U.S. v. Stewart

Citation451 F.3d 1071
Decision Date30 June 2006
Docket NumberNo. 02-10318.,02-10318.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert Wilson STEWART, Jr., Defendant-Appellant.

Thomas E. Haney, Phoenix, AZ, for the defendant-appellant.

Paul K. Charlton, United States Attorney; John Joseph Tuchi, Deputy Appellate Chief; Joan G. Ruffennach, Assistant United States Attorney, Phoenix, AZ, for the plaintiff-appellee.

James E. Leuenberger, Lake Oswego, OR, for amicus curiae Oregon Firearms Educational Foundation.

Sharon L. Browne, Arthur B. Mark, III, Sacramento, CA, for amicus curiae Pacific Legal Foundation.

On Remand from the United States Supreme Court. D.C. No. CR-00-00698-ROS.

Before: KOZINSKI and T.G. NELSON, Circuit Judges, and RESTANI,* Judge.

KOZINSKI, Circuit Judge:

We consider in light of Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), whether Congress can use its commerce power to ban possession of homemade machineguns.

Facts1

Robert W. Stewart sold parts kits for the manufacture and assembly of Maadi-Griffin.50 caliber rifles; he advertised the kits on the Internet and in Shotgun News, a national firearms magazine. Stewart believed the kits were legal to sell because the receivers on the rifles had not yet been completely machined and the rifles were thus not usable as firearms. An agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) discovered that Stewart had a prior conviction for possession and transfer of a machinegun and decided to investigate Stewart's business. Another agent, acting undercover, purchased one of Stewart's kits and determined that it could be "readily ... converted" into an unlawful firearm, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 921(a)(3)(A). Based on this information, the ATF agent secured a federal search warrant for Stewart's residence.

In addition to numerous rifle kits, the ATF search also turned up thirty-one firearms, including five machineguns. The machineguns had been machined and assembled by Stewart. Stewart was charged and convicted of one count of felony possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and five counts of unlawful possession of a machinegun in violation of 18 U.S.C. § 922(o). No charges were brought against Stewart regarding the advertised parts kits that were initially the subject of the investigation. Stewart appeals his conviction for unlawful possession of machineguns, claiming that 18 U.S.C. § 922(o) is an invalid exercise of Congress's commerce power and violates the Second Amendment; he appeals his conviction for possession of a firearm by a felon on Second Amendment grounds.2

In a prior opinion, we held, over Judge Restani's dissent, that as applied to Stewart, section 922(o) was an invalid exercise of Congress's commerce power. See United States v. Stewart, 348 F.3d 1132, 1140 (9th Cir.2003). After its decision in Raich, the Supreme Court granted certiorari, vacated our decision and remanded. See United States v. Stewart, ___ U.S. ___, 125 S.Ct. 2899, 162 L.Ed.2d 291 (2005) (mem.).

Analysis

1. Section 922(o) makes it illegal to "transfer or possess a machinegun."3 As we recognized in our prior opinion, there is nothing inherently economic or commercial about mere possession of an object, so we must consider whether criminalization of machinegun possession falls within Congress's commerce power. See U.S. Const. art I., § 8. It is well-established that Congress can regulate three categories of economic activity under its commerce power: (1) "the use of the channels of interstate commerce," (2) "the instrumentalities of interstate commerce" and (3) "those activities having a substantial relation to interstate commerce." United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). We began our prior opinion by holding that section 922(o) could not be justified under either of the first two categories. See Stewart, 348 F.3d at 1134-36. So we turned to whether Stewart's possession of a homemade machinegun substantially affected interstate commerce. We applied the four-prong test articulated in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000):

(1) whether the regulated activity is commercial or economic in nature; (2) whether an express jurisdictional element is provided in the statute to limit its reach; (3) whether Congress made express findings about the effects of the proscribed activity on interstate commerce; and (4) whether the link between the prohibited activity and the effect on interstate commerce is attenuated.

Stewart, 348 F.3d at 1136-37 (citing Morrison, 529 U.S. at 610-12, 120 S.Ct. 1740). We held that section 922(o) failed the first prong because "[p]ossession of a machinegun is not, without more, economic in nature." Id. at 1137. We next determined that the effect of Stewart's activities on interstate commerce was quite attenuated: "Stewart's homemade machineguns did not stimulate a demand for anything illegal — all the components he bought were legally available from commercial sources." Id. at 1138. And his possession did not affect overall demand because there was no evidence that "Stewart would ever have bought a machinegun from a commercial source, had he been precluded by law from building one himself." Id. We then noted that section 922(o) contains no "jurisdictional element anchoring the prohibited activity to interstate commerce." Id. And finally, we noted that "Congress also failed to make any legislative findings when it enacted the statute" that might have explained and justified Congress's policy choices. Id. We held that legislative findings supporting prior firearms legislation were not instructive in our evaluation of section 922(o) because the section represented a sharp break from prior legislation in the field. Id. at 1139. Whereas earlier statutes criminalized transactions, sales or deliveries of firearms — quintessential economic activities — section 922(o) criminalizes mere possession. Because, as applied to Stewart, section 922(o) failed all four prongs of the Morrison test, we held that it was unconstitutional.

