Alderman

Helen J. Brunner, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee.

Brian Tsuchida, Assistant Federal Public Defender, Seattle WA (on the brief) and Vicki Lai, Assistant Federal Public Defender, Seattle WA (on the brief and oral argument) for the defendant-appellant.

Before: B. FLETCHER, M. MARGARET McKEOWN, RICHARD A. PAEZ, Circuit Judges.

Opinion by Judge MCKEOWN; Dissent by Judge PAEZ.

McKEOWN, Circuit Judge:

This case of first impression in the Ninth Circuit requires us to consider whether Congress has the authority under the 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 commerce." 18 U.S.C. §§ 931 and 921(a)(35). Put another way, the issue is whether the sale of body armor in interstate commerce 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.…

Opinion by Judge MCKEOWN; Dissent by Judge PAEZ.

This case of first impression in the Ninth Circuit requires us to consider whether Congress has the authority under the Commerce Clause of the United States Constitution, art. I, § 8, cl. 3, to criminal *643 ize the possession by a felon of body armor that has been “sold or offered for sale in interstate commerce.” 18 U.S.C. §§ 931 and 921(a)(35). Put another way, the issue is whether the sale of body armor in interstate commerce 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 , 120 S.Ct. 1740 , 146 L.Ed.2d 658 (2000) (striking down statute that provided a federal civil remedy for victims of gender-motivated violence); United States v. Lopez, 514 U.S. 549 , 115 S.Ct. 1624 , 131 L.Ed.2d 626 (1995) (striking down federal statute regulating possession of guns in school zones). Nonetheless, the resolution to this case is found in Supreme Court and Ninth…

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. Lopez 1 precedent of Scarborough v. United States, 431 U.S. 563 , 97 S.Ct. 1963 , 52 L.Ed.2d 582 (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, 115 S.Ct. 1624 .

Because my decision to part company with the majority is .guided by the court’s *649 recent Commerce Clause jurisprudence and its treatment of jurisdictional elements, I…