I'm sure that we all want to see the BATFE doing its part to track down those who shouldn't have access to firearms. (Narcoterrorists from Columbia come to mind.) However, one has to wonder how this aim is furthered by sharing sensitive US information with governments who's track records show that they can't quite separate the sheep from the goats when it comes to their law enforcement. The initial story about cooperation with Mexico somes on the heels of a story about the police in Rosarito Beach having to be disarmed by the Mexican army. Earlier, the Tijuana police were similarly disarmed by the army. Do we really want foreign police having access to this information when we don't know from day to day who the individual officers are really working for?
Do we want Mexican drug trafficers to have the addresses of American gun owners?
This is F’KING insanse!
OK. So, how many criminals has this progrm identified? Captured? Convicted?
Oh, that’s what I thought.
B. Judge Alito’s Dissent
Judge Alito began his dissent in Rybar by asking, “Was [Lopez] a
constitutional freak? Or did it signify that the Commerce Clause still
imposes some meaningful limits on congressional power?”158 Troubled by
the reasoning of the majority, Judge Alito did not find enough of a
difference between the Machine Gun Statute and the Gun-Free School Zone
Act to have upheld the former’s constitutionality in Rybar.159 Judge Alito,
who “dissent[ed] slightly more often than the typical appeals court
judge,”160 asserted several general reasons why the Machine Gun Statute
should be held unconstitutional. First, Judge Alito’s dissent stated that both
the Gun-Free School Zone Act and the Machine Gun Statute similarly lack
a jurisdictional element in that “they do not require federal prosecutors to
prove that the firearms were possessed in or affecting interstate
commerce.”161 Second, Judge Alito stated that “in passing both statutes,
Congress made no findings regarding the link between the intrastate activity
regulated by these laws and interstate commerce,” and that it is
unreasonable to confine Lopez to its own “peculiar circumstances.”162 Part
II.B.1-2 explores Judge Alito’s reasoning.
1. Judge Alito Rules Out Channels and Instrumentalities
Before addressing what he believed to be the majority’s “two separate
theories”163 for upholding the Machine Gun Statute, Judge Alito first
addressed whether the Machine Gun Statute regulated channels or
instrumentalities of interstate commerce. Judge Alito concluded that the
158. Id. at 286 (Alito, J., dissenting); see Dean A. Strang, Felons, Guns, and the Limits of
Federal Power, 39 J. Marshall L. Rev. 385, 398 (2006) (“Perhaps because the Supreme
Court split 5-4 in Lopez, most federal appellate judges have treated that decision as a
‘constitutional freak,’ to repeat Judge Samuel A. Alito’s colorful term.”).
159. Rybar, 103 F.3d at 286-87 (Alito, J., dissenting). Some commentators have agreed
with Judge Alito’s rationale in finding the similarities between Lopez and Rybar to be
striking. See Debbie Ellis, A Lopez Legacy?: The Federalism Debate Renewed, But Not
Resolved, 17 N. Ill. U. L. Rev. 85, 113-14 (1996) (“Both [the Machine Gun Statute and the
Gun-Free School Zone Act] are criminal statutes which regulate the purely intrastate
possession of guns, both lack jurisdictional elements, and Congress made no findings
regarding the link between the intrastate activity, possession, and interstate commerce.”); see
also Carhart, supra note 82, at 864 (discussing the fact that some commentators have found
Lopez and Rybar to have similarities).
160. Adam Liptak & Jonathan D. Glater, Alito’s Dissents Show Deference to Lower
Courts, N.Y. Times, Nov. 3, 2005, at A1.
161. Rybar, 103 F.3d at 287 (Alito, J., dissenting); see supra note 152 (establishing that
Judge Jones in the U.S. Court of Appeals for the Fifth Circuit came to a similar conclusion in
her dissent).
