Since United States v. Morrison, there have been many federalism defeats, and only four federalism victories. Should the Court reverse the Ninth Circuit's decision in Raich, McCoy (CA9), Stewart (CA9), and Maxwell (CA11) will certainly be reversed. Indeed, as Marty Lederman notes here, the government has already petitioned for cert. in Stewart.
Anyhow, a summary of federalism victories is set forth below.
In United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003), a 2-1 panel wrote:
[This child pornography law is] unconstitutional as applied to simple intrastate possession of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material.
In McCoy a mother was convicted under federal child pornography laws for taking pictures of herself and her daughter with their genital areas exposed. The government could not prove that mom took these pictures for commercial gain; and the pictures never crossed state lines.
In United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003) (Kozinski, J.), a 2-1 panel held that Congress lacked authority under the Commerce Clause to criminalize possession of a home-made machine gun. In Stewart the defendant rigged his semi-automatic gun to fire automatically. The Ninth Circuit reversed his conviction, even though some of the parts used to modify his gun moved through interstate commerce. Wrote Judge Kozinski:
Indeed, some of the machinegun parts did move in interstate commerce. At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless. As Lopez reminds us, Congress’s power has limits, and we must be mindful of those limits so as not to obliterate the distinction between what is national and what is local and create a completely centralized government. Id. at 1135 (quotation marks omitted)
In Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted, 124 S.Ct. 2909, 72 (U.S. Jun 28, 2004), a 2-1 panel held that the Controlled Substance Act, to the extent that it criminalizes the use of marijuana not purchased nor obtained interstate, was an unconstitutional exercise of power under the Commerce Clause. Wrote Judge Pregerson:
The cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity. Lacking sale, exchange or distribution, the activity does not possess the essential elements of commerce. Id. at 1229-30.
Finally, we have United States v. Maxwell, 2004 WL 2191801 (11th Cir., Oct. 1, 2004) - digested here - where a unanimous three-judge panel held that Congress may not criminalize the intrastate possession of child pornography, even if the child pornography is kept on items that moved through interstate commerce. In Maxwell, the defendant kept his child pornography on diskettes that moved through interstate commerce. However, the prosecution could not establish that the pictures on the disks were taken outside of Maxwell's home state of Florida. Thus, the law was unconstitutional as applied to him.