United States v. Alderman

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30186
Plaintiff-Appellee, D.C. No.
v.  CR-06-00117-001-
CEDRICK BERNARD ALDERMAN, JCC
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted
March 12, 2008—Seattle, Washington
Filed May 12, 2009
Before: Betty B. Fletcher, M. Margaret McKeown,
Richard A. Paez, Circuit Judges
Opinion by Judge McKeown;
Dissent by Judge Paez
5621
UNITED STATES v. ALDERMAN 5623
COUNSEL
Helen J. Brunner, Assistant United States Attorney, Seattle,
Washington for the plaintiff-appellee.
Brian Tsuchida, Assistant Federal Public Defender, Seattle
Washington (on the brief) and Vicki Lai, Assistant Federal
Public Defender, Seattle Washington (on the brief and oral
argument) for the defendant-appellant.
OPINION
McKEOWN, Circuit Judge:
This case of first impression in the Ninth Circuit requires
us to consider whether Congress has the authority under the
5624 UNITED STATES v. ALDERMAN
Commerce Clause of the United States Constitution, art. I,
§ 8, cl. 3, to criminalize the possession by a felon of body
armor that has been “sold or offered for sale in interstate com-
merce.” 18 U.S.C. §§ 931 and 921(a)(35). Put another way,
the issue is whether the sale of body armor in interstate com-
merce creates a sufficient nexus between possession of the
body armor and commerce to allow for federal regulation
under Congress’s Commerce Clause authority.
In recent years, the Supreme Court has significantly altered
the landscape of congressional power under the Commerce
Clause. See, e.g., United States v. Morrison, 529 U.S. 598(2000) (striking down statute that provided a federal civil
remedy for victims of gender-motivated violence); United
States v. Lopez, 514 U.S. 549 (1995) (striking down federal
statute regulating possession of guns in school zones). None-
theless, the resolution to this case is found in Supreme Court
and Ninth Circuit precedent that addresses a jurisdictional ele-
ment nearly identical to the one that applies to § 931. See
Scarborough v. United States, 431 U.S. 563, 575, 577 (1977)
(concluding that, in the context of Title VII of the Omnibus
Crime Control Act, proof that a firearm traveled in interstate
commerce satisfies the required nexus between possession of
the firearm and commerce); United States v. Cortes, 299 F.3d
1030, 1037 n.2 (9th Cir. 2002) (upholding carjacking statute
and stating that “the vitality of Scarbourough engenders sig-
nificant debate,” but “[u]ntil the Supreme Court tells us other-
wise . . . we follow Scarborough unwaveringly.”). We
conclude that we are bound by this precedent — absent the
Supreme Court or our en banc court telling us otherwise —
and that the felon-in-possession of body armor statute passes
muster.
Background
Cedrick Alderman was arrested in 2005 during a sting
operation involving an attempted controlled purchase of
cocaine. Officers were aware that Alderman had been previ-
UNITED STATES v. ALDERMAN 5625
ously convicted of felony robbery.1 [see SER 7-9]. The arrest-
ing officer discovered that Alderman was wearing a bullet-
proof vest. [SER 36]. Alderman was booked for possession of
the vest and for violating the conditions of his supervision.
[See Dkt. 33].
Because Washington state law does not criminalize felon
possession of body armor, the matter was referred to the fed-
eral authorities. Alderman was indicted under 18 U.S.C.
§ 931(a), which makes it unlawful for a person convicted of
a felony involving a “crime of violence” to possess body
armor. See James Guelff and Chris McCurley Body Armor
Act of 2002, § 11009(e)(2)(A), 18 U.S.C. § 931 (criminaliz-
ing the possession of body armor by felons as of Nov. 2,
2002).
Alderman filed a motion to suppress certain evidence.2 He
also sought dismissal of the indictment on various grounds,
including that the statute was unconstitutional because its
enactment exceeded Congress’s authority under the Com-
merce Clause. [See ER 60-62]. The district court denied all of
Alderman’s motions.
Alderman entered a conditional guilty plea. [ER 17-23].
Under the plea agreement, Alderman preserved for appeal the
disputed constitutionality of § 931. [See ER 18].3 As part of
1
Alderman had been convicted in Washington state court of robbery in
the second degree and sentenced to fourteen months in prison. In addition
to that charge, Alderman had been convicted of several drug charges,
including possession with intent to deliver cocaine and possession of
cocaine.
2
Although Alderman’s Notice of Appeal includes the district court’s
denial of his motion to suppress [see ER 15], Alderman did not raise the
issue in his briefs. We agree with the Government that Alderman waived
his appeal of the motion to suppress. See Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999). [See also RED at 4].
3
Alderman’s Notice of Appeal states that he appeals “from the denial
of [the] Motion to Suppress Evidence on June 14, 2006, and from the
5626 UNITED STATES v. ALDERMAN
the factual basis for the plea, the plea agreement included
Alderman’s admission that the vest had crossed state lines.
Specifically, the vest was sold by the manufacturer in Califor-
nia to a distributor in Washington state. The distributor then
sold the vest to the Washington State Department of Correc-
tions. Nothing in the record reveals how the vest left the
Department of Corrections, but it is undisputed that the vest
subsequently came into Alderman’s possession. [Dkt. 33].
The stipulation and factual recitation were designed to ensure
that the jurisdictional element of the statute was met. See 18
U.S.C. § 921(a)(35) (limiting the applicability of § 931 to
vests that have been “sold or offered for sale, in interstate or
foreign commerce”).
Analysis
I. THE STATUTE
“We review a district court’s denial of a motion to dismiss
an indictment on constitutional grounds de novo.” United
States v. Latu, 479 F.3d 1153, 1155 (9th Cir. 2007). Under 18
U.S.C. § 931, it is a crime for a person who has been con-
victed of a violent felony to “purchase, own, or possess body
armor.” Unlike the statutes at issue in Lopez and Morrison,
§ 931 is limited by an express jurisdictional condition — the
jurisdictional hook limits the reach of § 931 to “body armor”
that has been “sold or offered for sale, in interstate or foreign
commerce . . . .” 18 U.S.C. § 921(a)(35).
[1] Congress enacted § 931 in response to a spate of violent
clashes involving heavily armored assailants and compara-
tively unprotected police officers. The Congressional findings
cite as examples:
judgment and sentence entered on May 18, 2007.” [ER 15]. The Notice
of Appeal does not specifically mention Alderman’s motion to dismiss.
Neither party referenced this oversight; because Alderman’s plea agree-
ment specifically reserves his appeal right, we construe Alderman’s Notice
of Appeal as encompassing the denial of the motion to dismiss.
