United States v. Raymond Rybar, Jr.

103 F.3d 273, 1996 U.S. App. LEXIS 33855, 1996 WL 740084

• Court: Court of Appeals for the Third Circuit
• Decided: December 30, 1996
• Docket: 95-3185
• Status: Published

Opinions

OPINION OF THE COURT

SLOVITER, Chief Judge.

Appellant Raymond Rybar, Jr. was convicted following a conditional guilty plea to two counts of violating 18 U.S.C. § 922(o), which makes it “unlawful for any person to transfer or possess a machinegun.” On appeal, he argues that the district court erred in rejecting his challenge to that provision as beyond Congress’ commerce power and as violating the Second Amendment. Neither challenge is persuasive. Every court of appeals that has considered a challenge to § 922(o) under the Commerce Clause has upheld the constitutionality of the provision. See 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, 136 L.Ed.2d 32 (1996); United States v. Kirk, 70 F.3d 791 (5th Cir.1995)1; United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Pearson, 8 F.3d 631 (8th Cir.1993), cert. denied, — U.S.-, 114 S.Ct. 2132, 128 L.Ed.2d 863 (1994). Nor has Rybar presented any authority in support of his Second Amendment argument. We examine each claim in turn.

I.

FACTS AND PROCEDURAL HISTORY

On April 4, 1992, Rybar, a federally licensed firearms dealer, attended a gun show in Monroeville, Pennsylvania, and had in his possession a Chinese Type 54, 7.62-millime-ter submachine gun, serial number 2052272, which he offered to sell to Thomas Baublitz, who paid him and to whom he transferred possession. The next day, April 5, 1992, Rybar again visited the Monroeville gun show, this time in possession of a U.S. Military M-3, .45 caliber submachine gun, serial number 216831, which he offered to sell to Baublitz, who paid him for it and to whom he transferred possession.

A grand jury indicted Rybar on two counts of unlawful possession of a machine gun in violation of 18 U.S.C. § 922(o)(l) (Counts I and III), and two counts of unlawful transfer of an unregistered firearm in violation of 26 U.S.C. § 5861(e) (Counts II and IV). Rybar moved to dismiss the indictment on the ground that both statutes were unconstitutional. While the motion was pending, the court was informed that Rybar was prepared to plead guilty.

At the hearing on the change of plea, the district court first ruled on the pending motion. The court granted the motion to dismiss Counts II and IV. The court held that insofar as 26 U.S.C. § 5861(e) criminalizes the transfer of an unregistered machine gun, it is unconstitutional because

[a]fter Congress enacted Title 18 of the United States Code Section 922(o), registration of machine guns is no longer possible. Thus defendant has been charged in the indictment with failing to perform an act, registration of two machine guns, that is prohibited by law. This violates notions of fundamental fairness as guaranteed by the Due Process Clause of the Fifth Amendment. Further, this Court finds that Section 5861(e) is no longer a valid taxing statute with respect to machine guns, because the government currently does not register and tax such machine guns.

App. at 16-17.²

The court denied Rybar’s motion to dismiss Counts I and III. The court held that § 922(o) was “a valid exercise of the authority granted to Congress under the Commerce Clause” and was compatible with Second Amendment protections “because this defendant’s possession of a machine gun was not reasonably related to the preservation or efficiency of a well-regulated militia.” App. at 16.

The court then proceeded to the change of plea portion of the hearing. After the court fully informed Rybar of his rights, Rybar agreed to the facts as summarized by the government, i.e., that he approached Baublitz on both occasions and offered to sell him the machine guns described, and that Baublitz paid him on both occasions and took the machine guns. Rybar corrected the prosecution’s statement that he received a total of $1,300 for the machine guns, and stated instead that he received a total of $600 for both machine guns. App. at 31-32 (Hearing Transcript, Jan. 9,1995).

Rybar had agreed to plead guilty to all four counts of the indictment, i.e., the two counts of possession and the two counts of transfer of an unregistered machine gun, and although the court had just dismissed Counts II and IV, Rybar attested to the entire agreement at the court’s request. Id. at 27-29. Rybar then entered a conditional guilty plea to the two remaining counts, preserving for appeal the disputed constitutionality of 18 U.S.C. § 922(o). At the sentencing hearing several months later, the district court sentenced Rybar to eighteen months imprisonment, the minimum sentence under the applicable guideline range, ordered three years of supervised release to follow, and imposed a special assessment of $100.00.

The district court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a district court’s determination of the constitutionality of a statute is plenary.

Dyszel v. Marks, 6 F.3d 116, 123 (3d Cir.1993).

II.

DISCUSSION

In its entirety, § 922(o) reads:

(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) (1994).

“Machinegun,” in turn, is defined in 26 U.S.C. § 5845(b), part of the National Firearms Act, 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.

See 18 U.S.C. § 921(a)(23) (1994).

The statute prohibits only those instances of possession and transfer of machine guns not lawfully possessed before its enactment date — May 19, 1986; machine guns lawfully possessed before that date are left unaffected. See 18 U.S.C. § 922(o)(2)(B) (1994); Pub.L. No. 99-308 § 110(c), 100 Stat. 449, 461 (1986).

