Posted on 07/01/2006 7:19:16 AM PDT by LouAvul
SAN FRANCISCO (AP) - A recent Supreme Court ruling that Congress can ban homegrown marijuana for medical use in California led Friday to the reinstatement of an Arizona man's overturned conviction for having homemade machine guns.
Prosecutors in both cases invoked the Constitution's interstate commerce clause, despite the fact that the cases centered on items that were homemade, or homegrown, and didn't involve commerce or crossing state lines. The courts ruled, however, that the items still can affect interstate commerce and therefore can be regulated by federal law.
In the machine gun case, the 9th Circuit Court of Appeals on Friday reinstated the convictions of Robert Wilson Stewart, 67, of Mesa, Ariz. The three-judge panel reversed its own previous decision to overturn the convictions because he never tried to sell his weapons or transport them over state lines.
Federal agents raided Stewart's house in June 2000 and found five machine guns, which Stewart argued did not violate the congressionally mandated ban on certain assault weapons because they were homemade and not for sale. The appellate court initially agreed with Stewart and overturned his convictions in 2003, ruling the interstate commerce clause did not apply.
The three-judge panel, however, was ordered by the Supreme Court to reconsider its decision after the justices ruled in 2005 that the federal government could prosecute medical marijuana users and their suppliers even if their activity was confined to California.
In the marijuana case, brought by Oakland resident Angel Raich, the majority of Supreme Court justices ruled that the interstate commerce clause makes California's medical marijuana law illegal. The court said homegrown marijuana confined to the state still can affect the entire national market for the drug, allowing for federal regulation.
The same rationale was applied by the appeals court in the homemade machine gun case.
(Excerpt) Read more at modbee.com ...
The question has been posed many times, and no one has yet been able to find it. Nor have they been able to find any evidence in the writings of the Founders that describes any such use of the commerce power.
According to the court testimony, the machineguns were “based on a. . . Sten gun design”.
That design seems to lend itself quite well to semi-auto operation.
It could. But it didn't.
Without doubt machine guns qualify as militia-type weapons.
However, in accordance with U.S. vs Decker, 446 F.2d 164 (8th Cir. 1971), the court held that the defendent could "present...evidence indicating a conflict" between the statute at issue and the Second Ammendment. Since he failed to do so, the Court declined to hold that the record-keeping requirements of the Gun Control Act of 1968 violated the Second Ammendment. By extension, it could be argued that compliance with National Firearms Act of 1934 likewise infringed upon Second Ammendment rights. Stewart did neither.
In U.S. vs Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 345 U.S> 926 (1978), the court recognized the requirement of Miller that the defendent show that the firearm in quest have a "connection with teh militia," without any explanation for its conclusion the court said the mere fact that the defendent was a Kansas miiltia member would not establish the connection. Despite Miller defining the composisiont of the militia, it saw no relevence in the status of the defendant with respect to the militia, but instead focused upon the firearm itself, this conclusion is not without basis.
In U.S. vs Swinton, 521 F.2d 1255 (10th Cir. 1975) the context of interpreting the meaning of the phrase "engaging in the business of dealing in firearms" (18 U.S.C. 922(a)(1), in dicta, the court noted "there is no absolute consitutional right of an individual to possess a firearm." Clearly, therefore, the court recognized that the right is an individual one, albeit not an "absolute" one. Furthermore, the whole issue of firearms dealing opens the door to the commerce clause (however insiduosly).
In U.S. v Johnson, 497 F.2d 548 (4th Cir. 1974) - one of three appeals cases that references the term "collective right" the opinion can be condensed to one sentance, in that the Second Ammendment "only confers a collective right of keeping and bearing arms which must bear a reasonable relationship to the preservation and efficiency of a well-regulated militia. As authority for this statement, the court cites Miller and COdy v U.S., supra. YET, as in Lewis, supra, made clear, Miller held that it is the fireaarm itself, not the act of "keeping and bearing" which must have a "resaonable relationship" etc. et ali. The court, however, recognized in this ruling that Miller required evidence of the militia nexus. Moreover, the particular provision at issue in Johnson concerned the interstate transportation of a firearm by "bad persons" (which de facto were excluded from the militia).
