THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Monday, October 31, 1994 TAG: 9410280021
SECTION: FRONT PAGE: A9 EDITION: FINAL
TYPE: Opinion
SOURCE: James Kilpatrick
DATELINE: WASHINGTON LENGTH: Medium: 73 lines
Next month the U.S. Supreme Court will take a look at Alfonso Lopez - not at what he did, but at the law punishing what he did. On a spring day in 1992, he carried a gun to school.
The facts are not in dispute. Lopez was then a senior at Edison High School in San Antonio. The principal received a tip that the youth was packing a gun. A school policeman searched him and confiscated a .38-caliber revolver and five cartridges. The cops took Lopez to the county jail and charged him under state law with possessing a firearm on school premises.
The next day federal agents stepped in. They charged Lopez under federal law with violating the Gun-Free School Zones Act of 1990.
Once the feds came into the picture, state officials stepped aside. Lopez went to trial before a U.S. district judge. There was no question of his guilt. The judge sentenced him to six months' imprisonment, to be followed by two years on probation.
The Supreme Court's concern is not whether Lopez engaged in bad conduct. The larger question is whether he was convicted on bad law. Lopez contends that in adopting the Gun-Free School Zones Act, Congress exceeded its power to regulate commerce among the states.
The U.S. Court of Appeals for the 5th Circuit accepted this novel argument. A year ago, in a startling opinion by Judge William L. Garwood, the 5th Circuit reversed Lopez's conviction. ``Broad as the commerce power is,'' said Judge Garwood, ``its scope is not unlimited.'' The act, he said, makes it a crime for any person to carry an unloaded shotgun in the gun rack of a pickup truck while driving on a county road that at one turn happens to come within 950 feet 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.''
Circuit Judges Carolyn King and Thomas M. Reavley joined Judge Garwood's opinion. In so doing they struck a blow for old-time federalism. They revived the moribund 10th Amendment.
Conservatives had better enjoy this valiant effort while they can. The high court will hear argument in the Lopez case on Nov. 8. Not long thereafter, unless my poor powers of prediction are even poorer than usual, the Supremes will reverse the 5th Circuit and declare the federal act to be well within the authority of Congress to regulate com-merce.
Let me jump to California. Last year police arrested Ray Harold Edwards in the parking lot of Grant Union High School in Sacramento. They found two rifles in the trunk of his car. He could have been tried under state law. Instead, prosecutors elected to proceed under federal law. Edwards made the same argument that Lopez had made: The Gun-Free School Zones Act is unconstitutional.
On appeal, the 9th Circuit came down exactly 180 degrees away from Judge Garwood's ruling in the 5th Circuit. The violence created through the possession of firearms, said Judge Arthur L. Alarcon, adversely affects the national economy. Congress long ago made findings that firearms move in interstate commerce. It is unnecessary to repeat such findings every time. When it legislates under the Commerce Clause, Congress is entitled to ``highly def-er-en-tial'' treat-ment.
Dozens of organizations have filed friend-of-the-court briefs with the Supreme Court. State legislators, governors, mayors and municipal law officers are supporting Lopez: They want the feds to go away. On the other side, one finds briefs from teachers, principals, chiefs of police and the PTA: They like the idea of a tough and specific federal law.
My own hope is that one day the House and Senate will adopt a rule that every bill must cite the constitutional authority on which it relies. I should live so long! MEMO: Mr. Kilpatrick's column is distributed by Universal Press Syndicate,
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