--- F.3d ---- 
(Cite as: 1993 WL 355468 (5th Cir.(Tex.))) 

         UNITED STATES of America, Plaintiff-Appellee, 
                               v. 
            Alfonso LOPEZ, Jr., Defendant-Appellant. 
                          No. 92-5641. 
                United States Court of Appeals, 
                         Fifth Circuit. 
Sept. 15, 1993. 

Defendant was convicted in the United States District Court for the
Western District of Texas, H.F. Garcia, J., of possessing firearm
in school zone in violation of Gun-Free School Zones Act, and he
appealed.  The Court of Appeals, Garwood, Circuit Judge, held that: 
(1) Gun-Fee School Zones Act, in full reach of its terms, was
invalid as beyond power of Congress under commerce clause, and (2)
even if conviction might have been sustained if government alleged
and proved offense had nexus to commerce, defendant was still
entitled to reversal of conviction, since indictment did not allege
any connection to interstate commerce. 
Reversed and remanded with directions. 
 
[1] WEAPONS k9 
406k9 
Gun-Free School Zones Act, which makes it unlawful for any
individual knowingly to possess firearm in school zone, makes it
federal offense to carry unloaded firearm in unlocked suitcase on
public sidewalk in front of one's residence, so long as that part
of sidewalk is within 1,000 feet of boundary of grounds of any
public or private school, regardless of whether it is during school
year or school is in session.  18 U.S.C.A. ss 921(a)(25, 26),
922(q)(1). 
 
[2] COMMERCE k3 
83k3 
Although statute which falls within commerce power is
constitutional and does not violate Tenth Amendment, even if it
intrudes upon domain traditionally left to states, Tenth Amendment
is not irrelevant to commerce clause analysis; Court of Appeals'
understanding of breadth of Congress' commerce power is related to
degree to which its enactments raise Tenth Amendment concerns and,
although it does not purport to define limits of commerce power,
Tenth Amendment obviously proceeds on assumption that reach of
commerce power is not unlimited.  U.S.C.A. Const. Art. 1, s 8, cl.
3;  Amend. 10. 
 
[3] WEAPONS k4 
406k4 
Basic jurisdictional structure of requiring licensing of all
firearms dealers and manufacturers, based on Congress' express
finding to effect that such was necessary to adequate federal
control of interstate and foreign commerce in firearms, and, in all
other instances, including express nexus either to interstate
commerce, or to activity of or dealings with federally licensed
dealers or manufacturers, or to both, has continued to be present
in federal firearms statutes with only a few, discrete exceptions.

 
[4] WEAPONS k4 
406k4 
Statute making it unlawful for any person to transfer or possess
machine gun is restricted to narrow class of highly destructive,
sophisticated weapons that have been either manufactured or
imported after enactment of statute, which is more suggestive of
nexus to or effect on interstate or foreign commerce than
prohibition against possession of any firearms whatsoever.  18
U.S.C.A. s 922(o );  U.S.C.A. Const. Art. 1, s 8;  cl. 3. 
 
[5] COMMERCE k82.50 
83k82.50 
There is nothing in either Omnibus Crime Control and Safe Streets
Act of 1968 or Gun Control Act of 1968 to suggest that Congress
made any finding that mere private party intrastate possession of
firearms that have not moved in interstate commerce has any effect
on interstate commerce or must be regulated in order to effectively
regulate interstate commerce.  Omnibus Crime Control and Safe
Streets Act of 1968, s 1 et seq., 82 Stat. 197;  Gun Control Act
of 1968, s 1 et seq., 82 Stat. 1213. 
 
[6] WEAPONS k4 
406k4 
Although statute, which makes it unlawful for any person to
manufacture, import, ship, deliver, possess, transfer, or receive
any firearms which are not detectable when subjected to inspection
by type of x-ray machines commonly used at airports, contains no
express requirement of interstate nexus, employment of standard of
"x-ray machines commonly used at airports" plainly reflects
statute's interstate commerce-related purpose and nexus.  18
U.S.C.A. s 922(p);  U.S.C.A. Const. Art. 1, s 8, cl. 3. 
 
[7] COMMERCE k13 
83k13 
Broad as commerce power is, its scope is not unlimited,
particularly where intrastate activities are concerned;  if reach
of commerce power to local activity that merely affects interstate
commerce or its regulation is not understood as being limited by
some concept such as "substantially affects," then scope of
commerce clause would be unlimited, and there would be no
exclusively internal commerce of state, regulation of which is
reserved for state itself.  U.S.C.A. Const. Art. 1, s 8, cl. 3. 
 
[8] CONSTITUTIONAL LAW k70.1(4) 
92k70.1(4) 
Imprecise and matter-of-degree nature of concepts such as
"substantially," especially as applied to effect of intrastate
commerce on interstate commerce, generally renders decision making
in this area peculiarly within province of Congress rather than
courts.  U.S.C.A. Const. Art. 1, s 8, cl. 3. 
 
[9] CONSTITUTIONAL LAW k70.1(7.1) 
92k70.1(7.1) 
Where Congress has made findings, formal or informal, that
regulated activity substantially affects interstate commerce,
courts must defer if there is any rational basis for finding and,
practically speaking, such findings almost always end the matter. 
U.S.C.A. Const. Art. 1, s 8, cl. 3. 
 
[10] CONSTITUTIONAL LAW k70.1(7.1) 
92k70.1(7.1) 
Courts cannot properly perform their duty to determine if there is
any rational basis for congressional finding that regulated
activity substantially affects interstate commerce if neither
legislative history nor statute itself reveals any such relevant
finding;  in such situation there is nothing to indicate that
Congress itself consciously fixed, as opposed to simply
disregarded, boundary line between commerce power and reserved
power of states.  U.S.C.A. Const. Art. 1, s 8, cl. 3. 
 
[11] CONSTITUTIONAL LAW k48(1) 
92k48(1) 
Congressional enactments are presumed constitutional, but in
certain areas presumption has less force. 
 
[12] WEAPONS k3 
406k3 
Since Gun-Free School Zones Act, which makes it unlawful for any
individual knowingly to possess firearm in school zone, represents
singular incursion by federal government into territory long
occupied by states, since both management of education and general
control of simple firearms possession by ordinary citizens have
traditionally been state responsibilities, Court of Appeals, in
determining constitutionality of Act, was faced with competing
constitutional concerns, and so the importance of congressional
findings showing that enactment of Act was within commerce power
was enhanced.  18 U.S.C.A. s 922(q);  U.S.C.A. Const. Art. 1, s 8,
cl. 3;  Amend. 10. 
 
[12] WEAPONS k4 
406k4 
Since Gun-Free School Zones Act, which makes it unlawful for any
individual knowingly to possess firearm in school zone, represents
singular incursion by federal government into territory long
occupied by states, since both management of education and general
control of simple firearms possession by ordinary citizens have
traditionally been state responsibilities, Court of Appeals, in
determining constitutionality of Act, was faced with competing
constitutional concerns, and so the importance of congressional
findings showing that enactment of Act was within commerce power
was enhanced.  18 U.S.C.A. s 922(q);  U.S.C.A. Const. Art. 1, s 8,
cl. 3;  Amend. 10. 
 
[13] COMMERCE k82.50 
83k82.50 
Gun-Free School Zones Act, which makes it unlawful for any
individual knowingly to possess firearm in school zone, in full
reach of its terms, is invalid as beyond power of Congress under
commerce clause;  neither Act itself nor its legislative history
reflected any congressional determination that possession denounced
by Act was in any way related to interstate commerce or its
regulation, or even that Congress was exercising its powers under
commerce clause, no prior federal enactments or congressional
findings spoke to subject matter of Act or its relationship to
interstate commerce, and there was no finding, legislative history,
or evidence to support Act on grounds that "business" of
elementary, middle, and high schools affects interstate commerce. 
18 U.S.C.A. s 922(q);  U.S.C.A. Const. Art. 1, s 8, cl. 3; Amend.
10. 
 
[13] WEAPONS k3 
406k3 
Gun-Free School Zones Act, which makes it unlawful for any
individual knowingly to possess firearm in school zone, in full
reach of its terms, is invalid as beyond power of Congress under
commerce clause;  neither Act itself nor its legislative history
reflected any congressional determination that possession denounced
by Act was in any way related to interstate commerce or its
regulation, or even that Congress was exercising its powers under
commerce clause, no prior federal enactments or congressional
findings spoke to subject matter of Act or its relationship to
interstate commerce, and there was no finding, legislative history,
or evidence to support Act on grounds that "business" of
elementary, middle, and high schools affects interstate commerce. 
18 U.S.C.A. s 922(q);  U.S.C.A. Const. Art. 1, s 8, cl. 3; Amend.
10. 
 
[14] DRUGS AND NARCOTICS k133 
138k133 
School yard statute, which provides greater punishment for drug
offenses occurring within 1,000 feet of school, is regulation of
drugs, not schools, and its jurisdictional foundation is
congressional finding that regulation of all drug trafficking,
intrastate as well as interstate, is necessary to regulate
interstate trafficking.  21 U.S.C.A. s 860;  U.S.C.A. Const. Art.
1, s 8, cl. 3. 
 
[15] SCHOOLS k19(1) 
345k19(1) 
Although Congress may attach conditions to receipt of federal funds
for education, it must do so unambiguously. 
 
[16] SCHOOLS k19(1) 
345k19(1) 
Gun-Free School Zones Act, which makes it unlawful for any
individual knowingly to possess firearm in school zone, could not
be viewed as condition on receipt of federal education funds to
protect federal investment in schools, since Congress in no way
tied Act to federal funding and since Act extends to private and
parochial schools regardless of whether federal funding is
received.  18 U.S.C.A. s 922(q). 
 
[17] CRIMINAL LAW k1167(1) 
110k1167(1) 
Even if defendant's conviction under Gun-Free School Zones Act,
which makes it unlawful for any individual knowingly to possess
firearm in school zone, might have been sustained if government
alleged and proved that offense had nexus to commerce, defendant
was entitled to reversal of his conviction, since indictment did
not allege any connection to interstate commerce.  18 U.S.C.A. s
922(q);  U.S.C.A. Const. Art. 1, s 8, cl. 3. 
 
[18] INDICTMENT AND INFORMATION k60 
210k60 
Indictment that fails to allege commerce nexus, where such nexus
is necessary element of offense, is defective. 
 
[19] CRIMINAL LAW k1167(1) 
110k1167(1) 
Since indictment, unlike bill of information, cannot be amended,
failure to allege each element is fatal. 
 
[19] INDICTMENT AND INFORMATION k60 
210k60 
Since indictment, unlike bill of information, cannot be amended,
failure to allege each element is fatal. 
John R. Carter, Asst. Federal Public Defender, Lucien B. Campbell,
Federal Public Defender, San Antonio, TX, for defendant-appellant.

Richard L. Durbin, Jr., Asst. U.S. Atty., Ronald F. Ederer, U.S.
Atty., San Antonio, TX, for plaintiff-appellee. 
Appeal from the United States District Court for the Western
District of Texas. 
 
Before REAVLEY, KING and GARWOOD, Circuit Judges. 
 
GARWOOD, Circuit Judge: 

*1 The United States Constitution establishes a national government
of limited and enumerated powers.  As James Madison put it in The
Federalist Papers, "The powers delegated by the proposed
Constitution to the federal government are few and defined.  Those
which are to remain in the State governments are numerous and
indefinite."  The Federalist No. 45, at 292 (C. Rossiter ed. 1961). 
Madison's understanding was confirmed by the Tenth Amendment.  It
is easy to lose sight of all this in a day when Congress
appropriates trillion-dollar budgets and regulates myriad aspects
of economic and social life.  Nevertheless, there are occasions on
which we are reminded of this fundamental postulate of our
constitutional order.  This case presents such an occasion. 

Proceedings Below 

On March 10, 1992, defendant-appellant Alfonso Lopez, Jr., then a
twelfth- grade student attending Edison High School in San Antonio,
Texas, arrived at school carrying a concealed .38 caliber handgun. 
Based upon an anonymous tip, school officials confronted Lopez, who
admitted that he was carrying the weapon.  Although the gun was
unloaded, Lopez had five bullets on his person. After being advised
of his rights, Lopez stated that "Gilbert" had given him the gun
so that he (Lopez) could deliver it after school to "Jason," who
planned to use it in a "gang war."  Lopez was to receive $40 for
his services. 

Lopez was charged in a one-count indictment with violating 18
U.S.C. s 922(q), which makes it illegal to possess a firearm in a
school zone. [FN1] After pleading not guilty, Lopez moved to
dismiss the indictment on the ground that section 922(q) "is
unconstitutional, as it is beyond the power of Congress to
legislate control over our public schools."  His brief in support
of the motion further alleged that section 922(q) "does not appear
to have been enacted in furtherance of any of those enumerated
powers" of the federal government.  The district court denied the
motion, concluding that section 922(q) "is a constitutional
exercise of Congress' well-defined power to regulate activities in
an[d] affecting commerce, and the 'business' of elementary, middle
and high schools ... affects interstate commerce."  Lopez
thereafter waived his right to a jury trial and was tried to the
bench upon stipulated evidence.  The court found Lopez guilty and
sentenced him to six months' imprisonment to be followed by two
years' supervised release.  Lopez now appeals his conviction and
sentence.  Lopez's sole objection to his conviction is his
constitutional challenge to section 922(q);  he does not otherwise
contest his guilt.  We now reverse. 

Overview 

[1] So far as we are aware, the constitutionality of section
922(q), also known as "the Gun-Free School Zones Act of 1990," is
a question of first impression in the federal courts. [FN2] 
Section 922(q)(1)(A) provides:  "It shall be unlawful for any
individual knowingly to possess a firearm at a place that the
individual knows, or has reasonable cause to believe, is a school
zone." [FN3]  Section 922(q)(1)(B) then carves out several limited
exceptions, none of which are applicable here. [FN4]  Section
922(q)(2) makes it illegal, again with some exceptions, to
intentionally or recklessly discharge a firearm in a known school
zone.  Section 922(q)(3) disclaims any intent on the part of
Congress to preempt state law.  Violations are punishable by up to
5 years' imprisonment and a $5,000 fine.  18 U.S.C. s 924(a)(4).


