United States v. Lopez ( 1993 )

  •                         UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT
                                      No. 92-5641
          ALFONSO LOPEZ, JR.,
           Appeal from the United States District Court for the
                         Western District of Texas
                             (   September 15, 1993             )
    Before REAVLEY, KING and GARWOOD, Circuit Judges.
    GARWOOD, Circuit Judge:
          The   United      States   Constitution      establishes          a    national
    government of limited and enumerated powers.                As James Madison put
    it in The Federalist Papers, "The powers delegated by the proposed
    Constitution to the federal government are few and defined.                     Those
    which are to remain in the State governments are numerous and
    indefinite." The Federalist No. 45, at 292 (C. Rossiter ed. 1961).
    Madison's understanding was confirmed by the Tenth Amendment.                      It
    is   easy   to   lose    sight   of   all   this   in   a       day   when   Congress
    appropriates trillion-dollar budgets and regulates myriad aspects
    of economic and social life.            Nevertheless, there are occasions on
    which    we   are   reminded     of    this     fundamental   postulate    of    our
    constitutional order.       This case presents such an occasion.
                                   Proceedings Below
          On March 10, 1992, defendant-appellant Alfonso Lopez, Jr.,
    then a twelfth-grade student attending Edison High School in San
    Antonio, Texas, arrived at school carrying a concealed .38 caliber
    handgun.      Based upon an anonymous tip, school officials confronted
    Lopez, who admitted that he was carrying the weapon.                  Although the
    gun was unloaded, Lopez had five bullets on his person.                        After
    being advised of his rights, Lopez stated that "Gilbert" had given
    him the gun so that he (Lopez) could deliver it after school to
    "Jason," who planned to use it in a "gang war."                       Lopez was to
    receive $40 for his services.
          Lopez was charged in a one-count indictment with violating 18
    U.S.C. § 922(q), which makes it illegal to possess a firearm in a
    school zone.1       After pleading not guilty, Lopez moved to dismiss
    the     indictment     on   the        ground     that   section      922(q)     "is
    unconstitutional,      as   it    is    beyond     the   power   of   Congress    to
    legislate control over our public schools."                His brief in support
    of the motion further alleged that section 922(q) "does not appear
    to have been enacted in furtherance of any of those enumerated
         Initially, state charges were filed against Lopez but those
    charges were dropped due to the federal prosecution. What Lopez
    did has been a felony under Texas law since at least 1974. See
    Tex. Penal Code § 46.04(a) (whoever "with a firearm . . . goes .
    . . on the premises of a school or an educational institution,
    whether public or private . . ."); § 46.04(c) (third degree
    powers" of the federal government.       The district court denied the
    motion,   concluding   that    section   922(q)    "is    a   constitutional
    exercise of Congress' well-defined power to regulate activities in
    an[d] affecting commerce, and the 'business' of elementary, middle
    and high schools . . . affects interstate commerce."                   Lopez
    thereafter waived his right to a jury trial and was tried to the
    bench upon stipulated evidence.      The court found Lopez guilty and
    sentenced him to six months' imprisonment to be followed by two
    years' supervised release.      Lopez now appeals his conviction and
    sentence.    Lopez's    sole   objection   to     his    conviction   is   his
    constitutional challenge to section 922(q); he does not otherwise
    contest his guilt.     We now reverse.
         So far as we are aware, the constitutionality of section
    922(q), also known as "the Gun-Free School Zones Act of 1990," is
    a question of first impression in the federal courts.2                Section
    922(q)(1)(A) provides: "It shall be unlawful for any individual
    knowingly to possess a firearm at a place that the individual
    knows, or has reasonable cause to believe, is a school zone."3
    Section 922(q)(1)(B) then carves out several limited exceptions,
         Section 922(q) became law November 29, 1990, as section 1702
    of the Crime Control Act of 1990, P.L. 101-647, 101st Cong. 2d
    Sess., 104 Stat. 4789, 4844-45. Its effective date was sixty
    days later. P.L. 101-647, § 1702(b)(4).
         The Act defines a school zone as follows: "(A) in, or on the
    grounds of, a public, parochial or private school; or (B) within
    a distance of 1,000 feet from the grounds of a public, parochial
    or private school." 18 U.S.C. § 921(a)(25). "School" is defined
    as "a school which provides elementary or secondary education
    under State law." Section 921(a)(26). Lopez stipulated that
    Edison High School was and is a school zone.
    none of which are applicable here.4   Section 922(q)(2) makes it
         Section 922(q)(1)(B) provides:
              "(B) Subparagraph (A) shall not apply to the
         possession of a firearmSQ
                   (i) on private property not part of
              school grounds;
                   (ii) if the individual possessing the
              firearm is licensed to do so by the State in
              which the school zone is located or a
              political subdivision of the State, and the
              law of the State or political subdivision
              requires that, before an individual obtain
              such a license, the law enforcement
              authorities of the State or political
              subdivision verify that the individual is
              qualified under law to receive the license;
                   (iii) which isSQ
                   (I) not loaded; and
                   (II) in a locked container, or a locked
              firearms rack which is on a motor vehicle;
                    (iv) by an individual for use in a
              program approved by a school in the school
                   (v) by an individual in accordance with
              a contract entered into between a school in
              the school zone and the individual or an
              employer of the individual;
                   (vi) by a law enforcement officer acting
              in his or her official capacity; or
                   (vii) that is unloaded and is possessed
              by an individual while traversing school
              premises for the purpose of gaining access to
              public or private lands open to hunting, if
              the entry on school premises is authorized by
              school authorities."
         Thus, section 922(q)(1), together with section 922(a)(25) &
    (26) (note 3, supra), makes it a federal offense to carry an
    unloaded firearm in an unlocked suitcase on a public sidewalk in
    front of one's residence, so long as that part of the sidewalk is
    within one thousand feetSQtwo or three city blocksSQof the
    boundary of the grounds of any public or private school anywhere
    illegal, again with some exceptions, to intentionally or recklessly
    discharge a firearm in a known school zone.             Section 922(q)(3)
    disclaims any intent on the part of Congress to preempt state law.
    Violations are punishable by up to 5 years' imprisonment and a
    $5,000 fine.     18 U.S.C. § 924(a)(4).
         "As every schoolchild learns, our Constitution establishes a
    system of dual sovereignty between the States and the Federal
    Government."      Gregory v. Ashcroft, 
    111 S. Ct. 2395
    , 2399 (1991).
    Justice O'Connor's observation is particularly apt in the context
    of this case, which pits the states' traditional authority over
    education   and        schooling   against    the   federal   government's
    acknowledged power to regulate firearms in or affecting interstate
    commerce.       Lopez argues that section 922(q) exceeds Congress'
    delegated powers and violates the Tenth Amendment.5 The government
    counters that section 922(q) is a permissible exercise of Congress'
    power   under    the    Commerce   Clause.6    In   actuality,   the   Tenth
    Amendment and Commerce Clause issues in this case are but two sides
    of the same coin.       As Justice O'Connor has explained:
         "In a case like this one, involving the division of
    in the United States, regardless of whether it is during the
    school year or the school is in session. In Texas, at least, a
    tiny church kindergarten would be included. See United States v.
    995 F.2d 562
    , 563 & n.5 (5th Cir. 1993); Tex. Ed. Code
    Ann. § 21.797 (Vernon Supp. 1993).
         "The powers not delegated to the United States by the
    Constitution, nor prohibited by it to the States, are reserved to
    the States respectively, or to the people." U.S. Const., Amend.
         "The Congress shall have Power . . . To regulate Commerce
    with foreign Nations, and among the several States, and with the
    Indian Tribes." U.S. Const., Art. I, § 8, cl. 3.
          authority between federal and state governments, the two
          inquiries are mirror images of each other. If a power is
          delegated to Congress in the Constitution, the Tenth
          Amendment expressly disclaims any reservation of that
          power to the States; if a power is an attribute of state
          sovereignty reserved by the Tenth Amendment, it is
          necessarily a power the Constitution has not conferred on
          Congress." New York v. United States, 
    112 S. Ct. 2408
          2417 (1992).
    Thus, even if Lopez is correct that section 922(q) intrudes upon a
    domain traditionally left to the states, it is constitutional as
    long as it falls within the commerce power.                            See Gregory v.
    Ashcroft, 111 S.Ct. at 2400 ("As long as it is acting within the
    powers granted it under the Constitution, Congress may impose its
    will on the States.").          This is not to say, however, that the Tenth
    Amendment     is     irrelevant    to    a    Commerce        Clause   analysis.    Our
    understanding of the breadth of Congress' commerce power is related
    to   the    degree    to   which   its       enactments        raise   Tenth   Amendment
    concerns, that is concerns for the meaningful jurisdiction reserved
    to the states.          At a more textual level, the Tenth Amendment,
    though it does not purport to define the limits of the commerce
    power, obviously proceeds on the assumption that the reach of that
    power is not unlimited, else there would be nothing on which the
    Tenth Amendment could operate.
          A good place to begin our analysis is the case of United
    States v. Bass, 
    92 S. Ct. 515
     (1971).                     At issue in Bass was the
    felon in possession provision of the Omnibus Crime Control Act of
    1968,      which   made    it   unlawful          for   any    felon   to   "receive[],
    possess[], or transport[] in commerce or affecting commerce" any
    firearm.     18 U.S.C. former § 1202(a)(1).                   Because the "in commerce
    or affecting commerce" language might be read to apply only to the
    crime of transporting a firearm, the question for the Court was
    whether, in pure possession cases, the government had to prove a
    connection to commerce or whether section 1202 reached the mere
    possession of firearms.       The best evidence for the government's
    position that the statute reached mere possession without any
    commerce nexus was the floor statements of Senator Long, who
    introduced section 1202, and the formal findings contained in Title
    VII of this 1968 act.7        While conceding that this legislative
    history lent "some significant support" for the government's view,
    id. at 521, the Court was not convinced.       Were section 1202 read to
    punish mere possession without a commerce nexus, the Court argued,
    it would intrude upon an area of traditional state authority and
    would push Congress' commerce power to its limit, if not beyond.
    Because Congress had not clearly expressed its intent to do so, the
    Court therefore adopted the narrower construction of the statute:
         "[U]nless Congress conveys its purpose clearly, it will
         not be deemed to have significantly changed the federal-
         state balance. Congress has traditionally been reluctant
         to define as a federal crime conduct readily denounced as
         criminal by the States. . . . [Thus] we will not be quick
         to assume that Congress has meant to effect a significant
         change in the sensitive relation between federal and
         state criminal jurisdiction."     Id. at 523 (footnotes
    Significantly,   the   Bass   Court   noted   that   "[i]n   light   of   our
    disposition of the case, we do not reach the question whether, upon
    appropriate findings, Congress can constitutionally punish the
         "Congress hereby finds and declares that the receipt,
    possession, or transportation of a firearm by felons . . .
    constitutesSQSQ (1) a burden on commerce or threat affecting the
    free flow of commerce." 18 U.S.C. § 1201. See Bass, 92 S.Ct. at
    521 n.14.
    'mere possession' of firearms."           Id. at 518 n.4.   In a subsequent
    case, the Court held that to satisfy former section 1202's commerce
    nexus, it need only be shown that the possessed firearm had
    traveled at some time in interstate commerce.           See Scarborough v.
    United States, 
    97 S. Ct. 1963
    , 1965 (1977).8          However, Scarborough
    did not purport to answer the question left open in Bass' footnote
         The government argues that section 922(q) is no different from
    a number of other federal firearms crimes.          We are not persuaded.
    With the   exception   of   a   few   relatively    recent,   special    case
    provisions, federal laws proscribing firearm possession require the
    government to prove a connection to commerce, or other federalizing
    feature, in individual cases. For example, 18 U.S.C. § 922(g), the
    successor to former section 1202, makes it unlawful for felons and
    some other classes of persons to "possess [a firearm] in or
    affecting commerce." Because a commerce nexus is an element of the
    crime defined by section 922(g), each application of that statute
    is within the commerce power.         See United States v. Wallace, 
    889 F.2d 580
    , 583 (5th Cir. 1989), cert. denied, 
    110 S. Ct. 3243
    (holding that section 922(g) "reaches only those firearms that
    [have] traveled in interstate or foreign commerce and is thus
    constitutional").      Section        922(q),    lacking    such   a    nexus
    requirement, is not on an equal footing with statutes like section
    922(g). The government points to several firearm proscriptions not
         See also Barrett v. United States, 
    96 S. Ct. 498
     (1976) (same
    under 18 U.S.C. § 922(h) as to felon's receipt of firearm
    previously transported in interstate commerce).
    requiring the specific firearm to have traveled in commerce, such
    as:      18 U.S.C. § 922(a)(6) (false statement in acquisition of
    firearm from licensed dealer, manufacturer, or importer); id. §
    922(b)(1) & (2) (sale or delivery by licensed dealer, manufacturer,
    or importer to a minor or in violation of state law); id. §
    922(b)(4) (sale or delivery by licensed dealer, manufacturer, or
    importer of certain specified weapons, such as machine guns or
    short-barrelled rifles); id. § 922(m) (recordkeeping violations by
    licensed dealer, manufacturer, or importer).       However, not only do
    all these proscriptions pertain to essentially commercial actions
    involving    the   firearms   business,   as   opposed   to   mere   simple
    possession by any individual, cf. United States v. Nelson, 
    458 F.2d 556
    , 559 (5th Cir. 1972) ("acquisition of firearms is more closely
    related to interstate commerce than mere possession"), but each is
    also expressly tied to the dealer, manufacturer, or importer in
    question being federally licensed.        18 U.S.C. § 921(a)(9), (10), &
               Historical Outline, Federal Firearms Legislation
         It does not seem surprising that those who choose to hold a
    federal license, or to deal with federal licensees, may be
    required in reference to the activities licensed to conform to
    federal requirements. See, e.g., Westfall v. United States, 
    47 S. Ct. 629
     (1957) (defrauding a state bank that is voluntarily a
    member of the Federal Reserve System may be made a federal
    offense because of that membership); United States v. Dunham, 
    995 F.2d 45
     (5th Cir. 1993) (robbery of federally insured state
    bank); United States v. Hand, 
    497 F.2d 929
    , 934-5 (5th Cir.
