United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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Filed January 25, 2000
No. 98-5491
Navegar, Incorporated, d/b/a Intratec, and
Penn Arms, Incorporated,
Appellants
v.
United States of America,
Appellee
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Before: Edwards, Chief Judge, Silberman, Williams,
Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel,
and Garland, Circuit Judges.*
O R D E R
Appellants' petition for rehearing en banc and the response
thereto have been circulated to the full court. The taking of
a vote was requested. Thereafter, a majority of the judges of
the court in regular active service did not vote in favor of the
petition. Upon consideration of the foregoing, it is
ORDERED by the Court that appellants' petition is de-
nied.
Per curiam
For the Court:
Mark J. Langer, Clerk
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* Circuit Judge Sentelle would grant the petition for rehearing
en banc. His opinion is attached.
Sentelle, Circuit Judge, dissenting from the denial of
petition for rehearing en banc: By denying en banc review of
the panel opinion, Navegar, Inc. v. United States, 192 F.3d
1050 (D.C. Cir. 1999), this court perpetuates an approach to
Commerce Clause jurisprudence hopelessly out of date under
contemporary Supreme Court interpretations of the Constitu-
tion.
In United States v. Lopez, 514 U.S. 549 (1995), the Su-
preme Court carefully delineated limitations on the authority
of the federal government to act under that enumerated
power. In his opinion for the five-Justice majority, Chief
Justice Rehnquist identified "three broad categories of activi-
ty" within which the federal government may legitimately
regulate under the commerce power. 514 U.S. at 558. These
three categories are: (1) "the use of the channels of interstate
commerce"; (2) the regulation and protection of "the instru-
mentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only
from intrastate activities"; and (3) "activities having a sub-
stantial relation to interstate commerce." Id. at 558-59 (cita-
tions omitted). Because the claimed justification for the
statute before it, the Gun-Free School Zones Act, sheltered
under the umbrella of the third area of activity, the Chief
Justice wrote a further explication of "those activities that
substantially affect interstate commerce." Id. at 559 (citing
Maryland v. Wirtz, 392 U.S. 183, 196 n.27 (1968)). Briefly,
under Lopez, to be the subject of constitutionally valid regula-
tion under the Commerce Clause, an activity not falling
within categories 1 or 2 must substantially affect interstate
commerce, not merely affect it. Id. at 559. To determine
whether an activity substantially affects commerce, we under-
take another tripartite examination, asking whether:
--the regulation controls a commercial activity, or an
activity necessary to the regulation of some commercial
activity;
--the statute includes a jurisdictional nexus requirement
to ensure that each regulated instance of the activity
affects interstate commerce; and
--the rationale offered to support the constitutionality of
the statute (i.e., statutory findings, legislative history,
arguments of counsel, or a reviewing court's own attribu-
tion of purposes to the statute being challenged) has a
logical stopping point so that the rationale is not so broad
as to regulate on a similar basis all human endeavors,
especially those traditionally regulated by the states.
National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041,
1064 (D.C. Cir. 1997) (Sentelle, J., dissenting) (analyzing
Lopez, 514 U.S. at 559-65, and citing United States v. Wall,
92 F.3d 1444, 1455-56 (6th Cir. 1996) (Boggs, J., dissenting in
part)).
In Lopez, the Court considered the constitutionality of a
statute in which Congress had made it a federal offense "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." 18 U.S.C. s 922(q)(1)(A) (Supp. V 1993). The
only justification the United States could offer among the
enumerated powers for the constitutionality of the statute
was the Commerce Clause. Unsurprisingly, the Court held
that the Gun-Free School Zones Act fit none of those three
subcategories. First, it did not regulate or control a commer-
cial activity or an activity necessary to the regulation of a
commercial activity. The Chief Justice acknowledged that
Wickard v. Filburn, 317 U.S. 111 (1942), relied on by the
panel in Navegar, 192 F.3d at 1056-57, had upheld federal
regulation of home consumption of wheat, where it affected
interstate commerce, but described that decision as "perhaps
the most far reaching example of Commerce Clause authority
over intrastate activity." Lopez, 514 U.S. at 560. The Lopez
Court further recognized that at least the statute before the
Court in Wickard involved the regulation of the wheat mar-
ket--interstate commerce. Id. at 560-61. In the view of the
Congress, and subsequently the Court of that time, the
regulation of consumable wheat, wherever grown, was neces-
sary to control the volume of wheat on that interstate market.
The Gun-Free School Zones Act neither controlled nor pur-
ported to affect any market at all.
