wingnutx
November 14, 2003, 02:00 PM
Big News on the Commerce Clause:
United States v. Stewart
The new Commerce Clause jurisprudence (Lopez and Morrison) comes home to roost in the Ninth Circuit's pathbreaking decision today that holds that the federal government may not ban a homemade machine gun. Here is a link to the PDF file. (Via Volokh.)
Here are the two key paragraphs of the opinion:
"We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) “is a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S at 561. Unlike in Wickard v. Filburn, 317 U.S. 111 (1942), where growing wheat in one’s backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred—and there is none here—its relationship to interstate commerce is highly attenuated.
Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals—an admirable goal, but not a commercial one."
And one more important paragraph from later in the opinion:
This case fails Morrison’s other requirements as well.
"As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where—as here—such findings would “enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.” Lopez, 514 U.S. at 563."
The implications are staggering. Here is one: Homegrown marijuana would seem directly analagous to homemade machineguns. And in fact, the Ninth Circuit has a homegrown medical marijuana case pending now. Wow!
http://lsolum.blogspot.com/2003_11_01_lsolum_archive.html#106876112035798273
United States v. Stewart
The new Commerce Clause jurisprudence (Lopez and Morrison) comes home to roost in the Ninth Circuit's pathbreaking decision today that holds that the federal government may not ban a homemade machine gun. Here is a link to the PDF file. (Via Volokh.)
Here are the two key paragraphs of the opinion:
"We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) “is a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S at 561. Unlike in Wickard v. Filburn, 317 U.S. 111 (1942), where growing wheat in one’s backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred—and there is none here—its relationship to interstate commerce is highly attenuated.
Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals—an admirable goal, but not a commercial one."
And one more important paragraph from later in the opinion:
This case fails Morrison’s other requirements as well.
"As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where—as here—such findings would “enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.” Lopez, 514 U.S. at 563."
The implications are staggering. Here is one: Homegrown marijuana would seem directly analagous to homemade machineguns. And in fact, the Ninth Circuit has a homegrown medical marijuana case pending now. Wow!
http://lsolum.blogspot.com/2003_11_01_lsolum_archive.html#106876112035798273