United States v. Patton

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 20, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v. No. 05-3169
C ARL A . PA TTO N ,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D.C. NO . 04-10170-01)

Timothy J. Henry, Federal Public Defender Office, W ichita, Kansas for
Defendant-Appellant.

Brent I. Anderson, Assistant United States Attorney, (Eric F. M elgren, United
States Attorney, with him on the brief) Office of the United States Attorney,
W ichita, Kansas, for Plaintiff-Appellee.

Before M cCO NNELL and B ALDOCK , Circuit Judges, and ARM IJO , District
Judge. *

M cCO NNELL, Circuit Judge.

*
The Honorable M . Christina Armijo, United States District Court, District
of New M exico, sitting by designation.
 It may seem like common sense to prohibit felons’ possession of

bulletproof vests and other forms of body armor, w hich facilitate violent crime.

Indeed, thirty-one states already do so. But the Constitution does not grant the

federal government a police power or a general authority to combat violent crime.

See Cohens v. Virginia, 19 U.S. (6 W heat.) 264, 426 (1821) (M arshall, C.J.)

(“Congress has . . . no general right to punish murder committed within any of the

States.”). The myriad provisions in the federal criminal code are justified, as a

constitutional matter, only by reference to Congress’s enumerated powers. W e

are required in this case to determine whether Congress has authority under its

power “[t]o regulate Commerce . . . among the Several states,” U.S. Const. art. I,

§ 8, cl. 3, to prohibit the intrastate possession by a felon of a bulletproof vest, in

the absence of any commercial transaction or any evidence of a connection to

comm ercial activity other than the fact that, before it was lawfully purchased by

the defendant, the vest had been sold across a state line.

Deciding this question requires us to choose between following an older

precedent of the Supreme Court and applying the Court’s current three-part test

for determining the reach of the Commerce Clause. W e follow the older

precedent directly on point, conclude that Congress does have this authority, and

A FFIR M the conviction.

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 I. Factual and Procedural Background

Defendant-Appellant Carl Patton was once a member of the Junior Boys

gang in northeast W ichita, Kansas. He has two prior state-court felony

convictions for gang-related violence. In 1990 he pleaded guilty to attempted

aggravated battery in the shooting of a member of a rival gang, the Crips, and in

1994 he was convicted of aggravated assault, discharge of a firearm at an

occupied building, and criminal possession of a firearm, all of which stemmed

from an altercation with two members of another competing gang, the Bloods.

In O ctober 2001, after serving his sentence for the second felony, M r.

Patton was paroled to his grandparents’ house in his old neighborhood in W ichita.

According to his story, 1 M r. Patton wanted to be paroled to Connecticut, where

his then-girlfriend lived and where he would be far removed from the gang

activity with which he had formerly been associated. He was required to return to

northeast W ichita, however, because under parole rules he could be paroled only

to live with a family member or a spouse. That placed him in continual danger.

Even though (according to his story) M r. Patton had learned his lesson and

abandoned his life of gang violence, his former associates and rival gang

members still had scores to settle. In late 2001, for example, two members of the

1
For purposes of adjudicating the issues in this case, the district court
accepted and the government does not contest M r. Patton’s account of the factual
background.

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Bloods (one armed) approached him at a gas station. M r. Patton escaped

unharmed. In M ay 2002, members of the Bloods carried out a drive-by shooting

on the 2300 block of North Kansas Street in W ichita, firing at M r. Patton and

others who were in the building. Because of the danger to his life, M r. Patton has

refused to allow his children or his grandparents to ride in the same car w ith him.

In the fall of 2001, after his encounter with the armed gang member at the

gas station, M r. Patton purchased a bulletproof vest that had been manufactured in

California. At that time, both his purchase and his possession of the vest were

lawful under federal and state law. According to M r. Patton, during his parole he

was not a gang member and wore the vest solely to protect himself.

On November 21, 2003, officers from the W ichita Police Department

investigated a domestic disturbance call involving M r. Patton. W hen the officers

arrived, they found no weapons in M r. Patton’s possession but did discover that

he was wearing a bulletproof vest. On July 29, 2004, M r. Patton was charged

with being a felon in possession of body armor, in violation of a recently enacted

statute, 18 U.S.C. § 931. On October 14, 2004, M r. Patton moved to dismiss the

indictment on the grounds that it violated the Commerce and Due Process Clauses

of the federal Constitution. The district court denied the motion on November 16.

The next day, a superseding indictment added charges that M r. Patton had

possessed the body armor “in and affecting comm erce” and that the body armor

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was a bulletproof vest “that was not produced in the State of Kansas and was sold

or offered for sale in interstate or foreign comm erce.” R. Vol. I, Doc. 19.

M r. Patton also raised the defense of necessity. On January 19, 2005, after

a hearing, the district court found that M r. Patton had failed to meet the

requirements for a necessity defense. W ithin a week, M r. Patton entered a

conditional guilty plea, preserving his right to appeal both the denial of his

motion to dismiss the indictment and the grant of the government’s motion in

limine to exclude a necessity defense. On April 6, 2005, M r. Patton was

sentenced to eighteen months in federal prison and one year of supervised release.

He now appeals the issues preserved in the conditional plea.

II. The Com merce C lause

M r. Patton argues first that he was convicted under a statute that exceeds

Congress’s power under the Commerce Clause. W e review the constitutionality

of the statute de novo. United States v. Jeronimo-Bautista, 425 F.3d 1266, 1268-

69 (10th Cir. 2005). The statute is 18 U.S.C. § 931, which m akes it a crime “for a

person to purchase, own, or possess body armor, if that person has been convicted

of a felony” that qualifies as a crime of violence under 18 U.S.C. § 16. 18 U.S.C.

§ 931(a). “B ody armor” is defined as “any product sold or offered for sale, in

interstate or foreign commerce, as personal protective body covering intended to

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protect against gunfire.” Id. § 921(a)(35). 2 W e stress that M r. Patton was

convicted of mere possession of the body armor— not purchase, not sale, not

commercial use. This possession occurred entirely within the borders of the State

of Kansas. The statute makes no reference to any effect M r. Patton’s possession

or use of the bulletproof vest might have had on interstate commerce. The only

connection between his possession and interstate commerce is the fact that, prior

to his purchase, the bulletproof vest was manufactured in another state and moved

across state lines. M oreover, at the time M r. Patton acquired the vest in 2001,

Congress had not yet made the purchase or possession of body armor by felons a

federal crime. See James Guelff and Chris M cCurley Body Armor A ct of 2002, §

11009(e)(2)(A), Pub. L. No. 107-273, Div. C, 116 Stat. 1819, 1821 (codified at 18

U.S.C. § 931) (criminalizing the possession of body armor by felons as of Nov. 2,

2002). It may also be significant that during the incident for which M r. Patton

was prosecuted, he was not armed; for all that appears, he was wearing the

bulletproof vest solely in self-defense against attacks motivated by his former

association with the Junior Boys gang.

2
W e surmise that M r. Patton is bringing both a facial challenge to the
statute to the extent it forbids possession and an as-applied challenge to a ban on
M r. Patton’s “[s]imple possession of a bullet-proof vest that has come to rest in
Kansas, and which has long since left the channels of commerce.” Br. for
Appellant 13. M r. Patton does not challenge the statute as it applies to purchases.

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 The Supreme Court has articulated “three general categories of regulation

in which Congress is authorized to engage under its commerce power.” Gonzales

v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 2205 (2005). These are “the channels of

interstate commerce”; “the instrumentalities of interstate commerce, and persons

or things in interstate commerce”; and “activities that substantially affect

interstate commerce.” Id.; see also United States v. Lopez, 514 U.S. 549, 558

(1995); Perez v. United States, 402 U.S. 146, 150 (1971). W e conclude that the

statute prohibiting possession of body armor by a felon does not fit within any of

the three categories, but we uphold it under the authority of other precedents from

the Supreme Court and from this Court.

