01-4122, 02-1190 U.S. v. Mitchell

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“Mitchell and Peete note that the Supreme Court subsequently applied Lopez to narrow a criminal statute and invalidate another law on Commerce Clause grounds. See Jones v. United States, 529 U.S. 848 (2000); United States v. Morrison, 529 U.S. 598 (2000). In Jones, the Court considered 18 U.S.C. sec. 844(i), which makes it a federal crime to damage or destroy ‘by means of fire or an explosive, any . . . property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.’ Jones, 529 U.S. at 850. Jones was convicted of violating section 844(i) by setting fire to a house in Indiana. The government argued that the Indiana house was secured by a mortgage from an Oklahoma lender, insured by a Wisconsin insurer, and received gas from a supplier outside of Indiana. The Court reasoned that a private residence is not ‘used’ in the activities of receiving natural gas, a mortgage, or an insurance policy in the common understanding of the word ‘use.’ Nor was the home used in any trade or business; rather it was used for the everyday living of the occupants. To accept the government’s argument would mean that almost any home in the country was covered by the law, and the word ‘used’ would be rendered meaningless.

“In Morrison, the Court considered whether the Commerce Clause provided Congress with the authority to enact the Violence Against Women Act (‘VAWA’). The VAWA provided, in part, a federal civil remedy for the victims of gender-motivated violence. Morrison, 529 U.S. at 601- 02. Citing Lopez, the Court struck down this provision because gender-motivated violence was not an activity that substantially affects interstate commerce. 529 U.S. at 613 (‘Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.’). The Court noted that, like the statute at issue in Lopez, the VAWA contained no ‘jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce.’ 529 U.S. at 613. Moreover, by its terms the law had nothing to do with interstate commerce, and neither the statute nor its legislative history adequately supported findings regarding the effects on interstate commerce caused by violence against women. 529 U.S. at 610-12. Therefore, Congress exceeded its powers under the Commerce Clause in enacting the civil remedy provision of the VAWA.

“Mitchell and Peete contend that, under the reasoning of Jones and Morrison, section 922(g) cannot stand. Once again, Mitchell and Peete are not the first defendants to raise this argument, and we have rejected it before. See United States v. Wesela, 223 F.3d 656 (7th Cir. 2000), cert. denied, 531 U.S. 1174 (2001) (holding that nothing in Jones or Morrison casts doubt on the validity of section 922(g), which specifically requires a link to interstate commerce). As we have previously stated, we believe the Supreme Court resolved the issue of the constitutionality of the felon-in-possession statute in United States v. Bass, 404 U.S. 336 (1971). See Lewis, 100 F.3d at 52. Until the Supreme Court overrules Bass, we will continue to adhere to our view that section 922(g) was a valid exercise of Congressional power under the Commerce Clause. We therefore affirm the judgments against Mitchell and Peete for their violations of section 922(g).”

Affirmed.

Appeals from the United States District Court for the Northern District of Indiana, Lee, J., and the Eastern District of Wisconsin, Randa, J., Rovner, J.