The 9th Circuit has gone off it's rocker!

[MKSheppard]

Big News on the Commerce Clause: United States v. Stewart

The new Commerce Clause jurisprudence (Lopez and Morrison) comes home to roost in the Ninth Circuit's pathbreaking decision today that holds that the federal government may not ban a homemade machine gun. Here is a link to the PDF file. (Via Volokh.) Here are the two key paragraphs of the opinion:

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.

And one more important paragraph from later in the opinion:

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.

The implications are staggering. Here is one: Homegrown marijuana would seem directly analagous to homemade machineguns. And in fact, the Ninth Circuit has a homegrown medical marijuana case pending now. Wow!
posted by Lawrence at 11/13/2003 02:05:20 PM

lsolum.blogspot.com/2003_11_01_lsolum_archive.html#106876112035798273

Did you get that, guys? The Ninth Circuit says we can build and own machineguns as long as we dont sell them.

[Hamel]

Totally unexpected, as if an invisible man kicked me in the balls

[Joe]

Always glad to see the broad power of the commerce clause scaled back a bit.

[Durandal]

They're trying to shed the image of being a traditionally liberal court. They've shown that they can make decisions that piss off everyone.

[RedImperator]

Good. The commerce clause needs neutering.

[Alyeska]

Umm...

Does this mean if we replicate parts for an existing gun we can build our own fully automatic M4 Carbine?

[Sea Skimmer]

Umm...

Does this mean if we replicate parts for an existing gun we can build our own fully automatic M4 Carbine?

Yes, if you live under the jurisdiction of the 9th Circuit court of appeals of course. Though I think a Maxim gun would be more fun to use, and simpler to build.

[Alyeska]

Umm...

Does this mean if we replicate parts for an existing gun we can build our own fully automatic M4 Carbine?

Yes, if you live under the jurisdiction of the 9th Circuit court of appeals of course. Though I think a Maxim gun would be more fun to use, and simpler to build.

Screw that, I want a M4A1 and an MP5.

I need to move down there.

Hmm... Could I buy seperate parts and put them together to create the gun maybe?

[Darth Wong]

Manufacturing your own machinegun would be quite a bit of work (unless you can order all of the parts and simply assemble them, as suggested above). Is it really that important to anyone?

[Stravo]

Manufacturing your own machinegun would be quite a bit of work (unless you can order all of the parts and simply assemble them, as suggested above). Is it really that important to anyone?

Are you kidding, somewhere in this great country some gun nut just had a multiple orgasm.

[RedImperator]

Manufacturing your own machinegun would be quite a bit of work (unless you can order all of the parts and simply assemble them, as suggested above). Is it really that important to anyone?

It's interesting from a constitutional law standpoint because it's putting a hard limit on the interstate commerce clause, the part of the Constitution that gives the Federal government the power to do just about everything it does nowadays. It's what gives the feds the right to regulate just about anything involving a commercial transaction. Any limit on the commerce clause's application is a direct limit on the Federal government's power.

As far as homebuilt machine guns go, well, meh. I can't get that excited about it. Now, if it were catapults we were talking about, things would be different.

[Stravo]

Manufacturing your own machinegun would be quite a bit of work (unless you can order all of the parts and simply assemble them, as suggested above). Is it really that important to anyone?

It's interesting from a constitutional law standpoint because it's putting a hard limit on the interstate commerce clause, the part of the Constitution that gives the Federal government the power to do just about everything it does nowadays. It's what gives the feds the right to regulate just about anything involving a commercial transaction. Any limit on the commerce clause's application is a direct limit on the Federal government's power.

As far as homebuilt machine guns go, well, meh. I can't get that excited about it. Now, if it were catapults we were talking about, things would be different.

The Ninth circuit and do all it wants to try and impose a limitation on the Commerce clause but it has been well established how pervasive this power can be and most courts including the Supreme court have been very reluctant to try and limit that power. If not for a liberal interpretation of the Commerce Clause you woudln't have such things as interstate highways and the courts are well aware of this.

[Sea Skimmer]

We'd still have many of interstates; they got planned and funded as assets for national defence, not for commercial traffic.

[Shinova]

If you had a machine gun for home defense that'd be awesome. Imagine what some robber with a pistol would think when you come out with an AK47.

[AdmiralTDM]

A Machine gun would be easy to build...

All you do is
A- Buy Barrel from existing fire arm.
B- A demilled version of an existing firearm that accepts the above barrel. * so you can get exact measurements and such to make a functional copy*
C- Have a fully equiped machine/metal working shop.
D- then you can copy the demilled machine gun and build your own.

Just be sure to copy a machine gun that you can get lots of ammo and magazines for real cheap. not a .50 cal browning or 20 mm Vulcan or any thing...

* rambles off to build a MG-34 *

[Admiral Valdemar]

The guy who has a minigun (among other things), M134 I believe, on a turret in his backyard out in the desert somewhere in the US seems to be exempt from machine gun laws. He's some rich playboy who has bought lordy knows how many weapons and lets people come around and for a small fee, fire in his target range and even use the minigun on a flying drone craft.

[Glocksman]

It's not against the law to own machine guns, even a GE minigun. The prohibition is that civilians cannot own any machine guns manufactured after May 19, 1986.

That's when an asswipe Congressman from New Jersey inserted language into the FOPA that prohibited the addition of any more fully transerable machine guns to the NFA registry.

All this ban on 'post May 86' machine guns has done is to drive the price of preban guns into the stratosphere. For example, a preban Steyr AUG goes for about $12,000. A preban M16 goes for about $5-7000, depending upon the manufacturer and condition. Preban STEN's go for $1500-$2000.


The guy in the desert (I think you're talking about Mike Dillon) legally owns his weapons.

[Joe]

The Ninth circuit and do all it wants to try and impose a limitation on the Commerce clause but it has been well established how pervasive this power can be and most courts including the Supreme court have been very reluctant to try and limit that power. If not for a liberal interpretation of the Commerce Clause you woudln't have such things as interstate highways and the courts are well aware of this.

Actually, the current SCOTUS has been not so reluctant. See Brzonkala v. Morrison and United States v. Morrison.

[Solauren]

Actually, you could use this to argue lots of things, above and beyond home built weapons and home grown narcotic plants

Examples I could think of would include home burned music cd's, regardless of source of the music.

Problem is, it might be usable to protect stuff like home made child porn

[Soontir C'boath]

Problem is, it might be usable to protect stuff like home made child porn:x

That would go against pedophilia laws and as said, it is legal to own machine guns.~Jason

[Stormbringer]

Actually, you could use this to argue lots of things, above and beyond home built weapons and home grown narcotic plants

Examples I could think of would include home burned music cd's, regardless of source of the music.

Problem is, it might be usable to protect stuff like home made child porn

Not really, music and movies are definitely an interstate business. This is important because it rolls back the some of the second and third hand applications of the commerce clause not because it's some magic loophole.

[Solauren]

Ah. I get it it now.

I guess a few people on this board are gonna start shopping for parts to make there own

[LordShaithis]

That's why Shep hasn't posted in this thread since the start. He's been slaving away in his basement this whole time.

[Nathan F]

Manufacturing your own machinegun would be quite a bit of work (unless you can order all of the parts and simply assemble them, as suggested above). Is it really that important to anyone?

Are you kidding, somewhere in this great country some gun nut just had a multiple orgasm.

*ooooooh ooooooh AAAAAAH ooooooh oooooooooooh oooooooh AAAAAH*

Now that that's over, I'm moving to their jurisdiction, buying a machine shop, and starting production of my own Browning M2s, BARs, Thompsons, MG-42s, and Maxims.

[RedImperator]

Actually, you could use this to argue lots of things, above and beyond home built weapons and home grown narcotic plants

Examples I could think of would include home burned music cd's, regardless of source of the music.

Problem is, it might be usable to protect stuff like home made child porn

Music falls under copyright law, which is a specific Federal power, as well as interstate commerce, so no dice there. Child porn is not, to my knowledge, a Federal crime until it crosses state lines, but since all 50 states have child pornography laws on the books, this ruling does not pave the way for "Lolita Monthly".