A . Channels of Interstate Commerce

First, Congress may regulate the “channels of interstate commerce.” Lopez,

514 U.S. at 558; Raich, 125 S. Ct. at 2205. Under this category, Congress

regulates not conduct related to interstate commerce but rather interstate

comm erce itself— barring from the channels of interstate commerce a class of

goods or people. See United States v. Rybar, 103 F.3d 273, 288-89 (3d Cir. 1996)

(Alito, J., dissenting) (describing the first category as concerning “Congress’s

power to regulate, for economic or social purposes, the passage in interstate

comm erce of either people or goods”). For example, Congress may ban the

interstate shipment of stolen goods or kidnapped persons, Perez, 402 U.S. at 150;

the interstate shipment of goods produced without minimum-wage and maximum-

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hour protections, United States v. Darby, 312 U.S. 100, 112-14 (1941); the

interstate transportation of a woman or girl for prostitution, Caminetti v. United

States, 242 U.S. 470, 491-92 (1917); or the interstate mailing or transportation of

lottery tickets, Lottery Case, 188 U.S. 321, 354-55 (1903). As the illustrative

cases show, Congress’s authority is not confined to regulations w ith a narrowly

economic purpose or impact. Congress “is free to exclude from the commerce

articles whose use in the states for which they are destined it may conceive to be

injurious to the public health, morals or welfare.” Darby, 312 U.S. at 114; see

also Heart of Atlanta M otel, Inc. v. United States, 379 U.S. 241, 256 (1964)

(stating that the Commerce Clause allows “‘Congress to keep the channels of

interstate commerce free from immoral and injurious uses’” (quoting Caminetti,

242 U.S. at 491)). But this category is confined to statutes that regulate interstate

transportation itself, not manufacture before shipment or use after shipment. 3

The statute in this case cannot fit within the first category because it is not

directed at the movement of body armor through the channels of interstate

comm erce. Section 931 prohibits the stationary and entirely intrastate act of

possession of body armor. It would be different if the defendant had been

3
Caminetti is no exception. Although the statute upheld in that case does
focus on the purpose of the transportation— prostitution— this must be the purpose
at the time of transportation; the statute does not criminalize the transportation of
persons who happen, after crossing state lines, to become prostitutes. See
Caminetti, 242 U.S. at 488 n.1.

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convicted under a statute forbidding the interstate transportation of body armor,

or perhaps interstate transportation by a felon or for the purpose of sale to a felon.

The statute under which he was convicted, however, goes beyond the scope of the

first category. A prohibition on the mere intrastate possession of body armor

cannot be upheld under Congress’s power to regulate the channels of interstate

comm erce.

B. Instrumentalities of Interstate Commerce

Under the second category, Congress may regulate and protect “the

instrumentalities of interstate commerce, or persons or things in interstate

comm erce.” Lopez, 514 U.S. at 558; see also Raich, 125 S. Ct. at 2205. The

“instrumentalities” are the means of interstate commerce, such as ships and

railroads, and the “persons or things in interstate commerce” are the persons or

things transported by the instrumentalities among the states. See, e.g., Lopez, 514

U.S. at 558; Perez, 402 U.S. at 150. In Pensacola Tel. Co. v. W. Union Tel. Co.,

96 U.S. (6 Otto) 1, 9 (1877), the Supreme Court noted that the “instrumentalities

of commerce,” which then included the steamboat, the railroad, and the telegraph,

are not fixed but “keep pace with the progress of the country.”

Regulation under this category may extend to intrastate activities that

threaten these instrumentalities. For example, Congress may prevent the

intrastate destruction of aircraft. Perez, 402 U.S. at 150. In the Shreveport Rate

Cases, 234 U.S. 342, 351-353 (1914), the Court explained that Congress has

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authority to “prevent the common instrumentalities of interstate and intrastate

commercial intercourse from being used in their intrastate operations to the injury

of interstate commerce.” See also Southern Ry. Co. v. United States, 222 U.S. 20,

26 (1911) (upholding congressional power over intrastate commerce where the

regulation has a “real or substantial relation or connection” to “the safety of

interstate commerce and of those who are employed in its movement”). Congress

may also protect the persons or things that the instrumentalities are moving.

Thus, the Supreme Court has sustained a federal statute prohibiting the theft of

goods from shipwrecked vessels. United States v. Coombs, 37 U.S. (12 Pet.) 72,

78 (1838). The illustrative cases for this category involve things actually being

moved in interstate commerce, not all people and things that have ever moved

across state lines. See, e.g., Perez, 402 U.S. at 150 (illustrating regulation of

“persons or things in commerce” with a statute prohibiting “thefts from interstate

shipments”); see also Lopez, 514 U.S. at 559 (rejecting the idea that the

prohibition on possessing firearms near schools could “be justified as a regulation

by which C ongress has sought to protect . . . a thing in interstate commerce”);

Gibbs v. Babbitt, 214 F.3d 483, 491 (4th Cir. 2000) (rejecting the notion that past

movement across state lines could mark something forever as “a ‘thing’ in

interstate commerce” and noting that category two did not apply in Lopez “despite

the fact that the regulated guns likely traveled through interstate commerce”).

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 The statute in this case does not fall within the second category. Body

armor itself is not an instrumentality, or means, of interstate commerce, and the

statute does not protect body armor while it is moving in interstate shipment. Nor

is the statute directed at the use of body armor in ways that threaten or injure the

instrumentalities of interstate commerce. The statute prohibits the bare

possession of body armor by a felon, wherever it occurs, and without regard to its

use or effect. Accordingly, it exceeds congressional authority to protect the

instrumentalities of, and persons or things in, interstate commerce.

C. Activities Substantially Affecting Interstate Commerce

Under the third category, Congress may regulate “activities that

substantially affect interstate commerce.” Lopez, 514 U.S. at 558-59; Raich, 125

S. Ct. at 2205. This is the most unsettled, and most frequently disputed, of the

categories. Under the first two categories Congress may regulate or protect actual

interstate commerce; the third allows Congress to regulate intrastate

noncommercial activity, based on its effects.

Consideration of effects necessarily involves matters of degree. The third

category thus poses not tw o hazards, like Scylla and Charybdis, but three. If we

entertain too expansive an understanding of effects, the C onstitution’s

enumeration of powers becomes meaningless and federal power becomes

effectively limitless. If we entertain too narrow an understanding, Congress is

stripped of its enumerated power, reinforced by the Necessary and Proper Clause,

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to protect and control commerce among the several states. If we employ too

nebulous a standard, w e exacerbate the risk that judges will substitute their ow n

subjective or political calculus for that of the elected representatives of the

people, or w ill appear to be doing so.

The Supreme Court’s decisions in Lopez, United States v. M orrison, 529

U.S. 598, 609 (2000), and Raich all hinged on interpretation of the third category.

Under this category we have upheld statutes that prohibit the production of child

pornography and the possession of machine guns. Jeronimo-Bautista, 425 F.3d

1266 (upholding 18 U.S.C. § 2251(a), which prohibits the production of child

pornography with materials that moved in interstate commerce); United States v.

Wilks, 58 F.3d 1518, 1521-22 (10th Cir. 1995) (upholding 18 U.S.C. § 922(o),

which prohibits the possession of machine guns). 4 The question in such cases is

4
Although in Wilks we did describe machine guns as “things in interstate
commerce,” w e effectively analyzed the statute using the tools of the third
category, such as considering the national market, aggregating the effects on
interstate commerce, and considering the broader regulatory scheme. Wilks, 58
F.3d at 1521-22. After Raich this case unmistakably falls within the third
category. Compare id. (drawing an analogy to the need to regulate “intrastate
narcotics to effectively regulate the interstate trafficking in narcotics,” contrasting
activities that “could not substantially affect comm erce” even when aggregated,
noting congressional regulation of “this extensive, intricate, and definitively
national market for machineguns,” and relying on legislative history that
describes the broader regulatory scheme (internal quotation marks omitted)), with
Raich, 125 S. Ct. at 2203-04, 2209-10 (describing in detail Congress’s “closed
regulatory system” of controlled substances and distinguishing Lopez because the
prohibition on possession of marijuana was necessary to “a larger regulation of
economic activity” (internal quotation marks omitted)). In United States v.
(continued...)

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whether Congress had a rational basis to find that the regulated activity, taken in

the aggregate, would substantially affect interstate commerce. Raich, 125 S. Ct.

at 2208. To answer that question, we consider “whether (1) the activity at which

the statute is directed is commercial or economic in nature; (2) the statute

contains an express jurisdictional element involving interstate activity that might

limit its reach; (3) Congress has made specific findings regarding the effects of

the prohibited activity on interstate commerce; and (4) the link between the

prohibited conduct and a substantial effect on interstate commerce is attenuated.”

