UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NAVEGAR INC

v.

UNITED STATES


98-5491b

D.C. Cir. 2000


*	*	*


O R D E R


Appellants' petition for rehearing en banc and the response  thereto
have been circulated to the full court. The taking of  a vote was
requested. Thereafter, a majority of the judges of  the court in
regular active service did not vote in favor of the  petition. Upon
consideration of the foregoing, it is


ORDERED by the Court that appellants' petition is de- nied.


Per curiam


For the Court:


Mark J. Langer, Clerk




__________

n * Circuit Judge Sentelle would grant the petition for rehearing  en
banc. His opinion is attached.


Sentelle, Circuit Judge, dissenting from the denial of  petition for
rehearing en banc: By denying en banc review of  the panel opinion,
Navegar, Inc. v. United States, 192 F.3d  1050 (D.C. Cir. 1999), this
court perpetuates an approach to  Commerce Clause jurisprudence
hopelessly out of date under  contemporary Supreme Court
interpretations of the Constitu- tion.


In United States v. Lopez, 514 U.S. 549 (1995), the Su- preme Court
carefully delineated limitations on the authority  of the federal
government to act under that enumerated  power. In his opinion for the
five-Justice majority, Chief  Justice Rehnquist identified "three
broad categories of activi- ty" within which the federal government
may legitimately  regulate under the commerce power. 514 U.S. at 558.
These  three categories are: (1) "the use of the channels of
interstate  commerce"; (2) the regulation and protection of "the
instru- mentalities of interstate commerce, or persons or things in 
interstate commerce, even though the threat may come only  from
intrastate activities"; and (3) "activities having a sub- stantial
relation to interstate commerce." Id. at 558-59 (cita- tions omitted).
Because the claimed justification for the  statute before it, the
Gun-Free School Zones Act, sheltered  under the umbrella of the third
area of activity, the Chief  Justice wrote a further explication of
"those activities that  substantially affect interstate commerce." Id.
at 559 (citing  Maryland v. Wirtz, 392 U.S. 183, 196 n.27 (1968)).
Briefly,  under Lopez, to be the subject of constitutionally valid
regula- tion under the Commerce Clause, an activity not falling 
within categories 1 or 2 must substantially affect interstate 
commerce, not merely affect it. Id. at 559. To determine  whether an
activity substantially affects commerce, we under- take another


--the regulation controls a commercial activity, or an  activity
necessary to the regulation of some commercial  activity;


--the statute includes a jurisdictional nexus requirement  to ensure
that each regulated instance of the activity  affects interstate
commerce; and


--the rationale offered to support the constitutionality of  the
statute (i.e., statutory findings, legislative history, 


arguments of counsel, or a reviewing court's own attribu- tion of
purposes to the statute being challenged) has a  logical stopping
point so that the rationale is not so broad  as to regulate on a
similar basis all human endeavors,  especially those traditionally
regulated by the states.


National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041,  1064 (D.C.
Cir. 1997) (Sentelle, J., dissenting) (analyzing  Lopez, 514 U.S. at
559-65, and citing United States v. Wall,  92 F.3d 1444, 1455-56 (6th
Cir. 1996) (Boggs, J., dissenting in  part)).


In Lopez, the Court considered the constitutionality of a  statute in
which Congress had made it a federal offense "for  any individual
knowingly to possess a firearm at a place that  the individual knows,
or has reasonable cause to believe, is a  school zone." 18 U.S.C. s
922(q)(1)(A) (Supp. V 1993). The  only justification the United States
could offer among the  enumerated powers for the constitutionality of
the statute  was the Commerce Clause. Unsurprisingly, the Court held 
that the Gun-Free School Zones Act fit none of those three 
subcategories. First, it did not regulate or control a commer- cial
activity or an activity necessary to the regulation of a  commercial
activity. The Chief Justice acknowledged that  Wickard v. Filburn, 317
U.S. 111 (1942), relied on by the  panel in Navegar, 192 F.3d at
1056-57, had upheld federal  regulation of home consumption of wheat,
where it affected  interstate commerce, but described that decision as
"perhaps  the most far reaching example of Commerce Clause authority 
over intrastate activity." Lopez, 514 U.S. at 560. The Lopez  Court
further recognized that at least the statute before the  Court in
Wickard involved the regulation of the wheat mar- ket--interstate
commerce. Id. at 560-61. In the view of the  Congress, and
subsequently the Court of that time, the  regulation of consumable
wheat, wherever grown, was neces- sary to control the volume of wheat
on that interstate market.  The Gun-Free School Zones Act neither
controlled nor pur- ported to affect any market at all.


