"Vested Interests: The Federal Felon Body Armor Ban and the Continuing
Vitality of Scarborough v. United States" (
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957479 )
Georgetown Law Journal, Vol. 100, No. 4, 2012 (
http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=112940 )
CONOR PAUL MCEVILY (
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1718298 ),
affiliation not provided to SSRN
Email: [email protected]
The federal felon body armor ban - codified at Section 931 of the
United States Code Title 18 - prohibits any person who has been
convicted of a felony crime of violence from possessing body armor that
has been sold in interstate commerce. It is a stand-alone provision
unconnected to any legislative scheme regulating body armor more
broadly, and it regulates a discrete intrastate activity: the possession
of body armor by felons. Because the Constitution commits to Congress
the authority to regulate only interstate commerce, the Act has
frequently sustained challenges that it exceeds Congress’s authority.
Though several jurists have acknowledged that the law fails to fall
within any of the three categories composing the modern Commerce Clause
framework, every court to thus far confront its constitutionality has
affirmed it, reasoning that the law cannot be distinguished from the
federal ban on felons’ possession firearms which the Supreme Court
implicitly held constitutional a generation ago in Scarborough v. United
States.
This Note contends that Scarborough, as interpreted by the lower
courts, not only contravenes modern Commerce Clause jurisprudence, but
also threatens to tilt the balance between federal and state governments
by permitting the federal government to intrude on areas of traditional
state concern. By analogizing Scarborough’s holding that the federal
government may constitutionally regulate a gun so long as it has crossed
state lines, courts have upheld similar federal enactments regulating
other items that have crossed state lines - enactments like § 931’s
regulation of body armor. Driven to its analogical limit, Scarborough
could stand for the proposition that, notwithstanding any other
applicable Constitutional provision, the federal government may regulate
the intrastate possession of any item so long as it has traveled
interstate at some point in its existence.
To avoid result, this Note advances a 're-conceptualization' of
Scarborough. By characterizing the present network of federal firearms
laws as a 'comprehensive regulatory regime,' the felon firearm ban can
be upheld under the rationale of Gonzales v. Raich, where the Court
sanctioned federal laws regulating the intrastate possession of a
commodity, so long as they constituted 'an essential part' of such a
regime. In contrast to other possession laws like § 931, the felon
firearm ban can be understood as an 'essential part' of a comprehensive
regulatory regime. By re-conceptualizing Scarborough’s holding, the
Court would not only preserve a sensible law barring violent felons from
having guns, it would establish a practical limit [????? - Ed.} to
Congress’s Commerce Clause authority while staying true to
well-established Commerce Clause doctrine.
****************************************************************************************************************
Professor Joseph Olson, J.D., LL.M.
o- 651-523-2142
Hamline University School of Law (MS-D2037)
f- 651-523-2236
St. Paul, MN 55113-1235
c- 612-865-7956
[email protected]
http://law.hamline.edu/constitutional_law/joseph_olson.html
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