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 ...
Once things get to the Courts, votes don't matter.
If Congress can pass a law as they have, that infringes upon one class of arms, then they can pass a law that infringes upon another class.
Then some bureaucrat comes up with a ridiculous test that includes things that are not guns as guns, or they come up with a test that changes the category of a gun.
For example, the M-1 garand, or M-1A springfield, or M-1 carbine all have hammers with hooks on the back. If the hooks are ground away, they will slam fire. If you can grind away the hooks with a dremel moto tool, did they make it into a fully automatic weapon? Does that make all M-1 garands fully automatic, by the ATF standards?
The M-1903 had a "petersen device: made for it that converted it into a semiautomatic that shot pistol rounds. Are all bolt actions fully automatic because a similar device could be made for them?
The tests, which are the substantive part of the law, are not written by Congress, but by a self serving "tax agency" that is more interested in controlling behavior than collected taxes. It is kind of amusing that the IRS makes money for the federal government. The Firearm part of the ATF loses money every year. Hell of a thing for a tax agency.
Bob Stewart advertised the recoil as "less than a twelve-gauge shotgun".
Whatever. The point is, you're implying that these kits are not safe for even a professional to modify and fire. Is that what you'll have me believe?
Where did you read that the ATF did not fire a live round and that if they did it would be fatal?
The BATF issues licences and collects fees. Bob Stewart was selling machine guns without a license. Among other things.
The BATF is not empowered by the constitution to "issue licenses and collect fees" on arms.
FindLaw: U.S. Constitution: Second Amendment
Address:http://caselaw.lp.findlaw.com/data/constitution/amendment02/
Bob Stewart was selling machine guns without a license. Among other things.
Silly comment; -- you are 'begging' the case at issue, among other things.
The ATF in court asserted that they had detonated a primer inside an empty case.
They also asserted that was all they had to do to demonstrate that that the thing they had so altered was a firearm.
When fired, the recoil of the Madii Griffin was sightly less than that of a 12 gauge, measured at the butt. The forces inside the rifle would be much larger than that for a .50BMG round. Stewart's rifle uses an efficient muzzle brake that uses burned gas to reduce the recoil. (same approach in general as the Armalite .50, the Ronnie Barrett's M-107 and the Windrunner .50BMG rifles.
As for being safe to modify and fire, they are (I have fired one) but not using a dremel tool as per ATF testimony. Rather you would have to use a milling machine or lathe to accurately machine the parts. You sure aren't going to do it in 30 minutes.
Is is starting to get through how the ATF changed meaning of .50BMG rifle so they could get the rifle to pass the silly test they invented?
So you concede that the parts can be machined to produce a working .50BMG? So, he is indeed breaking the law, but you believe that he should get off on a technicality -- ie., depending on the definition of "easily converted".
Now, you say this conversion is complicated and would take some time, thereby negating the "easily converted" criteria of the law. Well, first of all, the district court found that the affidavit, which contained Stewart’s own statements about how easily his kits could be converted, still supported a finding of probable cause. Let me guess, Stewart was lying.
Second, if this went to court, maybe the judge would have found that it wasn't so easy. But Stewart was never charged with selling these kits. This was never going to court. This is a non-issue!
Any large enough piece of steel can be machined to make anything made out of steel.
The parts he sells can be so machined.
Easily converted is not a technicality. It is the substance of the law.
Lets get this right. The fully automatic M-16 rifles have different size pins that hold the automatic capable sear. This is done so that 1. you can tell right away from the outside if it is automatic, and 2. so that automatic sears do not fit into the semiautomatic AR-15 and clones.
The ATF had a special AR-15 made up that was fully automatic, but had the semiautomatic pins. The very existance of that rifle was illegal. They took it to Stewart, and claimed, falsely, that it had a problem. From the outside it looked like a semiautomatic AR 15. When he accepted it, to work on it, they arrested him.
The ATF brought an illegal machine gun to Stewart. Then they charged him for posessing an illegal machinegun. That made him a felon.
Then they tested his kits, using the standard of "can it fire a primer?" to assert that he was a felon in posession of kits. Heck, a nail and a hammer can fire primers. Heck of a standard there.
Then the used that prosecution to go through locked storage in his home/office, that he had not sold. For what it is worth, it is a lot easier to make a fully automatic rifle than a semiautomatic rifle. These one of a kind prototypes would have been offered to the US government for sale (the largest purchaser of machineguns in the hemisphere) but needed to be developed to have a reliable and compliant semiautomatic capability. Until they were legal, they were not for sale, and were not in commerce of any kind.
