Test of Federal Felon-in-Possession of Body Armor

The 9th Circuit has decided that because body armor once moved in interstate commerce, the federal government can regulate possession of it.  This theory of the commerce clause is, in my opinion, quite properly referred to as “the herpes theory” of the commerce clause.  It is also this theory under which felon-in-possession of firearms is regulated at the federal level, and also by which national concealed carry is based.  This issue actually came up a few years ago in the 10th circuit, and that circuit came to the same decision as the 9th.  A circuit split would make the Supreme Court more likely to hear the case, but perhaps they will want a chance to refine their commerce clause juris purdence further.  Now would be the time, given that The Court is only going to get more progressive in makeup as the Obama Administration drags on.

7 thoughts on “Test of Federal Felon-in-Possession of Body Armor”

  1. SO, they can’t use a weapon to defend their life, and they also can’t use ARMOR to protect their life?

    If anyone can find where the framers intended the government to be able to play russian roulette with people’s lives please mention where so we can close that *&%(*^%* loophole!

    Perhaps those of us who are opposed to abortion can use the “commerce claws” (as the control freaks understand it) to prohibit killing the unborn. With abortions they’re not around to engage in commerce, not to mention their parents are cheating the poor and needy out of help by killing the future tax payers and slowing the economy.

  2. I doubt the Supremes will touch this one without a circuit split. If the current understanding of “interstate commerce”* is ever overturned, there are massive federal bureaucratic empires that could be devastated by a few well placed court challenges. The Court generally (though admittedly not always) tends to avoid cases that could lead to wide spread “disruption” of the status quo.

    *(i.e. if it exists, it affects interstate commerce and therefore the feds can regulate it)

  3. Considering in the founders time, felons were typically hanged if convicted, it’s hard to say what they’d think about the restricted citizenship regime for the treatment of convicted felons.

  4. Considering that in the founders time, felony status was generally reserved for real crimes, it’s even harder to say what they’d think about it.

  5. Jake are you arguing that possession of the wrong type of orchid, 11 (in Texas alone) laws that somehow involve oysters, conspiracy to commit oral copulation, or even shooting and killing a squirrel with an air rifle shouldn’t be felonies?

  6. The application of the Commerce Clause, as well as just about every single decision made during the reign of Chief Justice Marshall, is incorrect and based on patently false assumptions about government power. The Federal Government has no right or authority to regulate whom may own protective equipment, such as body armor under the Commerce Clause, nor any other part of the constitution. This is something that could be decided by the states, but it’s a stupid thing to try to prosecute someone for anyway.

    I agree that felons should have only limited rights. However, considering how many crimes you can commit these days that will make you a felon, even when nobody is physically harmed, even when the crime is consensual and there are no “victims”, I feel that felons should have the limited rights afforded them protected, and I can’t see how a felon in body armor is a clear and present danger to society. Overarching government powers however…

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