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Court Weighs Federal Role in Setting Gun-Free Zones

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Washington

The U.S. Supreme Court appeared skeptical last week of the constitutionality of a federal law that bans possession of guns within 1,000 feet of a school.

Several Justices expressed doubt that merely having a gun near a school is sufficiently related to interstate commerce, which was the constitutional basis under which Congress adopted the Gun-Free School Zones Act in 1990.

During oral arguments in U.S. v. Lopez (Case No. 93-1260), Associate Justice Antonin Scalia noted that the High Court traditionally has given Congress wide latitude in justifying federal laws under the commerce power.

"But here you have a regulation of something that is not commercial activity in any sense of the word," he said. "It is mere possession."

U.S. Solicitor General Drew S. Days 3rd defended the law, saying the threat of violent crime affects the quality of education, which in turn is connected to the health of the national economy.

"We are talking about commercial activity," he said. "Congress has been concerned long before 1990 about this country's decline in educational achievement and its impact on the national economy."

The Gun-Free School Zones Act was struck down last year by the U.S. Court of Appeals for the Fifth Circuit, which held that Congress failed to show how the regulation was related to its power to regulate interstate commerce. The appeals court overturned the conviction of Alfonso Lopez Jr., who was caught with a .38-caliber handgun at his San Antonio high school in 1992. (See Education Week, 11/02/94.)

Numerous education groups have filed friend-of-the-court briefs backing the law as a beneficial federal response to the threat of school violence. But the National School Boards Association joined a brief that argued Congress overstepped its authority in legislating over a matter that traditionally was a concern for the states. The N.S.B.A. said it feared that Congress might use the commerce power to enact strict mandates for public education.

The Commerce Power

Much of the oral argument was devoted to the question of whether Congress could justify almost any federal criminal or education law under the commerce power.

"What if Congress had said that the states ... had proven incapable of providing sufficient education in math and technology?" Associate Justice David H. Souter asked Mr. Days. "As a result, Congress was going to nationalize the schools. Would that be justified under the commerce clause?"

Mr. Days responded that such an action would "raise a concern that Congress was taking over something that was a state responsibility."

He pointed out that in the federal crime bill passed by Congress this year, lawmakers amended the Gun-Free School Zones Act to add general findings that relate the presence of guns around schools to a decline in educational quality, which "has an adverse impact on interstate commerce."

He added that the government was not relying on the retroactive passage of the findings to win its case, since its position is that Congress did not need to adopt them at all.

Asked whether the presence of the Congressional findings would have changed the result in the Fifth Circuit court, Mr. Lopez's lawyer, John R. Carter, said not necessarily.

The findings are "awfully global," he said. "I would question their validity."

Associate Justice Ruth Bader Ginsburg seemed to agree, calling the Congressional statement of findings "schoolmarmish."

Mr. Carter, an assistant federal public defender in San Antonio, argued that the gun-free school-zones law was enacted under a "general police power" that Congress does not have under the Constitution.

The Justices seemed to be concerned with how a ruling in this case might affect other acts of Congress. They questioned whether Congress was empowered under the commerce clause to restrict possession of assault weapons or to order the removal of asbestos from schools, both of which it has done.

A ruling in the case is expected in late June.

Cases Denied Review

In other action last week, the High Court:

  • Declined to intervene in a desegregation suit involving student transfers among three Mississippi school districts. The appeal was Enterprise Consolidated School District v. Lauderdale County School District (No. 94-482).
  • Let stand a federal appellate ruling that barred a New York State school district from disciplining a teacher for campaigning too close to a school-board-election site because boundary limits were not marked. The case was Tuxedo Union Free School District v. Cullen (No. 93-1906).
  • Refused to disturb lower federal-court rulings that a New Hampshire district must provide two years of compensatory education to a disabled man because he was kept out of school for two years during a dispute over his education plan. The Court declined the appeal of Timberlane Regional School District v. Murphy (No. 94-480).

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