    1974), adhered to en banc, 
    516 F.2d 472
    , 477 (5th Cir. 1975),
    cert. denied, 
    96 S. Ct. 1427
     (1976) (status as federally chartered
    institution supports federal jurisdiction); United States v.
    581 F.2d 1221
    , 1223 (5th Cir. 1978) (federal
    chartering or federal insurance may each support federal
    jurisdiction). See also United States v. Mize, 
    756 F.2d 353
    Cir. 1985).
         We   now   digress   to   outline   at   some   length   the   major
    developments in the history of presently relevant federal firearms
    control legislation.
         General federal domestic legislation in this area may be
    traced to two enactments, first, the National Firearms Act of 1934,
    48 Stat. 1236-1240, originally codified as 26 U.S.C. § 1132, now
    codified, as amended, as chapter 53 of the Internal Revenue Code of
    1986, 26 U.S.C. §§ 5801-5872, and, second, the Federal Firearms Act
    of 1938, 52 Stat. 1250, originally codified as former 15 U.S.C. §
    901-910, now repealed, the provisions of which, as amended and
    supplemented, have been carried forward to chapter 44 of Title 18,
    18 U.S.C. §§ 921 et seq.10
    The National Firearms Act of 1934
         The National Firearms Act, applicable only to a narrow class
    of firearms such as machine guns, "sawed-off" shotguns and rifles,
         We lay to one side, as irrelevant to our inquiry, diverse
    federal legislation enhancing the penalty for use or possession
    of a firearm in the commission of some other federal offense.
    The jurisdictional basis of such legislation is obviously that
    applicable to the underlying federal offense, and the legislation
    is properly seen as a regulation of the latter. The same
    reasoning applies even where, as in the case of 18 U.S.C. §
    924(c), the firearms provision is treated as a separate offense
    (rather than a mere sentence enhancement), as its jurisdictional
    basis is still that of the other federal offense. See, e.g.,
    United States v. Owens, 
    996 F.2d 59
    , 61 (5th Cir. 1993); United
    States v. Young, 
    936 F.2d 1050
    , 1054-55 (10th Cir. 1991); United
    States v. Dumas, 
    934 F.2d 1387
    , 1390 (6th Cir. 1990), cert.
    112 S. Ct. 641
     (1991); United States v. McDougherty, 
    920 F.2d 569
    , 572 (9th Cir. 1990), cert. denied, 
    111 S. Ct. 1119
    (1991); United States v. Thornton, 
    901 F.2d 738
    , 741 (9th Cir.
    1990). Section 922(q), with which we are here concerned, is not
    tied or related to any other federal offense. Also put to one
    side is legislation dealing solely with specific matters such as
    national defense, foreign relations, foreign commerce, federal
    facilities, and use of the mails, none of which are related to
    section 922(q).
    silencers, and the like, 26 U.S.C. § 5845(a),11 is grounded on
    Congress' taxing power under Article I, Section 8, Clause 1.
    Sonzinsky v. United States, 
    57 S. Ct. 554
     (1937); United States v.
    59 S. Ct. 816
     (1939).        Its prohibitions are keyed to the
    imposition of an excise tax on the business of dealing in such
    weapons    and   on   transfers    of    them,   together   with   related
    requirements for registration of the dealer, the transfers, and the
    weapons.   See Sonzinsky; Miller; Haynes v. United States, 
    88 S. Ct. 772
     (1968); United States v. Freed, 
    91 S. Ct. 1112
    , 1115-1117
    (1971).    However, section 922(q), which concerns us here, has no
    roots or antecedent in the National Firearms Act, is in no way
    related or tied to taxation or any character of registration or
    reporting, and is applicable to all firearms.            Accordingly, the
    National   Firearms   Act,   and   its   history   and   development,   are
    essentially irrelevant to our present inquiry, and we turn our
    attention to the Federal Firearms Act and its successors.12
         See also former 26 U.S.C. § 1132(a); United States v.
    59 S. Ct. 816
    , 816 n.1 (1939); Haynes v. United States, 
    88 S. Ct. 722
    , 725 (1968); United States v. Anderson, 
    885 F.2d 1248
    1250 (5th Cir. 1989).
         One might speculate that the 1968 repeal of the Federal
    Firearms Act and the concomitant incorporation of its
    proscriptions, as then broadened, into the newly enacted chapter
    44 of Title 18, as discussed in detail in the text infra, were
    prompted by the Supreme Court's 1968 decision in Haynes, which
    partially invalidated the National Firearms Act on Fifth
    Amendment, self-incrimination grounds. However, the
    congressional committee reports on the 1968 legislation do not
    reflect such a connection, except in respect to Title II of the
    Gun Control Act of 1968, which amended the National Firearms Act
    itself to meet the concerns of Haynes. P.L. 90-618, § 201, 90th
    Cong., 2d Sess. (1968); H.R. Conf. Rep. No. 1956, 90 Cong., 2d
    Sess., reprinted in 1968 U.S.C.C.A.N. 4426, 4434-35. In 1971 in
    Freed the Supreme Court sustained the thus amended National
    Firearms Act, holding that the Haynes problems had been cured.
    The Federal Firearms Act of 1938
         The Federal Firearms Act of 1938 applied to all firearms,
    former 15 U.S.C. § 901(3), and prohibited "any manufacturer or
    dealer" not licensed thereunder from transporting, shipping, or
    receiving any firearm or ammunition "in interstate or foreign
    commerce," id. § 902(a), and also prohibited "any person" from
    receiving any firearm or ammunition "transported or shipped in
    interstate or foreign commerce in violation of" section 902(a).
    Id. § 902(b).        Licensed dealers and manufacturers could ship
    firearms    interstate      only     to     other    licensed   dealers   and
    manufacturers and to those who had or were not required to have a
    license under state law to purchase the firearm, id. § 902(c).
    Licensed dealers and manufacturers were required to keep records of
    firearms transactions.      Id. § 903(d).       It was made an offense for
    "any person"    to   ship   or     transport   "in   interstate   or   foreign
    commerce" any stolen firearm or ammunition, id. § 902(g), and for
    "any person to transport, ship, or knowingly receive in interstate
    or foreign commerce" any firearm with an altered or removed serial
    number.    Id. § 902(i).    It was also made unlawful for "any person"
    to ship or transport "in interstate or foreign commerce" any
    firearm or ammunition to any felon, person under felony indictment,
    or fugitive from justice,13 id. § 902(d); and, felons, those under
    felony indictment, and fugitives, could not "ship" or "transport"
    any firearm or ammunition "in interstate or foreign commerce." Id.
         Fugitive from justice was defined to mean one who had fled
    any state to avoid felony prosecution or testifying in a criminal
    proceeding. Id. § 901(b).
    § 902(e).   Further, felons and fugitives could not "receive any
    firearm or ammunition that had been shipped or transported in
    interstate or foreign commerce."    Id. § 902(f). The latter section
    included a provision that "possession of a firearm or ammunition by
    any such person shall be presumptive evidence that such firearm or
    ammunition was shipped or transported or received, as the case may
    be, by such person in violation of this chapter."    Id.14   In Tot v.
    United States, 
    63 S. Ct. 1241
     (1943), this presumption was held
    invalid on due process grounds as applied to whether the weapon
    "was received by" the defendant "in interstate or foreign commerce"
    or after the effective date of the act.    Id. at 1244, 1245.
    Omnibus Crime Control and Safe Streets Act of 1968
         The Federal Firearms Act remained otherwise in force without
    significant change until the enactment in June 1968 of the Omnibus
    Crime Control and Safe Streets Act of 1968, P.L. 90-351, 90th Cong.
    2d Sess. (1968) 82 Stat. 197.   Title IV (§§ 901-907) of P.L. 90-351
    repealed the Federal Firearms Act (id. § 907) and enacted a new
    chapter 44 ("Firearms") of Title 18 (18 U.S.C. § 921-928), which
    incorporated, with some amendments, almost all the provisions of
    the Federal Firearms Act,15 and added further firearms offenses.
         Unlike the Federal Firearms Act, this legislation required a
    federal license "for any person . . . to engage in the business of
    importing, manufacturing, or dealing in firearms, or ammunition"
         An analogous presumption applied to possession of a firearm
    with an altered or removed serial number. Id. § 902(i).
         The presumption considered in Tot was dropped, as was the
    analogous presumption concerning altered serial numbers (see note
    14, supra).
    even though the business did not operate in interstate commerce.
    P.L. 90-351, § 902; 18 U.S.C. § 922(a)(1).         See also id. § 923(a).
    The relevant committee report states that new section 922(a)(1)
    "makes it clear that a license is required for an intrastate
    business as well as an interstate business.            The present Federal
    Firearms Act (15 U.S.C. § 902(a)) merely prohibits the interstate
    or foreign shipment or receipt of firearms by a manufacturer or
    dealer unless he has a license."          Sen. Rep. No. 1097, 90th Cong.,
    2d Sess., reprinted in 1968 U.S.C.C.A.N. 2112 at 2202.16
         Public   Law   90-351   §   901(a)    contains,   among   others,   the
    following express Congressional findings, viz:
              "(1) that there is a widespread traffic in firearms
         moving in or otherwise affecting interstate or foreign
         commerce, and that the existing Federal controls over
         such traffic do not adequately enable the States to
         control this traffic within their own borders through the
         exercise of their police power; . . .
              (3) that only through adequate Federal control over
         interstate and foreign commerce in these weapons, and
         over all persons engaging in the businesses of importing,
         manufacturing, or dealing in them, can this grave problem
         be properly dealt with, and effective State and local
         regulation of this traffic be made possible; . . . ."
         (emphasis added).17
         See also id. at 2206 (discussing new section 923(a) "The
    licensing requirements of the present Federal Firearms Act, 15
    U.S.C. § 903(a), are based upon dealers and manufacturers
    (includes importers) shipping or receiving firearms in interstate
    or foreign commerce. Here, the requirement is on engaging in
    business and would also include one engaging in such a business
    in intrastate commerce").
         Other findings in section 901 of P.L. 90-351 include the
    following from section 901(a):
              "(2) that the ease with which any person can
         acquire firearms other than a rifle or shotgun
         (including criminals, juveniles without the knowledge
         or consent of their parents or guardians, narcotics
    addicts, mental defectives, armed groups who would
    supplant the functions of duly constituted public
    authorities, and others whose possession of such
    weapons is similarly contrary to the public interest)
    is a signficant factor in the prevalence of lawlessness
    and violent crime in the United States;
    . . .
         (4) that the acquistiion on a mail-order basis of
    firearms other than a rifle or shotgun by nonlicensed
    individuals, from a place other than their State of
    residence, has materially tended to thwart the
    effectiveness of State laws and regulations, and local
         (5) that the sale or other disposition of
    concealable weapons by importers, manufacturers, and
    dealers holding Federal licenses, to nonresidents of
    the State in which the licensees' places of business
    are located, has tended to make ineffective the laws,
    regulations, and ordinances in the several States and
    local jurisdictions regarding such firearms;
         (6) that there is a causal relationship between
    the easy availability of firearms other than a rifle or
    shotgun and juvenile and youthful criminal behavior,
    and that such firearms have been widely sold by
    federally licensed importers and dealers to emotionally
    immature, or thrill-bent juveniles and minors prone to
    criminal behavior;
    . . .
         (8) that the lack of adequate federal control over
    interstate and foreign commerce in highly destructive
    weapons (such as bazookas, mortars, antitank guns, and
    so forth, and destructive devices such as explosive or
    incendiary grenades, bombs, missiles, and so forth) has
    allowed such weapons and devices to fall into the hands
    of lawless persons, including armed groups who would
    supplant lawful authority, thus creating a problem of
    national concern; . . . ."