*2 [2] "As every schoolchild learns, our Constitution establishes
a system of dual sovereignty between the States and the Federal
Government." Gregory v. Ashcroft, --- U.S. ----, ----, 111 S.Ct.
2395, 2399, 115 L.Ed.2d 410 (1991).  Justice O'Connor's observation
is particularly apt in the context of this case, which pits the
states' traditional authority over education and schooling against
the federal government's acknowledged power to regulate firearms
in or affecting interstate commerce.  Lopez argues that section
922(q) exceeds Congress' delegated powers and violates the Tenth
Amendment. [FN5]  The government counters that section 922(q) is
a permissible exercise of Congress' power under the Commerce
Clause. [FN6]  In actuality, the Tenth Amendment and Commerce
Clause issues in this case are but two sides of the same coin.  As
Justice O'Connor has explained: "In a case like this one, involving
the division of authority between federal and state governments,
the two inquiries are mirror images of each other.  If a power is
delegated to Congress in the Constitution, the Tenth Amendment
expressly disclaims any reservation of that power to the States; 
if a power is an attribute of state sovereignty reserved by the
Tenth Amendment, it is necessarily a power the Constitution has not
conferred on Congress."  New York v. United States, --- U.S. ----,
----, 112 S.Ct. 2408, 2417, 120 L.Ed.2d 120 (1992). Thus, even if
Lopez is correct that section 922(q) intrudes upon a domain
traditionally left to the states, it is constitutional as long as
it falls within the commerce power.  See Gregory v. Ashcroft, ---
U.S. at ----, 111 S.Ct. at 2400 ("As long as it is acting within
the powers granted it under the Constitution, Congress may impose
its will on the States.").  This is not to say, however, that the
Tenth Amendment is irrelevant to a Commerce Clause analysis.  Our
understanding of the breadth of Congress' commerce power is related
to the degree to which its enactments raise Tenth Amendment
concerns, that is concerns for the meaningful jurisdiction reserved
to the states.  At a more textual level, the Tenth Amendment,
though it does not purport to define the limits of the commerce
power, obviously proceeds on the assumption that the reach of that
power is not unlimited, else there would be nothing on which the
Tenth Amendment could operate. 

A good place to begin our analysis is the case of United States v.
Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).  At issue
in Bass was the felon in possession provision of the Omnibus Crime
Control and Safe Streets Act of 1968, which made it unlawful for
any felon to "receive[ ], possess[ ], or transport[ ] in commerce
or affecting commerce" any firearm.  18 U.S.C. former s 1202(a)(1). 
Because the "in commerce or affecting commerce" language might be
read to apply only to the crime of transporting a firearm, the
question for the Court was whether, in pure possession cases, the
government had to prove a connection to commerce or whether section
1202 reached the mere possession of firearms.  The best evidence
for the government's position that the statute reached mere
possession without any commerce nexus was the floor statements of
Senator Long, who introduced section 1202, and the formal findings
contained in Title VII of this 1968 act. [FN7]  While conceding
that this legislative history lent "some significant support" for
the government's view, id. 404 U.S. at 345, 92 S.Ct. at 521, the
Court was not convinced. Were section 1202 read to punish mere
possession without a commerce nexus, the Court argued, it would
intrude upon an area of traditional state authority and would push
Congress' commerce power to its limit, if not beyond.  Because
Congress had not clearly expressed its intent to do so, the Court
therefore adopted the narrower construction of the statute: *3
"[U]nless Congress conveys its purpose clearly, it will not be
deemed to have significantly changed the federal-state balance. 
Congress has traditionally been reluctant to define as a federal
crime conduct readily denounced as criminal by the States.... 
[Thus] we will not be quick to assume that Congress has meant to
effect a significant change in the sensitive relation between
federal and state criminal jurisdiction."  Id. 404 U.S. at 349, 92
S.Ct. at 523 (footnotes omitted). Significantly, the Bass Court
noted that "[i]n light of our disposition of the case, we do not
reach the question whether, upon appropriate findings, Congress can
constitutionally punish the 'mere possession' of firearms." Id. 404
U.S. at 339 n. 4, 92 S.Ct. at 518 n. 4.  In a subsequent case, the
Court held that to satisfy former section 1202's commerce nexus,
it need only be shown that the possessed firearm had traveled at
some time in interstate commerce.  See Scarborough v. United
States, 431 U.S. 563, 566, 97 S.Ct. 1963, 1965, 52 L.Ed.2d 582
(1977). [FN8]  However, Scarborough did not purport to answer the
question left open in Bass' footnote 4. 

The government argues that section 922(q) is no different from a
number of other federal firearms crimes.  We are not persuaded. 
With the exception of a few relatively recent, special case
provisions, federal laws proscribing firearm possession require the
government to prove a connection to commerce, or other federalizing
feature, in individual cases.  For example, 18 U.S.C. s 922(g), the
successor to former section 1202, makes it unlawful for felons and
some other classes of persons to "possess [a firearm] in or
affecting commerce."  Because a commerce nexus is an element of the
crime defined by section 922(g), each application of that statute
is within the commerce power. See United States v. Wallace, 889
F.2d 580, 583 (5th Cir.1989), cert. denied, 497 U.S. 1006, 110
S.Ct. 3243, 111 L.Ed.2d 753 (1990) (holding that section 922(g)
"reaches only those firearms that [have] traveled in interstate or
foreign commerce and is thus constitutional").  Section 922(q),
lacking such a nexus requirement, is not on an equal footing with
statutes like section 922(g).  The government points to several
firearm proscriptions not requiring the specific firearm to have
traveled in commerce, such as:  18 U.S.C. s 922(a)(6) (false
statement in acquisition of firearm from licensed dealer,
manufacturer, or importer);  id. s 922(b)(1) & (2) (sale or
delivery by licensed dealer, manufacturer, or importer to a minor
or in violation of state law);  id. s 922(b)(4) (sale or delivery
by licensed dealer, manufacturer, or importer of certain specified
weapons, such as machine guns or short-barrelled rifles);  id. s
922(m) (recordkeeping violations by licensed dealer, manufacturer,
or importer).  However, not only do all these proscriptions pertain
to essentially commercial actions involving the firearms business,
as opposed to mere simple possession by any individual, cf. United
States v. Nelson, 458 F.2d 556, 559 (5th Cir.1972) ("acquisition
of firearms is more closely related to interstate commerce than
mere possession"), but each is also expressly tied to the dealer,
manufacturer, or importer in question being federally licensed. 
18 U.S.C. s 921(a)(9), (10), & (11). [FN9] 

Historical Outline, Federal Firearms Legislation 

*4 We now digress to outline at some length the major developments
in the history of presently relevant federal firearms control
legislation. 

General federal domestic legislation in this area may be traced to
two enactments, first, the National Firearms Act of 1934, 48 Stat.
1236-1240, originally codified as 26 U.S.C. s 1132, now codified,
as amended, as chapter 53 of the Internal Revenue Code of 1986, 26
U.S.C. ss 5801-5872, and, second, the Federal Firearms Act of 1938,
52 Stat. 1250, originally codified as former 15 U.S.C. s 901-910,
now repealed, the provisions of which, as amended and supplemented,
have been carried forward to chapter 44 of Title 18, 18 U.S.C. ss
921 et seq. [FN10] 

The National Firearms Act of 1934 

The National Firearms Act, applicable only to a narrow class of
firearms such as machine guns, "sawed-off" shotguns and rifles,
silencers, and the like, 26 U.S.C. s 5845(a), [FN11] is grounded
on Congress' taxing power under Article I, Section 8, Clause 1. 
Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed.
772 (1937);  United States v. Miller, 307 U.S. 174, 59 S.Ct. 816,
83 L.Ed. 1206 (1939).  Its prohibitions are keyed to the imposition
of an excise tax on the business of dealing in such weapons and on
transfers of them, together with related requirements for
registration of the dealer, the transfers, and the weapons.  See
Sonzinsky;  Miller; Haynes v. United States, 390 U.S. 85, 88 S.Ct.
722, 19 L.Ed.2d 923 (1968); United States v. Freed, 401 U.S. 601,
602-07, 91 S.Ct. 1112, 1115-1117, 28 L.Ed.2d 356 (1971).  However,
section 922(q), which concerns us here, has no roots or antecedent
in the National Firearms Act, is in no way related or tied to
taxation or any character of registration or reporting, and is
applicable to all firearms.  Accordingly, the National Firearms
Act, and its history and development, are essentially irrelevant
to our present inquiry, and we turn our attention to the Federal
Firearms Act and its successors. [FN12] 

The Federal Firearms Act of 1938 

The Federal Firearms Act of 1938 applied to all firearms, former
15 U.S.C. s 901(3), and prohibited "any manufacturer or dealer" not
licensed thereunder from transporting, shipping, or receiving any
firearm or ammunition "in interstate or foreign commerce," id. s
902(a), and also prohibited "any person" from receiving any firearm
or ammunition "transported or shipped in interstate or foreign
commerce in violation of" section 902(a).  Id. s 902(b). Licensed
dealers and manufacturers could ship firearms interstate only to
other licensed dealers and manufacturers and to those who had or
were not required to have a license under state law to purchase the
firearm, id. s 902(c).  Licensed dealers and manufacturers were
required to keep records of firearms transactions.  Id. s 903(d). 
It was made an offense for "any person" to ship or transport "in
interstate or foreign commerce" any stolen firearm or ammunition,
id. s 902(g), and for "any person to transport, ship, or knowingly
receive in interstate or foreign commerce" any firearm with an
altered or removed serial number.  Id. s 902(i).  It was also made
unlawful for "any person" to ship or transport "in interstate or
foreign commerce" any firearm or ammunition to any felon, person
under felony indictment, or fugitive from justice, [FN13] id. s
902(d);  and, felons, those under felony indictment, and fugitives,
could not "ship" or "transport" any firearm or ammunition "in
interstate or foreign commerce."  Id. s 902(e).  Further, felons
and fugitives could not "receive any firearm or ammunition that had
been shipped or transported in interstate or foreign commerce." 
Id. s 902(f).  The latter section included a provision that
"possession of a firearm or ammunition by any such person shall be
presumptive evidence that such firearm or ammunition was shipped
or transported or received, as the case may be, by such person in
violation of this chapter."  Id. [FN14]  In Tot v. United States,
319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), this presumption
was held invalid on due process grounds as applied to whether the
weapon "was received by" the defendant "in interstate or foreign
commerce" after the effective date of the act.  Id. 319 U.S. at
466, 468, at 1244, 1245. 

Omnibus Crime Control and Safe Streets Act of 1968 

*5 The Federal Firearms Act remained otherwise in force without
significant change until the enactment in June 1968 of the Omnibus
Crime Control and Safe Streets Act of 1968, P.L. 90-351, 90th
Cong., 2d Sess. (1968) 82 Stat. 197. Title IV (ss 901-907) of P.L.
90-351 repealed the Federal Firearms Act (id. s 907) and enacted
a new chapter 44 ("Firearms") of Title 18 (18 U.S.C. s 921- 928),
which incorporated, with some amendments, almost all the provisions
of the Federal Firearms Act, [FN15] and added further firearms
offenses. 

Unlike the Federal Firearms Act, this legislation required a
federal license "for any person ... to engage in the business of
importing, manufacturing, or dealing in firearms, or ammunition"
even though the business did not operate in interstate commerce. 
P.L. 90-351, s 902;  18 U.S.C. s 922(a)(1).  See also id. s 923(a). 
The relevant committee report states that new section 922(a)(1)
"makes it clear that a license is required for an intrastate
business as well as an interstate business.  The present Federal
Firearms Act (15 U.S.C. s 902(a)) merely prohibits the interstate
or foreign shipment or receipt of firearms by a manufacturer or
dealer unless he has a license."  Sen.Rep. No. 1097, 90th Cong.,
2d Sess., reprinted in 1968 U.S.C.C.A.N. 2112 at 2202. [FN16] 

Public Law 90-351 s 901(a) contains, among others, the following
express Congressional findings, viz: "(1) that there is a
widespread traffic in firearms moving in or otherwise affecting
inter state or foreign commerce, and that the existing Federal
controls over such traffic do not adequately enable the States to
control this traffic within their own borders through the exercise
of their police power;  ... (3) that only through adequate Federal
control over inter state and foreign commerce in these weapons, and
over all persons engaging in the businesses of importing,
manufacturing, or dealing in them, can this grave problem be
properly dealt with, and effective State and local regulation of
this traffic be made possible;  ...." (emphasis added). [FN17] 

These Congressional findings may properly be understood as saying
that federal regulation of all firearms dealers and manufacturers,
not just those conducting an interstate business, was necessary in
order to control firearms traffic "moving in or otherwise affecting
interstate or foreign commerce."  In Nelson, 458 F.2d at 559, we
quoted the above set-out section 901(a)(3), and observed that "[i]f
Congress is to effectively prevent the interstate use of guns for
illegal purposes it must control their sources:  manufacturers,
dealers, and importers." [FN18]  This reasoning from the quoted
Congressional findings in support of the requirement that all
firearms manufacturers and dealers be federally licensed is
analogous to the reasoning we employed in United States v. Lopez,
459 F.2d 949 (5th Cir.), cert. denied sub nom. Llerena v. United
States, 405 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972), in
sustaining federal regulation of intrastate as well as interstate
narcotics traffic.  See id. at 951-53 (relying on express
Congressional findings "that intrastate incidents of the traffic
in controlled substances ... had a substantial and direct effect
on interstate commerce" and "swelled the interstate traffic in such
substances," that "it was impossible to distinguish between
substances manufactured and distributed intrastate from those
manufactured and distributed interstate," and thus "that control
of the intrastate incidents of traffic in controlled substances was
essential to control of interstate incidents of that traffic"). 

