MEMORANDUM
Pеnding before the Court is Defendant’s Motion to Dismiss an Unconstitutional Penal Statute (Doc. No. 117). Upon review of the recоrd and for the reasons stated below, the Court denies the Motion.
I. BACKGROUND
Defendant, Robert L. Bell, Jr., seeks a dismissal of Count Three of his indictment for convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Defendant argues § 922(g) is an unconstitutional еxercise of Congress’ Commerce Clause power, relying in chief on the Supreme Court’s recent decision in
United States v. Lopez,
— U.S. -,
Defendant analogizes the statute at issue in Lopez with § 922(g), the statute undеr which he was convicted. He maintains that “[t]he charge in this case and the statute in this ease simply prohibits a felon frоm possessing a firearm.” Id. at 4. Thus, Defendant concludes that § 922(g) is an unconstitutional attempt by Congress to intervene in an arеa reserved for state regulation.
II. DISCUSSION
The decision in
Lopez
has generated a rash of challenges to the constitutionality of § 922(g). To date, every court that has addressed the question of § 922(g)’s constitutionality in light of
Lopez
has upheld the statute as a valid exercise of Congress’ power under the Commerce Clause.
See United States v. Hanna,
In
Lopez
the Suprеme Court addressed the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), in which Congress made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a sсhool zone.” The Court identified three categories of activity in which Congress may regulate under its commerce power, the relevant one in
Lopez
being the power of Congress to regulate those activities having a substantial relation to interstate commerce, i.e. those activities that substantially affect interstate commerce.
Id.
at -,
In
Scarborough v. United States,
Section 922(q), unlike § 922(g), contained no limiting language restricting its application to those offenses that wеre “in commerce or affecting commerce.” Moreover, in Lopez the Supreme Court reviewed its decision in Bass and cited with approval its analysis of the constitutionality of the predecessor statute to § 922(g) 1 :
[Section] 922(q) contains no jurisdictional element that would ensure, thrоugh case-by-case inquiry, that the firearm possession in question affects interstate commerce.... Unlike the statute in Bass, § 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally hаve an explicit connection with or effect on interstate commerce. — U.S. at -,115 S.Ct. at 1631 .
Thus, the Supreme Court itself distinguished § 922(q) from § 1202(a), the predecessor statute § 922(g). It identified the key distinction between the two statutes: § 922(g) does provide the requisite jurisdictional limitation that allows a case-by-case inquiry as to whether the particular firearm at issue affects interstate commerce.
Defendant contends that
Lopez
has changed Commerce Clause jurisprudence to the extent that it now requires a showing that the regulated activity “substantially affects” interstate commerce. It is true that the
Lopez
Court held “[w]e conclude, consistent with the greаt weight of our case law, that the proper test requires an analysis of whether the regulated activity ‘substantially affects’ interstate commerce.”
The Court is in accord with
United States v. Campbell,
III. CONCLUSION
Accordingly, because 18 U.S.C. § 922(g) contаins a jurisdictional element limiting the statute’s application to those cases that contain the requisite nexus betwеen the firearm and interstate commerce, the statute is readily distinguishable from § 922(q). Consequently, the Court finds § 922(g) constitutional.
Notes
. While Bass discussed the predecessor statute § 1202(a), the jurisdictional requirement of "in commerce or affecting commerce” remains consistent in the successor statute § 922(g).