Over at The Reload, Jake Fogleman notes that:

The federal government may legally disarm at least some gun owners on or near school property.

That was the unanimous holding of a three-judge Fifth Circuit Court of Appeals panel on Monday. The panel upheld the conviction of a man charged with violating the Federal Gun Free School Zones Act by possessing an AR-15 in a vehicle he was living in 40 feet from a private catholic school. It ruled that the modern buffer zone around schools comported with historical analogues dating back nearly 700 years in England that prohibited possessing firearms in a manner that might “terrify the People.”

“The ‘why and how’ of 18 U.S.C. § 922(q)(2)(A), as applied to Allam, are ‘consistent with the principles that underpin our regulatory tradition,’” Judge Cory T. Wilson wrote in US v. Allam. “Put differently, ‘taken together,’ the historical analogues offered by the Government ‘establish that our tradition of firearm regulation supports the application of [§ 922(q)(2)(A)] to [Allam].’”

I think that this decision is defensible on Second Amendment grounds, under Bruen. There were, indeed, a bunch of time and place restrictions at the time of the founding — including, for example, at polling places. Whether such laws are a good idea is a separate question (because I don’t think they do any good, I’m usually of the view that they are not), but, as a constitutional matter, there may be enough historical analogues to sustain a challenge under the Bill of Rights.

But that isn’t the most important question here. The most important question here is this: by what possible authority can the federal government pass such a law in the first place? Unlike the states, the federal government has only the powers that are granted to it in the Constitution. Which one of those powers allows it to regulate this?

In 1995, in United States v Lopez, the Supreme Court struck down the Gun Free Schools Zone Act of 1990 on the grounds that the federal government did not have the power under the Commerce Clause to micromanage such a obviously intrastate matter. As Justice Rehnquist noted in his majority opinion:

To uphold the Government’s contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.

In response to this, Congress rewrote the law. Or, rather, it copied and pasted the law that had been struck down, but added to it that prosecutors must prove during each case that the gun had moved in interstate commerce. That, apparently, was enough for the lower courts, and, because the Supreme Court has not addressed the matter since, their decisions have been the last word. But it has never been clear to me exactly why such a response was sufficient. The effect of the replacement law is identical, and, as such, the problems that Rehnquist identified in his opinion (and that Thomas identified in his concurrence) still obtain. The problem here was not that Congress hadn’t included some magic words in its statute; the issue was that Congress was claiming powers that the Constitution does not grant to the federal government at all. Thirty years later, and the federal government still doesn’t have them. The law ought to go.