Machine Guns--Just Build Your Own

The Volokh Conspiracy ^ | Eugene Volokh

[the bottle let me down]

Huge Commerce Clause decision: The Ninth Circuit has just held that Congress lacks the power to ban possession of homemade machineguns -- the Commerce Clause, the court held (per Judge Kozinski, joined by Judge T.G. Nelson; Judge Restani of the Court of International Trade, sitting by designation, dissenting), doesn't go that far.

The court specifically did not rely on the Second Amendment, because of binding Ninth Circuit precedent holding that the Second Amendment doesn't secure an individual right. So states may still ban such possession, and Congress can ban the sale of machineguns (even purely intrastate sale) -- but Congress may not ban private possession, at least of the homemade devices.

This fits with the Ninth Circuit's McCoy decision this year (written by Judge Reinhardt), which held that Congress may not ban the mere possession of homemade noncommercial child pornography. Unless the Ninth circuit grants rehearing en banc in these cases -- I'm not sure whether there's still time to do that as to McCoy, since I'm not sure whether the panel has denied a motion for rehearing by the panel itself -- I predict the Supreme Court will agree to hear these cases (or possibly agree to hear one and hold the other pending a decision in the first). The Ninth Circuit acknowledges that its decision create as split with three other circuits; that, and the holding that a federal statute is unconstitutional as applied, are both reasons the Court may grant certiorari.

UPDATE: Cute detail -- Stewart discusses and distinguishes an earlier leading Ninth Circuit precedent on the matter, called . . . United States v. Rambo.

[the bottle let me down]

Actually, check your state and local laws first (as noted in the article).

Here is a link to the actual opinion

[Radix]

Alex,

I'd like to buy a bottle!

[the bottle let me down]

Why? Sometimes it let's her mem'ry come around.

[Zathras]

Don't post any discriptions or links.
This is a great way to get a visit from BATF or worse yet get Jim in trouble.

[the bottle let me down]

I don't know any descriptions or links, so that's not a problem. I'm mostly interested in this because it represents a limit, however small, on the power of the Federal government.

Besides, I'd bet that many states already ban or regulate possession of machine guns. You can bet that California will do so pronto, if it hasn't already.

In any event, if I were interested, I'd certainly do a lot of research on that question first.

[sourcery]

The Ninth Circuit ruled thus? And I hadn't heard of the McCoy decision. Missed that one somehow. Both rulings are correct--except, of course, that the commerce clause doesn't give Congress the power to criminalize trade among the several States.

"The most persuasive evidence of original meaning--statements made during the drafting and ratification of the Constitution as well as dictionary definitions and The Federalist Papers--strongly supports Justice Thomas's and the Progressive Era Supreme Court's narrow interpretation of Congress's power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."214 "Commerce" means the trade or exchange of goods (including the means of transporting them); "among the several States" means between persons of one state and another; and the term "To regulate" means "to make regular"--that is, to specify how an activity may be transacted--when applied to domestic commerce, but also includes the power to make "prohibitory regulations" when applied to foreign trade. In sum, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade." -- The Original Meaning of the Commerce Clause

[joesnuffy]

The nature of our court system was well demonstrated in Alabama today...
A Tyranical court claims that all men must obey IT...Even when IT
Wont obey the Constitution of the United States

[the bottle let me down]

Both rulings are correct--except, of course, that the commerce clause doesn't give Congress the power to criminalize trade among the several States.

The article you quoted suggests that Congress can criminalize trade--how else is it going to enforce the "prohibitory regulations" Prof. Barnett claims are allowed?

[sourcery]

The article explains that the "prohibitory" powers only apply to foreign trade, and trade with the Indiam Tribes. Secondly, the power to "regulate" is not the power to criminalise. Regulation is the power to assess civil fines for infractions of the regulations. Reference: Original Understanding of the Commerce Clause

[neverdem]

BTTT

[Sender]

(from the decision text):

Second Amendment

[9] Finally, Stewart argues that the Second Amendment guarantees him the right to possess machineguns, as well as the right to possess firearms generally despite his former felony conviction—as charged in count one of Stewart’s indictment.

