The Nine [45]
On March 10, 1992, Lopez, a twelfth grader, arrived at Edison High School in San Antonio carrying a concealed .38 caliber handgun and five bullets. Acting on an anonymous tip, school authorities confronted him, and Lopez disclosed the weapon. He was arrested and charged under Texas law with possession of a firearm on school premises. But the state charges were dismissed the next day when federal agents accused him of violating the Gun-Free School Zones Act of 1990, which prohibited possession of a gun at or near a school. Lopez would have walked quietly away from the case if he had been sentenced to probation. But the judge gave him six months, which interfered with Lopez’s plans to join the Marine Corps, so he asked his public defender to appeal. The facts of the case were simple; the law, it turned out, was not.
By the time Lopez’s case began working its way through the courts, the ideas championed by the Federalist Society had coalesced. The society itself had grown to forty thousand members, with an annual budget of more than $3 million. The movement even got a name, courtesy of Judge Douglas H. Ginsburg, who was once briefly famous. After Robert Bork’s nomination failed in the Senate, Reagan named Ginsburg, then a forty-one-year-old judge on the D.C. Circuit, as his replacement. Ginsburg’s nomination quickly collapsed, however, following news reports that he had smoked marijuana while he was a law professor. Ginsburg soldiered on as a fervently conservative appeals court judge, and he later published an article in Regulation, a libertarian magazine published by the Cato Institute. Ginsburg wrote in an admiring tone about the state of constitutional law before 1937, when the Supreme Court struck down virtually all efforts to regulate the economy. The Court had relied on doctrines like the Commerce Clause, which now represented what Ginsburg called the “Constitution in Exile.” “The memory of these ancient exiles,” he wrote, “banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty—even if perhaps not in their own lifetimes.”
In short, the Constitution in Exile movement represented a direct threat to the modern welfare state, and the United States v. Lopez case loomed as its first major test in the Supreme Court.
As usual, O’Connor had an early question for Drew S. Days III, the solicitor general, who was defending the constitutionality of the guns-in-schools law.
“Is the simple possession of something at or near a school ‘commerce’ at all? Is it?”
“I think the answer to that is that it is,” Days answered.
“I would have thought that it wasn’t,” O’Connor replied in her direct way, “and I would have thought that it, moreover, is not interstate.”
It was an inauspicious start to Days’s argument, which went downhill from there. O’Connor, Kennedy, Rehnquist, and Scalia demanded to know how Congress could presume to regulate mere gun possession, near a school or otherwise.
But the subtext of the questions was almost as significant as the words themselves. The justices oozed contempt for Congress, which they clearly regarded as a bumbling, only quasi-respectable institution.
“Can you tell me, Mr. Days,” Scalia said, with a smirk, “has there been anything in our recent history in the last twenty years where it appears that Congress made a considered judgment that it could not reach a particular subject?”
Laughter drowned out the beginning of Days’s answer.
At another point, Days said that Congress had a “rational basis” for connecting school violence to commerce.
In response, Souter quipped, “Benjamin Franklin said, ‘It is so wonderful to be a rational animal, that there is a reason for everything that one does.’ ” Again, laughter filled the courtroom.
Through most of its history, the Supreme Court had close ties to Congress. Many justices were ex-senators. But the Rehnquist Court had no such connections.