According to the SG's brief, Lopez was a
twelfth-grade student who was apprehended at school carrying an unloaded
.38-caliber revolver and five cartridges. Lopez purportedly told
local and federal agents that he had received the
revolver from another person to hold during the school day for delivery to a
third person after school, for use in a gang
war.
I assume Professor Lipkin's implicit question is
why the Court did not discuss whether the Gun Free School Zones Act was
constitutional as applied to Lopez himself. The simple --
perhaps too simple -- answer is that the statute itself was indifferent to
whether the possession was with intent to sell, whether the defendant had an
intent to transfer or to facilitate a gang war, whether the gun had travelled in
interstate commerce, whether the crime affected interstate commerce, etc.:
The law permitted conviction based on evidence (beyond a reasonable doubt) of
possession near a school, without more. And presumably that's what the
indictment in Lopez charged, and what the trial court found.
(Lopez waived his right to a jury trial.)
Therefore, there simply was no
factual finding, beyond a reasonable doubt or otherwise, regarding the purpose
of Lopez's possession (or from where the gun had traveled, what it was to be
used for, etc.). In that circumstance, it would be strange for an
appellate court, reviewing the conviction, to hold that the statute was
constitutional as applied.
Strange, but not unheard of:
That's exactly what the (unanimous) Supreme Court did in Salinas v.
United States, 522 US 52 (1997). In that case the Court avoided
deciding whether the federal bribery statute, 18 U.S.C. 666 -- which does
not require the Government to prove the bribe in question had a demonstrated
effect upon federal funds -- is beyond Congress's Spending Clause power.
The Court instead affirmed the conviction in Salinas "as applied," id.
at 60-61: "[T]here is no serious doubt about the constitutionality of
section 666(a)(1)(B) as applied to the facts of this case.
Beltran was without question a prisoner held in a jail managed pursuant to a series of agreements with the Federal Government.
The preferential treatment accorded to him was a threat to the integrity and
proper operation of the federal program. Whatever might be said about [the
law's] application in other cases, the application of
[section 666] to Salinas did not extend federal power beyond
its proper bounds." What's really remarkable about Salinas is
that there was no finding of fact in the trial court, nor any instruction
to the jury that it had to find, that "[t]he preferential treatment
accorded to [Beltran] was a threat to the integrity and proper operation of the
federal program." That's precisely what section 666
did not require the government to
prove -- which was why there was a constitutional challenge in the
first place (or, more precisely, why there was an argument that the
Constitution compelled a narrowing statutory construction that the Court
rejected).
Why didn't the Court in
Lopez similarly hold something like the following?: "[T]here is no
serious doubt about the constitutionality of [the GFSZA] as applied to the facts
of this case. Lopez without question possessed the gun with the intent to
distribute it for purposes of a gang war. Whatever might be said about
[the law's] application in other cases, the application of [the Act] to
Lopez did not extend federal power beyond its proper bounds." Perhaps
because the Government in Lopez did not ask the Court for such an
"as applied" holding; nor did the Government even ask the Court to remand
the case for retrial on the questions of, e.g., the purposes of Lopez's
possession, whether the gun had crossed state lines,
etc.
The short answer, from a
practical perspective, is that the Court will analyze the statute "as
applied," and will avoid the "facial" question of Congress's power, if and
when it wants to do so. (There is virtually no discussion in the Court's
cases concerning whether and under what circumstances the Court should consider
questions of congressional authority "as applied.") Compare,
e.g., Florida Prepaid, in which the Court majority in effect
ignored Justice Stevens's argument, 527 U.S. at 654, that the federal
patent statute was constitutional as applied to willful (and thus
unconstitutional) state infringements, as alleged in the particular case,
with U.S. v. Raines, 362 U.S. 17, 24-25 (1960) (Civil Rights Act of 1957 was proper Fifteenth Amendment enforcement
legislation as applied to state official, even though statute on its face did
not distinguish between public and private defendants).
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- Lopez's Fateful Day at School Robert Justin Lipkin
- Re: Lopez's Fateful Day at School Ann Althouse
- Marty Lederman