    Findings in section 901(b) are as follows:
         "(b) The Congress further hereby declares that the
    purpose of this title is to cope with the conditions
    referred to in the foregoing subsection, and that it is
    not the purpose of this title to place any undue or
    unnecessary Federal restrictions or burdens on law-
    abiding citizens with respect to the acquisition,
    possession, or use of firearms appropriate to the
           These Congressional findings may properly be understood as
    saying    that     federal     regulation       of    all   firearms    dealers   and
    manufacturers, not just those conducting an interstate business,
    was necessary in order to control firearms traffic "moving in or
    otherwise affecting interstate or foreign commerce."                     In Nelson,
    458 F.2d at 559, we quoted the above set-out section 901(a)(3), and
    observed       that   "[i]f    Congress    is    to    effectively      prevent   the
    interstate use of guns for illegal purposes it must control their
    sources:       manufacturers, dealers, and importers."18            This reasoning
    from     the    quoted   Congressional         findings      in   support   of    the
    requirement       that   all    firearms       manufacturers      and   dealers    be
    federally licensed is analogous to the reasoning we employed in
    United States v. Lopez, 
    459 F.2d 949
     (5th Cir.), cert. denied sub
    nom. Llerena v. United States, 
    93 S. Ct. 130
     (1972), in sustaining
    federal regulation of intrastate as well as interstate narcotics
    traffic.        See id. at 951-53 (relying on express Congressional
           purpose of hunting, trap shooting, target shooting,
           personal protection, or any other lawful activity, and
           that this title is not intended to discourage or
           eliminate the private ownership or use of firearms by
           law-abiding citizens for lawful purposes, or provide
           for the imposition by Federal regulations of any
           procedures or requirements other than those reasonably
           necessary to implement and effectuate the provisions of
           this title."
         Nelson upheld a conviction under 18 U.S.C. § 922(a)(6)
    proscribing false statements to a licensed dealer in acquiring a
    firearm from the dealer if "material to the lawfulness of the
    sale" under chapter 44; the false statement was that the
    defendant had not been convicted of a felony, which was "material
    to the lawfulness of the sale" in that 18 U.S.C. § 922(d)(1) made
    it unlawful for a licensed dealer to sell a firearm to a felon,
    regardless of whether the particular sale had a nexus to
    interstate commerce. Id. at 557-58.
    findings "that intrastate incidents of the traffic in controlled
    substances . . . had a substantial and direct effect on interstate
    commerce" and "swelled the interstate traffic in such substances,"
    that    "it   was   impossible      to    distinguish   between    substances
    manufactured and distributed intrastate from those manufactured and
    distributed interstate," and thus "that control of the intrastate
    incidents of traffic in controlled substances was essential to
    control of interstate incidents of that traffic").
           However, it is significant that, apart from the license
    requirement for all firearms dealers and manufacturers, all the
    numerous proscriptions of chapter 44 of Title 18, as thus enacted,
    were expressly      tied   either    to   interstate    commerce   or   to   the
    regulation of the conduct of, or dealings with, federally licensed
    dealers, manufacturers, or importers, or to both.             This was true
    not only for the proscriptions that were carried over from the
    Federal Firearms Act,19 but also for the added proscriptions.20
         The Federal Firearms Act provisions against felons (or
    indictees or fugitives) shipping or transporting firearms in
    interstate commerce, 15 U.S.C. § 902(e), against felons (or
    fugitives) receiving any firearm "which has been shipped in
    interstate commerce," id. § 902(f), and against any person
    shipping or transporting stolen firearms in interstate commerce
    or shipping, transporting, or receiving in interstate commerce
    firearms with altered or obliterated serial numbers, id. §§
    902(g) & (i), were carried forward without alteration of the
    interstate nexus, though with slight other alterations, into
    respectively 18 U.S.C. § 922(e), 922(f) (persons under felony
    indictment added; presumption removed); 922(g) and 922(i)
    (presumption removed). The character of ammunition covered was
    restricted to that used in destructive devices, such as rockets,
    bombs, or the like. 18 U.S.C. § 921(a)(4), (16). The provision
    of the Federal Firearms Act against licensed dealers or
    manufacturers shipping or transporting in interstate commerce to
    other than licensed dealers or manufacturers where the recipient
    was required to but did not have a local license, 15 U.S.C. §
    902(c), was retained but altered in 18 U.S.C. § 922(a)(2) so that
           In Title VII of P.L. 90-351 Congress also enacted what came to
    be codified as 18 U.S.C. App. §§ 1201 through 1203 (now repealed).
    Title VII was added on the Senate floor, "hastily passed, with
    little discussion, no hearings, and no report," and "never received
    committee consideration in" either chamber.        Bass, 92 S.Ct. at 520
    &    n.11.    Section   1202(a)   criminalized    any   felon   (or   person
    discharged other than honorably from the Armed Forces, or adjudged
    a    mental   incompetent,   or   who    had   renounced   United     States
    it did not apply to rifles or shotguns but did prohibit almost
    all interstate shipments by licensed dealers or manufacturers to
    those who were not licensed dealers or manufacturers.
         Added Title 18 provisions with an express interstate
    commerce nexus include: section 922(a)(3) proscribing
    transportation or receipt by any non-licensee into or within his
    state of residence of any firearm "obtained by him outside that
    State" (except for a shotgun or rifle that he could lawfully
    possess in his state of residence); section 922(a)(4) forbidding
    any unlicensed person to "transport in interstate or foreign
    commerce" any "destructive device" (such as a bomb, missile, or
    rocket, section 921(a)(4)), machine gun, or "sawed off" shotgun
    or rifle; section 922(a)(5) forbidding transfer or delivery by a
    person resident in one state to a person (other than a licensed
    dealer or manufacturer) resident in a different state of any
    firearm (other than a rifle or shotgun proper under the laws of
    the latter state); section 924(b) denouncing whoever "ships,
    transports, or receives a firearm in interstate or foreign
    commerce" with intent to commit therewith a felony or knowing or
    with cause to believe a felony is to be committed therewith.
         Added Title 18 provisions with an express nexus to federally
    licensed dealers or manufacturers include: section 922(b)
    proscribing firearms transfers by licensed dealers or
    manufacturers to minors (except for shotguns or rifles) (1), or
    where local law in the state of transfer forbids possession by
    the transferee (2), or where the transferee resides in another
    state (except for shotguns or rifles) (3), or of "destructive
    devices" (bombs, missiles, etc.) or machine guns or "sawed-off"
    shotguns or rifles (4), in all cases except for transfers to
    other licensed dealers or manufacturers; section 922(a)(6)
    forbidding false statements to licensed dealers in acquisition of
    firearms that are material to the lawfulness under chapter 44 of
    the acquisition; and section 922(c) forbidding transfer by a
    licensed dealer or manufacturer to a felon, fugitive from
    justice, or one under felony indictment.
    citizenship, or was an alien unlawfully in the country) "who
    receives,   possesses,   or   transports   in   commerce   or   affecting
    commerce . . . any firearm."    Section 1201 contained Congressional
    findings "that the receipt, possession, or transportation of a
    firearm by felons" (and by the other categories of persons covered
    by section 1202(a)) "constitutes (1) a burden on commerce or threat
    affecting the free flow of commerce," and "a threat to the safety
    of the President . . . and Vice-President" and to the continued
    effective operation of the federal and all state governments, and
    "an impediment or a threat" to the exercise of First Amendment
    rights.   In the Firearms Owners' Protection Act of 1986, P.L. 99-
    308, 99th Cong., 2d Sess., 104 Stat. 449, other aspects of which we
    consider in more detail below, all of Title VII (including section
    1201 and all its findings) was repealed, P.L. 99-308, § 104(b), and
    most of the substantive provisions of Title VII (e.g., §§ 1202 &
    1203) were essentially incorporated into section 922. P.L. 99-308,
    § 102.
    Gun Control Act of 1968
         In October 1968, Congress enacted the Gun Control Act of 1968,
    P.L. 90-618, 90th Cong. 2d Sess., 82 Stat. 1213.       Title I of this
    legislation reenacted all of chapter 44 of Title 18 (§§ 921-928),
    but with what are for present purposes essentially only minor
    changes from the version thereof enacted earlier that year by Title
    IV of the Omnibus Crime Control and Safe Streets Act of 1968.21
         Title II of P.L. 90-618 amended the National Firearms Act at
    least in part to eliminate the Fifth Amendment self-incrimination
    problems that the Supreme Court had found in Haynes. See note
    12, supra.
    Among these changes were, for example, removal or narrowing of most
    of the exemptions that Title IV had made for rifles and shotguns
    (see note 20, supra, and note 23, infra), additional coverage of
    transactions in ammunition in certain instances where Title IV
    dealt only in firearms, and adding unlawful users of federally
    regulated narcotics and adjudicated mental defectives to felons,
    fugitives, and indictees as persons concerning whom certain firearm
    transactions were prohibited.22         Title I also added certain new
    prohibitions    on   licensees,      including   a    new    section   922(c)
    prohibiting licensees from selling firearms to those who are not
    licensees unless the purchaser either appeared in person on the
    licensee's premises or furnished a sworn statement as to his
    eligibility    and   seven   days'   notice   was    given   the   chief   law
    enforcement officer of the transferee's residence prior to delivery
    or shipment.   Other provisions relaxed some of the restrictions of
    section 922(a)(3) & (5) as enacted by Title IV of P.L. 90-351.23
         As enacted by Title IV of P.L. 90-351, section 922(c)
    prohibited a licensee from selling or disposing of a firearm to a
    felon, fugitive, or indictee, section 922(e) prohibited any such
    individual (felon, etc.) from shipping or transporting a firearm
    in interstate or foreign commerce and section 922(f) denounced
    any such individual (felon, etc.) who received any firearm that
    had been shipped or transported in interstate commerce. Title I
    of P.L. 90-618 shifted these sections to, respectively, section
    922(d), (g), and (h), and added to the disqualified individuals
    adjudicated mental defectives and unlawful users or addicts of
    various federally controlled drugs. No change was made in the
    provisions for nexus to interstate or foreign commerce or to a
    federal licensee.
         As enacted by P.L. 90-351, section 922(a)(3) prohibited
    transport or receipt by a non-licensee into or within his state
    of residence of any firearm (except for a shotgun or rifle he
    could lawfully possess in his state of residence) "obtained by
    him outside that state." P.L. 90-618 revised section 922(a)(3)
    to narrow the shotgun or rifle exception and to add an exception
    In sum, the Gun Control Act of 1968 maintained the same essential
    jurisdictional   bases   of   the    earlier   1968   legislation,   namely
    SQapart   from   the   license      requirement   for   all   dealers   and
    manufacturersSQ an express nexus either to interstate commerce or
    to the conduct of, or dealings with, federally licensed dealers or
    manufacturers, or to both.       The legislative history is consistent
    with this approach.24     The House committee report explains the
    purpose of the Gun Control Act of 1968 (which originated as H.R.
    17735) in relevant part as follows:
              The principal purpose of H.R.        17735, as amended, is
         to strengthen Federal controls            over interstate and
         foreign commerce in firearms and          to assist the States
         effectively to regulate firearms          traffic within their
    for firearms acquired by testate or intestate succession. As
    enacted by P.L. 90-351, section 922(a)(5) prohibited non-
    licensees from transferring any firearm (other than a rifle or
    shotgun) to a non-licensee resident "in any State other than that
    in which the transferor resides." P.L. 90-618 revised section
    922(a)(5) to eliminate the shotgun or rifle exception and to add
    exceptions for transfers by testate or intestate succession and
    for temporary loans "for lawful sporting purposes." In both
    section 922(a)(3) and section 922(a)(5) the revisions of P.L. 90-
    618 retained the jurisdictional basis of the prior sections,
    namely out-of-state acquisition or disposition to a resident of a
    different state.
         An exception to this was the addition by P.L. 90-618 of a
    new section 924(c) (and the concomitant renumbering of the former
    section 924(c)) enacted by P.L. 90-351 as section 924(d))
    providing that any person who used a firearm to commit (or
    unlawfully carried a firearm during the commission of) "any
    felony which may be prosecuted in a court of the United States"
    "shall be sentenced to" one to ten years' imprisonment. While
    this did not rely for jurisdictional purposes on either
    interstate commerce or the involvement of a federally licensed
    party, it was obviously based on the same federal jurisdictional
    footing as that on which the underlying felony rested. See note
    10, supra.
         . . .
                            GENERAL STATEMENT
              The increasing rate of crime and lawlessness and the
         growing use of firearms in violent crime clearly attest
         to a need to strengthen Federal regulation of interstate
         firearms traffic.
              The subject legislation responds to widespread
         national concern that existing Federal control over the
         sale and shipment of firearms [across] State lines is
         grossly inadequate.