This doesn't bother you? I guess you would have arrested John Browning too.
The reason I am so passionate on this issue, is because, but for the grace of G-d, there go I.
I have patented 6,079,138 folded delayed blowback operating system for automatic hand held weaponry. This lets you have a 7.62mm rifle with 24 inch barrel in a 28 inch rifle. No piston to foul. No gas tube to clog.
Because of this case, I am developing a PUMP ACTION rifle to get the semiautomatic sear and automatic sear. This doubles my work to produce a functioning rifle. It is worth it to stay out of jail, but while this work around goes on, our soldiers in Iraq still are plagues with jammed rifles, and choose between short barrels with less lethality, or rifles with longer barrels and greater lethality but slower into action.
Soldiers get shot when they can't get their rifle into action quickly. Soldiers get shot when their rounds are less lethal.
Be careful with the language. Note that it does NOT say, "All males physically capable of acting in concert for the common defense comprise the Militia." Big difference.
Secondly, the Militia has been redefined over the years by Acts of Congress -- the Militia Act of 1792, the Militia Act of 1862 (actually an amendment to the Militia Act of 1792), the Militia Act of 1903 -- the latter establishing the National Guard.
Essentially, the Militia referred to in the second amendment no longer exists. The second amendment, therefore, must be read as to its intent -- the federal government shall not infringe the ability of the states to arm themselves for their protection and the protection of the nation.
The Spanish-American War of 1898 demonstrated weaknesses in the militia, and it was determined that the best way to accomplish this protection was the formation of the National Guard. That is today's "Militia", if you will.
He was already a felon by that time -- he was arrested, tried, and convicted six years earlier on a machine gun possession.
paulsen:
Essentially, the Militia referred to in the second amendment no longer exists.
Inane comment.
It has never mattered if "the militia referred to" ever did exist, as the status of our militia force does not effect the fact that: "- the right of the people to keep and bear Arms, shall not be infringed. -"
The second amendment, therefore, must be read as to its intent -- the federal government shall not infringe the ability of the states to arm themselves for their protection and the protection of the nation.
No, the words clear intent is that "people" cannot be deprived of their right to keep and bear arms for their own protection and the protection of "a free State". -- Thus, a State cannot infringe on the "right of the people", -- any more than Congress or the nation.
As usual paulsen, you've twisted the words of the constitution to conform to your own anti-constitutional agenda.
That is what happened when he was initally charged with posessing a machine gun. He was a gunsmith, who accepted a gun for repairs. The gun had been modified by the ATF to be fully automatic with the external appearance of a semiautomatic.
Do try to keep up.
Except that it is a tactic, not an objective. The objective is to keep people from owning machine guns.
I'm still waiting for an answer as to what this has to do with the case at hand. Is there anything in this decision that would disallow the prosectuion of someone who wasn't an ex-felon? If not, why does it matter if Stewart was?
I don't recall a nationwide machine gun confiscation program.
The objective of the federal law is to prohibit the interstate commerce of machine guns. When people like Bob Stewart (and others) manufacture homemade machine guns, it interferes with Congress' ability to regulate.
I'll ask you the same questions that I asked publiusF27. Maybe you think Congress shouldn't be regulating machine guns. Maybe you think that those who are (21?, 18?, 16?, any age?) have the right to go to Wal-Mart and buy a full-auto MAC-10. And maybe you think the second amendment protects this right. Fine. Then I can understand why you believe that Congress is overreaching.
But, IF you believe that Congress may regulate the interstate commerce of machine guns, then you must concede they also have the power to regulate those activities that interfere with them doing that. Pure and simple.
In the Stewart case, you can play these wink-wink, nudge-nudge games from here to Sunday -- you can say "but they're for his own use, you have no proof" all day long, but a reasonable person would say those five machine guns were for sale, especially considering the fact that he was engaged in the unlicensed sales of other unassembled guns to the general public.
So, it comes down to "Should Congress be regulating machine guns or shouldn't they"? You can't honestly say "yes" and then allow every Tom, Dick, and Bob Stewart to build them in their basements.
His being an ex-felon is what started the ball rolling, so how can I comment on that?
You can comment on it by explaining why it is pertinent to the court decision (the topic of the thread). I notice your sympathies consistently lie with the regulators. Bob Stewart is a gunsmith by avocation, and so far they have been unable to make him afraid to ever pick up his tools and turn his hands to that work again. I think that's why you hate him.
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