9th Circuit Ruling Says Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority

Keep and Bear Arms ^ | 14 November 2003 | staff

[45Auto]

U.S. v Stewart has finally struck a blow for freedom. In a November 13 published opinion from the Ninth Circuit Court of Appeals, a majority of 2 to 1 says that the federal government's ban on homemade machineguns is abusive of the government's authority to regulate interstate commerce.

Ninth Circuit judge Alex Kozinski wrote the opinion. Judge Kozinski is the same judge who wrote a strong dissent in the Silveira v. Lockyer case, firmly supporting the true meaning of the Second Amendment.

The relevant and most interesting text from the ruling:

"We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) “is a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S at 561. Unlike in Wickard v. Filburn, 317 U.S. 111 (1942), where growing wheat in one’s backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred—and there is none here—its relationship to interstate commerce is highly attenuated.

"Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals—an admirable goal, but not a commercial one." . . .

"This case fails Morrison’s other requirements as well.

"As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where—as here—such findings would “enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.” Lopez, 514 U.S. at 563."

While we aren't necessarily recommending that you run out to get the parts to start making your own machineguns, we certainly appreciate the honesty from Judge Kozinski -- and we do believe that he is right. The federal government has been abusing the commerce clause for decades, to the detriment of individual liberties from sea to shining sea.

On June 3, 2002 Bob Stewart was sentenced to five years in prison. He was convicted of being a felon in possession of a firearm and of possessing several unregistered machineguns -- homemade machineguns. The machinegun possession conviction was just overturned. Naturally, the federal government will appeal -- either to an en banc panel in the Ninth Circuit, or to the U.S. Supreme Court. After all, the gun banners can't stand to lose power -- no matter how wrong they truly are. Such is tyranny -- when power is more important than the plain and simple truth.

[45Auto]

Very interesting - at least until the en banc court gets to it.

[phasma proeliator]

BANG

[MegaSilver]

9th Circuit Ruling Says Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority

I almost **** a brick just reading the headline...

[zx2dragon]

Surprised to read this out of the 9th is an understatement. However, I have to agree that the en banc panel is unlikely to support it.

[DeFault User]

He was convicted of being a felon in possession of a firearm and of possessing several unregistered machineguns -- homemade machineguns.

Did he machine all the parts or just convert another weapon? "Homemade" makes it sound like he built it from scratch.

[CDHart]

Isn't this the "9th circus" that has handed down so many crazy liberal rulings?

Carolyn

[muleskinner]

Buda-Buda-Buda Ping

[XJarhead]

Kozinski tried to distinguish Wickard, but you really can't. That case is so broad that it basically covers everything. The Supremes ought to ditch it.

[45Auto]

In my opinion, the Congress has greatly over-stepped its authority in its overly broad interpretation of what it can regulate under the Commerce Clause. Congress has taken that to ridiculous levels, such that they can overrule anything in the Bill of Rights based on the Commerce Clause. That is tantamount to treason in my book.

For example, if one lived in Wyoming and one purchased a fine Freedom Arms Revolver and then the gun was involved in a criminal act, it could become a federal issue because the federal DOJ could argue that the Commerce Clause applies since the paper used by Freedom Arms in their invoicing system came from a pulp mill in Oregon and had to be sold across state lines and thus, the entire operation falls under the Commerce Clause. That's how crazy the commerce clause has become.

[Lee Heggy]

Without seeing the weapons it's hard to say. I've seen several 'deactivated' MGs that with a bit of machine work could be brought back to full auto. Many of the older machine-pistols such as the C-96 Mauser or Lugers have the capability of being converted to such. I've seen a 1917 artillary luger with the 'trommel magazine' of 32 rounds fire off the entire mag in about 15 seconds after inserting a sear that allowed for full auto functioning.

[Lee Heggy]

I need to add that I've only 'seen'(can't seem to remember where exactly) and heard of these these things...ahem. The tendancy of such small handguns under full auto to walk up the wall would make them very innacurate and it would also be very hard on the mechanisms and barrels, ruining the gun after only a few such uses....

[Dead Corpse]

It's about time someone in the courts got their head out of their posterior. Even if this gets shot down en banc, it still sets up a higher challenge.

Groovy... A business opportunity!

[Ff--150]

The federal government has been abusing the commerce clause for decades, to the detriment of individual liberties from sea to shining sea.

FWIW the commerce clause is more proof the Constitution is a myth, a relic, a phantom; thus, any talk about this or that being constitutional or unconstitutional is nothing but smoke'n'mirrors, or bovine manure to feed the masses...

[thoughtomator]

There's a limit to commerce clause authority? There goes 3/4 of the government...

[pageonetoo]

Indeed, the 9th is overturned moe than 70% of the time, but this one at least makes it clear that they are READING THE LAW, NOT MAKING IT, for a change!

[Southack]

Is this ruling for real or is this an urban myth that's just getting reprinted?

I ask because I was under the impression that the 9th Circuit was ruling on the Interstate Commerce Clause as not being applicable to a porno case, something much more in line with the 9th Circuit's ideology (as in: the 9th saying that the Federal government couldn't use the Interstate Commerce Clause to regulate porn...somehow getting urbanized into a myth that the ICC likewise wouldn't apply to federal firearms laws).

[spunkets]

The decision.

[hopespringseternal]

For example, if one lived in Wyoming and one purchased a fine Freedom Arms Revolver and then the gun was involved in a criminal act, it could become a federal issue because the federal DOJ could argue that the Commerce Clause applies since the paper used by Freedom Arms in their invoicing system came from a pulp mill in Oregon and had to be sold across state lines and thus, the entire operation falls under the Commerce Clause. That's how crazy the commerce clause has become.

The sort of "reasoning" that goes on every day with regard to the Constitution would have earned me a firm backhand from my father growing up.

Most of these twits would exceed their potential patroling a mall parking lot in a golf cart.

[Southack]

Thanks, I must have been thinking about US v McCoy that the 9th Circuit just ruled on.

Still, it's pretty amazing to see the 9th actually follow Constitutional law for their *reasoning* in any of their rulings. Makes one wonder just what they're up to...

[spunkets]

"9th actually follow Constitutional law for their *reasoning* in any of their rulings."

Well they got this 1/2 and 1/2.

"Makes one wonder just what they're up to...

I suspect some sort of hard drug. < /LOL > I'll bet they're thinking ahead to protecting drug use somehow under the guise of homemade, or homegrown.