As in the district court, Rybar urges the unconstitutionally of § 922(o) on two grounds. He argues: (1) that the provision outstrips Congress’ regulatory authority under the Commerce Clause and (2) that it offends his Second Amendment right “to keep and bear arms.”

A.

Commerce Clause

Rybar relies primarily on the Supreme Court’s recent opinion in United States v. Lopez, — U.S. -, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), in support of his Commerce Clause challenge. In Lopez, the Court invalidated the Gun-Free School Zones Act of 1990, which made it a federal offense “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.” 18 U.S.C. § 922(q)(2)(A) (1994). A “school zone” was defined as “in, or on the ground of, a ... school” or “within a distance of 1,000 feet.” 18 U.S.C. § 921(a)(25) (1994). The decision generated six separate opinions, with five justices supporting the Court’s holding that the statute exceeded Congress’ authority under the Commerce Clause.

On behalf of the majority, Chief Justice Rehnquist reviewed the Court’s Commerce Clause decisions dealing with the extent of Congress’ power, stating that § 922(q) “neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce.” — U.S. at-, 115 S.Ct. at 1626. In summarizing the earlier cases, he observed that in Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359-60, 28 L.Ed.2d 686 (1971), the Court had identified three broad categories of activity that Congress may regulate under its commerce power: (1) “the use of the channels of interstate commerce;” (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;” and (3) those activities “that substantially affect interstate commerce.” Id., — U.S. at -— --, 115 S.Ct. at 1629-30.

He quickly disposed of the first two categories as inapplicable to § 922(q), and stated that if that statute were to be sustained it would have to be as a regulation of an activity that substantially affects interstate commerce. It failed that test because “by its terms” the statute prohibiting possession of a gun in a school zone had “nothing to do with ‘commerce’ or any sort of economic enterprise,” id. at---, 115 S.Ct. at 1630-31, nor was it “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Id. at -, 115 S.Ct. at 1631. Furthermore, § 922(q) contained “no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” Id.

Justice Kennedy, joined by Justice O’Con-nor, concurred, outlining what they perceived as the majority’s “necessary though limited holding.” Id. at-, 115 S.Ct. at 1634 (Kennedy, J., concurring). From his survey of the Supreme Court’s efforts to chart the limits of the Commerce Clause, Justice Kennedy extracted two relevant “lessons” from the past decisions: the inadequacy of using “content-based distinctions,” such as that between “direct” and “indirect” effects on commerce, to define those limits, and the importance of maintaining the “practical conception” of the commerce power that had been forged out of the Court’s precedents. Id. at-, 115 S.Ct. at 1637. Most significantly, Justice Kennedy observed that where an enactment under the Commerce Clause bears only a tenuous connection to commerce, courts should inquire whether it “seeks to intrude upon an area of traditional state concern.” Id. at -, 115 S.Ct. at 1640. Justice Kennedy went on to observe that “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.” Id. at -, 115 S.Ct. at 1640. He was concerned that § 922(q) foreclosed states from crafting independent solutions to the guns-in-schools problem, id. at-, 115 S.Ct. at 1641, and concluded that, “[ajbsent a stronger connection or identification with commercial concerns,” § 922(q)’s intrusion into education “contradict[ed] the federal balance” and was therefore invalid. Id. at-, 115 S.Ct. at 1642. Justice Thomas also filed a separate concurrence.

The principal opinion for the four dissenters was authored by Justice Breyer, who emphasized the following three basic principles: (1) local activities may be regulated under the Commerce Clause where they “significantly affect interstate commerce”; (2) these local activities must be considered cumulatively in viewing their effect on interstate commerce; and (3) the court’s inquiry is limited to whether Congress could have had a rational basis for concluding the regulated activity sufficiently affected interstate commerce. Id. at---, 115 S.Ct. at 1657-58 (Breyer, J., dissenting). He stated, inter alia, that Congress could have had a rational basis for concluding that the “widespread” and “extremely serious” problem of guns in and around schools had a substantial effect on interstate and foreign commerce because it “significantly undermines the quality of education in our Nation’s classrooms,” id. at-, 115 S.Ct. at 1659, thereby reducing the pool of skilled workers available to businesses, diminishing industrial productivity, and eroding global competitiveness. Id. at---, 115 S.Ct. at 1659-61.

Justices Stevens and Souter, both of whom joined Justice Breyer’s dissent, each wrote separately as well. Justice Stevens emphasized the multiple links he perceived between firearms possession in schools and interstate commerce. Id. at-, 115 S.Ct. at 1651. Justice Souter emphasized the highly deferential judicial review in Commerce Clause cases, criticized as “highly formalistic” the Court’s early conceptions of “commerce,” and analogized the majority’s insistent distinction between “commercial” and “noncommercial” activity to the Court’s Lochner era substantive due process approach. Id. at-- -, 115 S.Ct. at 1651-54.

Rybar forwards all of the reasons given by the Lopez majority, many in haec verba, as equally determinative of the invalidity of Congress’ prohibition of machine guns. He contends that § 922(o)’s proscription of machine gun transfer and possession can be upheld only as regulation of an “activit[y] that substantially affect[s] interstate commerce.” Brief of Appellant at 14 (quoting Lopez, — U.S. at-, 115 S.Ct. at 1630). He argues that § 922(o) fails this “substantial effect” test, since its attempt to reach mere intrastate gun possession has only the most tenuous links to interstate commerce and would blur past any principled limit on the commerce power. Finally, Rybar invokes the same federalism concerns expressed in Lopez, arguing that Pennsylvania’s own regime of machine gun regulation makes relevant the Court’s observation in Lopez that “[sjtates possess primary authority for defining and enforcing the criminal law.” Id. at-n. 3, 115 S.Ct. at 1631 n. 3 (quoting Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 1720-21, 123 L.Ed.2d 353 (1993)).

