                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 07-30186
                Plaintiff-Appellee,           D.C. No.
               v.                         CR-06-00117-001-
CEDRICK BERNARD ALDERMAN,
             Defendant-Appellant.
                                               JCC
                                          Western District of
                                            Washington,
                                               Seattle

                                               ORDER


                   Filed February 3, 2010

   Before: Betty B. Fletcher, M. Margaret McKeown and
             Richard A. Paez, Circuit Judges.

                          Order;
               Dissent by Judge O’Scannlain


                          ORDER

   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).
                             1983
1984                 UNITED STATES v. ALDERMAN
 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 regula-
tion 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 inter-
state commerce. The Court told us in United States v. Morri-
son, 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,1 Congress has no power to make a fed-
eral 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 leg-
islate in a domain traditionally regulated by the states, and
because its opinion now creates a split with seven other cir-
cuits, we should have reheard this case en banc.
  1
    United States v. Alderman, 565 F.3d 641, 648-58 (9th Cir. 2009) (Paez,
J., dissenting).
                      UNITED STATES v. ALDERMAN                         1985
                                      I

   The mischief this case creates is exceptionally troublesome.2
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).

                                     II

   But the impact of the majority’s opinion does not stop
there. The majority’s rationale, quite literally, “makes a fed-
eral case” out of numerous crimes previously punished only
by the states. Cambridge Idioms Dictionary (2d ed. 2006); see
   2
     I will not repeat the well-reasoned analysis in Judge Paez’s dissent nor
the earlier decision by the Tenth Circuit as to why this statute does not sur-
vive the tests enunciated in Lopez, Morrison, Jones, and Gonzales v.
Raich, 545 U.S. 1, 17-18 (2005). See Alderman, 565 F.3d at 648 (Paez, J.,
dissenting); United States v. Patton, 451 F.3d 615, 632 (10th Cir. 2006)
(concluding that 18 U.S.C. § 931(a) fails Morrison). While it is true the
Tenth Circuit in Patton ultimately upheld the statute, that was largely
because of prior Tenth Circuit precedent interpreting Scarborough v.
United States, 431 U.S. 563 (1977), see Patton, 451 F.3d at 634, which
the Tenth Circuit strongly suggested was inconsistent with Lopez and
Morrison. Id. at 636.
1986              UNITED STATES v. ALDERMAN
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 fed-
eral government [because] virtually all criminal actions in the
United States involve the use of some object that has passed
through interstate commerce.”).

   Such a view greatly empowers Congress to displace state
legislatures with the full weight of the federal government, a
result as undesirable as it is unconstitutional in the circum-
stances of this case. A federal statute may conflict with a
state’s policy judgment regarding the harshness of federal
criminal punishments, Jones, 529 U.S. at 859 (Stevens, J.,
concurring) (noting improper displacement of state choices
with severe federal punishments), or discourage experimenta-
tion with different state policy approaches, see Lopez, 514
U.S. at 583 (Kennedy, J., concurring) (suggesting that the gun
statute improperly “foreclose[d] the States from experiment-
ing”), or even intrude upon a traditional area of state concern,
Lopez, 514 U.S. at 561; Morrison, 529 U.S. at 615-17. Such
displacement has occurred here. At least thirty-one states reg-
ulated body armor, with a variety of approaches, until Con-
gress overrode their choices. Patton, 451 F.3d at 631 & n.7
(collecting state laws).

                              III

   The majority opinion here failed to perceive the constitu-
tional limits on Congress’s power recognized by the Court in
Lopez, Morrison, Jones, and Raich. In so doing, it “convert[s]
congressional authority under the Commerce Clause to a gen-
eral police power of the sort retained by the States,” Lopez,
514 U.S. at 567, contrary to Supreme Court doctrine. It is
unfortunate that an en banc court will not have the opportu-
                  UNITED STATES v. ALDERMAN                 1987
nity to correct the error in this case. For these reasons, I must
respectfully dissent from the order denying rehearing en banc.