2. We now turn to whether our prior analysis is consistent with the approach to applied Commerce Clause challenges articulated in Raich. There, the Court considered whether the Controlled Substances Act ("CSA") could constitutionally be applied to the possession of marijuana authorized by a physician's prescription dispensed in accordance with state law. The claims and the statute at issue in Raich were nearly identical to those at issue here:4 Like Raich, Stewart makes an as-applied challenge; he does not contend that the statute under which he was convicted falls entirely outside Congress's commerce power, as did the defendants in Morrison and Lopez. See Raich, 125 S.Ct. at 2209. And like Raich, Stewart claims his possession falls within a subgroup of purely intrastate activities that can easily be cordoned off from those Congress may constitutionally control. The contested statutes themselves are nearly identical as well. Both the CSA and section 922(o) criminalize possession — an activity that, under the Morrison framework, seems entirely non-economic. Neither contains an express jurisdictional element to limit its reach, nor any express congressional findings that intrastate possession will affect interstate commerce.5

The Supreme Court systematically rejected each of Raich's claims. It began by reiterating its prior holding that Congress may "regulate purely local activities that are part of an economic `class of activities' that have a substantial effect on interstate commerce." Raich, 125 S.Ct. at 2205. Therefore, "when `a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.'" Raich, 125 S.Ct. at 2206 (quoting Lopez, 514 U.S. at 558, 115 S.Ct. 1624); see also id. at 2209 ("That the regulation ensnares some purely intrastate activity is of no moment.").

The Court then held Raich's arguments were squarely controlled by Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942): "Congress can regulate purely intrastate activity that is not itself `commercial,' in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market...." Raich, 125 S.Ct. at 2206. Applying Wickard, the Court rejected Raich's attempt to carve out a narrow class of intrastate activities as beyond the reach of the Commerce Clause. Raich claimed that when evaluating her activities under Wickard, the Court should look only at the effect of homegrown marijuana authorized by state law. However, the Court refused to do so; after explaining that homegrown marijuana — authorized under state law or not — could quite easily leak into the interstate market, the Court held that "Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions." Id. at 2207; see id. at 2209 ("Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA."). Absent was any analysis of whether state-authorized marijuana differed from other homegrown marijuana. 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. Id. at 2206.

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 Id. at 2208 (internal citations omitted). And the...

To continue reading

Request your trial
15 cases
  • United States v. One Palmetto State Armory PA-15 Machinegun Receiver/Frame
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • July 22, 2015
    ...Government points us to several Court of Appeals decisions applying Raich to uphold federal firearms laws. Id. See United States v. Stewart, 451 F.3d 1071 (9th Cir.2006) ; see also Montana Shooting Sports Ass'n v. Holder, 727 F.3d 975 (9th Cir.2013) ; accord United States v. Rene E., 583 F.......
  • San Luis & Delta–mendota Water Auth. v. Salazar
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 25, 2011
    ...United States v. McCalla, 545 F.3d 750, 754–55 (9th Cir.2008) (applying Raich to federal child pornography laws); United States v. Stewart, 451 F.3d 1071 (9th Cir.2006) (applying Raich to federal firearm laws). In sum, Congress has the power to regulate purely intrastate activity as long as......
  • U.S. v. Alderman
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 12, 2009
    ...U.S. at 561, 115 S.Ct. 1624. We have never found that mere possession is, itself, an economic activity. See United States v. Stewart (Stewart II), 451 F.3d 1071, 1073 (9th Cir.2006) (stating that possession of machine guns is not an economic activity); McCoy, 323 F.3d at 1131 ("simple intra......
  • U.S. v. Rothacher
    • United States
    • U.S. District Court — District of Montana
    • July 18, 2006
    ...of Rothacher's Tenth Amendment arguments. But, I cannot find a reasoned and principled way to avert the holdings in United States v. Stewart, 451 F.3d 1071 (9th Cir.2006); Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005); and the Phoenix-like resurrection of Wickard v. Fi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT