United States District Court, District of New Jersey
July 19, 2001
UNITED STATES OF AMERICA,
JERRY DEJESUS DEFENDANT.
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
18 U.S.C. § 922(g)(1).
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.
A. Legal Background
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 involve three
categories of regulation:
(1) Congress may regulate "the use of channels of interstate commerce";
(2) Congress may "regulate and protect the instrumentalities of
interstate commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities"; and
(3) Congress may "regulate those activities having a substantial relation
to interstate commerce . . . i.e., those activities that substantially
affect interstate commerce." Id. at 558-59.
The government in Lopez tried to justify § 922(q) solely on
the ground that "possession of a firearm in a local school zone . . .
substantially affect[s] interstate commerce." Id. at 563.
The Court found, however, that possession of a gun in a local school
zone is "in no sense an economic activity that might, through repetition
elsewhere, substantially affect any sort of interstate commerce." Id. at
567. Furthermore, the Court noted that the statute "contains no
jurisdictional element which would ensure, through case-by-case inquiry,
that the firearm possession in question affects interstate commerce."
Id. at 561. Finally, the Court found that neither the statute nor its
legislative history contained any findings concerning the affects upon
interstate commerce of possession of a gun in a school zone. Id. at 563.
The government asserted three separate grounds upon which possession of
a gun in a "school zone" would substantially affect commerce. First, the
government argued that possession of a gun in a school zone may result in
an increase in violent crime which impacts society through higher
insurance rates. Id. at 563-64. Second, the government argued that
violent crime reduces the "willingness of individuals to travel to areas
within the country that are perceived to be unsafe." Id. at 564.
Finally, the government argued that the presence of guns in the
educational environment threatens the ability of students to learn, which
in turn creates a less productive
citizenry and adversely affects the
national economy. Id.
The Court rejected these arguments, holding that with §
922(q)(1)(A) Congress had finally exceeded the outer boundaries of
judicial deference to Congressional authority to regulate commerce. Id.
Fearing a general federal police power under the guise of an omnipotent
Commerce Clause power, the Lopez Court noted that anything that might
lead to violent crime could be regulated under the government's "cost of
crime" argument, as well as anything that was related to the productivity
of individual citizens, including such areas of state law as family law
and education. Id. Finding no other constitutional justification for the
law, the Court found it unconstitutional. Id. at 568.
Immediately after the Lopez decision, many criminal convictions and
civil remedies became suspect as the constitutional bases of several
statutes were challenged.*fn2
18 U.S.C. § 922(g)(1) was no exception
as its constitutional basis was challenged in the Third Circuit in United
States v. Gateward, 84 F.3d 670
(3d Cir. 1996). In Gateward, the Third
Circuit upheld § 922(g)(1) by relying heavily on two Supreme Court
cases that addressed the interstate commerce aspect of
18 U.S.C. § 1202(a), the predecessor statute to § 922(g)(1),
which made any felon "who receives, possesses, or transports in commerce
. . . any firearm" guilty of a federal offense.
18 U.S.C. § 1202(a)(repealed 1986).
In the first case relied on by the Gateward Court, United States v.
Bass, 404 U.S. 336 (1971), the Supreme Court held that the government
must prove as an essential element of the offense that a possession,
receipt or transportation was "in commerce or affecting commerce."
Indeed, the court noted that, "[a]bsent proof of some interstate commerce
nexus in each case, § 1202(a) dramatically intrudes upon traditional
state criminal jurisdiction." Id. at 349. Thus, the Bass Court set aside
the conviction because, although the Government had demonstrated that
Bass had possessed a firearm, it had failed "to show the requisite nexus
with interstate commerce." Id. at 347. Hence, the requirement of the
jurisdictional element to establish an interstate nexus to the possession
of a firearm by a convicted felon was born.
In the second case relied on by the Gateward Court, Scarborough v.
United States, 431 U.S. 563 (1977), the Supreme Court clarified the
requirements of the interstate commerce nexus. In Scarborough, the Court
held that proof that possessed firearms had previously traveled in
interstate commerce was sufficient to satisfy the statute's "in commerce
or affecting commerce" nexus requirement. Id. at 577.
Using these two cases as a guide, the Third Circuit found that Lopez
did not undercut the Bass/Scarborough proposition that the jurisdictional
element "`in or affecting commerce' keeps the felon firearm law well
inside the constitutional fringes of the Commerce Clause." Gateward,
F.3d at 671. Further, the Gateward Court read the Lopez opinion to mean
that the Supreme Court invalidated § 922(q) because "by its terms
[§ 922(q)] has nothing to do with `commerce' or any sort of economic
enterprise, however broadly one might define those terms," and because
"§ 922(q) contains no jurisdictional element which would ensure,
through case-by-case inquiry, that the firearm possession in question
affects interstate commerce." Lopez, 514 U.S. at 561.
Thus, the Gateward Court distinguished § 922(q) from §
922(g)(1) by finding that Congress had drafted § 922(g)(1) to
include a jurisdictional element which, in light of the Lopez decision,
"buttresses the validity of the felon firearm statute." Gateward, 84 F.3d
The importance of the jurisdictional element in the Third Circuit was
further magnified in another post-Lopez case, United States v. Bishop,
66 F.3d 569 (3d Cir. 1995). In Bishop, the Third Circuit upheld
18 U.S.C. § 2119, the federal anti-car-jacking statute, against a
post-Lopez Commerce Clause challenge by distinguishing the statute in
Lopez from § 2119 because "unlike the statute in Lopez, section 2119
contains a `jurisdictional element' which ostensibly limits is
application to activities substantially related to interstate commerce."
Id. at 585. The Bishop Court further reasoned that "the Supreme Court
decisions in Bass and Scarborough compel the conclusion that the
jurisdictional element in section 2119 provides a nexus sufficient to
protect the statute from constitutional infirmity." Id. Thus, the Third
Circuit concluded that, in the post-Lopez era, a jurisdictional element
can be enough to provide the necessary nexus to interstate commerce.
Consideration of Defendant's Claim that
18 U.S.C. § 922(g)(1) is Unconstitutional
Here, defendant argues that § 922(g)(1) is an invalid exercise of
Congress' authority under the Commerce Clause despite the binding
precedent in Gateward that § 922(g)(1) is constitutional. (Def.'s Br.
at 3.) The defendant claims Gateward should be discarded by this Court
because it is based on the flawed assumption that Lopez was a limited
holding. (Id. at 2.)
The defendant offers the Supreme Court's two recent opinions in United
States v. Morrison, 529 U.S. 598
(2000), and Jones v. United States,
529 U.S. 848 (2000), as evidence of a permanent and fundamental shift in
the Supreme Court's Commerce Clause jurisprudence away from Congressional
deference and towards a preservation of federalist principles. However,
these two cases do not specifically address the question of whether or
not the reasoning in Gateward is flawed or that the precedent upon which
it is established are overruled.
In Morrison, the Supreme Court struck down 42 U.S.C. § 13981, which
provided a civil remedy for the victims of gender-motivated violence.
Using the three-prong analysis of Lopez, the Court found that § 13981
did not fall within either of the first two categories of activity that
Congress may regulate under its commerce power. Morrison, 529 U.S. at
609. Thus, the Court considered whether the statute could be considered a
regulation of activity that substantially affects interstate commerce.
Id. Applying the same four factors that it had in Lopez, the Court found
that it could not. Id. at 619. Thus, the Court's majority "reject[ed] the
argument that Congress may regulate noneconomic, violent criminal conduct
based solely on that
conduct's aggregate affect on interstate commerce."
Id. at 617. The Court also relied on the fact that § 13981 does not
contain a jurisdictional element that provides the necessary nexus to
interstate commerce. Id. at 613. In fact, the Court wrote that "such a
jurisdictional element would lend support to the argument that §
13981 is sufficiently tied to interstate commerce." Id.
However, unlike the statutes at issue in either Lopez or Morrison,
§ 922(g)(1) includes an express jurisdictional element requiring the
government to provide evidence in each prosecution of a sufficient nexus
between the charged offense and interstate or foreign commerce. By
including this express jurisdictional element, Congress effectively
"limit[ed] [the statute's] reach to a discrete set of firearm possessions
that have an explicit connection with or affect on interstate commerce."
Morrison, 529 U.S. at 611-12 (quoting Lopez, 514 U.S. at 562). Thus, the
jurisdictional element in § 922(g)(1) puts it into a different
category of analysis than the laws considered in Lopez and Morrison. In
Gateward, the Third Circuit relied on the presence of a jurisdictional
element to uphold § 922(g)(1) after Lopez and Morrison does not
require this Court to reach a different conclusion in this case.
