instead would apply existing law to changing circumstances.
Breyer claims that the majority’s approach has three legal problems:
1. The Court has upheld statutes that have less of a relationship to interstate commerce than the one under consideration.
2. The Court makes an improper distinction between commercial and non-commercial activities that doesn’t adequately distinguish previous cases where the Court has upheld statutes. In particular, the Court has upheld civil rights statutes in cases where Breyer claims the conduct involved was even less “commercial” than the conduct here.
3. The Court will create upheaval in an area of law that was previously well-settled: it will call into question the extent of the power of Congress to enact all of the federal criminal statutes on the books. Breyer suggests that the majority’s opinion offends stare decisis.
Breyer does not see the “parade of horribles” of the majority coming to pass.
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.
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.
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 127-128. As this Court put the matter almost 50 years ago:
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
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 276-277. 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 8 (emphasis added).
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 156-157; cf. Turner Broadcasting System,
Inc. v. FCC, 512 U. S. ___, ___ (1994) (opinion of Kennedy, J.) (slip op., at 42) ("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
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
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
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);
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.
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.
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 5, (2) the extent of the resulting negative effect on classroom learning, see supra, at 5-6, and (3) the extent of the consequent negative commercial effects, see supra, at 6-9, 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."
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 4, 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
To hold this statute constitutional is not to "obliterate" the "distinction of what is national and what is local," ante, at 18 (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 15-16. 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 5-6. This Court has previously recognized the singularly disruptive potential on interstate commerce that acts of violence may have. See Perez, supra, at 156-157. For another thing, the immediacy of the connection between education and the national economic well being 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.
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
pre-existing law to changing economic circumstances. See Heart of Atlanta
Motel, Inc. v.
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.
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 304-305, 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."
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."
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 12-13. 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.
also United States v. Darby, 312 U.S. 100, 116-117 (1941) (overturning the
Court's distinction between "production" and "commerce" in
the child labor case, Hammer v. Dagenhart, 247 U.S.
251, 271-272 (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 10-11, 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
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 6,
9. 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
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
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.
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