United States v. Kirk
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Opinion
REVISED UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 94-50472
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WILLIAM JOSEPH KIRK, Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas
February 3, 1997 Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,* STEWART, PARKER, and DENNIS, Circuit Judges. PER CURIAM: By virtue of an equally divided en banc court, the judgment of the district court is AFFIRMED.
* Judge Benavides was recused from consideration of this case. ROBERT M. PARKER, Circuit Judge, joined by POLITZ, Chief Judge, KING, DAVIS, WIENER, STEWART, and DENNIS, Circuit Judges, would affirm for the following reasons:
In my view, there was a rational basis for Congress to
conclude that post-1986 incidents of manufacture, transfer, and
possession of machineguns fall within its power to regulate
interstate commerce. Every circuit that has examined 18 U.S.C. §
922(o) -- both before and after United States v. Lopez, ___ U.S.
___, 115 S. Ct. 1624, 131 L. Ed. 2d 262 (1995) -- has determined
that § 922(o) does not exceed the authority granted to Congress by
the Commerce Clause.**
A careful reading of Lopez compels this conclusion. In Lopez,
the Supreme Court held that Congress exceeded its Commerce Clause
power by enacting § 922(q) which criminalizes possession of a
firearm within 1000 feet of the grounds of a school, see §
921(a)(25), a small geographic area finitely circumscribed and
related to education, a uniquely local concern. In contrast, the
extensive history of federal firearm regulation and the national
scope of § 922(o) distinguishes it from § 922(q). It is important
to the understanding of Lopez that the Supreme Court intended to
establish an outer limit to congressional authority, not to retreat
from well-established Commerce Clause precedent. United States v.
** See United States v. Rybar, ___ F.3d ___ (1996 WL 740084 (3d Cir.(Pa.)); United States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996); United States v. Kenney, 91 F.3d 884 (7th Cir. 1996); United States v. Rambo, 74 F.3d 948 (9th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 72 (1996); United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995); United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, 507 U.S. 997, 113 S. Ct. 1614, 123 L. Ed. 2d 174 (1993).
2 Kenney, 91 F.3d 884, 887 (7th Cir. 1996). As Chief Justice
Rehnquist noted, “[S]ome of our prior cases have taken long steps
down that road, giving great deference to congressional action.
The broad language in these opinions has suggested the possibility
of additional expansion, but we decline here to proceed any
further.” Lopez, ___ U.S. at ___ , 115 S. Ct. at 1634.
Simply stated, I believe that we should join the other
circuits in holding that Congress had a rational basis for
concluding that the manufacture, transfer and possession of
machineguns substantially affect commerce and § 922(o) therefore is
constitutional.
3 PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges, would affirm for the following reasons:
We are persuaded that a legislative judgment that possession
of machine guns acquired after 1986 has a substantial effect on
interstate commerce, particularly by facilitating the trade in
illegal drugs, is supported by our judicial experience and facts
about machine guns and interstate criminal activity common to
public discourse. Congress did not exceed its power under the
Commerce Clause, and we today correctly affirm this conviction.
I.
This case ultimately turns on the role of congressional
findings in judicial review of congressional exercises of its
commerce power. Our opinion in United States v. Lopez, 2 F.3d 1342
(5th Cir. 1993), aff’d, 115 S. Ct. 1624 (1995), stressed the
absence of congressional findings of the relationship between
Congress’s regulation of guns near schools and its commerce power.
We required that Congress justify its authority by findings. The
Supreme Court affirmed our holding that Congress lacked authority
to regulate possession of a gun in proximity to a school, but it
did not adopt our rationale. Rather, the Court shied away from so
direct an imposition of procedure upon the Congress. Nonetheless,
the court did give weight to the absence of congressionally
identified ties between the regulation and the commerce power. 115
S. Ct. at 1631-32.
Lopez, then, adhered to a rational basis standard of review.
This deferential standard does not insist that Congress actually
4 make factual findings. To the contrary, its tolerance of
hypothetical, judicially supposed purposes and means gives the
rational basis standard its deferential character. Courts can
assume a more activist role in judicial review by refusing to look
to a basis for legislation not identified by Congress. This
elevates the standard of review, according significantly less
deference to Congress. Giving weight to the absence of
congressional findings lies in the middle ground between an
intrusive absolute insistence upon legislative findings and
traditional rational basis inquiry. Congressional findings are not
merely playthings of formalism. They help define the respective
roles of the courts and the Congress and the federal and the state
governments. So the role of findings demands our attention. But
their absence does not end our inquiry. Here Congress made no
findings. We give weight to the absence of findings, but we do not
find their absence controlling. Under Lopez, we must continue to
apply the rational basis test, which asks courts not to set aside
congressional acts as exceeding the Commerce Clause power if the
Congress could have found that the relevant intrastate activity has
a substantial effect on interstate commerce. This deference
respects differences between the fact-finding of courts and
legislative findings, differences of a constitutional order.
Legislative “findings,” relative to judicial findings, are untidy
in their blending of empirical assessment and policy judgments.
The difference reflects the fundamentally different roles of the
judiciary and the Congress. Congress must respond actively to
5 problems faced by political communities; its judgment is accented
by its look to the future and its effort to offer solutions to
social ills. The judicial decision looks backward, responding to
the limits of a case or controversy. We must not forget these
differences in inquiring what the legislature rationally could have
found. Losing sight of these differences risks a blurring of the
respective roles of Congress and the courts, a difference the
rational basis test is intended to respect. On the one hand,
courts have a constitutional duty to scrutinize congressional
actions to ensure that Congress stays within its constitutionally
enumerated powers; “if Lopez means anything, it is that Congress’s
power under the Commerce Clause must have some limits.” United
States v. Rybar, ___ F.3d ___, ___, 1996 WL 740084 at *22 (3d Cir.
1996) (Alito, J., dissenting). On the other hand, we must
discipline our scrutiny to ensure that we are about the business of
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REVISED UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 94-50472
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WILLIAM JOSEPH KIRK, Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas
February 3, 1997 Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,* STEWART, PARKER, and DENNIS, Circuit Judges. PER CURIAM: By virtue of an equally divided en banc court, the judgment of the district court is AFFIRMED.
* Judge Benavides was recused from consideration of this case. ROBERT M. PARKER, Circuit Judge, joined by POLITZ, Chief Judge, KING, DAVIS, WIENER, STEWART, and DENNIS, Circuit Judges, would affirm for the following reasons:
In my view, there was a rational basis for Congress to
conclude that post-1986 incidents of manufacture, transfer, and
possession of machineguns fall within its power to regulate
interstate commerce. Every circuit that has examined 18 U.S.C. §
922(o) -- both before and after United States v. Lopez, ___ U.S.
___, 115 S. Ct. 1624, 131 L. Ed. 2d 262 (1995) -- has determined
that § 922(o) does not exceed the authority granted to Congress by
the Commerce Clause.**
A careful reading of Lopez compels this conclusion. In Lopez,
the Supreme Court held that Congress exceeded its Commerce Clause
power by enacting § 922(q) which criminalizes possession of a
firearm within 1000 feet of the grounds of a school, see §
921(a)(25), a small geographic area finitely circumscribed and
related to education, a uniquely local concern. In contrast, the
extensive history of federal firearm regulation and the national
scope of § 922(o) distinguishes it from § 922(q). It is important
to the understanding of Lopez that the Supreme Court intended to
establish an outer limit to congressional authority, not to retreat
from well-established Commerce Clause precedent. United States v.
** See United States v. Rybar, ___ F.3d ___ (1996 WL 740084 (3d Cir.(Pa.)); United States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996); United States v. Kenney, 91 F.3d 884 (7th Cir. 1996); United States v. Rambo, 74 F.3d 948 (9th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 72 (1996); United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995); United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, 507 U.S. 997, 113 S. Ct. 1614, 123 L. Ed. 2d 174 (1993).
2 Kenney, 91 F.3d 884, 887 (7th Cir. 1996). As Chief Justice
Rehnquist noted, “[S]ome of our prior cases have taken long steps
down that road, giving great deference to congressional action.
The broad language in these opinions has suggested the possibility
of additional expansion, but we decline here to proceed any
further.” Lopez, ___ U.S. at ___ , 115 S. Ct. at 1634.
Simply stated, I believe that we should join the other
circuits in holding that Congress had a rational basis for
concluding that the manufacture, transfer and possession of
machineguns substantially affect commerce and § 922(o) therefore is
constitutional.
3 PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges, would affirm for the following reasons:
We are persuaded that a legislative judgment that possession
of machine guns acquired after 1986 has a substantial effect on
interstate commerce, particularly by facilitating the trade in
illegal drugs, is supported by our judicial experience and facts
about machine guns and interstate criminal activity common to
public discourse. Congress did not exceed its power under the
Commerce Clause, and we today correctly affirm this conviction.
I.
This case ultimately turns on the role of congressional
findings in judicial review of congressional exercises of its
commerce power. Our opinion in United States v. Lopez, 2 F.3d 1342
(5th Cir. 1993), aff’d, 115 S. Ct. 1624 (1995), stressed the
absence of congressional findings of the relationship between
Congress’s regulation of guns near schools and its commerce power.
We required that Congress justify its authority by findings. The
Supreme Court affirmed our holding that Congress lacked authority
to regulate possession of a gun in proximity to a school, but it
did not adopt our rationale. Rather, the Court shied away from so
direct an imposition of procedure upon the Congress. Nonetheless,
the court did give weight to the absence of congressionally
identified ties between the regulation and the commerce power. 115
S. Ct. at 1631-32.
Lopez, then, adhered to a rational basis standard of review.
This deferential standard does not insist that Congress actually
4 make factual findings. To the contrary, its tolerance of
hypothetical, judicially supposed purposes and means gives the
rational basis standard its deferential character. Courts can
assume a more activist role in judicial review by refusing to look
to a basis for legislation not identified by Congress. This
elevates the standard of review, according significantly less
deference to Congress. Giving weight to the absence of
congressional findings lies in the middle ground between an
intrusive absolute insistence upon legislative findings and
traditional rational basis inquiry. Congressional findings are not
merely playthings of formalism. They help define the respective
roles of the courts and the Congress and the federal and the state
governments. So the role of findings demands our attention. But
their absence does not end our inquiry. Here Congress made no
findings. We give weight to the absence of findings, but we do not
find their absence controlling. Under Lopez, we must continue to
apply the rational basis test, which asks courts not to set aside
congressional acts as exceeding the Commerce Clause power if the
Congress could have found that the relevant intrastate activity has
a substantial effect on interstate commerce. This deference
respects differences between the fact-finding of courts and
legislative findings, differences of a constitutional order.