Before we examine the particular statute at issue here, it may be helpful to set forth the principles governing the standards by which we review such a challenge. As Justice Kennedy observed in his concurrence in Lopez, while Congress enjoys “extensive power and ample discretion to determine [the] appropriate exercise [of its Commerce Clause authority],” the courts, for their part, must observe “great restraint” before determining “that the Clause is insufficient to support an exercise of the national power.” Id. at-, 115 S.Ct. at 1634 (Kennedy, J.,. concurring). Our examination of the scope of legislative prerogative respecting exercise of the Commerce Clause power is twofold, and “relatively narrow.” Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 276, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (1981). We must first determine whether Congress could rationally conclude that the regulated activity substantially affects interstate commerce. Lopez, — U.S. at---, 115 S.Ct. at 1629-30.³ If we decide that it could, “the only remaining question for judicial inquiry is whether ‘the means chosen by [Congress] [are] reasonably adapted to the end permitted by the Constitution.’ ” Virginia Surface Mining, 452 U.S. at 276, 101 S.Ct. at 2360 (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262, 85 S.Ct. 348, 360, 13 L.Ed.2d 258 (1964)); accord Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 17, 110 S.Ct. 914, 924-25, 108 L.Ed.2d 1 (1990).

In Lopez the government had conceded that neither § 922(q) nor its legislative history contained any express findings regarding the effects on interstate commerce of gun possession in a school zone. — U.S. at -, 115 S.Ct. at 1631. Chief Justice Rehnquist commented that the Court’s ability to evaluate the legislative judgment as to the effect of gun possession on interstate commerce would have been aided by the existence of congressional findings, and declined to consider findings accompanying prior firearms legislation because the previous legislation did not address the subject matter of § 922(q) or its relationship to interstate commerce. The prohibition of firearm possession in a school zone effected by § 922(q) “ ‘plow[ed] thoroughly new ground and represented] a sharp break with the longstanding pattern of federal firearms legislation.’ ” Id. at-, 115 S.Ct. at 1632 (quoting approvingly from the Court of Appeals decision).

The majority thus proceeded to determine, without the aid of Congress’ views, whether possession,of a firearm in a school zone does in fact substantially affect interstate commerce. The government had argued that such possession may result in violent crime, which can be expected to affect the national economy in two ways: (1) the costs of violent crime are spread throughout the population through the mechanism of insurance; and (2) violent crime reduces the willingness of people to travel to unsafe areas. The government had also contended that the presence of guns in schools threatens the learning environment, resulting in a less productive citizenry and adverse effects on the nation’s economic well-being. Id.

The Lopez majority rejected these arguments because it saw no boundaries, commenting that under the government’s theories it would be “difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign.” Id. In response to Justice Breyer’s dissent, which argued that “Congress ... could rationally conclude that schools fall on the commercial side of the line,” id. at-, 115 S.Ct. at 1664 (Breyer, J., dissenting), Chief Justice Rehnquist characterized such analysis as “equally applicable, if not more so, to subjects such as family law and direct regulation of education,” id. at -, 115 S.Ct. at 1633. He continued,

We do not doubt that Congress has authority under the Commerce Clause to regulate numerous commercial activities that substantially affect interstate corn¹ merce and also affect the educational process. That authority, though broad, does not include the authority to regulate each and every aspect of local schools.

Id. He added:

The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.

Id. at -, 115 S.Ct. at 1634. The Chief Justice concluded by declining “to pile inference upon inference” in order “to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” Id.

Nonetheless, the Lopez majority emphasized that “Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce.” Id. at-, 115 S.Ct. at 1631. The Court commented only that such findings might have special relevance where they would aid judicial evaluation of “the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.” Id. at-, 115 S.Ct. at 1632.

In any event, in our analysis of § 922(o) we find that, unlike the situation in Lopez, there are legislative findings to aid judicial evaluation of the effect of machine guns on interstate commerce. While these findings did not accompany the passage of § 922(o), the subject matter of § 922(o) is sufficiently similar to that of the other legislation accompanied by these findings so as to be a reliable statement of the rationale for Congress’ authority to pass § 922(o). Congressional findings generated throughout Congress’ history of firearms regulation link both the flow of firearms across state lines and their consequential indiscriminate availability with the resulting violent criminal acts that are ber yond the effective control of the states. Thus, § 922(o) does not “plow new ground,” as the Lopez majority said § 922(q) did. Id. at -, 115 S.Ct. at 1632. Rather than represent a “sharp break” in pattern, which concerned the Lopez Court, it continues in the stream of prior legislation.

