<p>Options for Protection of 2nd Amendment Rights by Congressional Legislation</p><p>The Commerce Clause</p><p>Supreme Court case law authorizes very broad congressional power over intrastate activities that potentially affect interstate commerce, or which Congress deems “necessary and proper” to the regulation of interstate commerce. For example, the 1942 case of Wickard v. Filburn, 317 US. 111 (1942), involved a farmer who challenged New Deal federal controls over the production of wheat. He would sell some of the wheat he grew, feed some to his livestock, use some to make flour for home consumption, and save the rest for the next season’s planting. The Supreme Court held that even the production for personal use was subject to federal controls under the Commerce Clause, because if the farmer did not grow the wheat for his own use, he would have to buy it on the open market. Therefore, the homegrown wheat competed with commercially grown wheat and was subject to federal regulation.</p><p>More recently, in Gonzales v. Raich, 545 U.S. 1 (2005), the Supreme Court considered whether Congress could outlaw marijuana grown by private individuals in California for their personal medical use in California, as allowed by California law. In a 6 to 3 decision, the Supreme Court held that the same principles applied: marijuana grown for non-commercial personal use would affect the (illegal) commercial interstate market, and was therefore subject to federal control. The Raich decision forced the U.S. Court of Appeals for the Ninth Circuit to reverse a previous decision which had held that the federal prohibition on newly-manufactured machine guns did not apply to a machine gun that was made solely for the builder’s personal use. States v. Stewart, 451 F.3d 1071 (9th Cir. 2006) (challenge to 18 U.S.C. § 922(o)). </p><p>There has been only one successful Supreme Court challenge to federal regulation of firearms under the Commerce Clause. That case was United States v. Lopez, 514 U.S. 549 (1995), in which the Supreme Court held that the original version of the Gun-Free School Zones Act was unconstitutional because it attempted to regulate the mere possession of a firearm, entirely within one state, and that Congress had made no effort to connect the regulation to its power under the Commerce Clause. Congress later amended the statute to apply only if the firearm at issue “has moved in or … otherwise affects interstate or foreign commerce.” See 18 U.S.C. § 922(q)(2)(A). The amended statute has been upheld by most courts that have considered the issue. See United States v. Dorsey, 418 F.3d 1038 (9th Cir. 2005); United States v. Danks, 221 F.3d 1037 (8th Cir. 1999) (per curiam); but see United States v. Hoffmeyer, 2001 WL 34372871 (D. Wis. 2001) (unreported) (magistrate judge recommending dismissal of indictment).</p><p>1 Section 5 of 14th Amendment</p><p>Interpretations of statutes by the Supreme Court can be changed by Congress. However, the interpretation of substantive constitutional rights cannot be changed by Congress, even under the implementation clause (section 5) of the 14th Amendment. Section 5 seemed to be given a liberal (broad) interpretation in Katzenbach v. Morgan, 384 U.S. 641 (1966) (voting rights). That changed 31 years later.</p><p>In Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court ruled that Congress' enactment of the Religious Freedom Restoration Act exceeded its power under section 5 of the Fourteenth Amendment and found the Act unconstitutional. </p><p>The basis for dispute arose when the Catholic Archbishop of San Antonio, Patrick Flores, applied for a building permit to enlarge his 1923 mission-style St. Peter's Church in Boerne, Texas. The building was located in a historic district and considered a contributing property. Local zoning authorities denied the permit, citing an ordinance governing additions and new construction in a historic district. The Archbishop brought suit, challenging the ruling under the Religious Freedom Restoration Act of 1993 (RFRA, pronounced "rifra"). Flores argued that his congregation had outgrown the existing structure, rendering the ruling a substantial burden on the free exercise of religion without a compelling state interest.</p><p>RFRA had been crafted as a direct response to the Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872 (1990), wherein the Court had upheld — against a First Amendment challenge — an Oregon law criminalizing peyote use, which was used in Native American religious rituals. The State of Oregon won on the basis that the drug laws were "non-discriminatory laws of general applicability." Religious groups became concerned that this case would be cited as precedent for further regulation of common religious practices, and lobbied Congress for legislative protection. RFRA provided a strict scrutiny standard, requiring narrowly tailored regulation serving a compelling government interest in any case substantially burdening the free exercise of religion, regardless of the intent and general applicability of the law.</p><p>The City of Boerne was successful at the United States District Court for the Western District of Texas; the judge struck down the RFRA as unconstitutional. Flores appealed to the United States Court of Appeals for the Fifth Circuit, which found the RFRA constitutional and reversed the District Court's decision. Boerne filed a certiorari petition to the Supreme Court. The National Trust for Historic Preservation, among other preservation organizations, filed briefs in support of Boerne.</p><p>The Supreme Court, in an opinion by Kennedy, struck down RFRA as an unconstitutional use of Congress' enforcement powers. The Court held that it holds the sole power to define the substantive rights guaranteed by the Fourteenth Amendment — a definition to which Congress may not add and from which it may not subtract. Congress could not constitutionally enact RFRA because the law was not designed to have </p><p>2 "congruence and proportionality" with the substantive rights that the Court had defined. Although Congress could enact "remedial" or "prophylactic" legislation to guarantee rights not exactly congruent with those defined by the Court, it could only do so in order to more effectively prevent, deter, or correct violations of those rights actually guaranteed by the Court. RFRA was seen as disproportionate in its effects compared to its objective. O'Connor, Breyer, and Souter dissented. Stevens and Scalia filed a concurring opinion.</p><p>Note: A law review article on Boerne. Rebecca Goldberg, The “How” of Enforcing the Fourteenth Amendment: Why the Rehnquist Court’s Treatment of Implementation, not Interpretation, is the True Post-Boerne Failing, 47 Washburn L. J. 47 (2007). http://www.washburnlaw.edu/wlj/47-1/articles/goldberg-rebecca.pdf</p><p>Congress’s use of the implementation clause of the 14th Amendment to protect Second Amendment rights will not encounter a Boerne obstacle because the Supreme Court has recognized the substantive right to keep and bear arms under the Second Amendment and the Fourteenth Amendment. District of Columbia v. Heller, 128 S.Ct. 2783 (2008); McDonald v. Chicago, 130 S.Ct. 3020 (2010).</p><p>Conclusion</p><p>Congress could easily enact legislation protecting Second Amendment rights under the commerce clause or under section 5 of the 14th Amendment. An example is 18 U.S. Code § 926A (interstate transportation of firearms). </p><p>[NOTE: See next page.]</p><p>3 Possible Congressional Implementation under Section Five of the Fourteenth Amendment</p><p>Wolf v. Ohio, 338 U.S. 25, 33 (1949): We hold, therefore, that, in a prosecution in a State court for a State crime, the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure. And though we have interpreted the Fourth Amendment to forbid the admission of such evidence, a different question would be presented if Congress, under its legislative powers, were to pass a statute purporting to negate the Weeks doctrine. We would then be faced with the problem of the respect to be accorded the legislative judgment on an issue as to which, in default of that judgment, we have been forced to depend upon our own. Problems of a converse character, also not before us, would be presented should Congress, under § 5 of the Fourteenth Amendment, undertake to enforce the rights there guaranteed by attempting to make the Weeks doctrine binding upon the States.</p><p>City of Boerne v. Flores, 521 U.S. 507, 519-20 (1997): Congress' power under § 5, however, extends only to "enforc[ing]" the provisions of the Fourteenth Amendment. The Court has described this power as "remedial," South Carolina v. Katzenbach, supra, at 326. The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power "to enforce," not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the "provisions of [the Fourteenth Amendment]."</p><p>While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.</p><p>4</p>