9th Circuit Ruling Says Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority

Keep and Bear Arms ^ | 14 November 2003 | staff

[William Tell]

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.

[Dan from Michigan]

Alex Kozinski is a solid conservative. Maybe Traitor Reinhardt wasn't around for this one.

[ctdonath2]

GO BOB!!! Was wondering how/what he was doing. WOO-HOO!!!

[spunkets]

"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?

[Dan from Michigan]

I thought he dissented and said the 2nd WAS an individual right.

[patent]

>>>>>>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

[spunkets]

All I can see is...

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

[Ruy Dias de Bivar]

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!

[marktwain]

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.

[Ruy Dias de Bivar]

ownership is lawful here!

[taxcontrol]

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.

[the bottle let me down]

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.

[Travis McGee]

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.

[El Gato]

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!

[Cloud William]

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!

[ConservativeLawyer]

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.

[gatex]

"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.

[2nd_Amendment_Defender]

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?

[Ruy Dias de Bivar]

Well damn! You just punctured my balloon!

[ctdonath2]

Hit? Obviously there is much more to this case than I've gleaned (with effort). Any thorough summary of the situation availble?