The title? You won’t believe it. It’s called “Remember the Tenth Amendment?”

I’ve copied the text of the editorial after the break. Maybe the paper’s current ed board should have a look.

IT IS SURELY a good idea to prohibit the possession of guns on or near school grounds. Most states do. But when Congress gets around to addressing crime as a national issue, it tends to ignore whether or not federal intervention is warranted or even constitutional. In 1990, Congress criminalized possession of a firearm on or within 1,000 feet of a school. Texas already had such a law. When a San Antonio teenager was caught with a gun on school premises, he was prosecuted under the federal, not the state, law, a choice that has led to unexpected litigation and perhaps a Supreme Court ruling that will have broad ramifications.

Alfonso Lopez won a reversal of his conviction in federal court when an appellate court ruled that the federal statute is unconstitutional. Congress has the power to regulate interstate commerce, said the court, but the 10th Amendment to the Constitution gives the states those powers not specifically delegated to the federal government. The commerce power has traditionally been broadly interpreted to increase federal power.

In almost every case invoking this power, however, Congress has specifically cited the commerce clause. This was not done in the guns and school law now being tested. No law citing the commerce clause to establish authority has ever been struck down, but the appellate court here was unwilling to say that a congressional finding would save the statute. And on Election Day, when this case was argued before the Supreme Court, some of the justices appeared to share the lower court’s view.

If the Supreme Court strikes down this statute, an important precedent limiting congressional authority would be established. Congress would probably be able to continue to cite the commerce clause in regulating the corner grocery store in terms of the products it sells, the workplace health and safety conditions and the wages and hours of the clerks. But it probably wouldn’t be able to regulate traffic in the parking lot, order the candy placed behind the oatmeal or ban the carrying of a spray paint can within a block of such a store, no matter how worthy those objectives may be. The resulting reliance on state and local governments to get the job done would undoubtedly square with the country’s current mood.

This entry was posted on Friday, August 26th, 2005 at 4:45 pm by Radley Balko and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.