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The Commerce Clause and the Gun-Free School Zones Act

Sen. Dianne Feinstein this afternoon asked Sonia Sotomayor about cases in which the Supreme Court has struck down laws because Congress exceeded its powers under the Constitution’s commerce clause, including a 1995 ruling that invalidated the Gun-Free School Zones Act of 1990.

The court held in United States v. Lopez that a federal law barring possession of a firearm near schools exceeded the commerce-clause power because the statute did not regulate commercial activity and did not require that the gun possession have a connection to interstate commerce.

“Do you agree with the direction the Supreme Court has moved in more narrowly, interpreting congressional authority to enact laws under the commerce clause?” Sen. Feinstein asked Sotomayor.

The nominee said she couldn’t give a broad answer, but if Feinstein had one particular case in mind, she could address the framework the court had used. Feinstein cited Lopez.

Sotomayor then rather artfully described the holding in Lopez without really saying whether she agreed with it.

“The court was examining, as I mentioned, a wide variety of factors,” Sotomayor said. “They included whether the activity that the government was attempting to regulate was economic or non-economic, whether it was an area in which states traditionally regulated, whether the statute at issue had an interstate commerce provision to -- as an element of the crime, and then considered whether there was a substantial effect on commerce.”

She continued: “It looked at the congressional findings on that last element, the court did, and determined that there weren't enough in the confluence of factors that it was looking at to find that … that particular statute was within Congress's powers.”

Feinstein pleaded for greater deference from the Supreme Court for Congress and its laws under the commerce clause power.

“It's just that Congress has to have the ability to legislate,” the senator said. “And in those general areas, it's the commerce clause that enables that legislation.”

Feinstein noted that Congress passed a new version of the law that sought to address the commerce clause concern by including more findings and requiring that prosecutors prove a nexus to interstate commerce for any gun charges brought under the act.

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