Crime & Federalism

The great Judge Friendly once asked: "What is chicken?"  Frigaliment Imports case.  Almost a half-century later, we need to ask: What is an article of commerce?  More specifically: When does an article of commerce cease to be an article of commerce.  Why does this matter?

After Lopez, Congress reenacted the Guns Free School Zone Act with one added proviso: the gun must have moved through interstate commerce.  Indeed, all of 18 U.S.C. Sec. 922 are predicated on the theory that the firearm once moved through interstate commerce.

But shouldn't a firearm eventually lose its status as an article of commerce?  Isn't it silly to say that a firearm you've owned (and that has never left your residence) for twenty years remains an article of commerce?  It's not answer that a firearm could be sold once again.  To adopt this position would be to adopt the position that anything that can be sold is an article of commerce, and therefore, can be regulated by Congress.

In a recent Hobbs Act case, the conviction was predicated on the extortion of two pieces of art work that had travelled from Russia.  But the art work was already in America, where it was to be sold intrastate.  It's one thing if the goods had been stolen once they were in the stream of commerce.  But once downstream, don't they stop being commerce?