              Handguns, rifles, and shotguns have been the chosen
         means to execute three-quarters of a million people in
         the United States since 1900. The use of firearms in
         violent crimes continues to increase today.
         . . .
              The committee is persuaded that the proposed
         legislation   imposes   much   needed   restrictions  on
         interstate firearms traffic and, at the same time, does
         not interfere with legitimate recreational and self-
         protection uses of firearms by law-abiding citizens. The
         committee urges its enactment." H.R. Rep. No. 1577, 90th
         Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 4410 at
         4411-13, 4415 (emphasis added).
    Firearms Owners' Protection Act of 1986
         This basic jurisdictional structureSQthe licensing of all
    firearms dealers and manufacturers, based on Congress' express
    finding (in the Omnibus Crime Control and Safe Streets Act of 1968,
    P.L. 90-351, § 902(a)(3)) to the effect that such was necessary to
    adequate federal control of interstate and foreign commerce in
    firearms, and in all other instances an express nexus either to
    interstate commerce or to the activity of, or dealings with,
    federally licensed dealers or manufacturers, or to both25SQhas
         As observed in Note 24, supra, there was in section 924(c)
    (using or carrying a firearm in a federal felony) the separate
    continued to the present, with only a few, discrete exceptions, the
    first of which arose in 1986, in the Firearms Owners' Protection
    Act, P.L. 99-308, 99 Cong., 2d Sess., 100 Stat. 449-461.
         Section 102(5)(A) of the Firearms Owners' Protection Act, 100
    Stat. 451-52, amended section 922(d), as explained in the relevant
    committee report, "by extending the prohibition on transferring
    firearms to disqualified persons [e.g., felons, fugitives, etc.]
    from only licensees to private individuals as well."   H.R. Rep. No.
    99-495, 99 Cong., 2d Sess., reprinted in 1986 U.S.C.C.A.N. 1327 at
    1341.   The explanation for this particular amendment appears in an
    "assessment" of the bill by the Bureau of Alcohol, Tobacco and
    jurisdictional basis of the underlying federal offense. In 1984,
    section 924(c) was amended to make the penalty additional to that
    for the underlying federal offense, to eliminate the element of
    "unlawfully" from the carrying branch of the offense, and to
    describe the underlying federal offense as "any crime of
    violence" (instead of "any felony") "for which he may be
    prosecuted in a court of the United States." P.L. 98-473, §
    1005, 98th Cong., 2d Sess., 98 Stat. 1837, 2138-39. At the same
    time 18 U.S.C. § 929(a) was enacted providing enhanced punishment
    for whoever uses or carries a "handgun" loaded with "armor
    piercing ammunition" during or in relation to "the commission of
    a crime of violence . . . for which he may be prosecuted in a
    court of the United States." P.L. 98-473, § 1006, 98 Stat. 2139.
         In 1986, in the Firearms Owners' Protection Act, P.L. 99-
    308, §§ 104(a)(2) & 108, 99th Cong., 2d Sess., 100 Stat. 449,
    456-57, 460, §§ 924(c) and 929(a) were amended to add to "crime
    of violence" any "drug trafficking crime" as occasions on which
    use of a firearm was prohibited; nevertheless, the offense still
    had to be one (as it does today) "for which he may be prosecuted
    in a court of the United States" (§ 924(c)(1); § 929(a)(1)).
    Also, "drug trafficking crime" was (and is) defined so as to
    limit it to federal felonies (§ 924(c)(2); § 929(a)(2)); and
    "crime of violence" was (and is) defined, but its definition did
    not itself require a federal element (§ 924(c)(3)).
         Later in 1986, in P.L. 99-408, § 8, 99th Cong., 2d Sess.,
    100 Stat. 920, 921, the "handgun" reference in section 929(a) was
    changed to "firearm," but the jurisdictional basis ("for which he
    may be prosecuted in a court of the United States") of section
    929(a) was not altered.
    Firearms (BATF) that appears in full as a part of this committee
    report, and states "This proposal would close an existing loophole
    whereby qualified purchasers have acquired firearms from licensees
    on behalf of prohibited persons."      Id. 1986 U.S.C.C.A.N. at 1343.26
    This amendment to section 922(d) does not render it analogous to
    section 992(q), which is presently before us.           To begin with,
    section 922(d) deals with transfers, not mere possession, and, as
    we said in Nelson, "acquisition of firearms is more closely related
    to interstate commerce than mere possession." Id. 458 F.2d at 559.
    Moreover, the above quoted legislative history indicates that
    Congress   determined   that   relegation    of   all   transferors   to
    disqualified persons, not just federal licensee transferors, was
    necessary to prevent evasion of the regulation of federal licensees
    (a regulation with independent legitimacy, see note 9, supra).
    This is consistent with the approach we took in Lopez in sustaining
    federal regulation of intrastate, as well as interstate, narcotics
    trafficking.   Id. 459 F.2d at 951-53.    See also Nelson, 458 F.2d at
         This portion of the BATF assessment reads in full:
              "2. Sales to Prohibited Persons. This bill makes
         it unlawful for any person, not only licensees, to sell
         or otherwise dispose of firearms to certain prohibited
         categories of persons, e.g., a convicted felon. Under
         existing law it is only unlawful for a licensee to sell
         or otherwise dispose of firearms knowing or having
         reasonable cause to believe that such a person is in a
         prohibited category. This proposal would close an
         existing loophole whereby qualified purchasers have
         acquired firearms from licensees on behalf of
         prohibited persons." Id.
         This amendment to section 922(d) also added to the list of
    disqualified persons illegal aliens and those who had been
    dishonorably discharged or had renounced United States
    559 (relying on Congressional finding in P.L. 90-351, § 901(a)(3),
    and observing that "[i]f Congress is to effectively prevent the
    interstate use of guns for illegal purposes it must control their
    sources:    manufacturers, dealers and importers").              Finally, the
    overall structure and history, as well as the title, of the
    Firearms    Owners'    Protection    Act     suggest       no    Congressional
    determination that mere possession of ordinary firearms implicates
    interstate commerce or other federal concerns. Indeed, Congress in
    that legislation expressly found, inter alia, "that (1) the rights
    of citizensSQ(A) to keep and bear arms under the second amendment
    to   the   United   States   Constitution;    .   .   .;   and    (D)   against
    unconstitutional exercise of authority under the ninth and tenth
    amendments; require additional legislation to correct existing
    firearms statutes and enforcement policies."           P.L. 99-308 § 1(b).27
         The full text of P.L. 99-308 § 1, 100 Stat. 449, is as
               "(a) SHORT TITLE.SQThis Act may be cited as the
          'Firearms Owners' Protection Act'.
               (b) CONGRESSIONAL FINDINGS.SQThe Congress finds thatSQ
                    (1) the rights of citizensSQ
                          (A) to keep and bear arms
                    under the second amendment to the
                    United States Constitution;
                          (B) to security against
                    illegal and unreasonable searches
                    and seizures under the fourth
                          (C) against uncompensated
                    taking of property, double
                    jeopardy, and assurance of due
                    process of law under the fifth
                    amendment; and
                          (D) against unconstitutional
                    exercise of authority under the
                    ninth and tenth amendments;
               require additional legislation to correct
               existing firearms statutes and enforcement
         Further,           this   legislation     amended     several      provisions       of
    section 922 and section 924 that contained express interstate
    commerce nexus requirements without diluting those requirements.
    This was true, for example, with respect to the amendments to
    section 922(g), prohibiting felons (and other disqualified persons)
    from shipping or transporting any firearms "in interstate or
    foreign commerce," from receiving any firearm "which has been
    shipped or transported in interstate or foreign commerce" and, as
    added   by       the    amendment,    from     possessing    any       firearm    "in    or
    affecting commerce."            P.L. 99-308 § 102(6).             As we explained in
    Wallace, 889 F.2d at 583, the legislative history of this amendment
    clearly showed that the phrase "in or affecting commerce" meant
    "interstate" commerce, and that accordingly the possession offense
    of thus amended section 922(g) "reaches only those firearms that
    traveled         in    interstate     or     foreign     commerce       and      is    thus
    constitutional."           (Emphasis added).         Similarly, the legislation
    enacted      a    new    section     922(n),      P.L.   99-308    §    102(8),       which
    proscribed those under felony indictmentSQwhom the same legislation
                     policies; and
                          (2) additional legislation is required
                     to reaffirm the intent of the Congress, as
                     expressed in section 101 of the Gun Control
                     Act of 1968, that 'it is not the purpose of
                     this title to place any undue or unnecessary
                     Federal restrictions or burdens on law-
                     abiding citizens with respect to the
                     acquisition, possession, or use of firearms
                     appropriate to the purpose of hunting, trap-
                     shooting, target shooting, personal
                     protection, or any other lawful activity, and
                     that this title is not intended to discourage
                     or eliminate the private ownership or use of
                     firearms by law-abiding citizens for lawful
    removed from sections 922(g) and (h)SQfrom shipping or transporting
    any firearm "in interstate or foreign commerce" and from receiving
    any firearm "which has been shipped or transported in interstate or
    foreign commerce."28        Also, the express federal nexus was retained
    where the Firearms Owners' Protection Act amended sections 924(c)
    and    929(a)   to   add    "drug    trafficking    crime"    to    the   offenses
    concerning      which      firearm    (or     certain   ammunition)       use   was
    proscribed, while retaining the requirement that the offense in any
    event be one that could "be prosecuted in a court of the United
    States."     See note 25, supra.            Similarly, the amendment made to
    section 922(a)(3), concerning a non-licensee's transportation into
    or receipt within his state of residence of a firearm "obtained by
    such person outside that state" broadened to all types of firearms
    an    exception   previously        limited   to   shotguns   and   rifles,     but
    retained the "obtained by such person outside that state" language.
    P.L. 99-308 § 102(3). Likewise, the restriction on licensed dealer
    sales to non-residents of the state of the licensee's business
    location was amended but without altering the interstate character
    of the subject matter.         Id. § 102(4).        And, the legislation left
    unchanged other provisions of section 922 expressly requiring an
    interstate commerce nexus, such as, for example, section 922(a)(5),
    generally prohibiting non-licensee transfers of firearms to other
         As previously observed, these amendments repealed former 18
    U.S.C. § 1202 and incorporated the provisions of former section
    1202 into sections 922(g) and (n). Prior to the amendment,
    sections 922(g) and (h) had not applied to possession as such,
    but had included those under felony indictment, while section
    1202(a) included possession "in commerce or affecting commerce"
    but did not include those under felony indictment.
    non-licensees       residing      in    a    state     other      than    that   of    the
    transferor's residence.
           The other Firearms Owners' Protection Act change relevant in
    this connection is its section 102(9), 100 Stat. 452-53, adding a
    new section 922(o) making it unlawful for "any person to transfer
    or possess a machine gun" except for any "lawfully possessed before
    the date this subsection takes effect."                     There is no committee
    report, and sparse legislative history, concerning this provision,
    as it was added on the House floor.              The only apparent explanation
    for it is the statement of its sponsor, Representative Hughes, that
    "I do not know why anyone would object to the banning of machine
    guns."    See Farmer v. Higgins, 
    907 F.2d 1041
    , 1044-45 (11th Cir.
    1990).    While section 922(o) is a closer parallel than others to
    section 922(q) presently before us, as both sections denounce mere
    possession with no express tie either to interstate commerce or
    other federalizing element, we decline to read into section 922(o)
    any implied Congressional determination that possession of firearms
    generally, or within one thousand feet of any school grounds,
    affects interstate commerce.                Section 922(o) is restricted to a
    narrow class of highly destructive, sophisticated weapons that have
    been    either     manufactured        or   imported      after    enactment     of    the
    Firearms Owners' Protection Act,29 which is more suggestive of a
    nexus    to   or    affect   on    interstate        or    foreign       commerce     than
         The grandfather clause in section 922(o)(2)(B) applies only
    to machine guns "lawfully" possessed before enactment;
    nevertheless, with respect to those possessed earlier but
    unlawfully there would be a jurisdictional nexus in the federal
    law making that earlier possession unlawful, such as the National
    Firearms Act or various provisions of chapter 44 of Title 18.
    possession of any firearms whatever, no matter when or where
    originated, within one thousand feet of the grounds of any school.
         The   only   two   circuit   courts    that   have   addressed   a
    constitutional challenge to section 922(o), United States v. Hale,
    978 F.2d 1016
    , 1018 (8th Cir. 1992), cert. denied, 
    113 S. Ct. 1614
    (1993); United States v. Evans, 
    928 F.2d 858
     (9th Cir. 1991), have
    sustained it in reliance on Congressional findings that appear to
    us to be inapplicable in the present context, whatever relevance
    they might have to section 922(o).30         Hale states that, "The
    legislative history of section 922(o) indicates that Congress
    considered the relationship between the availability of machine
    guns, violent crime, and narcotics trafficking.      See H.R. Rep. No.
