High court's Calif. ruling outlaws homemade machine guns

[PinnedAndRecessed]

SAN FRANCISCO (AP) - A recent Supreme Court ruling that Congress can ban homegrown marijuana for medical use in California led Friday to the reinstatement of an Arizona man's overturned conviction for having homemade machine guns.
Prosecutors in both cases invoked the Constitution's interstate commerce clause, despite the fact that the cases centered on items that were homemade, or homegrown, and didn't involve commerce or crossing state lines. The courts ruled, however, that the items still can affect interstate commerce and therefore can be regulated by federal law.

In the machine gun case, the 9th Circuit Court of Appeals on Friday reinstated the convictions of Robert Wilson Stewart, 67, of Mesa, Ariz. The three-judge panel reversed its own previous decision to overturn the convictions because he never tried to sell his weapons or transport them over state lines.

Federal agents raided Stewart's house in June 2000 and found five machine guns, which Stewart argued did not violate the congressionally mandated ban on certain assault weapons because they were homemade and not for sale. The appellate court initially agreed with Stewart and overturned his convictions in 2003, ruling the interstate commerce clause did not apply.

The three-judge panel, however, was ordered by the Supreme Court to reconsider its decision after the justices ruled in 2005 that the federal government could prosecute medical marijuana users and their suppliers even if their activity was confined to California.

In the marijuana case, brought by Oakland resident Angel Raich, the majority of Supreme Court justices ruled that the interstate commerce clause makes California's medical marijuana law illegal. The court said homegrown marijuana confined to the state still can affect the entire national market for the drug, allowing for federal regulation.

The same rationale was applied by the appeals court in the homemade machine gun case.

The judges unanimously ruled Friday that Stewart's guns "might bleed into the interstate market and affect supply and demand" and that such items can be federally regulated "especially in an area where Congress regulates comprehensively."

Federal prosecutor John Tuchi said the government appealed Stewart's case to protect the criminal prosecution powers of the commerce clause, which is invoked only in criminal matters involving drugs, child pornography and guns.

"We didn't want any of that eroded," Tuchi said.

Thomas Haney, the Phoenix attorney who represented Stewart, said his client does not intend to appeal the latest decision reinstating his five-year prison sentence imposed in 2002. Once Stewart completes that sentence he must serve another 24 years after he was convicted of soliciting the murder of the federal judge presiding over his machine gun trial.

"Given the Raich case, the major issue about homemade machine guns is resolved," Haney said.

 

[DKSuddeth]

"No clause in the Constitution could by any rule of construction, be conceived to give Congress a power to disarm the people." William Rawle

 

[ConstitutionCowboy]

Might? Might Not!

"The judges unanimously ruled Friday that Stewart's guns "might bleed into the interstate market and affect supply and demand" and that such items can be federally regulated "especially in an area where Congress regulates comprehensively.""

What in the name of all that is Holy or in the realm of common sense does "might" have to do with "did"?

Stewart might have destroyed his machine guns, too. Stewart did not sell his machine guns across any state line. Stewart did not purchase his machine guns across state lines. The Court did not prove Stewart intended to sell his machine guns across state lines. The Court did not prove that Stewart would have purchased his machine guns across state lines if he did not build them himself. The Court CAN NOT prove that anything Stewart did would have effected the commerce clause.

"Federal prosecutor John Tuchi said the government appealed Stewart's case to protect the criminal prosecution powers of the commerce clause, which is invoked only in criminal matters involving drugs, child pornography and guns."

""We didn't want any of that eroded," Tuchi said."

So, my friends, now we can be prosecuted and convicted for a crime we might think about committing. No, not just one we thought about committing, but one we might think about committing.

Until something can actually be proven, ON A CASE BY CASE BASIS, that it does effect interstate commerce, our gun owning and bearing rights (the Second Amendment notwithstanding for the sake of discussion - since the government doesn't pay it much heed anyway) are in jeopardy. The concept that a gun might be used in a murder or other crime, by this bogus logic, would allow the government to outlaw or limit gun ownership. Actually, they have done that.

The government has passed law forbidding a felon to own a gun. Why? Because he might shoot someone or hold them up with it? Sounds good on the surface. But, not all felons are violent, have used a gun in a crime, or would ever use a gun in a crime. THOSE WHO HAVE USED A GUN IN A CRIME NEED TO BE KEPT IN JAIL UNTIL IT IS PROVEN THEY WON'T USE A GUN IN A CRIME. PERIOD! It is a stupid law, anyway. By their very own nature, felons have no regard for the law. So, they pass the buck on to someone who might obey the law - they make it illegal to SELL a gun to a felon. 'Course, they don't tattoo the forehead of the felons so the gun dealers will know who the felons are...

This abuse of the commerce clause is so far out of hand that it is dangerous to our rights, freedom, and personal sovereignty. We can place the onus of this debacle upon the Supreme Court for adding "limit" and "prohibit" to the definition of "regulate" as it is used in the commerce clause. The Court usurped power and amended the Constitution. The power to amend the Constitution is well defined and specific. The Supreme Court has no role in the process. All in Congress are just as culpable, for they allowed it to happen or have neglected to correct it. It has netted them too much power. It is usurped power. It'll take We the People to correct it.

We've got three avenues to approach this problem with: Petition, voting, and revolution - to be applied in that order until we are successful.

Do you all realize how much infringement and abuse We the People have suffered at the hand of the misuse of the commerce clause "allowed" by adding those two definitions to "regulate"? That "allowed" them to infringe upon our Second Amendment protections IN SPITE OF THE PROHIBITION IN THE SECOND AMENDMENT TO INFRINGE UPON THOSE RIGHTS! And, that just scratches the surface. They can govern the growing of tomatoes in our own back yards if they so desire with these abuses.

Maybe we should launch a two-pronged attack on Congress and the Court. We need to force obedience to the Second Amendment and force strict adherence to the original intent and purposes of the Commerce Clause. Since we are the first branch of government(the governed - and the source of all the power of the government), it is our duty to correct this. As I said before, we have three options. Let's get started!

Woody

Look at your rights and freedoms as what would be required to survive and be free as if there were no government. If that doesn't convince you to take a stand and protect your inalienable rights and freedoms, nothing will. If that doesn't convince you to maintain your personal sovereignty, you are already someone else's subject. If you don't secure your rights and freedoms to maintain your personal sovereignty now, it'll be too late to come to me for help when they come for you. I will already be dead because I had to stand alone. B.E.Wood

 

[Burt Blade]

Anything you own, anything you could possibly do, all might in some trivial way influence "interstate Commerce". Thus anything may be regulated, taxed, or even banned. None of the Founders clear intent to limit Federal power applies to anything that might be "interstate commerce".

Thus the theory is that the Founders meant to ensure absolute Federal power through relating all things to commerce that crossed state lines. All that other stuff about limited power in the Constitution was just window dressing. The Bill of Rights certainly wasn't meant to apply to that Commerce Clause of Absolute Power, either.


How these supposedly educated people come to this interpretation suggests that they too may be violating "interstate commerce" based rules on recreational chemicals. It also shows what they intend for your future.

The Tyrant seldom arrives to the sound of Jackboots and the rattle of musketry. More often, the Tyrant arrives to the sound of the scratching of pens, and the snores of the once-free. There will be plenty of time to hire the Jackboots later.

 

[Gunfire]

They can govern the growing of tomatoes in our own back yards if they so desire with these abuses.

The classic case of Wickard v. Filburn (1942). The Court here decided that a farmer growing wheat for his own use on his own property did in fact fall under the heading of "interstate commerce" and thus was subject to federal regulation. Homegrown wheat, in the Court's words, "supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Homegrown wheat in this sense competes with wheat in commerce."

What can one say? Sub [anything] with wheat and you have absolute power. Power that was never delegated to the United States by the Constitution.

 

[FTF]

They can take my wheat from my cold, dead hands.

 

[stevelyn]

Black-robed jackasses rubberstamping the govt agenda.

[sarcasim]Vote for Bush. It's important he appoint SC Justices.[/sarcasim]

 

[bouis]

Believe it or not, the far-left minority of the court (which is FOUR justices, I believe) would allow the commerce clause to be used for anything that can be connected remotely to interstate commerce, and that means literally anything.

So the federal government could not just regulate growing gum trees; it could regulate the act of chewing gum...

 

[Gunfire]

What I can't figure out is, Ashcroft vs Oregon. They ruled for Oregon against the use of the commerce clause regulating Physician assisted suicide by way of the controlled substance act. Was it because of Rehnquist's cancer?

.....and Kelo seems to be giving the states the right to decide eminent domain, as it should be, under the 10th amendment. In one year, 31 states have now passed laws protecting the citizens rights. The way the argument was framed, for 'public use', even though it was really a private taking, they had no alternative but to rule the way they did. In the short term, it's very bad for the owners in New London but in the long run, it's good for all 'the people' because 'we' elect reps that legislate against the public taking for private use increasing taxes stretch argument.

