The Court Is Not a Right-Wing Nut

Something about the timing of United States v. Lopez-"just a week after a bomb exploded in Oklahoma, killing more than 100 people," as reporter Nina Totenberg put it on National Public Radio-struck a lot of us (at least at first) as a bit much.

Here was the Supreme Court of the United States sending paroxysms of joy through the states-righters and the gun-lovers by holding (on April 26) that Congress had unconstitutionally exceeded its power to regulate interstate commerce, and had thus usurped the powers of the states, when it banned possession of guns within 1,000 feet of a school.

Here, in other words, was a 5-4 gift from the Court’s conservative bloc to the folks who listen to Justice Clarence Thomas’ buddy. Rush Limbaugh, who gives aid and comfort to fellow radio talk-showman G. Gordon Liddy, who, in turn, broadcasts pointers on how to kill (in self-defense, of course) federal law enforcement officials, like the ones who were targeted by the bombers and others on the right-wing lunatic fringe.

Perhaps these atmospherics-plus the fact that this was the first Court decision since 1935 striking down an act of Congress as exceeding its commerce power-were part of what inspired Yale Law Professor Bruce Ackerman to tell Totenberg that "this could well be one of the opening cannonades in the coming constitutional revolution." And Hofstra Law Professor Leon Friedman to assert that the Court’s holding that Congress may use its commerce power only to regulate activities affecting commerce "is an astonishing requirement to lay on Congress." And a giddy conservative, Professor Douglas Kmiec of Notre Dame Law School, to proclaim Lopez "the most important case in a half-century."

Totenberg herself asserted that Chief Justice William Rehnquist’s majority opinion might threaten "the law being used to prosecute Oklahoma bombing suspect Timothy McVeigh" (don’t bet on it), "sent shock waves through the body politic and the legal community," and "thundered down the hallways of the nation’s top law schools … like a bowling ball run amok."

But at least one liberal law professor was not bowled over: Harvard Law School’s Laurence Tribe suggests persuasively that Lopez, while obviously very important, has been "massively overblown"; that it does not threaten many (if any) major federal statutes; and that-although Tribe does not yet have a settled view on the merits-Rehnquist’s holding may just be right.

The initial, visceral reactions of many observers (including Totenberg, The Washington Post, and me) somehow associating the Court’s decision with the Oklahoma bombing are understandable but an obstacle to clear thinking. The timing of the decision vis-à-vis the bombing was, of course, pure coincidence. While a good PR agent would have advised the Court to wait awhile, we should not wish for the Court to start consulting PR agents. And any suggestion that the Court is giving aid and comfort to violent right-wing extremists is as unfair as the suggestions 25 years ago that George McGovern was giving aid and comfort to the Weather Underground.

It should also be plain that the statute struck down by the Court in Lopez, the-Gun-Free School Zones Act of 1990, will be no great loss. It was neither a good law nor a necessary one.

Rather, it was one of many statutes in recent years in which vote-grubbing members of Congress-led by some of the same conservative Republicans who have inconsistently clamored for a drastic cutback in federal power-have sought to look tough on crime by invading the traditional terrain of the states, criminalizing activities that federal law-enforcers have no special competence to police, and clogging federal courts with routine criminal cases.

The states are perfectly capable of banning possession of guns in or near schools. More than 40 of them have done so. And it….