Western District of Seattle Washington, D.C. No. CR-06-00117-001-JCC.
Before: Betty B. Fletcher, M. Margaret McKeown and Richard A. Paez, Circuit Judges.
Order; Dissent by Judge O'Scannlain
Judges McKeown and B. Fletcher vote to deny the petition for panel rehearing. Judge Paez votes to grant the petition for panel rehearing. Judge McKeown votes to deny the petition for rehearing en banc and Judge B. Fletcher so recommends. Judge Paez votes to grant the petition for rehearing en banc.
The full court was advised of the petition for rehearing en banc. After a request for a vote by an active judge, a vote was taken, and a majority of the active judges of the court failed to vote for a rehearing en banc. Fed. R. App. P. 35(f).
The petition for panel rehearing and rehearing en banc is DENIED.
O'SCANNLAIN, Circuit Judge, dissenting from the order denying rehearing en banc, joined by PAEZ, BYBEE, and BEA, Circuit Judges:
The Supreme Court has told us with increasing fervor that there are limits to the power of Congress to federalize regulation of personal conduct. The Court told us in United States v. Lopez, 514 U.S. 549, 559 (1995), that Congress has no power to make a federal crime of possession of a hand gun within 1,000 feet of a school, even if the gun traveled in interstate commerce. The Court told us in United States v. Morrison, 529 U.S. 598, 610-12 (2000), that Congress has no power to fashion a federal remedy for claims of violence against women. The Court told us in Jones v. United States, 529 U.S. 848 (2000), that Congress has no power to make a federal crime of arson, even if the affected building is subject to a mortgage held by a bank in another state.
For the reasons articulated by our colleague, Judge Paez, in his eloquent dissent,*fn1 Congress has no power to make a federal crime of possession of body armor by a felon. Because the panel majority disagrees and fails to recognize the limits imposed on Congress by Lopez, Morrison, and Jones, because its opinion erroneously allows the federal government to legislate in a domain traditionally regulated by the states, and because its opinion now creates a split with seven other circuits, we should have reheard this case en banc.
The mischief this case creates is exceptionally troublesome.*fn2 The majority opinion allows Congress to punish possession offenses, as long as the enacting statute includes a mere recital purporting to limit its reach to goods sold or offered for sale in interstate commerce. The majority's opinion makes Lopez superfluous. Insert a jurisdictional recital, the majority in effect says, and Congress need not worry about whether the prohibited conduct has a "substantial relation to interstate commerce." Lopez, 514 U.S. at 559. Seven circuits have expressly rejected this view of jurisdictional provisions. United States v. Maxwell, 446 F.3d 1210, 1218 (11th Cir. 2006); United States v. Patton, 451 F.3d 615, 632 (10th Cir. 2006); United States v. Holston, 343 F.3d 83, 88 (2d Cir. 2003); United States v. McCoy, 323 F.3d 1114, 1118 (9th Cir. 2003); United States v. Corp, 236 F.3d 325, 331 (6th Cir. 2001); United States v. Angle, 234 F.3d 326, 337 (7th Cir. 2000); United States v. Rodia, 194 F.3d 465, 472-73 (3rd Cir. 1999).
But the impact of the majority's opinion does not stop there. The majority's rationale, quite literally, "makes a federal case" out of numerous crimes previously punished only by the states. Cambridge Idioms Dictionary (2d ed. 2006); see 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 ...