    495, 99th Cong., 2d Sess., at 1-5, reprinted in 1986 U.S.C.C.A.N.
    1327, 1327-31."    Id. at 1018.        The only portion of the cited
    passage of the H.R. Rep. No. 495 that relates to machine gunsSQand
    it will be recalled that neither section 922(o) nor anything
    comparable to it was included in the bill (H.R. 4332) there being
    consideredSQis a discussion of the history of the legislation,
    including various earlier bills that did not become law.        One of
    the earlier bills discussed was H.R. 3135, introduced August 1,
    1985, and H.R. Rep. No. 495 observes that H.R. 3135 "prohibited the
    transfer and possession of machine guns, used by racketeers and
    drug traffickers for intimidation, murder and protection of drugs
    and the proceeds of crime. The bill allowed possessors of lawfully
    registered machine guns to continue their lawful possession." 1986
         Farmer did not address the validity of section 922(o).
    U.S.C.C.A.N. at 1330. Whatever this may say about machine guns, it
    says nothing about the mere possession of ordinary firearms. Given
    the formal Congressional findings contained in the Firearms Owners'
    Protection Act (see note 27, supra), which avow a purpose to
    enhance Second and Tenth Amendment rights and express solicitude
    for the freedom of citizens to possess ordinary firearms, it would
    be entirely inappropriate to consider the above-quoted portions of
    the committee report as having any relevance beyond machine guns
    and similar destructive weapons.31
         Hale also states: "When it first enacted section 922,
    Congress found facts indicating a nexus between the regulation of
    firearms and the commerce power. See Omnibus Crime Control and
    Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 225
    (1968)." Id. 978 F.2d at 1018. The citation given is to the
    findings in section 901(a) of P.L. 90-351, in connection with
    Title IV thereof. As previously discussed, those findings (set
    out in note 17 and accompanying text, supra), and that enactment,
    with one exception, do no more than speak to the need to regulate
    both interstate (and foreign) commerce in firearms and federally
    licensed dealers; the one exception is the finding that for this
    purpose it is necessary to require intrastate, as well as
    interstate, dealers to be federally licensed. There is nothing
    to suggest any finding that mere private party intrastate
    possession of firearms that have not moved in interstate commerce
    has any effect on interstate commerce or must be regulated in
    order to effectively regulate interstate commerce.
         In Evans the court stated:
         "Congress specifically found that at least 750,000
         people had been killed in the United States by firearms
         between the turn of the century and the time of the
         Act's enactment. It was thus reasonable for Congress
         to conclude that the possession of firearms affects the
         national economy, if only through the insurance
         industry. Since Evans does not contend that any
         specific Constitutional rights are implicated, this
         rather tenuous nexus between the activity regulated and
         interstate commerce is sufficient." Id. 928 F.2d at
    The Congressional finding alluded to is not contained in the
    Firearms Owners' Protection Act, and the only similar finding we
    can locate is that contained in H.Rep. No. 1577 in reference to
         Section 922(o) is not before us, and we intimate no views as
    to it.     However, we do not regard Hale and Evans as persuasive
    respecting either the validity of section 922(q) or the existence
    of express or implied Congressional findings supportive thereof.
    The Undetectable Firearms Act of 1988
         We    note    two     firearms   provisions    enacted    in   1988.     The
    Undetectable Firearms Act of 1988, P.L. 100-649, 100th Cong., 2d
    Sess., 102 Stat. 3816, added to Title 18 § 922(p) making it
    unlawful for any person to "manufacture, import, ship, deliver,
    possess,       transfer,    or    receive"    any   firearms   either   not    as
    detectable "by walk-through metal detectors" as an exemplar to be
    developed by the Secretary of the Treasury or which "when subjected
    to inspection by the type of x-ray machines commonly used at
    airports, does not generate an image that accurately depicts the
    shape    of"    any   major      component    thereof.    Section    922(p)(1).
    H.R. 17735, which became the Gun Control Act of 1968. See H.Rep.
    No. 1577, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N.
    4410 at 4411-15. We have quoted this language in the text,
    supra, in our discussion of that legislation. Nothing in this
    committee report mentions insurance or suggests that mere
    intrastate possession of firearms that have not moved in
    interstate commerce has any affect on interstate commerce or must
    be regulated in order to effectively regulate interstate
    commerce. The committee states that "the proposed legislation
    imposes much needed restrictions on interstate firearms traffic,"
    id. at 4415 (emphasis added), and that there is "a need to
    strengthen Federal regulation of interstate firearms traffic."
    Id. at 4412 (emphasis added). This is consistent with what the
    legislation did, and it did not (apart from continuing the
    requirement of the Omnibus Crime Control and Safe Streets Act
    that intrastate, as well as interstate, dealers be federally
    licensed) purport to regulate mere private party possession of
    firearms that had not moved in interstate commerce.
         We thus disagree with the general statements in Hale and
    Evans respecting the Omnibus Crime Control and Safe Streets Act
    of 1968 and the Gun Control Act of 1968.
    Exempted were "any firearm manufactured in, imported into, or
    possessed in the United States before the date of the enactment" of
    the    act.    Section      922(p)(6).         Although   there     is   no    express
    requirement     of     an    interstate    nexus    for     the    section      922(p)
    possession offense, we reject the government's argument that this
    legislation is analogous to section 922(q).                       Section 922(p)'s
    employment of the standard of "x-ray machines commonly used at
    airports" plainly reflects the act's interstate commerce related
    purpose and nexus.          This is confirmed by the legislative history,
    as    the   relevant    committee   report       notes    "the    threat      posed   by
    firearms which could avoid detection at security checkpoints:
    airports, government buildings, prisons, courthouses, the White
    House." H.R. Rep. No. 100-612, 100th Cong., 2d Sess., reprinted in
    1988 U.S.C.C.A.N. 5359.32
    Anti-Drug Abuse Amendments Act of 1988
           The other 1988 firearms legislation is subtitle G (§§ 6211-
    6215) of Title VI ("Anti-Drug Abuse Amendments Act of 1988") of the
    Anti-Drug Abuse Act of 1988, P.L. 100-690, 100th Cong., 2d Sess.,
    102 Stat. 4181, 4359-62.          Subtitle G added to Title 18 sections
    924(f) and (g) and 930.           P.L. 100-960, §§ 6211, 6215.                 Section
    924(g) denounces "[w]hoever knowingly transfers a firearm, knowing
    that such firearm will be used to commit a crime of violence (as
         Moreover, section 922(p) applies only to nondetectable
    firearms manufactured in or imported into the United States after
    its November 10, 1988, enactment, which is suggestive of a closer
    relation to commerce than mere possession of any firearm whenever
    and wherever made. Section 922(p)(6). The cited committee
    report also observes that "No firearms currently manufactured in
    the United States are known to be subject to the proposed
    prohibitions." Id. 1988 U.S.C.C.A.N. 5359 at 5363.
    defined in subsection (c)(3)) or drug trafficking crime (as defined
    in subsection (c)(2))." There is no requirement that the transfers
    have an interstate character or that the firearms have been in
    interstate commerce.    While "drug trafficking crime" is limited to
    federal offensesSQand this limitation was maintained even though
    the same legislation slightly amended the definition thereof in
    section 924(c)92) and section 929(a)(2)33SQ"crime of violence" is
    not so limited.      Section 924(c)(3).   Our attention has not been
    called to legislative history suggesting an explanation for this
    seeming anomaly.34    It seems anomalous in several respects.
         There is no apparent reason why the drug trafficking crime
    must be federal, but not the crime of violence.         Further, no
    amendment was made to section 924(b), denouncing the shipment,
    transport, or receipt of a firearm "in interstate or foreign
    commerce" with "knowledge or reasonable cause to believe that" a
    felony "is to be committed therewith"; nor to section 924(c)(1)
    denouncing use or carrying of a firearm during or in relation to
    "any crime of violence or drug trafficking crime . . . for which he
         P.L. 100-690, § 6212, 102 Stat. 4360.
         The 1988 U.S.C.C.A.N. states respecting the Anti-Drug Abuse
    Act of 1988 that "No Senate or House Report was submitted with
    this legislation." Id. at 5937. New section 924(g) was applied
    in a "crime of violence" context in United States v. Callaway,
    938 F.2d 907
     (8th Cir. 1991), which observes that it "was
    designed to curb the supply of firearms used in the commission of
    drug related and violent crimes," but cites no legislative
    history. Id. at 909. Callaway does not address the validity of
    section 924(g), its relationship to the regulation of interstate
    commerce, or any express or implied Congressional findings
    related thereto, nor whether the offense there had an interstate
    or other jurisdictional nexus (though the facts recited suggest
    may be prosecuted in a court of the United States."35 The seemingly
    unusual result is that anyone who transfers intrastate a firearm
    (which has not been in interstate commerce) knowing it will be used
    in a crime of violence in that state commits a federal crime even
    though the crime of violence is not a federal offense, but the
    party perpetrating the crime of violence with the firearm in that
    same state violates federal law only if the crime of violence is
    one "for which he may be prosecuted in a court of the United
    States." A possible inference from this is that transfer is deemed
    more related to the regulation of interstate commerce than mere use
    or possession.      Cf. Nelson, 458 F.2d at 559 ("acquisition of
    firearms is more closely related to interstate commerce than mere
         The   1988   legislation,   like   that   before   it,   demonstrates
    neither a pattern of regulation that abjures any express nexus to
    interstate commerce or other federal element nor any express or
    implied Congressional finding about mere possession of ordinary
         Nor to section 929(a)(1) denouncing possession of armor
    piercing ammunition during or in relation to "a crime of violence
    or drug trafficking crime . . . for which he may be prosecuted in
    a court of the United States."
         We also observe that the other additions to chapter 44 of
    Title 18 made by subtitle G of Title VI of the Anti-Drug Abuse
    Act of 1988 expressly provided for an interstate commerce or
    other federal nexus. Thus, new section 924(f), P.L. 100-960, §
    6211, 102 Stat. 4359, denounces whoever "travels from any State
    or foreign country into any other State" and acquires or
    transfers "a firearm in such other State" with the purpose of
    engaging in conduct constituting any of various offenses
    including "a crime of violence (as defined in subsection
    (c)(3))." New section 930, P.L. 100-960, § 6215, 102 Stat. 4361,
    denounces "whoever knowingly possesses or causes to be present a
    firearm or other dangerous weapon in a Federal facility."
    firearms absent such a nexus.
    Crime Control Act of 1990
         At long last, we turn to the Crime Control Act of 1990, P.L.
    101-647,     101st   Cong.,   2d   Sess.,    104   Stat.   4789-4968,   which
    included, as part of its XVII ("General Provisions"), section 1702,
    104 Stat. 9844-45, the Gun-Free School Zone Act of 1990, that
    enacted the new section 922(q).37          Preliminarily, we note that the
    Crime Control Act of 1990 also contained a Title XXII ("Firearms
    Provisions"), P.L. 101-647, § 2201-2205, 104 Stat. 4856-58, which
    revised other portions of chapter 44 of Title 18.               These other
    revisions all retained or provided for an express interstate
    commerce (or other federal jurisdiction) nexus for the various
    Title 18, chapter 44, offenses the provisions of which were being
         Section 1702 also added to section 921(a) new subsections
    (25), (26), and (27) defining terms used in new section 922(q)
    ("school zone," "school," and "motor vehicle") and added to
    section 924(a) new subsection (4) fixing the penalty for
    violation of new section 922(q).
         Public Law 101-647 § 2201 amended section 922(a)(5), which
    formerly proscribed (with exceptions) transfer of a firearm by a
    nonlicensee to a nonlicensee who "resides in any state other than
    that in which the transferor resides" (or that in which the place
    of business of the transferor, if a business entity, is located)
    so that it proscribed (with the same exceptions) such a transfer
    if the nonlicensee transferee "does not reside in (or if the
    person is a corporation or other business entity, does not
    maintain a place of business in) the State in which the
    transferor resides." The purpose of this was apparently to
    include among disqualified transferees "an alien or transient who
    does not reside in the State in which the transferor resides."
    H.Rep. No. 101-681(I), 101st Cong., 2d Sess., at 106, reprinted
    in 1990 U.S.C.C.A.N. 6472 at 6510. It also appears to have the
    effect of clarifying section 922(a)(5) by removing its otherwise
    arguable prohibition of transfer to a nonlicensee business entity
    having a place of business in the transferor's state of residence
    but existing under the laws of and having its principal place of
    Gun-Free School Zones Act of 1990
         The Gun-Free School Zones Act of 1990, now section 922(q), was
    introduced in the Senate by Senator Herbert Kohl as S. 2070 and a
    virtually identical bill with the same title was introduced in
    House by Representative Edward Feighan as H.R. 3757.    The Senate
    version was eventually enacted as part of Title XVII of the Crime
    Control Act of 1990, P.L. 101-647 § 1702, 104 Stat. 4844-45.   The
    House Report accompanying the Crime Control Act broadly declares
    that the intent of the Crime Control Act was "to provide a
    legislative response to various aspects of the problem of crime in
    business in a different state.