The National Firearms Act of 1934, the first major federal statute to deal with firearms, required all persons engaged in the business of selling “firearms” (including machine guns) and all firearm owners to register with the Collector of Internal Revenue, subjected all firearm sales to a special tax, and required that they be accompanied by written order forms. The statute made it illegal to move a firearm in interstate commerce without payment of the tax, or to possess a firearm transferred in contravention of the tax and form requirements. Pub.L. No. 474, §§ 2-6, 48 Stat. 1236, 1237-38 (superseded by Internal Revenue Code of 1939). Although the 1934 statute was enacted under the taxing power, four years later Congress used the commerce power to regulate firearms with the passage of the Federal Firearms Act of 1938. Pub.L. No. 785, 52 Stat. 1250 (1938) (repealed 1968). All subsequent federal firearms legislation was enacted under the commerce power.

In the Federal Firearms Act of 1938, Congress required firearm manufacturers and dealers to obtain federal licenses before engaging in interstate commerce, permitted such licensees to ship firearms interstate only to other licensees and to persons with state-required permits, mandated that licensees keep permanent records of firearm transactions, and prohibited the interstate movement of firearms by or to fugitives or persons indicted or convicted of violent crimes, or if the firearms were stolen or had altered serial numbers. Id. §§ 2-3, 52 Stat. at 1250-52.

In 1968, Congress decided additional federal legislation was needed, and enacted the more farreaching Omnibus Crime Control and Safe Streets Act (“Omnibus Act”), based upon its findings of an extensive interstate commerce in firearms and the need for adequate federal control over such traffic. Because Rybar places much emphasis on the absence of congressional findings accompanying the passage of § 922(o), the congressional findings supporting the enactment of the Omnibus Act, one of its statutory predecessors, are significant:

[TJhere is a widespread traffic in firearms moving in or otherwise affecting interstate or foreign commerce, and ... the existing Federal controls over such traffic do not adequately enable the States to control this traffic within their own borders through the exercise of their police power;

... only through adequate Federal control over interstate and foreign commerce in these weapons ... can this grave problem be properly dealt with, and effective State and local regulation of this traffic be made possible;

... the United States has become the dumping ground of the castoff surplus military weapons of other nations, and ... such weapons, ... imported into the United States in recent years, has contributed greatly to lawlessness and to the Nation’s law enforcement problems;

... the lack of adequate Federal control over interstate and foreign commerce in highly destructive weapons ... has allowed such weapons and devices to fall into the hands of lawless persons, ... thus creating a problem of national concern....

Pub.L. No. 90-351, § 901(a), 82 Stat. 197, 225-26 (1968) (current version at 18 U.S.C. §§ 921-928 (1994)).

The 1968 Omnibus Act, which incorporated nearly every provision of the Federal Firearms Act, additionally required federal licenses for all persons in the firearms business, regardless of whether the commerce in which they were engaged was interstate. With respect to all firearms except for shotguns and rifles, the Omnibus Act channelled all interstate traffic through licensees and prohibited licensees from transferring them to persons under 21 or living out-of-state. With respect to heavy firearms, including machine guns, the Act prohibited licensees from selling or delivering them without first receiving affidavits from local law enforcement confirming the intended use as lawful, and forbade unlicensed persons from transporting them in interstate commerce without specific Treasury authorization. And with respect to all firearms, the Act prohibited their importation without Treasury authorization, proscribed their sale where their possession or purchase would contravene local law, and declared them subject to forfeiture when involved in violations of its provisions. Id. §§ 922-924, 82 Stat. at 228-33.

Later the same year, federal controls over interstate and foreign commerce in firearms were strengthened by the passage of the Gun Control Act of 1968, which extended restrictions similar to those Congress had already applied to handguns to most transactions involving rifles and shotguns, added broader coverage of transactions in ammunition, tightened restrictions on deliveries and sales of heavy firearms, including machine guns, and prohibited interstate movement of firearms by or to unlawful drug users or adjudicated mental defectives. Pub.L. No. 90-618, § 922, 82 Stat. 1213, 1218-21 (1968) (current version at 18 U.S.C. §§ 921-928 (1994)).

As with the earlier Omnibus Act, the legislative findings supporting the Gun Control Act emphasized the connection between the increasing rate of crime, the growing use of firearms, and interstate firearms traffic. The House Report explained:

The principal purpose of H.R. 17735, as amended, is to strengthen Federal controls over interstate and foreign commerce in firearms and to assist the States effectively to regulate firearms traffic within their borders.

The increasing rate of crime and lawlessness and the growing use of firearms in violent crime clearly attest to a need to strengthen Federal regulation of interstate firearms traffic.

The subject legislation responds to widespread national concern that existing Federal control over the sale and shipment of firearms [across] State lines is grossly inadequate.

Handguns, rifles, and shotguns have been the chosen means to execute three-quarters of a million people in the United States since 1900. The use of firearms in violent crimes continues to increase today. Statistics indicate that 50 lives are destroyed by firearms each day. In the 13 months ending in September 1967 guns were involved in more than 6,500 murders, 10,000 suicides, 2,600 accidental deaths, 43,500 aggravated assaults and 50,000 robberies. No civilized society can ignore the malignancy which this senseless slaughter reflects.

H.R.Rep. No. 1577, 90th Cong., 2d Sess. 6-7 (1968), reprinted in 1968 U.S.C.C.A.N. 4410, 4411-13.