UNITED STATES v. ALDERMAN 5627
the murder of San Francisco Police Officer James
Guelff by an assailant wearing 2 layers of body
armor, a 1997 bank shoot out in north Hollywood,
California, between police and 2 heavily armed sus-
pects outfitted in body armor, and the 1997 murder
of Captain Chris McCurley of the Etowah County,
Alabama Drug Task Force by a drug dealer shielded
by protective body armor.
H.R. Rep. 107-193, pt. 1, at 2.
[2] Confronted with the reality that “nationally, police offi-
cers and ordinary citizens are facing increased danger as crim-
inals use more deadly weaponry, body armor, and other
sophisticated assault gear,” Congress concluded that a “seri-
ous threat to community safety [is] posed by criminals who
wear body armor during the commission of a violent crime.”
Id. Congress further found that “crime at the local level is
exacerbated by the interstate movement of body armor and
other assault gear” and “existing Federal controls over [inter-
state] traffic [in body armor] do not adequately enable the
States to control this traffic within their own borders.” Id. In
other words, as with guns and domestic strife, Congress deter-
mined that felons and body armor “are a potentially deadly
combination nationwide.” U.S. v. Hayes, — S.Ct. —, 2009
WL 436680, *7 (2009). To address this threat, Congress
elected to forbid violent felons from possessing body armor
that had been sold through interstate channels.
Alderman argues that Congress exceeded its authority
under the Commerce Clause when it enacted this legislation.
We disagree. The Supreme Court has cautioned us that “[d]ue
respect for the decisions of a coordinate branch of Govern-
ment demands that we invalidate a congressional enactment
only upon a plain showing that Congress has exceeded its
constitutional bounds.” Morrison, 529 U.S. at 607. No such
showing has been made here. We opt to follow the Supreme
Court’s lead in Scarborough.
5628 UNITED STATES v. ALDERMAN
II. UNITED STATES v. SCARBOROUGH AND RELATED CIRCUIT
CASES
[3] We are guided in our analysis first and foremost by the
Supreme Court’s decision in Scarborough. In Scarborough,
the Court addressed a jurisdictional element that is nearly
identical to the one that limits § 931. Scarborough, 431 U.S.
at 564 (quoting 18 U.S.C. §§ 1201-03). As we outlined in
Cortes, the Supreme Court in Scarborough “considered
whether proof that an illegally possessed firearm previously
traveled in interstate commerce was sufficient to satisfy the
nexus between possession of the firearm and commerce.” 299
F.3d at 1036-37. “The Court answered affirmatively; if the
government proved that Scarborough’s firearms had at some
time traveled in interstate commerce, a sufficiently close
nexus between possession of the firearms and commerce was
established.” Id. As the Supreme Court explained it; “[T]here
is no question that Congress intended no more than a minimal
nexus requirement.” Scarborough, 431 U.S. at 577. Thus,
although the Court did not address the statute from a constitu-
tional perspective, it implicitly assumed the constitutionality
of the “in commerce” requirement. It is difficult to distinguish
our case from Scarborough.
[4] In considering the continuing vitality of Scarborough,
we have consistently upheld similar felon-in-possession stat-
utes. See , e.g., United States v. Jones, 231 F.3d 508, 514 (9th
Cir. 2000) (upholding statute criminalizing felon’s possession
of a firearm because the jurisdictional hook in the statute “in-
sures on a case-by-case basis that the defendant’s actions
implicate interstate commerce to a constitutionally adequate
degree.”) (quoting United States v. Polanco, 93 F.3d 555(9th Cir. 1996)); United States v. Hanna, 55 F.3d 1456, 1462
(9th Cir. 1995) (quoting Scarborough, 431 U.S. at 575, and
stating that Scarborough requires “only ‘the minimal nexus
that the firearm have been, at some time, in interstate com-
merce.’ ”); see also Cortes, 299 F.3d at 1037 (upholding fed-
eral carjacking statute because, taken together, the context of
UNITED STATES v. ALDERMAN 5629
the statute, congressional findings, and the requirement that
the car affected have been transported in interstate commerce
“ensure that carjackings covered by 28 U.S.C. § 2119 sub-
stantially affect interstate commerce.”).
We are not alone in adhering to Scarborough. In United
States v. Patton, the Tenth Circuit recently considered § 931
in light of Scarborough and the Supreme Court’s post-Lopez
Commerce Clause jurisprudence. 451 F.3d 615 (10th Cir.
2006). After conducting an exhaustive review of Supreme
Court and circuit precedent, the Tenth Circuit pointed out that
“[o]ther circuits have similarly continued to follow Scarbor-
ough” and concluded that “[a]lthough the body armor statute
does not fit within any of the Lopez categories, it is supported
by the pre-Lopez precedent of Scarborough v. United States.”
Id. at 634. The court emphasized that in Scarborough, the
Supreme Court “assumed that Congress could constitutionally
regulate the possession of firearms solely because they had
previously moved across state lines.” Id. Thus, “[b]ecause Mr.
Patton’s bulletproof vest moved across state lines at some
point in its existence, Congress may regulate it under Scar-
borough . . . ” Id. Two district courts that have addressed the
body armor statute are in accord. See United States v. Marler,
402 F. Supp. 2d 852 (N.D. Ohio 2005); United States v.
Kitsch, 307 F. Supp. 2d 657 (E.D. Pa. 2004).
[5] Other circuits have similarly endorsed the continuing
vitality of Scarborough, albeit sometimes with skepticism, in
decisions dealing with a variety of felon firearm statutes. See
, e.g., United States v. Lemons, 302 F.3d 769, 772-73 (7th Cir.
2002) (noting that because “Scarborough suggested that prior
movement of the firearm in interstate commerce would suf-
fice to meet [the jurisdictional element], we have, in the wake
of Lopez, repeatedly rejected Commerce Clause challenges to
application of the felon-in-possession statute”; as to any con-
flict with Lopez, “it is for the Supreme Court to so hold.”);
United States v. Smith, 101 F.3d 202, 215 (1st Cir. 1996)
(deciding that Scarborough, rather than Lopez, applied
5630 UNITED STATES v. ALDERMAN
because of the jurisdictional hook in the statute); United
States v. Chesney, 86 F. 3d 564, 571 (6th Cir. 1996) (adhering
to Scarborough). Although these decisions dealt with the pos-
session of firearms rather than body armor, we agree with the
Tenth Circuit that the “prohibition on possessing body armor
cannot be distinguished from the prohibitions on possessing
firearms that we have upheld.” Patton, 451 F.3d at 635.
[6] We decline to create a circuit split on this issue or to
deviate from binding precedent. The congressional findings,
the nature of the body armor statute, and the express require-
ment of a sale in interstate commerce, considered in combina-
tion, provide a sufficient nexus to and effect on interstate
commerce to uphold § 931.