..and Lopez also seems to rule against the wholsale use of the commerce clause.

Then we have Raich which completely contradicts Oregon.

To regain our 2nd rights we need to elect reps that will pass grassroots laws or voter approve that will challenge the nfa, gca, ect. We have the momentum of the concealed weapon concept and just need to build off of that.

I think with Roberts and Alito the state's rights issues will be ruled for the states and the people but it sure won't happen overnight and the commerce clause will go back to regulating and not limiting or banning under threat of criminal punishment.

 

[beerslurpy]

There is no logic to the decision, at least not the type of logic you guys are looking for.

The only grounds they could use to set Stewart free would be the same grounds which would overturn the CSA (Controlled Substances Act). There are hundreds of thousands of people in federal prison because of convictions obtained under the pretense that the CSA is constitutional. There are also hundreds of thousands (perhaps millions) of people employed by the federal government and by the prison system as a result of these arguably unconstitutional laws.

What do you imagine would happen if the rug was yanked out from underneath it? Besides the probably 50-100 billion dollar hole in this taxpayer funded section of the economy, there would be enormous political upheaval as congress and the states fought against the supreme court derailing the gravy train. The backlash would probably be worse than the status quo.

And this is just the drug war section of Commerce Clause abuse. A real pre-New-Deal rollback of Commerce Clause authority would also impact environmental regulation, agriculture regulation and medical regulation- each of which are multibillion dollar troughs in their own right. I think it would be good for the country no matter the cost, but I dont think we have the fortitude to see it through. Just going on the assumption that everyone with a vested interested in an oversized federal government shows up, you will need enormous voter interest in reform- which we have seen is completely absent. Note the post-Kelo non backlash and the post-Raich nonunderstanding of what was going on. People continue to be misinformed and apathetic.

I honestly suspect this whole mess will only end when it manages to bring the entire empire down with it.

 

[Gunfire]

"Note the post-Kelo non backlash"

But there has been a huge backlash, comparitively speaking for 1 years time, 31 states have passed laws restricting eminent domain takings. What other issue has elicited such a response from the states in such a short time?

But what you're saying is the underlying court position considers the economic status of their decisions?

 

[saltydog]

Like I have said over and over again. If people tkink SCOTUS is going to set things straight in this County we live in, then they live in a fantasy land of fools!

 

[publius]

..and Lopez also seems to rule against the wholsale use of the commerce clause.

"Seems to" being the key phrase.

The Lopez decision was used as a drafting guide when Congress passed the Gun Free School Zones Act of 1996. They simply took the law that the Supremes had found unconstitutional, added some language about interstate commerce, and tacked it onto a "must-pass" bill. It can now be found in Section 922 (q).

Justice O'Connor pointed out that "Lopez stands for nothing more than a drafting guide" and here is part of what Scalia had to say about that:

Lopez and Morrison affirm that Congress may not regulate certain “purely local” activity within the States based solely on the attenuated effect that such activity may have in the interstate market. But those decisions do not declare noneconomic intrastate activities to be categorically beyond the reach of the Federal Government. Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation;

Now reread the topic article. Where do you think that quote about comprehensive regulation came from, anyway? It was taking Scalia's glove and slapping him with it. Well deserved, in this case.

 

[Henry Bowman]

Once Stewart completes that sentence he must serve another 24 years after he was convicted of soliciting the murder of the federal judge presiding over his machine gun trial.

An interesting footnote for the history books.

Live free or...

 

[Bartholomew Roberts]

A real pre-New-Deal rollback of Commerce Clause authority would also impact environmental regulation, agriculture regulation and medical regulation- each of which are multibillion dollar troughs in their own right.

Don't forget that much of the Civil Rights Act is based on the Commerce Clause as well. One of the main challeneges facing Rehnquist in Lopez was how to rollback portions of the Commerce Clause without invalidating the Civil Rights legislation and rulings of the 1960s that was based on the Commerce Clause (Heart of Atlanta).

 

[publius]

In the related THR thread, you can find links to the original 9th Circuit opinion in the Stewart case, and the new opinion, in which your gun rights were considered in light of your drug rights.

