Gun-Toting Toad Killers

How can federal regulations survive the new Supreme Court?

When Chief Justice John Roberts was nominated, Democrats worried that he was willing to overturn the Endangered Species Act. Now they're warning that Samuel Alito, President Bush's latest Supreme Court pick, is hostile to federal gun control.

Together, presumably, Roberts and Alito would bring us two votes closer to an America where Congress is powerless to prevent the machine-gunning of arroyo toads. I wish.

Both men have expressed doubts about the idea that Congress may pass whatever legislation it pleases under the pretext of regulating interstate commerce. But a closer look at their positions suggests neither is inclined to enforce serious limits on congressional power.

For statists of both parties, the main cause for concern about Roberts was a 2003 case in which a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld federally imposed land use restrictions aimed at protecting the arroyo toad. When the full court declined to rehear the case, Roberts dissented, noting that the panel's analysis meant "regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating 'Commerce…among the several States.'"

But as Roberts emphasized during his confirmation hearings, he did not join a dissent in which Judge David Sentelle concluded that the regulations were unconstitutional. During the Senate hearings Roberts implied that he would have been happy to uphold the regulations under a Commerce Clause test different from the one used by the three-judge panel.

Roberts reinforced the impression that he takes a broad view of the Commerce Clause by taking a narrow view of U.S. v. Lopez, the 1995 case in which the Supreme Court overturned a federal law prohibiting gun possession in or near schools. This was the first time in 60 years that the Court had deemed an act of Congress to be outside the bounds of the Commerce Clause, and it was widely seen as signaling a new determination to enforce the distinction between state and federal powers.

Yet according to Roberts, the crucial defect in the Gun-Free School Zones Act was its lack of a "jurisdictional element" requiring the government to show that a firearm involved in a violation had traveled at some point in interstate commerce. In 1996 Congress passed a new version of the law that includes this requirement, which (as Roberts noted) is generally easy to meet.

At first blush, Alito has a broader take on Lopez. In 1996 he dissented from a decision by the U.S. Court of Appeals for the 3rd Circuit that rejected a Commerce Clause challenge to the federal ban on machine guns.

Alito noted that, like the Gun-Free School Zones Act, the machine gun ban prohibited mere possession within a single state, lacked a jurisdictional element, and was not based on a finding that the proscribed behavior had a "substantial effect" on interstate commerce. "If Lopez does not govern this case," he wrote, "then it may well be a precedent that is strictly limited to its own peculiar circumstances"—a kind of "constitutional freak."

At the same time, Alito indicated that he would have voted to uphold the law if it had included a jurisdictional element and that "it might be sustainable" if Congress had made findings concerning the effect of machine gun possession on interstate commerce. These readily satisfied requirements would have little practical impact on the scope of federal legislation.

As Justice Clarence Thomas has been arguing for years, the Supreme Court cannot enforce principled limits to the Commerce Clause as long as it allows Congress to regulate not only interstate commerce but anything (including, we discovered this year, homegrown medical marijuana) said to have a "substantial effect" on it. Roberts told the Senate Judiciary Committee he has "no agenda to overturn or revisit" that doctrine, and it seems unlikely that Alito does either. Sadly, it looks like the "constitutional freak" is Thomas.

Jacob Sullum is a senior editor at Reason and the author of Saying Yes: In Defense of Drug Use. Sullum's weekly column is distributed by Creators Syndicate. If you'd like to see it in your local newspaper, please e-mail or call the editorial page editor today.