628
Breyer, J., dissenting
"controlling force to nomenclature such as 'production' and 'indirect' and foreclose consideration of the actual effects of the activity in question upon interstate commerce." Wickard, supra, at 120.
See also United States v. Darby, 312 U. S. 100, 116-117 (1941) (overturning the Court's distinction between "production" and "commerce" in the child labor case, Hammer v. Dagen-hart, 247 U. S. 251, 271-272 (1918)); Swift & Co. v. United States, 196 U. S., at 398 (Holmes, J.) ("[C]ommerce among the States is not a technical legal conception, but a practical one, drawn from the course of business"). Moreover, the majority's test is not consistent with what the Court saw as the point of the cases that the majority now characterizes. Although the majority today attempts to categorize Perez, Mc-Clung, and Wickard as involving intrastate "economic activity," ante, at 559, the Courts that decided each of those cases did not focus upon the economic nature of the activity regulated. Rather, they focused upon whether that activity affected interstate or foreign commerce. In fact, the Wick-ard Court expressly held that Filburn's consumption of homegrown wheat, "though it may not be regarded as commerce," could nevertheless be regulated—"whatever its nature"—so long as "it exerts a substantial economic effect on interstate commerce." Wickard, supra, at 125 (emphasis added).
More importantly, if a distinction between commercial and noncommercial activities is to be made, this is not the case in which to make it. The majority clearly cannot intend such a distinction to focus narrowly on an act of gun possession standing by itself, for such a reading could not be reconciled with either the civil rights cases (McClung and Daniel) or Perez—in each of those cases the specific transaction (the race-based exclusion, the use of force) was not itself "commercial." And, if the majority instead means to distinguish generally among broad categories of activities, differentiating what is educational from what is commercial, then, as a
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