*6 However, it is significant that, apart from the license
requirement for all firearms dealers and manufacturers, all the
numerous proscriptions of chapter 44 of Title 18, as thus enacted,
were expressly tied either to interstate commerce or to the
regulation of the conduct of, or dealings with, federally licensed
dealers, manufacturers, or importers, or to both.  This was true
not only for the proscriptions that were carried over from the
Federal Firearms Act, [FN19] but also for the added proscriptions.
[FN20] 

In Title VII of P.L. 90-351 Congress also enacted what came to be
codified as 18 U.S.C.App. ss 1201 through 1203 (now repealed). 
Title VII was added on the Senate floor, "hastily passed, with
little discussion, no hearings, and no report," and "never received
committee consideration in" either chamber. Bass, 404 U.S. at 344
& n. 11, 92 S.Ct. at 520 & n. 11.  Section 1202(a) criminalized any
felon (or person discharged other than honorably from the Armed
Forces, or adjudged a mental incompetent, or who had renounced
United States citizenship, or was an alien unlawfully in the
country) "who receives, possesses, or transports in commerce or
affecting commerce ... any firearm." Section 1201 contained
Congressional findings "that the receipt, possession, or
transportation of a firearm by felons" (and by the other categories
of persons covered by section 1202(a)) "constitutes (1) a burden
on commerce or threat affecting the free flow of commerce," and "a
threat to the safety of the President ... and Vice-President" and
to the continued effective operation of the federal and all state
governments, and "an impediment or a threat" to the exercise of
First Amendment rights.  In the Firearms Owners' Protection Act of
1986, P.L. 99-308, 99th Cong., 2d Sess., 100 Stat. 449, other
aspects of which we consider in more detail below, all of Title VII
(including section 1201 and all its findings) was repealed, P.L.
99-308, s 104(b), and most of the substantive provisions of Title
VII (e.g., ss 1202 & 1203) were essentially incorporated into
section 922.  P.L. 99-308, s 102. 

Gun Control Act of 1968 

In October 1968, Congress enacted the Gun Control Act of 1968, P.L.
90-618, 90th Cong., 2d Sess., 82 Stat. 1213.  Title I of this
legislation reenacted all of chapter 44 of Title 18 (ss 921-928),
but with what are for present purposes essentially only minor
changes from the version thereof enacted earlier that year by Title
IV of the Omnibus Crime Control and Safe Streets Act of 1968.
[FN21]  Among these changes were, for example, removal or narrowing
of most of the exemptions that Title IV had made for rifles and
shotguns (see note 20, supra, and note 23, infra ), additional
coverage of transactions in ammunition in certain instances where
Title IV dealt only in firearms, and adding unlawful users of
federally regulated narcotics and adjudicated mental defectives to
felons, fugitives, and indictees as persons concerning whom certain
firearm transactions were prohibited. [FN22]  Title I also added
certain new prohibitions on licensees, including a new section
922(c) prohibiting licensees from selling firearms to those who are
not licensees unless the purchaser either appeared in person on the
licensee's premises or furnished a sworn statement as to his
eligibility and seven days' notice was given the chief law
enforcement officer of the transferee's residence prior to delivery
or shipment.  Other provisions relaxed some of the restrictions of
section 922(a)(3) & (5) as enacted by Title IV of P.L. 90-351.
[FN23]  In sum, the Gun Control Act of 1968 maintained the same
essential jurisdictional bases of the earlier 1968 legislation,
namely--apart from the license requirement for all dealers and
manufacturers--an express nexus either to interstate commerce or
to the conduct of, or dealings with, federally licensed dealers or
manufacturers, or to both.  The legislative history is consistent
with this approach. [FN24]  The House committee report explains the
purpose of the Gun Control Act of 1968 (which originated as H.R.
17735) in relevant part as follows: 

"PURPOSE 

*7 The principal purpose of H.R. 17735, as amended, is to
strengthen Federal controls over inter state and foreign commerce
in firearms and to assist the States effectively to regulate
firearms traffic within their borders. 

* * * 

GENERAL STATEMENT 

The increasing rate of crime and lawlessness and the growing use
of firearms in violent crime clearly attest to a need to strengthen
Federal regulation of interstate firearms traffic. The subject
legislation responds to widespread national concern that existing
Federal control over the sale and shipment of firearms [across]
State lines is grossly inadequate. Handguns, rifles, and shotguns
have been the chosen means to execute three- quarters of a million
people in the United States since 1900.  The use of firearms in
violent crimes continues to increase today. 

* * * 

The committee is persuaded that the proposed legislation imposes
much needed restrictions on interstate firearms traffic and, at the
same time, does not interfere with legitimate recreational and
self-protection uses of firearms by law-abiding citizens.  The
committee urges its enactment."  H.R.Rep. No. 1577, 90th Cong., 2d
Sess., reprinted in 1968 U.S.C.C.A.N. 4410 at 4411-13, 4415
(emphasis added). 

Firearms Owners' Protection Act of 1986 

[3] This basic jurisdictional structure--the licensing of all
firearms dealers and manufacturers, based on Congress' express
finding (in the Omnibus Crime Control and Safe Streets Act of 1968,
P.L. 90-351, s 902(a)(3)) to the effect that such was necessary to
adequate federal control of interstate and foreign commerce in
firearms, and in all other instances an express nexus either to
interstate commerce or to the activity of, or dealings with,
federally licensed dealers or manufacturers, or to both [FN25]--has
continued to the present, with only a few, discrete exceptions, the
first of which arose in 1986, in the Firearms Owners' Protection
Act, P.L. 99-308, 99 Cong., 2d Sess., 100 Stat. 449-461. 

Section 102(5)(A) of the Firearms Owners' Protection Act, 100 Stat.
451-52, amended section 922(d), as explained in the relevant
committee report, "by extending the prohibition on transferring
firearms to disqualified persons [e.g., felons, fugitives, etc.]
from only licensees to private individuals as well."  H.R.Rep. No.
99-495, 99 Cong., 2d Sess., reprinted in 1986 U.S.C.C.A.N. 1327 at
1341.  The explanation for this particular amendment appears in an
"assessment" of the bill by the Bureau of Alcohol, Tobacco and
Firearms (BATF) that appears in full as a part of this committee
report, and states "This proposal would close an existing loophole
whereby qualified purchasers have acquired firearms from licensees
on behalf of prohibited persons."  Id.  1986 U.S.C.C.A.N. at 1343.
[FN26]  This amendment to section 922(d) does not render it
analogous to section 922(q), which is presently before us.  To
begin with, section 922(d) deals with transfers, not mere
possession, and, as we said in Nelson, "acquisition of firearms is
more closely related to interstate commerce than mere possession." 
Id.  458 F.2d at 559.  Moreover, the above quoted legislative
history indicates that Congress determined that regulation of all
transferors to disqualified persons, not just federal licensee
transferors, was necessary to prevent evasion of the regulation of
federal licensees (a regulation with independent legitimacy, see
note 9, supra ).  This is consistent with the approach we took in
Lopez in sustaining federal regulation of intrastate, as well as
interstate, narcotics trafficking.  Id. 459 F.2d at 951-53.  See
also Nelson, 458 F.2d at 559 (relying on Congressional finding in
P.L. 90-351, s 901(a)(3), and observing that "[i]f Congress is to
effectively prevent the interstate use of guns for illegal purposes
it must control their sources:  manufacturers, dealers and
importers").  Finally, the overall structure and history, as well
as the title, of the Firearms Owners' Protection Act suggest no
Congressional determination that mere possession of ordinary
firearms implicates interstate commerce or other federal concerns. 
Indeed, Congress in that legislation expressly found, inter alia,
"that (1) the rights of citizens--(A) to keep and bear arms under
the second amendment to the United States Constitution;  ...;  and
(D) against unconstitutional exercise of authority under the ninth
and tenth amendments; require additional legislation to correct
existing firearms statutes and enforcement policies."  P.L. 99-308
s 1(b). [FN27] 

*8 Further, this legislation amended several provisions of section
922 and section 924 that contained express interstate commerce
nexus requirements without diluting those requirements.  This was
true, for example, with respect to the amendments to section
922(g), prohibiting felons (and other disqualified persons) from
shipping or transporting any firearms "in interstate or foreign
commerce," from receiving any firearm "which has been shipped or
transported in interstate or foreign commerce" and, as added by the
amendment, from possessing any firearm "in or affecting commerce." 
P.L. 99-308 s 102(6).  As we explained in Wallace, 889 F.2d at 583,
the legislative history of this amendment clearly showed that the
phrase "in or affecting commerce" meant "interstate" commerce, and
that accordingly the possession offense of thus amended section
922(g) "reaches only those firearms that traveled in interstate or
foreign commerce and is thus constitutional."  (Emphasis added). 
Similarly, the legislation enacted a new section 922(n), P.L.
99-308 s 102(8), which proscribed those under felony
indictment--whom the same legislation removed from sections 922(g)
and (h)--from shipping or transporting any firearm "in interstate
or foreign commerce" and from receiving any firearm "which has been
shipped or transported in interstate or foreign commerce." [FN28] 
Also, the express federal nexus was retained where the Firearms
Owners' Protection Act amended sections 924(c) and 929(a) to add
"drug trafficking crime" to the offenses concerning which firearm
(or certain ammunition) use was proscribed, while retaining the
requirement that the offense in any event be one that could "be
prosecuted in a court of the United States."  See note 25, supra.
Similarly, the amendment made to section 922(a)(3), concerning a
non-licensee's transportation into or receipt within his state or
residence of a firearm "obtained by such person outside that state"
broadened to all types of firearms an exception previously limited
to shotguns and rifles, but retained the "obtained by such person
outside that state" language.  P.L. 99-308 s 102(3). Likewise, the
restriction on licensed dealer sales to non-residents of the state
of the licensee's business location was amended but without
altering the interstate character of the subject matter.  Id. s
102(4).  And, the legislation left unchanged other provisions of
section 922 expressly requiring an interstate commerce nexus, such
as, for example, section 922(a)(5), generally prohibiting
non-licensee transfers of firearms to other non-licensees residing
in a state other than that of the transferor's residence. 

*9 [4] The other Firearms Owners' Protection Act change relevant
in this connection is its section 102(9), 100 Stat. 452-53, adding
a new section 922(o ) making it unlawful for "any person to
transfer or possess a machine gun" except for any "lawfully
possessed before the date this subsection takes effect."  There is
no committee report, and sparse legislative history, concerning
this provision, as it was added on the House floor.  The only
apparent explanation for it is the statement of its sponsor,
Representative Hughes, that "I do not know why anyone would object
to the banning of machine guns."  See Farmer v. Higgins, 907 F.2d
1041, 1044-45 (11th Cir.1990). While section 922(o ) is a closer
parallel than others to section 922(q) presently before us, as both
sections denounce mere possession with no express tie either to
interstate commerce or other federalizing element, we decline to
read into section 922(o ) any implied Congressional determination
that possession of firearms generally, or within one thousand feet
of any school grounds, affects interstate commerce.  Section 922(o
) is restricted to a narrow class of highly destructive,
sophisticated weapons that have been either manufactured or
imported after enactment of the Firearms Owners' Protection Act,
[FN29] which is more suggestive of a nexus to or affect on
interstate or foreign commerce than possession of any firearms
whatever, no matter when or where originated, within one thousand
feet of the grounds of any school. 

[5] The only two circuit courts that have addressed a
constitutional challenge to section 922(o ), United States v. Hale,
978 F.2d 1016, 1018 (8th Cir.1992), cert. denied, --- U.S. ----,
113 S.Ct. 1614, 123 L.Ed.2d 174 (1993);  United States v. Evans,
928 F.2d 858 (9th Cir.1991), have sustained it in reliance on
Congressional findings that appear to us to be inapplicable in the
present context, whatever relevance they might have to section
922(o ). [FN30]  Hale states that, "The legislative history of
section 922(o ) indicates that Congress considered the relationship
between the availability of machine guns, violent crime, and
narcotics trafficking.  See H.R.Rep. No. 495, 99th Cong., 2d Sess.,
at 1-5, reprinted in 1986 U.S.C.C.A.N. 1327, 1327-31."  Id. at
1018.  The only portion of the cited passage of the H.R.Rep. No.
495 that relates to machine guns--and it will be recalled that
neither section 922(o ) nor anything comparable to it was included
in the bill (H.R. 4332) there being considered--is a discussion of
the history of the legislation, including various earlier bills
that did not become law.  One of the earlier bills discussed was
H.R. 3135, introduced August 1, 1985, and H.R.Rep. No. 495 observes
that H.R. 3135 "prohibited the transfer and possession of machine
guns, used by racketeers and drug traffickers for intimidation,
murder and protection of drugs and the proceeds of crime.  The bill
allowed possessors of lawfully registered machine guns to continue
their lawful possession."  1986 U.S.C.C.A.N. at 1330.  Whatever
this may say about machine guns, it says nothing about the mere
possession of ordinary firearms. Given the formal Congressional
findings contained in the Firearms Owners' Protection Act (see note
27, supra ), which avow a purpose to enhance Second and Tenth
Amendment rights and express solicitude for the freedom of citizens
to possess ordinary firearms, it would be entirely inappropriate
to consider the above-quoted portions of the committee report as
having any relevance beyond machine guns and similar destructive
weapons. [FN31] 

*10 Section 922(o ) is not before us, and we intimate no views as
to it. However, we do not regard Hale and Evans as persuasive
respecting either the validity of section 922(q) or the existence
of express or implied Congressional findings supportive thereof.


