Which crimes are federal and which are state? There is no principled answer to this question. Indeed, criminal conduct cannot be sorted into these two baskets. Today, much serious anti-social conduct violates both federal and state criminal laws; if so, the perpetrator can be prosecuted by the federal government or by the relevant state (by one of its district attorneys). When a single act or course of conduct violates both federal and state criminal laws, it is even possible for both governments to prosecute because, under the 'dual sovereignty' doctrine, the double jeopardy bar does not apply to separate prosecutions by separate sovereigns (a dubious but nevertheless controlling rationale).
In theory, Congressional power is limited to the powers expressly enumerated in Section I of the Constitution. Offenses like counterfeiting United States currency, illegally entering the United States, treason, and violation of constitutional and federal statutory rights are obviously within the federal government's core jurisdiction. But, utilizing its expansive powers under the commerce clause and other elastic provisions, Congress has passed federal criminal laws dealing with drug trafficking, firearms, kidnapping, racketeering, auto theft, fraud, and so forth. The Supreme Court has rarely found a federal criminal law unconstitutional, on the ground that Congress lacked authority to prohibit the conduct in question. However, in 1995 the Supreme Court did strike down a federal law making it a federal crime to carry a firearm in or near a school. Although the majority opinion acknowledged that Congress's power under the commerce clause is vast, the power to regulate interstate commerce is primarily concerned with unconstitutional economic activities. The Court held that the Gun-Free School Zones Act, 'by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms'. This decision will have little if any effect on the threat of guns in and near schools since the states have the authority and the responsibility to deal with this problem.
The reach of the federal criminal law has grown inexorably throughout the twentieth century. Today, federal criminal law can be used to prosecute many offenses that traditionally were regarded as a state responsibility. In practice, however, the significance of federal criminal law is greatly circumscribed by resource constraints. The FBI and other federal law enforcement agencies, as well as federal prosecutors, can investigate and prosecute only a small fraction of all the crimes that potentially fall within their purview.
One of the most powerful federal criminal laws is the Racketeer Influenced and Corrupt Organizations Act (RICO) which was passed in 1970. Among other things, RICO makes it a crime to participate in the affairs of an enterprise through a pattern of racketeering activity. An enterprise can be a legal entity like a corporation, union, or government agency, or a wholly illegal entity like a street gang or organized crime syndicate. A pattern of racketeering activity is defined as the commission of any two (of a long list of) federal crimes or their state counterparts within a 10-year period. RICO is punishable by a 20-year maximum sentence, or for life if the violation is based on a predicate offense for which the maximum penalty is life imprisonment. RICO has made it possible to bring to trial whole organized crime syndicates that, even under expansive federal conspiracy law, could not previously have been tried together. Since the mid-1970s, RICO has been used to convict the leadership of practically every cosa nostra crime family in the United States.
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|A. State Substantive|||||A well-regulated militia being necessary to the freedom of a free state, the right of the people to keep and bear arms shall not be abridged.|