Supreme Court agrees to delineate scope of federal criminal jurisdiction

WASHINGTON — WASHINGTON -- The Supreme Court agreed yesterday to spell out Congress' power to make federal crimes out of incidents that already are covered by state and local laws -- an issue that could affect the fate of the national crime bill being drafted.

The court said it would consider, next fall or winter, the constitutionality of a 1990 federal law that outlaws possession of guns near schools. A federal appeals court in September barred prosecutions under that law, saying it goes too far and intrudes on states' and cities' basic power over educational matters.


The appeals court, based in New Orleans, said that the law is so broad that it could make a federal crime out of carrying an unloaded shotgun in the gun rack of a pickup truck that was within 1,000 feet of a one-room country school, even if the school was closed for the summer.

Carrying guns near schools, the appeals court said, is already a crime in Texas, where the new case began.


The main part of the appeals court decision was based on a conclusion that Congress' power to control crime is limited to crime whose impact is in more than one state or to gun dealing across state borders. Congress, in considering the anti-crime bill, is moving to federalize a wide range of criminal activity.

In another part of the appeals court decision, it said the school-zone gun law raises constitutional questions under the Second Amendment's "right to keep and bear arms" clause.

The Justice Department appealed the ruling to the Supreme Court, complaining that the lower court's decision could impair Congress' authority to deal with crime, especially when it involves guns. Congress should not have to justify its anti-crime initiatives, the appeal contended.

The law at issue was part of the Crime Control Act of 1990; it went into effect in January 1991. Under the law, it is a federal crime to possess a firearm in a "school zone," defined as inside a school -- public or private -- on the school grounds, or within 1,000 feet.

The case the court will hear involves the federal prosecution of a high school senior in San Antonio, Alfonso Lopez Jr., who carried a .38-caliber pistol to school. School officials received an anonymous tip that he would have the gun with him when he came to school in March 1992. He was carrying the unloaded gun, along with five bullets.

He said that he was delivering the gun to another youth for use in a gang war and was to get $40 for his efforts. He was convicted of violating the 1990 federal law and sentenced to six months in prison.

The Supreme Court is expected to decide the case next year.

The Lopez case was one of five appeals the justices agreed to hear. The court also turned aside scores of appeals in other cases. Some of the results:


Federal workers' side jobs

In a case with a potentially wide impact on federal workers who have hobbies or who "moonlight" as writers or public speakers, the court said that it would settle the constitution ality of a 1989 law that bans all pay for such outside activity.

A federal appeals court here struck down that law, saying that it violates U.S. employees' free-speech rights and goes so far that it would outlaw even a speech, article or appearance that had nothing to do with the worker's public job.

The law was challenged successfully in lower courts by a variety of federal workers, including a Nuclear Regulatory Commission lawyer who writes on Russian history, a Postal Service mail handler who writes and speaks about the Quaker religion, and a Navy technician who writes about Civil War ironclad vessels.

The Justice Department, joined by Common Cause, urged the (( Supreme Court to reinstate the law and to allow an across-the-board ban on honorariums for federal workers' off-the-job writing and speaking. A similar ban on honorariums for members of Congress and federal judges -- and their staff members -- is not under challenge.

Another Justice Department appeal that the court will review is a test of federal prosecutors' right to use at a trial statements that the suspect made during unsuccessful plea bargaining sessions.


Cross-burning as protest

The Justice Department failed to get the court to hear its plea that prosecutors be allowed to use the federal arson law against cross-burnings done as racial protest.

A federal appeals court in St. Louis ruled in October that the arson law was passed by Congress to make it easier to prosecute arson itself and does not extend to the use of fire in cross-burnings. But in another part of its decision, the lower court said cross-burnings could be attacked under federal civil rights law.

Without comment, the Supreme Court left both parts of the decision undisturbed. Last month, the court left intact a different federal appeals court ruling, saying that two civil rights laws could be used against such acts of racial hatred.

Religious 'show and tell'

By denying review in a Michigan case, the court allowed public school officials to forbid elementary school pupils to make religious presentations for "show and tell."


A federal appeals court based in Cincinnati ruled last summer that school authorities have wide discretion to control what students say during school programs and may ban religious expression because of the Constitution's ban on church-government ties.

That case involved a second-grade girl in Livonia, Mich., whose teacher would not let her play during "show and tell" a videotape showing the child singing a religious song at a church service.

Adult entertainment

The court turned down, without comment, an appeal by the city of Los Angeles seeking to revive ordinances that sharply restrict the locations of adult bookstores, theaters, arcades and topless bars. A federal appeals court in San Francisco ruled that those local laws were invalid because they swept nearly all such adult entertainment out of the city. The Supreme Court has said that cities may put such businesses in a special zone but must leave some opportunities for them to operate.