United States v. Grim mett, 439 F.3d 1263, 1272 (10th Cir. 2006) (facial

challenge); see also Jeronimo-Bautista, 425 F.3d at 1269 (as-applied challenge).

The first factor determines whether the regulated activity falls within the

definition of “commerce.” If so, in light of the substantial integration of the

American economy in the past two centuries, there is a heavy— perhaps in reality

irrebuttable— presumption that it affects more states than one, and falls within

congressional power. See Lopez, 514 U.S. at 574 (Kennedy, J., concurring)

4
(...continued)
Haney, 264 F.3d 1161, 1163 (10th Cir. 2001), we upheld the federal ban on
machine gun possession, 18 U.S.C. § 922(o), under the second and third
categories. W e found the Commerce Clause challenge “foreclosed by controlling
Tenth Circuit precedent” on precisely the same statute, namely Wilks, and we held
“that banning possession of post 1986 machineguns is an essential part of the
federal scheme to regulate interstate commerce in dangerous weapons.” Haney,
264 F.3d at 1163, 1168-1171. Like Wilks, our decision in Haney anticipated and
falls squarely within the Supreme Court’s analysis of the third category in Raich.

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(“Congress can regulate in the commercial sphere on the assumption that we have

a single market and a unified purpose to build a stable national economy.”).

W here the regulated activity is noncommercial, the last three factors are

significant. They look to three different sources of evidence regarding whether

there is a substantial effect on interstate commerce: the statutory text, the

articulated congressional understanding, and independent evidence of whether the

activity has a substantial effect in the aggregate. W e will discuss each of these

factors, but not in the above-listed order.

1. Is the regulated activity com m ercial?

W e first consider “whether the prohibited activity is comm ercial or

economic.” Jeronimo-Bautista, 425 F.3d at 1269. The Constitution gives

Congress the power “[t]o regulate Commerce . . . among the several States.” U.S.

Const. art. I, § 8, cl. 3. The distinction between what is and is not comm ercial

therefore lies at the heart of the Commerce Clause. Of course, like many

constitutional terms, the meaning of “commerce” is neither obvious nor

uncontested. The Supreme Court has warned against a definition under which

“any activity can be looked upon as comm ercial,” since this would obliterate the

intended limits on federal power. Lopez, 514 U.S. at 565. The best historical

scholarship indicates that in addition to its primary sense of buying, selling, and

transporting merchandise, the term “commerce” was understood at the Founding

to include the compensated provision of services as w ell as activities in

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preparation for selling property or services in the marketplace, such as the

production of goods for sale. See Grant S. Nelson & Robert J. Pushaw, Jr.,

Rethinking the Commerce Clause: Applying First Principles to Uphold Federal

Commercial Regulations but Preserve State Control over Social Issues, 85 Iow a

L. Rev. 1, 9-42, 107-110 (1999) (citing, among other sources, Daniel Defoe, A

Plan of the English Commerce (2d ed. 1730), Adam Smith, An Inquiry Into the

Nature and Causes of the Wealth of Nations (1776), The Federalist No. 11

(Alexander Hamilton) (Jacob E. Cooke ed., 1961), and 2 Records of the Federal

Convention 449-50 (M ax Farrand ed., 1911) (statement of Charles Pinckney)). 5

In Gibbons v. Ogden, 22 U.S. (9 W heat.) 1, 189-90 (1824), Chief Justice M arshall

referred to commerce as “a general term, applicable to many objects . . . .

Commerce, undoubtedly, is traffic, but it is something more . . . . It describes the

comm ercial intercourse between nations, and parts of nations, in all its branches.”

In the usage of the time, “the ‘branches’ of ‘commercial intercourse’ referred to

activities integrally related to trade, such as transportation, production, labor,

banking, and insurance.” Robert J. Pushaw, Jr., The M edical M arijuana Case: A

Commerce Clause Counter-Revolution?, 9 Lewis & Clark L. Rev. 879, 887

(2005).

5
Justice Thomas has espoused a narrower historical definition, confining
the term to its primary sense of buying and selling goods and excluding
preparatory activities. See Lopez, 514 U.S. at 585-87 (Thomas, J., concurring).

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 In Lopez, the Court held that possession of firearms, in itself, is not

comm ercial or economic. 514 U.S. at 560 (concluding that the prohibition on

firearm possession near a school “by its terms has nothing to do with ‘commerce’

or any sort of economic enterprise”). That makes sense, because the mere

possession of a firearm does not constitute the buying, selling, production, or

transportation of products or services, or any activity preparatory to it. See

United States v. Price, 265 F.3d 1097, 1107 (10th Cir. 2001) (contrasting the

statutes in Lopez and M orrison, “which criminalized non-economic behavior,”

with 21 U.S.C. § 841(a)(1), which makes it illegal to “manufacture, distribute, or

dispense, or possess with intent to manufacture, distribute, or dispense a

controlled substance”— activities that are “economic in character”). The Lopez

Court’s conclusion on this point was restated and reaffirmed in Raich, 125 S. Ct.

at 2211, and we therefore regard it as settled. The same conclusion must follow

for the possession of body armor. W e can think of no reason that mere possession

of body armor by a felon would be deemed commercial when the mere possession

of a firearm near a school was not.

W e recognize that in Raich, the C ourt interpreted the contours of the third

category by reference to “economics” rather than “commerce,” and included the

“consumption of commodities” as w ell as their production and distribution within

that definition. Id. (internal quotation marks omitted). That does not alter our

conclusion. First, we are bound by the holding of Lopez, reaffirmed in Raich,

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that the mere possession of firearms near a school is not a commercial activity for

purposes of the third category. Second, possession of firearms or body armor

cannot be described as “consumption.” Consumption is the “act of destroying a

thing by using it; the use of a thing in a way that thereby exhausts it,” Black’s

Law Dictionary 336 (8th ed. 2004), and possessing or wearing body armor neither

destroys nor exhausts it. Finally, we note that the Raich opinion as a whole treats

congressional authority over the domestic consumption of marijuana as within the

third category only because it was connected to a comprehensive national ban on

“the production, distribution, and consumption of commodities for which there is

an established, and lucrative, interstate market.” Raich, 125 S. Ct. at 2211. The

Controlled Substances Act, the statute at issue in Raich, prohibited possession of

marijuana as a “means of regulating comm erce in that product.” Id. W e do not

interpret Raich as holding that Congress may criminalize the mere possession of a

comm odity for the purpose of consumption, divorced from such a comprehensive

regulatory scheme, based on the third category.

Our conclusion that the possession of body armor is not a commercial

activity does not end the inquiry, but it does channel our analysis. W here the

regulated activity is commercial in nature, it generally (perhaps invariably)

follows that, aggregated with similar activities elsewhere, the activity affects the

national economy sufficiently to fall w ithin congressional power. See, e.g.,

United States v. Sullivan, 332 U.S. 689, 698 (1948) (upholding application of the

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misbranding provision of the Federal Food, Drug, and Cosmetic Act to local sales

of drugs); Perez, 402 U.S. at 156-57 (upholding federal law against loan

sharking). But where the regulated activity is not commercial in nature, Congress

may regulate it only where there are “substantial” and not “attenuated” effects on

other states, on the national economy, or on the ability of Congress to regulate

interstate commerce. M orrison, 529 U.S. at 614-16. In considering that question,

we give special deference to any findings Congress may have made regarding the

connection of the statute to interstate commerce, and we assess the effect of any

jurisdictional hook that may confine application of the statute to situations

affecting interstate commerce. W e ask not whether, as judges, we believe the

challenged statute has a substantial effect on interstate commerce, but whether

Congress could reasonably have thought so.

2. W hat is the relation of the regulated activity to interstate com m erce?

W here possession of an item is not a commercial activity in itself, it may

nonetheless have a substantial and non-attenuated effect on interstate commerce

in two ways. First, possession of a good is related to the market for that good,

and Congress may regulate possession as a necessary and proper means of

controlling its supply or demand. For example, the federal government may elect

to prohibit the possession of eagle feathers as a practical means of drying up the

market for them, and thus protecting against the killing of eagles. Andrus v.

Allard, 444 U .S. 51, 58 (1979). Second, possession of a good is related to the use

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of that good, and its use may have effects on interstate commerce. For example,

no one would doubt Congress’s authority to prohibit the civilian possession of

surface-to-air missile launchers, on the theory that their only possible use would

substantially affect interstate commerce. W e will examine both possibilities, in

light of Supreme Court precedents in analogous cases.

a. Regulation of possession as a m eans of regulating the interstate
m arket for body arm or

In Raich, 125 S. Ct. at 2211, and earlier in Wickard v. Filburn, 317 U.S.

111, 127-28 (1942), the Supreme Court upheld the authority of Congress to

prohibit the domestic consumption of a home-grown commodity, where that

prohibition was an indirect and supplemental, but still essential, means of

enforcing regulations on the national market in that commodity. In Raich, the

Court concluded that noncommercial possession of home-grown marijuana for

personal medical use, as authorized by state law, could rationally be considered

an inseparable part of the broader, and undeniably commercial, national market

for marijuana. 125 S. Ct. at 2211. Under the Controlled Substances Act, the

manufacture, distribution, possession, and use of marijuana are illegal. Id.

Because of the difficulty of distinguishing home-grown marijuana consumed for

medical reasons from other marijuana, and the constant possibility of its diversion

into illicit channels, the Court concluded that Congress could rationally believe

that medical marijuana, if exempted from the A ct, would significantly increase

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the supply of marijuana and that some of this marijuana would move in interstate

commerce. Id. at 2213-14. The Court distinguished Lopez and M orrison on the

ground that the challenged provisions in those cases were not part of a

comprehensive regulation of economic activity. Id. at 2209-11.

In the statute at issue in Wickard, Congress enacted a comprehensive

program limiting the production of certain agricultural commodities for the

purpose of raising their market price. 317 U.S. at 125-27. The Court upheld

application of those regulations to wheat produced by a farmer for his own

family’s domestic and livestock consumption, on the theory that allowing farmers

to evade the production restrictions, when consuming wheat for their own use,

would undermine the economic objectives of the entire program. Id. at 127-28.

In both Raich and Wickard, the regulation of domestic possession and use

was justified on the basis of its impact on a comprehensive regulatory scheme

directed at interstate production, distribution, and sale. By contrast, in Lopez,

where there was no such connection to a comprehensive regulation of the national

market, the Court made clear that Congress could not reach mere possession

under the Commerce Clause. 514 U.S. at 560 (“Section 922(g) is not an essential

part of a larger regulation of economic activity, in which the regulatory scheme

would be undercut unless the intrastate activity were regulated.”).

This Court has used the same rationale to sustain congressional prohibitions

on the production and possession of child pornography. In Jeronimo-Bautista and

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Grim mett, this Court held that Congress has authority under the Commerce Clause

to prohibit mere possession of child pornography, on the rationale that prohibiting

possession was an essential part of a comprehensive scheme to destroy the market

for this pernicious commodity. Grim mett, 439 F.3d at 1272; Jeronimo-Bautista,

425 F.3d at 1271. Thus, although possession of child pornography might in some

cases be intrastate and noncommercial, prohibiting it across the board can be an

indirect and supplemental, but still essential, means of controlling the interstate

commercial market. Accord United States v. M axwell, — F.3d — , No. 03-14326,

2006 W L 1041011, at *5 (11th Cir. Apr. 20, 2006) (“[W ]here Congress

comprehensively regulates economic activity, it may constitutionally regulate

intrastate activity, whether economic or not, so long as the inability to do so

would undermine Congress’s ability to implement effectively the overlying

economic regulatory scheme.”).

W here the statute is not part of a comprehensive scheme of regulation,

however, the Court has not upheld federal regulation of purely intrastate

noneconomic activity. See Morrison, 529 U.S. at 610 (indicating that the

“noneconomic, criminal nature of the conduct at issue” in Lopez “was central to

[the] decision”); id. at 613 (noting that the Supreme Court had “upheld Commerce

Clause regulation of intrastate activity only where that activity [was] economic in

nature”); Raich, 125 S. Ct. at 2210 (noting that in M orrison the Court “held the

statute unconstitutional because, like the statute in Lopez, it did not regulate

-21-
economic activity”); id. at 2211 (upholding “a statute that directly regulates

economic, commercial activity”).

W e must therefore determine whether the prohibition on possession of body

armor by felons is an essential part of “comprehensive legislation to regulate the

interstate market in a fungible commodity.” Raich, 125 S. Ct. at 2209. It is not.

In contrast to its comprehensive ban on marijuana under the Controlled

Substances Act, Congress has not prohibited the manufacture, distribution, sale,

possession, or use of body armor. M embers of the U.S. military, federal agents of

the C IA and FBI, local police officers, security guards, hunters, convenience store

owners— all non-felons— are free to buy, own, and possess body armor.

Companies are free to produce and sell it. The prohibition of possession by a

small class of persons, felons, is unrelated to any broader attempt to suppress the

market (as in Raich, Jeronimo-Bautista, or Grim mett) or to comprehensively

control supply (as in Wickard). Even with respect to felons, the statute’s non-

comm ercial focus is clear from what goes unpunished. No one violates the law

by selling to a felon or buying from a felon, and felons themselves may sell body

armor previously acquired or use it in the course of their licit occupations. 18

U.S.C. § 931(b)(1).

M oreover, in this case, M r. Patton acquired his bulletproof vest at a time

when possession of body armor by felons was lawful. Here, therefore, there is no

logical connection— not even an attenuated one— between his possession and the

-22-
body armor market. Since it was lawful for him to purchase and possess the

armor when he bought it, prohibition of continued possession cannot contribute,

even indirectly, to regulating the market. Cf. United States v. M arrero, 299 F.3d

653, 655-56 (7th Cir. 2002) (“[W]e are in a new era and must be wary of such

arguments as that the theft of a bottle of aspirin from a person’s home ‘affects’

commerce, provided only that the bottle was shipped from another state, because

the homeowner would be likely to buy another bottle from his local druggist to

replace the one that was stolen and the druggist would replace that sale by

purchasing another bottle interstate.”).

Nor does it matter that body armor is subject to pervasive regulation by the

states, as discussed below. Such regulation of a commodity is not enough to

establish a comprehensive regulatory scheme, because this w as surely present in

Lopez and the states and the federal government regulate firearms more

extensively than body armor. See Anthony A. Braga et al., The Illegal Supply of

Firearm s, 29 Crime & Just. 319, 321-24 (2002) (describing the extensive

regulation of firearms). Like the statute in Lopez, section 931 regulates

possession for its own sake and cannot be justified as part (much less as an

essential part) of a comprehensive regulation of the market in body armor.

-23-
 b. Regulation of possession as a m eans of controlling uses that m ight
affect interstate com m erce

The second way in which noncommercial, intrastate possession of an item

might substantially affect interstate commerce is related to use. Possession might

be prohibited as an anticipatory means of prohibiting use of a thing in a way that

affects interstate commerce.

Actually, any use of anything might have an effect on interstate commerce,

in the same sense in which a butterfly flapping its wings in China might bring

about a change of weather in New York. Thomas Jefferson warned against an

overly expansive notion of cause and effect in interpreting the combination of

Congress’s enumerated powers and the Necessary and Proper Clause:

Congress are authorized to defend the nation. Ships are necessary for
defense; copper is necessary for ships; mines necessary for copper; a
company necessary to work mines; and who can doubt this reasoning who
has ever played at “This is the House that Jack Built?”

Letter from Thomas Jefferson to Edward Livingston (A pr. 30, 1800), in 10 The

Writings of Thom as Jefferson 165 (A lbert Ellery Bergh ed., 1903). See also

United States v. A.L.A. Schechter Poultry Corp., 76 F.2d 617, 624 (2d Cir. 1935)

(L. Hand, J., concurring) (“In an industrial society bound together by means of

transport and communication as rapid and certain as ours, it is idle to seek for any

transaction, however apparently isolated, which may not have an effect elsewhere;

such a society is an elastic medium which transmits all tremors throughout its

territory; the only question is of their size.”), aff’d in part and rev’d in part, 295

-24-
U.S. 495 (1935). If any activity with any effect on interstate commerce, however

attenuated, were within congressional regulatory authority, the C onstitution’s

enumeration of powers would have been in vain.

That is why the Supreme Court has insisted that, to justify congressional

exertion of the commerce power within the third category, the effects must be

both “significant” and not “attenuated.” See, e.g., M orrison, 529 U.S. at 612-15.

The clearest examples are the Court’s decisions in Lopez and M orrison, which

were reaffirmed in Raich. Dissenters in those cases offered powerful arguments

that the regulated activities— possession of firearms near schools and gender-

motivated violence— could and did have significant effects on economic activity.

In both cases the majority rejected those arguments, largely on the ground that, if

accepted, similar effects could be invoked in every case, and the Commerce

Clause would become, in effect, a grant of general governing authority. See

Lopez, 514 U.S. at 564 (disfavoring the government’s expansive understanding of

the Commerce Clause because it would leave the Court “hard pressed to posit any

activity by an individual that Congress [would be] w ithout power to regulate”);

M orrison, 529 U.S. at 615 (“If accepted, petitioners’ reasoning would allow

Congress to regulate any crime as long as the nationwide, aggregated impact of

that crime has substantial effects on employment, production, transit, or

consumption.”).

-25-
 No one would question that the possession of body armor by felons

contributes to crime, or that crime has a measurable and significant impact on the

national economy. But that was the argument rejected in Lopez and M orrison.

Possession of firearms in the vicinity of schools can contribute to crime, and

gender-motivated violence is crime. This Court, being bound by the precedents of

Lopez and M orrison, therefore cannot hold that simply because body armor

facilitates crime, the subject falls within Congress’s commerce power.

Indeed, application of section 931 in this case has an even more attenuated

relation to interstate commerce than the possession of firearms in Lopez— let

alone the actual commission of violent offenses in M orrison. Unlike carrying a

firearm in the vicinity of a school, wearing body armor is not an inherently

threatening act. M uch of the time, wearing body armor is an act of self-defense,

which reduces rather than increases crime. This case illustrates the point: M r.

Patton was not armed at the time he was apprehended and— according to his

story— was wearing the vest solely because his prior gang activity, now

abandoned, made him vulnerable to attack. If the statute w ere limited to

possession of body armor in conjunction with an offensive w eapon, or to the use

of body armor in the commission of a crime affecting interstate commerce, which

were the scenarios motivating its enactment, 6 the connection would be less

6
Congress enacted the statute in response to three notorious incidents in
(continued...)

-26-
attenuated. As it is, however, application of section 931 to the circumstances of

this case cannot be reconciled with Lopez and M orrison.

M oreover, the dissenters’ arguments in Lopez and M orrison regarding the

substantial effect of the regulated conduct on interstate commerce largely rested

on the frequent incidence, and therefore significant aggregated effect, of the

conduct. See e.g., Lopez, 514 U.S. at 616, 619-27 (Breyer, J., dissenting);

M orrison, 529 U.S. at 659-60 (Breyer, J., dissenting). The theory was that

widespread conduct, occurring nationwide, has national consequences and

warrants a national response. The House Report on section 931, by contrast,

contained a Congressional Budget Office estimate, based on information from the

U.S. Sentencing Commission, that the prohibition on possession of body armor by

felons “would probably affect fewer than 10 cases each year.” H.R. Rep. No.

107-193, pt. 1, at 7 (2001). Ten criminal cases a year is at the other end of the

spectrum from Lopez and M orrison. The CBO estimate shows that the effect on

interstate commerce of felons’ possession of body armor is probably negligible

and certainly far from substantial.

6
(...continued)
which armed criminals wore body armor— a bank shootout in North Hollywood,
California, the shooting of a San Francisco police officer after a long gun battle,
and the shooting of an Alabama police officer by a drug dealer resisting a search
warrant. H.R. Rep. No. 107-193, pt. 1, at 4 (2001).

-27-
 3. W hat are the congressional findings?

Analysis of the effect of felons’ possession of body armor is facilitated by

Congress’s “specific findings regarding the effects of the prohibited activity on

interstate commerce.” Grim mett, 439 F.3d at 1272. W e treat Congress’s findings

“on essentially factual issues” with “a great deal of deference,” Walters v. Nat’l

Ass’n of Radiation Survivors, 473 U.S. 305, 330 n.12 (1985), and “[p]roper

respect for a co-ordinate branch” requires that we also treat Congress’s normative

conclusions and constitutional judgments with great respect. See United States v.

Harris, 106 U.S. (16 Otto) 601, 635 (1883).

Although there were no preambulatory findings enacted as part of the

statute, the House Report contained the following formal findings regarding the

rationale for section 931:

(1) nationally, police officers and ordinary citizens are facing increased
danger as criminals use more deadly weaponry, body armor, and other
sophisticated assault gear;
(2) crime at the local level is exacerbated by the interstate movement of
body armor and other assault gear;
(3) there is a traffic in body armor moving in or otherwise affecting
interstate commerce, and existing Federal controls over such traffic do not
adequately enable the States to control this traffic w ithin their own borders
through the exercise of their police power;
(4) recent incidents, such as the murder of San Francisco Police Officer
James Guelff by an assailant wearing 2 layers of body armor, a 1997 bank
shoot out in north Hollywood, California, between police and 2 heavily
armed suspects outfitted in body armor, and the 1997 murder of Captain
Chris M cCurley of the Etowah County, Alabama Drug Task Force by a
drug dealer shielded by protective body armor, demonstrate the serious
threat to community safety posed by criminals who wear body armor during
the commission of a violent crime . . . .

-28-
H.R. Rep. 107-193, pt. 1, at 2.

Several of these findings make no mention of interstate commerce. Those

that do focus on three points: (1) an interstate market for body armor exists, (2)

the interstate movement of body armor increases crime, and (3) federal controls

over the interstate market will allow states to control the intrastate trade in body

armor. The first two points are surely true, but they were also true in Lopez. An

interstate market exists for guns and for body armor, and the interstate movement

of both can increase crime. Yet in Lopez the existence of the market and the

incidence of crime did not establish that the prohibited possessions substantially

affected interstate commerce. See Lopez, 514 U.S. at 563-64 (rejecting the

argument that firearm possession substantially affects interstate commerce

because it can result in violent crime, which in turn affects insurance and

education and thus the national economy).

The congressional findings regarding the existence of an interstate market

for body armor would be more meaningful if the statute attempted to suppress or

limit that market. As discussed above, however, it does not. M anufacture,

distribution, and sale of body armor— even sale of body armor to felons— is

entirely lawful, and has not been regulated by Congress. Congressional findings

that “crime at the local level is exacerbated by the interstate movement of body

armor and other assault gear” and that “there is a traffic in body armor moving in

or otherwise affecting interstate commerce,” H.R. Rep. No. 107-193, pt. 1, at 2,

-29-
while undoubtedly true, do nothing to explain or justify a statute that does not

limit the interstate movement of body armor or the traffic in it.

The third point suggests that federal regulation of the interstate traffic in

body armor would somehow enable the states themselves to prohibit felons’

possession. But thirty-one states already regulate the possession or use of body

armor, with an array of legislative approaches. 7 It is thus clear that the federal

prohibition does not “enable” state prohibitions. At best, the federal law

duplicates the state prohibitions. At worst, it may conflict with a state’s policy

judgment, see Jones v. United States, 529 U.S. 848, 859 (2000) (Stevens, J.,

concurring) (noting that the severe penalties of the federal criminal arson statute

could “effectively displace a policy choice made by the State”); discourage

experimentation, see Lopez, 514 U.S. at 583 (Kennedy, J., concurring)

(suggesting that the Gun-Free School Zones Act “foreclose[d] the States from

7
In fifteen states a person commits a crime or receives a higher sentence for
wearing body armor while committing certain crimes (Arizona, Delaware,
Georgia, Indiana, M assachusetts, M innesota, New Hampshire, New Jersey, New
York, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, W est Virginia);
in four states, for wearing body armor and possessing a deadly weapon while
comm itting certain crimes (Florida, Kentucky, Utah, Virginia); in five states, for
possessing body armor after being convicted of a felony (Alabama, Arizona,
Connecticut, Texas, W isconsin); in six states, for w earing body armor w hile
comm itting certain crimes or for possessing body armor after being convicted of a
felony (California, Illinois, Louisiana, M aryland, M ichigan, South Carolina); and
in one state, for wearing body armor and possessing a deadly weapon while
comm itting certain crimes or for possessing body armor after being convicted of a
felony (Oregon). Additionally, one state that restricts felon possession also
requires that sales to private parties be made face-to-face (Connecticut).

-30-
experimenting and exercising their own judgment in an area to which States lay

claim by right of history and expertise”); or even preempt state criminal laws, see

Pennsylvania v. Nelson, 350 U.S. 497, 504 (1956) (holding that a federal sedition

statute preempted the Pennsylvania Sedition Act); see also M ichael A. Simons,

Prosecutorial Discretion and Prosecution Guidelines: A Case Study in

Controlling Federalization, 75 N.Y.U. L. Rev. 893, 962 n.309 (2000) (noting the

“de facto preemption of state and local prosecutions” in the context of crimes

implicating federal interests).

M oreover, the findings indicate that this statute falls primarily within an

area of traditional regulation by the states, namely protecting “police officers and

ordinary citizens” from violent crime. See Lopez, 514 U.S. at 561 n.3 (noting the

“primary authority” of the states for creating the criminal law (internal quotation

marks omitted)); M orrison, 529 U.S. at 615-17 (noting areas of traditional state

concern and “reject[ing] the argument that Congress may regulate noneconomic,

violent criminal conduct based solely on that conduct’s aggregate effect on

interstate commerce”). Congress was understandably concerned about “the

serious threat to community safety posed by criminals who wear body armor

during the commission of a violent crime.” H.R. Rep. No. 107-193, pt. 1, at 2.

Yet in this area the Supreme Court has emphasized the prerogatives of the states.

See, e.g., M orrison, 529 U.S. at 618 (“The regulation and punishment of intrastate

violence that is not directed at the instrumentalities, channels, or goods involved

-31-
in interstate commerce has always been the province of the States.”); Cohens v.

Virginia, 19 U.S. (6 W heat.) 264, 426 (1821) (M arshall, C.J.) (concluding that

Congress has “no general right to punish murder committed within any of the

States”). 8 M oreover, as noted above, this statute not only intrudes on an area of

traditional state concern but also potentially conflicts w ith the widespread state

regulation that already exists. Cf. Lopez, 514 U .S. at 561 n.3 (“W hen Congress

criminalizes conduct already denounced as criminal by the States, it effects a

change in the sensitive relation betw een federal and state criminal jurisdiction.”

(internal quotation marks omitted)). Far from establishing a substantial effect on

interstate commerce, these findings raise concerns about federal intrusion and

suggest that wearing body armor affects interstate commerce insofar as all crime

hurts the economy— an argument the Supreme Court rejected in Lopez and

M orrison.

4. Is there a sufficient jurisdictional hook?

Finally, we consider “whether the statue’s reach w as limited by an express

jurisdictional element.” Jeronimo-Bautista, 425 F.3d at 1269. As the Court

8
W e do not mean to suggest that subjects of traditional state concern are
immune from congressional regulation when they fall within Congress’s Article I
powers. Our constitutional federalism is based on a one-way enumeration: the
question is whether a particular authority has been vested in Congress, not
whether it falls within the reserved powers of the states, which are defined only
negatively. But evidence regarding traditional divisions of power between the
states and the federal government can help to show how the C onstitution’s
enumerations have been interpreted over time.

-32-
explained in M orrison, a jurisdictional hook restricting the statute to activities

that “‘have an explicit connection with or effect on interstate commerce’ . . . .

may establish that the enactment is in pursuance of Congress’ regulation of

interstate commerce.” 529 U.S. at 612 (quoting Lopez, 514 U.S. at 562). A

jurisdictional hook is not, however, a talisman that wards off constitutional

challenges. See United States v. Rodia, 194 F.3d 465, 472-73 (3d Cir. 1999)

(rejecting a “hard and fast rule that the presence of a jurisdictional element

automatically ensures the constitutionality of a statute”); United States v. Holston,

343 F.3d 83, 88 (2d Cir. 2003) (finding the jurisdictional hook factor

“superficially met” but not relying on “the mere existence of jurisdictional

language purporting to tie criminal conduct to interstate commerce”). As the

Eleventh Circuit has recently noted, “where a jurisdictional element is required, a

meaningful one, rather than a pretextual incantation evoking the phantasm of

comm erce, must be offered.” M axwell, 2006 W L 1041011, at *7 (internal

quotation marks, citations, and alteration omitted). The ultimate inquiry is

whether the prohibited activity has a substantial effect on interstate commerce,

and the presence of a jurisdictional hook, though certainly helpful, is neither

necessary nor sufficient.

The principal practical consequence of a jurisdictional hook is to make a

facial constitutional challenge unlikely or impossible, and to direct litigation

toward the statutory question of whether, in the particular case, the regulated

-33-
conduct possesses the requisite connection to interstate commerce. See Jones,

529 U.S. at 857. In Jones, the Supreme Court unanimously held that an alleged

violation of the federal arson statute fell outside the statute’s jurisdictional hook,

which limited application to “‘property used in interstate or foreign comm erce or

in any activity affecting interstate or foreign comm erce.’” Id. at 850-51 (quoting

18 U.S.C. § 844(i)). The government argued that the jurisdictional hook was

satisfied because the burned home was used in three activities affecting interstate

commerce: securing a mortgage from an out-of-state lender, obtaining a casualty

insurance policy from an out-of-state insurer, and receiving natural gas from out-

of-state sources. Id. at 855. The Court rejected this “expansive interpretation” in

part because “[p]ractically every building in our cities, towns, and rural areas is

constructed with supplies that have moved in interstate commerce, served by

utilities that have an interstate connection, financed or insured by enterprises that

do business across state lines, or bears some other trace of interstate commerce.”

Id. at 857. In Jones, therefore, the jurisdictional hook served the purpose of

limiting the statute to arson cases where there really was a substantial and non-

attenuated effect on interstate commerce.

The statute under which M r. Patton was charged also has a jurisdictional

hook, but it does not seriously limit the reach of the statute. The jurisdictional

hook, § 921(a)(35), limits the definition of “body armor” to “any product sold or

offered for sale, in interstate or foreign comm erce, as personal protective body

-34-
covering intended to protect against gunfire.” Nearly all body armor will meet

that test. M ore important, there is no reason to think that possession of body

armor that satisfies the jurisdictional hook has any greater effect on interstate

commerce than possession of any other body armor.

If Congress intended to suppress the interstate market in body armor, then

directing a prohibition on possession towards armor that had moved in interstate

commerce would make sense. Cf. Wickard, 317 U.S. at 128 (“O ne of the primary

purposes of the Act in question was to increase the market price of wheat and to

that end to limit the volume thereof that could affect the market.”). Where

Congress has chosen to allow production, distribution, and sale of body armor in

interstate commerce, however, it is hard to understand why possession of armor

that meets that description is more objectionable than any other. See Holston, 343

F.3d at 89 (questioning the effectiveness of a jurisdictional hook when “the

interstate component underpinning the jurisdictional element, for example, the

shipment of a video camera, is attenuated from the criminal conduct— the

production of child pornography— which occurs entirely locally”).

A jurisdictional hook that restricts a statute to items that bear a “trace of

interstate commerce” is no restriction at all. Jones, 529 U.S. at 857. To apply the

body armor statute to every case where body armor w as once sold across state

lines would therefore replicate the government’s error in Jones. If the

jurisdictional hook had limited application of the statute to cases where the felon

-35-
used body armor during commission of a crime that affected interstate commerce,

we would know exactly what Congress’s theory of its authority is. W e would

then be able to evaluate whether, on the facts of the case, the substantial and non-

attenuated connection to interstate commerce that Congress expected was present.

As it is, however, section 931’s requirement that the body armor must once have

traveled in interstate commerce is so sweeping as to be unhelpful in determining

whether the activities regulated by the statute have a substantial and non-

attenuated effect on interstate commerce.

