9th Circuit: US v. Stewart (MG ban unconstitutional?)

[Kharn]

Background: Here's 922(o) (Better known as the machine gun ban of 1986):

(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's the link to the decision: Findlaw Link
Here's some quotes:

"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 secion 922(o) is unconstitutional as applied to Stewart"

"we reverse Stewart's conviction for machinegun possession under section 922(o) as an unlawful extension of Congress's commerce power and affirm his conviction for possession of firearm by a felon"

Did the 9th Circuit get one right? Am I reading this correctly as saying that 922(o) is unconstitutional, and thus null and void?

Kharn

 

[MAKOwner]

I was just reading this on AR15.com too.

As applied to Stewart it is null and void it sure looks like. IE if the receiver (and any other NFA item in the MG such as a DIAS etc) is completely homebuilt, in no way involved with interstate commerce and not for any kind of sale it sure as hell looks like it was just ruled unconstitutional to ban creation/possession of it. As long as the only things bought in a kit from somewhere for profit to someone, or involved in interstate commerce are not the receiver or other registered item it looks like you're good.

That is HUGE!

What does this mean for those not in the 9th Circuit? I would assume it is appealed to the U.S Supreme Court. If they refuse to hear it or uphold it does that mean it then is the law of the land and applies everywhere? What if no one appeals it? Does it currently only effect the few states in the 9th Circuit?

Then what we need to know is if they can't ban them, doesn't the ATF have to accept registration on newly made, "homemade" full autos with the $200 tax of course? Or are they exempt from even registering?

The reason I ask is state law here in Georgia states:

Georgia Law: It is unlawful to possess a short barreled rifle or shotgun, silencer, explosive device, or machine gun2. Exempt from this prohibition are persons authorized to possess such an item because he has registered it in accordance with the National Firearms Act. Also exempt is any such item that has been modified to the extent that it is inoperative - an example of the requisite modification is a weapon with the barrel "filled with lead."

It states all MGs have to be legally registered here in Georgia. So if I can register my new creation with the ATF it would seem to be legal under Georgia law to build as well I would think, yes? God I hope the US Supreme upholds or refuses to even hear this (that means it stands the same as if they heard it and upheld it right?) I really have high hopes of it being upheld or standing, because really it has jack squat to do with interstate commerce, this is the first decent decision I've seen the 9th make. Can't believe they ruled this way, wouldn't do it on 2nd Amendment grounds but they'll do it on interstate commerce grounds, lol...

By the very nature of this decision the ATF has to accept new registrations doesn't it?


And everyone in states that specifically ban machineguns would be hosed still under their state law. This presents alot of us in gun friendly states with a real chance at owning a MG now though right, or at least after/if it is upheld by the Supreme?

 

[AZRickD]

No, it doesn't say the BATF has to accept the $200 tax. If anything it simply says that under certain conditions, 922(o) cannot be enforced on certain individuals.

So, no violation under federal law, no registration given, and no possession of homebuilts in Georgia.

Rick

 

[MAKOwner]

I was thinking about that the wrong way, with what it implies. But what is it that cuts off the ability of the ATF to actually accept new registrations? Is it not this 922(o)? It bans them after whatever date it references. If you read the end there it bars possession past the date it was enacted, I think this may be the text that was added in the 1986 Machinegun Freeze thing as part of the "Firearm Owners Protection Act" or whatever it was called. If that is overturned for homemades, you will be able to register them right?

Here is the whole 922 section of US code, the only stuff that covers firearms law in I think. http://trac.syr.edu/laws/18USC922.html

I so far find nothing else that affects NFA items (but it's huge, may have missed it). Was this 922(o) the only thing that has stopped registration of new MGs past 1986? You can still register other NFA items, new silencers, new shortbarrelled rifles and shotguns currently. What cuts off machineguns? It seems to be this 922(o). If it is no longer valid for homemades, and nothing else says the ATF will not accept new registrations, doesn't this open them up? I think it indeed does....

 

[Pendragon]

9th Circus does not have jurisdiction over GA.

Also, most states have laws about MG posession.

Still, it is interesting. A crack in the dyke perhaps?

 

[Kharn]

MakOwner:

But what is it that cuts off the ability of the ATF to actually accept new registrations? Is it not this 922(o)?

You are correct, 922(o) overrides the NFA and does not allow the civilian ownership of new machine guns, which is the statute used by the ATF to deny civilians when they apply to make a new machine gun. Should this ruling be judged to say that 922(o) is invalid, then we revert back to the NFA (as amended by the GCA) and can pay the $200 tax to make a new machine gun.

Kharn

 

[carpettbaggerr]

Took them long enough to bring the case. 17 years to get a decision. Hope to see a drop in the price of class 3 toys soon (at least in the 9th circuit)

 

[Telperion]

I don't think it's "HUGE", but anything that chips away at the commerce clause is good news. What's the Morrison test, for the unschooled masses?

 

[El Tejon]

Will be reversed on en banc. Supremes could never hear a case like this. Can you imagine the implications for the government on both Commerce Clause and Second Amendment!?!?

 

[Jim March]

Pendragon: you mean "dike". You REALLY mean "dike". If the proverbial "boy who stuck his finger in the dike" had instead stuck it in a dyke, sexual assault charges would have been filed...

 

[MAKOwner]

If it stands, couldn't this precident (sp) also carry over to all firearms laws, like say the AWB? Seems there would be grounds to challenge a homebuild weapon that falls under the AWB. In a state with no local AWB it would seem to open to the door. In fact this seems to open the floodgates on all federal gun bans or restrictions since it seems they are all on the books under the guise of interstate commerce...

Ehhh, the poster up above is right, they're going to squash this like a bug, somehow they will have to throw it out.