III. RECENT COMMERCE CLAUSE JURISPRUDENCE
Although we consider Scarborough as the defining case,
we cannot ignore the Supreme Court’s shifting emphasis in its
Commerce Clause jurisprudence over the past decade. Alder-
man posits that Scarborough has been overruled by the
Court’s recent Commerce Clause cases. Our review of those
authorities does not support this view — Scarborough has not
been discarded. See Hanna, 55 F.3d at 1462 (noting that Scar-
borough continues to be viable after Lopez).
In Lopez and its progeny, the Supreme Court delineated
“three general categories of regulation in which Congress is
authorized to engage under its commerce power.” Gonzalez v.
Raich, 545 U.S. 1, 16 (2005). These categories include: “(1)
the use of the channels of interstate commerce; (2) the instru-
mentalities of interstate commerce . . . ; and (3) activities hav-
ing a substantial relation to interstate commerce, i.e., those
activities that substantially affect interstate commerce.” Jones,
231 F.3d at 514 (quoting Lopez, 514 U.S. at 558-59) (internal
quotes and alterations omitted); see also Raich, 545 U.S. at
33-34 (Scalia, J., concurring) (noting that for over thirty
years, “our cases have mechanically recited that the Com-
UNITED STATES v. ALDERMAN 5631
merce Clause permits congressional regulation of three cate-
gories”).
The “categories have never been deemed exclusive or man-
datory.” United States v. Clark, 435 F.3d 1100, 1116 (9th Cir.
2006). “The categories are a guide, not a straitjacket.” Id.Hence, while we generally analyze cases in the framework of
these three categories, we are not obligated to “jam[ ] a square
peg into a round hole” — especially when that peg has
already had a suitable spot of its own carved out by the Court.
Id. at 1103.
To be sure, the first two categories are not particularly
applicable here.4 The third category described in Lopez “de-
fine[s] the extent of Congress’s power over purely intrastate
[ ] activities that nonetheless have substantial interstate
effects.” United States v. Robertson, 514 U.S. 669, 671 (1995)
(emphasis in original). In Morrison, the Supreme Court “es-
tablished what is now the controlling four-factor test for
determining whether a regulated activity ‘substantially
affects’ interstate commerce.” United States v. McCoy, 323
F.3d 1114, 1119 (9th Cir. 2003). One of these considerations
is “whether the statute contains any ‘express jurisdictional
element.’ ” Morrison, 529 U.S. at 611. “The purpose of a
jurisdictional hook is to limit the reach of a particular statute
to a discrete set of cases that substantially affect interstate
commerce.” McCoy, 323 F.3d at 1124. “Such a jurisdictional
4
Neither party seriously contends that § 931 can be justified under either
of the first two categories. As the Tenth Circuit explained in Patton,
because § 931 “prohibits the stationary and entirely intrastate act of pos-
session” and “is not directed at the movement of body armor through the
channels of interstate commerce . . . [§ 931] cannot be upheld under Con-
gress’s power to regulate the channels of interstate commerce.” United
States v. Patton, 451 F.3d 615, 621 (2006). Nor can the statute be under-
stood as regulating an instrumentality or “thing in” commerce because the
statute “does not protect body armor while it is moving in interstate ship-
ment [nor] is [it] directed at the use of body armor in ways that threaten
or injure the instrumentalities of interstate commerce.” Id. at 622.
5632 UNITED STATES v. ALDERMAN
element may establish that the enactment is in pursuance of
Congress’ regulation of interstate commerce.” Morrison, 529
U.S. at 612 (2000).
Unlike the statutes at issue in Lopez and Morrison, § 931
is limited by an express jurisdictional provision. Specifically,
the statute regulates body armor “sold or offered for sale, in
interstate or foreign commerce.” Cf. Cortes, 299 F.3d at 1036(concluding that a carjacking statute contained an express
jurisdictional hook because it was limited to vehicles “trans-
ported, shipped, or received in interstate or foreign com-
merce”).
Significantly, the “jurisdictional hook” in this statute is
substantially different from the provision we rejected as
essentially meaningless in McCoy, 323 F.3d at 1116. In
McCoy, we examined a child pornography statute with a juris-
dictional provision that allowed the statute to be applied to all
child pornography “which was produced using materials
which have been mailed or so shipped or transported” in “in-
terstate or foreign commerce.” Id. at 1116 (emphasis in origi-
nal, some emphasis omitted). We noted that “the limiting
jurisdictional factor [was] almost useless” because “all but the
most self-sufficient child pornographers will rely on film,
cameras, or chemicals that traveled in interstate commerce
and will therefore fall within the sweep of the statue.” Id. at
1125 (quoting United States v. Rodia, 194 F.3d 465, 473 (3rd
Cir. 1999)).
By contrast, § 931 only affects body armor that is itself
“sold or offered for sale” in interstate commerce. 18 U.S.C.
§ 921(a)(35). Thus, for example, homemade body armor or
body armor produced intra-state would not be caught within
the sweep of the statute. Cf. Polanco, 93 F.3d at 563 (holding
that a jurisdictional element “requiring the government to
prove that the defendant shipped, transported, or possessed a
firearm in interstate commerce, or received a firearm that had
been shipped or transported in interstate commerce . . .
UNITED STATES v. ALDERMAN 5633
insures, on a case-by-case basis, that a defendant’s actions
implicate interstate commerce to a constitutionally adequate
degree.”);
[7] We recognize that a jurisdictional hook is not always “a
talisman that wards off constitutional challenges.” Patton, 451
F.3d at 632. As we have explained,
[t]he Supreme Court’s decisions in Lopez and Morri-
son [ ], reject the view that a jurisdictional element,
standing alone, serves to shield a statute from consti-
tutional infirmities under the Commerce Clause. At
most, the Court has noted that such an element “may
establish that the enactment is in pursuance of Con-
gress’ regulation of interstate commerce,” or that it
may “lend support” to this conclusion.
McCoy, 323 F.3d at 1125 (quoting Morrison, 529 U.S. at 612-
13). Consequently, when traveling in uncharted waters, we
must consider the jurisdictional hook together with additional
factors, such as congressional findings. Id.; see also United
States v. Kirk, 105 F.3d 997 (5th Cir. 1997) (evenly divided
court en banc) (upholding machine gun ban under third prong
of Lopez rather than under a predecessor case to Scarbor-
ough). Here, we are confronted by the unique situation where
a nearly identical jurisdictional hook has been blessed by the
Supreme Court. Therefore, we need not engage in the careful
parsing of post-Lopez case law that would otherwise be
required. Rather, we recognize that this determination is con-
trolled by the Court’s analysis in Scarborough, and that
“[u]ntil the Supreme Court tells us otherwise . . . we [must]
follow Scarborough unwaveringly.” Cortes, 299 F.3d at 1037
n.2.
