But doesn’t US v Lopez invalidate any use of Wickard v Flilburn when it comes to using the Commerce Clause to regulate state carry laws?
No, but I don’t see why a principle of considering the aggregate effects of a commercial activity would apply to carrying a firearm, which has no commercial effect.
There are other ways to use the commerce clause to regulate carrying of firearms.
Lopez held that a gun free school zone act didn’t regulate commercial activity.
They set out a test that basically allowed Congress to decide what activities have a substantial effect on interstate commerce as long as they show their work in the laws they pass.
The gun free school zone law in question in Lopez was rewritten to include a commerce clause hook that says that it only applies to firearms that have moved through the channels of interstate commerce. It’s still in place to this day. (18 USC 922(q))
The aggregate effects rule would apply to private sales. It would not be difficult for congress to establish that the sum total of all private sales of firearms has a substantial impact under the Lopez test.
In fact, although it’s not likely to be tested in court, HR 21 or whatever house bill that passed this month prohibiting private gun sales without a background check claims commerce clause as it’s jurisdictional basis which means there is probably a statement somewhere in the law citing to the aggregate effects of private gun sales on interstate commerce.
None of this is saying that any of those efforts would pass under the second amendment. Prior to 2008, they absolutely would. Between 2008 and 2020, it seems likely that the court would have left them alone and there’s no SCOTUS jurisprudence that defines any right to possess a firearm other than for a traditionally lawful purpose, within one’s own house.
