Since the New Deal legislation of the 1930s, the national power to regulate interstate commerce seemed settled in the federal government’s hands. Until 1995, the Supreme Court did not place any limits on Congress’ commerce power. The commerce power given in Article I of the Constitution regulates commerce among “foreign nations,” “the several states,” and “Indian tribes.” The Supreme Court read the interstate Commerce Clause broadly. This sequence changed with US v Lopez In 1995. In 1990, Democrats in Congress and Republican President George H.W. Bush passed a crime bill which included the Gun-Free Schools Act. Democrats saw this as a modest addition to popular drug-free school zones, and Republicans made no objections, as concerns about school shootings were growing. The Act made it a federal offense to have a firearm in an area that one can reasonably assume is a school zone. 

Alfonso Lopez, a high school senior, brought a concealed weapon into his San Antonio High School. The weapon was later found in his locker. Lopez was first charged under Texas law, but those charges were later dismissed for federal charges under the Gun-Free Schools Act. Lopez’s lawyers argued that the Congress was acting unconstitutionally when it established the Gun-Free Schools Act. They went on to state that the schools were under the authority of state and local governments, not the federal government. 

In response, the government stated that weapons in a school zone play a role in interstate commerce since they may result in violent crime. They also added that violent crime can be costly to the American population, and could impede the ability and willingness of individuals to travel between states. More generally, allowing weapons in schools may disrupt the educational process, harm the ability of schools to form good citizens, and impact the greater economy. The Court was asked to determine if the Gun-Free School Zones Act exceeded the power given to Congress in the Commerce Clause. 


In a 5-4 decision, the Court ruled that gun ownership has no substantial effect on interstate commerce, and the Gun-Free Schools Act was unconstitutional. Justice Rehnquist’s majority opinion argued that Congress had no power to write the Act of crime legislation in the first place. The Court read the Commerce Clause more narrowly, arguing that national power should have boundaries. The Court differed from the Substantial Effects Doctrine, which established that Congress can regulate anything that has a substantial effect on interstate commerce. Rehnquist quoted James Madison’s writing in the Federalist Papers which stated “The powers delegated by the proposed Constitution to the federal government are few and defined.” Rehnquist went on to criticize the Court’s view of the Commerce Clause for the last sixty years and saw it as a method to discriminate against interstate commerce. 

Rehnquist set out three categories for which Congress can use the commerce power. The first is through interstate commerce. The second is to regulate and protect interstate commerce from any threat. The third was to regulate activities with substantial relation to interstate commerce. Rehnquist believed that the Act did not fit into any of these categories as a criminal statute. Rehnquist also disavowed the government’s thinking connecting the act to national productivity. Rehnquist worried that this sentiment could lead to the regulation of day to day school activities. 

Justice Kennedy’s concurrence argued that the Gun-Free Schools Act could upset the balancing act of federalism. Justice Thomas took his concurrence a step further and argued to overturn the Substantial Effects Doctrine established in Wickard v Filburn (1942). 


Justice Souter dissented, arguing that commerce laws should get minimal scrutiny from the courts. In Justice Breyer’s dissenting opinion, he argued that schools are a vital part of our commerce, and guns could harm schools. Breyer argued to maintain the Court’s previous reading of the commerce power in its most recent cases. Breyer offered his own interpretation of the Commerce Clause which differed from Justice Rehnquist’s. The first principle was to regulate commerce among the states. The second principle was if a local activity could have a significant impact on interstate commerce. The third was to find a connection between an activity and interstate commerce which may not have a direct correlation. Breyer thought that this principle gave Congress leeway to create the Gun-Free Schools Act. 

Justice Stevens wrote a dissent arguing that guns have the ability to restrain commerce, because of the possibility of them being used for harm. Stevens also worried that school-age children have handguns at a “distressingly substantial” rate. Because of the advancements of weapons and their usage over time, Stevens argued that eliminating the youth market for guns serves the current national interests. 


The decision in United States v Lopez broke a sixty-year span that included the broad reading of the Commerce Clause. The decision was regarded by some as signaling a shift in its reading. However, in Gonzales v Raich (2005) the Court allowed Congress to criminalize marijuana within state lines. Therefore, the ongoing impact of Lopez is in doubt. 

The decision in Lopez led Congress to pass the Gun-Free School Zones Act of 1996 which was modified only to apply to guns that moved through interstate commerce. The decision is notable for the makeup of the majority justices: Rehnquist, O’Connor, Scalia, Kennedy, and Thomas. These five locked in a majority that decided on the same side of issues, reading the Constitution more narrowly. This majority later struck down parts of the Violence Against Women Act in United States v Morrison (2000), arguing that Congress went beyond the powers they were given in the Commerce Clause with another piece of crime legislation. 

Think Further

  1. Where in the Constitution do you think the Court could have found reasoning for the Gun-Free Schools Act other than the Commerce Clause? 
  2. Why do you think the Court did not follow the Lopez precedent in Gonzales v Raich
  3. Today school shootings are a major problem in America. What constitutional legislation do you think could be passed to help tamp down on the number of school shootings in the United States?


Get updated about new videos!



Learn More

  1. Gillman, Howard. American Constitutionalism, Second Edition. Volume I Structures of Government. [Virtual Source Bookshelf]. 
  2. “United States v. Lopez.” Oyez,
  3. “United States v. Lopez (1995)” Bill of Rights Institute,