Alfonso Lopez and Zakey Rahimi share much in common. They both lived in Texas. They both possessed a firearm in violation of federal law. They both moved to dismiss their indictment on the ground that the federal law was unconstitutional. The Fifth Circuit agreed to dismiss both indictments. Both of their cases were appealed to the Supreme Court. And Justice Thomas agreed with both of their claims. That's where the similarities stop.
In United States v. Lopez, Chief Justice Rehnquist "struck down" the Gun-Free School Zones Act, without considering whether it may be constitutional as applied to Mr. Lopez. But for Mr. Rahimi, the Supreme Court treated his motion to dismiss as a facial challenge, and only considered whether Section 922(g)(8) could be validly applied to him. How to explain this disparate treatment?
Let's start with the facts of Lopez. All know that the Court declared the federal statute unconstitutional because the mere possession of a gun in a school was not "economic activity," and thus lacked a sufficient nexus with interstate commerce. But what most people do not know is that someone paid Lopez $40 to give the gun to someone at the school. By any definition, that payment is an economic transaction that would clearly satisfy the Lopez test. (Indeed, Gonzales v. Raich was a good vehicle because money did not change hands.) Here is how the Solicitor General described the facts in the Lopez merits brief:
