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9th Circuit Ruling Says Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority
Keep and Bear Arms ^ | 14 November 2003 | staff

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 one’s 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 transferred—and there is none here—its 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 criminals—an admirable goal, but not a commercial one." . . .

"This case fails Morrison’s 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 where—as here—such 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.


TOPICS: Constitution/Conservatism; Crime/Corruption; US: California
KEYWORDS: 9th; bang; banglist; circuit; court
Very interesting - at least until the en banc court gets to it.
1 posted on 11/14/2003 12:41:01 PM PST by 45Auto
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To: *bang_list
BANG
2 posted on 11/14/2003 12:42:57 PM PST by phasma proeliator (it's better to die with honor than to live without it.)
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To: 45Auto
9th Circuit Ruling Says Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority

I almost **** a brick just reading the headline...

3 posted on 11/14/2003 12:45:13 PM PST by MegaSilver
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To: 45Auto
Surprised to read this out of the 9th is an understatement. However, I have to agree that the en banc panel is unlikely to support it.
4 posted on 11/14/2003 12:46:43 PM PST by zx2dragon (I could never again be an angel... Innocence, once lost, can never be regained.)
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To: 45Auto
He was convicted of being a felon in possession of a firearm and of possessing several unregistered machineguns -- homemade machineguns.

Did he machine all the parts or just convert another weapon? "Homemade" makes it sound like he built it from scratch.

5 posted on 11/14/2003 12:46:57 PM PST by DeFault User
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To: 45Auto
Isn't this the "9th circus" that has handed down so many crazy liberal rulings?

Carolyn

6 posted on 11/14/2003 12:47:03 PM PST by CDHart
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To: 45Auto
Buda-Buda-Buda Ping
7 posted on 11/14/2003 12:48:42 PM PST by muleskinner
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To: 45Auto
Kozinski tried to distinguish Wickard, but you really can't. That case is so broad that it basically covers everything. The Supremes ought to ditch it.
8 posted on 11/14/2003 12:49:14 PM PST by XJarhead
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To: 45Auto
In my opinion, the Congress has greatly over-stepped its authority in its overly broad interpretation of what it can regulate under the Commerce Clause. Congress has taken that to ridiculous levels, such that they can overrule anything in the Bill of Rights based on the Commerce Clause. That is tantamount to treason in my book.

For example, if one lived in Wyoming and one purchased a fine Freedom Arms Revolver and then the gun was involved in a criminal act, it could become a federal issue because the federal DOJ could argue that the Commerce Clause applies since the paper used by Freedom Arms in their invoicing system came from a pulp mill in Oregon and had to be sold across state lines and thus, the entire operation falls under the Commerce Clause. That's how crazy the commerce clause has become.

9 posted on 11/14/2003 12:53:09 PM PST by 45Auto (Big holes are (almost) always better.)
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To: DeFault User
Without seeing the weapons it's hard to say. I've seen several 'deactivated' MGs that with a bit of machine work could be brought back to full auto. Many of the older machine-pistols such as the C-96 Mauser or Lugers have the capability of being converted to such. I've seen a 1917 artillary luger with the 'trommel magazine' of 32 rounds fire off the entire mag in about 15 seconds after inserting a sear that allowed for full auto functioning.
10 posted on 11/14/2003 12:55:22 PM PST by Lee Heggy
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To: DeFault User
I need to add that I've only 'seen'(can't seem to remember where exactly) and heard of these these things...ahem. The tendancy of such small handguns under full auto to walk up the wall would make them very innacurate and it would also be very hard on the mechanisms and barrels, ruining the gun after only a few such uses....
11 posted on 11/14/2003 1:03:31 PM PST by Lee Heggy
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To: 45Auto
It's about time someone in the courts got their head out of their posterior. Even if this gets shot down en banc, it still sets up a higher challenge.

Groovy... A business opportunity!

12 posted on 11/14/2003 1:10:20 PM PST by Dead Corpse (For an Evil Super Genius, you aren't too bright are you?)
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To: 45Auto; billbears; 4ConservativeJustices
The federal government has been abusing the commerce clause for decades, to the detriment of individual liberties from sea to shining sea.

FWIW the commerce clause is more proof the Constitution is a myth, a relic, a phantom; thus, any talk about this or that being constitutional or unconstitutional is nothing but smoke'n'mirrors, or bovine manure to feed the masses...