The Undetectable Firearms Act of 1988 

[6] We note two firearms provisions enacted in 1988.  The
Undetectable Firearms Act of 1988, P.L. 100-649, 100th Cong., 2d
Sess., 102 Stat. 3816, added to Title 18 s 922(p) making it
unlawful for any person to "manufacture, import, ship, deliver,
possess, transfer, or receive" any firearms either not as
detectable "by walk-through metal detectors" as an exemplar to be
developed by the Secretary of the Treasury or which "when subjected
to inspection by the type of x-ray machines commonly used at
airports, does not generate an image that accurately depicts the
shape of" any major component thereof.  Section 922(p)(1). 
Exempted were "any firearm manufactured in, imported into, or
possessed in the United States before the date of the enactment"
of the act. Section 922(p)(6).  Although there is no express
requirement of an interstate nexus for the section 922(p)
possession offense, we reject the government's argument that this
legislation is analogous to section 922(q).  Section 922(p)' s
employment of the standard of "x-ray machines commonly used at
airports" plainly reflects the act's interstate commerce related
purpose and nexus.  This is confirmed by the legislative history,
as the relevant committee report notes "the threat posed by
firearms which could avoid detection at security checkpoints: 
airports, government buildings, prisons, courthouses, the White
House."  H.R.Rep. No. 100-612, 100th Cong., 2d Sess., reprinted in
1988 U.S.C.C.A.N. 5359. [FN32] 

Anti-Drug Abuse Amendments Act of 1988 

The other 1988 firearms legislation is subtitle G (ss 6211-6215)
of Title VI ("Anti-Drug Abuse Amendments Act of 1988") of the
Anti-Drug Abuse Act of 1988, P.L. 100-690, 100th Cong., 2d Sess.,
102 Stat. 4181, 4359-62.  Subtitle G added to Title 18 sections
924(f) and (g) and 930.  P.L. 100-690, ss 6211, 6215.  Section
924(g) denounces "[w]hoever knowingly transfers a firearm, knowing
that such firearm will be used to commit a crime of violence (as
defined in subsection (c)(3)) or drug trafficking crime (as defined
in subsection (c)(2))."  There is no requirement that the transfers
have an interstate character or that the firearms have been in
interstate commerce. While "drug trafficking crime" is limited to
federal offenses--and this limitation was maintained even though
the same legislation slightly amended the definition thereof in
section 924(c)(2) and section 929(a)(2) [FN33]--"crime of violence"
is not so limited.  Section 924(c)(3).  Our attention has not been
called to legislative history suggesting an explanation for this
seeming anomaly. [FN34]  It seems anomalous in several respects.


There is no apparent reason why the drug trafficking crime must be
federal, but not the crime of violence.  Further, no amendment was
made to section 924(b), denouncing the shipment, transport, or
receipt of a firearm "in interstate or foreign commerce" with
"knowledge or reasonable cause to believe that" a felony "is to be
committed therewith";  nor to section 924(c)(1) denouncing use or
carrying of a firearm during or in relation to "any crime of
violence or drug trafficking crime ... for which he may be
prosecuted in a court of the United States." [FN35]  The seemingly
unusual result is that anyone who transfers intrastate a firearm
(which has not been in interstate commerce) knowing it will be used
in a crime of violence in that state commits a federal crime even
though the crime of violence is not a federal offense, but the
party perpetrating the crime of violence with the firearm in that
same state violates federal law only if the crime of violence is
one "for which he may be prosecuted in a court of the United
States."  A possible inference from this is that transfer is deemed
more related to the regulation of interstate commerce than mere use
or possession.  Cf. Nelson, 458 F.2d at 559 ("acquisition of
firearms is more closely related to interstate commerce than mere
possession"). [FN36] 

*11 The 1988 legislation, like that before it, demonstrates neither
a pattern of regulation that abjures any express nexus to
interstate commerce or other federal element nor any express or
implied Congressional finding about mere possession of ordinary
firearms absent such a nexus. 

Crime Control Act of 1990 

At long last, we turn to the Crime Control Act of 1990, P.L.
101-647, 101st Cong., 2d Sess., 104 Stat. 4789-4968, which
included, as part of its XVII ("General Provisions"), section 1702,
104 Stat. 4844-45, the Gun-Free School Zone Act of 1990, that
enacted the new section 922(q). [FN37]  Preliminarily, we note that
the Crime Control Act of 1990 also contained a Title XXII
("Firearms Provisions"), P.L. 101-647, s 2201-2205, 104 Stat.
4856-58, which revised other portions of chapter 44 of Title 18. 
These other revisions all retained or provided for an express
interstate commerce (or other federal jurisdiction) nexus for the
various Title 18, chapter 44, offenses the provisions of which were
being amended. [FN38] 

Gun-Free School Zones Act of 1990 

The Gun-Free School Zones Act of 1990, now section 922(q), was
introduced in the Senate by Senator Herbert Kohl as S. 2070 and a
virtually identical bill with the same title was introduced in
House by Representative Edward Feighan as H.R. 3757.  The Senate
version was eventually enacted as part of Title XVII of the Crime
Control Act of 1990, P.L. 101-647 s 1702, 104 Stat. 4844-45.  The
House Report accompanying the Crime Control Act broadly declares
that the intent of the Crime Control Act was "to provide a
legislative response to various aspects of the problem of crime in
the United States."  H.R.Rep. No. 101-681(I), 101st Cong., 2d Sess.
69 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6473.  However,
this report makes no mention whatsoever of the impact upon commerce
of firearms in schools.  Nor does the report even mention the
Gun-Free School Zones Act.  Although S. 2070 has no formal
legislative history that we know of, a House subcommittee hearing
was held on H.R. 3757.  Witnesses told this subcommittee of tragic
instances of gun violence in our schools, but there was no
testimony concerning the effect of such violence upon interstate
commerce.  Indeed, the noticeable absence of any attempt by
Congress to link the Gun-Free School Zones Act to commerce prompted
the Chief of the Firearms Division of the BATF and the BATF's
Deputy Chief Counsel, to testify as follows: "Finally, we would
note that the source of constitutional authority to enact the
legislation is not manifest on the face of the bill.  By contrast,
when Congress first enacted the prohibitions against possession of
firearms by felons, mental incompetents and others, the legislation
contained specific findings relating to the Commerce Clause and
other constitutional bases, and the unlawful acts specifically
included a commerce element."  Gun-Free School Zones Act of 1990: 
Hearings on H.R. 3757 Before the Subcomm. on Crime of the House
Comm. on the Judiciary, 101st Cong., 2d Sess., at 10 (1990)
(statement of Richard Cook and Bradley Buckles) (hereinafter, House
Hearings). *12 Although both the House and Senate sponsors of the
Gun-Free School Zones Act made fairly lengthy floor statements
about it, neither congressman had anything to say about commerce
in their remarks.  See 136 Cong.Rec. S17595 (1990) (statement of
Sen. Kohl);  136 Cong.Rec. S766 (1990) (same);  135 Cong.Rec. E3988
(1989) (inserted statement of Rep. Feighan). 

The failure of section 922(q) to honor the traditional division of
functions between the Federal Government and the States was
commented upon by President Bush when he signed the Crime Control
Act of 1990: "I am also disturbed by provisions in S. 3266 that
unnecessarily constrain the discretion of State and local
governments.  Examples are found in Title VIII's 'rural drug
enforcement' program;  in Title XV's 'drug-free school zones'
program;  and in Title XVIII's program for 'correctional options
incentives.'  Most egregiously, section 1702 inappropriately
overrides legitimate State firearms laws with a new and unnecessary
Federal law.  The policies reflected in these provisions could
legitimately be adopted by the States, but they should not be
imposed on the States by the Congress." Statement by President
George Bush upon Signing S. 3266, 26 Weekly Comp.Pres.Doc. 1944
(Dec. 3, 1990), reprinted in 1990 U.S.C.C.A.N. 6696-1 (emphasis
added). [FN39] 

Commerce Power 

We are, of course, fully cognizant and respectful of the great
scope of the commerce power.  It is generally agreed that in a
series of decisions culminating in Wickard v. Filburn, 317 U.S.
111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), the Supreme Court fixed the
modern definition of the commerce power, returning it to the
breadth of Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23
(1824).  As stated in one treatise: "After Wickard, the tests for
proper exercise of the commerce power were settled.  First,
Congress could set the terms for the interstate transportation of
persons, products, or services, even if this constituted
prohibition or indirect regulation of single state activities. 
Second, Congress could regulate intrastate activities that had a
close and substantial relationship to interstate commerce;  this
relationship could be established by congressional views of the
economic effect of this type of activity.  Third, Congress could
regulate--under a combined commerce clause--necessary and proper
clause analysis--intrastate activities in order to effectuate its
regulation of interstate commerce."  Rotunda & Nowack, Treatise on
Constitutional Law; Substance and Procedure 2nd, s 4.9 at 404-5.


[7] Broad as the commerce power is, its scope is not unlimited,
particularly where intrastate activities are concerned.  As the
Court said in Maryland v. Wirtz, 392 U.S. 183, 196, 88 S.Ct. 2017,
2024, 20 L.Ed.2d 1020 (1968): "This Court has always recognized
that the power to regulate commerce, though broad indeed, has
limits.  Mr. Chief Justice Marshall paused to recognize those
limits in the course of the opinion that first staked out the vast
expanse of federal authority over the economic life of the new
Nation.  Gibbons v. Ogden, 9 Wheat. 1, 194-195, 6 L.Ed. 23." *13
Chief Justice Marshall explained in Gibbons v. Ogden: "The subject
to which power is next applied, is to commerce 'among the several
states.' ...  Comprehensive as the word 'among' is, it may very
properly be restricted to that commerce which concerns more states
than one....  [T]he enumeration of the particular classes of
commerce to which the power was to be extended, would not have been
made had the intention been to extend the power to every
description.  The enumeration presupposes something not enumerated; 
and that something, if we regard the language or the subject of the
sentence, must be the exclusively internal commerce of a state. 
The genius and character of the whole government seem to be, that
its action is to be applied to all the external concerns which
affect the states generally;  but not to those which are completely
within a particular state, which do not affect other states, and
with which it is not necessary to interfere, for the purpose of
executing some of the general powers of the government.  The
completely internal commerce of a state, then, may be considered
as reserved for the state itself."  Id., 9 Wheat. at 194-95, 6
L.Ed. at 69-70. 

Similarly, in Wickard v. Filburn, the Court stated: "But even if
appellee's activity be local and though it may not be regarded as
commerce, it may still, whatever its nature, be reached by Congress
if it exerts a substantial economic effect on interstate commerce
and this irrespective of whether such effect is what might at some
earlier time have been defined as 'direct' or 'indirect.' "  Id.,
317 U.S. at 125, 63 S.Ct. at 89 (emphasis added). 

This passage has been quoted with approval many times.  See, e.g.,
Katzenbach v. McClung, 379 U.S. 294, 302, 85 S.Ct. 377, 383, 13
L.Ed.2d 290 (1964);  Perez v. United States, 402 U.S. 146, 151-52,
91 S.Ct. 1357, 1360, 28 L.Ed.2d 686 (1971).  In United States v.
American Building Maintenance Industries, 422 U.S. 271, 279-80, 95
S.Ct. 2150, 2156, 45 L.Ed.2d 177 (1975), the Court speaks of the
"full Commerce Clause power" as extending to "all activity
substantially affecting interstate commerce" (emphasis added).
Analogously, in United States v. Wrightwood Dairy Co., 315 U.S.
110, 119, 62 S.Ct. 523, 526, 86 L.Ed. 726 (1942), Chief Justice
Stone's opinion for a unanimous Court states that the commerce
power "extends to those intrastate activities which in a
substantial way interfere with or obstruct the exercise of the
granted power" (emphasis added). [FN40]  Justice Harlan, writing
for the Court in Maryland v. Wirtz, made the message explicit: 
"Neither here nor in Wickard [v. Filburn ] has the Court declared
that Congress may use a relatively trivial impact on commerce as
an excuse for broad general regulation of state or private
activities."  Id., 392 U.S. at 196-97 n. 27, 88 S.Ct. at 2024 n.
27.  Indeed, it could not be otherwise as the chain of causation
is virtually infinite, and hence there is no private activity, no
matter how local and insignificant, the ripple effect from which
is not in some theoretical measure ultimately felt beyond the
borders of the state in which it took place.  Hence, if the reach
of the commerce power to local activity that merely affects
interstate commerce or its regulation is not understood as being
limited by some concept such as "substantially" affects, then,
contrary to Gibbons v. Ogden, the scope of the Commerce Clause
would be unlimited, it would extend "to every description" of
commerce and there would be no "exclusively internal commerce of
a state" the existence of which the Commerce Clause itself
"presupposes" and the regulation of which it "reserved for the
state itself." 

