616
Breyer, J., dissenting
(speaking of "close and substantial relation" between activity and commerce, not of "substantial effect") (emphasis added); Gibbons, supra, at 194 (words of Commerce Clause do not "comprehend . . . commerce, which is completely internal . . . and which does not . . . affect other States"). And, as the majority also recognizes in quoting Justice Cardozo, the question of degree (how much effect) requires an estimate of the "size" of the effect that no verbal formulation can capture with precision. See ante, at 567. I use the word "significant" because the word "substantial" implies a somewhat narrower power than recent precedent suggests. See, e. g., Perez v. United States, 402 U. S. 146, 154 (1971); Daniel v. Paul, 395 U. S. 298, 308 (1969). But to speak of "substantial effect" rather than "significant effect" would make no difference in this case.
Second, in determining whether a local activity will likely have a significant effect upon interstate commerce, a court must consider, not the effect of an individual act (a single instance of gun possession), but rather the cumulative effect of all similar instances (i. e., the effect of all guns possessed in or near schools). See, e. g., Wickard, supra, at 127-128. As this Court put the matter almost 50 years ago:
"[I]t is enough that the individual activity when multiplied into a general practice . . . contains a threat to the interstate economy that requires preventative regulation." Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 236 (1948) (citations omitted).
Third, the Constitution requires us to judge the connection between a regulated activity and interstate commerce, not directly, but at one remove. Courts must give Congress a degree of leeway in determining the existence of a significant factual connection between the regulated activity and interstate commerce—both because the Constitution delegates the commerce power directly to Congress and because the
Page: Index Previous 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 NextLast modified: October 4, 2007