Given that M r. Patton’s possession was not interstate, not commercial, and

not an essential part of a comprehensive scheme of economic regulation, that his

use of the bulletproof vest was in self-defense and not connected to crimes that

might affect interstate commerce, and in light of the CBO’s prediction that the

statute would be applied fewer than ten times a year, we find no rational basis for

concluding that the possession of body armor prohibited by section 931

substantially affects interstate commerce. W e thus conclude that 18 U.S.C. § 931

cannot be justified as a regulation of the channels of commerce, as a protection of

the instrumentalities of commerce, or as a regulation of intrastate activity that

substantially affects interstate commerce.

D. Scarborough v. United States

Although the body armor statute does not fit within any of the Lopez

categories, it is supported by the pre-Lopez precedent of Scarborough v. United

-36-
States, 431 U.S. 563, 575 (1977), which held that Congress intended a felon-in-

possession statute to prohibit possession of any firearm that had moved in

interstate commerce. Scarborough decided only a question of statutory

interpretation about a previous version of the felon-in-possession statute, but the

decision assumed that Congress could constitutionally regulate the possession of

firearms solely because they had previously moved across state lines. See Brent

E. Newton, Felons, Firearms, and Federalism: Reconsidering Scarborough in

Light of Lopez, 3 J. App. Practice & Process 671, 674 (2001).

The constitutional understanding implicit in Scarborough— that Congress

may regulate any firearm that has ever traversed state lines— has been repeatedly

adopted for felon-in-possession statutes by this Court. In United States v. Bolton,

68 F.3d 396 (10th Cir. 1995), we announced without fanfare that the post-Lopez

jurisdictional hook in § 922(g) w as enough to ensure constitutionality. Id. at 400

(“Section 922(g)’s requirement that the firearm have been, at some time, in

interstate commerce is sufficient to establish its constitutionality under the

Commerce Clause.” (internal quotation marks omitted)). In United States v.

Farnsworth, 92 F.3d 1001, 1006 (10th Cir. 1996), following Bolton, we rejected

an as-applied challenge and found it sufficient that the defendant’s “gun had been

manufactured in a different state from that in which it was found.” 92 F.3d at

1006. M ost recently, in United States v. Dorris, 236 F.3d 582 (10th Cir. 2000),

we considered a challenge based not only on Lopez but also on M orrison and

-37-
Jones. In rejecting the challenge, we based our holding squarely on Scarborough

and on our own line of precedents, even though in dicta we described § 922(g)(1)

as a regulation of “items sent in interstate commerce, and the channels of

comm erce themselves.” Dorris, 236 F.3d at 584-86 (calling Scarborough a case

in w hich “the Supreme Court passed on the very question M r. Dorris presents us”

and noting that “[t]his Court has tw ice considered § 922(g)(1)’s post-Lopez

constitutionality in Bolton and Farnsworth”).

O ther circuits have similarly continued to follow Scarborough, though

some have expressed doubts about its continuing validity. See, e.g., United States

v. W eem s, 322 F.3d 18, 26 (1st Cir. 2003) (considering Scarborough to be

unaltered by Jones); United States v. Lemons, 302 F.3d 769, 773 (7th Cir. 2002)

(noting “ample Seventh Circuit precedent” upholding § 922(g)(1) because of its

jurisdictional hook and suggesting that if Lopez undercuts this approach, “it is for

the Supreme Court to so hold”); United States v. Cortes, 299 F.3d 1030, 1037 n.2

(9th Cir. 2002) (noting that doubts have been raised but choosing, “[u]ntil the

Suprem e Court tells us otherw ise,” to “follow Scarborough unwaveringly”);

United States v. Kirk, 105 F.3d 997, 1004 (5th Cir. 1997) (evenly divided court en

banc) (Higginbotham, J.) (upholding § 922(o), the ban on possession of machine

guns, but relying on the third Lopez category instead of the more expansive

approach in United States v. Bass, 404 U .S. 336, 350 (1971), a predecessor case

to Scarborough, and noting that “[i]t is not for us to say that Bass cannot survive

-38-
Lopez”); id. at 1016 n.25 (Jones, J.) (finding the statute unconstitutional under

the three Lopez categories yet noting that “[w]e are not at liberty to question”

Scarborough, despite its “tension” with Lopez); United States v. Smith, 101 F.3d

202, 215 (1st Cir. 1996) (holding that Scarborough, not Lopez, applies to statues

with a jurisdictional hook); United States v. Kuban, 94 F.3d 971, 973 n.4 (5th Cir.

1996) (noting the “powerful argument” against the constitutionality of § 922(g)(1)

but regarding Scarborough “as barring the w ay” for an “inferior federal court”);

id. at 976-78 (DeM oss, J., dissenting in part) (distinguishing the statute in

Scarborough and finding its holding “in fundamental and irreconcilable conflict

with the rationale” of Lopez); United States v. Chesney, 86 F.3d 564, 571 (6th

Cir. 1996) (following Scarborough); id. at 577-82 (Batchelder, J., concurring)

(distinguishing Scarborough because it did not reach the constitutional question,

concluding that despite its jurisdictional hook § 922(g)(1) fits none of the Lopez

categories, but nevertheless concurring because of prior Sixth Circuit precedent);

United States v. Shelton, 66 F.3d 991, 992 (8th Cir. 1995) (per curiam) (following

Scarborough); United States v. Bishop, 66 F.3d 569, 587-88 & n.28 (3d Cir. 1995)

(upholding 18 U.S.C. § 2119, a carjacking statute, because of its jurisdictional

hook and noting that until the Supreme Court is more explicit on the relationship

between Lopez and Scarborough a lower court is “not at liberty to overrule

existing Supreme Court precedent”); id. at 593-97 & n.13 (Becker, J., concurring

in part and dissenting in part) (criticizing the majority for relying on

-39-
Scarborough, which “was devoid of any Commerce Clause analysis,” and

insisting that a jurisdictional hook could make an application of a statute

constitutional only if it also fell within one of the three Lopez categories); but see

United States v. Luna, 165 F.3d 316, 321 n.16 (5th Cir. 1999) (noting “the

uncertainty surrounding the application of Scarborough” and instead basing its

holding on the Lopez categories).

The two courts outside this Circuit that have considered the

constitutionality of 18 U.S.C. § 931 have taken a similar approach. One found the

question controlled by Scarborough and Third Circuit precedents upholding 18

U.S.C. § 922(g). See United States v. Kitsch, 307 F. Supp. 2d 657, 660-61 (E.D .

Pa. 2004). The other relied on Sixth Circuit precedents upholding § 922(g), the

presence of the jurisdictional hook, and the persuasive authority of Kitsch. See

United States v. M arler, 402 F. Supp. 2d 852, 854-55 (N .D. Ohio 2005).

Because M r. Patton’s bulletproof vest moved across state lines at some

point in its existence, Congress may regulate it under Scarborough, even though it

does not fall within any of the three categories the Court now recognizes for

Commerce Clause authority. The prohibition on possessing body armor cannot be

distinguished from the prohibitions on possessing firearms that we have upheld.

As noted above, firearms are more broadly regulated than body armor. But in

Bolton, Farnsworth, and Dorris this Court never treated the constitutionality of

the firearm statutes as turning on the scope of the regulatory scheme.

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Consequently, this difference between body armor and firearms is not relevant

under the Scarborough line of analysis. Following our precedent, we conclude

that 18 U.S.C. § 931 does not exceed congressional power under the Commerce

Clause.

Like our sister circuits, we see considerable tension between Scarborough

and the three-category approach adopted by the Supreme Court in its recent

Commerce Clause cases, and like our sister circuits, we conclude that we are

bound by Scarborough, which was left intact by Lopez. Even if we were not

persuaded that Scarborough remains “the case which directly controls,” Agostini

v. Felton, 521 U.S. 203, 237 (1997), we would still be compelled to follow its

reasoning by prior decisions of this Court, which have continued to adhere to

Scarborough despite Lopez and the subsequent cases. See Bolton, 68 F.3d at 400;

Farnsworth, 92 F.3d at 1006; Dorris, 236 F.3d at 584-86. Any doctrinal

inconsistency between Scarborough and the Supreme Court’s more recent

decisions is not for this Court to remedy. Agostini, 521 U.S. at 237. W e suspect

the Supreme Court will revisit this issue in an appropriate case— maybe even this

one.