Second, the statute included no jurisdictional nexus. Un-
der this element of examination, the Chief Justice compared
United States v. Bass, 404 U.S. 336 (1971), in which the Court
had upheld the statute making it a crime for a felon "to
receive, possess, or transport in commerce or affecting com-
merce ... any firearm." Lopez, 514 U.S. at 561-62 (quoting
Bass, 404 U.S. at 337 (brackets omitted)). The Chief Justice
noted that in upholding that statute the Court had expressly
reserved the question of whether Congress could constitution-
ally regulate the "mere possession" of firearms without the
jurisdictional nexus. Id. at 562 (quoting Bass, 404 U.S. at 339
n.4). Even in Bass, where the statute had withstood constitu-
tional scrutiny, the Court set aside the conviction before it
because the prosecution, while having proved that the defen-
dant possessed a firearm, "failed 'to show the requisite nexus
with interstate commerce.' " Id. (quoting Bass, 404 U.S. at
347). The statute the Court struck down in Lopez had no
such jurisdictional requirement. Congress had invaded the
state-owned territory of mere possession with no connection
to interstate commerce.
Finally, the Lopez Court considered the implications of the
government's argument that guns around schoolhouses might
result in violent crime, and violent crime could be expected to
affect the functioning of the national economy either through
the mechanism of insurance or by reducing the willingness of
individuals to travel to other parts of the country which they
might consider unsafe. The Court highlighted the govern-
ment's admission that, under this "costs of crime" reasoning,
the federal government could regulate "not only all violent
crime, but all activities that might lead to violent crime,
regardless of how tenuously they relate to interstate com-
merce." Id. at 564. Indeed, the federal government "could
regulate any activity that [Congress] found was related to the
economic productivity of individual citizens: family law (in-
cluding marriage, divorce, and child custody), for example."
Id. In other words, under the government's theory of consti-
tutionality for the Gun-Free School Zones Act, the words of
the Commerce Clause were limitless, and Congress had the
power to regulate anything at all. There was no stopping
point. The statute was unconstitutional.
As appellants argue in petitioning for en banc review, the
Navegar panel's decision in the present case is inconsistent
with the Supreme Court's decision in Lopez. The Navegar
panel had before it an appeal from a judgment denying a
declaratory judgment declaring unconstitutional section
110102 of the Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 1996-98
(1994) (codified at 18 U.S.C. ss 921(a)(30), 922(v) (1994)).
The disputed section makes it unlawful to "manufacture,
transfer, or possess a semiautomatic assault weapon." 18
U.S.C. s 922(v). In upholding that judgment and the consti-
tutionality of the statute, the panel relied first on the 1942
jurisprudence of Wickard v. Filburn, and then on our deci-
sion in Terry v. Reno, 101 F.3d 1412, 1417 (D.C. Cir. 1996),
which upheld the constitutionality of a statute protecting an
area of commerce, specifically health clinics. See Navegar,
192 F.3d at 1056-57. Reno is not on point, but even if it
were, the Supreme Court and not our precedent controls.
Insofar as the Supreme Court's decision in Wickard retains
any vitality after Lopez, it cannot control the ruling on the
disputed statute. Despite the panel's pains to align this
statute with those in Reno and Wickard, ultimately the
statute is indistinguishable from that before the Court in
Lopez. The panel laboriously attempts to fit this gun act into
category 3 of the permissible areas of regulation under Lopez.
To do so, it incorrectly paraphrases the Lopez holding. The
Lopez Court did not, as the panel declares, "conclude[ ] that
Congress had no rational basis for finding that gun possession
in a school zone had a substantial effect on interstate com-
merce and declare[ ] the statute unconstitutional." Navegar,
192 F.3d at 1055 (citing Lopez, 514 U.S. at 567). Rather, the
Court made an independent determination of the effect of the
statute on interstate commerce, "ultimately a judicial rather
than a legislative question," Lopez, 514 U.S. at 557 n.2. The
Court concluded that gun possession did not have a substan-
tial effect and declared the statute unconstitutional. As one
of our sister circuits recognized, Lopez "elevated to a majority
opinion statements from previous concurring opinions that
'simply because Congress may conclude that a particular
activity substantially affects interstate commerce does not
necessarily make it so.' " Brzonkala v. Virginia Polytechnic
Inst. and State Univ., 169 F.3d 820, 855 (4th Cir. 1999) (en
banc) (quoting Lopez, 514 U.S. at 557 n.2) (brackets and other
citations omitted), cert. granted sub nom. Brzonkala v. Mor-
rison, 120 S. Ct. 11 (1999).
This statute, like the parallel firearms act stricken as
unconstitutional in Lopez, regulates, under purported authori-
ty drawn from Congress's power to regulate interstate com-
merce, activity (or inactivity) that is neither commerce nor
interstate. The Supreme Court held the Gun-Free School
Zones Act unconstitutional in Lopez. Our panel decision
upholding this statute as constitutional cannot be reconciled
with Lopez, and we should review it en banc.