Posted by Orin Kerr:
*United States v. Alderman* and Felon Possession of Body Armor:
http://volokh.com/archives/archive_2009_05_10-2009_05_16.shtml#1242151686
The Ninth Circuit has today haded down an interesting commerce clause
case, [1]United States v. Alderman. From the introduction:
This case of first impression in the Ninth Circuit requires us to
consider 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 is 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.
Judge McKeown, joined by Betty Fletcher, conclude that the statute
"passes muster." Judge Paez dissented, becoming a friend of
federalism[2] in the Judge Reinhardt sense:
In my view, felon-possession of body armor does not have a
substantial effect on interstate commerce; its prohibition under 18
U.S.C. § 931 neither regulates commerce or any sort of economic
enterprise nor regulates intrastate, non-economic activity that is
essential to a comprehensive federal regulatory scheme.
Notably, the case has been in the hopper for a while: It was argued
14 months to the day before it was handed down.
References
1. http://www.ca9.uscourts.gov/datastore/opinions/2009/05/11/07-30186.pdf
2. http://volokh.com/2003_03_16_volokh_archive.html#200018243
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