Justices Thomas & Scalia Dissent From Body Armor Ruling

A federal law banning the possession of body armor by felons was effectively upheld by the Supreme Court Monday over the strong objections of two justices.

Monday's decision means the court will not hear the case even though Justices Clarence Thomas and Antonin Scalia thought the matter deserved additional review by the high court. The two justices argued that Congress probably exceeded its authority in passing the measure which President George W. Bush signed into law in 2002.

The law bans felons from having body armor including bulletproof vests "as personal protective body covering intended to protect against gunfire." The statute's language is tied to the Constitution's Commerce Clause that regulates business conducted between states.

The James Guelff and Chris McCurley Body Armor act is named for two police officers who were killed by heavily armored assailants. The law bearing their names was passed unanimously by the Senate and with only three dissenting votes in the House.

At the time, Sen. Dianne Feinstein, D-Calif., said, "[i]t is unconscionable that current laws permit felons to obtain and wear body armor without restriction, when so many of our police lack comparable protection."

But critics of the law claim it is unnecessary for the federal government to pass a law in an area that is normally handled by the states. "The Supreme Court has told us with increasing fervor that there are limits to the power of Congress to federalize regulation of personal conduct," wrote Judge Diarmuid O'Scannlain last year. He was joined by three Ninth Circuit U.S. Court of Appeals colleagues who felt the case demanded further review by their court.

In dissenting from Monday's decision to hear the appeal, Thomas wrote that the court "tacitly accepts the nullification of our recent Commerce Clause jurisprudence." He went to express concern that the decision will fail to stop lawmakers from passing laws beyond its constitutional reach "and may allow Congress to exercise police powers that our Constitution reserves to the States."

The case started when police in Seattle suspected that Cedrick Alderman, a convicted felon, was dealing cocaine. Officers set up a drug bust; instead of cocaine they found some marijuana in Alderman's car and a bulletproof vest.

Washington had no body armor law of its own so local prosecutors turned the case over to federal authorities who secured an indictment under the federal act. Alderman pled guilty even though the government didn't allege that he had purchased the body armor in another state or crossed a state line with it. There was also no allegation that Alderman's use of the vest was for anything illegal.

The trial court judge refused to dismiss Alderman's case based on his claim that the federal law exceeds Congress's power under the Commerce Clause. Alderman was sentenced to 18 months behind bars. A divided Ninth Circuit upheld the conviction and then divided again on whether to hear the appeal one more time.

"The mischief this case creates is exceptionally troublesome," O'Scannlain wrote in his Ninth Circuit dissent. "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."

Acting Solicitor General Neal Katyal defended the lower court rulings saying the law falls squarely within Congress's authority to regulate interstate commerce. It eliminates "a dangerous and harmful segment of [the body armor market], namely purchases or other acquisitions by violent felons," Katyal wrote in asking the justices to stay out of the case which will be heard next year.

Officer Guelff was killed in a highly-publicized 1994 shootout in San Francisco. Captain McCurley was part of a sheriff's department drug task force in Alabama when he was gunned down in 1997. Sen. Jeff Sessions, R-Ala., joined Feinstein in sponsoring the legislation.

Following the San Francisco shooting and another infamous shootout near Los Angeles in 1997 that saw eleven officers and six civilians wounded, California passed its own body armor law. Last year the California Supreme Court said the law was too broad and struck it down. In response, lawmakers in Sacramento passed a new measure to keep a state law on the books.