*14 [8] We recognize, of course, that the imprecise and matter of
degree nature of concepts such as "substantially," especially as
applied to effect on interstate commerce, generally renders
decision making in this area peculiarly within the province of
Congress, rather than the Courts.  And, the Supreme Court has
consistently deferred to Congressional findings in this respect,
both formal findings in the legislation itself and findings that
can be inferred from committee reports, testimony before Congress,
or statutory terms expressly providing for some nexus to interstate
commerce.  Relatively recent examples of statutes upheld against
Commerce Clause attacks on the basis of formal Congressional
findings include EEOC v. Wyoming, 460 U.S. 226, 231-32 & n. 3, 103
S.Ct. 1054, 1058 & n. 3, 75 L.Ed.2d 18 (1983) (Age Discrimination
in Employment Act);  FERC v. Mississippi, 456 U.S. 742, 755-56, 102
S.Ct. 2126, 2135, 72 L.Ed.2d 532 (1982) (Public Utility Regulatory
Policies Act);  Hodel v. Virginia Surface Mining, 452 U.S. 264,
277-79, 101 S.Ct. 2352, 2361, 69 L.Ed.2d 1 (1981) (Surface Mining
Control and Reclamation Act);  Perez, 402 U.S. at 147-48 n. 1, 156,
91 S.Ct. at 1358 n. 1, 1362 (Consumer Credit Protection Act).
[FN41]  In other cases, the Court has looked to the legislative
history and the terms of the challenged statute itself to identify
and sustain findings of a sufficient effect on interstate commerce. 
For example, in McClung the Court upheld section 201(b)(2) and (c)
of Title II of the Civil Rights Act of 1964, the terms of which
covered any restaurants "if their operations affect commerce" and
presumed that any did " 'if ... it serves or offers to serve
interstate travelers or a substantial portion of the food which it
serves ... has moved in commerce.' "  Id. 379 U.S. at 298, 85 S.Ct.
at 381.  In so ruling, despite the absence of "formal findings,"
the Court relied on the wording of the statute itself, which
amounted to an express finding of the requisite effect on commerce
under certain facts, and on the legislative history showing the
extensive evidence before Congress implicating interstate commerce. 
Thus the Court noted that "The record is replete with testimony of
the burdens placed on interstate commerce by racial discrimination
in restaurants....  Moreover, there was an impressive array of
testimony that discrimination in restaurants had a direct and
highly restrictive effect upon interstate travel by Negroes."  Id.
379 U.S. at 299, 85 S.Ct. at 381. "We believe that this testimony
afforded ample basis for the conclusion that established
restaurants in such areas sold less interstate goods because of the
discrimination, that interstate travel was obstructed directly by
it, that business in general suffered and that many new businesses
refrained from establishing there as a result of it."  Id. 379 U.S.
at 300, 85 S.Ct. at 382. "... Congress has determined for itself
that refusals of service to Negroes have imposed burdens both upon
the interstate flow of food and upon the movement of products
generally."  Id. 379 U.S. at 303, 85 S.Ct. at 383. In sustaining
the statute the Court concluded by stating: *15 "The appellees urge
that Congress, in passing the Fair Labor Standards Act and the
National Labor Relations Act, made specific findings which were
embodied in those statutes.  Here, of course, Congress has included
no formal findings.  But their absence is not fatal to the validity
of the statute, [citation omitted] for the evidence presented at
the hearings fully indicated the nature and effect of the burdens
on commerce which Congress meant to alleviate. "Confronted as we
are with the facts laid before Congress, we must conclude that it
had a rational basis for finding that racial discrimination in
restaurants had a direct and adverse effect on the free flow of
interstate commerce.  Insofar as the sections of the Act here
relevant are concerned, ss 201(b)(2) and (c), Congress prohibited
discrimination only in those establishments having a close tie to
interstate commerce, i.e., those, like the McClungs', serving food
that has come from out of the State.  We think in so doing that
Congress acted well within its power to protect and foster commerce
in extending the coverage of Title II only to those restaurants
offering to serve interstate travelers or serving food, a
substantial portion of which has moved in interstate commerce." 
Id. 379 U.S. at 304, 85 S.Ct. at 384 (footnote omitted). [FN42] 

[9][10] Where Congress has made findings, formal or informal, that
regulated activity substantially affects interstate commerce, the
courts must defer "if there is any rational basis for" the finding. 
Preseault v. I.C.C., 494 U.S. 1, 17, 110 S.Ct. 914, 924, 108
L.Ed.2d 1 (1990);  Hodel v. Virginia Surface Mining and Reclamation
Association, Inc., 452 U.S. 264, 276, 101 S.Ct. 2352, 2360, 69
L.Ed.2d 1 (1981);  Heart of Atlanta Motel, Inc. v. United States,
379 U.S. 241, 258, 85 S.Ct. 348, 358, 13 L.Ed.2d 258 (1964); 
McClung, 379 U.S. at 304, 85 S.Ct. at 383.  Practically speaking,
such findings almost always end the matter. [FN43]  This means that
the states, and the people, must largely look to their
representatives in Congress to fairly and consciously fix, rather
than to simply disregard, the Constitution's boundary line between
"the completely internal commerce of a state ... reserved for the
state itself" and the power to regulate "Commerce with foreign
Nations, and among the several States."  Courts cannot properly
perform their duty to determine if there is any rational basis for
a Congressional finding if neither the legislative history nor the
statute itself reveals any such relevant finding. [FN44]  And, in
such a situation there is nothing to indicate that Congress itself
consciously fixed, as opposed to simply disregarded, the boundary
line between the commerce power and the reserved power of the
states.  Indeed, as in this case, there is no substantial
indication that the commerce power was even invoked. [FN45] 

[11][12] Congressional enactments are, of course, presumed
constitutional. But in certain areas the presumption has less
force.  Cf. United States v. Carolene Products Co., 304 U.S. 144,
152-53 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234 (1938) ("There
may be a narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within
a specific prohibition of the Constitution, such as those of the
first ten Amendments....").  Here the question is essentially a
jurisdictional one, and any expansion of federal power is at the
expense of the powers reserved to the states by the Tenth
Amendment, which is, after all, as much a part of the Bill of
Rights as the First. [FN46]  Both the management of education, and
the general control of simple firearms possession by ordinary
citizens, have traditionally been a state responsibility, and
section 922(q) indisputably represents a singular incursion by the
Federal Government into territory long occupied by the States.  In
such a situation where we are faced with competing constitutional
concerns, the importance of Congressional findings is surely
enhanced. [FN47] 

*16 We draw support for our conclusion concerning the importance
of Congressional findings from recent holdings that when Congress
wishes to stretch its commerce power so far as to intrude upon
state prerogatives, it must express its intent to do so in a
perfectly clear fashion.  In Pennsylvania v. Union Gas, 491 U.S.
1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989) (plurality opinion), the
Court held that Congress could use its commerce power to abrogate
the sovereign immunity guaranteed to the States by the Eleventh
Amendment only if its intent to do so is "unmistakably clear."  Id.
491 U.S. at 7, 109 S.Ct. at 2277 (quoting Atascadero State Hospital
v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171
(1985)).  In another case decided the same day, the Court explained
that this rule exists because "abrogation of sovereign immunity
upsets the fundamental constitutional balance between the Federal
Government and the States, placing a considerable strain on the
principles of federalism that inform Eleventh Amendment doctrine." 
Dellmuth v. Muth, 491 U.S. 223, 227, 109 S.Ct. 2397, 2400, 105
L.Ed.2d 181 (1989) (citations and internal quotation marks
omitted).  Two years later, in Gregory v. Ashcroft, the Court held
that the Age Discrimination in Employment Act (ADEA) did not sweep
away the Missouri Constitution's provision for the mandatory
retirement of state judges at age seventy.  Arguing that a State's
power to set the qualifications for its judiciary "is a decision
of the most fundamental sort for a sovereign entity," --- U.S. at
----, 111 S.Ct. at 2400, the Court held that the ADEA did not
bespeak a sufficiently clear intent to annul this state
prerogative: "Congressional interference with this decision of the
people of Missouri, defining their constitutional officers, would
upset the usual constitutional balance of federal and state powers. 
For this reason, 'it is incumbent upon the federal courts to be
certain of Congress' intent before finding that federal law
overrides' this balance."  Id. --- U.S. at ----, 111 S.Ct. at 2401
(quoting Atascadero, 473 U.S. at 243, 105 S.Ct. at 3147). [FN48]
We recognize that the rule being applied in those cases is one of
statutory construction.  Nevertheless, Gregory, Union Gas, and Bass
establish that Congress' power to use the Commerce Clause in such
a way as to impair a State's sovereign status, and its intent to
do so, are related inquiries. Thus, in Gregory, Congress' power to
trump the Missouri Constitution was unquestioned but its intent to
do so was unclear;  hence the Court held that the State's Tenth
Amendment interests would prevail.  Here, Congress surely intended
to make the possession of a firearm near a school a federal crime,
but it has not taken the steps necessary to demonstrate that such
an exercise of power is within the scope of the Commerce Clause.


In 1985, the Supreme Court held that the Tenth Amendment imposes
no internal limitation upon the Commerce Clause;  as long as
Congress acts within the commerce power it cannot violate the Tenth
Amendment.  See Garcia v. San Antonio Metro. Trans. Auth., 469 U.S.
528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) (overruling National
League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d
245 (1976)).  The Garcia Court sought to assuage the fears of four
dissenting Justices by arguing that, as a body of state
representatives, Congress would respect the sovereignty of the
several States and could be trusted to police the constitutional
boundary between the Tenth Amendment and the Commerce Clause.  See
Garcia, 469 U.S. at 549-55, 105 S.Ct. at 1017-19.  By expecting
Congress to build a more sturdy foundation for the exercise of its
commerce power than it has done in this case, we hope to *17
"further[ ] the spirit of Garcia by requiring that decisions
restricting state sovereignty be made in a deliberate manner by
Congress, through the explicit exercise of its lawmaking power to
that end....  [T]o give the state-displacing weight of federal law
to mere congressional ambiguity would evade the very procedure for
lawmaking on which Garcia relied to protect states' interests." 
L. Tribe, American Constitutional Law s 6-25, at 480 (2d ed. 1988)
(footnote omitted). 

[13][14][15][16] The Gun Free School Zones Act extends to
criminalize any person's carrying of any unloaded shotgun, in an
unlocked pickup truck gun rack, while driving on a county road that
at one turn happens to come within 950 feet of the boundary of the
grounds of a one-room church kindergarten located on the other side
of a river, even during the summer when the kindergarten is not in
session.  Neither the act itself nor its legislative history
reflect any Congressional determination that the possession
denounced by section 922(q) is in any way related to interstate
commerce or its regulation, or, indeed, that Congress was
exercising its powers under the Commerce Clause.  Nor do any prior
federal enactments or Congressional findings speak to the subject
matter of section 922(q) or its relationship to interstate
commerce.  Indeed, section 922(q) plows thoroughly new ground and
represents a sharp break with the long-standing pattern of federal
firearms legislation. [FN49] 

The district court sustained section 922(q) on the basis that the
" 'business' of elementary, middle and high schools ... affects
interstate commerce." However, as noted, there is no finding,
legislative history, or evidence to support section 922(q) on this
basis.  The management of education, of course, has traditionally
been a state charge, as Congress has expressly recognized. See 20
U.S.C. s 3401(4) ("The Congress finds that ... in our Federal
system, the primary public responsibility for education is reserved
respectively to the States and the local school systems and other
instrumentalities of the States."). [FN50]  We are unwilling to
ourselves simply assume that the concededly intrastate conduct of
mere possession by any person of any firearm substantially affects
interstate commerce, or the regulation thereof, whenever it occurs,
or even most of the time that it occurs, within 1000 feet of the
grounds of any school, whether or not then in session.  If Congress
can thus bar firearms possession because of such a nexus to the
grounds of any public or private school, and can do so without
supportive findings or legislative history, on the theory that
education affects commerce, then it could also similarly ban lead
pencils, "sneakers," Game Boys, or slide rules. 

The government seeks to rely on the rule that "[w]here the class
of activities is regulated and that class is within the reach of
the federal power, the courts have no power 'to excise, as trivial,
individual instances' of the class."  Perez, 379 U.S. at 154, 91
S.Ct. at 1361 (quoting Maryland v. Wirtz, 392 U.S. 183, 193, 88
S.Ct. 2017, 2022, 20 L.Ed.2d 1020 (1968)).  This theory has
generally been applied to the regulation of a class of activities
the individual instances of which have an interactive effect,
usually because of market or competitive forces, on each other and
on interstate commerce.  A given local transaction in credit, or
use of wheat, because of national market forces, has an effect on
the cost of credit or price of wheat nationwide.  Some such
limiting principle must apply to the "class of activities" rule,
else the reach of the Commerce Clause would be unlimited, for
virtually all legislation is "class based" in some sense of the
term.  We see no basis for assuming, particularly in the absence
of supporting Congressional findings or legislative history, that,
for example, ordinary citizen possession of a shotgun during July
900 feet from the grounds of an out-of-session private first grade
in rural Llano County, Texas, has any effect on education even in
relatively nearby Austin, much less in Houston or New Orleans.  Nor
can we assume that elementary education in Houston substantially
affects elementary education in Atlanta.  As noted, any such
holding would open virtually all aspects of education, public and
private, elementary and other, to the reach of the Commerce Clause.
[FN51] 

*18 [17][18][19] We hold that section 922(q), in the full reach of
its terms, is invalid as beyond the power of Congress under the
Commerce Clause. [FN52]  Whether with adequate Congressional
findings or legislative history, national legislation of similar
scope could be sustained, we leave for another day.  Here we merely
hold that Congress has not done what is necessary to locate section
922(q) within the Commerce Clause.  And, we expressly do not
resolve the question whether section 922(q) can ever be
constitutionally applied.  Conceivably, a conviction under section
922(q) might be sustained if the government alleged and proved that
the offense had a nexus to commerce. [FN53]  Here, in fact, the
parties stipulated that a BATF agent was prepared to testify that
Lopez's gun had been manufactured outside of the State of Texas.
Lopez's conviction must still be reversed, however, because his
indictment did not allege any connection to interstate commerce. 
An indictment that fails to allege a commerce nexus, where such a
nexus is a necessary element of the offense, is defective.  See
Stirone v. United States, 361 U.S. 212, 216-18, 80 S.Ct. 270, 273,
4 L.Ed.2d 252 (1960) (Hobbs Act);  United States v. Hooker, 841
F.2d 1225, 1227-32 (4th Cir.1988) (en banc) (RICO);  United States
v. Moore, 185 F.2d 92, 94 (5th Cir.1950) (FLSA).  This is true even
though the language of section 922(q) contains no such requirement. 
See Russell v. United States, 369 U.S. 749, 763-66, 82 S.Ct. 1038,
1047-48, 8 L.Ed.2d 240 (1962);  2 W. LaFave & J. Israel, Criminal
Procedure s 19.2, at 452 (1984).  Finally, because an indictment,
unlike a bill of information, cannot be amended, the failure to
allege each element is fatal.  Cf. United States v. Garrett, 984
F.2d 1402, 1415 (5th Cir.1993);  United States v. Mize, 756 F.2d
353, 355-56 (5th Cir.1985). 

For the reasons stated, the judgment of conviction is reversed and
the cause is remanded with directions to dismiss the indictment.
[FN54] 

REVERSED. 

FN1. Initially, state charges were filed against Lopez but those
charges were dropped due to the federal prosecution.  What Lopez
did has been a felony under Texas law since at least 1974.  See
Tex.Penal Code s 46.04(a) (whoever "with a firearm ... goes ... on
the premises of a school or an educational institution, whether
public or private ...");  s 46.04(c) (third degree felony). 