13 posted on 11/14/2003 1:13:09 PM PST by Ff--150 (Now unto Him Who is able to do)
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To: 45Auto
There's a limit to commerce clause authority? There goes 3/4 of the government...
14 posted on 11/14/2003 1:14:57 PM PST by thoughtomator ("A republic, if you can keep it.")
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To: CDHart
Indeed, the 9th is overturned moe than 70% of the time, but this one at least makes it clear that they are READING THE LAW, NOT MAKING IT, for a change!
15 posted on 11/14/2003 1:18:14 PM PST by pageonetoo (In God I trust, not the g'umt! and certainly not the Dims!)
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To: 45Auto; Dan from Michigan; Travis McGee
Is this ruling for real or is this an urban myth that's just getting reprinted?

I ask because I was under the impression that the 9th Circuit was ruling on the Interstate Commerce Clause as not being applicable to a porno case, something much more in line with the 9th Circuit's ideology (as in: the 9th saying that the Federal government couldn't use the Interstate Commerce Clause to regulate porn...somehow getting urbanized into a myth that the ICC likewise wouldn't apply to federal firearms laws).

16 posted on 11/14/2003 1:20:44 PM PST by Southack (Media bias means that Castro won't be punished for Cuban war crimes against Black Angolans in Africa)
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To: Southack
The decision.
17 posted on 11/14/2003 1:24:15 PM PST by spunkets
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To: 45Auto
For example, if one lived in Wyoming and one purchased a fine Freedom Arms Revolver and then the gun was involved in a criminal act, it could become a federal issue because the federal DOJ could argue that the Commerce Clause applies since the paper used by Freedom Arms in their invoicing system came from a pulp mill in Oregon and had to be sold across state lines and thus, the entire operation falls under the Commerce Clause. That's how crazy the commerce clause has become.

The sort of "reasoning" that goes on every day with regard to the Constitution would have earned me a firm backhand from my father growing up.

Most of these twits would exceed their potential patroling a mall parking lot in a golf cart.

18 posted on 11/14/2003 1:26:25 PM PST by hopespringseternal
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To: spunkets
Thanks, I must have been thinking about US v McCoy that the 9th Circuit just ruled on.

Still, it's pretty amazing to see the 9th actually follow Constitutional law for their *reasoning* in any of their rulings. Makes one wonder just what they're up to...

19 posted on 11/14/2003 1:35:48 PM PST by Southack (Media bias means that Castro won't be punished for Cuban war crimes against Black Angolans in Africa)
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To: Southack
"9th actually follow Constitutional law for their *reasoning* in any of their rulings."

Well they got this 1/2 and 1/2.

"Makes one wonder just what they're up to...

I suspect some sort of hard drug. < /LOL > I'll bet they're thinking ahead to protecting drug use somehow under the guise of homemade, or homegrown.

20 posted on 11/14/2003 1:42:50 PM PST by spunkets
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To: Southack
Southack said: "Still, it's pretty amazing to see the 9th actually follow Constitutional law for their *reasoning* in any of their rulings. "

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.

21 posted on 11/14/2003 1:59:41 PM PST by William Tell
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To: Southack
Alex Kozinski is a solid conservative. Maybe Traitor Reinhardt wasn't around for this one.
22 posted on 11/14/2003 2:04:14 PM PST by Dan from Michigan ("Today's music ain't got the same soul. I like that old time Rock N Roll" - Bob Seger)
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To: 45Auto
GO BOB!!! Was wondering how/what he was doing. WOO-HOO!!!
23 posted on 11/14/2003 2:10:58 PM PST by ctdonath2
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To: Dan from Michigan
"Alex Kozinski is a solid conservative."

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?

24 posted on 11/14/2003 2:50:21 PM PST by spunkets
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To: spunkets
I thought he dissented and said the 2nd WAS an individual right.
25 posted on 11/14/2003 2:51:14 PM PST by Dan from Michigan ("Today's music ain't got the same soul. I like that old time Rock N Roll" - Bob Seger)
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To: Southack
>>>>>>Makes one wonder just what they're up to...

Naw. Just trying to make the world safe for drug dealing machine gun toting pornograpers.

patent
26 posted on 11/14/2003 3:04:48 PM PST by patent (A baby is God's opinion that life should go on. Carl Sandburg)
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To: Dan from Michigan
All I can see is...

"Opinion by Judge Kozinski
Partial Concurrence and Partial Dissent by Judge Restani.

27 posted on 11/14/2003 3:05:19 PM PST by spunkets
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To: 45Auto
Hot digidy dog! Now I can dig up my old issues of FIREPOWER Magazine and my copy of WEAPONS OF THE AMERICAN UNDERGROUND!

LOCK and LOAD, ROCK and ROLL!

28 posted on 11/14/2003 3:52:56 PM PST by Ruy Dias de Bivar (Could you spare a dollar for a fellow American down on his luck?)
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To: Ruy Dias de Bivar
Depends on the state you are in. Most states have been illegally lobbied by the Feds to pass their own version of laws outlawing private possession of full auto guns.
29 posted on 11/14/2003 4:16:11 PM PST by marktwain
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To: marktwain
ownership is lawful here!

