United States v. Lopez,
514 U.S. 549 (1995)

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No. 93-1260. Argued November 8, 1994-Decided April 26, 1995

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)(I)(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 that 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. 552-568.

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, post, p. 568. THOMAS, J., filed a concurring opinion, post, p. 584. STEVENS, J., post, p. 602, and SOUTER, J., post, p. 603, filed dissenting opinions. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined, post, p. 615.

Solicitor General Days argued the cause for the United States. With him on the briefs were Assistant Attorney General Harris, Deputy Solicitor General Wallace, Malcolm L. Stewart, and John F. De Pue.

John R. Carter argued the cause for respondent. With him on the brief were Lucien B. Campbell, Henry J. Bemporad, Carter G. Phillips, and Adam D. Hirsh.*

*Briefs of amici curiae urging reversal were filed for 16 Members of the United States Senate et al. by Debra A. Valentine, Brady C. Williamson, and Jeffrey J. Kassel; for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, John P. Ware, Assistant Attorney General, Richard A. Cordray, State Solicitor, Simon B. Karas, G. Oliver Koppell, Attorney General of New York, and Vanessa Ruiz; for the Center to Prevent Handgun Violence et al. by Erwin N. Griswold, Dennis A. Henigan, and Gail A. Robinson; for Children NOW et al. by William F. Abrams; for the Clarendon Foundation by Ronald D. Maines; for the Coalition to Stop Gun Violence et al. by Brian J. Benner; and for the National School Safety Center et al. by James A. Rapp.

Briefs of amici curiae urging affirmance were filed for the National Conference of State Legislatures et al. by Richard Ruda and Barry Friedman; and for the Pacific Legal Foundation by Ronald A. Zumbrun and Anthony T. Caso.

Briefs of amici curiae were filed for Academics for the Second Amendment et al. by Patrick J. Basial, Don B. Kates, Robert Carter, Henry Mark Holzer, Nicholas J. Johnson, Joseph E. Olson, Daniel Polsby, Charles E. Rice, Wallace Rudolph, Justin Smith, Robert B. Smith, George Strickler, Richard Warner, and Robert Weisberg; and for the Texas Justice Foundation by Clayton Trotter.

Full Text of Opinion

Primary Holding

Gun possession is not an economic activity that has any impact on interstate commerce, whether direct or indirect, so the federal government cannot base a law prohibiting gun possession near schools on the Commerce Clause.


A high school senior in San Antonio, Texas was charged with violating the federal Gun-Free School Zones Act of 1990. Alfonso Lopez, Jr. was caught inside the school while carrying a .38 caliber revolver and five cartridges with the alleged intent of delivering the gun to someone else in exchange for $40. The weapon was concealed and unloaded, but Lopez admitted to carrying it. He was convicted of violating the Act after the trial court denied his motion to dismiss on the grounds that it was unconstitutional for Congress to control public schools.

On appeal, the Fifth Circuit reversed the conviction while holding that the Commerce Clause did not support this exercise of Congressional authority because it lacked a meaningful impact on interstate commerce. The government appealed the reversal, arguing that introducing firearms into schools would increase the risk of a violent crime and thus raise insurance costs and inhibit travel in the affected area. Those perceived consequences would have an effect on the national economy, as would the reduced effectiveness of the learning environment if students are concerned about hazards posed by weapons. (Less educated students would be less likely to help grow the national economy.)



  • William Hubbs Rehnquist (Author)
  • Sandra Day O'Connor
  • Antonin Scalia
  • Anthony M. Kennedy
  • Clarence Thomas

Rehnquist reverted to a traditional understanding of what the Commerce Clause covers: the channels and instrumentalities of interstate commerce, as well as activities that substantially affect or relate to it. Only activities were implicated here, and the majority could not envision any economic connection to the simple carrying of handguns, despite its historically broad interpretation of the Commerce Clause. Rehnquist was concerned that upholding the law under this justification would create a slippery slope, allowing Congress to regulate virtually any sphere of activity based on an attenuated connection to commerce.

In reaching its conclusions, the majority provided a stricter, more clearly defined test for determining whether a law falls within the Commerce Clause power. First, courts must evaluate whether an activity is non-economic or economic. They also must consider whether the item in question had moved in interstate commerce and whether Congress had made specific findings about a link between the item or activity and its asserted justification. (Rehnquist observed that the government based its argument on mere speculation about guns undermining education rather than presenting tangible evidence to that affect.) Finally, courts must consider the level of attenuation in the connection between the activity at issue and interstate commerce.

While this decision clearly deviated in spirit from the broad rulings on the Commerce Clause throughout the 20th century, Rehnquist wrote the majority opinion in a way that avoided overruling the Court's precedents in this area. He did implicitly disapprove of that trend in its jurisprudence by criticizing past decisions in which the Court had condoned the federal government's attempts to remove power from the states.


  • Stephen G. Breyer (Author)
  • John Paul Stevens
  • David H. Souter
  • Ruth Bader Ginsburg

Echoing decisions such as Wickard v. Filburn, Breyer reminded the majority that the Court had established a pattern of reviewing activities in terms of their aggregate effect on interstate commerce, rather than the impact of a single act. He also pointed out that the Court had adhered to a very deferential rational basis standard of review in Commerce Clause cases. Applying rational basis to this situation, Breyer found that enough information existed to find that Congress did not act in an arbitrary or irrational way. He argued that fear of violence in schools could undermine the educational environment and observed that education was increasingly critical to the U.S. keeping pace in the global economy. Although he did not define how strong the connection needed to be to find a substantial effect that linked carrying guns to interstate commerce, he used evidence in empirical studies in finding that a "significant connection" existed.


  • David H. Souter (Author)

Also concerned about abandoning the rational basis standard of review, Souter criticized the majority for creating what he saw as an illusory distinction between economic and non-economic activity. He felt that its new test was too rigid to be effectively applied across a broad range of situations.


  • John Paul Stevens (Author)

Comparing firearms to asbestos and alcohol, Stevens found that Congress historically had the authority to protect school zones from dangerous activities. He argued that the majority had reverted to outdated notions of due process in producing a holding that exceeded the boundaries of the judicial role in failing to give the legislature enough discretion.


  • Anthony M. Kennedy (Author)
  • Sandra Day O'Connor


  • Clarence Thomas (Author)

Case Commentary

For a law to be valid under the Commerce Clause, there must be some direct connection between the activity and interstate commerce. When an activity is traditionally within the authority of the states, the federal government must make a stronger effort to prove that there is a specific reason to regulate it. It is still unclear how much Lopez signals a retreat from the broader understanding of the Commerce Clause power articulated earlier in the 20th century. Most observers agree that the Rehnquist Court was aiming to restore some authority to the states from the vast scope of power given to the federal government in this area, but not many decisions other than U.S. v. Morrison (1999) have addressed this issue.

In terms of the law struck down here, the decision did not have a long-lasting effect. Congress simply rewrote the Gun-Free School Zones Act by making the connection to interstate commerce clearer. The new law has not yet been reviewed by the Supreme Court, but lower courts have upheld it against constitutional challenges and sustained convictions based on it.

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