FN2. Section 922(q) became law November 29, 1990, as section 1702
of the Crime Control Act of 1990, P.L. 101-647, 101st Cong.2d
Sess., 104 Stat. 4789, 4844-45.  Its effective date was sixty days
later.  P.L. 101-647, s 1702(b)(4). 

FN3. The Act defines a school zone as follows:  "(A) in, or on the
grounds of, a public, parochial or private school;  or (B) within
a distance of 1,000 feet from the grounds of a public, parochial
or private school." 18 U.S.C. s 921(a)(25).  "School" is defined
as "a school which provides elementary or secondary education under
State law."  Section 921(a)(26). Lopez stipulated that Edison High
School was and is a school zone. 

FN4. Section 922(q)(1)(B) provides: "(B) Subparagraph (A) shall not
apply to the possession of a firearm-- (i) on private property not
part of school grounds; (ii) if the individual possessing the
firearm is licensed to do so by the State in which the school zone
is located or a political subdivision of the State, and the law of
the State or political subdivision requires that, before an
individual obtain such a license, the law enforcement authorities
of the State or political subdivision verify that the individual
is qualified under law to receive the license; (iii) which is-- (I)
not loaded;  and (II) in a locked container, or a locked firearms
rack which is on a motor vehicle; (iv) by an individual for use in
a program approved by a school in the school zone; (v) by an
individual in accordance with a contract entered into between a
school in the school zone and the individual or an employer of the
individual; (vi) by a law enforcement officer acting in his or her
official capacity; or (vii) that is unloaded and is possessed by
an individual while traversing school premises for the purpose of
gaining access to public or private lands open to hunting, if the
entry on school premises is authorized by school authorities."
Thus, section 922(q)(1), together with section 921(a)(25) & (26)
(note 3, supra ), makes it a federal offense to carry an unloaded
firearm in an unlocked suitcase on a public sidewalk in front of
one's residence, so long as that part of the sidewalk is within one
thousand feet--two or three city blocks--of the boundary of the
grounds of any public or private school anywhere in the United
States, regardless of whether it is during the school year or the
school is in session.  In Texas, at least, a tiny church
kindergarten would be included.  See United States v. Echevaria,
995 F.2d 562, 563 & n. 5 (5th Cir.1993);  Tex.Ed.Code Ann. s 21.797
(Vernon Supp.1993). 

FN5. "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people."  U.S. Const., Amend.
X. 

FN6. "The Congress shall have Power ... To regulate Commerce with
foreign Nations, and among the several States, and with the Indian
Tribes."  U.S. Const., Art. I, s 8, cl. 3. 

FN7. "Congress hereby finds and declares that the receipt,
possession, or transportation of a firearm by felons ...
constitutes--(1) a burden on commerce or threat affecting the free
flow of commerce."  18 U.S.C. s 1201.  See Bass, 404 U.S. at 345-46
n. 14, 92 S.Ct. at 521 n. 14. 

FN8. See also Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498,
46 L.Ed.2d 450 (1976) (same under 18 U.S.C. s 922(h) as to felon's
receipt of firearm previously transported in interstate commerce).


FN9. It does not seem surprising that those who choose to hold a
federal license, or to deal with federal licensees, may be required
in reference to the activities licensed to conform to federal
requirements.  See, e.g., Westfall v. United States, 274 U.S. 256,
47 S.Ct. 629, 71 L.Ed. 1036 (1957) (defrauding a state bank that
is voluntarily a member of the Federal Reserve System may be made
a federal offense because of that membership); United States v.
Dunham, 995 F.2d 45 (5th Cir.1993) (robbery of federally insured
state bank);  United States v. Hand, 497 F.2d 929, 934-5 (5th
Cir.1974), adhered to en banc, 516 F.2d 472, 477 (5th Cir.1975),
cert. denied, 424 U.S. 953, 96 S.Ct. 1427, 47 L.Ed.2d 359 (1976)
(status as federally chartered institution supports federal
jurisdiction);  United States v. Fitzpatrick, 581 F.2d 1221, 1223
(5th Cir.1978) (federal chartering or federal insurance may each
support federal jurisdiction).  See also United States v. Mize, 756
F.2d 353 (5th Cir.1985). 

FN10. We lay to one side, as irrelevant to our inquiry, diverse
federal legislation enhancing the penalty for use or possession of
a firearm in the commission of some other federal offense.  The
jurisdictional basis of such legislation is obviously that
applicable to the underlying federal offense, and the legislation
is properly seen as a regulation of the latter.  The same reasoning
applies even where, as in the case of 18 U.S.C. s 924(c), the
firearms provision is treated as a separate offense (rather than
a mere sentence enhancement), as its jurisdictional basis is still
that of the other federal offense.  See, e.g., United States v.
Owens, 996 F.2d 59, 61 (5th Cir.1993);  United States v. Young, 936
F.2d 1050, 1054-55 (9th Cir.1991);  United States v. Dumas, 934
F.2d 1387, 1390 (6th Cir.1990), cert. denied, --- U.S. ----, 112
S.Ct. 641, 116 L.Ed.2d 658 (1991); United States v. McDougherty,
920 F.2d 569, 572 (9th Cir.1990), cert. denied, --- U.S. ----, 111
S.Ct. 1119, 113 L.Ed.2d 277 (1991); United States v. Thornton, 901
F.2d 738, 741 (9th Cir.1990).  Section 922(q), with which we are
here concerned, is not tied or related to any other federal
offense.  Also put to one side is legislation dealing solely with
specific matters such as national defense, foreign relations,
foreign commerce, federal facilities, and use of the mails, none
of which are related to section 922(q). 

FN11. See also former 26 U.S.C. s 1132(a);  United States v.
Miller, 307 U.S. 174, 175-77 n. 1, 59 S.Ct. 816, 816 n. 1, 83 L.Ed.
1206 (1939); Haynes v. United States, 390 U.S. 85, 87-88, 88 S.Ct.
722, 725, 19 L.Ed.2d 923 (1968);  United States v. Anderson, 885
F.2d 1248, 1250 (5th Cir.1989). 

FN12. One might speculate that the 1968 repeal of the Federal
Firearms Act and the concomitant incorporation of its
proscriptions, as then broadened, into the newly enacted chapter
44 of Title 18, as discussed in detail in the text infra, were
prompted by the Supreme Court's 1968 decision in Haynes, which
partially invalidated the National Firearms Act on Fifth Amendment,
self-incrimination grounds.  However, the congressional committee
reports on the 1968 legislation do not reflect such a connection,
except in respect to Title II of the Gun Control Act of 1968, which
amended the National Firearms Act itself to meet the concerns of
Haynes.  P.L. 90-618, s 201, 90th Cong., 2d Sess. (1968);  H.R.
Conf.Rep. No. 1956, 90 Cong., 2d Sess., reprinted in 1968
U.S.C.C.A.N. 4410, 4426, 4434-35.  In 1971 in Freed the Supreme
Court sustained the thus amended National Firearms Act, holding
that the Haynes problems had been cured. 

FN13. Fugitive from justice was defined to mean one who had fled
any state to avoid felony prosecution or testifying in a criminal
proceeding.  Id. s 901(6). 

FN14. An analogous presumption applied to possession of a firearm
with an altered or removed serial number.  Id. s 902(i). 

FN15. The presumption considered in Tot was dropped, as was the
analogous presumption concerning altered serial numbers (see note
14, supra ). 

FN16. See also id. at 2206 (discussing new section 923(a) "The
licensing requirements of the present Federal Firearms Act, 15
U.S.C. s 903(a), are based upon dealers and manufacturers (includes
importers) shipping or receiving firearms in interstate or foreign
commerce.  Here, the requirement is on engaging in business and
would also include one engaging in such a business in intrastate
commerce"). 

FN17. Other findings in section 901 of P.L. 90-351 include the
following from section 901(a): "(2) that the ease with which any
person can acquire firearms other than a rifle or shotgun
(including criminals, juveniles without the knowledge or consent
of their parents or guardians, narcotics addicts, mental
defectives, armed groups who would supplant the functions of duly
constituted public authorities, and others whose possession of such
weapons is similarly contrary to the public interest) is a
significant factor in the prevalence of lawlessness and violent
crime in the United States; 

* * * 

(4) that the acquisition on a mail-order basis of firearms other
than a rifle or shotgun by nonlicensed individuals, from a place
other than their State of residence, has materially tended to
thwart the effectiveness of State laws and regulations, and local
ordinances; (5) that the sale or other disposition of concealable
weapons by importers, manufacturers, and dealers holding Federal
licenses, to nonresidents of the State in which the licensees'
places of business are located, has tended to make ineffective the
laws, regulations, and ordinances in the several States and local
jurisdictions regarding such firearms; (6) that there is a causal
relationship between the easy availability of firearms other than
a rifle or shotgun and juvenile and youthful criminal behavior, and
that such firearms have been widely sold by federally licensed
importers and dealers to emotionally immature, or thrill-bent
juveniles and minors prone to criminal behavior; 

* * * 

(8) that the lack of adequate federal control over interstate and
foreign commerce in highly destructive weapons (such as bazookas,
mortars, antitank guns, and so forth, and destructive devices such
as explosive or incendiary grenades, bombs, missiles, and so forth)
has allowed such weapons and devices to fall into the hands of
lawless persons, including armed groups who would supplant lawful
authority, thus creating a problem of national concern;  ...."
Findings in section 901(b) are as follows: "(b) The Congress
further hereby declares that the purpose of this title is to cope
with the conditions referred to in the foregoing subsection, and
that it is not the purpose of this title to place any undue or
unnecessary Federal restrictions or burdens on law-abiding citizens
with respect to the acquisition, possession, or use of firearms
appropriate to the purpose of hunting, trap shooting, target
shooting, personal protection, or any other lawful activity, and
that this title is not intended to discourage or eliminate the
private ownership or use of firearms by law-abiding citizens for
lawful purposes, or provide for the imposition by Federal
regulations of any procedures or requirements other than those
reasonably necessary to implement and effectuate the provisions of
this title." 

FN18. Nelson upheld a conviction under 18 U.S.C. s 922(a)(6)
proscribing false statements to a licensed dealer in acquiring a
firearm from the dealer if "material to the lawfulness of the sale"
under chapter 44;  the false statement was that the defendant had
not been convicted of a felony, which was "material to the
lawfulness of the sale" in that 18 U.S.C. s 922(d)(1) made it
unlawful for a licensed dealer to sell a firearm to a felon,
regardless of whether the particular sale had a nexus to interstate
commerce.  Id. at 557-58. 

FN19. The Federal Firearms Act provisions against felons (or
indictees or fugitives) shipping or transporting firearms in
interstate commerce, 15 U.S.C. s 902(e), against felons (or
fugitives) receiving any firearm "which has been shipped in
interstate commerce," id. s 902(f), and against any person shipping
or transporting stolen firearms in interstate commerce or shipping,
transporting, or receiving in interstate commerce firearms with
altered or obliterated serial numbers, id. ss 902(g) & (i), were
carried forward without alteration of the interstate nexus, though
with slight other alterations, into respectively 18 U.S.C. s
922(e), 922(f) (persons under felony indictment added;  presumption
removed);  922(g) and 922(i) (presumption removed).  The character
of ammunition covered was restricted to that used in destructive
devices, such as rockets, bombs, or the like.  18 U.S.C. s
921(a)(4), (16).  The provision of the Federal Firearms Act against
licensed dealers or manufacturers shipping or transporting in
interstate commerce to other than licensed dealers or manufacturers
where the recipient was required to but did not have a local
license, 15 U.S.C. s 902(c), was retained but altered in 18 U.S.C.
s 922(a)(2) so that it did not apply to rifles or shotguns but did
prohibit almost all interstate shipments by licensed dealers or
manufacturers to those who were not licensed dealers or
manufacturers. 

FN20. Added Title 18 provisions with an express interstate commerce
nexus include:  section 922(a)(3) proscribing transportation or
receipt by any non-licensee into or within his state of residence
of any firearm "obtained by him outside that State" (except for a
shotgun or rifle that he could lawfully possess in his state of
residence);  section 922(a)(4) forbidding any unlicensed person to
"transport in interstate or foreign commerce" any "destructive
device" (such as a bomb, missile, or rocket, section 921(a)(4)),
machine gun, or "sawed off" shotgun or rifle;  section 922(a)(5)
forbidding transfer or delivery by a person resident in one state
to a person (other than a licensed dealer or manufacturer) resident
in a different state of any firearm (other than a rifle or shotgun
proper under the laws of the latter state);  section 924(b)
denouncing whoever "ships, transports, or receives a firearm in
interstate or foreign commerce" with intent to commit therewith a
felony or knowing or with cause to believe a felony is to be
committed therewith. Added Title 18 provisions with an express
nexus to federally licensed dealers or manufacturers include: 
section 922(b) proscribing firearms transfers by licensed dealers
or manufacturers to minors (except for shotguns or rifles) (1), or
where local law in the state of transfer forbids possession by the
transferee (2), or where the transferee resides in another state
(except for shotguns or rifles) (3), or of "destructive devices"
(bombs, missiles, etc.) or machine guns or "sawed-off" shotguns or
rifles (4), in all cases except for transfers to other licensed
dealers or manufacturers;  section 922(a)(6) forbidding false
statements to licensed dealers in acquisition of firearms that are
material to the lawfulness under chapter 44 of the acquisition; 
and section 922(c) forbidding transfer by a licensed dealer or
manufacturer to a felon, fugitive from justice, or one under felony
indictment. 

FN21. Title II of P.L. 90-618 amended the National Firearms Act at
least in part to eliminate the Fifth Amendment self-incrimination
problems that the Supreme Court had found in Haynes.  See note 12,
supra. 