30 posted on 11/14/2003 4:31:05 PM PST by Ruy Dias de Bivar (Could you spare a dollar for a fellow American down on his luck?)
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To: 45Auto
By inference, home made pistols and silencers would not be regulated as well.

Anyone with access to car leaf spring steal, a home made propane forge, and machine tools could make their own firearms and not get in trouble with the law - as long as the firearm is not sold.
31 posted on 11/14/2003 6:41:12 PM PST by taxcontrol (People are entitled to their opinion - no matter how wrong it is.)
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To: spunkets
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?

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.

32 posted on 11/14/2003 6:46:30 PM PST by the bottle let me down (Still tilting at windmills)
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To: ctdonath2; Eaker; Squantos
The five years for the MGs might be vacated, but he'll still have to face the 20 years for trying to put a hit on the judge with a jailhouse snitch.
33 posted on 11/14/2003 8:39:28 PM PST by Travis McGee (----- www.EnemiesForeignAndDomestic.com -----)
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To: Ruy Dias de Bivar
i>ownership is lawful here!

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.
TANJ!

34 posted on 11/14/2003 8:42:41 PM PST by El Gato (Federal Judges can twist the Constitution into anything.. Or so they think.)
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To: Dan from Michigan
I thought he dissented and said the 2nd WAS an individual right.

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!

35 posted on 11/14/2003 8:45:44 PM PST by Cloud William
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To: Travis McGee
I would have rather seen this struck down based upon purely Second Amendment grounds, but with their prior decision, I suppose that would have been too much to ask for out of the 9th.
36 posted on 11/14/2003 8:55:20 PM PST by ConservativeLawyer
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To: taxcontrol
"By inference, home made pistols and silencers would not be regulated as well. "

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.

37 posted on 11/14/2003 9:20:25 PM PST by gatex
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To: 45Auto
I can't believe the 9th Circuit Ruling Says Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority.

I wonder how this is going to end?

38 posted on 11/14/2003 11:19:33 PM PST by 2nd_Amendment_Defender ("It is when people forget God that tyrants forge their chains." -- Patrick Henry)
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To: El Gato
Well damn! You just punctured my balloon!
39 posted on 11/15/2003 5:02:19 AM PST by Ruy Dias de Bivar (When someone burns a cross on your lawn the best firehose is an AK-47.)
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To: Travis McGee
Hit? Obviously there is much more to this case than I've gleaned (with effort). Any thorough summary of the situation availble?
40 posted on 11/17/2003 7:13:46 AM PST by ctdonath2
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To: ctdonath2; Squantos; Eaker; Joe Brower
One of the recent Stewart threads said that he had been convicted (? or charged? My memory is hazy) last summer of soliciting the murder of his judge, and he got (? or could get?) 20 years for that, regardless of what happens with the machine gun charges.
41 posted on 11/17/2003 9:44:24 AM PST by Travis McGee (----- www.EnemiesForeignAndDomestic.com -----)
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To: Travis McGee
"One of the recent Stewart threads said that he had been convicted (? or charged? My memory is hazy) last summer of soliciting the murder of his judge..."
I never heard that so I ran a Google check and found zip. Only thing I can figure is that somebody must be confusing the Stewart case with the Simkanin case in Texas.

--Boot Hill

42 posted on 11/19/2003 1:31:54 AM PST by Boot Hill
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To: tpaine; harpseal
This looked like an interesting thread that either of you might want to read and maybe comment on.

--Boot Hill

43 posted on 11/19/2003 1:36:10 AM PST by Boot Hill
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To: Boot Hill
I am really glad to see this decision. I always enjoy seeing the commerce clause limited to something that might someday approach a sane limitation on it. The specifics of the case seem to indicate there will be a market for components to build one's own machine gun machining those parts necessary for the final product. Of course we will have leechocrats debating like medevil theologians just where the limit of home manufacture ends and interstate commerce begins. (How many angels can dance on the head of a pin. What we do need is one SCOTUS ruling that the Second clear states an individual right. Such along with the commerce clause would do much to halt the Federal encroachment on individual liberties.

In short I applaud any ruling that limits the Commerce Clause authority or upholds teh individual right to keep and bear arms.

44 posted on 11/19/2003 9:42:24 AM PST by harpseal (stay well - Stay safe - Stay armed - Yorktown)
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To: Boot Hill
I certainly hope that my memory was faulty!
45 posted on 11/19/2003 4:48:02 PM PST by Travis McGee (----- www.EnemiesForeignAndDomestic.com -----)
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