The Report attaches a letter from the Attorney General which states, inter alia:

By recognizing the Federal responsibility to control the indiscriminate flow of firearms and ammunition across State borders, this bill will give States and local communities the capacity and the incentive to enforce effectively their own gun control laws. Once enacted into law, it will insure that strong local or State laws are not subverted by a deadly interstate traffic in firearms and ammunition.

Id. at 19, 1968 U.S.C.C.A.N. at 4425.

Thus, by the time Congress passed the 1986 Firearms Owners’ Protection Act (“FOPA”), Pub.L. No. 99-308, 100 Stat. 449 (current version at 18 U.S.C. § 921-928 (1994)) — of which § 922(o) is a part — it had already passed three firearm statutes under its commerce power based on its explicit connection of the interstate flow of firearms to the increasing serious violent crime in this country, which Congress saw as creating a problem of “national concern.”

It is therefore not surprising that when Congress again turned its attention to firearms in 1986, it focused, inter alia, on the hazards of machine guns and the desirability of their control. See H.R.Rep. No. 495, 99th Cong., 2d Sess., 2, 7 (1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1328, 1333 (describing proposed machine gun restrictions as “benefits for law enforcement” and citing “the need for more effective protection of law enforcement officers from the proliferation of machine guns”); id. at 4, 1986 U.S.C.C.A.N. at 1330 (describing machine guns as “used by racketeers and drag traffickers for intimidation, murder .and protection of drugs and the proceeds of crime”); see also 132 Cong. Rec. 9,602 (1986) (statement of Sen. Kennedy) (“The only thing that has changed about the machine gun situation since the 1968 act ... is that machine guns have become a far more serious law enforcement problem.”).

The fact that the findings accompanying prior firearms legislation were not reiterated with the passage of § 922(o) is not controlling, as evidenced by a long line of Supreme Court cases. See Fullilove v. Klutznick, 448 U.S. 448, 502-03, 100 S.Ct. 2758, 2787, 65 L.Ed.2d 902 (1980) (Powell,. J., concurring) (describing “information and expertise that Congress acquires in the consideration and enactment of earlier legislation” as sufficient where “Congress has legislated repeatedly in an area of national concern”); Maryland v. Wirtz, 392 U.S. 183, 190 n. 13, 88 S.Ct. 2017, 2020 n. 13, 20 L.Ed.2d 1020 (1968) (confirming, where Congress had earlier passed related legislation with relevant findings, that subsequent provisions “were presumably based on similar findings and purposes with respect to the areas newly covered”); see also Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 19, 110 S.Ct. 914, 925-26, 108 L.Ed.2d 1 (1990) (suggesting a “history of congressional attempts” in a particular area as basis for heightened deference to legislative judgment); cf. Turner Broadcasting Sys., Inc. v. Federal Communications Comm’n, 512 U.S. 622,-, 114 S.Ct. 2445, 2471, 129 L.Ed.2d 497 (1994) (Congress not obligated “to make a record of the type that an administrative agency or court does”); Perez v. United States, 402 U.S. 146, 156, 91 S.Ct. 1357, 1362, 28 L.Ed.2d 686 (1971) (Congress need not “make particularized findings in order to legislate”); Katzenbach v. McClung, 379 U.S. 294, 299, 85 S.Ct. 377, 381, 13 L.Ed.2d 290 (1964) (no formal findings necessary).

Unlike the Lopez opinion which may be read to cabin Congress’ commerce power to enact § 922(q) regulating guns in a local school zone, the dissent does not challenge Congress’ power to enact § 922(o). Instead, the dissent would require as a condition of upholding § 922(o) either that Congress make findings that there was a link between the subject matter being regulated — here the transfer or possession of a machine gun — and its effect on interstate commerce or that “Congress or the Executive assemble[] empirical evidence documenting such a. link.” Dissent at 287; see also id. at 292-93.

We know of no authority to support such a demand on Congress. While the dissent writes in the name of “constitutional federalism,” it recognizes that even Lopez abjures such a requirement, — U.S. at -, 115 S.Ct. at 1631, referred to in Dissent at 293, but overlooks that making such a demand of Congress or the Executive runs counter to the deference that the judiciary owes to its two coordinate branches of government, a basic tenet of the constitutional separation of powers. Nothing in Lopez requires either Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute.

As the Supreme Court has recognized, Congress enacted the federal gun laws because “it was concerned with the widespread traffic in firearms.” Huddleston v. United States, 415 U.S. 814, 824, 94 S.Ct. 1262, 1268, 39 L.Ed.2d 782 (1974). It intended “to halt” unregulated “mail-order and interstate consumer traffic in these weapons,” id., and “to insure that ... weapons could not be obtained by individuals whose possession of them would be contrary to the public interest,” id. at 825, 94 S.Ct. at 1269. Having attempted regulation through registration and licensing and incrementally extended the coverage of earlier statutes, and having in 1968 decided to ban possession of firearms by felons because it “constitutes ... a burden on commerce or threat affecting the free flow of commerce,” see United States v. Bass, 404 U.S. 336, 345-46 n. 14, 92 S.Ct. 515, 521 n. 14, 30 L.Ed.2d 488 (1971) (quoting Omnibus Act of 1968, § 1201, 82 Stat. at 236), it was a natural progression for Congress to decide in 1986 that the growth in crime and destruction caused by machine guns had expanded to the point that justified banning the possession and transfer of post-1986 machine guns. There was no reason for Congress to believe that traffic in machine guns had any less connection with interstate commerce than did the possession of a firearm by a felon, and Congress’ intent to regulate possession and transfer of machine guns as a means of stemming interstate gun trafficking is manifest.