 

[carpettbaggerr]

That's exactly why the NFA is a tax bill. The federal government has power to tax fully automatic weapons, but couldn't regulate them iin any other ways. At least they couldn't in 1934 -- things seem to have changed a little since then.

 

[Telperion]

Ok, I read the opinion and answered my own question about the Morrison test. El-T, you don't think the 9th would be the least bit cautious after U.S. v. Lopez?

Does anyone else find it amusing that a case called U.S. v. Rambo is cited, which also concerns unregistered machinegun ownership?

 

[MAKOwner]

Yes, the US v Rambo thing initially made me think this was a practical joke until I saw the decision on the actual 9th Circuit Court webpage, lol...

 

[Kharn]

US v. Rambo, I thought that was an in-joke I was too young to get (never saw the Rambo movies), does anyone have a link to that decision?

Kharn

 

[MAKOwner]

http://www.healylaw.com/cases/rambo.htm

Has alot of bits about 922(o) in there.

 

[AZRickD]

Well, let's add to Lopez, Morrison, and Stewart:

US v Rock Island Armory (1991):

http://www.constitution.org/2ll/court/fed/us_v_rock_island.htm

As applied to machineguns alleged to be possessed after May 19, 1986, prosecutions may no longer proceed under 26 U.S.C. § 5861. This is because the National Firearms Act is part of the Internal Revenue Code, and its provisions — including registration of machineguns possessed after May 19, 1986 — are valid only to the extent they aid in the collection of tax revenue. Since BATF would not register and accept tax payments for any machinegun after May 19, 1986, registration of machineguns made and possessed after that date no longer serves any revenue purpose, and such registration requirements are invalid. Since 18 U.S.C. § 922(o) is interpreted to ban registration and taxation of machineguns under the National Firearms Act, § 922(o) effectively repeals such registration and taxation provisions. Congress has no enumerated power to require registration of firearms. However, since registration of firearms may assist in the collection of revenue, Congress passed the National Firearms Act in 1934 pursuant to its power to tax. Section 922(o) destroys the constitutional basis of registration.

and

In the 1934 hearings, Attorney General Homer S. Cummings explained in detail how the NFA would be based on the tax power. National Firearms Act: Hearings Before the House Committee on Ways and Means, 73rd Cong., 2d Sess., 6 (1934). Cummings denied that machineguns could be banned, because "we have no inherent police power to go into certain localities and deal with local crime. It is only when we can reach those things under ... the power of taxation, that we can act." Id. at 8.

When Congressman Harold Knutson asked "why should we permit the manufacture, that is, permit the sale of the machine guns to any one outside of the several branches of the Government," Congressman Sumners suggested "that this is a revenue measure and you have to make it possible at least in theory for these things to move in order to get internal revenue?" Id. at 13-14. Cummings agreed: "That is the answer exactly." Id. at 14. The following dialogue ensued:

Attorney General CUMMINGS.... If we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say, "we will tax the machine gun," ... you are easily within the law.

Mr. LEWIS. In other words, it does not amount to prohibition, but allows of regulation.

Attorney General CUMMINGS. That is the idea. We have studied that very carefully.

and the Coup d' Grace:

The ban enacted in 1986, and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis. It is the duty of the judiciary to declare such laws unconstitutional. Marbury v. Madison, 1 Cranch. 137, 176-77, 2 L.Ed. 60 (1803).

In sum, since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts 1(a) and (b), 2, and 3 of the superseding indictment are

DISMISSED.

 

[MAKOwner]

So what exactly did that find, only that the NFA and GCA provisions regarding registration and taxation on NFA items is invalid now right? but it still finds that 922(o) is constitutional, but provides no punishment does it? What jurisdictions/states does this ruling cover, I take it the Supreme court refused to hear it?


This is confusing as hell...

 

[Kharn]

Rock Island Armory was a US district court case in Illinios; since civilian MG possession is illegal there on the state level the decision doesnt mean anything and it was never appealed to the Circuit Court by the govt (as they got the guy on state charges instead of federal).

Kharn

 

[Frohickey]

Here is the US vs Stewart opinion.

I intend on reading it carefully, but the opinion is written by Alex Kozinsky... he's one of the judges that wrote a scathing dissent in the Nordyke case arguing for the 2nd Amendment.

Scanning it, it says that possession of a homemade machinegun is not precluded by the Commerce Clause of the US Constitution. There was no commercial or economic activity about the making of the homemade machinegun... but, the kicker here is that right now until Silviera vs Lockyer is brought up to the SCOTUS, the 2nd Amendment doesn't give people the rights to private gun ownership or possession.â€

Pretty ingenious of Kozinsky... he puts another conflict between the circuit courts... 5th vs 9th.

 

[atek3]

do any ninth circuit states allow unregulated machine gun ownership?
nevada perhaps?

So are people churning out homemade machine guns yet?

atek3

 

[Kharn]

atek3:
The ATF is sitting on all the 9th Circuit Form 1's, so no one has authorization to build any new MGs.

Kharn

 

[Foreign Devil]

They've been "sitting" on thousands of forms for months now - someone needs to light a fire under their their @**. Can't you get an injunction ordering the ATF to issue the tax stamp(assuming the person isn't a felon)? That's how Miranda worked - it didn't take overnight, it took lots of people challenging their unconstitutional arrest/interrogation for it to take hold. For a while after Miranda people were still not being read their rights.

 

[Kharn]

Supposedly the ATF has dumped the whole problem in Ashcroft's lap and now its the DOJ's call on what to do (due to ATF going from Treasury to DOJ). I wouldnt be surprised if they happened to sit on it until after the first week in November...

Kharn

 

[LAR-15]

So people have applied to make machine guns?