Both were written by Judge Kozinski, the best we've got IMHO, and are as entertaining and readable as judicial opinions get. Here's a taste of what Kozinski had to say this time around:

Therefore, the fact that Raich did not herself affect interstate commerce was of no moment; when Congress makes an interstate omelet, it is entitled to break a few intrastate eggs.

He also commented on the impotence of the 2nd amendment in this case, since the Supremes declined the opportunity in Silveira vs Lockyer to address the conflict between the circuits on that issue.

The lack of specific congressional findings regarding
the effect of homegrown marijuana on interstate activity
didn’t change the Court’s view: “[W]e have never required
Congress to make particularized findings in order to legislate,
absent a special concern such as the protection of free speech.”6

....

6 We note in passing that since the Second Amendment does not grant
individual rights, see Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002),
we cannot rely on it as a basis for requiring Congress to make specific
findings in legislation touching on firearms.

 

[ConstitutionCowboy]

How Does One Become A Justice Sans The Ability To Comprehend The English Language?

"...We note in passing that since the Second Amendment does not grant individual rights, see Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002),
we cannot rely on it as a basis for requiring Congress to make specific
findings in legislation touching on firearms."

This is as bogus as it gets. The Second Amendment grants nothing. It restricts government! It PROTECTS the right!

[size=+2]GAAHHHH!!!![/size]

Woody

As the Court said in Boyd v. United States: [p] "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." [/p] [p]We should not wait solely upon the Court to protect our rights for us, but should take an active part in protecting our own sovereignty as well. [/p]

 

[publius]

The Second Amendment grants nothing. It restricts government! It PROTECTS the right!

In the 5th Circuit, yes, but not in the 9th. Having read a few Kozinski opinions, I suspect he does not agree with that state of affairs, but that's how things are since the Supreme Court refused to hear Silveira vs Lockyer.

 

[Brett Bellmore]

With reasoning of this sort, you can just about understand why he solicited the judge's murder. Certainly, anybody who's followed how Stewart got yanked around by the legal system can see why he might do it. Damn foolish, though.

Yes, the Lopez decision was a momentary glitch, while the "conservatives" on the Court thought about trying to restore the actual meaning of the commerce clause. They blinked, and the Leviathan's march to omnipotence has resumed.

We're in the post-Constitutional era now, folks. The Constitution isn't in force any more, they just haven't gotten around to publicly admitting it.

 

[Bartholomew Roberts]

woocdi, before you get all bent out of shape on Kozinski's different opinions you might want to fine tune your sarcasm meter. It also helps to understand the following aspects of this case:

Kozinski wrote the first opinion saying Stewart had a right to build home-grown machineguns.

The Supreme Court received the appeal from the 9th Circuit and sent it back saying to "Review this case in light of Raich v. Gonzales". In legal speak, that means - "Reverse the finding of this case using the same reasoning we used in Raich"

Now Kozinski is trapped. He may not believe that the Second Amendment protects a collective right; but thanks to the ruling in Silveira v. Lockyear, he has no choice but to follow recent precedent. Likewise, he may not believe that Raich is a good decision or even a relevant one; but when the higher court says "Apply Raich" he has to apply Raich.

Think of the type of sarcastic comments you might make in such a situation and NOW read Kozinski's opinion again.

 

[AJAX22]

It makes you wonder how many decisions have specific wording inserted into them as an attempt to cut the achilies heel by judges who were forced into coming up with rulings....

...I was really hoping that this would be useable as precident for building them ourselves.... guess it will have to wait another ten or twenty years....

 

[ConstitutionCowboy]

The Meter Is Just Fine! (So Is The Sarcasm Machine It Monitors...)

woocdi, before you get all bent out of shape on Kozinski's different opinions you might want to fine tune your sarcasm meter. It also helps to understand the following aspects of this case:

Kozinski wrote the first opinion saying Stewart had a right to build home-grown machineguns.

The Supreme Court received the appeal from the 9th Circuit and sent it back saying to "Review this case in light of Raich v. Gonzales". In legal speak, that means - "Reverse the finding of this case using the same reasoning we used in Raich"

Now Kozinski is trapped. He may not believe that the Second Amendment protects a collective right; but thanks to the ruling in Silveira v. Lockyear, he has no choice but to follow recent precedent. Likewise, he may not believe that Raich is a good decision or even a relevant one; but when the higher court says "Apply Raich" he has to apply Raich.

Think of the type of sarcastic comments you might make in such a situation and NOW read Kozinski's opinion again.