We have held that the Second Amendment “was not adopted in order to afford rights to individuals with respect to private gun ownership or possession.” Silveira v. Lockyer, 312 F.3d 1052, 1087 (9th Cir. 2002). Thus, there is no Second Amendment limitation on “legislation regulating or prohibiting the possession or use of firearms.” Id. Stewart’s Second Amendment argument must therefore fail.

We reverse Stewart’s conviction for machinegun possession under section 922(o) as an unlawful extension of Congress’s commerce power and affirm his conviction for possession of firearms by a felon.

So they find no problem with homemade machine guns under the interstate commerce clause, but yet find no problem with just banning guns at will because we have no rights. Real nice guys, the 9th. This is why we need to confirm more good judges ASAP.

[the bottle let me down]

So they find no problem with homemade machine guns under the interstate commerce clause, but yet find no problem with just banning guns at will because we have no rights. Real nice guys, the 9th. This is why we need to confirm more good judges ASAP.

I agree with you about the judges, but there really was nothing this panel could do--the Ninth Circuit had already decided that, in its view, the 2nd Amendment did not secure an individual right (only a right for the states to have a militia). This, of course, was inconsistent with the 5th Circuit, among others. Furthermore, the many defects in Silveira have been discussed extensively in this and other fora. Once the 9th circuit was out on that limb, however, this panel was bound to follow precedent.

[FreedomCalls]

This is really BAD. What this means is that Congress will be forced to ramrod through a correction to 922(o) which as it stands now (since 922(o) is unconstitutional in the 9th's area of jurisdiction) allows people to "transfer or possess" machine guns as long as they do not violate state law in doing so. When they quickly pass new legislation banning manufacture, transfer, or possession of automatic machine guns do you think they will also slip in a provision extending that to semi-automatic assault weapons as well? Hell yes they will. The AWB will not sunset -- it's just been given a new lease on life.

[Atlas Sneezed]

So they find no problem with homemade machine guns under the interstate commerce clause, but yet find no problem with just banning guns at will because we have no rights. Real nice guys, the 9th. This is why we need to confirm more good judges ASAP.

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All they're saying is that states can regulate things that the feds can't.

[Atlas Sneezed]

This is really BAD. What this means is that Congress will be forced to ramrod through a correction to 922(o) which as it stands now (since 922(o) is unconstitutional in the 9th's area of jurisdiction) allows people to "transfer or possess" machine guns as long as they do not violate state law in doing so. When they quickly pass new legislation banning manufacture, transfer, or possession of automatic machine guns do you think they will also slip in a provision extending that to semi-automatic assault weapons as well? Hell yes they will. The AWB will not sunset -- it's just been given a new lease on life.

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I'm unclear on what law COngress could pass that would do anything in light of this ruling. What kind of "correction" would they pass?

[oldfart]

Bump for further study.

[FreedomCalls]

I'm unclear on what law COngress could pass that would do anything in light of this ruling. What kind of "correction" would they pass?

-- Congress passed the Gun Free School Zones Act of 1990.
-- Gun Free School Zones Act of 1990 deemed unconstitutional under the commerce clause in 1993 by the 5th Circuit Court.
-- Congress passed the Gun Free School Act of 1994 (in 1994 of course) to skirt the commerce clause ruling by the 5th Circuit Court.
-- U.S. Supreme Court granted certiorari in 1994.
-- USSC affirmed the 5th Circuit ruling in 1995.
-- Gun Free School Act of 1994 still stands as 20 U.S.C. Chapter 70, Sec. 8921.

[Atlas Sneezed]

I'd bet that many states already ban or regulate possession of machine guns.

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Indeed. Even gun-friendly western states are likely to ban machine guns not registered with the BATF. While the legislative "conservatives" that passed such measured undoubtedly assumed that this simply bans guns that wouod be illegal under federal law, it now appears to go beyond federal restrictions.

Same for suppressors, if I recall.

[Atlas Sneezed]

I'm unclear on what law COngress could pass that would do anything in light of this ruling. What kind of "correction" would they pass?
...-- Gun Free School Act of 1994 still stands as 20 U.S.C. Chapter 70, Sec. 8921.

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I still don't see what actual legislation they might pass on machine guns. WHat would the legislation say or do?

[HoustonCurmudgeon]

What Ninth Circuit? Not the one I love to hate ......

DG, you have an opinion on this?