         Also, Public Law 101-647 § 2202(a) amended section 922(j),
    which prohibited any person from receiving, concealing, disposing
    of, pledging, or accepting as security any stolen firearm "moving
    as, which is a part of, or which constitutes, interstate or
    foreign commerce," by expanding it to also cover any stolen
    firearm "which has been shipped or transported in, interstate or
    foreign commerce." H.Rep. No. 101-681(i), supra, explains that
    the amendment will "permit prosecution . . . where the firearms
    have already moved in interstate or foreign commerce." Id. at
    106, 1990 U.S.C.C.A.N. at 6510.
         Further, Public Law 101-647 § 2202(b) amended section
    922(k), which made it unlawful "to transport, ship or receive, in
    interstate or foreign commerce" any firearm whose serial number
    had been removed, altered, or obliterated, by expanding it to
    also make it unlawful "to possess or receive" any such firearm
    that "has, at any time, been shipped or transported in interstate
    or foreign commerce."
         And, Section 2204 of P.L. 101-647 added section 922(r)
    making it "unlawful for any person to assemble from imported
    parts" any rifle or shotgun "identical" to any "prohibited from
    importation under section 925(d)(3)." House Report 101-68(I),
    supra, reflects that this amendment "is to prevent the
    circumvention of the importation restrictions by persons who
    would simply import the firearms in a disassembled form and then
    reassemble them in the United States." Id. at 107, 1990
    U.S.C.C.A.N. at 6511.
         Finally, section 2205 of P.L. 101-647 amended section 930,
    which denounced possession of firearms "in a Federal facility,"
    so that an enhanced penalty would be applicable if the possession
    were "in a Federal court facility."
    the United States."           H.R. Rep. No. 101-681(I), 101st Cong., 2d
    Sess.   69   (1990),    reprinted       in      1990   U.S.C.C.A.N.       6472,    6473.
    However, this report makes no mention whatsoever of the impact upon
    commerce of firearms in schools.             Nor does the report even mention
    the Gun-Free School Zones Act.                  Although S. 2070 has no formal
    legislative history that we know of, a House subcommittee hearing
    was held on H.R. 3757.         Witnesses told this subcommittee of tragic
    instances    of   gun   violence      in     our   schools,    but    there       was   no
    testimony concerning the effect of such violence upon interstate
    commerce.      Indeed,       the   noticeable      absence     of   any    attempt      by
    Congress to link the Gun-Free School Zones Act to commerce prompted
    the Chief of the Firearms Division of the BATF and the BATF's
    Deputy Chief Counsel, to testify as follows:
         "Finally, we would note that the source of constitutional
         authority to enact the legislation is not manifest on the
         face of the bill.     By contrast, when Congress first
         enacted the prohibitions against possession of firearms
         by   felons,   mental  incompetents    and   others,  the
         legislation contained specific findings relating to the
         Commerce Clause and other constitutional bases, and the
         unlawful acts specifically included a commerce element."
         Gun-Free School Zones Act of 1990: Hearings on H.R. 3757
         Before the Subcomm. on Crime of the House Comm. on the
         Judiciary, 101st Cong., 2d Sess., at 10 (1990) (statement
         of Richard Cook and Bradley Buckles) (hereinafter, House
    Although both the House and Senate sponsors of the Gun-Free School
    Zones Act made fairly lengthy floor statements about it, neither
    congressman had anything to say about commerce in their remarks.
    See 136 Cong. Rec. S17595 (1990) (statement of Sen. Kohl); 136
    Cong.   Rec.   S766     (1990)     (same);       135   Cong.   Rec.   E3988       (1989)
    (inserted statement of Rep. Feighan).
         The     failure    of    section      922(q) to      honor the traditional
    division of functions between the Federal Government and the States
    was commented upon by President Bush when he signed the Crime
    Control Act of 1990:
         "I am also disturbed by provisions in S. 3266 that
         unnecessarily constrain the discretion of State and local
         governments. Examples are found in Title VIII's 'rural
         drug enforcement' program; in Title XV's 'drug-free
         school zones' program; and in Title XVIII's program for
         'correctional options incentives.'     Most egregiously,
         section 1702 inappropriately overrides legitimate State
         firearms laws with a new and unnecessary Federal law.
         The policies reflected in these provisions could
         legitimately be adopted by the States, but they should
         not be imposed on the States by the Congress." Statement
         by President George Bush upon Signing S. 3266, 26 Weekly
         Comp. Pres. Doc. 1944 (Dec. 3, 1990), reprinted in 1990
         U.S.C.C.A.N. 6696-1 (emphasis added).39
         Rep. William Hughes, the Chairman of the Subcommittee on
    Crime of the House Judiciary Committee, made the same point in a
    colloquy with Richard Cook, the Chief of the BATF's Firearms
    Division, during the hearings on H.R. 3757:
              "Mr. Hughes. This would be a major change, would
         it not, in Federal jurisdiction, in that basically,
         we've played a supportive role in endorsement of gun
         laws throughout the country, supportive of local and
         State efforts to attempt to license and, as a matter of
         fact, to restrict and punish. This would, it seems to
         me, put us in the position of, for the first time,
         playing a direct role in the enforcement of a
         particular Federal lawSQa gun lawSQat the local level,
         the school district level.
              Mr. Cook. ATF has always been involved with
         supporting State and local people in their
              Mr. Hughes. I say that's been our roleSQas
         supportive. Does this give us the original
              Mr. Cook. In this particular instance, this
         legislation would give us original Federal
         jurisdiction, which wouldSQ
              Mr. Hughes: That would be a major departure from
         basically what has been the practice of the past.
              Mr. Cook. As far as schools as concerned, yes, it
              Mr. Hughes. A major departure from a traditional
         federalism concept which basically defers to State and
         local units of government to enforce their laws.
                              Commerce Power
         We are, of course, fully cognizant and respectful of the great
    scope of the commerce power.     It is generally agreed that in a
    series of decisions culminating in Wickard v. Filburn, 
    63 S. Ct. 82
    (1942), the Supreme Court fixed the modern definition of the
    commerce power, returning it to the breadth of Gibbons v. Ogden, 22
    U.S. (9 Wheat.) 1, 
    6 L. Ed. 23
     (1824).   As stated in one treatise:
         "After Wickard, the tests for proper exercise of the
         commerce power were settled. First, Congress could set
         the terms for the interstate transportation of persons,
         products, or services, even if this constituted
         prohibition or indirect regulation of single state
         activities. Second, Congress could regulate intrastate
         activities that had a close and substantial relationship
         to interstate commerce; this relationship could be
         established by congressional views of the economic effect
         of this type of activity. Third, Congress could regulate
         SQunder a combined commerce clause-necessary and proper
         clause analysisSQintrastate activities in order to
         effectuate its regulation of interstate commerce."
         Rotunda & Nowack, Treatise on Constitutional Law;
         Substance and Procedure 2nd, § 4.9 at 404-5.
         Board as the commerce power is, its scope is not unlimited,
    particularly where intrastate activities are concerned.       As the
    Court said in Maryland v. Wirtz, 
    88 S. Ct. 2017
    , 2024 (1968):
         "This Court has always recognized that the power to
         regulate commerce, though broad indeed, has limits. Mr.
         Chief Justice Marshall paused to recognize those limits
         in the course of the opinion that first staked out the
         vast expanse of federal authority over the economic life
         of the new Nation. Gibbons v. Ogden, 
    9 Wheat. 1
    , 194-
    6 L. Ed. 23
    Chief Justice Marshall explained in Gibbons v. Ogden:
         "The subject to which power is next applied, is to
         commerce 'among the several states.'. . . Comprehensive
         as the word 'among' is, it may very properly be
         restricted to that commerce which concerns more states
              Mr. Cook.   Yes."   House Hearings, supra, at 14.
           than one. . . .    [T]he enumeration of the particular
           classes of commerce to which the power was to be
           extended, would not have been made had the intention been
           to extend the power to every description.             The
           enumeration presupposes something not enumerated; and
           that something, if we regard the language or the subject
           of the sentence, must be the exclusively internal
           commerce of a state. The genius and character of the
           whole government seem to be, that its action is to be
           applied to all the external concerns which affect the
           states generally; but not to those which are completely
           within a particular state, which do not affect other
           states, and with which it is not necessary to interfere,
           for the purpose of executing some of the general powers
           of the government. The completely internal commerce of
           a state, then, may be considered as reserved for the
           state itself." Id., 9 Wheat. at 194-95, 6 L.Ed. at 69-
           Similarly, in Wickard v. Filburn, the Court stated:
           "But even if appellee's activity be local and though it
           may not be regarded as commerce, it may still, whatever
           its nature, be reached by Congress if it exerts a
           substantial economic effect on interstate commerce and
           this irrespective of whether such effect is what might at
           some earlier time have been defined as 'direct' or
           'indirect.'" Id., 63 S.Ct. at 89 (emphasis added).
    This passage has been quoted with approval many times.      See, e.g.,
    Katzenbach v. McClung, 
    85 S. Ct. 377
    , 383 (1964); Perez v. United
    91 S. Ct. 1357
    , 1360 (1971).     In United States v. American
    Building Maintenance Industries, 
    95 S. Ct. 2150
    , 2156 (1975), the
    Court speaks of the "full Commerce Clause power" as extending to
    "all    activity   substantially   affecting   interstate    commerce"
    (emphasis added).     Analogously, in United States v. Wrightwood
    Dairy Co., 
    62 S. Ct. 523
    , 526 (1942), Chief Justice Stone's opinion
    for a unanimous Court states that the commerce power "extends to
    those intrastate activities which in a substantial way interfere
    with or obstruct the exercise of the granted power" (emphasis
    added).40        Justice Harlan, writing for the Court in Maryland v.
    Wirtz, made the message explicit: "Neither here nor in Wickard [v.
    Filburn] has the Court declared that Congress may use a relatively
    trivial     impact    on   commerce   as     an   excuse    for   broad   general
    regulation of state or private activities."                Id., 88 S.Ct. at 2024
    n.27.   Indeed, it could not be otherwise as the chain of causation
    is virtually infinite, and hence there is no private activity, no
    matter how local and insignificant, the ripple effect from which is
    not in some theoretical measure ultimately felt beyond the borders
    of the state in which it took place.              Hence, if the reach of the
    commerce power to local activity             that merely affects interstate
    commerce or its regulation is not understood as being limited by
    some concept such as "substantially" affects, then, contrary to
    Gibbons v. Ogden, the scope of the Commerce Clause would be
    unlimited, it would extend "to every description" of commerce and
    there would be no "exclusively internal commerce of a state" the
    existence of which the Commerce Clause itself "presupposes" and the
    regulation of which it "reserved for the state itself."
         We recognize, of course, that the imprecise and matter of
    degree nature of concepts such as "substantially," especially as
    applied     to    effect   on   interstate    commerce,      generally    renders
    decision making in this area peculiarly within the province of
         See also Heart of Atlanta Motel, Inc. v. United States, 
    85 S. Ct. 348
     (1964), where the Court noted that the "discriminatory
    practices" the regulation of which it sustained were "now found
    substantially to affect interstate commerce," id. at 355
    (emphasis added), and that under the Commerce Clause Congress'
    regulatory powers extend to "local activities . . . which might
    have a substantial and harmful effect upon" interstate
    "commerce." Id. at 358 (emphasis added).
    Congress, rather than the Courts.     And, the Supreme Court has
    consistently deferred to Congressional findings in this respect,
    both formal findings in the legislation itself and findings that
    can be inferred from committee reports, testimony before Congress,
    or statutory terms expressly providing for some nexus to interstate
    commerce. Relatively recent examples of statutes upheld against
    Commerce Clause attacks on the basis of formal Congressional
    findings include EEOC v. Wyoming, 
    103 S. Ct. 1054
    , 1058 & n.3 (1983)
    (Age Discrimination in Employment Act); FERC v. Mississippi, 
    102 S. Ct. 2126
    , 2135 (1982) (Public Utility Regulatory Policies Act);
    Hodel v. Virginia Surface Mining, 
    101 S. Ct. 2352
    , 2361 (1981)
    (Surface Mining Control and Reclamation Act); Perez, 91 S.Ct. at
    1358 n.1, 1362 (Consumer Credit Protection Act).41    In other cases,
    the Court has looked to the legislative history and the terms of
    the challenged statute itself to identify and sustain findings of
    a sufficient effect on interstate commerce.          For example, in
    McClung the Court upheld section 201(b)(2) and (c) of Title II of
    the Civil Rights Act of 1964, the terms of which covered any
    restaurants "if their operations affect commerce" and presumed that
    any did "'if . . . it serves or offers to serve interstate
         Perez does contain the statement that: "We have mentioned
    in detail the economic, financial, and social setting of the
    problem as revealed to Congress. We do so not to infer that
    Congress need make particularized findings in order to
    legislate." Id. at 1362. No citation of authority is given, nor
    is the meaning of the second sentence entirely clear. However,
    the opinion as a whole shows extensive consideration of and
    reliance on not only the evidence before Congress and the
    legislative history, but also the formal Congressional findings,
    which the Court had already observed were "quite adequate" to
    sustain the act. Id.
    travelers or a substantial portion of the food which it serves . .