Conclusion
“Any doctrinal inconsistency between Scarborough and the
Supreme Court’s more recent decisions is not for this Court
5634 UNITED STATES v. ALDERMAN
to remedy.” Patton, 451 F.3d at 636 (citing Agostini v. Felton,
521 U.S. 203, 237 (1997)). Nor do we think it prudent to
create a circuit split on this important statutory issue that Con-
gress views as having nationwide implications. Because we
are bound by Scarborough and our own jurisprudence, we
decline to embrace Alderman’s challenge to § 931.
AFFIRMED.
PAEZ, Circuit Judge, dissenting:
I respectfully dissent.
In my view, felon-possession of body armor does not have
a substantial effect on interstate commerce; its prohibition
under 18 U.S.C. § 931 neither regulates commerce or any sort
of economic enterprise nor regulates intrastate, non-economic
activity that is essential to a comprehensive federal regulatory
scheme. We should not overlook these substantial failings and
nevertheless affirm Alderman’s conviction under § 931 by
enlarging the pre-United States v. Lopez1 precedent of Scar-
borough v. United States, 431 U.S. 563 (1977), merely
because a jurisdictional element is present. The majority’s
approach, in my view, effectively renders the Supreme
Court’s three-part Commerce Clause analysis superfluous and
permits Congress, through the use of a jurisdictional element
of any stripe, to “convert congressional authority under the
Commerce Clause to a general police power of the sort
retained by the States.” Lopez, 514 U.S. at 567.
Because my decision to part company with the majority is
guided by the court’s recent Commerce Clause jurisprudence
and its treatment of jurisdictional elements, I turn first to the
Court’s recent Commerce Clause cases. I then address the
1
514 U.S. 549 (1995).
UNITED STATES v. ALDERMAN 5635
Court’s decision in Scarborough, ultimately concluding that
Scarborough does not foreclose Alderman’s challenge to
Congress’s authority to regulate possession of body armor.
And, because § 931 is not a valid exercise of Congress’s
power, I would reverse Alderman’s conviction.
***
In Lopez, the Court set forth the now-familiar three “broad
categories” of activity that Congress may constitutionally reg-
ulate:
First, Congress may regulate the use of the channels
of interstate commerce. Second, Congress is empow-
ered to regulate and protect the instrumentalities of
interstate commerce, or persons or things in inter-
state commerce, even though the threat may come
only from intrastate activities. Finally, Congress’
commerce authority includes the power to regulate
those activities having a substantial relation to inter-
state commerce, i.e., those activities that substan-
tially affect interstate commerce.
Id. at 558-59 (citations omitted); Gonzales v. Raich, 545 U.S.
1, 33-34 (2005) (Scalia, J., concurring) (noting that for over
thirty years, “our cases have mechanically recited that the
Commerce Clause permits congressional regulation of three
categories”). As the majority acknowledges, the parties do not
seriously argue that § 931 can be justified under either of the
first two categories,2 and I agree. Therefore, if intrastate pos-
2
In United States v. Patton, 451 F.3d 615, 634 (10th Cir. 2006), the
Tenth Circuit held that § 931 could not be justified as a valid exercise of
the Commerce Clause under any of the three Lopez categories. The court
explained that because the statute “prohibits the stationary and entirely
intrastate act of possession” it is not directed at the movement of body
armor through the channels of interstate commerce, nor can the statute be
understood as regulating an instrumentality or “things in” commerce
5636 UNITED STATES v. ALDERMAN
session of an object can be regulated at all, it must be done
within the third category of Congress’s Commerce Clause
authority.
The Supreme Court developed the third category of author-
ity “to define the extent of Congress’s power over purely
intrastate commercial activities that nonetheless have substan-
tial interstate effects.” United States v. Robertson, 514 U.S.
669, 671 (1995). A substantial effect is required because
“[t]he regulation and punishment of intrastate violence that is
not directed at the instrumentalities, channels, or goods
involved in interstate commerce has always been the province
of the States.” United States v. Morrison, 529 U.S. 598, 618
(2000). Accordingly, whether Congress had a rational basis to
find that the regulated activity, taken in the aggregate, would
substantially affect interstate commerce should be the primary
focus of our inquiry. Raich, 545 U.S. at 22.
In Morrison, the Supreme Court held that the Violence
Against Women Act, 42 U.S.C. § 13981, was an invalid exer-
cise of federal power under the Commerce Clause. 529 U.S.
at 617. As the majority notes, the Supreme Court established
a four-factor test for making that determination: (1) whether
the statute regulates “activity [that] substantially affect[s]
interstate commerce” “or any sort of economic enterprise;”
(2) whether the statute contains any “express jurisdictional
because the statute “does not protect body armor while it is moving in
interstate shipment [nor] is [it] directed at the use of body armor in ways
that threaten or injure the instrumentalities of interstate commerce,” nor
does the statute substantially affect commerce. Id. at 621-22, 634. The
court nevertheless, as the majority does here, proceeded to uphold § 931
as permissible on the basis of the Supreme Court’s 1977 decision in Scar-
borough and Tenth Circuit precedent validating statutes that regulate felon
possession of firearms. Id. at 634-36. I agree with Patton’s conclusion that
§ 931 cannot be sustained under any of the three Lopez categories, but dis-
agree, as I explain infra, with the Patton court and the majority that Scar-
borough mandates a fourth category of Commerce Clause analysis.
UNITED STATES v. ALDERMAN 5637
element which might limit its reach to a discrete set” of cases
that “have an explicit connection with or effect on interstate
commerce;” (3) whether the statute or “its legislative history
contains express congressional findings regarding the effects
[of the regulated activity] upon interstate commerce;” and (4)
whether “the link between [the regulated activity] and a sub-
stantial effect on interstate commerce [is] attenuated.” Morri-
son, 529 U.S. at 610-12 (quotation marks and brackets
omitted); see also United States v. McCoy, 323 F.3d 1114,
1119 (9th Cir. 2003). We have since applied that test to a
number of criminal statutes, including those with jurisdic-
tional elements such as the one in § 931. See, e.g., United
States v. Cortes, 299 F.3d 1030, 1035-37 (9th Cir. 2002);
McCoy, 323 F.3d at 1129-30. Because we view the first and
fourth factors of the Morrison test—whether the statute regu-
lates commerce or economic enterprise, and whether the link
between the regulated activity and commerce is too attenuated
—as the most important, I turn to those factors first. See
McCoy, 323 F.3d at 1119.
1. The possession prong of § 931 does not regulate com-
merce or economic activity, and any link between pos-
session and commerce is highly attenuated.
