U.S. v. Stewart; regarding home made machine guns


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matterhorn762
March 30, 2005, 02:32 PM
In 2003 the U.S. 9th Circuit Court of Appeals ruled to strike down the federal law illegalizing the home making of machine guns, on grounds that the federal government's ban on homemade machineguns is abusive of the government's authority to regulate interstate commerce.

The US challenged this ruling and took it to the Supreme Court. This is the Supreme Court docket regaring the case:

http://www.supremecourtus.gov/docket/04-617.htm

And this is the original Circuit Court ruling:

http://caselaw.lp.findlaw.com/data2/circs/9th/0210318p.pdf

I'm trying to find out the status of this case. It was supposed to go to the Supreme Court for conference review in January of this year, but there was no ruling on it. It is not on schedule for the month of April either, which means it will not be heard at least until October, when the court comes back from their vacation. So my question is... isn't there some statute of limitations on this? Can the Supreme Court just have an indefinite pending status? If you know anything about this, let me know what are the actual regulations on this, and if possible, the links to them. I ask this because I called the Supreme Court public information number and they claim that there is no limit at all, meaning this case can remain in legal limbo forever.

For those interested in more details of the Circuit Court ruling, here is a summary:

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

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

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

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Langenator
March 30, 2005, 03:41 PM
My understanding is that DoJ asked SCOTUS to hold off on Stewart pending the outcome of Ashcroft v. Raich, a commerce clause medical marijuana case, also arising out of the 9th Circus.

Surprisingly, in both cases the 9th Circuit rules against the .fedgov in both cases. Their ruling in Stewart may just have been a matter of remaining consistent with Raich.

matterhorn762
March 30, 2005, 03:52 PM
So when is the Raich case expected to be heard?

It doesn't sound like the Stewart case will be heard until after summer then, at the soonest. Is there no time limitation for the court to rule whether or not they will hear the case?

And what's Mr. Stewart's fate in all this? Is he still in prison for the charges? Can the Supreme Court wait to hear his case until after his sentence is fully served? I realize there are bigger things at stake, but it all just sounds rather bizarre (though not shocking).

Deavis
March 30, 2005, 05:57 PM
Raich has already been heard, now you have to wait for a decision.

My understanding is that whatever the USSC decides in Raich will probably be applied to Stewart as well.

Stewart will remain in jail even if the conviction on 922(o) is repealed because he was still a felon in possession of a firearm.

matterhorn762
March 30, 2005, 06:12 PM
Mr. Stewart has been in prison for nearly 3 years. Therefore a reversal of 5 of the 6 of his convictions would surely have an effect on his 5 year prison sentence.

For example, if somebody is commited for a murder and a DUI at the same time, and later the murder is overturned, he won't be spending the original prison sentence just for the DUI.

beerslurpy
March 30, 2005, 08:56 PM
It sucks that Stewart didnt decide to fight the initial felony. He was tricked into taking temporary posession of an AR15 that had full-auto innards and railroaded into pleading guilty for a slap on the wrist. This was then used as the basis for the current conviction.

All this because of Stewart's Steyr-Maadi 50 caliber kits that he was selling without 4473s or background checks. The ATF told him to stop, but he refused (and later won) on the grounds that the unfinished receivers didnt constitute firearms.

publius
March 31, 2005, 04:57 PM
So my question is... isn't there some statute of limitations on this? Can the Supreme Court just have an indefinite pending status?

My understanding is that being a SCOTUS judge means never having to say "it's your call."

They can hear Stewart, or not. They can apply Raich to Stewart, or not. It's their call.

publius
April 1, 2005, 06:51 AM
I think that the reason that there is no word from them on when/whether they will hear Stewart is because of the political consequences.

The whole thing is really funny because it's all so backwards. First we have the wacky 9th playing strict constructionists. Then we have the Bush Justice Department assuming the role of New Dealers. Then, in their cert petition on Stewart, that same Justice Department asks the Court NOT to hear their case. This is more than a little strange, since the purpose of a cert petition is to ask the court TO HEAR your case.

But think about what happens if the Supremes announce that they intend to grant that request and apply Raich to Stewart, since they are about the same fundamental issue...

Do they really want to cause such commotion?

Johnnybgood
April 1, 2005, 11:33 AM
next election allowing "THE PEOPLE" to decide if the NFA rules are unconstitutional instead of it being left up to 12 judges (Lawyers) who have their own political axe to grind. It is supposed to be the will of "THE PEOPLE" ya know.

Zrex
April 1, 2005, 11:25 PM
It is supposed to be the will of "THE PEOPLE" ya know

Um.... I was under the impression that the constitution & its amendments existed to preserve minority rights from the tyranny of the majority.

The last thing I want to see in this country is Mob Rules... errr.... majority rule.

Graystar
April 2, 2005, 12:03 AM
Um.... I was under the impression that the constitution & its amendments existed to preserve minority rights from the tyranny of the majority. Yes, but that doesn't mean the majority can't rule. The majority still rules...it's just limited in how far it can go.

