Volume 100 -- Issue 4 Georgetown Law Journal

Vested Interests: The Federal Felon Body-Armor Ban and the Continuing Vitality of Scarborough v. United States

In response to a spate of violent clashes between “heavily armored assailants and comparatively unprotected police officers,” Congress enacted the James Guelff and Chris McCurley Body Armor Act (Body Armor Act) in the fall of 2002. Named for two police officers who had been shot and killed in the line of duty in the late 1990s, the Act benefitted from bipartisan collaboration and generous support in both the House and the Senate. Among other things, the Act prohibits any person who has been convicted of a felony of violence from purchasing, owning, or possessing body armor that has been sold or offered for sale in interstate or foreign commerce. It is a stand-alone provision, unconnected to any broader legislative scheme, and it regulates a discrete intrastate activity: the possession of body armor by felons. Because Article I, § 8 of the Constitution commits to Congress the authority to regulate only interstate commerce, as opposed to intrastate commerce, the Act has frequently sustained challenges that it exceeds Congress’s authority. And although several jurists have observed that the law does not fall within any of the three categories composing the modern Commerce Clause framework, every court to confront its constitutionality has affirmed it. Relying on a generation-old Supreme Court decision, Scarborough v. United States, which implicitly held constitutional a federal ban on felons’ possession of firearms, these lower courts have found the body-armor ban to be indistinguishable.

This Note contends that Scarborough, as interpreted by the lower courts, not only contravenes modern Commerce Clause jurisprudence but also threatens to tilt the balance between federal and state governments, that was envisioned in the Constitution’s framework, by permitting the federal government to intrude on areas of traditional state concern. By analogizing Scarborough’s holding that the federal government may constitutionally regulate a gun so long as it has crossed state lines, courts have upheld similar federal enactments regulating other items that have crossed state lines—enactments like § 931’s regulation of body armor. Indeed, driven to its analogical limit, Scarborough could well stand for the proposition that, notwithstanding any other applicable constitutional provision, the federal government may regulate the intrastate possession of any item so long as it has traveled interstate at some point in its existence.

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