200 F.3d 868 (D.C. Cir. 2000)
Navegar, Incorporated, d/b/a Intratec, and Penn Arms, Incorporated, Appellantsv.United States of America, Appellee
No. 98-5491
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed January 25, 2000

Before:  Edwards, Chief Judge, Silberman, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel,  and Garland, Circuit Judges.*
O R D E R
PER CURIAM.


1
Appellants' petition for rehearing en banc and the response  thereto have been circulated to the full court. The taking of  a vote was requested.  Thereafter, a majority of the judges of  the court in regular active service did not vote in favor of the  petition.  Upon consideration of the foregoing, it is


2
ORDERED by the Court that appellants' petition is denied.


3
Sentelle, Circuit Judge, dissenting from the denial of  petition for rehearing en banc:


4
By denying en banc review of  the panel opinion, Navegar, Inc. v. United States, 192 F.3d  1050 (D.C. Cir. 1999), this court perpetuates an approach to  Commerce Clause jurisprudence hopelessly out of date under  contemporary Supreme Court interpretations of the Constitution.


5
In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court carefully delineated limitations on the authority  of the federal government to act under that enumerated  power.  In his opinion for the five-Justice majority, Chief  Justice Rehnquist identified "three broad categories of activity" within which the federal government may legitimately  regulate under the commerce power.  514 U.S. at 558.  These  three categories are:  (1) "the use of the channels of interstate  commerce";  (2) the regulation and protection of "the instrumentalities of interstate commerce, or persons or things in  interstate commerce, even though the threat may come only  from intrastate activities";  and (3) "activities having a substantial relation to interstate commerce."  Id. at 558-59 (citations omitted).  Because the claimed justification for the  statute before it, the Gun-Free School Zones Act, sheltered  under the umbrella of the third area of activity, the Chief  Justice wrote a further explication of "those activities that  substantially affect interstate commerce."  Id. at 559 (citing  Maryland v. Wirtz, 392 U.S. 183, 196 n.27 (1968)).  Briefly,  under Lopez, to be the subject of constitutionally valid regulation under the Commerce Clause, an activity not falling  within categories 1 or 2 must substantially affect interstate  commerce, not merely affect it.  Id. at 559.  To determine  whether an activity substantially affects commerce, we undertake another tripartite examination, asking whether:


6
--the regulation controls a commercial activity, or an activity necessary to the regulation of some commercial activity;


7
--the statute includes a jurisdictional nexus requirement to ensure that each regulated instance of the activity affects interstate commerce;  and


8
--the rationale offered to support the constitutionality of the statute (i.e., statutory findings, legislative history, arguments of counsel, or a reviewing court's own attribution of purposes to the statute being challenged) has a logical stopping point so that the rationale is not so broad as to regulate on a similar basis all human endeavors, especially those traditionally regulated by the states.


9
National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041,  1064 (D.C. Cir. 1997) (Sentelle, J., dissenting) (analyzing  Lopez, 514 U.S. at 559-65, and citing United States v. Wall,  92 F.3d 1444, 1455-56 (6th Cir. 1996) (Boggs, J., dissenting in  part)).


10
In Lopez, the Court considered the constitutionality of a  statute in which Congress had 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  school zone."  18 U.S.C.  922(q)(1)(A) (Supp. V 1993).  The  only justification the United States could offer among the  enumerated powers for the constitutionality of the statute  was the Commerce Clause.  Unsurprisingly, the Court held  that the Gun-Free School Zones Act fit none of those three  subcategories.  First, it did not regulate or control a commercial activity or an activity necessary to the regulation of a  commercial activity.  The Chief Justice acknowledged that  Wickard v. Filburn, 317 U.S. 111 (1942), relied on by the  panel in Navegar, 192 F.3d at 1056-57, had upheld federal  regulation of home consumption of wheat, where it affected  interstate commerce, but described that decision as "perhaps  the most far reaching example of Commerce Clause authority  over intrastate activity."  Lopez, 514 U.S. at 560.  The Lopez Court further recognized that at least the statute before theCourt in Wickard involved the regulation of the wheat market--interstate commerce.  Id. at 560-61.  In the view of the  Congress, and subsequently the Court of that time, the  regulation of consumable wheat, wherever grown, was necessary to control the volume of wheat on that interstate market. The Gun-Free School Zones Act neither controlled nor purported to affect any market at all.


