What is the "jurisdictional element" in Lopez?
mmoskovitz at ggu.edu
Mon Sep 15 15:48:52 PDT 2008
As I just told my class, "jurisdictional element" is a misleading term. It
has nothing to do with subject matter jurisdiction or personal
jurisdiction. It means nothing more than that Congress has regulated an
"instrumentality" of interstate commerce.
A perfect example arose in *Champion v. Ames*, where the upheld a statute
barring the interstate transportation of lottery tickets.
The guns-near-schools statute examined in *Lopez* contained no
"jurisdictional" element, as it applied to all guns, not just those
transported in IC. Post-*Lopez*, Congress added a "jurisdictional element"
- pretty much guaranteeing its constitutionality, but narrowing somewhat
the scope of the former coverage, as now every prosecutor will have to prove
that element of the crime: that the gun was transported in IC. Shouldn't be
much of a problem - unless, perhaps, the gun was made by Smith & Wesson in a
state where Smith & Wesson makes the guns.
On Mon, Sep 15, 2008 at 9:23 AM, <RJLipkin at aol.com> wrote:
> Everytime I teach Lopez I struggle to explain the "jurisdictional
> element." Is it (a) a declaration that the regulated intrastate act is
> passed pursuant to the Commerce Clause, (b) an element of the crime, (c) actual
> proof that possessing a gun in a school zone does in fact have a substantial
> effect on interstate commerce, (d) all of the above, or (e) something
> entirely different.
> If it is (b) or (c) presumably the jurisdictional element will
> attempt to tie possession of a gun to interstate commerce by saying
> something about persons and/or guns. But if that's the case why wouldn't
> persons or guns fall into the "instrumentalities" category thus making it
> unnecessary to appeal to the substantial effects test at all.
> I know. I need a tutorial on* Lopez*.
> I've asked this question before and I'm sure that many list
> members--perhaps all--
> know the answers to these elementary questions, thus, off-list replies are
> preferred. Thank you.
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
> Ratio Juris*, Contributor: http://ratiojuris.blogspot.com/*
> Essentially Contested America, Editor-In-Chief
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