In U.S. vs Johnson, Jr. 441 F.2d 1134 (5th Cir 1971) the court acted like the French in the castle when Arthur appealed for their help in Pursuit of the Holy Grail by Monty Python. They quoted Miller concerning the evidentiary requirement showing a militia nexus and consented to rejection, without even the briefest of analysis concerning NFA 1934. They farted in the lawyers general direction, and made all sorts of deragatory accusations concerning the lawyers fathers, etc. in that the defendant failed to put on the evidence, as required by Miller, that the firearm at issue had militia use (the judges, I'm absolutely certain, went home feeling pretty smug with themselves and had a very good romp in the hay).
In Stevens v. U.S., 440 F.2d 144 (6th CIr 1971), a one sentance ruling concluded the Second Ammendment applies only to the right of the State to maintain a militia and not to the individual's right to bear arms..." The court cited Miller as authority, undertaking no analysis of Miller, nor the history of the ratification of the Second Ammendment and then went home (yukking it up amongst themselves). However, the case involved possession of firearms by "bad persons", and so the court really wasn't all that interested to break a sweat on the matter.
Etc. etc. etc. yada yada yada yada. It sounds like wiener head had some doofus lawywers; they argued the entirely wrong thing. All that notwithstanding, Stewart really screwed the pooch in this case. First off he got convicted of a felony firearms violation for not complying with National Firearms Act 1934 & 1986 (thereby outright excluding himself from Second Ammendment rights), and secondly, felt it was necessary to put a hit out on the judge presiding the case. He won't be needing any firearms were he's at.
It wasn't using the case as precedent.
Irrelevant. It's how you used it that is relevant. In your 153 post you referenced City of New York v. Miln in support of your argument. Unfortunate for you in Edwards v. California the Court reversed Miln in 1941.
Are you pulling a Dan Rather: The supporting memo/document (Miln case) is fake (invalid) but the argument is correct.
It appears that he did indeed assemble a machine gun. The damage to one of his kits was done to provide the evidence that he was manufacturing "machine gun kits" in order to obtain the warrant that resulted in the discovery of the machine gun in question. Apparently the original plan was to charge him for making the kits.
From reading his posts, I think what he is saying is that we do not live in a republic, but a democracy (mob rule), and that we should somehow depend on the very people that illegaly and criminally converted our country from a republic to a democracy to reverse that trend.
There is no doubt whatsoever that paulsen is a devotee of majority rule.
He spouts various aspects of what amounts to 'communitarian' philosophy at the drop of a hat; here's a fairly recent one:
>>>> "-- We, as a society, decide which rights we will protect --- We choose not to protect your right to do drugs. If and when a majority of the people decide that we should, then we will. Given that we're a self-governing nation, there's nothing to stop the majority from deciding this. --" paulsen <<<<<
Sounds like really bad advice and I think he is giving that advice because he knows it will not work, since he obviously prefers mob rule to a republic.
Yep, it's his agenda here. Weird fella, but very amusing. -- Perhaps he's kept around as a democratic foil.
It looks like it's asleep,
but we know that it won't keep,
'cause it's Summer,
and we're runnin' outta ice.
Did you graduate from law school?
We had joy, we had fun,
We had times before the UN,
But unlike our dear dad,
No freedom, like we had.
The case wasn't cited as support. The case contained a certain phrase the Cruikshank court wished to use.
Now, I read that in order to obtain the warrant they asked him to mount a scope on an AR-15 converted to full auto. When he started working on it, they got him for repairing a machine gun.
The only "kits" I'm aware of were the .50 cal kits.
Close. Anything that, when aggregated across the nation, could substantially affect the interstate commerce that Congress is constitutionally regulating is therefore subject to federal regulation.
Without the power to do that, individuals or states could undermine and subvert Congress' ability to regulate.
Heh. Well, I just kinda stumbled into this thread.
May I remind you that it was yet another in a long line of horrid Canadian musical imports (Rush excepted).
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