Second, the statute included no jurisdictional nexus. Un- der this
element of examination, the Chief Justice compared  United States v.
Bass, 404 U.S. 336 (1971), in which the Court 


had upheld the statute making it a crime for a felon "to  receive,
possess, or transport in commerce or affecting com- merce ... any
firearm." Lopez, 514 U.S. at 561-62 (quoting  Bass, 404 U.S. at 337
(brackets omitted)). The Chief Justice  noted that in upholding that
statute the Court had expressly  reserved the question of whether
Congress could constitution- ally regulate the "mere possession" of
firearms without the  jurisdictional nexus. Id. at 562 (quoting Bass,
404 U.S. at 339  n.4). Even in Bass, where the statute had withstood
constitu- tional scrutiny, the Court set aside the conviction before
it  because the prosecution, while having proved that the defen- dant
possessed a firearm, "failed 'to show the requisite nexus  with
interstate commerce.' " Id. (quoting Bass, 404 U.S. at  347). The
statute the Court struck down in Lopez had no  such jurisdictional
requirement. Congress had invaded the  state-owned territory of mere
possession with no connection  to interstate commerce.


Finally, the Lopez Court considered the implications of the 
government's argument that guns around schoolhouses might  result in
violent crime, and violent crime could be expected to  affect the
functioning of the national economy either through  the mechanism of
insurance or by reducing the willingness of  individuals to travel to
other parts of the country which they  might consider unsafe. The
Court highlighted the govern- ment's admission that, under this "costs
of crime" reasoning,  the federal government could regulate "not only
all violent  crime, but all activities that might lead to violent
crime,  regardless of how tenuously they relate to interstate com-
merce." Id. at 564. Indeed, the federal government "could  regulate
any activity that [Congress] found was related to the  economic
productivity of individual citizens: family law (in- cluding marriage,
divorce, and child custody), for example."  Id. In other words, under
the government's theory of consti- tutionality for the Gun-Free School
Zones Act, the words of  the Commerce Clause were limitless, and
Congress had the  power to regulate anything at all. There was no
stopping  point. The statute was unconstitutional.


As appellants argue in petitioning for en banc review, the  Navegar
panel's decision in the present case is inconsistent 


with the Supreme Court's decision in Lopez. The Navegar  panel had
before it an appeal from a judgment denying a  declaratory judgment
declaring unconstitutional section  110102 of the Violent Crime
Control and Law Enforcement  Act of 1994, Pub. L. No. 103-322, 108
Stat. 1796, 1996-98  (1994) (codified at 18 U.S.C. ss 921(a)(30),
922(v) (1994)).  The disputed section makes it unlawful to
"manufacture,  transfer, or possess a semiautomatic assault weapon."
18  U.S.C. s 922(v). In upholding that judgment and the consti-
tutionality of the statute, the panel relied first on the 1942 
jurisprudence of Wickard v. Filburn, and then on our deci- sion in
Terry v. Reno, 101 F.3d 1412, 1417 (D.C. Cir. 1996),  which upheld the
constitutionality of a statute protecting an  area of commerce,
specifically health clinics. See Navegar,  192 F.3d at 1056-57. Reno
is not on point, but even if it  were, the Supreme Court and not our
precedent controls.  Insofar as the Supreme Court's decision in
Wickard retains  any vitality after Lopez, it cannot control the
ruling on the  disputed statute. Despite the panel's pains to align
this  statute with those in Reno and Wickard, ultimately the  statute
is indistinguishable from that before the Court in  Lopez. The panel
laboriously attempts to fit this gun act into  category 3 of the
permissible areas of regulation under Lopez.  To do so, it incorrectly
paraphrases the Lopez holding. The  Lopez Court did not, as the panel
declares, "conclude[ ] that  Congress had no rational basis for
finding that gun possession  in a school zone had a substantial effect
on interstate com- merce and declare[ ] the statute unconstitutional."
Navegar,  192 F.3d at 1055 (citing Lopez, 514 U.S. at 567). Rather,
the  Court made an independent determination of the effect of the 
statute on interstate commerce, "ultimately a judicial rather  than a
legislative question," Lopez, 514 U.S. at 557 n.2. The  Court
concluded that gun possession did not have a substan- tial effect and
declared the statute unconstitutional. As one  of our sister circuits
recognized, Lopez "elevated to a majority  opinion statements from
previous concurring opinions that  'simply because Congress may
conclude that a particular  activity substantially affects interstate


Inst. and State Univ., 169 F.3d 820, 855 (4th Cir. 1999) (en  banc)
(quoting Lopez, 514 U.S. at 557 n.2) (brackets and other  citations
omitted), cert. granted sub nom. Brzonkala v. Mor- rison, 120 S. Ct.
11 (1999).


This statute, like the parallel firearms act stricken as 
unconstitutional in Lopez, regulates, under purported authori- ty
drawn from Congress's power to regulate interstate com- merce,
activity (or inactivity) that is neither commerce nor  interstate. The
Supreme Court held the Gun-Free School  Zones Act unconstitutional in
Lopez. Our panel decision  upholding this statute as constitutional
cannot be reconciled  with Lopez, and we should review it en banc.