Legislative “findings,” relative to judicial findings, are untidy
in their blending of empirical assessment and policy judgments.
The difference reflects the fundamentally different roles of the
judiciary and the Congress. Congress must respond actively to
5 problems faced by political communities; its judgment is accented
by its look to the future and its effort to offer solutions to
social ills. The judicial decision looks backward, responding to
the limits of a case or controversy. We must not forget these
differences in inquiring what the legislature rationally could have
found. Losing sight of these differences risks a blurring of the
respective roles of Congress and the courts, a difference the
rational basis test is intended to respect. On the one hand,
courts have a constitutional duty to scrutinize congressional
actions to ensure that Congress stays within its constitutionally
enumerated powers; “if Lopez means anything, it is that Congress’s
power under the Commerce Clause must have some limits.” United
States v. Rybar, ___ F.3d ___, ___, 1996 WL 740084 at *22 (3d Cir.
1996) (Alito, J., dissenting). On the other hand, we must
discipline our scrutiny to ensure that we are about the business of
judicial review and not the business of social policy. Stated
another way, respecting the policy-making role of majoritarian
legislative bodies is not an empty recitation.
This familiar problem for rational basis review is especially
awkward when the issue is whether an intrastate activity has a
substantial effect on interstate commerce. Unless the Court
follows Justice Thomas away from an effects test, see Lopez, 115 S.
Ct. at 1642-51 (Thomas, J., concurring), we cannot escape this
difficulty. Justice Breyer's elaborate study of education, guns,
and commerce will continue to be commonplace, despite the reality
that judicial searches for data that might have supported a
6 legislative finding raise the troubling prospect of the courts
doing work the Congress ought to have done. See id. at 1659-62
(Breyer, J., dissenting). And as Justice Souter has pointed out,
the doctrine of clear statement offers no escape. See id. at 1655
(Souter, J., dissenting). What the Supreme Court will do with the
meaning of “substantial effect” remains to be seen. These plastic
words may lessen deference to Congress by judicial demands for
empirical evidence as well as normative valuations of state and
federal “interests.” Regardless of that future, according weight
to the absence of legislative findings in close cases fairly
accommodates these competing interests. Cases are at least close
when courts feel the need to conduct elaborate empirical studies to
determine whether the facts support exercise of the federal
commerce power. If the facts were not within our easy reach, this
would be a close case indeed, and the absence of findings would
then tilt the outcome. This simply states a limit upon the role of
the courts in their inquiries into whether there is a rational
basis for a legislative judgment.
II.
In executing the rational basis test, we turn to facts bearing
on the relationship between possession of machine guns and
interstate commerce. The prosecution has not aided our factual
inquiry on this score. But the concern over machine guns was
hardly exotic. To the contrary, concern over both the unique
firepower of automatic weapons and the recent increase in their
number was the subject of public discussion, as a simple repair to
7 the popular press makes plain. That exercise also sheds light on
the type of data and expert opinion available to the Congress. A
1985 article in a national weekly magazine alerted Americans to the
dangerous proliferation of machine guns and reported that “[t]he
MAC-10 has become the side arm of choice for ‘cocaine cowboys’ and
other drug smugglers.” Machine Gun U.S.A., NEWSWEEK, October 14,
1985, at 46. According to the article, American gun dealers
imported an average of 55,000 machine guns during the early 1980s.
In 1988, two years after the passage of § 922(o), the International
Association of Chiefs of Police estimated that criminals possessed
between 650,000 and two million automatic and semi-automatic
weapons. The Arms Race in Your Own Back Yard, U.S. NEWS & WORLD
REPORT, April 4, 1988, at 24. Presumably, the great percentage of
these weapons were semi-automatic weapons and not machine guns. In
1987, the DEA “seized an average of one machine gun a day,” which
led the press to report that “most of this ferocious firepower is
deployed in connection with narcotics trafficking.” Id. This sort
of information, easily accessible to Congress, would support a
legislative judgment that the possession of machine guns interferes
with federal drug enforcement; that regulating the simple
possession of machine guns acquired after 1986 is necessary to stop
the rapid growth of the pool of supply. Indeed, there is reason to
think that Congress had these sorts of figures in mind when it
enacted § 922(o). See 1986 U.S.S.C.A.N. 1330 (noting that an
alternative bill “prohibited the transfer and possession of machine
8 guns, used by racketeers and drug traffickers for intimidation,
murder and protection of drugs and the proceeds of crime”).
The efficacy of § 922(o) also suggests that a legislative
judgment of a strong tie between machine guns and federal crimes
would have been valid. In 1983, ATF seized 871 machine guns and
conversion kits; by 1985, that number had ballooned to 3,263.
NEWSWEEK, October 14, 1985, at 46. After passage of § 922(o),
however, this figure dropped dramatically. There were only 834 ATF
machine gun seizures in fiscal year 1987, as opposed to 2,854
seizures in fiscal year 1986, a decrease of 71 percent.
Semiautomatic Assault Weapons Act of 1989: Hearings before the
Subcommittee on Crime of the Committee on the Judiciary, 101st
Cong., 1st Sess. 354 (1989) (Appendix 9: “The 1986 Machine Gun Law
Works”); Tony Freemantle, Police Groups Warm to Bill on Gun
Control, HOUSTON CHRONICLE, March 19, 1989, at A1. These figures at
least suggest that § 922(o) succeeded in substantially reducing the
number of machine guns in the hands of criminals encountered by
federal law enforcement. And the striking effectiveness of federal
enforcement of the congressional freeze of the machine gun market
gives us reason to think that in 1986 Congress could have mustered
facts to support its legislative judgment that the ban would be
effective in reducing the availability of machine guns to those
confronting federal law enforcement, particularly in the drug
trade. That other inferences might be drawn from the data or that
there is conflicting data is no answer because our question is not
9 what judges think or prefer, but what rational judgment Congress
could have made.
The bill that enacted § 922(o) also imposed on drug
traffickers who use a machine gun a special ten-year sentence
rather than the standard five-year sentence for other firearms.
Pub. L. No. 99-308 § 104, 100 Stat. 456, 457 (May 19, 1986)
(amending 18 U.S.C. § 924(c)(1)). Two years later, Congress
thought it prudent to add another twenty years to this penalty.
Pub. L. No. 100-690 § 6460, 102 Stat. 4373, 4373 (Nov. 18, 1988).
This concerted attention to the dangers of automatic weapons is at
odds with the suggestion that Congress’s freeze on the market in
machine guns rests on an irrational judgment about the ties between
machine guns and drug dealers and about the effects of tolerating
their possession after 1986. Federal law enforcement recognizes
the importance of having such powerful weapons in confrontations
with drug traffickers. In 1988, DEA, the primary enforcement
agency in the regulation of drugs, moved away from shotguns and
made 9-mm, 32-round weapons that can be fired automatically its
“primary” weapons. U.S. NEWS & WORLD REPORT, April 4, 1988, at 24.
These developments make it clear that it is at least rational to
conclude that federal regulation of a distinct market in machine
guns is part and parcel of federal drug regulation.
Judge Parker in his opinion for the panel found it important
that Congress has done more here than outlaw simple possession of
a machine gun. We agree. Not every possession is prohibited.
Rather, the Congress has left lawful the possession of machine guns
10 manufactured before 1986 and lawfully possessed before that date.
It is a crime to transfer any machine gun after 1986 or to possess
a machine gun manufactured after that date. That is, Congress
froze in place the market in machine guns. Judge Garwood made this
point in his opinion for the panel in Lopez:
Section 922(o) is restricted to a narrow class of highly destructive, sophisticated weapons that have been either manufactured or imported after enactment of the Firearms Owners’ Protection Act, which is more suggestive of a nexus to or [e]ffect on interstate or foreign commerce than possession of any firearms whatever, no matter when or where originated, within one thousand feet of the grounds of any school.
2 F.3d at 1356 (emphasis in original) (footnote omitted). It is
true that simple possession is the stated offense under the
statute, but by excepting activity occurring before 1986, a
proscribed possession, by definition, must have been the product of
a post-1986 transfer, interstate or intrastate (putting to one side
the remote cases of worn guns and, for the moment, cases involving
conversion into fully automatic guns). Such careful regulation
reflects legislative deliberation we are bound to respect.
Machine guns possess a firepower that outstrips any other kind
of gun. Persons knowledgeable about firearms, such as those who
campaign for repeal of gun regulations, usually emphasize that
machine guns stand in a class of their own. See Assault Weapons:
A View from the Front Lines: Hearing before the Committee on the
Judiciary, 103d Cong., 1st Sess. 183, 185-86 (1994) (emphasizing
that the cosmetic similarities between machine guns and semi-
automatic assault weapons belie functional differences that make
assault weapons more like hunting and target rifles than like
11 machine guns). The destructive capacity of machine guns puts them
in the same category as explosives, which the federal government
has heavily regulated for over twenty-five years, except machine
guns have little lawful use. See Organized Crime Control Act of
1970, Title XI, § 1102(a), Pub. L. No. 91-452, 84 Stat. 953-55
(codified as amended at 18 U.S.C. §§ 842-843) (prohibiting, among
other things, the storage of explosives without a federal permit);
United States v. Dawson, 467 F.2d 668, 673 (8th Cir. 1972) (“There
being a rational basis upon which Congress properly could have
determined that the misuse of explosive materials is one activity
which, as a class, affects commerce, the Government need not
specifically allege and prove a connection between interstate
commerce and the conduct made criminal by § 842 (h).”), cert.
denied, 410 U.S. 956 (1973).
This fundamental difference between machine guns and other
guns is reflected in the long history of machine-gun regulation by
Congress. Initially, Congress used the taxing power to insist upon
machine gun registration. See National Firearms Act of 1934, Pub.
L. No. 474 §§ 2-6, 48 Stat. 1236, 1237-38. It soon turned to the
Commerce Clause as a basis for restricting the market in machine
guns. See Federal Firearms Act of 1938, Pub. L. No. 785, 52 Stat.
1250. That law remained in effect for thirty years, when Congress
enacted the Omnibus Crime Control and Safe Streets Act of 1968,
Pub. L. No. 90-351, 82 Stat. 197 (current version at 18 U.S.C. §§
921-928), of which § 922(o) is now a part. Machine guns, then,
12 have not been the exclusive regulatory domain of the states. Their
lethal force has produced a national response.
III.
Those who urge that this legislation is unconstitutional are
at pains not to undercut the constitutionality of laws prohibiting
the simple possession of drugs. Yet it is difficult to conclude
that Congress could not have rationally found that machine guns
play a large role in major drug transactions and thus that the
availability of these weapons of war has a substantial effect on
the interstate traffic in drugs. Congress has acted on that effect
in providing that the use of a gun, otherwise lawful, in a drug
transaction brings substantially increased penalties. 18 U.S.C. §
924(c)(1). We have repeatedly recognized firearms as one of the
drug dealer’s “tools of the trade.” See United States v. Martinez,
808 F.2d 1050, 1057 (5th Cir.), cert. denied, 481 U.S. 1032 (1987).
The firepower of a machine gun puts it in a quite different
category from the handguns, shotguns, and rifles so popular with
sportsmen. Its continuous fire puts the machine gun on a different
plane from the semi-automatic. The routine cases on the criminal
docket in federal courts make the connection between machine guns
and major drug transactions undeniable. Whether the effect is
“substantial” is less certain, as we have explained. See supra at
5-7. But we need conduct no elaborate study. As shown above, the
writing of the popular press and the scale of congressionally-set
penalties demonstrate that the baseline of public debate assumes a
heavy use of machine guns in drug-related crimes. Significantly,
13 our cases provide anecdotal information that meshes with this data
and together would make § 922(o) a rational way to cabin both
violence attending the drug trade and the trade itself.*** The
*** A brief survey of recent federal cases reveals many examples. See, e.g., Smith v. United States, 113 S. Ct. 2050, 2052 (1993) (defendant in possession of a fully automatic MAC-10 and MAC-11 machine gun attempts to buy cocaine by selling the MAC-10, a gun that “apparently is a favorite among criminals” because it “can fire more than 1,000 rounds per minute”); United States v. Powell, 469 U.S. 57, 59 (1984) (search of defendant’s car yields, among other things, two kilograms of cocaine and a machine gun); County Court v. Allen, 442 U.S. 140, 143 (1979) (loaded machine gun and more than a pound of heroin found in the trunk of defendants’ car); United States v. Jones, 102 F.3d 804, 806 (6th Cir. 1996) (cocaine dealers attempt to sell federal agents a MAC-10, a MAC-11, and an AK-47, two of which have obliterated serial numbers); United States v. Agis-Meza, 99 F.3d 1052, 1054 (11th Cir. 1996) (two defendants charged with violation of § 922(o) plead guilty to possession of marijuana); United States v. Alerta, 96 F.3d 1230, 1233 (9th Cir. 1996) (two brothers arrested for methamphetamine distribution are found in possession of two fully automatic weapons: a MAC-10 and a converted TEC-9); United States v. Hawthorne, 94 F.3d 118, 120 (4th Cir. 1996) (automatic pistols used during drug transactions); U.S. v. Ulloa, 94 F.3d 949, 950-51 (5th Cir. 1996) (defendant trading cocaine for five MAC-10’s, 48 M-16’s, one UZI, and other weapons) petition for cert. filed No. 96-6914 (U.S. November 25, 1996); United States v. Cannon, 88 F.3d 1495, 1505 (8th Cir. 1996) (“The record in this case contains evidence that a machine gun is a drug dealer's most prized possession.”); United States v. Moskovits, 86 F.3d 1303, 1311 (3d Cir. 1996) (affirming a finding that a defendant convicted of distributing cocaine committed perjury when he denied owning a machine gun) petition for cert. filed No. 96-6646 (U.S. September 17, 1996); United States v. Blue, 78 F.3d 56, 58 (2d Cir. 1996) (DEA agents discover a machine gun under a mattress while searching an apartment during a cocaine investigation); United States v. Garcia, 77 F.3d 274, 275 (9th Cir. 1996) (sheriff’s deputies discover a machine gun in “a typical stash house where drugs are stored and weapons are kept to protect the merchandise”); United States v. Buchanan, 70 F.3d 818, 824-25 (5th Cir. 1995) (9mm fully automatic pistol found in car with 280 grams of crack cocaine), cert. denied, 116 S. Ct. 1366 (1996); United States v. Murphy, 69 F.3d 237, 239 (8th Cir. 1995) (defendant convicted of attempt to manufacture methamphetamine, use of a firearm in relation to a drug offense, and possession of a machine gun), cert. denied, 116 S. Ct. 1032 (1996); United States v. Brantley, 68 F.3d 1283, 1286 (11th Cir. 1995) (defendant convicted of both possession of cocaine with intent to distribute and use of a fully automatic firearm in the
14 quantity of machine guns that federal courts encounter in drug
commission of a drug offense), cert. denied, 116 S. Ct. 964, 116 S. Ct. 1334 (1996); United States v. Zermeno, 66 F.3d 1058, 1060 (9th Cir. 1995) (marijuana, packaging materials, money counters, camouflage gear, two assault rifles, a machine gun, and 1,550 rounds of ammunition found in “stash house”); United States v. Luciano-Mosquera, 63 F.3d 1142, 1149 (1st Cir. 1995) (M-16 carried onto beach during off- loading of cocaine base from boat), cert. denied, 116 S. Ct. 1879 (1996); United States v. Melendez, 60 F.3d 41, 44 (2d Cir. 1995) (heroin trafficking operation accumulates a number of machine guns and other firearms that were used to protect its operations), cert. denied, 116 S. Ct. 1020, 116 S. Ct. 900 (1996), 116 S. Ct. 429, 116 S. Ct. 258 (1995); United States v. Messino, 55 F.3d 1241, 1245 (7th Cir. 1995) (cocaine dealer sells a fully automatic machine gun with a silencer to a confidential informant); United States v. Davis, 53 F.3d 638, 639 (4th Cir. 1995) (probation of defendant who pled guilty to distributing cocaine revoked after he is seen carrying a machine gun on a college campus); United States v. Taffe, 36 F.3d 1047, 1048-49 (11th Cir. 1994) (UZI machine pistol equipped with a silencer used in heist of three bales of cocaine and fired at police officers); United States v. Thomas, 12 F.3d 1350, 1361-62 (5th Cir. 1994) (AR-15 rifle modified to fire as a machine gun used by defendant for protection because of “his line of business” in conspiracy to distribute cocaine, amphetamine, methamphetamine and marijuana), cert. denied, 114 S. Ct. 1861, 114 S. Ct. 2119 (1994); United States v. Garcia, 997 F.2d 1273, 1277 (9th Cir. 1993) (machine gun used to protect and embolden drug dealer found in house with a kilo of heroin, 4.5 kilos of cocaine, and 1.24 grams of cocaine base); United States v. Sims, 975 F.2d 1225, 1230 (6th Cir. 1992) (ATF agents discover two AR-15 rifles, converted to fire fully automatically, and 257 rounds of ammunition in the back seat of a car in connection with the arrest of defendants attempting to buy $337,500 worth of cocaine); United States v. Capote-Capote, 946 F.2d 1100, 1102-04 (5th Cir. 1991) (machine gun used to protect kilogram of cocaine), cert. denied, 504 U.S. 942 (1992); United States v. Moore, 919 F.2d 1471 (10th Cir. 1990) (loaded British Sten machine gun found in open closet of room containing cocaine, ziplock bags, weighing scale, dealing records, $3,400, and a calculator); United States v. Rogers, 921 F.2d 1089 (10th Cir. 1990) (same facts as recited in Moore), modified, 925 F.2d 1285 (10th Cir.), cert. denied, 501 U.S. 1211 (1991); United States v. Lucas, 932 F.2d 1210, 1223-24 (8th Cir.) (along with thirteen other guns, machine gun “kept at the ready” to safeguard crack house and facilitate illegal manufacture and trade in crack cocaine), cert. denied, 502 U.S. 869, 502 U.S. 949, 502 U.S. 991 (1991), 502 U.S. 1100 (1992); United States v. Matra, 841 F.2d 837, 839 (8th Cir. 1988) (machine gun, along with eight other weapons, made the crack house a “veritable fortress”).
15 cases is high enough to conclude that Congress would have had a
rational basis for a legislative judgment that prohibiting their
intrastate possession would have a substantial effect on the
interstate commerce in illegal drugs.
This rationale would not “convert the commerce power into a
reserved ‘general federal police power’” (quoting Lopez, 115 S. Ct.
at 1632). As observed, machine guns are very different weapons
from guns without the capability of automatic fire and have been
the subject of federal commerce regulation for nearly sixty years.
We would expect a national rather than a state-by-state regulatory
pattern of, say, anti-tank bazookas, plastic explosives, plutonium,
or other tools of terrorists. Federal regulation of machine guns,
as distinguished from other guns, does not bring similar invasions
of traditional state interests. Although § 922(o) and § 922(q)
both criminalize the possession of certain guns, § 922(o) ought not
be brushed off as a mere “clone” of § 922(q).
Of course, the Lopez Court insisted that we distinguish
between the regulation of crime and the regulation of commercial
activity. 115 S. Ct. at 1630-31. This case differs from Lopez in
the critical respect that criminals use machine guns to evade
regulation of the national drug trade while guns near schools have
a negligible effect on the traditionally local activity of public
education, which is not itself commercial. Crime can be interstate
business. And local intrastate criminal activity can have a
substantial effect on that interstate activity. Indeed, Congress
might rationally conclude that the relationship between “local
16 possession” of machine guns and the drug trade is even more
compelling than the ties between local loan sharking and organized
crime. See Perez v. United States, 402 U.S. 146, 157 (1971)
(“[L]oan sharking in its national setting is one way organized
interstate crime holds its guns to the heads of the poor and rich
alike and siphons funds from numerous localities to finance its
national operations.”).
The judiciary’s role in policing the process of federalism
brings hard calls, including the task of distinguishing national
economic activity from local crime. Lopez is not merely symbolic
jurisprudence. Rather, it announces that there are yet limits upon
Congress’s use of the commerce power to make a federal case out of
traditionally local concerns, particularly in criminal law
enforcement. That said, we part company with the declaration that
§ 922(o) is an invasion of the state’s traditional police power.
That the Congress has attached a criminal penalty to the possession
of a machine gun or storage of explosives does not alone mean that
it has invaded the traditional police power of the states. With
respect, that announces an outcome, not a rationale.
There is no social utility in the distribution of cocaine and
marijuana, and their interstate character is undeniable. It is no
surprise, then, that Congress “regulates” the national market in
these drugs by banning them, a ban that rationally extends to
simple possession. There is little social utility in acquiring
since 1986 operable machine guns or in making them. They are not
sporting weapons; they are weapons of war. They are guns in the
17 same sense that pussycats and tigers are both members of the cat
family. The courts have learned that a machine gun’s destructive
capacity makes it highly useful for protecting commerce in
contraband such as narcotics.
Given the rapid influx of machine guns, it is hardly
irrational to conclude that meaningful regulation of their use in
lines of interstate commerce requires regulation of this intrastate
possession. The attempt to distinguish drugs and machine guns on
the basis of fungibility fails to appreciate the fact that many
guns can easily be converted from semi-automatic to fully
automatic. See, e.g., United States v. Branch, 91 F.3d 699, 736-37
(5th Cir. 1996) (affirming a § 922(o) conviction where the
defendant used conversion kits and instructional books and
videotapes to manufacture fully automatic weapons out of semi-
automatic weapons). News reports describe the process as “so low
tech on some brands that [ATF] agents . . . have seen it done with
a paperclip.” U.S. NEWS & WORLD REPORT, April 4, 1988, at 24. As
with drugs, identifying and tracing the fully automatic nature of
machine guns is often impossible.
Efforts to minimize the consequences of striking down this
statute by reassuring that Congress can cure the defects it finds
by inserting a jurisdictional element are empty of content: for
example, it can provide penalties for possession of weapons that
are “in or affecting commerce.” With deference, this velvet over
the sword in fact erodes the logic of an otherwise not
insubstantial argument. If the present statute cannot be sustained
18 because Congress could not rationally have made a legislative
judgment of the need to freeze the post-1986 market, there is
little federal regulatory scope left; that reality should be
forthrightly acknowledged. If a legislative decision to freeze the
class is irrational, proof that an individual member of the class
had a substantial effect on commerce in a given case is problematic
if “substantial effect” is accorded a constant meaning. So those
who would strike this statute cast themselves as protecting state
interests by insisting that the Commerce Clause empowers Congress
to outlaw only those machine guns where in a specific case the
government proves that the use of the machine gun was in commerce
or affecting commerce. The irony is that this requirement is more
intrusive of state interests than the test we apply and they
reject. It is more tolerant of federal intrusion because it may be
met by showing merely that a gun “has previously traveled in
interstate commerce.” United States v. Bass, 404 U.S. 336, 350
(1971). That is, this minimal nexus to commerce could give
Congress more latitude in exercising its federal commerce power
than the substantial-effects test we have employed here. A case-
by-case inquiry into whether the defendant possessed a gun that was
once in interstate commerce, even “after any number of intermediate
sales within the State and after any lapse of time,” United States
v. Sullivan, 332 U.S. 689, 693 (1948), would allow federal
regulation of items that, taken as a class, have virtually no
effect on interstate commerce. It would concede congressional
power to outlaw possession of guns in general, an upset of a
19 traditional state-federal balance and a concession we are not
persuaded to make. Lopez would indeed look more like symbolic
jurisprudence with little real implementation of the federalist
arrangement of our Constitution. After all, few guns have never
crossed a state line. It is not for us to say that Bass cannot
survive Lopez. We would not embrace it, however, to support a
rejection of a less intrusive inquiry.
In general, judges are not equipped by training to engage in
elaborate empirical studies; more importantly, the courts are
institutionally ill-equipped. Deference to Congress does not
require courts to leave their traditional roles by pursuing
empirical research. But it does require courts not to ignore the
obvious, at least when the obvious is born of judicial experience.
We need look no further than our considerable experience with the
drug market and the role of automatic weapons in that activity.
Based on that experience, we are comfortable in concluding that
Congress could have rationally found the required nexus between its
careful regulation of the possession of machine guns and the
interstate commerce in, for example, illegal drugs, as well as the
attendant commerce in machine guns alone. The federal government
has the power under the Commerce Clause to wage the war on drugs.
It equally has the power to freeze the escalating destructive power
of the weapons of that war, the automatic firepower drawn by the
drug trade.
Automatic and non-automatic weapons fire on different planes,
functionally and legally. Guns without the capability of automatic
20 fire are lawfully found in the hands of thousands of persons across
the country. The states have traditionally regulated these
weapons, indeed virtually all guns, except the machine gun. We
weigh the absence of congressional findings against the
constitutionality of § 922(o), but given the facts we have outlined
conclude that the absence of an invasion of a traditional state
interest tilts this case in favor of the constitutionality of the
statute. Saying so pulls no teeth from Lopez and sounds no retreat
from the judicial scrutiny of efforts to make federal cases of
state crimes.
21 EDITH H. JONES, Circuit Judge, joined by GARWOOD, JOLLY, SMITH, DUHE’, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges, would reverse for the following reasons:
This appeal has provided an occasion for our en banc
court to consider the breadth of Congress’s power to enact criminal
laws under the Commerce Clause in light of United States v. Lopez,
__ U.S. __, 115 S. Ct. 1624 (1995). The specific issue is whether
Congress breached its Commerce Clause authority in enacting 18
U.S.C. § 922(o), which was the basis for appellant Kirk’s
conviction for the wholly intrastate possession of a machinegun.
Half of the judges participating in this en banc**** rehearing
conclude that Lopez has more than mere symbolic significance.
Carefully applied, it compels the conclusion that the § 922(o) ban
on mere intrastate possession of a machinegun exceeds Congress’
authority “[t]o regulate Commerce . . . among the several States.”
U.S. Const., Art. 1, § 8, cl.3. The other half of the
participating judges disagree with this conclusion, although their
reasoning differs. Kirk’s conviction must be affirmed by an
equally divided court, but the importance and recurring nature of
these issues lead us to publish this opinion.
I. BACKGROUND
William J. Kirk was charged in a four-count indictment
with violations of 18 U.S.C. § 922(o)(1988). The indictment
charged Kirk with two counts of unlawful possession of a machinegun
(Counts One and Three); and two counts of unlawful transfer of a
**** Judge Benavides was recused from consideration of this case.
22 machinegun (Counts Two and Four).***** The possession counts make no
mention of interstate commerce or of any connection between Kirk’s
machinegun or his possession of it with commerce, interstate or
otherwise. Kirk moved to dismiss the indictment, contending in
part that § 922(o) exceeds Congress’ delegated powers under the
Commerce Clause in that it punishes the transfer or possession of
a machinegun with no showing that the intrastate transfer or
possession affects interstate commerce. The district court denied
the motion to dismiss. Kirk then pled guilty to Count One for
unlawful possession of a machinegun, reserving his right to appeal
the denial of his pre-trial constitutional challenge to § 922(o).
A divided panel of this court rejected Kirk’s
constitutional challenge and affirmed his conviction. United
States v. Kirk, 70 F.3d 791 (5th Cir. 1995), reh’g en banc granted,
78 F.3d 160 (5th Cir. 1996). Because this case poses similar
constitutional questions to those presented in United States v.
Lopez, __ U.S. __, 115 S. Ct. 1624 (1995), we granted rehearing en
***** For purposes of 18 U.S.C. § 922(o), a “machinegun” is defined as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.” 26 U.S.C. § 5845(b)(1988); see 18 U.S.C. § 921(a)(23).
23 banc, vacating the panel opinion to determine the constitutionality
of the § 922(o) ban on the possession of machineguns.******
II. PREFACE
The language and legislative history of § 922(o) and a
brief discussion of Lopez form a backdrop for further analysis.
A. Section 922(o)
In 1986 Congress amended the Gun Control Act of 1968, 18
U.S.C. §§ 921-28, with the passage of the Firearms Owners’
Protection Act (FOPA), Pub. L. No. 99-308, 100 Stat. 449 (1986).
Section 102(9) of FOPA added § 922(o) to the existing statute. 100
Stat. at 453. Section 922(o) provides:
(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to--
(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.
18 U.S.C. § 922(o). Section 922(o) became effective May 19, 1986.
See FOPA § 110(c), 100 Stat. at 461 (effective date).
The legislative history of § 922(o) is sparse. See David
T. Hardy, The Firearms Owners’ Protection Act: A Historical and
****** With certain exceptions, § 922(o) bans both the transfer and possession of machineguns. See infra part II. We need not consider here the constitutionality of § 922(o)’s restriction on the transfer of machineguns. The prohibition on the transfer of machineguns raises different constitutional questions than those raised by § 922(o)’s ban on their mere possession.
24 Legal Perspective, 17 Cumb. L. Rev. 585, 669-71 (1987). Section
922(o) was added to FOPA as a last minute amendment on the House
floor and its provisions were not debated. See United States v.