In suggesting that this case is like Lopez, where the Court found that possession of a gun in a local school zone had an insubstantial effect on interstate commerce, the dissent disregards a significant distinction. The statute at issue in Lopez attempted to regulate possession of guns only inside school zones — a discrete area unlikely to have a meaningful aggregate effect on commerce. By contrast, the regulation effected by § 922(o) is not limited to possession “on one’s own property,” Dissent at 291; it regulates possession of a class of firearms — machine guns — in a much more dispersed and extensive area. Congress could reasonably have concluded that such a general ban of possession of machine guns will have a meaningful effect on interstate commerce that would be more substantial than the effect of banning possession within school zones.

Moreover, the concerns expressed by the majority in Lopez, particularly by the concurring opinion of Justice Kennedy, about federal intrusion into local schools, an area traditionally left for the overview and regulation by states, are not presented by § 922(o). Unlike the conclusion in Lopez that “possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce,” — U.S. at-, 115 S.Ct. at 1634, it is evident from § 922(o) that “possession and transfer” of a machine gun is an economic activity that Congress could reasonably have believed would be repeated elsewhere and thereby substantially affect interstate commerce. The potentiality for repetition by Rybar himself of transactions such as those that were the subject of this indictment is evidenced by the uncontested facts set forth in the Presentence Investigation Report. Rybar was a licensed federal firearms dealer, had been authorized to manufacture firearms, including machine guns, and operated a steel and firearms business from his home. After the confiscation of the two machine guns, federal agents determined that Rybar had 16 National Firearms Act weapons registered to him.⁴

The dissent presses us to find a commercial or economic component of possession of a firearm. The response can be found in the dissenting opinion itself. Certainly Congress did not enact § 922(o) in response to the hypothetical situation posed by the dissent by which the possessors of machine guns converted them from semiautomatic weapons or retained them from days of government service. Instead, as the dissent acknowledges, we may infer, at least in most situations, that such possession follows an unlawful transfer. See Dissent at 290-91. We may also assume that Congress was not concerned about the noncommercial transfer from father to son or sister to sister, and thus the unlawful transfer will undoubtedly have had a commercial or economic component. It follows that in 1986 when Congress prohibited possession and transfer of a machine gun, it could well have contemplated that the economic activity regulated, at least in the aggregate, substantially affects interstate commerce.

Although Rybar would have us view machine gun possession as a purely intrastate phenomenon, Supreme Court eases have long sustained the authority of Congress to regulate singular instances of intrastate activity when the cumulative effect of a collection of such events might ultimately have substantial effect on interstate commerce. See, e.g., Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U.S. 264, 277, 101 S.Ct. 2352, 2360-61, 69 L.Ed.2d 1 (1981); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 357-58, 13 L.Ed.2d 258 (1964); Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 89, 87 L.Ed. 122 (1942); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86 L.Ed. 726 (1942); see also Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 232, 68 S.Ct. 996, 1004, 92 L.Ed. 1328 (1948).

Just as the Court in Wickard sustained the regulation of wheat intended wholly for home consumption because it was connected to an overall interstate market which it could depress, 317 U.S. at 128-29, 63 S.Ct. at 98-91, and the Court in Perez sustained the regulation of purely intrastate loansharking because in the aggregate such local loansharking substantially affected interstate commerce, 402 U.S. at 154, 91 S.Ct. at 1361-62, so also § 922(o) can be sustained because it targets the possession of machine guns as a demand-side measure to lessen the stimulus that prospective acquisition would have on the commerce in machine guns. It follows, and we hold, that the authority of Congress to enact .§ 922(o) under the Commerce Clause can be sustained under the third category identified by the Supreme Court: as a regulation of an activity that “substantially affects” commerce.

The same approach was followed by the Seventh Circuit which, in sustaining § 922(o) over a Commerce Clause challenge, stated that the statute was “best analyzed” under the third category. United States v. Kenney, 91 F.3d 884, 889 (7th Cir.1996). The court reasoned that § 922(o) was “recognizable as ‘an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated,’” id. at 890 (quoting Lopez, — U.S. at-, 115 S.Ct. at 1631), and therefore more comparable to the wheat-growing scheme in Wickard or the anti-loansharking law in Perez than the Gun-Free School Zones Act in Lopez.

Kenney held that “there is a rational basis to regulate the local conduct of machine gun possession, including possession resulting from home manufacture, to effectuate § 922(o)’s purpose of freezing the number of legally possessed machine guns at 1986 levels, an effect that is closely entwined with regulating interstate commerce.” Id. The court also determined that, in view of prior congressional findings and enactments concerning firearms and “the serious problems associated with interstate trafficking in firearms,” § 922(o) “was not novel but incremental,” id., and thus justified “deference to Congress’s accumulated institutional expertise,” id. at 891.

