Skip to comments.9th Circuit Ruling Says Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority
Posted on 11/14/2003 12:40:55 PM PST by 45Auto
U.S. v Stewart has finally struck a blow for freedom. In a November 13 published opinion from the Ninth Circuit Court of Appeals, a majority of 2 to 1 says that the federal government's ban on homemade machineguns is abusive of the government's authority to regulate interstate commerce.
Ninth Circuit judge Alex Kozinski wrote the opinion. Judge Kozinski is the same judge who wrote a strong dissent in the Silveira v. Lockyer case, firmly supporting the true meaning of the Second Amendment.
The relevant and most interesting text from the ruling:
"We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) is a criminal statute that by its terms has nothing to do with commerce or any sort of economic enterprise, however broadly one might define those terms. Lopez, 514 U.S at 561. Unlike in Wickard v. Filburn, 317 U.S. 111 (1942), where growing wheat in ones backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferredand there is none hereits relationship to interstate commerce is highly attenuated.
"Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminalsan admirable goal, but not a commercial one." . . .
"This case fails Morrisons other requirements as well.
"As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings whereas heresuch findings would enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye. Lopez, 514 U.S. at 563."
While we aren't necessarily recommending that you run out to get the parts to start making your own machineguns, we certainly appreciate the honesty from Judge Kozinski -- and we do believe that he is right. The federal government has been abusing the commerce clause for decades, to the detriment of individual liberties from sea to shining sea.
On June 3, 2002 Bob Stewart was sentenced to five years in prison. He was convicted of being a felon in possession of a firearm and of possessing several unregistered machineguns -- homemade machineguns. The machinegun possession conviction was just overturned. Naturally, the federal government will appeal -- either to an en banc panel in the Ninth Circuit, or to the U.S. Supreme Court. After all, the gun banners can't stand to lose power -- no matter how wrong they truly are. Such is tyranny -- when power is more important than the plain and simple truth.
This was evidently the ruling of a three judge panel with two of the judges supporting this decision. This might be expected to happen whenever two of the few conservative judges get assigned to the same case.
It still makes for interesting cases because now a full panel of judges ( is it 11?) may re-hear the case. This full panel will have a harder time just ignoring the issues or failing to apply relevant legal tests.
He did agree though in this case with the rest of the 9th, in that the 2nd was not an individual right. Is he really conservative?
"Opinion by Judge Kozinski
Partial Concurrence and Partial Dissent by Judge Restani.
More libertarian than conservative, but solid nonetheless. One of the smartest guys you'd ever meet.
He dissented from the 9th Circuit's holding that the 2nd Amendment was not an individual right, but he is bound by that decision unless the Supremes or the whole 9th circuit change it. That's why he had to apply Silviera in this case.
Be carefull, and read the statute carefully. In many states ownership is lawful *only* if the federal tax stamp is obtained. I know that's the way it is in Texas. From the Texas Penal Code:
§ 46.05. Prohibited Weapons
(a) A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
(1) an explosive weapon;
(2) a machine gun;
(3) a short-barrel firearm;
(4) a firearm silencer;
(c) It is a defense to prosecution under this section that the actor's possession was pursuant to registration pursuant to the National Firearms Act, as amended.
So in Texas, you're still not able to own them without jumping through the Federal hoops.
A quick search of Arkansas code reveals a similar requirment for federal registration. It's in called the Subchapter 2. Uniform Machine Gun Act of Chapter 73 Weapons of Title 5 of The Arkansas Code. Just go here and search for "machine gun". You'll get the bad news. Possesion with "offesive or aggressive purpose", which is presumend w/o the registration, will get you minimum 10 years. The same as you'd get if you robbed a store at knife point.
Kozinski *did* dissent in the Silviera case - it even says so in the above article. His dissent was a scathing, blistering masterpiece, too. If you haven't had opportunity to read it, please do so. It's so refreshing to see a 9th Circuit judge whose brain is functional!
Home made pistols are currently legal. --- You can buy an 80 percent finished receiver (the part regulated if 100 percent finished ) without an FFL, finish it yourself and then buy the other finished parts to make a working pistol, approved by the BATF.
You can legally do the same with an AR-15.
I wonder how this is going to end?