III. Due Process

M r. Patton’s remaining constitutional arguments may be disposed of

quickly. He makes two as-applied challenges to the statute under the D ue Process

Clause of the Fifth Amendment. The first is that the statute deprived him of

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property he had legitimately acquired, namely the bulletproof vest, without due

process of law.

As the government points out, M r. Patton cites no authority in support of

his argument. But his claim is reminiscent of that in Dred Scott v. Sandford, 60

U.S. (19 How.) 393, 450, 452 (1857), which held that a slaveholder was deprived

of his putative property, without due process of law, by territorial legislation

barring slavery. The argument is no more persuasive now than it w as then. See

id. at 627 (Curtis, J., dissenting). It is not unconstitutional for Congress or a state

legislature to forbid possession of a previously licit good, or to forbid a class of

persons from possessing an item they had been permitted to possess. Samuels v.

M cCurdy, 267 U.S. 188, 194-99 (1925) (holding that a state does not violate the

Due Process Clause of the Fourteenth Amendment by prohibiting the possession

of lawfully acquired goods). Such legislation may, in a sense, be a deprivation of

property, but if the legislation is duly enacted and enforced through proper

procedures, there is no denial of due process of law. See Helton v. Hunt, 330

F.3d 242, 247 (4th Cir. 2003) (sustaining a due process challenge to a statute

“providing for the destruction of video gaming machines without any process

whatsoever”).

M r. Patton’s second due process argument is that he has a right of self-

protection. W ith no assurance of government safekeeping, M r. Patton had to

protect himself “from his enemies on the street.” Br. for Appellant 15. The

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federal government prevented him from doing so, he claims, by taking away his

one legal means of self-protection, the bulletproof vest.

The Due Process Clause of the Fifth Amendment does not give M r. Patton

the right to protect himself through unlawful means. As M r. Patton concedes, the

government does not have a constitutional obligation to protect a person’s life,

liberty, and property from harm inflicted by third parties. DeShaney v.

Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). There are tw o

exceptions to this rule, when the government involuntarily restrains a person

(“special relationship”) and when the government creates the danger (“danger

creation”). Armijo ex rel. Chavez v. Wagon M ound Pub. Sch., 159 F.3d 1253,

1260 (10th Cir. 1998). Although some language in our previous cases supports

M r. Patton’s claim, see, e.g., Arm ijo, 159 F.3d at 1261 (describing the “special

relationship” exception as applying when “the state restrains an individual’s

freedom to act to protect himself or herself through a restraint on that individual’s

personal liberty”), the prohibition on possessing body armor does not create a

“special relationship.” W e have found such a relationship only in the case of

persons who depend “‘completely on the state to satisfy their basic human

needs’”— for example, prisoners, those involuntarily committed to mental

institutions, and foster children. DeAnzona v. City & County of Denver, 222 F.3d

1229, 1234 (10th Cir. 2000) (quoting M aldonado v. Josey, 975 F.2d 727, 732-33

(10th Cir. 1992)). The federal government restricted M r. Patton’s freedom of

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movement and forbade him to possess body armor, but it did not feed, clothe, and

house him; no “special relationship” existed. It is also clear that the government

did not create the danger to M r. Patton. As a result, whatever the nature of M r.

Patton’s interest in self-protection, the ban on his possession of body armor does

not violate the Due Process Clause.

IV. The Necessity D efense

M r. Patton also challenges the district court’s exclusion of his “modified

justification defense.” Br. for Appellant 18. Although M r. Patton declines to

confine his defense to conventional legal categories such as necessity or duress,

in substance this is a necessity defense, and we review the district court’s denial

of a necessity defense for abuse of discretion. See U nited States v. Seward, 687

F.2d 1270, 1276 (10th Cir. 1982) (en banc) (concluding that the district court did

not abuse its discretion by denying the requested instruction for a necessity

defense); see also United States v. M eraz-Valeta, 26 F.3d 992, 995 (10th Cir.

1994), overruled on other grounds by United States v. Aguirre-Tello, 353 F.3d

1199 (10th Cir. 2004) (en banc). W e have not always been consistent about the

standard of review for a district court’s denial of a requested defense instruction,

see Fed. Deposit Ins. Corp. v. UM IC, Inc., 136 F.3d 1375, 1382 (10th Cir. 1998)

(citing one case each for de novo and abuse of discretion), and we recognize that

other circuits use de novo review for this essentially legal question, see, e.g.,

United States v. Cervantes-Flores, 421 F.3d 825, 828 (9th Cir. 2005) (per

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curiam). Nevertheless, our standard of review is controlled by this Court’s en

banc decision in Seward and the panel decision in M eraz-Valeta.

M r. Patton’s argument assumes that a federal common law defense of

necessity exists, and the government does not contend otherwise. Even though

the Supreme Court has called it “an open question whether federal courts ever

have authority to recognize a necessity defense not provided by statute,” United

States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 490 (2001), this Court

has recognized a common law defense of necessity. See Seward, 687 F.2d at

1276 (holding that the defendant did not meet the requirements of the necessity

defense); cf. Frank Easterbrook, The Case of the Speluncean Explorers: Revisited,

112 Harv. L. Rev. 1913, 1913-14 (1999) (“All three branches of government

historically have been entitled to assess claims of justification— the legislature by

specifying the prohibition and allowing exceptions, the executive by declining to

prosecute (or by pardon after conviction), and the judiciary by developing

defenses.”). W e therefore assume that a federal necessity defense exists.

The district court granted the government’s motion in limine to exclude M r.

Patton’s “modified justification defense,” finding as a matter of law that M r.

Patton had not asserted facts sufficient to support it. In effect, M r. Patton is

asking for a necessity defense w ithout the usual imminence requirement. He

proposes this less rigorous variant of the necessity defense primarily on the

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grounds that his crime threatened no one. He also argues that in his case the “risk

of harm [was] more omnipresent than imminent.” Br. for Appellant 21.

M r. Patton, then, is asking us to restructure the requirements of the

necessity defense for purportedly “victimless” crimes. Others have made the

same suggestion. See, e.g., M odel Penal Code § 3.02(1)(a) (offering a “choice of

evils” defense that does not require imminence but does require that “the harm or

evil sought to be avoided by such conduct is greater than that sought to be

prevented by the law defining the offense charged”); Law rence P. Tiffany & Carl

A. Anderson, Legislating the Necessity Defense in Criminal Law, 52 Denv. L.J.

839, 854 (1975) (“No matter how improbable or temporally remote the threatened

harm, should not the scales be tipped in favor of a defendant who sought to avoid

that threatened harm by an act that posed no threat to anyone?”); Aldrich v.

Wright, 53 N.H. 398, 1873 W L 4187, at *5 (1873). W e do not decide whether

there are ever circumstances in which the imminence requirement should be

relaxed, but w e decline to create an exception in this case. W e do so for two

reasons. First, given the uncertainty surrounding judge-made defenses to federal

crimes, Oakland Cannabis Buyers’ Coop., 532 U.S. at 490, we are reluctant to

refashion the traditional requirements. Second, to allow M r. Patton’s modified

necessity defense for section 931 might effectively read the statute out of

existence. Congress made the decision to criminalize possession of body armor

by a class of individuals who have threatened others and are likely to be

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threatened themselves— i.e., those who have been convicted of a violent

felony— and allowing them to violate the statue whenever they live in dangerous

circumstances might cause the defense to swallow up the crime.

M r. Patton must therefore meet the traditional common law requirements of

the necessity defense: “(1) there is no legal alternative to violating the law, (2)

the harm to be prevented is imminent, and (3) a direct, causal relationship is

reasonably anticipated to exist between the defendant’s action and the avoidance

of harm.” M eraz-Valeta, 26 F.3d at 995. W e need not consider the first and third

requirements because M r. Patton clearly does not meet the traditional requirement

of imminence, as M r. Patton himself concedes. W e thus conclude that the district

court did not abuse its discretion by granting the government’s motion in limine

to exclude M r. Patton’s modified necessity defense.

V. Conclusion

Because we reject M r. Patton’s constitutional claims and uphold the district

court’s exclusion of the necessity defense, we AFFIRM the conviction.

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