FN22. As enacted by Title IV of P.L. 90-351, section 922(c)
prohibited a licensee from selling or disposing of a firearm to a
felon, fugitive, or indictee, section 922(e) prohibited any such
individual (felon, etc.) from shipping or transporting a firearm
in interstate or foreign commerce and section 922(f) denounced any
such individual (felon, etc.) who received any firearm that had
been shipped or transported in interstate commerce.  Title I of
P.L. 90-618 shifted these sections to, respectively, section
922(d), (g), and (h), and added to the disqualified individuals
adjudicated mental defectives and unlawful users or addicts of
various federally controlled drugs.  No change was made in the
provisions for nexus to interstate or foreign commerce or to a
federal licensee. 

FN23. As enacted by P.L. 90-351, section 922(a)(3) prohibited
transport or receipt by a non-licensee into or within his state of
residence of any firearm (except for a shotgun or rifle he could
lawfully possess in his state of residence) "obtained by him
outside that state."  P.L. 90-618 revised section 922(a)(3) to
narrow the shotgun or rifle exception and to add an exception for
firearms acquired by testate or intestate succession. As enacted
by P.L. 90-351, section 922(a)(5) prohibited non-licensees from
transferring any firearm (other than a rifle or shotgun) to a
non-licensee resident "in any State other than that in which the
transferor resides." P.L. 90-618 revised section 922(a)(5) to
eliminate the shotgun or rifle exception and to add exceptions for
transfers by testate or intestate succession and for temporary
loans "for lawful sporting purposes."  In both section 922(a)(3)
and section 922(a)(5) the revisions of P.L. 90-618 retained the
jurisdictional basis of the prior sections, namely out-of- state
acquisition or disposition to a resident of a different state. 

FN24. An exception to this was the addition by P.L. 90-618 of a new
section 924(c) (and the concomitant renumbering of the former
section 924(c)) enacted by P.L. 90-351 as section 924(d)) providing
that any person who used a firearm to commit (or unlawfully carried
a firearm during the commission of) "any felony which may be
prosecuted in a court of the United States" "shall be sentenced to"
one to ten years' imprisonment.  While this did not rely for
jurisdictional purposes on either interstate commerce or the
involvement of a federally licensed party, it was obviously based
on the same federal jurisdictional footing as that on which the
underlying felony rested.  See note 10, supra. 

FN25. As observed in Note 24, supra, there was in section 924(c)
(using or carrying a firearm in a federal felony) the separate
jurisdictional basis of the underlying federal offense.  In 1984,
section 924(c) was amended to make the penalty additional to that
for the underlying federal offense, to eliminate the element of
"unlawfully" from the carrying branch of the offense, and to
describe the underlying federal offense as "any crime of violence"
(instead of "any felony") "for which he may be prosecuted in a
court of the United States."  P.L. 98-473, s 1005, 98th Cong., 2d
Sess., 98 Stat. 1837, 2138-39.  At the same time 18 U.S.C. s 929(a)
was enacted providing enhanced punishment for whoever uses or
carries a "handgun" loaded with "armor piercing ammunition" during
or in relation to "the commission of a crime of violence ... for
which he may be prosecuted in a court of the United States."  P.L.
98-473, s 1006, 98 Stat. 2139. In 1986, in the Firearms Owners'
Protection Act, P.L. 99-308, ss 104(a)(2) & 108, 99th Cong., 2d
Sess., 100 Stat. 449, 456-57, 460, ss 924(c) and 929(a) were
amended to add to "crime of violence" any "drug trafficking crime"
as occasions on which use of a firearm was prohibited;
nevertheless, the offense still had to be one (as it does today)
"for which he may be prosecuted in a court of the United States"
(s 924(c)(1);  s 929(a)(1)).  Also, "drug trafficking crime" was
(and is) defined so as to limit it to federal felonies (s
924(c)(2);  s 929(a)(2));  and "crime of violence" was (and is)
defined, but its definition did not itself require a federal
element (s 924(c)(3)). Later in 1986, in P.L. 99-408, s 8, 99th
Cong., 2d Sess., 100 Stat. 920, 921, the "handgun" reference in
section 929(a) was changed to "firearm," but the jurisdictional
basis ("for which he may be prosecuted in a court of the United
States") of section 929(a) was not altered. 

FN26. This portion of the BATF assessment reads in full: "2. Sales
to Prohibited Persons.  This bill makes it unlawful for any person,
not only licensees, to sell or otherwise dispose of firearms to
certain prohibited categories of persons, e.g., a convicted felon. 
Under existing law it is only unlawful for a licensee to sell or
otherwise dispose of firearms knowing or having reasonable cause
to believe that such a person is in a prohibited category.  This
proposal would close an existing loophole whereby qualified
purchasers have acquired firearms from licensees on behalf of
prohibited persons."  Id. This amendment to section 922(d) also
added to the list of disqualified persons illegal aliens and those
who had been dishonorably discharged or had renounced United States
citizenship. 

FN27. The full text of P.L. 99-308 s 1, 100 Stat. 449, is as
follows: "(a) SHORT TITLE.--This Act may be cited as the 'Firearms
Owners' Protection Act'. (b) CONGRESSIONAL FINDINGS.--The Congress
finds that-- (1) the rights of citizens-- (A) to keep and bear arms
under the second amendment to the United States Constitution; (B)
to security against illegal and unreasonable searches and seizures
under the fourth amendment; (C) against uncompensated taking of
property, double jeopardy, and assurance of due process of law
under the fifth amendment;  and (D) against unconstitutional
exercise of authority under the ninth and tenth amendments; require
additional legislation to correct existing firearms statutes and
enforcement policies;  and (2) additional legislation is required
to reaffirm the intent of the Congress, as expressed in section 101
of the Gun Control Act of 1968, that 'it is not the purpose of this
title to place any undue or unnecessary Federal restrictions or
burdens on law-abiding citizens with respect to the acquisition,
possession, or use of firearms appropriate to the purpose of
hunting, trap-shooting, target shooting, personal protection, or
any other lawful activity, and that this title is not intended to
discourage or eliminate the private ownership or use of firearms
by law-abiding citizens for lawful purposes'." 

FN28. As previously observed, these amendments repealed former 18
U.S.C. s 1202 and incorporated the provisions of former section
1202 into sections 922(g) and (n).  Prior to the amendment,
sections 922(g) and (h) had not applied to possession as such, but
had included those under felony indictment, while section 1202(a)
included possession "in commerce or affecting commerce" but did not
include those under felony indictment. 

FN29. The grandfather clause in section 922(o )(2)(B) applies only
to machine guns "lawfully" possessed before enactment; 
nevertheless, with respect to those possessed earlier but
unlawfully there would be a jurisdictional nexus in the federal law
making that earlier possession unlawful, such as the National
Firearms Act or various provisions of chapter 44 of Title 18. 

FN30. Farmer did not address the validity of section 922(o ). 

FN31. Hale also states:  "When it first enacted section 922,
Congress found facts indicating a nexus between the regulation of
firearms and the commerce power.  See Omnibus Crime Control and
Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 225
(1968)."  Id. 978 F.2d at 1018. The citation given is to the
findings in section 901(a) of P.L. 90-351, in connection with Title
IV thereof.  As previously discussed, those findings (set out in
note 17 and accompanying text, supra ), and that enactment, with
one exception, do no more than speak to the need to regulate both
interstate (and foreign) commerce in firearms and federally
licensed dealers;  the one exception is the finding that for this
purpose it is necessary to require intrastate, as well as
interstate, dealers to be federally licensed.  There is nothing to
suggest any finding that mere private party intrastate possession
of firearms that have not moved in interstate commerce has any
effect on interstate commerce or must be regulated in order to
effectively regulate interstate commerce. In Evans the court
stated: "Congress specifically found that at least 750,000 people
had been killed in the United States by firearms between the turn
of the century and the time of the Act's enactment.  It was thus
reasonable for Congress to conclude that the possession of firearms
affects the national economy, if only through the insurance
industry.  Since Evans does not contend that any specific
Constitutional rights are implicated, this rather tenuous nexus
between the activity regulated and interstate commerce is
sufficient." Id. 928 F.2d at 862. The Congressional finding alluded
to is not contained in the Firearms Owners' Protection Act, and the
only similar finding we can locate is that contained in H.Rep. No.
1577 in reference to H.R. 17735, which became the Gun Control Act
of 1968.  See H.Rep. No. 1577, 90th Cong., 2d Sess., reprinted in
1968 U.S.C.C.A.N. 4410 at 4411-15.  We have quoted this language
in the text, supra, in our discussion of that legislation. Nothing
in this committee report mentions insurance or suggests that mere
intrastate possession of firearms that have not moved in interstate
commerce has any affect on interstate commerce or must be regulated
in order to effectively regulate interstate commerce.  The
committee states that "the proposed legislation imposes much needed
restrictions on interstate firearms traffic," id. at 4415 (emphasis
added), and that there is "a need to strengthen Federal regulation
of interstate firearms traffic."  Id. at 4412 (emphasis added). 
This is consistent with what the legislation did, and it did not
(apart from continuing the requirement of the Omnibus Crime Control
and Safe Streets Act that intrastate, as well as interstate,
dealers be federally licensed) purport to regulate mere private
party possession of firearms that had not moved in interstate
commerce. We thus disagree with the general statements in Hale and
Evans respecting the Omnibus Crime Control and Safe Streets Act of
1968 and the Gun Control Act of 1968. 

FN32. Moreover, section 922(p) applies only to nondetectable
firearms manufactured in or imported into the United States after
its November 10, 1988, enactment, which is suggestive of a closer
relation to commerce than mere possession of any firearm whenever
and wherever made.  Section 922(p)(6).  The cited committee report
also observes that "No firearms currently manufactured in the
United States are known to be subject to the proposed
prohibitions."  Id. 1988 U.S.C.C.A.N. 5359 at 5363. 

FN33. P.L. 100-690, s 6212, 102 Stat. 4360. 

FN34. The 1988 U.S.C.C.A.N. states respecting the Anti-Drug Abuse
Act of 1988 that "No Senate or House Report was submitted with this
legislation." Id. at 5937.  New section 924(g) was applied in a
"crime of violence" context in United States v. Callaway, 938 F.2d
907 (8th Cir.1991), which observes that it "was designed to curb
the supply of firearms used in the commission of drug related and
violent crimes," but cites no legislative history.  Id. at 909. 
Callaway does not address the validity of section 924(g), its
relationship to the regulation of interstate commerce, or any
express or implied Congressional findings related thereto, nor
whether the offense there had an interstate or other jurisdictional
nexus (though the facts recited suggest none). 

FN35. Nor to section 929(a)(1) denouncing possession of armor
piercing ammunition during or in relation to "a crime of violence
or drug trafficking crime ... for which he may be prosecuted in a
court of the United States." 

FN36. We also observe that the other additions to chapter 44 of
Title 18 made by subtitle G of Title VI of the Anti-Drug Abuse Act
of 1988 expressly provided for an interstate commerce or other
federal nexus.  Thus, new section 924(f), P.L. 100-960, s 6211, 102
Stat. 4359, denounces whoever "travels from any State or foreign
country into any other State" and acquires or transfers "a firearm
in such other State" with the purpose of engaging in conduct
constituting any of various offenses including "a crime of violence
(as defined in subsection (c)(3))."  New section 930, P.L. 100-
960, s 6215, 102 Stat. 4361, denounces "whoever knowingly possesses
or causes to be present a firearm or other dangerous weapon in a
Federal facility." 

FN37. Section 1702 also added to section 921(a) new subsections
(25), (26), and (27) defining terms used in new section 922(q)
("school zone," "school," and "motor vehicle") and added to section
924(a) new subsection (4) fixing the penalty for violation of new
section 922(q). 

FN38. Public Law 101-647 s 2201 amended section 922(a)(5), which
formerly proscribed (with exceptions) transfer of a firearm by a
nonlicensee to a nonlicensee who "resides in any state other than
that in which the transferor resides" (or that in which the place
of business of the transferor, if a business entity, is located)
so that it proscribed (with the same exceptions) such a transfer
if the nonlicensee transferee "does not reside in (or if the person
is a corporation or other business entity, does not maintain a
place of business in) the State in which the transferor resides." 
The purpose of this was apparently to include among disqualified
transferees "an alien or transient who does not reside in the State
in which the transferor resides."  H.Rep. No. 101-681(I), 101st
Cong., 2d Sess., at 106, reprinted in 1990 U.S.C.C.A.N. 6472 at
6510.  It also appears to have the effect of clarifying section
922(a)(5) by removing its otherwise arguable prohibition of
transfer to a nonlicensee business entity having a place of
business in the transferor's state of residence but existing under
the laws of and having its principal place of business in a
different state. Also, Public Law 101-647 s 2202(a) amended section
922(j), which prohibited any person from receiving, concealing,
disposing of, pledging, or accepting as security any stolen firearm
"moving as, which is a part of, or which constitutes, interstate
or foreign commerce," by expanding it to also cover any stolen
firearm "which has been shipped or transported in, interstate or
foreign commerce."  H.Rep. No. 101-681(i), supra, explains that the
amendment will "permit prosecution ... where the firearms have
already moved in interstate or foreign commerce."  Id. at 106, 1990
U.S.C.C.A.N. at 6510. Further, Public Law 101-647 s 2202(b) amended
section 922(k), which made it unlawful "to transport, ship or
receive, in interstate or foreign commerce" any firearm whose
serial number had been removed, altered, or obliterated, by
expanding it to also make it unlawful "to possess or receive" any
such firearm that "has, at any time, been shipped or transported
in interstate or foreign commerce." And, Section 2204 of P.L.
101-647 added section 922(r) making it "unlawful for any person to
assemble from imported parts" any rifle or shotgun "identical" to
any "prohibited from importation under section 925(d)(3)." House
Report 101-68(I), supra, reflects that this amendment "is to
prevent the circumvention of the importation restrictions by
persons who would simply import the firearms in a disassembled form
and then reassemble them in the United States."  Id. at 107, 1990
U.S.C.C.A.N. at 6511. Finally, section 2205 of P.L. 101-647 amended
section 930, which denounced possession of firearms "in a Federal
facility," so that an enhanced penalty would be applicable if the
possession were "in a Federal court facility." 

