[Special note for special linkers! This doesn’t mean that the states can’t regulate homemade machine guns (as in toss people in the hooskow)! Also, this is a Ninth Circuit case, not a Supreme Court case! So please don’t build homemade machine guns on my account!]
Facts: Stewart sold kits for making machine guns, and when his home was searched some machine guns were found. He had built the machine guns himself rather than buying them. Stewart was arrested for possessing machine guns in violation of 18 U.S.C. § 922 (o) and was convicted at trial. Stewart challenged this conviction on the basis that Congress did not have the power to forbid his conduct under the Commerce Clause because the guns never traveled in interstate commerce but rather were “home-grown”.
Issue: Can Congress prohibit the “mere possession of homemade machineguns” under the Commerce Clause?
Rule: Congress can regulate the three categories of activity set out in Lopez: “channels”, “instrumentalities”, and stuff that “substantially affects” interstate commerce.
Analysis: The court first considers whether the section in question is a regulation of the “use of the channels of interstate commerce”. The court found in United States v. Rambo that there is “no unlawful possession…without an unlawful transfer” and thus the statute was a constitutional regulation of the “use of the channels of interstate commerce”.
But the court goes on to distinguish the present case, because there was never an unlawful transfer. All the stuff that moved through interstate commerce did so legally, but then Stewart put the stuff together to make an illegal weapon. Therefore, in this case there is no use of the channels of interstate commerce to regulate.
Then the court considers whether the statute can be seen in this case as regulating an activity that substantially affects interstate commerce. The court uses the “four-part test” of Morrison to determine whether the regulating homemade machine guns “substantially affects” interstate commerce.
The court finds that (1) possession of a machine gun is not economic in nature, (2) the connection between possession of a machine gun and interstate commerce is attenuated, (3) the statute has no explicit jurisdictional hook into the Commerce Clause and (4) legislative findings purported to support the constitutionality of § 922 (o) actually have no bearing.
The court argues for the legality and propriety of “as-applied” challenges against the dissent in McCoy.
The dissent in this case says that regulating possession of machine guns is a valid part of a broader strategy to regulate the interstate machine gun market as a whole. Restani also argues that Wickard should control. Stewart’s guns are claimed to be like Filburn’s wheat such that Stewart would go out and buy machine guns on the interstate market if he wasn’t making them at home.
Conclusion: The conviction under § 922 (o) is reversed.