Goines’s case has nothing to do with whether we should permit felons to have firearms. Rather, this case is about which governing authority has the power to implement such prohibitions: the states or Congress? Every state prohibits felons from possessing firearms. But the U.S. Constitution grants Congress the power to “regulate Commerce … among the states,” not to regulate guns or pass general criminal laws. And yet, Mr. Goines was convicted as a felon-in-possession even though neither he nor the firearm he briefly possessed had any current connection to interstate commerce. The only connection to interstate commerce was that the firearm “was manufactured in the country of Austria,” “imported to the United States through the State of Georgia,” and “recovered in the State of Kansas.”
Relying on Scarborough v. United States (1977)—a case that didn’t address the extent of Congress’s constitutional authority—the Tenth Circuit and federal government believe that any minimal past connection to interstate commerce gives Congress permanent authority to regulate any firearm. “Commerce” here is more like an ineradicable virus, like chicken pox, that, once acquired, is carried by the victim forever. The government’s argument amounts to asserting congressional power over all guns anywhere, whoever has them.
That view threatens to obliterate the distinction between federal and state power and is irreconcilable with the U.S. Supreme Court’s revolutionary decisions of United States v. Lopez, United States v. Morrison, and NFIB v. Sebelius. Courts must impose meaningful, judicially administrable boundaries on Congress justifying laws as necessary and proper to carrying into effect its regulation of commerce. The judicially administrable line drawn by Lopez and Morrison is that noneconomic, entirely intrastate activity is beyond the scope of congressional authority. Merely possessing a gun is an intrastate, noneconomic activity, even if the gun “moved in or affects interstate commerce,” as the statute says. Important constitutional limits are now a legislative drafting game: Ritually intone words similar to “affecting interstate commerce” in a statute and the federal government may forever regulate any object that has passed through interstate commerce.
Cato has filed a brief supporting Mr. Goines petition to the Supreme Court. To be within Congress’s commerce power, a felon-in-possession must contemporaneously affect commerce. The Supreme Court has the opportunity to reinforce that a more substantive connection to interstate commerce is required for Congress to regulate noneconomic intrastate activity. We urge the Court to do so.