FN39. Rep. William Hughes, the Chairman of the Subcommittee on
Crime of the House Judiciary Committee, made the same point in a
colloquy with Richard Cook, the Chief of the BATF's Firearms
Division, during the hearings on H.R. 3757: "Mr. Hughes. This would
be a major change, would it not, in Federal jurisdiction, in that
basically, we've played a supportive role in endorsement of gun
laws throughout the country, supportive of local and State efforts
to attempt to license and, as a matter of fact, to restrict and
punish.  This would, it seems to me, put us in the position of, for
the first time, playing a direct role in the enforcement of a
particular Federal law--a gun law--at the local level, the school
district level. Mr. Cook. ATF has always been involved with
supporting State and local people in their prosecutions. Mr.
Hughes. I say that's been our role--as supportive.  Does this give
us the original jurisdiction? Mr. Cook. In this particular
instance, this legislation would give us original Federal
jurisdiction, which would-- Mr. Hughes: That would be a major
departure from basically what has been the practice of the past.
Mr. Cook. As far as schools as concerned, yes, it is. Mr. Hughes.
A major departure from a traditional federalism concept which
basically defers to State and local units of government to enforce
their laws. Mr. Cook. Yes."  House Hearings, supra, at 14. 

FN40. See also Heart of Atlanta Motel, Inc. v. United States, 379
U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), where the Court
noted that the "discriminatory practices" the regulation of which
it sustained were "now found substantially to affect interstate
commerce," id. 379 U.S. at 252, 85 S.Ct. at 355 (emphasis added),
and that under the Commerce Clause Congress' regulatory powers
extend to "local activities ... which might have a substantial and
harmful effect upon" interstate "commerce."  Id. 379 U.S. at 258,
85 S.Ct. at 358 (emphasis added). 

FN41. Perez does contain the statement that:  "We have mentioned
in detail the economic, financial, and social setting of the
problem as revealed to Congress.  We do so not to infer that
Congress need make particularized findings in order to legislate." 
Id. 402 U.S. at 156, 91 S.Ct. at 1362.  No citation of authority
is given, nor is the meaning of the second sentence entirely clear. 
However, the opinion as a whole shows extensive consideration of
and reliance on not only the evidence before Congress and the
legislative history, but also the formal Congressional findings,
which the Court had already observed were "quite adequate" to
sustain the act.  Id. 

FN42. Similarly, in Heart of Atlanta Motel, Inc. v. United States,
379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), the Court upheld
the same act "as applied here to a motel which concededly serves
interstate travelers."  Id. 379 U.S. at 261, 85 S.Ct. at 360.  The
Court noted that the act, by its express terms, applied to an
establishment "if its operations affect commerce," which was
defined to include "any inn, hotel, motel, or other establishment
which provides lodging to transient guests."  Id. 379 U.S. at 247,
85 S.Ct. at 352-53.  It observed that statute was "carefully
limited to enterprises having a direct and substantial relation to
the interstate flow of goods and people, except where state action
is involved."  Id. 379 U.S. at 250-51, 85 S.Ct. at 354.  In
sustaining the act as applied the Court stated: "While the Act as
adopted carried no congressional findings the record of its passage
through each house is replete with evidence of the burdens that
discrimination by race or color places upon interstate commerce. 
See Hearings before Senate Committee on Commerce on S. 1732, 88th
Cong., 1st Sess.;  S.Rep. No. 872, supra;  Hearings before Senate
Committee on the Judiciary on S. 1731, 88th Cong., 1st Sess.; 
Hearings before House Subcommittee No. 5 of the Committee on the
Judiciary on miscellaneous proposals regarding Civil Rights, 88th
Cong., 1st Sess., ser. 4;  H.R.Rep. No. 914, supra....  We shall
not burden this opinion with further details since the voluminous
testimony presents overwhelming evidence that discrimination by
hotels and motels impedes interstate travel" Id. 379 U.S. at
252-53, 85 S.Ct. at 355. 

FN43. We know of no Supreme Court decision in the last half century
that has set aside such a finding as without rational basis. 
However, the Court has never renounced responsibility to invalidate
legislation as beyond the scope of the Commerce Clause.  See, e.g.,
Maryland v. Wirtz, 392 U.S. 183, 198, 88 S.Ct. 2017, 2025, 20
L.Ed.2d 1020 (1968) ("This Court has examined and will continue to
examine federal statutes to determine whether there is a rational
basis for regarding them as regulations of commerce among the
states.").  Nor may we renounce that duty. 

FN44. Conceivably, a purely informational void could be filled by
evidence in court of the same general kind that might have been
presented to a Congressional committee or the like concerning any
relationship between the legislation and interstate commerce. 
However, in such a situation the court could only guess at what
Congress' determination would have been.  In any event, there is
no such evidence here. 

FN45. We recognize that "the constitutionality of action taken by
Congress does not depend on recitals of the power which it
undertakes to exercise."  Woods v. Cloyd W. Miller Co., 333 U.S.
138, 143, 68 S.Ct. 421, 424, 92 L.Ed. 596 (1948).  But in that
case, the Court went on immediately to say:  "Here it is plain from
the legislative history that Congress was invoking its war power
to cope with a current condition of which the war was a direct and
immediate cause."  Id.  (footnote omitted).  See also id. 333 U.S.
at 144, 68 S.Ct. at 423 ("The legislative history of the present
Act makes absolutely clear that there has not yet been eliminated
the deficit in housing which in considerable measure was caused by
the heavy demobilization of veterans and by the cessation or
reduction in residential construction during the period of
hostilities due to the allocation of building materials to military
projects";  footnote omitted).  The Court proceeded to sustain the
legislation under the war power.  Here, by contrast, the
legislative history does not show that Congress, in enacting the
Gun-Free School Zones Act, was invoking the Commerce Clause. 

FN46. It is also conceivable that some applications of section
922(q) might raise Second Amendment concerns.  Lopez does not raise
the Second Amendment and thus we do not now consider it. 
Nevertheless, this orphan of the Bill of Rights may be something
of a brooding omnipresence here.  For an argument that the Second
Amendment should be taken seriously, see Levinson, The Embarrassing
Second Amendment, 99 Yale L.J. 637 (1989). 

FN47. As we have observed (note 42, supra ), in Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13
L.Ed.2d 258 (1964), the Court upheld section 201(b)(1) & (c) of
Title II of the Civil Rights Act of 1964, respecting hotels,
motels, and inns, as a proper exercise of the commerce power,
relying on the wording of the statute and its legislative history. 
The Court distinguished the Civil Rights Cases, 109 U.S. 3, 3 S.Ct.
18, 27 L.Ed. 835 (1883), which had stricken down the Civil Rights
Act of 1875.  The Heart of Atlanta opinion observes that the
opinion in Civil Rights Cases "specifically ... note[d] that the
Act was not conceived in terms of the commerce power."  Heart of
Atlanta, 379 U.S. at 250, 85 S.Ct. at 354.  The Heart of Atlanta
opinion also in this connection contrasts the 1875 and 1964 acts:
"Unlike Title II of the present legislation, the 1875 Act broadly
proscribed discrimination in 'inns, public conveyances on land or
water, theaters, and other places of public amusement,' without
limiting the categories of affected businesses to those impinging
upon interstate commerce.  In contrast, the applicability of Title
II is carefully limited to enterprises having a direct and
substantial relation to the interstate flow of goods and people,
except where state action is involved."  Id. 379 U.S. at 250-51,
85 S.Ct. at 354. The suggestion is that it is questionable whether
an act which has neither an express or facial commerce nexus nor
legislative history demonstrating such a nexus may be sustained as
an exercise of the commerce power. In a similar vein, we note that
in Woods v. Cloyd Miller Co., 333 U.S. 138, 68 S.Ct. 421, 92 L.Ed.
596 (1946), the Supreme Court, relying on legislative history (see
note 43, supra ), sustained the Housing and Rent Act of 1947, which
essentially contained a form of nationwide federal rent control,
on the basis of the war power.  The legislation did not expressly
invoke the war power, but the Court sustained it on that basis,
relying on legislative history, despite the Court's recognition
that this principle should not extend long after the end of
hostilities, as if it did "it may not only swallow up all other
powers of Congress but largely obliterate the Ninth and Tenth
Amendments as well."  Id. 333 U.S. at 144, 68 S.Ct. at 424. 
Significantly, the Court never mentioned the Commerce Clause.
Moreover, the Court's referenced concern seems to implicitly assume
that the Commerce Clause would not reach so far. 

FN48. The Court then quoted extensively from Will v. Michigan Dep't
of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45
(1989).  The Will Court had stated: "[I]f Congress intends to alter
the 'usual constitutional balance between the States and the
Federal Government,' it must make its intention to do so
'unmistakably clear in the language of the statute.'  Atascadero
State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147,
87 L.Ed.2d 171 (1985);  ... Atascadero was an Eleventh Amendment
case, but a similar approach is applied in other contexts. 
Congress should make its intention 'clear and manifest' if it
intends to pre-empt the historic powers of the States, Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152,
91 L.Ed.2d 1447 (1947), or if it intends to impose a condition on
the grant of federal moneys, Pennhurst State School and Hospital
v. Halderman, 451 U.S. 1, 16, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694
(1981);  South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793,
2795, 97 L.Ed.2d 171 (1987).  'In traditionally sensitive areas,
such as legislation affecting the federal balance, the requirement
of clear statement assures that the legislature has in fact faced,
and intended to bring into issue, the critical matters involved in
the judicial decision.'  United States v. Bass, 404 U.S. 336, 349,
92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971)."  Id. 491 U.S. at 65, 109
S.Ct. at 2308-09. 

FN49. Thus, we are not faced with a situation such as that
addressed by Justice Powell in his concurrence in Fullilove v.
Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). 
See id. 448 U.S. at 503, 100 S.Ct. at 2787 (Powell, J., concurring)
("After Congress has legislated repeatedly in an area of national
concern, its Members gain experience that may reduce the need for
fresh hearings or prolonged debate when Congress again considers
action in that area."). See also City of Richmond v. J.A. Croson
Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (plurality
opinion), in which the court held unconstitutional Richmond's plan
requiring thirty percent of public subcontracting work to be given
to minority-owned business, in part because of the city's failure
adequately to supports its "finding" that past discrimination
necessitated race-conscious remedial action.  Specifically, the
Court rejected the city's reliance upon findings made by Congress
(and used by the Court to sustain a similar federal racial
set-aside in Fullilove ) that there had been nationwide
discrimination against blacks in the construction industry, saying
that "[t]he probative value of these findings for demonstrating the
existence of discrimination in Richmond is extremely limited."  Id.
488 U.S. at 504, 109 S.Ct. at 727.  Further, the Court saw
"absolutely no evidence of past discrimination against
Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons in any
aspect of the Richmond construction industry."  Id. 488 U.S. at
506, 109 S.Ct. at 728 (original emphasis). 

FN50. We reject two related arguments by the government in this
connection.  First it urges that section 922(q) "is not
fundamentally different from the 'schoolyard statute,' 21 U.S.C.
s 860, which provides greater punishment for drug offenses
occurring within 1000 feet of a school."  However, this statement
ignores the fundamental difference that all drug trafficking,
intrastate as well as interstate, has been held properly subject
to federal regulation on the basis of detailed Congressional
findings that such was necessary to regulate interstate
trafficking.  See United States v. Lopez, 459 F.2d 949, 951-53 (5th
Cir.), cert. denied sub nom. Llerena v. United States, 409 U.S.
878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972).  Thus, section 860 is not
a regulation of schools but of drugs, and its jurisdictional
foundation is the now unchallenged federal authority over
intrastate as well as interstate narcotics trafficking.  See cases
cited in note 10, supra. Second, the government urged the district
court that "[t]he federal government has provided thousands and
thousands of dollars in federal educational grant moneys to the San
Antonio Independent School District....  The federal government is
entitled to protect its investment in education...."  We reject
this contention.  Although Congress may attach conditions to the
receipt of federal funds, it must do so unambiguously. See South
Dakota v. Dole, 483 U.S. 203, 206-08, 107 S.Ct. 2793, 2796, 97
L.Ed.2d 171 (1987);  Pennhurst State School & Hospital v.
Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1540, 67 L.Ed.2d 694
(1981).  We cannot view section 922(q) as a condition meant to
"protect the federal investment in schools," as the government puts
it, because Congress has in no way tied section 922(q) to federal
funding.  Section 922(q), which expressly extends to "private" and
"parochial" as well as "public" schools, does not even mention
federal funding, and applies whether or not such funding is
received. 

FN51. The government also urges that we have sustained the
prohibition of all simple narcotics possession.  See United States
v. Lopez, 461 F.2d 499 (5th Cir.1972) (per curiam ).  However,
there we relied on our decision in the earlier, different Lopez
case, 459 F.2d 949, where we in turn relied on Congressional
findings that such was necessary to effectively regulate the
interstate trafficking in narcotics.  The possession proscription
was a necessary means to regulate the interstate commercial
trafficking in narcotics.  There is nothing analogous in the
present case. Section 922(q) is not related (either in terms or by
legislative findings or history) to the regulation of interstate
trafficking in firearms or to any scheme for such purpose, and
there has been no general outlawing of the possession of ordinary
firearms by ordinary citizens.  Moreover, firearms do not have the
fungible and untraceable characteristics of narcotics. 

FN52. No other basis for section 922(q) has been suggested. 

FN53. Cf. Heart of Atlanta, 379 U.S. at 261, 85 S.Ct. at 360 ("We,
therefore, conclude that the action of the Congress in the adoption
of the Act as applied here to a motel which concededly serves
interstate travelers is within the power granted it by the Commerce
Clause of the Constitution.") (emphasis added).  However, the "as
applied" issue has not been briefed or argued with respect to
section 922(q) and, as noted, we expressly do not resolve it. 

FN54. Because we reverse Lopez's conviction, we do not reach the
challenge he raises to his sentence. 

END OF DOCUMENT 
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