Jim Terry
Expansion of central government, one small step at a time
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By Jim Terry
October 10, 2021

During the 1980s, sixty-one people were killed and 186 were injured in school shootings. Schoolhouse violence didn’t begin in the 1980s. In 1840, in Charlottesville, Virginia, a student at the University of Virginia shot and killed his law professor. Shootings at schoolhouses across the country continued through the 19th century into the 20th century even into the 21st century. It is not a new peril.

In 1990, Congress became concerned about the “epidemic” of violence in public schools and passed the Gun Free School Zones Act of 1990. This legislation was sponsored in the Senate by Senator Herbert Kohl (D-Wisconsin) and co-sponsored by Senator Dennis DeConcini (D-Arizona). The bill was later incorporated into the Crime Control Act of 1990 and was signed into law by President George H. W. Bush on November 29, 1990. The penalty for violating the Gun Free School Zone law was set at a fine of not more than $5,000 and incarceration of not more than five years.

Members of Congress should understand the U.S. Constitution. If they don’t understand it, they have a plethora of legal aids to advise them on just what the Constitution says. Could it be members of Congress don’t care? In its rush to save the world by creating gun free zones, Congress justified this new federal law regulating local schools using the Commerce Clause of the Constitution, which Congress frequently uses to expand the power of the central government.

Section eight of the Constitution lists the enumerated powers of Congress and paragraph three states that Congress has the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This constitutional clause has been tortuously defined by Congress and the courts over the years to justify the expansion of federal government power.

It didn’t take long for the Gun Free School Zone law to be shot down by the Supreme Court in the1995 case, The United States v Lopez. Lopez was a high school student in San Antonio, Texas. He was caught at his school with a .38 caliber pistol and five bullets, which were not in the gun. He was originally arrested on a violation of a Texas law prohibiting possession of a firearm on school property. However, the state quickly dismissed the case when federal agents charged him under the new federal Gun Free School Zone Act.

The Supreme Court ruled essentially, that possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. In other words, in finding the Gun Free School Zone Act unconstitutional, the court told Congress to stop abusing the Commerce Clause.

Chief Justice Rehnquist rendered the majority opinion (5-4) of the Supreme Court. His opinion is interesting reading and contains some good history lessons on the power of the federal government. He quotes from a number of prior cases and statutes, “Under our federal system, the ‘States possess primary authority for defining and enforcing the criminal law. Brecht v.

Abrahamson,’” He further makes the following observation, “It is worth noting that Congress, in the first federal criminal Act, did not establish nationwide prohibitions against murder and the like... To be sure, Congress outlawed murder, manslaughter, maiming, and larceny, but only when those acts were either committed on United States territory not part of a State or on the high seas.” This illustrates the original concept of our government-the powers delegated to the federal government by the Constitution and the powers reserved to the states or the people-federalism.

In addressing the government’s argument that the Gun Free School Zone Act was constitutional under the Commerce Clause, Rehnquist writes, “To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action.” Here he admits how the Commerce Clause has been arguably stretched beyond its original intention by courts and Congress.

Rehnquist then clarifies that the Gun Free School Zone Act, “...is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms... [it] is not an essential part of a larger regulation of economic activity...” That a federal criminal law aimed at subdivisions of state governments is not, nor has anything to do with commerce, should have been evident to members of Congress when they passed the law. In signing the bill into law, President George H.W. Bush “...expressed reservations about the gun-free school-zones measure, saying it “inappropriately overrides legitimate state firearms laws with a new and unnecessary federal law.” (Education Week,November2, 1994) But, these are politicians, politicizing tragic events in order to gain power and favor with voters who cheer these kinds of feel-good laws without regard to their constitutionality.

Justices Kennedy and O’Connor, who sided with the majority in the Lopez case, addressed the development of the Commerce Clause when they wrote in their concurring opinion, “... for almost a century after the adoption of the Constitution, the Court's Commerce Clause decisions did not concern the authority of Congress to legislate. Rather, the Court faced the related but quite distinct question of the authority of the States to regulate matters that would be within the commerce power had Congress chosen to act. The simple fact was that in the early years of the Republic, Congress seldom perceived the necessity to exercise its power in circumstances where its authority would be called into question.”

Kennedy and O’Connor then allude to our federal system, "This framework has been sufficiently flexible over the past two centuries to allow for enormous changes in the nature of government. The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses: first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities.” Again, they caution of the expanding power of the federal government.

Recently, the United States attorney general threatened FBI intervention in local school board meetings because of parents exercising their constitutional right, “...peaceably to assemble, and to petition the government for a redress of grievances.” The only conclusion that can be drawn is this threat by a department of the federal government is another step to weaken the power reserved for the states. It is an attack on our federal system of government.

In his threat to those parents who would exercise their right of redress before local government bodies, AG Garland specifically mentioned intimidation and violence against public officials. Each state of the Union has its own laws regarding actions against public officials and each state has multiple law enforcement agencies to enforce those laws. States don’t need the FBI to stick its nose into local law enforcement jurisdiction. That was affirmed in the Lopez case when local law enforcement arrested Lopez for violating a state law regarding guns on school grounds. After federal officers filed federal charges, state charges were dropped. Since Lopez’ conviction in the federal case was overturned, he was never charged again for violating the state law regarding guns on school grounds. In other words, the federal government’s zeal may have allowed a crime to go unpunished. To Lopez’ credit, after this episode in his young life, according to a report in Time Magazine, he joined the US Marines where, as the article says, “...firearms aren’t a problem.”

© Jim Terry

 

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Jim Terry

Jim Terry has worked in Republican grassroots politics for 40 years. Terry was an administrative assistant to a Republican elected official in Dallas for twenty years. In 1996, he ran for and was elected to Justice Court 2 in Dallas County where he served eight years. Contact Jim at tr4guy62@yahoo.com

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