    . has moved in commerce.'"   Id. at 381.   In so ruling, despite the
    absence of "formal findings," the Court relied on the wording of
    the statute itself, which amounted to an express finding of the
    requisite effect on commerce under certain facts, and on the
    legislative history showing the extensive evidence before Congress
    implicating interstate commerce.     Thus the Court noted that
         "The record is replete with testimony of the burdens
         placed on interstate commerce by racial discrimination in
         restaurants. . . . Moreover, there was an impressive
         array of testimony that discrimination in restaurants had
         a direct and highly restrictive effect upon interstate
         travel by Negroes." Id. at 381.
              "We believe that this testimony afforded ample basis
         for the conclusion that established restaurants in such
         areas sold less interstate goods because of the
         discrimination, that interstate travel was obstructed
         directly by it, that business in general suffered and
         that many new businesses refrained from establishing
         there as a result of it." Id. at 382.
         ". . . Congress has determined for itself that refusals
         of service to Negroes have imposed burdens both upon the
         interstate flow of food and upon the movement of products
         generally." Id. at 383.
    In sustaining the statute the Court concluded by stating:
         "The appellees urge that Congress, in passing the Fair
         Labor Standards Act and the National Labor Relations Act,
         made specific findings which were embodied in those
         statutes.   Here, of course, Congress has included no
         formal findings. But their absence is not fatal to the
         validity of the statute, [citation omitted] for the
         evidence presented at the hearings fully indicated the
         nature and effect of the burdens on commerce which
         Congress meant to alleviate.
              "Confronted as we are with the facts laid before
         Congress, we must conclude that it had a rational basis
         for finding that racial discrimination in restaurants had
         a direct and adverse effect on the free flow of
         interstate commerce. Insofar as the sections of the Act
         here relevant are concerned, §§ 201(b)(2) and (c),
         Congress prohibited discrimination only in those
         establishments having a close tie to interstate commerce,
         i.e., those, like the McClungs', serving food that has
         come from out of the State. We think in so doing that
         Congress acted well within its power to protect and
         foster commerce in extending the coverage of Title II
         only to those restaurants offering to serve interstate
         travelers or serving food, a substantial portion of which
         has moved in interstate commerce." Id. at 384 (footnote
         Where Congress has made findings, formal or informal, that
    regulated activity substantially affects interstate commerce, the
    courts must defer "if there is any rational basis for" the finding.
    Preseault v. I.C.C., 
    110 S. Ct. 914
    , 924 (1990); Hodel v. Virginia
    Surface Mining and Reclamation Association, Inc., 
    101 S. Ct. 2352
    2360 (1981); Heart of Atlanta Motel, Inc. v. United States, 85
         Similarly, in Heart of Atlanta Motel, Inc. v. United States,
    85 S. Ct. 348
     (1964), the Court upheld the same act "as applied
    here to a motel which concededly serves interstate travelers."
    Id. at 360. The Court noted that the act, by its express terms,
    applied to an establishment "if its operations affect commerce,"
    which was defined to include "any inn, hotel, motel, or other
    establishment which provides lodging to transient guests." Id.
    at 352-53. It observed that statute was "carefully limited to
    enterprises having a direct and substantial relation to the
    interstate flow of goods and people, except where state action is
    involved." Id. at 355. In sustaining the act as applied the
    Court stated:
         "While the Act as adopted carried no congressional
         findings the record of its passage through each house
         is replete with evidence of the burdens that
         discrimination by race or color places upon interstate
         commerce. See Hearings before Senate Committee on
         Commerce on S. 1732, 88th Cong., 1st Sess.; S.Rep. No.
         872, supra; Hearings before Senate Committee on the
         Judiciary on S. 1731, 88th Cong., 1st Sess.; Hearings
         before House Subcommittee No. 5 of the Committee on the
         Judiciary on miscellaneous proposals regarding Civil
         Rights, 88th Cong., 1st Sess., ser. 4; H.R.Rep. No.
         914, supra. . . . We shall not burden this opinion
         with further details since the voluminous testimony
         presents overwhelming evidence that discrimination by
         hotels and motels impedes interstate travel" Id. at
    44 S. Ct. 348
    , 358 (1964); McClung, 85 S.Ct. at 383.                 Practically
    speaking, such findings almost always end the matter.43           This means
    that the states, and the people, must largely look to their
    representatives in Congress to fairly and consciously fix, rather
    than to simply disregard, the Constitution's boundary line between
    "the completely internal commerce of a state . . . reserved for the
    state itself" and the power to regulate "Commerce with foreign
    Nations, and among the several States."         Courts cannot properly
    perform their duty to determine if there is any rational basis for
    a Congressional finding if neither the legislative history nor the
    statute itself reveals any such relevant finding.44             And, in such
    a situation there is nothing to indicate that Congress itself
    consciously fixed, as opposed to simply disregarded, the boundary
    line between the commerce power and the reserved power of the
    states.   Indeed,   as   in   this    case,   there   is   no    substantial
    indication that the commerce power was even invoked.45
         We know of no Supreme Court decision in the last half
    century that has set aside such a finding as without rational
    basis. However, the Court has never renounced responsibility to
    invalidate legislation as beyond the scope of the Commerce
    Clause. See, e.g., Maryland v. Wirtz, 
    88 S. Ct. 2017
    , 2025 (1968)
    ("This Court has examined and will continue to examine federal
    statutes to determine whether there is a rational basis for
    regarding them as regulations of commerce among the states.").
    Nor may we renounce that duty.
         Conceivably, a purely informational void could be filled by
    evidence in court of the same general kind that might have been
    presented to a Congressional committee or the like concerning any
    relationship between the legislation and interstate commerce.
    However, in such a situation the court could only guess at what
    Congress' determination would have been. In any event, there is
    no such evidence here.
         We recognize that "the constitutionality of action taken by
    Congress does not depend on recitals of the power which it
         Congressional    enactments        are,   of   course,        presumed
    constitutional.   But in certain areas the presumption has less
    force.   Cf. United States v. Carolene Products Co., 
    58 S. Ct. 778
    783 n.4 (1938) ("There may be a narrower scope for operation of the
    presumption of constitutionality when legislation appears on its
    face to be within a specific prohibition of the Constitution, such
    as those of the first ten Amendments . . . .").        Here the question
    is essentially a jurisdictional one, and any expansion of federal
    power is at the expense of the powers reserved to the states by the
    Tenth Amendment, which is, after all, as much a part of the Bill of
    Rights as the First.46   Both the management of education, and the
    general control of simple firearms possession by ordinary citizens,
    have traditionally been a state responsibility, and section 922(q)
    indisputably   represents   a   singular   incursion    by   the   Federal
    undertakes to exercise." Woods v. Cloyd W. Miller Co., 
    68 S. Ct. 421
    , 424 (1948). But in that case, the Court went on immediately
    to say: "Here it is plain from the legislative history that
    Congress was invoking its war power to cope with a current
    condition of which the war was a direct and immediate cause."
    Id. (footnote omitted). See also id. at 423 ("The legislative
    history of the present Act makes absolutely clear that there has
    not yet been eliminated the deficit in housing which in
    considerable measure was caused by the heavy demobilization of
    veterans and by the cessation or reduction in residential
    construction during the period of hostilities due to the
    allocation of building materials to military projects"; footnote
    omitted). The Court proceeded to sustain the legislation under
    the war power. Here, by contrast, the legislative history does
    not show that Congress, in enacting the Gun-Free School Zones
    Act, was invoking the Commerce Clause.
         It is also conceivable that some applications of section
    922(q) might raise Second Amendment concerns. Lopez does not
    raise the Second Amendment and thus we do not now consider it.
    Nevertheless, this orphan of the Bill of Rights may be something
    of a brooding omnipresence here. For an argument that the Second
    Amendment should be taken seriously, see Levinson, The
    Embarrassing Second Amendment, 99 Yale L.J. 637 (1989).
    Government into territory long occupied by the States.            In such a
    situation     where   we   are   faced     with   competing   constitutional
    concerns,     the   importance   of   Congressional    findings   is   surely
         As we have observed (note 42, supra), in Heart of Atlanta
    Motel, Inc. v. United States, 
    85 S. Ct. 348
     (1964), the Court
    upheld section 201(b)(1) & (c) of Title II of the Civil Rights
    Act of 1964, respecting hotels, motels, and inns, as a proper
    exercise of the commerce power, relying on the wording of the
    statute and its legislative history. The Court distinguished the
    Civil Rights Cases, 
    3 S. Ct. 18
     (1883), which had stricken down
    the Civil Rights Act of 1875. The Heart of Atlanta opinion
    observes that the opinion in Civil Rights Cases "specifically . .
    . note[d] that the Act was not conceived in terms of the commerce
    power." Heart of Atlanta, 85 S.Ct. at 354. The Heart of Atlanta
    opinion also in this connection contrasts the 1875 and 1964 acts:
         "Unlike Title II of the present legislation, the 1875
         Act broadly proscribed discrimination in 'inns, public
         conveyances on land or water, theaters, and other
         places of public amusement,' without limiting the
         categories of affected businesses to those impinging
         upon interstate commerce. In contrast, the
         applicability of Title II is carefully limited to
         enterprises having a direct and substantial relation to
         the interstate flow of goods and people, except where
         state action is involved." Id. at 354.
    The suggestion is that it is questionable whether an act which
    has neither an express or facial commerce nexus nor legislative
    history demonstrating such a nexus may be sustained as an
    exercise of the commerce power.
         In a similar vein, we note that in Woods v. Cloyd Miller
    68 S. Ct. 421
     (1946), the Supreme Court, relying on
    legislative history (see note 43, supra), sustained the Housing
    and Rent Act of 1947, which essentially contained a form of
    nationwide federal rent control, on the basis of the war power.
    The legislation did not expressly invoke the war power, but the
    Court sustained it on that basis, relying on legislative history,
    despite the Court's recognition that this principle should not
    extend long after the end of hostilities, as if it did "it may
    not only swallow up all other powers of Congress but largely
    obliterate the Ninth and Tenth Amendments as well." Id. at 424.
    Significantly, the Court never mentioned the Commerce Clause.
    Moreover, the Court's referenced concern seems to implicitly
    assume that the Commerce Clause would not reach so far.
          We draw support for our conclusion concerning the importance
    of Congressional findings from recent holdings that when Congress
    wishes to stretch its commerce power so far as to intrude upon
    state prerogatives, it must express its intent to do so in a
    perfectly clear fashion.       In Pennsylvania v. Union Gas, 
    109 S. Ct. 2273
     (1989) (plurality opinion), the Court held that Congress could
    use   its   commerce   power    to   abrogate   the    sovereign   immunity
    guaranteed to the States by the Eleventh Amendment only if its
    intent to do so is "unmistakably clear."              Id. at 2277 (quoting
    Atascadero State Hospital v. Scanlon, 
    105 S. Ct. 3142
    , 3147 (1985)).
    In another case decided the same day, the Court explained that this
    rule exists because "abrogation of sovereign immunity upsets the
    fundamental constitutional balance between the Federal Government
    and the States, placing a considerable strain on the principles of
    federalism that inform Eleventh Amendment doctrine."           Dellmuth v.
    109 S. Ct. 2397
    , 2400 (1989) (citations and internal quotation
    marks omitted). Two years later, in Gregory v. Ashcroft, the Court
    held that the Age Discrimination in Employment Act (ADEA) did not
    sweep away the Missouri Constitution's provision for the mandatory
    retirement of state judges at age seventy.        Arguing that a State's
    power to set the qualifications for its judiciary "is a decision of
    the most fundamental sort for a sovereign entity," 111 S.Ct. at
    2400, the Court held that the ADEA did not bespeak a sufficiently
    clear intent to annul this state prerogative:
               "Congressional interference with this decision of
          the people of Missouri, defining their constitutional
          officers, would upset the usual constitutional balance of
          federal and state powers.      For this reason, 'it is
          incumbent upon the federal courts to be certain of
         Congress' intent before finding that federal law
         overrides'   this  balance."   Id. at 2401 (quoting
         Atascadero, 105 S.Ct. at 3147).48
    We recognize that the rule being applied in those cases is one of
    statutory construction. Nevertheless, Gregory, Union Gas, and Bass
    establish that Congress' power to use the Commerce Clause in such
    a way as to impair a State's sovereign status, and its intent to do
    so, are related inquiries.   Thus, in Gregory, Congress' power to
    trump the Missouri Constitution was unquestioned but its intent to
    do so was unclear; hence the Court held that the State's Tenth
    Amendment interests would prevail.   Here, Congress surely intended
    to make the possession of a firearm near a school a federal crime,
    but it has not taken the steps necessary to demonstrate that such
         The Court then quoted extensively from Will v. Michigan
    Dep't of State Police, 
    109 S. Ct. 2304
     (1989). The Will Court had
         "[I]f Congress intends to alter the 'usual
         constitutional balance between the States and the
         Federal Government,' it must make its intention to do
         so 'unmistakably clear in the language of the statute.'