Bart, I fully understand Kozinski's dilema here. I fully understand ours as well. None of this changes my thoughts on the bogus interpretation of the rights protected by the Second Amendment, nor does it change my opinion of those who perpetrated that bogus interpretation.

To begin with, "precedent" is nothing less than the court system making its own law, forcing the next poor slob to suffer the same - most likely spurious - fate as the first guy. Not every case is absolutely identical, and each and every case deserves judgement on its own merits.

Now you've got the bogus 9th Circuit decision in Silveira v. Lockyear, the Emmit decision from the 5th Circuit more inline with the truth, and you have two sections of the country living under different "law"(precedent) in which neither section of the country had any legislative say. There is a conflict here and it is up to the Supreme Court - or better, the Congress - to clear this up once and for all.

I understand how easy it is to fall back on precedent instead of the Constitution and the law if one has an agenda to preserve. But, there is so much bad precedent that needs to be thrown out, one would need to throw out all precedent and adjudicate strictly according to the Constitution and constitutional law.

Another thing I find strange is the Court sending Stewarts case back down to include a decision it refused to hear in the first place(Silveira v. Lockyear). Is the Supreme Court going to let a lower court set a precedent and follow it as if it were the final word? They have done nothing less here.

Kozinski was told to review the case in light of Raich v. Gonzales. What would have kept Kozinski from doing that and finding it inapplicable? The Court didn't vacate his ruling, as I understand, stepped upon their own US v. Lopez to justify Raich v. Gonzales without any evidence that the marijuana grown would have effected IC, meaning it would have to have been proven that these people woud have bought marijuana if they hadn't grown their own, when in fact they waited for it to be legal to grow their own by Califorina law. Without such proof, there is no evidence these people would have bought marijuana. It is no different for Stewart. There is no proof that Stewart would have bought a machine gun had he not built his own.

Kozinski could have reviewed the case and found R v.G inapplicable for the lack of any corroberating or parallel evidence and come to the same conclusion he had before. That would have thrown this case right back in the lap of the Supremes. They could let his decision stand or hear the case themselves.

I can not understand the lack of integrity that has abounded in the judicial system in the last third or so of this country's history. They have shown little weakness in dragging us this far off course. It would seem not all that difficult, nor should it take any more strength, courage, or virtue to right things than it did to wrong things. We have suffered change and we can suffer change again. Only this time, it'll be for the better!

As for my sarcasm, it is well deserved. We all know those people read and understand the English language. But, they are agenda driven, and to follow that agenda they must ignore word definitions or replace them with their own definitions which would give an impartial observer the impression that these people can't understand the language. I must call it as I see it.

Woody

If the Court wants to follow precedent, what would be wrong with following this?

As the Court said in Boyd v. United States: "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."


We should not wait solely upon the Court to protect our rights for us, but should take an active part in protecting our own sovereignty as well.

 

[Molon Labe]

Might Crime 101

So, my friends, now we can be prosecuted and convicted for a crime we might think about committing. No, not just one we thought about committing, but one we might think about committing.

It's called a might crime™.

A might crime is defined as a crime you might commit.

There are two kinds of might crimes:

1. There is overwhelming evidence that the action puts innocent people at considerable risk of injury or death, and/or violates an innocent person's inalienable rights. Driving while intoxicated or pointing a gun at a crowd of innocent people would be obvious examples. It is usually lawful & justified to arrest someone for committing this type of might crime.

2. There is very little or no evidence that the action puts innocent people at considerable risk of injury or death, or violates an innocent person's inalienable rights. Possessing an "unregistered" full auto gun would be one example. Suffice to say, this type of might crime is immoral and unlawful.

 

[ConstitutionCowboy]

Molan Labe

Ah, but you need to go one step further to one you might think about committing, not simply thought about committing. It is different. There are crimes you commit. There are crimes you might commit. There are crimes you thought about committing. Then, there are crimes you might think about committing. This last one is one you actually haven't thought about committing yet....But you might! Be careful of the situations you place yourself in. You can be found guilty of something you could possibly, maybe, perchance, might think about doing that would be illegal.

Even God doesn't hold you as a sinner until you actually think about doing something bad.

Woody

If you want security, buy a gun. If you want longevity, learn how to use it. If you want freedom, carry it. There is nothing worth more than freedom you win for yourself. There is nothing more valuable than the tools of the right that make it possible. B.E.Wood

 

[cpileri]

double jeopardy

Was there new evidence or just a revision of the law?

If there was no new evidence, isn't this a case of double jeopardy?
C-