162. Rybar, 103 F.3d at 287 (Alito, J., dissenting).
163. Id. at 291; see infra Part II.B.2.a-b.
2007] THE MACHINE GUN STATUTE 2289
Machine Gun Statute did not regulate the channels or instrumentalities of
interstate commerce.164 He wrote that the circuits that upheld the statute on
such grounds “fundamentally misunderstood the first category set out in
Lopez.”165 Judge Alito concluded that to justify the statute on the grounds
that Congress is regulating channels of commerce, Congress would have to
have regulated, “for economic or social purposes, the passage in interstate
commerce of either people or goods.”166 Moreover, Judge Alito believed
that the Machine Gun Statute would “fall within this category if it barred
the interstate shipment of machine guns, but of course that is not what it
does.”167 Rather, according to Judge Alito, the statute “goes much farther
and reaches the wholly intrastate possession of machine guns.”168
Judge Alito additionally expressed concern with the reasoning asserted
by the Fifth, Sixth, and Ninth Circuits that “‘there could be no unlawful
possession under [the Machine Gun Statute] without an unlawful
transfer.’”169 First, he argued that a semi-automatic weapon could be
converted by its owner into an automatic weapon.170 Moreover, a person
could have lawfully possessed a gun under 18 U.S.C. § 922(o), which
permits possession under governmental authority “but then exceeds the
scope of that authority or retains possession after it has terminated.”171
Such a transfer could be wholly confined to intrastate activities without
extending to interstate activities.172 Finally, Judge Alito wrote that the
arguments made by the Fifth, Sixth, and Ninth Circuits were more in line
with the third category established in Lopez because they describe activities
that, although intrastate, have an impact on interstate activities.173
Judge Alito summarized instrumentalities of interstate commerce as “the
means of conveying people and goods across state lines, such as airplanes
and trains. This power also reaches threats to people and goods travelling
in interstate commerce, such [as] . . . the setting of rates that could affect
interstate trade.”174 Moreover, Judge Alito wrote that the Machine Gun
Statute would not fall within this category even if Congress “had banned
164. See Rybar, 103 F.3d at 291-94 (Alito, J., dissenting). Although Judge Alito agreed
with the majority’s focus on the substantial economic effects, he still addressed the other two
categories (channels and instrumentalities of commerce) since the majority rationalized the
overall constitutionality of the statute in part because other circuits have justified the statute
under those two categories. Id.
165. Id. at 288; see also supra note 45 and accompanying text (describing the three
categories).
166. Rybar, 103 F.3d at 288-89 (Alito, J., dissenting).
167. Id. at 289.
168. Id.
169. Id. (quoting United States v. Kirk, 70 F.3d 791, 769 (5th Cir. 1995)); see also United
States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996); United States v. Rambo, 74 F.3d 948 (9th
Cir. 1996); Kirk, 70 F.3d 791; supra notes 151-54 and accompanying text.
170. Rybar, 103 F.3d at 289 (Alito, J., dissenting) (citing United States v. Kenney, 91
F.3d 884, 889 (7th Cir. 1996)).
171. Id.
172. Id.
173. Id.; see also supra note 45 and accompanying text.
174. Rybar, 103 F.3d at 290 (Alito, J., dissenting).
2290 FORDHAM LAW REVIEW [Vol. 75
the intrastate possession of machine guns in order to prevent them from
being used to damage vehicles travelling interstate, to carry out robberies of
goods moving in interstate commerce, or to threaten or harm interstate
travellers.”175
Judge Alito found the reasoning of the Sixth and Tenth Circuits “elusive”
in terms of finding the statute to be constitutional under this instrumentality
category.176 Both circuits described the inherent interstate component of
machine gun travel.177 Confused by how machine gun travel inherently
encompasses interstate travel, Judge Alito summarily wrote that “machine
guns that are simply possessed intrastate and are not travelling in interstate
commerce may not be regulated under the first Lopez category, and as
previously explained, unless they are menacing interstate commerce, they
do not fall within the second category either.”178
(snip)
>Given the importance of the access of trace information to those mayors and activists currently focused on a "torts" approach to knock down the Tiarht Amendment and deconstruct U.S. firearms ownership, the thought of them being helped by foreign governments who have espoused a long-term support for U.N. personal disarmament policies is distressing to say the least.<
The system is working hard to gather data on where firearms are located.
The NFA registry is, legally, confidential tax information. They’d better not be “sharing” that info with anyone. FOIA request time?
Only those who actually believe in the tooth fairy, santa claus, and the easter bunny.
This reminds me of a deal that we used to have with the Brits: we spy in England on their citizens, and they do the same here. That way, neither of the governments would be violating any laws about domestic spying.
With the advent of the Patriot Act, I’m not so sure if this agreement is still in effect, or if it is even needed. But what the BATFE is doing is having foreign governments compile lists of gun owners. BATFE isn’t doing this itself, so it isn’t in violation of the law. Of course, a simple access code will give all of the information to the BATFE once Shrillary is elected and she names Schumer as AG.
Let the record show clearly that your statement is false and that I do not even support the existence of the BATFE.
Citizens are capable of knowing how much of each to consume. Fed interference with the 'market' will not abolish it. Hinder perhaps, eliminate--no way.
Well, you're close:
Fixed:
I'm sure that we all want to track down the BATFE, who shouldn't have access to firearms.
I wonder of there's any BATFE paper in there.