922(o) declared unconstitutional! (922 = MACHINE GUNS)

[Knife_Sniper]

Here is 922(o)



--------------------------------------------------------------------------------

(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.
--------------------------------------------------------------------------------




Here is the decision:

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

Here is the quote:



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Based on the four-factor Morrison test, section 922(o)
cannot be viewed as having a substantial effect on interstate
commerce. We therefore conclude that section 922(o) is
unconstitutional as applied to Stewart.

--------------------------------------------------------------------------------




DAMN!!!

Am I reading this right?

*Sorry for stealing this off ARFCOM!!! I had to run this over here.*

It seems it says something to the extent of as long as a machine gun
doesent cross state lines at any time, its legal to make (new) ones for yourself.

Everyone at ARFCOM is confused, its like deer in the headlights. What does all this mean? Are our assumptions right? Is this the answer to legal full autos? Any lawyers in here???

 

[El Tejon]

Knife, no, it will go en banc and be reversed. The Supremes would never touch it because of the Commerce Clause implications (let allow Second Amendment--just think of a Miller type case with a machine gun!!!).

 

[Henry Bowman]

Other Circuits and, I believe the Supremes, has held that milk produced and sold in the same state or grain raised and rold in the same state affects interstate commerce sufficiently to be regulated by the Feds.

 

[oldfart]

Milk and grain are both traded on interstate markets. Machine guns, on the other hand, due to the limitations of both NFA '34 and GCA '68, are not commonly traded in the same fashion.

I don't think I'll rush out and buy up a dozen or so Sten kits though. As soon as the case is heard en banc it will be reversed and I'd have a whole lot of scrap metal laying around.

 

[Mark Tyson]

The supremes turned down cert for a case dealing with machine guns - either earlier this year, or late last year, I can't remember. They want no part of the gun debate, the spineless cowards.

As for interstate commerce, ever since West Coast Hotel vs. Parrish (1937)everything has been interstate commerce. Don't count on anything being thrown out because it was not interstate commerce. Even feed produced on a farm and fed to animals on the same farm has been ruled to affect interstate commerce.

To the supreme court there is no balancing, there is no test, there is no rebuttal.

 

[Smurfslayer]

Not so fast....

The statute was declared unconstitutional "AS APPLIED" to the limited, specific case of a person who had manufactured a machine gun, which simply had not moved in, or affected interstate commerce. The lynchpin here is that this guy actually built the gun for his own personal use using many unique home manufactured parts.

The 9th Circus did however, appropriately use the Lopez decision to effectively stop the "commerce cause creep" infringements. I think this decision has a good chance of standing if appealed en banc, or to USSC because of it's limited scope, and the very real overreaching commerce clause abuse by Congress.

Also, this isn't the "law of the land" just yet... This decision is limited in scope, and of course, still only has the force of law in the 9th circus...

 

[Cosmoline]

This may well help create a lasting loophole for hand made machine guns, though it doesn't appear to have quashed the regulation as a whole.

BTW, if Justice Thomas' concurrence in Lopez were law of the land, the federal gov'ment stateside would be a small, largely impotent shadow of its former draconian self. We need four more Thomas'!

 

[WYO]

I'm curious, does anyone know the background of the two judges in the majority? I was surprised that the dissenter was a judge on the United States Court of International Trade (never heard of it), sitting by designation.

 

[jimpeel]

Ever since the Printz decision JAY PRINTZ, SHERIFF/CORONER, RAVALLI COUNTY, MONTANA, PETITIONER 95-1478 v. UNITED STATES RICHARD MACK, PETITIONER 95-1503 wherein Justice Thomas stated:

Government's authority under the Commerce Clause, which merely allocates to Congress the power "to regulate Commerce . . . among the several states," does not extend to the regulation of wholly intrastate, point of sale transactions. See United States v. Lopez, 514 U.S. 549, 584 (1995) (concurring opinion). Absent the underlying authority to regulate the intrastate transfer of firearms, Congress surely lacks the corollary power to impress state law enforcement officers into administering and enforcing such regulations. Although this Court has long interpreted the Constitution as ceding Congress extensive authority to regulate commerce (interstate or otherwise), I continue to believe that we must "temper our Commerce Clause jurisprudence" and return to an interpretation better rooted in the Clause's original understanding. Id., at 601; (concurring opinion); see also Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. ___, (1997) (Thomas, J., dissenting). Even if we construe Congress' authority to regulate interstate commerce to encompass those intrastate transactions that "substantially affect" interstate commerce, I question whether Congress can regulate the particular transactions at issue here. The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress' regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from "prohibiting the free exercise" of religion or "abridging the freedom of speech." The Second Amendment similarly appears to contain an express limitation on the government's authority. That Amendment 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." This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. 1 If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. 2 As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries §1890, p. 746 (1833). In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment.

I have wondered what would happen if a firearms manfacturer opened in a state; and they made firearms from only those materials manufactured within the state; and they sold them over the counter direct to the public without any adherence to federal, only state, law what would happen.

First of all, I do know the following:

There would be a BATFE raid on the company;

There would be confiscation of all finished goods and materials;

There would be wholesale arrests of those who own and work at the company;

There would be a federal indictment;

There would be a trial wherein those involved would likely be convicted.

It is after this that I don't know what the USSC would do. After all, these arms would not be interstate commerce nor affect interstate commerce. What the feds would likely claim is that those who purchased the firearms would take those arms across state lines and that would be an effect on interstate commerce.

At that point, the court would have to decide if any such thing as personal, private property exists in America or if all things in the "ownership" of the citizenry actually belong to the government and have never been the personal, private property of the citizenry.

 

[Frohickey]

BTW, if Justice Thomas' concurrence in Lopez were law of the land, the federal gov'ment stateside would be a small, largely impotent shadow of its former draconian self. We need four more Thomas'!

One Janice Rogers Brown ought to fill the bill quite nicely. Though, the 'rats are doing their darnest to make sure Brown doesn't get an UP or DOWN vote.