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The New Crime and Federalism Jocks

In United States v. Peters (CA11) a three judge panel devoted 19-pages to a plain error analysis of the constitutionality of selling a firearm to a felon.  Why perform this analysis when reviewing for plain error?

I have an answer -- On the heels of U.S. v. Maxwell and U.S. v. Smith, the Eleventh Circuit wants us to know that they are the new federalism jocks.

Sure, the Fifth Circuit was the first court to hold that Congress exceeded its power under the Commerce Clause since 1937.  And post-Lopez it appeared that the Fifth Circuit would keep its title as the federalism jocks.  But in Hickman (the constitutionality of the Hobbs Act) and McFarland (Hobbs Act take 2), the Fifth Circuit twice failed to limit Congress' power to enact federal criminal laws.  Recently, in U.S. v. Bird, the Fifth Circuit declined to strike down a clearly unconstitutional law.

Then the Ninth Circuit moved in with three big crime and federalism cases - U.S. v. McCoy (intrastate possession of child p*rnography), U.S. v. Stewart (the home-made machine gun case), and Raich v. Ashcroft (intrastate possession of medicial marijuana).  But the Ninth Circuit has been silent for a while.

Thus, the Eleventh Circuit moved in.  In Maxwell they reversed a child p*rnography conviction.  In Smith they reversed another child p*rn conviction (on plain error review!).  And in Peters they told us, "We take federalism seriously," even when the advocates don't think the raise the issue below.

Let's hope that Raich - which the government will win - will be a narrow win for the government, so we can see if the Eleventh Circuit has its title taken away.