Although we need not address whether § 922(o) is also sustainable under the other two categories of Congress’ commerce powers cited by Chief Justice Rehnquist in Lopez, we note that other courts of appeals have relied on those categories in rejecting challenges to § 922(o). Their underlying reasoning provides additional support to our holding that § 922(o) regulates an activity that substantially affects interstate commerce.

In sustaining § 922(o), the Courts of Appeals for the Fifth, Sixth and Ninth Circuits viewed § 922(o) as a regulation of “the use of the channels of interstate commerce,” the first of the three categories of activity reachable under the commerce power, Lopez, —— U.S. at-, 115 S.Ct. at 1629. See United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996); United States v. Rambo, 74 F.3d 948 (9th Cir.), cert. denied, — U.S. -, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Kirk, 70 F.3d 791 (5th Cir.1995), reh’g en banc granted, 78 F.3d 160 (5th Cir.1996). The court in Kirk noted that the statute applied only to machine guns not lawfully possessed before May 1986, and thus functioned principally to prohibit “the introduction into the stream of commerce [of] machineguns” illegally obtained after that date. 70 F.3d at 796. It characterized § 922(o) as a “necessary and proper measure” to permit readier interdiction of, and depress demand for, prohibited machine gun transfers, and likened it to federal regulation of controlled substances as “essential to effective control of the interstate incidents” of traffic in particular commodities. Id. at 796-97.

The Ninth Circuit in Rambo observed that, “[b]y regulating the market in machineguns,” § 922(o) “effectively regulate[s] the interstate trafficking in machineguns.” 74 F.3d at 952. Echoing the Fifth Circuit’s analysis in Kirk, the Rambo court reasoned that, because there could be no unlawful possession without first an unlawful transfer, § 922(o)’s regulation of possession “regulates commerce” itself. Id. at 951-52. Unlike § 922(q), which regulated possession of weapons “in a specific geographic area” rather than any market in weapons, § 922(o) “prohibits the possession of all machineguns illegally transferred.” Id. at 952.

Similarly, the Sixth Circuit in Beuckelaere characterized the statute as regulating the “extensive, intricate, and definitely national market for machineguns” acquired after May 19, 1986, 91 F.3d at 784 (quoting United States v. Hunter, 843 F.Supp. 235, 249 (E.D.Mich.1994)), and emphasized the statute’s links to interstate commerce. It observed that “illegal possession of a machine-gun cannot occur without an illegal transfer,” and stressed Congress’ prior findings concerning the interstate flow of firearms and the resulting threats to local law enforcement. 91 F.3d at 784-85.

The Beuckelaere court also held § 922(o) sustainable under the second category of Congress’ commerce power, reasoning that machine guns are “things in interstate commerce.” The court observed that, like narcotics, machine guns are items “which flow across state lines for profit by business entities and hamper local and state law enforcement efforts.” Id. at 785.

That court relied on the Tenth Circuit’s earlier decision in United States v. Wilks, 58 F.3d 1518 (10th Cir.1995), which had upheld § 922(o) under the second commerce category. The Wilks court characterized machine guns as commodities “bound up with interstate attributes” and thus readily distinguished from the “purely intrastate” objects of § 922(q)’s prohibition. Id. at 1521. The court observed that § 922(o) was “consistent” with earlier firearms legislation “because it merely regulates the movement of a particular firearm in interstate commerce,” id. at 1521 n. 4, surveyed prior congressional findings concerning the interstate flow of weapons and its attendant dangers, and concluded that § 922(o) represented a valid attempt to control the interstate movement in machine guns, id. at 1521-22.

Whatever the category relied on, it is telling that each of our sister circuits has found that the regulation of machine gun transfer and possession comes within Congress’ power to legislate under the Commerce Clause. That uniform result confirms the observation made in United States v. Bell, 70 F.3d 495, 497 (7th Cir.1995), that, for criminal defendants, “[i]t appears that United States v. Lopez has raised many false hopes,” and that challenges based on Lopez “[a]lmost invariably” fail. See, e.g., United States v. Orozco, 98 F.3d 105 (3d Cir.1996) (rejecting challenge based on Lopez to Drug-Free School Zones Act, 21 U.S.C. § 860(a)); United States v. Bishop, 66 F.3d 569 (3d Cir.1995) (rejecting challenge to car-jacking statute).

Finally, we deal with Rybar’s argument that § 922(o) is deficient because it lacks a “jurisdictional element,” the term used to refer to a statutory clause (such as “in or affecting interstate commerce”) that limits application of the statute to those instances where the particular machine gun transfer or possession is shown to be related to interstate commerce. Although the Lopez Court noted the lack of a jurisdictional element in § 922(q) and observed that such an element “would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce,” — U.S. at -, 115 S.Ct. at 1631 (emphasis added), it did not state, as it easily could have, that such a statutory feature was essential.

In its discussion of this issue, the Court contrasted § 922(q) with former 18 U.S.C.App. “§ 1202(a) (prohibiting felons from “receiving], possessing], or transporting] in commerce or affecting commerce ... any firearm”). In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), the Court had construed the ambiguous scope of the jurisdictional element in former § 1202(a) to apply to possession of firearms in order to avoid a constitutional issue. However, rather than making it a sine qua non, the Bass decision merely signified that a statute’s inclusion of a jurisdictional element is a condition sufficient to establish its validity under the Commerce Clause. We find no basis in either Bass or Lopez for Rybar’s claim that inclusion of such language is a necessary condition. See Kenney, 91 F.3d at 887 (“We have rejected the argument that Lopez requires federal criminal statutes to contain a jurisdictional element.”).⁵

We thus join the five other circuits in rejecting the Commerce Clause challenge to Congress’ authority to enact § 922(o).

B.

Second Amendment

As an independent basis for his argument that- § 922(o) is unconstitutional, Rybar relies on the Second Amendment of the Constitution, which provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.

In support, Rybar cites, paradoxically, the Supreme Court decision in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), where the Court upheld the constitutionality of a firearms-registration requirement against a Second Amendment challenge. Rybar draws on that holding, relying on the Miller Court’s observation that the sawed-off shotgun in question had not been shown to bear' “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Brief of Appellant at 24-25; Miller, 307 U.S. at 178, 59 S.Ct. at 818. Drawing from that language the contrapositive implication, Rybar suggests that because the military utility of the machine guns proscribed by § 922(o) is clear, a result contrary to that reached in Miller is required, and the statute is therefore invalid under the Second Amendment.

Rybar’s reliance on Miller is misplaced. The language Rybar cites is taken from the following passage:

In the absence of any evidence tending to show that possession or use of a “shotgun

having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

307 U.S. at 178, 59 S.Ct. at 818.

We note first that however clear the Court’s suggestion that the firearm before it lacked the necessary military character, it did not state that such character alone would be sufficient to secure Second Amendment protection. In fact, the Miller Court assigned no special importance to the character of the weapon itself, but instead demanded a reasonable relationship between its “possession or use” and militia-related activity. Id.; see Cases v. United States, 131 F.2d 916, 922 (1st Cir.1942) (susceptibility of firearm to military application not determinative), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943). Rybar has not demonstrated that his possession of the machine guns had any connection with militia-related activity. Indeed, as noted above, Rybar was a firearms dealer and the transactions in question appear to have been consistent with that business activity.

Nonetheless, Rybar attempts to place himself within the penumbra of membership in the “militia” specified by the Second Amendment by quoting from 10 U.S.C. § 311(a):

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are ... citizens of the United States____

Rybar’s invocation of this statute does nothing to establish that his firearm possession bears a reasonable relationship to “the preservation or efficiency of a well regulated militia,” as required in Miller, 307 U.S. at 178, 59 S.Ct. at 818. Nor can claimed membership in a hypothetical or “sedentary” militia suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993); United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978); United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976).

Rybar boldly asserts that “the Miller Court was quite simply wrong in its superficial (and one-sided) analysis of the Second Amendment.” Brief of Appellant at 27. As one of the inferior federal courts subject to the Supreme Court’s precedents, we have neither the license nor the inclination to engage in such freewheeling presumptuousness. In any event, this court has on several occasions emphasized that the Second Amendment furnishes no absolute right to firearms. See United States v. Graves, 554 F.2d 65, 66 n. 2 (3d Cir.1977); Eckert v. City of Philadelphia, 477 F.2d 610 (3d Cir.), cert. denied, 414 U.S. 839, 843, 94 S.Ct. 89, 104, 38 L.Ed.2d 74, 81 (1973). Federal attempts at firearms regulation have also consistently withstood challenge under the Second Amendment. See, e.g., Hale, 978 F.2d at 1020; Warin, 530 F.2d at 108; United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290 n. 5 (7th Cir.1974); United States v. Johnson, 497 F.2d 548, 550 (4th Cir.1974); Cases, 131 F.2d at 923. We see no reason why § 922(o) should be an exception.

III.

CONCLUSION

In light of the foregoing, we reject Rybar’s challenge to the constitutional validity of 18 U.S.C. § 922(o) and will affirm the district court’s judgment of conviction.

1 . On March 5, 1996, the Fifth Circuit granted a rehearing en banc. See United States v. Kirk, 78 F.3d 160 (5th Cir.1996).

2 . Because the government has not appealed this aspect of the court’s ruling, we do not comment on the district court's analysis.

3 . In Virginia Surface Mining, 452 U.S. at 276, 101 S.Ct. at 2360, the Court had framed the question merely as whether the activity regulated "affects interstate commerce,” without the adverb “substantially” that was added by the Lopez majority. See also Hodel v. Indiana, 452 U.S. 314, 324, 326, 101 S.Ct. 2376, 2383, 2384, 69 L.Ed.2d 40 (1981).

4 . Therefore, looking at the totality of the activity with which Rybar was charged, it was more than “the purely intrastate possession of a machine gun,” see Dissent at 291, and he was certainly not one who was simply in “private possession of machine guns,” see Dissent at 287.

5 . Because Rybar interposed a facial challenge to § 922(o) there was no occasion for the district court to consider whether, in fact, these two machine guns had passed through interstate commerce. We note but do not rely on the fact that although Rybar was authorized to manufacture firearms, including machine guns, the very nature of the machine guns he possessed and sold to Baublitz, one of which was a U.S. military machine gun and the other described as a “Chinese Type 54” machine gun, suggests interstate traffic.

1 . Title 18 U.S.C. § 922(o) also applies to transfers of machine guns. However, the defendant in this case pled guilty to two counts of the indictment charging only possession, and thus the constitutionality of the transfer provision is not before us here.