Wilks, 58 F.3d 1518, 1519 (10th Cir. 1995); United States v. Lopez,
2 F.3d 1342, 1356 (5th Cir. 1993), aff’d, __ U.S. __, 115 S. Ct.
1624 (1995); 132 Cong. Rec. H1750-52 (daily ed. April 10, 1986);
Hardy, supra, at 670. The only apparent explanation for § 922(o)
is a statement from its sponsor, Representative Hughes, who,
rushing to explain his position before the time for debate expired,
stated, “I do not know why anyone would object to the banning of
machineguns.” 132 Cong. Rec. H1750 (daily ed. April 10, 1986). No
other reference to § 922(o) appears in committee reports or
elsewhere, with the exception of a brief Senate colloquy primarily
concerned with the scope of the provision’s exemptions as they
relate to machinegun manufacturers and government-authorized
machineguns. 132 Cong. Rec. S5358-62 (daily ed. May 6, 1986);
Hardy, supra, at 670-71 & nn. 462-463.******* Thus, the legislative
******* Following a colloquy between Senators Hatch and Dole concerning the exemptions contained in § 922(o), Senator Metzenbaum expressed concern that the colloquy did not express the correct interpretation of the amendment. In partial response, Senator McClure stated: “I know that the Senator [Metzenbaum] from Ohio has interposed a reservation with respect to my request. I take this time only to say to the Senator from Ohio that this discussion [concerning § 922(o)] is up at all because the other body injected some language at the very last minute, literally, of their debate, and there is no legislative history as to what that language means. There are a substantial number of House Members as well as other interested parties who have asked questions about what it means; and what we are trying to do is provide some legislative history as to our understanding of what the House provision means, since the House itself had no legislative history on this subject.” 132 Cong. Rec. S5361-62 (daily ed. May 6, 1986).
25 history of § 922(o) itself provides no insight into the
relationship between § 922(o) and interstate commerce.
B. United States v. Lopez
In United States v. Lopez, __ U.S. __, 115 S. Ct. 1624
(1995), the Supreme Court considered the constitutionality of 18
U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V), which banned the
possession of firearms near a school and which had been overturned
in this court. United States v. Lopez, 2 F.3d 1342 (5th Cir.
1993).******** The Court recognized that Congressional power over
interstate commerce under the Commerce Clause extends to (1)
legislation regulating “the use of the channels of interstate
commerce;” (2) laws regulating and protecting “the
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities;” and (3) regulations of intrastate
activities that have a substantial effect on interstate commerce.
Id. at __, 115 S. Ct. at 1629-30.
Each of these categories of cases represents a distinct
way, exemplified by the Court’s chosen citations, to describe the
impact of federal legislation upon interstate commerce. See United
States v. Robertson, ___ U.S. ___, 115 S.Ct. 1732 (1995). Before
going further, we note that although Lopez does not explicitly
abandon the deferential rational basis standard of review, see,
******** Section 922(q)(1)(A) was enacted as part of the Gun-Free School Zone Act of 1990 and provides: “It shall be unlawful for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.”
26 e.g., Hodel v. Virginia Surface Mining & Reclamations Ass’n, Inc.,
452 U.S. 264, 276-80, 101 S.Ct. 2352, 2360-61 (1981), neither does
the Court defer unblinkingly to Congress’s judgment. Indeed, the
Court’s citations emphasize that it is the judicial duty ultimately
to review conformity of legislation to the Commerce Clause. Lopez,
115 S.Ct. at 1629 n.2; see also Hodel, 452 U.S. at 311, 101 S.Ct.
at 2391-92 (“simply because Congress may conclude that a particular
activity substantially affects interstate commerce does not
necessarily make it so.”) (Rehnquist, J. concurring in judgment).
As Lopez demonstrates, exercise of this duty requires independent
judicial scrutiny of the reasons advanced to explain why the
regulation is necessary to protect interstate commerce. Even a
statutorily imposed requirement of a jurisdictional nexus to
interstate commerce will not insulate a provision from judicial
review. See, e.g., United States v. Pappadopoulos, 64 F.3d 522,
527 (9th Cir. 1995).*********
Moving to a more detailed consideration of the Lopez
categories, regulation of the “channels of interstate commerce,”
the first category, is limited to direct regulation of the
interstate channels themselves. The cases cited in Lopez, or by
********* “. . . where Congress seeks to regulate a purely intrastate noncommercial activity that has traditionally been subject to exclusive regulation by state or local government, and where the connection of the regulated activity as a whole to interstate commerce is neither readily apparent nor illuminated by express congressional findings, the government must satisfy the jurisdictional requirement by pointing to a “substantial” effect on or connection to interstate commerce.” Pappadopoulos, 64 F.3d at 527 (holding arson directed against a private home not sufficiently related to interstate commerce).
27 its reference to Perez v. United States, 402 U.S. 146, 91 S. Ct.
1357, 1359 (1971), to describe the first category involve statutes
that contain an express jurisdictional nexus element. See, e.g.,
18 U.S.C. §§ 2312-2315 (interstate shipment of stolen goods); 18
U.S.C. § 1201 (interstate transport of kidnaping victims); United
States v. Darby, 312 U.S. 100, 61 S. Ct. 451 (1941) (regulation of
working conditions in the production of goods “for interstate
commerce”). This category must be limited to legislation that
specifically reaches interstate transfers, possessions, and
transactions and business “engaged in commerce.” United States v.
Robertson, supra at ___, 115 S.Ct. at 1733 (goldmine “engaged in
commerce”).
The second category of Commerce Clause power permits laws
regulating or protecting instruments of interstate commerce, or
persons or things in interstate commerce, even though the threat
may derive from intrastate activity. The Court cites in this
connection the Shreveport Rate Cases, 234 U.S. 342, 34 S.Ct. 833
(1914), which upheld rate regulation of a railroad engaged in
interstate commerce, and Southern Railway Company v. United States,
222 U.S. 20, 32 S.Ct. 2 (1911), permitting regulation of interstate
railway safety. The Court also cites a statute criminalizing the
destruction of aircraft used in interstate commerce, 18 U.S.C.
§ 32, and vehicle thefts from interstate shipments, 18 U.S.C.
§ 659. This category includes regulation or protection pertaining
to instrumentalities or things as they move in interstate commerce.
With regard to the third category of cases, as the Court
28 put it, “the pattern is clear.” Lopez, ____ U.S. at ____, 115
S.Ct. at 1630. Federal regulation of even intrastate economic
activity will be sustained if the activity substantially affects
interstate commerce. The Court’s citations again bear out its
purpose. See Hodel v. Virginia Surface Mining & Reclamation Ass’n,
Inc., 452 U.S. 264, 276-280, 101 S.Ct. 2352, 2360-61 (1981)
(upholding regulation of intrastate coal mining); Perez v. United
States, supra (intrastate extortionate credit transactions);
Katzenbach v. McClung, 379 U.S. 294, 299-301, 85 S.Ct. 377, 381-382
(1964) (restaurants utilizing substantial interstate supplies);
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-
253, 85 S.Ct. 348, 354-355 (1964) (inns and hotels catering to
interstate guests). All of the cases involved economic regulations
or legislation bearing on commercial activity, and in those cases,
the intrastate activity either substantially affected interstate
commerce, or it had to be regulated in order not to undercut a
federal commercial regulatory scheme. Lopez, ___ U.S. at ___, 115
S.Ct. at 1631.**********
The Court majority agreed that § 922(q) neither regulates
“the channels of interstate commerce” nor protects “an
instrumentality of interstate commerce or a thing in interstate
commerce,” id. at __, 115 S.Ct. at 1630. The problem in Lopez
********** See also United States v. Robertson, supra, (“The ‘affecting commerce’ test was developed in our jurisprudence to define the extent of Congress’s power over purely intrastate commercial activities that nonetheless have substantial interstate effects.”); United States v. DiSanto, 86 F.3d 1238, 1245 (1st Cir. 1996).
29 centered on the third category of Commerce Clause power. There are
three steps to the Court’s analysis of the substantial effects
test. The threshold question is whether the local activity sought
to be regulated is commercial in nature, or whether its regulation
is necessary to effectuate federal regulation of a larger
commercial activity. The majority agreed that the ban on
possession of a gun in a school zone fails to “substantially affect
any sort of interstate commerce.” Id. at __, 115 S.Ct. at 1634.
Further, § 922(q) “by its terms has nothing to do with ‘commerce’
or any sort of economic enterprise, however broadly one might
define those terms.” Id. at 1630-31. The majority easily rejected
the notion that the act of possessing a gun in a school zone is
subject to federal regulation because, viewed in the aggregate,
such acts substantially affect interstate commerce. Lopez, 115
S.Ct. 1631. What this means is that non-commercial intrastate acts
may not be deemed commercial, for purposes of extending federal
regulation, simply by considering them en masse;*********** such
activities are only subject to federal regulation if their
regulation is essential to a larger economic regulatory scheme.
Lopez thus holds that “commercial activity” is not a definitional
vacuum waiting to be filled by a creative Congress and judges.
*********** This reasoning does not undermine Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82 (1942), because the farmer’s activity there, albeit local, directly distorted the federally controlled market for wheat. Lopez, 115 S.Ct. at 1630. Nevertheless, the Court’s analysis does not hold that any intrastate commercial activity is regulable by Congress simply because it is commercial -- the substantial effects test must be met to ensure a sufficient connection with interstate commerce.
30 While the Court acknowledges that characterizing an intrastate
activity as commercial or non-commercial may create some legal
uncertainty, 115 S.Ct. at 1633, the Court’s conclusion regarding
the purely criminal provision, § 922(q), caused no interpretive
difficulty to the majority. Lopez sends a clear cautionary signal
that federal criminalization of intrastate noneconomic activity,
when such regulation is not essential to a broader regulation of
commercial activity, will have difficulty satisfying the
substantial effects basis for Commerce Clause regulation.
The second element of the substantial effects test is
whether the statute contains a jurisdictional nexus to interstate
commerce. Lopez commented on the absence of any jurisdictional
nexus requirement in § 922(q) that would insure, through case-by-
case inquiry, that a particular firearm possession substantially
affects interstate commerce. Lopez illustrated how a
jurisdictional nexus requirement could save a statute from
Constitutional infirmity by describing United States v. Bass, 404
U.S. 336, 92 S.Ct. 515 (1971). The provision at issue in Bass
criminalized, inter alia, a felon’s possession of a firearm “in
commerce or affecting commerce.” Former 18 U.S.C. § 1202(a). The
government convicted Bass without offering proof of a nexus to
interstate commerce. The Court reversed the conviction for this
omission and “thus interpreted the statute to reserve the
Constitutional question whether Congress could regulate, without
more, the ‘mere possession’ of firearms.” Lopez, ___ U.S. at ___,
115 S.Ct. at 1624 (citing Bass, 404 U.S. at 339, n.4, 92 S.Ct. at
31 518, n.4). As previously noted, a jurisdictional nexus requirement
does not ipso facto validate a statute against an as-applied
Commerce Clause challenge,************ but its existence is reassuring
against a facial challenge.
The final element of the substantial effects inquiry is
whether there are limits in the statute that mark a boundary of
some sort between matters of truly national concern and those
traditionally subject to state regulation. In this connection, the
Court acknowledged that legislative findings, while not legally
necessary, would facilitate judicial review of the substantial
effects question. Lopez, ____ U.S. at ____, 115 S.Ct. at 1631-32;
Perez, supra, 402 U.S. at 156, 91 S.Ct. at 1362. No such findings
accompanied § 922(q), however. The Court also agreed with the
Fifth Circuit************* that legislative findings pertaining to
previous firearms statutes could not be imported into the analysis
of § 922(q). ____ U.S. at ____, 115 S.Ct. at 1632. The Court
finally rejected both the “costs of crime” and “national
productivity” theories proffered by the federal government to
demonstrate substantial interstate commerce effects, and it
rejected Justice Breyer’s equation of education with commercial
activity. 115 S.Ct. at 1632-34. Neither of these attenuated
strings of logic, according to Lopez, furnishes any principled
************ See United States v. Collins, 40 F.3d 95, 99-101 (5th Cir. 1994) (robbery of an individual victim lacks sufficient nexus to interstate commerce to prosecute under Hobbs Act). ************* United States v. Lopez, 2 F.3d at 1366.
32 limit on federal power in areas such as criminal law enforcement or
education, where states have traditionally been sovereign.
III. DISCUSSION
On its face, § 922(o) seems a clone of § 922(q), the
provisions struck down in Lopez. The statute bans for present
purposes “mere possession” of machineguns manufactured or imported
after 1986; it is supported neither by a jurisdictional nexus
requirement nor by salvaging legislative findings; it is a
criminal, not an economic regulatory provision; and it clearly
overlaps state and local law enforcement authority. Other circuit
courts and other judges in this court, however, have not seen it
that way,************** although their reasons for upholding the statute
differ significantly. Most of these cases err by assuming that
every intrastate possession of machineguns involves interstate
commerce. That error leads to misapplication of the first and
second categories of Commerce Clause cases described by Lopez, and
to an untenable distinction between § 922(o) and § 922(q) when the
third Lopez category is considered. The errors in other cases are
best exposed by our analysis,*************** which will discuss § 922(o)
************** United States v. Kenney, 91 F.3d 884 (7th Cir. 1996); United States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996); United States v. Rambo, 74 F.3d 948 (9th Cir. 1996); United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995); United States v. Rybar, ___ F.3d ___, 1996 WL 740084 (3d Cir. Dec. 30, 1996). *************** Judge Parker and Judge Higginbotham imply that this analysis strays from the rational basis test for evaluating the constitutionality of legislation. Not so. First, as a general principle, following Lopez, the rational basis test will apply the data created, referenced or expressed by Congress in conjunction with an enactment to the three aspects of federal commerce clause power described in Lopez. That is what we have done here, hampered
33 under each category of Lopez, and which takes Lopez seriously as
establishing at least an outer boundary on Congress’s criminal
jurisdiction under the Commerce Clause.***************
A. Does § 922(o) Regulate “Channels of” or “Things in” Interstate Commerce?
The Government contends that § 922(o) may be justified
under either of the first two Lopez categories, as a regulation of
the channels of interstate commerce or of a thing in interstate
commerce. There is circuit court support for each position. See
by the absence of data from Congress concerning how banning the possession of machineguns nationwide involves or substantially affects interstate commerce. Second, the rational basis test assumes the existence of data created or referenced in the legislative process whose rationality can be analyzed. Here, there are no relevant data relating the ban on mere intrastate possession of machineguns by § 922(o) to Congress’s interstate commerce jurisdiction. There are no legislative findings, no committee reports, and no pertinent Congressional debate that “would enable us 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, 115 S.Ct. at 1632. Most important, there is neither an explicit jurisdictional nexus requirement nor any other tie to interstate commerce apparent from the statutory architecture. It is not this court’s responsibility or place to invent a rational basis for Congress. Third, the absence of such data mirrors the situation before the Court in Lopez and reinforces the consistency between these two cases. In Lopez, Congress had not endeavored in § 922(q) to express any connection between interstate commerce and possession of a gun in a school zone. Unlike the majority, the dissent there was willing to create a factual backdrop for the statute, just as Judges Parker and Higginbotham seek to do here. *************** It would be a mistake to argue that because Justices Kennedy and O’Connor concurred in Lopez and joined a separate writing, the Lopez analysis is not definitive. The two justices joined and endorsed Justice Rehnquist’s majority opinion. (“As the Chief Justice explains, unlike the earlier cases to come before the Court, here neither the actors nor their conduct have a commercial character, and neither the purposes nor the design of the statute have an evident commercial nexus.” Lopez, ___ U.S. at ___, 115 S.Ct. at 1640 (Kennedy, J., citing Rehnquist opinion).
34 United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995) (upholding
§ 922(o) as regulation of a thing in interstate commerce); United
States v. Rambo, 74 F.3d 948 (9th Cir. 1996) (§ 922(o) valid as
regulation of channels of interstate commerce); United States v.
Beuckelaere, 91 F.3d 781 (6th Cir. 1996) (§ 922(o) valid under all
three Lopez categories); but see United States v. Kenney, 91 F.3d
884 (7th Cir. 1996) (§ 922(o) upheld only under substantial effects
prong of Lopez).
1. The Channels of Interstate Commerce
Recourse to the first two Lopez categories suffers
initially, however, from a serious factual error. Proponents of
the constitutionality of § 922(o) assume that every possession of
a machinegun manufactured after May 19, 1986, excepting only the
narrow class of possessions permitted in the statute, connotes that
the gun traveled or was transferred in interstate commerce. These
decisions overlook that an automatic weapon may be created by
modifying a semiautomatic weapon, see United States v. Jones, 976
F.2d 176, 178 (4th Cir. 1992), cert. denied 508 U.S. 914, 113 S.Ct.
2351 (1993) (describing home conversion of shotguns), or that it
may evolve from ordinary wear and tear on a semiautomatic firearm.
In United States v. Anderson, 885 F.2d 1248, 1250-51 (5th Cir.
1989) (en banc), this court recognized that “[s]everal of the most
popular shotgun models, many handguns, and not a few rifles” can by
“either wear and tear or a simple operation” become “machineguns”
within the statutory definition. Section 922(o) would therefore
prohibit the simple possession of an ordinary semi-automatic pistol
35 whose sear wore off in 1987. Shorn of the misunderstanding that
illegal possession cannot occur without illegal transfer***************,
§ 922(o) plainly reaches mere intrastate possession of machineguns
as well as possession of machineguns which have illegally moved or
been transferred in interstate commerce. Any decision upholding
§ 922(o) under Lopez must come to grips with this reality.
Rambo, for instance, seeks to justify § 922(o) as
regulating the channels of interstate commerce because it is “an
attempt to prohibit the interstate transportation of a commodity
through the channels of commerce.” Rambo, 74 F.3d at 951, citing
Lopez, ___ U.S. at ___, 115 S.Ct. at 1630. But because § 922(o)
also prohibits purely intrastate possession of machineguns, Rambo’s
logic proves too much. The first Lopez category, as earlier
described, included cases that were distinguished by express
jurisdictional nexus requirements to movements or transactions in
interstate commerce. In Kenney, the court rejected the channels of
commerce rationale for § 922(o) on this basis:
. . . although it may be true that Congress must regulate intrastate transfers and even mere possessions of machineguns in aid of its prerogative of preventing the misuse of the channels of interstate commerce, the regulation still regulates much more than the channels of commerce.
91 F.3d at 889.
Lopez summarily rejected the argument that banning
firearm possession in school zones regulates the channels of
*************** United States v. Kirk, 70 F.3d 791, 796 (5th Cir. 1995); Rambo, supra, 74 F.3d at 952 (same); Beuckelaere, supra, 91 F.3d at 783 (same).
36 commerce. Section 922(o) does not more clearly express a nexus to
channels of commerce than did its virtual clone, § 922(q), the
Lopez provision. To disregard the similarity of the provisions
trifles with Lopez. Section 922(o) is limited neither to transfers
nor to possession in or even affecting interstate commerce. It
criminalizes, as in this case, the mere possession of a machinegun
independent of any type of transfer. This provision does not
regulate the channels of interstate commerce. Decisions like Rambo
and the panel opinion, in holding otherwise, have distorted the
channels of commerce rationale and are attempting to read a statute
which does not exist.
Cases relying on the channels of commerce rationale also
misplace emphasis on the temporal limit on the possession ban and
the dangerousness of the product. Neither of these characteristics
more closely aligns § 922(o) with a regulation of the channels of
interstate commerce. The grandfather clause of the ban applies it
only to machineguns manufactured or imported after May of 1986, but
that feature fails to enhance its relation to interstate
commerce.*************** After 1986, both interstate and wholly
intrastate private possessions are prohibited, yet there are no
Congressional findings that this drastic impact upon intrastate
activity was connected to or mandated by a relation to the channels
*************** The effect of the grandfather clause does, paradoxically, assure a nexus between interstate commerce and criminal possession of pre-1986 unlawfully possessed machineguns, because, as this court’s Lopez opinion noted, pre-1986 regulatory laws expressly embodied a jurisdictional nexus to commerce. See Lopez, 2 F.3d at 1356, n.29.
37 of interstate commerce. Similarly, the fact that machineguns are a
dangerous commodity does not place them more or less within the
channels of commerce for purposes of federal regulation. United
States v. Bishop, 66 F.3d 569, 587 n.28 (3d Cir. 1995) (“The
dangerousness of the object is not the source of Congressional
power; the connection to interstate commerce is.”) Baseball cards
as well as toxic chemicals can be regulated by Congress only if
there is a necessary relationship to interstate commerce. The
argument based on dangerousness is more closely attuned to
justifying a national police power than a national commerce power.
Lopez reminded us that the Constitution does not confer a general
police power upon the federal government. Lopez, ___ U.S. at ___,
115 S.Ct. at 1634.
2. Things in Interstate Commerce
The flawed premise underlying regulating machineguns as
“things in interstate commerce” is that they are by their nature a
commodity “transferred across state lines for profit by business
entities.” Wilks, 58 F.3d at 1521 (citation omitted). We agree
again with the Seventh Circuit’s criticism of this reasoning,
because “the regulation is much broader than the category.”
Kenney, 91 F.3d at 889. The second Lopez/Perez category, as
previously explained, includes regulations of instrumentalities or
things -- such as interstate transportation rates and safety
regulations -- whose nexus to interstate commerce is obvious.
Thus, again to quote Kenney:
The Wilks court’s observation that “[t]he interstate flow of machineguns ‘not only has a
38 substantial effect on interstate commerce; it is interstate commerce,’” 58 F.3d at 1521 [(quoting United States v. Hunter, 843 F. Supp. 235, 249 (E.D. Mich. 1994)) (emphasis in original)], is correct as far as it goes, but it does not address the different question of the propriety of § 922(o)’s regulation of intrastate possession and transfer.
91 F.3d. at 889.
Criminal possession of a machinegun after May 19, 1986
under § 922(o) is not dependent on or related to the movement of
the machinegun in interstate commerce, and it is not “bound up with
interstate attributes.” Wilks, 58 F.3d at 1521. Further, not all
commerce is interstate commerce, as commerce “which is completely
internal, which is carried on between man and man in a state, or
between different parts of the same state, and which does not
extend to or affect other States” is not commerce within the
meaning of the Commerce Clause. Gibbons v. Ogden, 22 U.S. 1, 194
(1824). The Wilks reasoning makes the things in commerce basis of
Commerce Clause regulation limitless, contrary to its purpose.
Nor are we persuaded that § 922(o) can be upheld on the
basis of legislative findings -- eighteen years old when § 922(o)
was enacted -- contained in the Omnibus Act*************** and the Gun
Control Act of 1968.*************** Cases such as Wilks have sought to
enhance the things in commerce rationale by describing § 922(o) as
an incremental development in a seamless web of federal firearm
*************** Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (1968). *************** Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (1968).
39 regulation. Wilks, 58 F.3d at 1521-22. But as explained in detail
by Judge Garwood’s opinion in Lopez, all previous federal gun
control laws have been expressly tied to the conduct of the
firearms business, a business whose inter- and intra-state
activities are clearly commercial. See Lopez, 2 F.3d at 1348-57.
The Supreme Court in Lopez approved this court’s reading of the
general legislative history and pattern of previous federal
firearms legislation, Lopez, __ U.S. at __, 115 S.Ct. at 1632, and
refused to rest on Congressional findings from other statutes to
justify § 922(q). Id. at __, 115 S.Ct. at 1632. Like the Supreme
Court in Lopez, and unlike Wilks, we find reliance on Congressional
findings from previous federal firearms legislation inappropriate
to support the § 922(o) possession ban. See Lopez, 2 F.3d at 1357
n.31.
Reliance on findings from other legislation not only
contradicts the Supreme Court, it is a misleading indicator of the
relevant gun control law. The Congressional findings relating to
FOPA indicate that the Act’s purpose was to secure the rights of
citizens to possess firearms and to ensure that no “undue or
unnecessary Federal restrictions” are placed on citizens “with
respect to the acquisition, possession or use of firearms.” FOPA
§ 1(b)(2), 100 Stat. at 449 (emphasis added) (quoting Gun Control
Act of 1968 § 101, 82 Stat. at 1213-14 (1968)).*************** Neither
*************** Additionally, § 1 of FOPA contains Congressional findings that the rights of citizens “to keep and bear arms under the second amendment of the United States Constitution . . . require[s] additional legislation to correct existing firearms statutes and enforcement policies.” FOPA § 1(b)(1)(A), 100 Stat. at
40 the language of § 922(o) nor its legislative history provides any
indication that Congress viewed the prohibition on possession of
machineguns as an essential part of a broader regulatory scheme or
that Congress considered the relationship between the ban on
possession of machineguns and interstate commerce.
In comparison to § 922(o), which lacks any reference to
interstate commerce, Congress specifically tied other regulations
enacted concurrently with § 922(o) to interstate commerce. FOPA
§ 102, 100 Stat. at 451-52.*************** Two other provisions
contained in § 922 were amended and one new subsection was added to
§ 922(o). FOPA § 102, 100 Stat. at 451-53. Congress thus
maintained the “basic jurisdictional structure” found in previous
firearms legislation, which required the “licensing of all firearms
449. *************** Section 922(g) was amended to provide that it would be unlawful for certain persons (as defined by § 922(g)) - “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” FOPA § 102, 100 Stat. at 452.
Section 922(h) was replaced in its entirety and states: ”It shall be unlawful for any individual, who to that individual’s knowledge and while being employed for any person described in any paragraph of subsection (g) of this section, in the course of such employment -- (1) to receive, possess, or transport any firearm or ammunition in or affecting interstate or foreign commerce; or (2) to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Id.
Section 922(n) was added to § 922 and provides: “It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate commerce.” Id.
41 dealers and manufacturers, . . . and in all other instances
[provided] an express nexus either to interstate commerce or to the
activity of, or dealing with, federally licensed dealers or
manufacturers. . . .” Lopez, 2 F.3d at 1354. Unlike § 922(o) and
(q), these other regulations, however, are grounded in either
Congress’ taxing powers, or are expressly tied to interstate or
foreign commerce. Id. at 1354-57. Neither the language of § 922(o)
nor its legislative history supports a finding that the ban on
possession of machineguns regulates only machineguns connected with
interstate commerce. See supra part II.A. Section 922(o) stands
isolated from the rest of the FOPA because it conspicuously lacks
either a nexus to commerce or the support of findings that banning
mere intrastate possession of machineguns is essential to
effectuate federal regulation. Section 922(o) cannot be upheld as
a permissible regulation of a “thing” in interstate
commerce.***************
B. Does § 922(o) “Substantially Affect” Interstate Commerce?
The essential question in this case as in Lopez becomes
whether § 922(o) represents a valid exercise of Congressional
authority to regulate an activity “substantially affecting”
*************** Section 922(o) also does not regulate an “instrumentality” of interstate commerce. Like § 922(q) in Lopez, § 922(o) regulates mere possession of a machinegun, regardless of its movement in interstate commerce. See Lopez, __ U.S. at __, 115 S.Ct. at 1630; see also Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359 (1971)(aircraft are instrumentalities); Shreveport Rate Cases, 234 U.S. 342, 351, 34 S.Ct. 833, 836 (1914)(interstate carriers are instruments of interstate commerce). Section 922(o) therefore fails to regulate an instrumentality of interstate commerce.
42 interstate commerce. “Where economic activity substantially affects
interstate commerce, legislation regulating that activity will be
sustained.” Lopez, __ U.S. at __, 115 S.Ct. at 1630.
The Government contends that § 922(o) has the requisite
effect, as it is part of a comprehensive approach to the regulation
of machineguns and that a single intrastate possession or transfer
of a machinegun is nationally significant because of the cumulative
effect such a transaction has on the supply-and-demand for
machineguns. In a similar vein, Kenney argues that both the nature
of § 922(o) and the history of federal firearms legislation support
the provision’s consistency with the post-Lopez scope of the
Commerce Clause. Kenney first analogizes the banning of private
post-1986 machinegun possession to the farmer’s harvest of
excessive wheat in Wickard v. Filburn, 317 U.S. at 125, 63 S.Ct. at
89, and concludes, “. . . there is a rational basis to regulate the
local conduct of machinegun possession, including possession
resulting from home manufacture, to effectuate § 922(o)’s purpose
of freezing the number of legally possessed machineguns at 1986
levels, an effect that is closely entwined with regulating
interstate commerce.” 91 F.3d at 890. Kenney also describes the
possession ban as rooted in a sixty-year history of federal
machinegun regulation and thus as an incremental step in federal
firearms regulation; it is a measure commanding “deference to
Congress’s accumulated institutional expertise.” Id.
Among the three elements of Lopez’s substantial effects
test, the first and most critical is that of characterization:
43 whether § 922(o) fulfills the mission of regulating interstate
commerce as (1) a regulation of economic activity which, although
itself local, has substantial effect on interstate commerce, or
(2) a regulation of activity which is essential to maintaining a
larger, interstate regime of economic regulation. Neither Kenney
nor the government in supporting § 922(o) has characterized it as
a regulation of economic activity. It is not. It 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,___ U.S. at ___, 115 S.Ct. at 1630-31.
Defenders of § 922(o) argue instead that the possession
ban is an essential part of the regulation of “commercial
activity,” either to insure federal control of the market for
machineguns or to enforce a freeze on the number of available
machineguns. See, e.g. Beuckelaere, 91 F.3d at 785; Kenney, 91
F.3d at 890. No doubt Congress has undertaken fully to regulate
the business of firearms dealing, insofar as sales and transfers in
or affecting commerce are concerned.*************** But as we have
repeatedly noted, mere intrastate possession of a machinegun does
not necessarily involve a transfer or an economic transaction of
any kind.***************
*************** See generally Lopez, 2 F.3d 1342, 1348-1360 (Garwood, J.), reciting the history of federal firearms legislation. *************** Taking a different slant at the substantial effects test, Judge Higginbotham’s novel approach to the test pays verbal obeisance to Lopez while seriously undermining it. Judge Higginbotham posits that rational basis review should lead federal courts to uphold the possession ban based on “facts ... within our [judges’] easy reach.” Lacking any data from the legislative
44 Moreover, the analogy to Wickard is flawed. In Wickard,
the government’s agricultural program aimed to control and support
prices in the wheat market. Filburn’s consumption of home-grown
wheat substituted for the controlled wheat, impairing to that
extent the price support effort. Section 922(o), by contrast,
intends to extirpate any domestic commercial market for machineguns
manufactured or imported after 1986. Even if this goal constitutes
a legitimate regulation of interstate commerce, it does not follow
that criminalizing purely private, intrastate possession is
necessary to eliminate the market. Section 922(o) also prohibits
transfers of machineguns and, to the extent it represents a
permissible exercise of Commerce Clause power,*************** that
prohibition aims directly and completely at commercial activity in
machineguns. Private possession of a machinegun does not involve
a market activity, and there is no legitimate market in which a
substitution effect would occur.
process, his opinion stitches together bits of news articles, statistics, and Congressional testimony from unrelated hearings to conclude that Congress might have banned machinegun possession to stem the illegal drug trade. His is an interesting empirical creation, but methodologically it follows Justice Breyer’s dissent in Lopez. More troubling, Judge Higginbotham’s opinion begs the question: it never explains why banning the wholly intrastate, non-crime-related, noncommercial personal possession of a machinegun is reasonably or substantially necessary to control use of these firearms in the illegal drug trade or other interstate commerce. Unlike the Lopez majority, his opinion ultimately substitutes wholesale deference to Congress for any attempt to define the boundaries of the commerce clause, even in noncommercial criminal statutes like § 922(o). *************** Not all transfers are commercial in nature. Transfers by gift or by succession would not be.
