9th Circuit Ruling Says
Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority
November 14, 2003
KeepAndBearArms.com -- 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
"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.
Read the full opinion for yourself:
Our archived copy: http://KeepAndBearArms.com/lawsuits/Stewart.pdf