Although these factors are considered together, I first con-
sider whether the statute regulates commerce or any sort of
economic enterprise. In my view, it does not. Like the statute
struck down in Lopez, § 931 is a “criminal statute that by its
terms has nothing to do with ‘commerce’ or any sort of eco-
nomic enterprise, however broadly one might define those
terms.” Lopez, 514 U.S. at 561. We have never found that
mere possession is, itself, an economic activity. See United
States v. Stewart (Stewart II), 451 F.3d 1071, 1073 (9th Cir.
2006) (stating that possession of machine guns is not an eco-
nomic activity); McCoy, 323 F.3d at 1131 (“simple intrastate
possession [of home-grown child pornography] is not, by
itself, either commercial or economic in nature”). Nor is mere
possession of an object consistent with activities the Supreme
5638 UNITED STATES v. ALDERMAN
Court has found to be commercial. See, e.g., Perez v. United
States, 402 U.S. 146, 154, 157 (1971) (loansharking); Hodel
v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264,
276-77 (1981) (industrial mining).
Even where the regulated activity is not commercial, how-
ever, the regulation can still be justified as having a substan-
tial and non-attenuated effect on commerce in two ways—
either as a means of regulating the interstate market for body
armor, as in § 931, see Raich, 545 U.S. at 18, or as controlling
uses of that body armor that might affect interstate commerce,
see Morrison, 529 U.S. at 612-15. Turning first to whether
regulation of felon possession succeeds as a regulation of the
interstate market for body armor, I conclude that it does not.
The Supreme Court’s recent decision in Raich established
that “Congress can regulate purely intrastate activity that is
not itself ‘commercial,’ in that it is not produced for sale, if
it concludes that failure to regulate that class of activity would
undercut the regulation of the interstate market in that com-
modity.” 545 U.S. at 17-18 (citing Wickard v. Filburn, 317
U.S. 111 (1942)) (emphasis added). In Raich, the Court con-
trasted the statute struck down in Lopez, which prohibited
possession of a gun in a school zone, with the comprehensive
regulatory scheme of the Controlled Substances Act (“CSA”),
which the Court described as a “lengthy and detailed statute
creating a comprehensive framework for regulating the pro-
duction, distribution, and possession of five classes of ‘con-
trolled substances.’ ” 545 U.S. at 24. Even though the
respondents in Raich possessed marijuana that was produced
intrastate and for no commercial purpose, the Court deter-
mined that the activities regulated by the CSA—the “produc-
tion, distribution, and consumption” of controlled substances
—were indeed economic. Id. at 25. Further, in light of the
“established, and lucrative, interstate market” for controlled
substances, prohibiting non-commercial intrastate possession
was “a rational . . . means of regulating” that market. Id. at 26;
cf. United States v. Adams, 343 F.3d 1024, 1033 (9th Cir.
UNITED STATES v. ALDERMAN 5639
2003) (“the statute criminalizing possession of commercial
child pornography is part of the larger congressional scheme
to eradicate the market for child pornography”).
Accordingly, when a federal statute criminalizes mere
intrastate possession, we have considered whether that statute
is part of a broader regulatory scheme. Indeed, we have held
that Congress could criminalize possession of machine guns
where those guns “are regulated by a detailed and comprehen-
sive statutory regime.” Stewart II, 451 F.3d at 1076. We have
also determined that Congress could “stamp out” the market
for child pornography by criminalizing the possession of such
pornography where the “production, distribution, [and]
receipt” was also regulated. Adams, 343 F.3d at 1032.
Here, however, there is no evidence that § 931’s prohibi-
tion of felon possession of body armor was either itself “a
general regulatory statute [that] bears a substantial relation to
commerce,” or an “essential part” of some other regulatory
scheme. Lopez, 514 U.S. at 558, 561 (quotation marks and
emphasis omitted). To the contrary, § 931 is like the statute
struck down in Lopez: a “brief, single-subject statute making
it a crime for [a felon] to possess [body armor].” Raich, 545
U.S. at 23; see also id. at 24 (quoting Lopez, 514 U.S. at 561)
(“ ‘Section 922(q) is not an essential part of a larger regula-
tion of economic activity . . . . It cannot, therefore, be sus-
tained under our cases upholding regulations of activities that
arise out of or are connected with a commercial transaction,
which viewed in the aggregate, substantially affects interstate
commerce.’ ”). Further, it is unrelated to any broader attempt
to control or suppress the market in body armor. Congress has
not regulated the manufacture, distribution, sale, possession,
or use of body armor. Moreover, the statute does not control
any aspect of the commercial marketplace for body armor; it
is perfectly legal, for example, to sell body armor to a felon
or to buy body armor from a felon. The statute—which pro-
hibits felon possession, ownership, and purchase—
criminalizes certain conduct by felons rather than regulating
5640 UNITED STATES v. ALDERMAN
interstate commerce in body armor. Where it is perfectly legal
to sell body armor to felons, and the entire legitimate market
in body armor—manufacture, distribution, and sale—is
untouched by § 931 or any related legislation, there is no
rational basis for concluding that criminalizing felon posses-
sion would have a discernable, let alone substantial, effect on
interstate commerce. Significantly, Congress itself estimated
that the statute would effect fewer than ten cases per year. See
H.R. Rep. No. 107-193, pt. 1, at 7 (2001).
Whereas the statute in Wickard was enacted primarily to
control the market price of wheat, 317 U.S. at 115, and the
statutes regulating machine guns in Stewart II and child por-
nography in Adams were part of broad regulatory frameworks
whose objectives were comprehensive market suppression,
§ 931 is a stand-alone statute that is designed only to keep fel-
ons from possessing body armor. Accordingly, there is no
rational basis here on which Congress could have concluded
that federal regulation of intrastate felon possession of body
armor is an essential part of effective federal control of the
broader, interstate market.
Whether Congress may have been regulating felon posses-
sion as a means of controlling uses of body armor that might
affect interstate commerce in a way that is “significant,” and
not “attenuated,” must also be considered.” See Morrison, 529
U.S. at 612-15. I recognize and am sensitive to Congress’s
concerns that possession of body armor by felons may facili-
tate criminal acts and that crime can have a substantial impact
on the national economy. However, arguments about these
concerns—that possession of firearms near schools and
gender-motivated violence, respectively, could and did have
significant effects on economic activity—were patently
rejected by a majority of the Court over forceful dissents in
both Morrison and Lopez. In Morrison, the Court emphasized
that it “reject[ed] the argument that Congress may regulate
noneconomic, violent criminal conduct based solely on that
conduct’s aggregate effect on interstate commerce.” Id. at
UNITED STATES v. ALDERMAN 5641
617-18. Likewise, in Lopez, the Court specifically declined to
“pile inference upon inference” to find that either the “costs
of crime” or impacts on “national productivity” could affect
commerce to a constitutionally adequate degree. 514 U.S. at
564, 567; Morrison, 529 U.S. at 615-18 (rejecting the argu-
ment that “Congress [could] regulate any crime as long as the
nationwide, aggregated impact of that crime has substantial
effects on employment, production, transit, or consumption”
because “[t]he Constitution requires a distinction between
what is truly national and what is truly local.”).
