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.

[TLI]

ban machine guns not registered with the BATF.

The state laws generally do not make any such distinction, no need for them to start. In order to start they would have to create new laws that would be difficult to lobby for their passage. This MG is OK, that one is not and the feds say they are all OK to own...?... that would be a TOUGH sell.

[FreedomCalls]

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

Same as they did with the Gun Free School Act -- ask the states to pass laws banning possession of any machine gun manufactured since some arbitrary date under penalty of withholding of federal funds.

How did Congress get a national drinking age of 21 passed?

[Atlas Sneezed]

Same as they did with the Gun Free School Act -- ask the states to pass laws banning possession of any machine gun manufactured since some arbitrary date under penalty of withholding of federal funds.

How did Congress get a national drinking age of 21 passed?

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Thanks. That was the explanation I needed. However, since most states already prohibit, and gun issues are touchy these days for Dems, they might let it slide.

Then again, since they can't get real gun control passed (and are doing things like renewing bans on non-existent guns) this might be the type of thing that the Kennedys, Schumers, and Clintons might fight for, just to give the antis enough to keep their fundraising going.