11
Second, the statute included no jurisdictional nexus.  Under this element of examination, the Chief Justice compared  United States v. Bass, 404 U.S. 336 (1971), in which the Court had upheld the statute making it a crime for a felon "to  receive, possess, or transport in commerce or affecting commerce ... any firearm."  Lopez, 514 U.S. at 561-62 (quoting  Bass, 404 U.S. at 337 (brackets omitted)).  The Chief Justice  noted that in upholding that statute the Court had expressly  reserved the question of whether Congress could constitutionally regulate the "mere possession" of firearms without the  jurisdictional nexus.  Id. at 562 (quoting Bass, 404 U.S. at 339  n.4).  Even in Bass, where the statute had withstood constitutional scrutiny, the Court set aside the conviction before it  because the prosecution, while having proved that the defendant possessed a firearm, "failed 'to show the requisite nexus  with interstate commerce.' "  Id. (quoting Bass, 404 U.S. at  347).  The statute the Court struck down in Lopez had no  such jurisdictional requirement.  Congress had invaded the  state-owned territory of mere possession with no connection  to interstate commerce.


12
Finally, the Lopez Court considered the implications of the  government's argument that guns around schoolhouses might  result in violent crime, and violent crime could be expected to  affect the functioning of the national economy either through  the mechanism of insurance or by reducing the willingness of  individuals to travel to other parts of the country which they  might consider unsafe.  The Court highlighted the government's admission that, under this "costs of crime" reasoning,  the federal government could regulate "not only all violent  crime, but all activities that might lead to violent crime,  regardless of how tenuously they relate to interstate commerce."  Id. at 564.  Indeed, the federal government "could  regulate any activity that [Congress] found was related to the  economic productivity of individual citizens:  family law (including marriage, divorce, and child custody), for example."  Id.  In other words, under the government's theory of constitutionality for the Gun-Free School Zones Act, the words of  the Commerce Clause were limitless, and Congress had the  power to regulate anything at all.  There was no stopping point.  The statute was unconstitutional.


13
As appellants argue in petitioning for en banc review, the  Navegar panel's decision in the present case is inconsistent with the Supreme Court's decision in Lopez.  The Navegar  panel had before it an appeal from a judgment denying a  declaratory judgment declaring unconstitutional section  110102 of the Violent Crime Control and Law Enforcement  Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 1996-98  (1994) (codified at 18 U.S.C.  921(a)(30), 922(v) (1994)).The disputed section makes it unlawful to "manufacture,  transfer, or possess a semiautomatic assault weapon."  18  U.S.C.  922(v).  In upholding that judgment and the constitutionality of the statute, the panel relied first on the 1942  jurisprudence of Wickard v. Filburn, and then on our decision in Terry v. Reno, 101 F.3d 1412, 1417 (D.C. Cir. 1996),  which upheld the constitutionality of a statute protecting an  area of commerce, specifically health clinics.  See Navegar,  192 F.3d at 1056-57.  Reno is not on point, but even if it  were, the Supreme Court and not our precedent controls. In so far as the Supreme Court's decision in Wickard retains  any vitality after Lopez, it cannot control the ruling on the  disputed statute.  Despite the panel's pains to align this  statute with those in Reno and Wickard, ultimately the statuteis indistinguishable from that before the Court in  Lopez.  The panel laboriously attempts to fit this gun act into  category 3 of the permissible areas of regulation under Lopez.  To do so, it incorrectly paraphrases the Lopez holding.  The  Lopez Court did not, as the panel declares, "conclude[ ] that  Congress had no rational basis for finding that gun possession  in a school zone had a substantial effect on interstate commerce and declare[ ] the statute unconstitutional."  Navegar,  192 F.3d at 1055 (citing Lopez, 514 U.S. at 567).  Rather, the  Court made an independent determination of the effect of the  statute on interstate commerce, "ultimately a judicial rather  than a legislative question," Lopez, 514 U.S. at 557 n.2.  The  Court concluded that gun possession did not have a substantial effect and declared the statute unconstitutional.  As one  of our sister circuits recognized, Lopez "elevated to a majority  opinion statements from previous concurring opinions that  'simply because Congress may conclude that a particular  activity substantially affects interstate commerce does not  necessarily make it so.' "  Brzonkala v. Virginia Polytechnic Inst. and State Univ., 169 F.3d 820, 855 (4th Cir. 1999) (en  banc) (quoting Lopez, 514 U.S. at 557 n.2) (brackets and other  citations omitted), cert. granted sub nom. Brzonkala v. Morrison, 120 S. Ct. 11 (1999).


14
This statute, like the parallel firearms act stricken as  unconstitutional in Lopez, regulates, under purported authority drawn from Congress's power to regulate interstate commerce, activity (or inactivity) that is neither commerce nor  interstate.  The Supreme Court held the Gun-Free School  Zones Act unconstitutional in Lopez.  Our panel decision  upholding this statute as constitutional cannot be reconciled  with Lopez, and we should review it en banc.



Notes:


*
 Circuit Judge Sentelle would grant the petition for rehearing  en banc.  His opinion is attached.