Here, even when Lopez’s and Morrison’s instructions are
read in the light most favorable to exercise of congressional
power, any potential effect on commerce of Alderman’s pos-
session of body armor is both spare and particularly attenu-
ated. The possession subject to regulation under § 931 need
not be coupled with possession of a weapon or connected with
the commission of a federal crime, circumstances which
might fairly be said to substantially affect the national econ-
omy. In this case, Alderman’s possession of body armor
posed no danger; he was walking down a street, unarmed, his
vest invisible beneath his shirt. His conduct had no adverse
economic or commercial impact whatsoever and, in the
absence of any further, affirmative criminal or other activity,
it had no potential for such an impact. Even conceding that
Alderman’s possession of body armor might facilitate crimi-
nal conduct nonetheless, Lopez and Morrison patently reject
the argument that because an object facilitates crime, posses-
sion of that object can be regulated under Congress’s com-
merce power.
I would conclude, therefore, that felon possession of body
armor is not part of a broader attempt to regulate the interstate
market and that it does not have a substantial and unat-
tenuated effect on interstate commerce.
5642 UNITED STATES v. ALDERMAN
2. The congressional findings accompanying § 931 do
not demonstrate that possession substantially affects
interstate commerce.
Congressional findings that address the national impact of
the regulated activity in question can assist in determining
whether that activity substantially affects interstate com-
merce. Lopez, 514 U.S. at 562-63. Their use is in enabling a
court “to evaluate the legislative judgment that the activity in
question substantially affected interstate commerce, even
though no such substantial effect was visible to the naked
eye.” Id. at 563.
The relevant congressional findings here are limited. There
are no preambulatory findings enacted as part of the statute,
however the House Report contains findings as follows:
(1) nationally, police officers and ordinary citizens
are facing increased danger as criminals use more
deadly weaponry, body armor, and other sophisti-
cated assault gear;
(2) crime at the local level is exacerbated by the
interstate movement of body armor and other assault
gear;
(3) there is a traffic in body armor moving in or
otherwise affecting interstate commerce, and exist-
ing Federal controls over such traffic do not ade-
quately enable the States to control this traffic within
their own borders through the exercise of their police
power;
(4) recent incidents, such as the murder of San
Francisco Police Officer James Guelff by an assail-
ant wearing 2 layers of body armor, a 1997 bank
shoot out in north Hollywood, California, between
police and 2 heavily armed suspects outfitted in body
UNITED STATES v. ALDERMAN 5643
armor, and the 1997 murder of Captain Chris
McCurley of the Etowah County, Alabama Drug
Task Force by a drug dealer shielded by protective
body armor, demonstrate the serious threat to com-
munity safety posed by criminals who wear body
armor during the commission of a violent crime . . . .
H.R. Rep. 107-193, pt. 1, at 2. Whether these findings sup-
port a rational basis for the position that possession of body
armor substantially affects interstate commerce is not so clear.
See Raich, 545 U.S. at 22.
First, the conclusion that “there is a traffic in body armor
moving in or otherwise affecting interstate commerce” is an
eminently reasonable one. H.R. Rep. 107-193, pt. 1, at 2. Like
the court in Patton, I recognize that Congress found that “ex-
isting Federal controls over . . . traffic [in body armor] do not
adequately enable the States to control this traffic,” 451 F.3d
at 630-31, but I fail to see how § 931 is responsive to that
finding where it does nothing to limit the interstate movement
of body armor. The regulation of felon possession is wholly
intrastate. And, where Congress itself determined that the pro-
hibition on possession, purchase, and ownership of body
armor by felons “would probably affect fewer than 10 cases
each year,” H.R. Rep. 107-193, pt. 1, at 7, it is especially dif-
ficult to perceive how felon-possession of body armor sub-
stantially affects interstate traffic. At best, by federalizing
traditional state crimes, the statute duplicates similar state
prohibitions. See Patton, 451 F.3d at 631 n.7 (listing thirty-
one states in which possession of body armor is regulated). At
worst, it tampers with policy choices by the states in an area
—police powers—in which states are sovereign.
Congress’s conclusion that “crime at the local level is exac-
erbated by the interstate movement of body armor,” H.R. Rep.
107-193, pt. 1, at 2, is likewise well-taken; however, in Lopez,
in which guns were at issue, a similar concern did not estab-
lish that the prohibited possessions substantially affected
5644 UNITED STATES v. ALDERMAN
interstate commerce. In Lopez, the Court rejected the idea that
Congress could rely on generalized “costs of crime” for the
power to regulate “not only all violent crime, but all activities
that might lead to violent crime, regardless of how tenuously
they relate to interstate commerce.” 514 U.S. at 564 (empha-
sis added). To the contrary, the Court required a close nexus
between the criminalized conduct and interstate commerce.
The Court explained that the absence of such a nexus raised
grave federalism concerns because “the suppression of violent
crime and the vindication of its victims” is quintessentially
within the police power of the several states. Morrison, 529
U.S. at 618. Although Congress was concerned that “police
officers and ordinary citizens are facing increased danger” as
the result of felon-possession of body armor, H.R. Rep. 107-
193, pt. 1, at 2, it is precisely this area that the Court has
determined to be one of traditional state concern. Remaining
faithful to this precedent, I cannot discern a rational basis on
which Congress could have concluded that possession of body
armor substantially affects interstate commerce.
I therefore turn to the remaining Morrison factor: whether
there is a jurisdictional element that limits the reach of the
possession prong of § 931 to a discrete set of cases that sub-
stantially affect interstate commerce. Morrison, 529 U.S. at
611-12.
3. Section 931’s jurisdictional element does not serve to
render the possession prong of the statute a valid exer-
cise of Congress’s Commerce Clause authority.
A jurisdictional element, as the term has been used in and
after Lopez, refers to a provision in a federal statute that
requires the government to establish specific facts justifying
the exercise of federal jurisdiction in connection with an indi-
vidual application of the statute. Lopez, 514 U.S. at 561-62.
Here, the majority and the government point to § 931’s
jurisdictional element and conclude that because the govern-
UNITED STATES v. ALDERMAN 5645
ment must show that the body armor at issue in a particular
case was sold or offered for sale in interstate commerce alone
is sufficient to bring the regulated possession within the scope
of Congress’s authority. In particular, the majority holds that
Scarborough—which preceded Lopez by two decades—
controls the result in this case. As the majority explains, in
Scarborough, the Court interpreted the predecessor statute to
§ 922(g) to require only that a firearm had previously traveled
in interstate commerce in order to satisfy the nexus between
possession and commerce. I do not believe that Scarborough
controls the result here, and such a conclusion, in my view,
is contrary to our precedent.
