The opinion of the court was delivered by: Jerome B. Simandle, U.S. District Judge
OPINION UPON MOTION TO DISMISS INDICTMENT
This Court is called upon to address the issue whether the federal
statute which criminalizes possession of a firearm by a convicted felon,
18 U.S.C. § 922(g)(1), is facially unconstitutional as lying beyond
the power of Congress under the Commerce Clause, in light of the recent
jurisprudence of the Supreme Court restricting the reach of the Commerce
Clause. The felon-in-possession statute, 18 U.S.C. § 922(g)(1)
[i]t shall be unlawful for any person — (1) who
has been convicted in any court of a crime punishable
by imprisonment for a term exceeding one year . . . to
ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or
Defendant Jerry DeJesus is charged with knowingly possessing a
firearm, after having been convicted of a crime punishable by
imprisonment for a term exceeding one year, in violation of
18 U.S.C. § 922(g)(1) and 2. The defendant has moved to dismiss the
indictment under the premise that 18 U.S.C. § 922(g)(1) is facially
unconstitutional because the conduct being regulated by Congress in the
statute does not have a substantial affect upon interstate commerce and
thus does not constitute a valid exercise of Congress' authority under
the Commerce Clause. The United States counters by arguing that this
Court is bound by the Third Circuit decision in United States v.
Gateward, 84 F.3d 670 (3d Cir. 1996), which upheld the constitutionality
of § 922(g)(1). For the reasons stated herein, defendant's motion to
dismiss the indictment in this matter is denied.
On October 1, 1999, Camden police, investigating a report of a stolen
car in the area of Mt. Ephraim Avenue and Liberty Street in Camden, New
Jersey, apprehended defendant Jerry DeJesus as he allegedly attempted to
flee the scene of an accident involving a stolen car. A search conducted
incident to defendant's arrest allegedly revealed defendant was in
possession of an Arcadia Machine & Tool, .380 caliber, semi-automatic
On December 8, 1999, a Grand Jury, sitting in Camden, New Jersey,
returned a one-count Indictment charging the defendant with being a
felon-in-possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). On January 25, 2001, defendant was arraigned
before the Honorable Robert B. Kugler, United States Magistrate Judge.
Defendant is now before this Court seeking to dismiss the indictment on
the grounds that the felon-in-possession of a firearm statute,
18 U.S.C. § 922(g)(1), violates the Commerce Clause of the United
States Constitution, Art. I, § 8, and is therefore unconstitutional.
Under the Commerce Clause, Congress is empowered "to regulate Commerce
with foreign Nations, and among the several States, and with the Indian
Tribes." U.S. Const., Art. I, § 8, cl. 3. This power has been
construed broadly to allow Congressional regulation of many aspects of
The legal landscape in this area changed, however, on April 26, 1995,
with the ruling in United States v. Lopez, 514 U.S. 549 (1995). At issue
in Lopez was the constitutionality of the Gun-Free School Zones Act of
1990, 18 U.S.C. § 922(q)(1)(A), which made it a federal offense "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."
18 U.S.C. § 922 (q)(1)(A).
In analyzing 18 U.S.C. § 922(q)(1)(A), the Supreme Court noted that
Congressional power under the Commerce Clause may ...