         Atascadero State Hospital v. Scanlon, 
    473 U.S. 234
    105 S. Ct. 3142
    , 3147, 
    87 L. Ed. 2d 171
     (1985); . . .
         Atascadero was an Eleventh Amendment case, but a
         similar approach is applied in other contexts.
         Congress should make its intention 'clear and manifest'
         if it intends to pre-empt the historic powers of the
         States, Rice v. Santa Fe Elevator Corp., 
    331 U.S. 218
    67 S. Ct. 1146
    , 1152, 
    91 L. Ed. 2d 1447
     (1947), or if
         it intends to impose a condition on the grant of
         federal moneys, Pennhurst State School and Hospital v.
    451 U.S. 1
    , 16, 
    101 S. Ct. 1531
    , 1539, 
    67 L. Ed. 2d 694
     (1981); South Dakota v. Dole, 
    483 U.S. 203
    107 S. Ct. 2793
    , 2795, 
    97 L. Ed. 2d 171
     (1987). 'In
         traditionally sensitive areas, such as legislation
         affecting the federal balance, the requirement of clear
         statement assures that the legislature has in fact
         faced, and intended to bring into issue, the critical
         matters involved in the judicial decision.' United
         States v. Bass, 
    404 U.S. 336
    , 349, 
    92 S. Ct. 515
    , 523,
    30 L. Ed. 2d 488
     (1971)." Id. at 2308-09.
    an exercise of power is within the scope of the Commerce Clause.
          In 1985, the Supreme Court held that the Tenth Amendment
    imposes no internal limitation upon the Commerce Clause; as long as
    Congress acts within the commerce power it cannot violate the Tenth
    Amendment.       See Garcia v. San Antonio Metro. Trans. Auth., 
    105 S. Ct. 1005
     (1985) (overruling National League of Cities v. Usery,
    96 S. Ct. 2465
     (1976)).         The Garcia Court sought to assuage the
    fears of four dissenting Justices by arguing that, as a body of
    state representatives, Congress would respect the sovereignty of
    the   several     States   and    could    be   trusted    to    police   the
    constitutional      boundary   between    the   Tenth   Amendment   and   the
    Commerce Clause.      See Garcia, 105 S.Ct. at 1017-19.         By expecting
    Congress to build a more sturdy foundation for the exercise of its
    commerce power than it has done in this case, we hope to
          "further[] the spirit of Garcia by requiring that
          decisions restricting state sovereignty be made in a
          deliberate manner by Congress, through the explicit
          exercise of its lawmaking power to that end. . . . [T]o
          give the state-displacing weight of federal law to mere
          congressional ambiguity would evade the very procedure
          for lawmaking on which Garcia relied to protect states'
          interests." L. Tribe, American Constitutional Law § 6-
          25, at 480 (2d ed. 1988) (footnote omitted).
          The Gun Free School Zones Act extends to criminalize any
    person's carrying of any unloaded shotgun, in an unlocked pickup
    truck gun rack, while driving on a county road that at one turn
    happens to come within 950 feet of the boundary of the grounds 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.     Neither the act itself nor its legislative history
    reflect    any    Congressional   determination     that   the    possession
    denounced by section 922(q) is in any way related to interstate
    commerce      or   its   regulation,     or,   indeed,   that   Congress    was
    exercising its powers under the Commerce Clause.              Nor do any prior
    federal enactments or Congressional findings speak to the subject
    matter   of    section     922(q)   or   its   relationship     to   interstate
    commerce.      Indeed, section 922(q) plows thoroughly new ground and
    represents a sharp break with the long-standing pattern of federal
    firearms legislation.49
         The district court sustained section 922(q) on the basis that
    the "'business' of elementary, middle and high schools . . .
    affects interstate commerce."             However, as noted, there is no
    finding, legislative history, or evidence to support section 922(q)
    on this basis.           The management of education, of course, has
    traditionally been a state charge, as Congress has expressly
         Thus, we are not faced with a situation such as that
    addressed by Justice Powell in his concurrence in Fullilove v.
    100 S. Ct. 2758
     (1980). See id. at 2787 (Powell, J.,
    concurring) ("After Congress has legislated repeatedly in an area
    of national concern, its Members gain experience that may reduce
    the need for fresh hearings or prolonged debate when Congress
    again considers action in that area.").
         See also City of Richmond v. J.A. Croson Co., 
    109 S. Ct. 706
    (1989) (plurality opinion), in which the Court held
    unconstitutional Richmond's plan requiring thirty percent of
    public subcontracting work to be given to minority-owned
    business, in part because of the city's failure adequately to
    supports its "finding" that past discrimination necessitated
    race-conscious remedial action. Specifically, the Court rejected
    the city's reliance upon findings made by Congress (and used by
    the Court to sustain a similar federal racial set-aside in
    Fullilove) that there had been nationwide discrimination against
    blacks in the construction industry, saying that "[t]he probative
    value of these findings for demonstrating the existence of
    discrimination in Richmond is extremely limited." Id. at 727.
    Further, the Court saw "absolutely no evidence of past
    discrimination against Spanish-speaking, Oriental, Indian,
    Eskimo, or Aleut persons in any aspect of the Richmond
    construction industry." Id. at 728 (original emphasis).
    recognized.   See 20 U.S.C. § 3401(4) ("The Congress finds that . .
    . in our Federal system, the primary public responsibility for
    education is reserved respectively to the States and the local
    school systems and other instrumentalities of the States.").50       We
    are unwilling to ourselves simply assume that the concededly
    intrastate conduct of mere possession by any person of any firearm
    substantially   affects   interstate   commerce,   or   the   regulation
    thereof, whenever it occurs, or even most of the time that it
    occurs, within 1000 feet of the grounds of any school, whether or
    not then in session.   If Congress can thus bar firearms possession
         We reject two related arguments by the government in this
    connection. First it urges that section 922(q) "is not
    fundamentally different from the 'schoolyard statute,' 21 U.S.C.
    § 860, which provides greater punishment for drug offenses
    occurring within 1000 feet of a school." However, this statement
    ignores the fundamental difference that all drug trafficking,
    intrastate as well as interstate, has been held properly subject
    to federal regulation on the basis of detailed Congressional
    findings that such was necessary to regulate interstate
    trafficking. See United States v. Lopez, 
    459 F.2d 949
    , 951-53
    (5th Cir.), cert. denied sub nom. Llerena v. United States, 
    93 S. Ct. 130
     (1972). Thus, section 860 is not a regulation of
    schools but of drugs, and its jurisdictional foundation is the
    now unchallenged federal authority over intrastate as well as
    interstate narcotics trafficking. See cases cited in note 10,
         Second, the government urged the district court that "[t]he
    federal government has provided thousands and thousands of
    dollars in federal educational grant moneys to the San Antonio
    Independent School District . . . . The federal government is
    entitled to protect its investment in education . . . ." We
    reject this contention. Although Congress may attach conditions
    to the receipt of federal funds, it must do so unambiguously.
    See South Dakota v. Dole, 
    107 S. Ct. 2793
    , 2796 (1987); Pennhurst
    State School & Hospital v. Halderman, 
    101 S. Ct. 1531
    , 1540
    (1981). We cannot view section 922(q) as a condition meant to
    "protect the federal investment in schools," as the government
    puts it, because Congress has in no way tied section 922(q) to
    federal funding. Section 922(q), which expressly extends to
    "private" and "parochial" as well as "public" schools, does not
    even mention federal funding, and applies whether or not such
    funding is received.
    because of such a nexus to the grounds of any public or private
    school, and can do so without supportive findings or legislative
    history, on the theory that education affects commerce, then it
    could also similarly ban lead pencils, "sneakers," Game Boys, or
    slide rules.
         The government seeks to rely on the rule that "[w]here the
    class of activities is regulated and that class is within the reach
    of the federal power, the courts have no power 'to excise, as
    trivial, individual instances' of the class."    Perez, 91 S.Ct. at
    1361 (quoting Maryland v. Wirtz, 
    88 S. Ct. 2017
    , 2022 (1968)).   This
    theory has generally been applied to the regulation of a class of
    activities the individual instances of which have an interactive
    effect, usually because of market or competitive forces, on each
    other and on interstate commerce.    A given local transaction in
    credit, or use of wheat, because of national market forces, has an
    effect on the cost of credit or price of wheat nationwide.      Some
    such limiting principle must apply to the "class of activities"
    rule, else the reach of the Commerce Clause would be unlimited, for
    virtually all legislation is "class based" in some sense of the
    term. We see no basis for assuming, particularly in the absence of
    supporting Congressional findings or legislative history, that, for
    example, ordinary citizen possession of a shotgun during July 900
    feet from the grounds of an out-of-session private first grade in
    rural Llano County, Texas, has any effect on education even in
    relatively nearby Austin, much less in Houston or New Orleans. Nor
    can we assume that elementary education in Houston substantially
    affects elementary education in Atlanta.        As noted, any such
    holding would open virtually all aspects of education, public and
    private, elementary      and    other,    to   the   reach   of   the   Commerce
         We hold that section 922(q), in the full reach of its terms,
    is invalid as beyond the power of Congress under the Commerce
    Clause.52     Whether    with    adequate      Congressional      findings   or
    legislative history, national legislation of similar scope could be
    sustained, we leave for another day.             Here we merely hold that
    Congress has not done what is necessary to locate section 922(q)
    within the Commerce Clause.       And, we expressly do not resolve the
    question    whether   section    922(q)    can   ever   be   constitutionally
    applied.    Conceivably, a conviction under section 922(q) might be
    sustained if the government alleged and proved that the offense had
    a nexus to commerce.53    Here, in fact, the parties stipulated that
         The government also urges that we have sustained the
    prohibition of all simple narcotics possession. See United
    States v. Lopez, 
    461 F.2d 499
     (5th Cir. 1972) (per curiam).
    However, there we relied on our decision in the earlier,
    different Lopez case, 
    459 F.2d 949
    , where we in turn relied on
    Congressional findings that such was necessary to effectively
    regulate the interstate trafficking in narcotics. The possession
    proscription was a necessary means to regulate the interstate
    commercial trafficking in narcotics. There is nothing analogous
    in the present case. Section 922(q) is not related (either in
    terms or by legislative findings or history) to the regulation of
    interstate trafficking in firearms or to any scheme for such
    purpose, and there has been no general outlawing of the
    possession of ordinary firearms by ordinary citizens. Moreover,
    firearms do not have the fungible and untraceable characteristics
    of narcotics.
         No other basis for section 922(q) has been suggested.
         Cf. Heart of Atlanta, 85 S.Ct. at 360 ("We, therefore,
    conclude that the action of the Congress in the adoption of the
    Act as applied here to a motel which concededly serves interstate
    travelers is within the power granted it by the Commerce Clause
    of the Constitution.") (emphasis added). However, the "as
    a BATF agent was prepared to testify that Lopez's gun had been
    manufactured outside of the State of Texas.          Lopez's conviction
    must still be reversed, however, because his indictment did not
    allege any connection to interstate commerce.        An indictment that
    fails to allege a commerce nexus, where such a nexus is a necessary
    element of the offense, is defective.            See Stirone v. United
    80 S. Ct. 270
    , 273 (1960) (Hobbs Act); United States v.
    841 F.2d 1225
    , 1227-32 (4th Cir. 1988) (en banc) (RICO);
    United States v. Moore, 
    185 F.2d 92
    , 94 (5th Cir. 1950) (FLSA).
    This is true even though the language of section 922(q) contains no
    such requirement.        See Russell v. United States, 
    82 S. Ct. 1038
    1047-48 (1962); 2 W. LaFave & J. Israel, Criminal Procedure § 19.2,
    at 452 (1984).      Finally, because an indictment, unlike a bill of
    information, cannot be amended, the failure to allege each element
    is fatal.    Cf. United States v. Garrett, 
    984 F.2d 1402
    , 1415 (5th
    Cir. 1993); United States v. Mize, 
    756 F.2d 353
    , 355-56 (5th Cir.
          For the reasons stated, the judgment of conviction is reversed
    and   the   cause   is    remanded   with   directions   to   dismiss   the
    applied" issue has not been briefed or argued with respect to
    section 922(q) and, as noted, we expressly do not resolve it.
         Because we reverse Lopez's conviction, we do not reach the
    challenge he raises to his sentence.