As we have explained,
The Supreme Court’s decisions in Lopez and Morri-
son . . . , reject the view that a jurisdictional element,
standing alone, serves to shield a statute from consti-
tutional infirmities under the Commerce Clause. At
most, the Court has noted that such an element “may
establish that the enactment is in pursuance of Con-
gress’ regulation of interstate commerce,” or that it
may “lend support” to this conclusion. Morrison,
529 U.S. at 612, 613, 120 S.Ct. 1740 (emphasis
added). Thus, the “jurisdictional element” must be
considered along with the other factors listed in Mor-
rison.
McCoy, 323 F.3d at 1125 (noting that the Third and Seventh
Circuits agree with that analysis).3 Indeed, in McCoy, as well
as Cortes, we conducted a substantial effects test “[f]ollowing
the rubric outlined in Lopez, Morrison, and Jones [v. United
States, 529 U.S. 848 (2000)].” Cortes, 299 F.3d at 1035;
McCoy, 323 F.3d at 1119. Our analysis contemplated that
3
McCoy, may be in tension with Raich, but because I cite McCoy for its
application of Morrison, and not its holding, there is no need to address
this tension here.
5646 UNITED STATES v. ALDERMAN
“[t]he purpose of a jurisdictional hook is to limit the reach of
a particular statute to a discrete set of cases that substantially
affect interstate commerce.” McCoy, 323 F.3d at 1124. The
presence of a jurisdictional element does not ipse dixit result
in a constitutional exercise of Congress’s Commerce Clause
power.
In light of this precedent, I agree with the Tenth Circuit’s
observation in Patton that § 931’s jurisdictional element,
which “limits the definition of ‘body armor’ to any product
sold or offered for sale, in interstate or foreign commerce, as
personal protective body covering” “does not seriously limit
the reach of the statute.” 451 F.3d at 633.
Nearly all body armor will meet that test. More
important, there is no reason to think that possession
of body armor that satisfies the jurisdictional hook
has any greater effect on interstate commerce than
possession of any other body armor . . . .
Where Congress has chosen to allow production, dis-
tribution, and sale of body armor in interstate com-
merce . . . it is hard to understand why possession of
armor that meets that description is more objection-
able than any other.
Id. Or, put slightly differently, as in McCoy, the connection
between the activity regulated and the jurisdictional element
is attenuated—the jurisdictional element does not provide
adequate support for the government’s assertion of federal
jurisdiction. This is the case here even though “the ‘jurisdic-
tional hook’ in the statute and the item which affects interstate
commerce are one and the same,” McCoy, 323 F.3d at 1129,
because the crux of the analysis is whether the jurisdictional
element guarantees that the regulated possession substantially
affects interstate commerce. Here, the possession at issue is,
by statutory design, attenuated both from the interstate market
in body armor and any use of that body armor during an activ-
UNITED STATES v. ALDERMAN 5647
ity that might affect interstate commerce. Consequently, the
jurisdictional element does not serve its required purpose of
limiting the statute to felon-possessions that have a direct and
substantial affect on interstate commerce.
To the contrary, virtually every possession will fall within
the sweep of the statute. The Supreme Court avoided pre-
cisely this result in Jones, 529 U.S. at 850-51. In Jones, the
Court narrowly interpreted the jurisdictional element in the
federal arson statute, 18 U.S.C. § 844(i), to avoid the “grave
and doubtful constitutional questions” that would arise “were
we to read § 844(i) to render the ‘traditionally local criminal
conduct’ in which petitioner Jones engaged ‘a matter for fed-
eral enforcement.’ ” Id. at 857-58. In particular, the Court
expressed concern with the government’s view that the home
was “used in . . . activities affecting commerce” because the
homeowner had mortgaged and insured the property through
out-of-state entities, and the home received natural gas from
interstate sources. Id. at 855 (quotation marks and brackets
omitted). To read the statute as the government argued would
have the constitutionally dubious result of “mak[ing] virtually
every arson in the country a federal offense.” Id. at 859. The
Court’s narrow construction of the jurisdictional element
ensured that only arson crimes substantially affecting inter-
state commerce could be prosecuted under the statute. Id. at
858-59.
Here, it is impossible to narrowly interpret § 931’s jurisdic-
tional element, as the Court did in Jones, so that only posses-
sions substantially affecting interstate commerce may be
prosecuted. Congress specified that it intended to regulate the
possession of “any product sold or offered for sale, in inter-
state or foreign commerce, as personal protective body cover-
ing.” 18 U.S.C. § 921(a)(35). No plausible interpretation of
§ 931 cabins the statute’s reach to a discrete set of cases. This
is problematic, however, because as we have noted, “virtually
all criminal [conduct] involve[s] the use of some object that
has passed through interstate commerce.” McCoy 323 F.3d at5648 UNITED STATES v. ALDERMAN
1126 (quotation marks and citation omitted). Section 931’s
requirement that the government show that the body armor
once traveled in interstate commerce does not ensure that the
regulated conduct has the requisite substantial effect on inter-
state commerce.
In particular, § 931’s jurisdictional element does nothing to
prevent Congress from claiming the general police power that
the Constitution “denied the National Government and
reposed in the States.” Morrison, 529 U.S. at 618.4 While the
use of a broad jurisdictional element does not invalidate a
statute that otherwise “substantially affects . . . commerce,”
Cortes, 299 F.3d at 1036, such an element cannot save a stat-
ute that otherwise lacks the required effect.
Our decision in Cortes amply demonstrates this point.
There, we conducted a substantial effects test under Morrison
and found that “the carjacking statute was enacted as ‘an
essential part of a larger regulation of economic activity,’ ” id.
at 1035 (quoting Lopez), and that because “carjacking does
substantially affect interstate commerce,” the fact that “a par-
ticular instance of carjacking may have a de minimis effect on
interstate commerce is of no consequence.” Id. at 1036. Turn-
ing only then to the jurisdictional element, we rejected Cor-
tes’s argument that the element was so broad as to invalidate
the statute, reasoning that where “carjackings targeted by 28
U.S.C. § 2119 substantially affect interstate commerce” a
minimal nexus “provides the necessary connection between
each instance of carjacking covered by the statute and inter-
state commerce.” Id. at 1037. In other words, the presence of
4
See also Andrew St. Laurent, Reconstituting United States v. Lopez:
Another Look at Federal Criminal Law, 31 Colum. J.L. & Soc. Probs. 61,
113 (1998) (“A purely nominal jurisdictional requirement, that some entity
or object involved in the crime be drawn from interstate commerce, does
nothing to prevent the shifting of [the federal/state] balance in favor of the
federal government. As has been amply demonstrated, virtually all crimi-
nal actions in the United States involve the use of some object that has
passed through interstate commerce.”).
