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