45 Another way of explaining the superfluousness of the
§ 922(o) ban on possession is to compare firearms regulation to the
narcotics trafficking laws. Not only are most of those criminal
provisions also expressly tied to the commerce in illegal
controlled substances, but Congress also made extensive findings to
establish the necessary relationship of possession and intrastate
trade to the overall scheme. See, e.g., United States v. Leshuk,
65 F.3d 1105, 1112 (4th Cir. 1995); Lopez, 2 F.3d at 1367, n.51;
United States v. Lopez, 459 F.2d 949, 951-53 (5th Cir.), cert.
denied sub nom. Llerena v. United States, 409 U.S. 878, 93 S.Ct.
130 (1972).*************** The nature of controlled substances supports
Congress’s findings: they are fungible, and their intrastate,
interstate or imported origin is often impossible to discern.
*************** See United States v. Genao, 79 F.3d 1333 (2d Cir. 1996) (upholding 21 U.S.C. §§ 841, 846); United States v. Leshuk, 65 F.3d 1105 (4th Cir. 1995) (21 U.S.C. § 841(a)(1)); United States v. Clark, 67 F.3d 1154 (5th Cir. 1995) (upholding 21 U.S.C. § 860), cert. denied, ___ U.S. ___, 116 S.Ct. 1432, 134 L.Ed.2d 554 (1996); United States v. Tucker, 90 F.3d 1135 (6th Cir. 1996) (same); United States v. Bell, 90 F.3d 318 (8th Cir. 1996) (upholding 21 U.S.C. § 841(a)(1)); United States v. Brown, 72 F.3d 96 (8th Cir. 1995) (same); United States v. Yoon, No. 95-16698, 1996 WL 367621 (9th Cir. June 28, 1996) (unpublished per curiam) (upholding 21 U.S.C. § 841(a)(1)); United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995) (upholding 21 U.S.C. §§ 841(a)(1), 846); United States v. Kremetis, 903 F. Supp. 250 (D.N.H. 1995) (same); United States v. Smith, 920 F. Supp. 245 (D.Me. 1996) (upholding 21 U.S.C. §§ 841(a)(1)-(2), 846); United States v. Salmiento, 898 F. Supp. 45 (D.P.R. 1995) (upholding 21 U.S.C. § 860); United States v. Gonzalez, 893 F. Supp. 935 (S.D. Cal. 1995) (upholding 21 U.S.C. § 841(a)(1)); United States v. Garcia-Salazar, 891 F. Supp. 568 (D. Kan. 1995) (upholding 21 U.S.C. § 860); United States v. Murillo, No. CR 93-20131 JW, 1995 WL 621797 (N.D. Cal. 1995) (upholding 21 U.S.C. §§ 841(a), 843(b), 846); United States v. Grafton, 1995 WL 506001 (N.D. Ga. 1995) (upholding 21 U.S.C. §§ 841, 846); United States v. Walker, 910 F. Supp. 837 (N.D.N.Y. 1995) (upholding 21 U.S.C. §§ 841, 846, 848); United States v. Bramble, 894 F. Supp. 1384 (D. Haw. 1995) (upholding 21 U.S.C. §§ 841(a)(1), 844(a)).
46 Firearms, including machineguns, are identifiable and traceable.
Banning private, intrastate machinegun possession is not an
essential link in the chain of federal regulation of firearms
dealing.
Kenney also asserts that because Congress has
historically regulated firearms and has evinced particular interest
in regulating machineguns, its “accumulated institutional
expertise” justifies § 922(o). This argument might be called “the
nose under the camel’s tent” theory of Commerce Clause power: once
Congress has begun to regulate a particular activity, courts should
defer to any extensions of regulation that Congress legislates.
Surely this position renders any theoretical limit on the
enumerated Commerce Clause power nugatory.
Because we have concluded that mere intrastate possession
is neither an economic activity nor an intrastate activity whose
regulation is essential to a larger commercial regulatory regime,
§ 922(o) cannot pass muster under the Lopez substantial effects
test. Reinforcing this conclusion, although not necessary to it,
are the results of the other two parts of the test, which deal with
Congressional findings and the limits on federal authority.
If Congress had made findings explaining the connection
of mere intrastate possession of machineguns to interstate
commerce, or if there were an expressly required nexus between such
possession and commerce,*************** § 922(o) might be vindicated
*************** We are not at liberty to question the Supreme Court’s approval of the predecessor statute to 18 U.S.C. § 922(g)(1), which criminalizes possession of a firearm by a felon “in or affecting
47 under the second Lopez prong. These features are lacking.
Whatever the effect a single intrastate possession of a machinegun
has on economic activity in firearms, the text and legislative
history of § 922(o) do not support any conclusion that Congress
considered such effects or viewed § 922(o) as part of a
comprehensive approach to federal regulation of commerce in
machineguns. As discussed previously, § 922(o) was inserted into
FOPA with virtually no discussion of its content and with
absolutely no discussion of its place in the broad scheme of
federal firearms regulations. See supra part II.A. Like § 922(q)
found unconstitutional in Lopez, no Congressional findings attest
that § 922(o) is “an essential part of a larger regulation of
economic activity, in which the regulatory scheme could be undercut
unless the intrastate activity were regulated.” Lopez, __ U.S. at
__, 115 S.Ct. at 1631. No studies, testimony or evidence of any
other sort -- Congressional or otherwise -- is adduced in favor of
§ 922(o). Nor does § 922(o) contain a “jurisdictional element
which would ensure, through case-by-case inquiry, that the firearm
possession in question affects interstate commerce.” Id. at __, 115
S.Ct. at 1631. To infer in the face of this void that regulation
of intrastate possession is essential to effectively regulate
commerce.” Only a minimal jurisdictional nexus is required, i.e. that at some time the firearm had travelled in interstate commerce. Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969 (1977). As this broad reading of the Commerce Clause has Supreme Court inprimatur, albeit pre-Lopez, we can only note the tension between the two decisions and will continue to enforce § 922(g)(1). See United States v. Rawls, 85 F.3d 240, 243 (5th Cir. 1996) (Garwood, J., specially concurring).
48 interstate traffic in machineguns states a naked conclusion, a fiat
without supporting facts. Congress has not helped us to discern a
connection between the possession ban and interstate commerce which
is otherwise invisible to the naked eye. Lopez, ___ U.S. at ___,
115 S.Ct. at 1632.
Finally, like § 922(q), § 922(o) intrudes upon the
traditional police powers of the states and violates Lopez’s third
mandate for a substantial-effects regulation of intrastate activity
because it affords no logical demarcation between the national and
local interests. Brecht v. Abrahamson, 507 U.S. 619, 635, 113
S.Ct. 1710, 1720 (1993)(states have primary authority for defining
and enforcing criminal law); see Lopez, __ U.S. at __, 115 S.Ct. at
1631 n.3; Bass, 404 U.S. at 349-50, 92 S.Ct. at 523-24. Section
922(o) would punish a local resident for the mere possession of a
machinegun acquired after 1986 with “no requirement that his
possession of the [machinegun] have any concrete tie to interstate
commerce.” Lopez, __ U.S. at __, 115 S.Ct. at 1634. The Supreme
Court avoided such a result in Bass. Bass, 404 U.S. at 349-50, 92
S.Ct. at 523-24. To uphold § 922(o), a purely criminal law, with
no nexus to interstate commerce, whose enforcement intrudes upon
traditional police powers of the states, would convert the commerce
power into a reserved “general federal police power.” Id. at 1632-
33; see also id. at __, 115 S.Ct. at 1638 (Kennedy, J.,
concurring)(“Were the Federal Government to take over the
regulation of entire areas of traditional state concern, areas
having nothing to do with the regulation of commercial activities,
49 the boundaries between the spheres of federal and state authority
would blur and political responsibility would become illusory.”).
The rationale that Congress can, on a blank slate, criminalize
possession under the interstate Commerce Clause in order to
regulate “the demand side of the market” can be applied to the
possession of anything. Following Lopez, § 922(o) cannot be upheld
as a regulation which substantially affects interstate commerce.
CONCLUSION
Regardless of one’s view of the wisdom of banning the
private possession of machineguns, the question before this court
is whether the Commerce Clause grants Congress the authority to ban
private, intrastate possession of a machinegun with no showing that
the prohibition is connected in any way to interstate commerce or
is part of a broader federal regulatory scheme. Congress’s commerce
powers are broad, reaching even Roscoe Filburn’s wheat field in
Ohio. Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82 (1942). Lopez,
however, closely controls this case. Lopez does not permit
Congress, acting pursuant to the Commerce Clause, to criminalize
the mere intrastate possession of machineguns without some
indication that the possession ban is necessary to the regulation
of, or has some other substantial tie to, interstate commerce.
Section 922(o)’s ban on the mere possession of a machinegun exceeds
Congress’s authority under the Commerce Clause.
Related
Cite This Page — Counsel Stack
United States v. Kirk, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kirk-ca5-1997.