UNITED STATES v. ALDERMAN 5649
the jurisdictional element was a factor in the analysis that fol-
lowed a substantially affects determination—it was not the
sole reason for that determination.
Contrary to the majority’s view, neither the Supreme
Court’s decision in Scarborough nor our court’s treatment of
Scarborough alters this analysis. Scarborough decided only a
question of statutory interpretation about the predecessor stat-
ute to § 922(g). Scarborough held that—on a fair reading of
that statute—only a minimal nexus with commerce was
required to demonstrate that felon-possession of a firearm
substantially affected commerce. 431 U.S. at 563-64, 566-67.
Lopez itself neither stated nor implied more when the Court
noted that because § 922(q) “ha[d] no express jurisdictional
element which might limit its reach to a discrete set of firearm
possessions,” the statute could not be “sustained under our
cases upholding regulations of activities that arise out of or
are connected with a commercial transaction, which viewed in
the aggregate, substantially affects interstate commerce.”
Lopez, 514 U.S. at 561-62 (emphasis added).
After Lopez, we noted that Scarborough had not been over-
turned and rejected challenges to the constitutionality of
§ 922, holding that Lopez did not “alter [the] analysis,” under
Scarborough, and that “[s]ection 922(g)’s requirement that
the firearm have been, at some time, in interstate commerce
[remains] sufficient to establish its constitutionality.” United
States v. Hanna, 55 F.3d 1456, 1462 n.2 (9th Cir. 1995) (cit-
ing pre-Lopez precedent for the proposition that Scarbor-
ough’s minimal nexus standard applies to § 922(g)). Since
then, as the majority emphasizes, we have routinely upheld
the constitutionality of § 922 in cases that are the direct dece-
dents of Scarborough, and therefore controlled by its prece-
dent. This constitutional framework—considering first
whether the statute at issue substantially affects interstate
commerce and then considering the nature and scope of any
jurisdictional element—does not disturb that settled prece-
dent.
5650 UNITED STATES v. ALDERMAN
Further, I acknowledge that absent en banc or Supreme
Court review, we must view § 922(g) as having a sufficient
nexus to interstate commerce. See United States v. Latu, 479
F.3d 1153, 1156 (9th Cir. 2007). Indeed, after Raich and our
decisions in Stewart II and Latu, the constitutionality of § 922
in all of its provisions is sound. As the court in Latu noted,
the “de minimis character of each individual possession is
irrelevant where . . . possession is regulated as part of a gen-
eral regulatory statute that substantially relates to interstate
commerce.” Id. at 1156-57.
Such a regulatory scheme is not, however, what is at issue
here. The plain differences in these various statutes confirm
that the constitutionality of the prohibition on felon posses-
sion of firearms, as evidenced by Scarborough, is context-
specific. That a minimal nexus was sufficient in one context
does not make it sufficient in every other context. Were it oth-
erwise, Morrison’s framework, Jones, and our non-§ 922(g)
precedent would be either superfluous or incoherent. Scarbor-
ough may have the appearance of a trump, as the majority
essentially holds, but a careful reading of post-Scarborough
precedent and the Supreme Court’s instructions in Lopez and
its progeny clearly foreclose the notion that a statute is consti-
tutional merely because a jurisdictional element or “hook” is
present. Indeed, as Lopez makes plain, a jurisdictional ele-
ment is a subsidiary element of the substantial effects analysis
—it ensures that the government establishes specific facts jus-
tifying the exercise of federal jurisdiction in connection with
any particular application of a statute like § 931. Lopez, 514
U.S. at 561. The jurisdiction element also in § 931 does not
itself, by any fair reading, establish the requisite substantial
interstate effects.
Although the majority here, like the Tenth Circuit in Pat-
ton, declares itself bound by Scarborough, this result is not
compelled. Only where Supreme Court precedent has “direct
application” in a case or “directly controls” should we “follow
the case [and leave] to the Court the prerogative of overruling
UNITED STATES v. ALDERMAN 5651
its own decisions.” United States v. Grisel, 488 F.3d 844, 847
(9th Cir. 2007) (en banc) (quoting Agostini v. Felton, 521
U.S. 203, 237 (1997)) (brackets omitted). Here, in addition to
all the reasons discussed above, Scarborough does not control
because constitutional limits—not an interpretation of
§ 922(g)—are the crux of the issue here. To the extent Scar-
borough has any constitutional dimension, it is, at best, sub
silentio. I therefore cannot perceive how a holding that inter-
prets a statute not at issue here “directly controls” the out-
come of this case, especially where Scarborough has not
“controlled” the outcome in any other non-§ 922 case that has
involved a jurisdictional element.5
Notably, every court that has considered the constitutional-
ity of § 931 has simply declared that body armor is “analo-
gous” to, United States v. Harkness, 2007 WL 865855, at *4-
5 (M.D. Fla. Mar. 21, 2007), the “same” as, United States v.
Marler, 402 F. Supp. 2d 852, 854-55 (N.D. Ohio 2005), or
“identical” to, United States v. Kitsch, 307 F. Supp. 2d 657,
660-61 (E.D. Pa. 2004), firearms without explaining why they
“cannot be distinguished,” Patton, 451 F.3d at 635-36. But
our Commerce Clause analysis has never been fungible; it has
been case-specific. Bald assertions, as well as Patton’s pre-
sumption that Scarborough effectively creates a fourth cate-
gory of Commerce Clause power, 451 F.3d at 634-36, should
be viewed with skepticism.
In sum, where felon possession of body armor is intrastate,
not an essential part of a comprehensive regulatory scheme,
and not connected to criminal activity that might affect inter-
state commerce, there is “no rational basis for concluding that
the possession of body armor prohibited by section 931 sub-
stantially affects interstate commerce.” Id. at 634.
5
Indeed, in Cortes, reference to Scarborough served only to “rein-
force[ ] [the court’s] conviction” that the sheer breadth of the jurisdictional
element did not undermine its conclusion, on the basis of the other Morri-
son factors, that carjacking substantially affected interstate commerce. 299
F.3d at 1036.
5652 UNITED STATES v. ALDERMAN
***
Section 931 did not require the government to show that
Alderman’s possession of body armor involved a commercial
transaction, interstate travel, the commission of a crime, the
possession of a firearm, or any other factor which would dem-
onstrate that his possession substantially affected interstate
commerce. Scarborough neither controls nor cures this defi-
ciency. Congress’s Commerce Clause powers are broad, but
as the Supreme Court has specifically instructed us, they do
have limits. In my view, the possession prong of § 931
exceeds those limits. Accordingly, I would reverse Alder-
man’s conviction.