Cosmoline
April 2, 2005, 08:25 PM
Any ruling that takes a bite out of the commerce clause is good news to me.

Warbow
April 2, 2005, 08:54 PM
[I want a referendum in the] next election allowing "THE PEOPLE" to decide if the NFA rules are unconstitutional instead of it being left up to 12 judges (Lawyers) who have their own political axe to grind. It is supposed to be the will of "THE PEOPLE" ya know.

You really don't. Just look at how many people thought the AWB was a good thing which prevented crime and all that jazz put forth by anti-gun groups. They believe what they see and read in the media regarding firearms, and since most people don't have an active interest in firearms they will never discover the falsehoods they're led to believe.

Not that we're any better off with certain courts deciding it, but a public referendum wouldn't turn out well.

publius
April 3, 2005, 12:16 PM
Yes, but that doesn't mean the majority can't rule. The majority still rules...it's just limited in how far it can go.

Not really. We can always amend the Constitution.

Or just reinterpret it.

Graystar
April 3, 2005, 07:32 PM
Not really. We can always amend the Constitution.

Or just reinterpret it.Well, supposedly the government shouldn't be able to pass a law or amend the Constitution with anything that violates our rights. But I guess anything is possible.

publius
April 3, 2005, 08:12 PM
Here in Florida, we have a Constitutional amendment which protects pregnant pigs, so I'd say pretty much anything is possible.

Graystar
April 3, 2005, 08:36 PM
Here in Florida, we have a Constitutional amendment which protects pregnant pigs, so I'd say pretty much anything is possible.Florida?? Those guys will pass anything! :rolleyes:

RevDisk
April 3, 2005, 09:10 PM
Question. If I'm not mistaken, the 9th court has ruled that homemade machineguns are legal. It's be appealed to the Supreme Court. If the Supreme Court does not hear the case, does that mean that the 9th Circuit Court of Appeals ruling stands?

It might sound like a silly question, but I'm gathering that it means homemade machineguns are currently legal. Kinda. I personally wouldn't make any, nor do I hope anyone else does. If the SCOTUS decides not to touch the case, I intend on writing to the BATFE and US Attorney General to see what they have to say about the situation.

matterhorn762
April 3, 2005, 09:26 PM
Question. If I'm not mistaken, the 9th court has ruled that homemade machineguns are legal. It's be appealed to the Supreme Court. If the Supreme Court does not hear the case, does that mean that the 9th Circuit Court of Appeals ruling stands?

I've done quite a lot of research on this since I started this thread, and here is the answer to your question:

What the 9th Circuit Court actually ruled was that 922(o) is an invalid law, not only homemade machine guns are legal, but all machine guns are legal, given NFA registration/tax laws. So in theory, what they ruled was that now there is no difference between pre-86 and post-86 MG in their jurisdiction. This would mean you can either convert your semi's into full auto with an ATF Form 1, or buy brand new machineguns for under $1000 with an ATF Form 4.

However, the ATF has appealed this case and it is currently on the Supreme Court docket. Until the Supreme Court hears this case, there is a "stay" on the 9th Circuit Ruling, meaning that what I wrote above is not reality yet.

The Supreme Court has not said whether or not they will hear the case. It is still pending. In theory, if they refuse to hear the case, then the 9th Circuit Court rulings stands, and the ATF will then have to accept your new machinegun NFA registrations if you're in 9th Circuit jursidiction. Although they might just decide not to follow the law and not do that. If the Supreme Court upholds the case, then the same scenerio but nationwide. If the Supreme Court overturns it, well, we're back to where we are now.

Another scenerio is that for political reason or whatever, the Supreme Court doesn't decide to hear or not hear the case, in which case it will remain in an indefinite pending "stay" status, which means no new machine guns.

The ATF is saying this "stay" is indefinite, although I am trying to get a physical copy of it to see if that is actually true.

DMF
April 3, 2005, 09:27 PM
Mr. Stewart has been in prison for nearly 3 years. Therefore a reversal of 5 of the 6 of his convictions would surely have an effect on his 5 year prison sentence.Don't be so sure. A felon in possession can get up to 10 years and a $250K fine, so if Stewart has a prior felony conviction then reversing the conviction on the NFA violation may have no affect on the sentence for any charge related to being a felon in possession. I can't say I've followed this case so I don't remember if Stewart did have a pior felony, but someone earlier in the thread stated he did.

EDIT TO ADD: Just read part of the 9th Circuit ruling, and Stewart was in fact a prior felon. 3As a convicted felon, Stewart would have been highly unlikely to
obtain a federal license authorizing him to purchase a machinegun in the
heavily regulated market for such commodities.

cfabe
April 3, 2005, 11:46 PM
n theory, if they refuse to hear the case, then the 9th Circuit Court rulings stands, and the ATF will then have to accept your new machinegun NFA registrations if you're in 9th Circuit jursidiction.


Is this really true? Can different areas of the US have different interpretations of federal law? I'd think that if the SCOUTS did not hear the case, the 9th ruling would apply countrywide.

matterhorn762
April 3, 2005, 11:52 PM
Is this really true? Can different areas of the US have different interpretations of federal law? I'd think that if the SCOUTS did not hear the case, the 9th ruling would apply countrywide.

That's what makes it a Circuit Court. Things like that are rare, but happen. Usually when one circuit court rules, it's so obvious, that it doesn't get challenged elsewhere, but that is not automatic.

One perfect example is how the 9th Circuit Court explicitly ruled that the 2nd Amendment does not apply to individual rights (Syliveria v Lockyer), whereas the 5th Circuit Court ruled that it does. The 5th Circuit Court even quoted the 9th in its decision and saying that they disagree.

By the way, the Supreme Court would have to actually DENY hearing the case. If they just pretend it's not there, then it may remain in an indefinite pending status.

taliv
April 3, 2005, 11:53 PM
IANAL, but yeah, rules are different in different circuits. for example, the 5th circuit wrote a blistering argument against the "collective right" interpretation of the 2A in EMMERSON, iirc. The 9th circuit still considers it collective though, instead of individual.

RevDisk
April 4, 2005, 06:22 AM
What the 9th Circuit Court actually ruled was that 922(o) is an invalid law, not only homemade machine guns are legal, but all machine guns are legal, given NFA registration/tax laws. So in theory, what they ruled was that now there is no difference between pre-86 and post-86 MG in their jurisdiction. This would mean you can either convert your semi's into full auto with an ATF Form 1, or buy brand new machineguns for under $1000 with an ATF Form 4.

hmm. Cute. Hughes Amendment is illegal, but NFA is ok. One step at a time. The taxation part of NFA is annoying, but not as infringing as the registration aspects. That's going to be a big issue. The BATFE will still want to know where every single registered MG is located. I'm tempted to buy some part kits sans receivers just in case it's legalized.


That's what makes it a Circuit Court. Things like that are rare, but happen. Usually when one circuit court rules, it's so obvious, that it doesn't get challenged elsewhere, but that is not automatic.

One perfect example is how the 9th Circuit Court explicitly ruled that the 2nd Amendment does not apply to individual rights (Syliveria v Lockyer), whereas the 5th Circuit Court ruled that it does. The 5th Circuit Court even quoted the 9th in its decision and saying that they disagree.

Great, so even if the 9th Circuit Court is upheld, folks outside it will have to be rather careful. I'm missing the "equal protection under the law" part here. I imagine if the ATF starts accepting new Form 4's in 9th Circuit, but denies them in the other Circuits, someone will sue.



By the way, the Supreme Court would have to actually DENY hearing the case. If they just pretend it's not there, then it may remain in an indefinite pending status.

The status quo seems most likely course of action. Still, it's not impossible.

publius
April 4, 2005, 06:56 AM
By the way, the Supreme Court would have to actually DENY hearing the case. If they just pretend it's not there, then it may remain in an indefinite pending status.

Stewart's case may remain pending, but if Raich wins, Stewart will just be the first of many.

Great, so even if the 9th Circuit Court is upheld, folks outside it will have to be rather careful. I'm missing the "equal protection under the law" part here.
If I recall correctly from the Silveira v Lockyer case, a conflict between two circuits is considered a good reason for the Supreme Court to hear a case for exactly that reason. Sometimes not good enough, but good.

Langenator
April 4, 2005, 07:52 AM
What the 9th Circuit Court actually ruled was that 922(o) is an invalid law, not only homemade machine guns are legal, but all machine guns are legal, given NFA registration/tax laws. So in theory, what they ruled was that now there is no difference between pre-86 and post-86 MG in their jurisdiction. This would mean you can either convert your semi's into full auto with an ATF Form 1, or buy brand new machineguns for under $1000 with an ATF Form 4.

Unless, of course, there are (unconstitutional, IMO) state laws on the subject, as in Washington.

matterhorn762
April 4, 2005, 09:16 AM
Unless, of course, there are (unconstitutional, IMO) state laws on the subject, as in Washington.

Of course. We are only talking about Federal laws.

hmm. Cute. Hughes Amendment is illegal, but NFA is ok. One step at a time. The taxation part of NFA is annoying, but not as infringing as the registration aspects. That's going to be a big issue. The BATFE will still want to know where every single registered MG is located. I'm tempted to buy some part kits sans receivers just in case it's legalized.

The Stewart case is not based on 2nd Amendment issues. This is definitely not a 2nd Amendment case. The law is being challenged on constitutional grounds that Congress does not have the power to ban machine guns under the commerce clause of the constitution, which Congress often uses as an excuse to stretch their powers. The NFA laws are clearly constitutional under the commerce clause, since the NFA laws are tax based laws and not prohibition based laws.

What the ATF does, and what the law actually says can be two totally different things however.

Article I, Section 8 of the constitution lists what Congress has the power to do. It takes a very fine eye to see banning guns anywhere on this list:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

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