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UNITED STATES v. HOLLAND

October 13, 1993

UNITED STATES OF AMERICA
v.
DARNELL HOLLAND



The opinion of the court was delivered by: BY THE COURT; JAMES MCGIRR KELLY

 J. M. KELLY, J.

 OCTOBER 13, 1993

 Presently before the court is Defendant Darnell Holland's Motion to Dismiss Count Two of the Indictment which charges him with knowing possession of a firearm in a school zone in violation of 18 U.S.C. § 922(q)(1)(a). *fn1" Defendant moves for dismissal of this count on the grounds that 18 U.S.C. § 922(q), also known as the Gun-Free School Zones Act of 1990 ("School Zones Act") is unconstitutional. Plaintiff, the United States of America, filed a response in opposition to Defendant's Motion to Dismiss.

 Parties' Arguments

 Defendant first argues that this Act intrudes on an area, education, normally left to the states' regulation. Thus, it violates the principle that the federal government's powers are limited and enumerated. Defendant also argues that the Act violates the 10th Amendment both by its intrusion into the area of education and by its needless and inappropriate overriding of state firearm laws. Finally, Defendant argues that the Act cannot be sustained under the Commerce Clause because "there is no finding, legislative history, or evidence" which would show that the Act is a proper exercise of Congressional power under the Commerce Clause. United States v. Lopez, No. 92-5641, 1993 U.S. App. LEXIS 23567, 1993 WL 355468 at 17 (5th Cir. Sept. 15, 1993).

 The government argues that the Act is constitutional under the Commerce Clause because Congress has consistently found a firm link between firearms as a class and interstate commerce, because Congress' power to regulate firearms extends even to intrastate situations and because the business of education affects interstate commerce.

 Analysis

 In reviewing the validity of a statute under the Commerce Clause, the court must determine whether Congress could reasonably find that the class of regulated activity affects interstate commerce. Perez v. United States, 402 U.S. 146, 152-56, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971). Congress need not make specific findings of fact to support its conclusion that a class of activity affects interstate commerce. Id. at 156. Instead, Congressional action may be supported by legislative history showing Congress had information that the regulated class of activity affected commerce. Id.

 Legislative history indicates that Congress had ample information that firearms possession affected interstate commerce when it enacted the 1968 Omnibus Crime Control and Safe Streets Act ("1968 Act"). At that time, Congress was responding to national concern. *fn2" Congress made the following express findings regarding the nexus between firearms regulation and interstate commerce:

 
(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 deal with, and ...

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