Second, DeJesus's reliance on Jones in support of his constitutional
argument is misplaced. In Jones v. United States, 529 U.S. 848 (2000),
the defendant was convicted of throwing an explosive device into an
owner-occupied residence in violation of 18 U.S.C. § 844(i), which
prohibits damaging or destroying "by means of fire or any explosive, any
. . . property used in interstate or foreign commerce or in any activity
affecting interstate commerce." 18 U.S.C. § 844(i). The defendant
challenged his conviction, arguing that, when applied to the arson of an
owner-occupied residence, § 844(i) exceeded Congress' authority under
the Commerce Clause.
In reversing the conviction of the defendant, the Supreme Court
concluded that 18 U.S.C. § 844(i) did not reach arson of an
owner-occupied residence, since such property could not be said to have
been "used in . . . any activity affecting . . . commerce" as required by
the statute. Jones, 529 U.S. at 854. In construing the arson statute in
this fashion, the Court avoided the constitutional question that would
have arisen under Lopez had it read § 844(i) to cover such
"traditionally local criminal conduct." Id.
Thus Jones is a ruling of statutory interpretation that adds little to
the analysis of Gateward. While the law challenged in Jones, the federal
arson statute, did have a jurisdictional element, the challenge was as
applied rather than the facial attack posed by the defendant in this
case. The Court in Jones considered the connection of a specific
non-mobile home to interstate commerce and found it wanting, but this
decision has little impact on the assessment of whether firearms moved
through interstate commerce are subject to Congressional regulation.
Indeed, the limited holding in Jones does nothing to call Gateward into
question and may even strengthen the precedent upon which it is based
because the Supreme Court again recognized the necessity of the
jurisdictional element to limit the reach of statutes empowered by the
Moreover, every Court of Appeals to have considered the
constitutionality of 18 U.S.C. § 922(g)(1) after Morrison and Jones
has upheld the statute, including
decisions of the First,*fn3 Second,*fn4
Fourth,*fn5 Sixth,*fn6 Seventh,*fn7 Ninth,*fn8 and Tenth*fn9
Circuits. The Supreme Court has denied certiorari in the Second, Seventh
and Tenth Circuit cases,*fn10 while petitions for certiorari were only
recently filed in the First and Ninth Circuit cases and remain pending.
In light of the foregoing, the Court concludes that neither Morrison
nor Jones have undermined, let alone overruled, the Third Circuit's
holding in Gateward. Therefore, this Court is bound by the decision of
the Third Circuit in Gateward because no subsequent Supreme Court opinion
overturns the rationale used in that case or overrules the Supreme Court
precedent upon which it is based, including Bass and Scarborough, supra.
*fn12 Thus, to grant defendant's request that this Court disregard
Gateward as bad law would require this Court to overlook viable Supreme
Court and Third Circuit precedent, which it is unable to do. As Justice
Kennedy once explained:
If a precedent of this Court has direct application in
a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals
follow the case that directly controls, leaving
to this Court the prerogative of overruling its own
Rodriguez De Quijas v. Shearson/American Express, Inc., 490 U.S. 477
Thus, even though the question may remain open whether or not the
Supreme Court will eventually find § 922(g)(1) unconstitutional, it
is not for this Court to overstep Gateward or to predict its eventual
demise in the Supreme Court. This Court holds that § 922(g)(1) is not
unconstitutional on its face in light of existing precedent. As in
Scarborough and Gateward supra, the statute's essential element that the
possessed firearm previously traveled in interstate commerce satisfies
Commerce Clause requirements for such regulated activity.
For the reasons stated above, defendant's motion to dismiss the
Indictment for lack of federal jurisdiction charging him with violating
§ 922(g)(1), is denied. The accompanying Order is entered.
This matter having come before the Court upon the motion of
defendant, Jerry DeJesus, for an order dismissing the December 8, 1999,
Indictment charging the defendant with violating 18 U.S.C. § 922(g)(1);
The Court having considered the parties' submissions; and having
heard oral argument on June 29, 2001; and
The Court having found, for reasons stated in its Opinion filed
today, that this motion should be denied;
IT IS this ___ day of July, 2001, hereby ORDERED that defendant's
motion to dismiss the Indictment shall be, and hereby is, DENIED.