688 F.3d 637 (9th Cir. 2012), 11-30181, United States v. Henry

Docket Nº:11-30181.
Citation:688 F.3d 637
Opinion Judge:M. SMITH, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Matthew Wayne HENRY, Defendant-Appellant.
Attorney:Fred Richard Curtner, III (argued), Anchorage, AK, for the defendant-appellant. Jo Ann Farrington (argued), Assistant United States Attorney, Karen L. Loeffler, United States Attorney, Anchorage, AK, for the plaintiff-appellee.
Judge Panel:Before: ALFRED T. GOODWIN, WILLIAM A. FLETCHER, and MILAN D. SMITH, JR., Circuit Judges.
Case Date:August 09, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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688 F.3d 637 (9th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Matthew Wayne HENRY, Defendant-Appellant.

No. 11-30181.

United States Court of Appeals, Ninth Circuit.

August 9, 2012

Argued and Submitted June 26, 2012.

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Fred Richard Curtner, III (argued), Anchorage, AK, for the defendant-appellant.

Jo Ann Farrington (argued), Assistant United States Attorney, Karen L. Loeffler, United States Attorney, Anchorage, AK, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska, H. Russel Holland, Senior District Judge, Presiding. D.C. No. 3:10-cr-00115-HRH-1.

Before: ALFRED T. GOODWIN, WILLIAM A. FLETCHER, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

Defendant-Appellant Matthew Wayne Henry appeals his conviction for illegal possession of a homemade machine gun, under 18 U.S.C. § 922( o ). He contends that he has a Second Amendment right to possess a homemade machine gun in his home. We reject this argument because machine guns are " dangerous and unusual weapons" that are unprotected by the Second Amendment. Dist. of Columbia v. Heller, 554 U.S. 570, 627, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Henry also argues that Congress did not have the power to enact § 922( o )'s prohibition against possessing machine guns pursuant to the powers delegated to Congress in the Commerce Clause. That argument fails because we already have held that the Commerce Clause authorizes § 922( o )'s machine gun possession ban. United States v. Stewart, 451 F.3d 1071, 1078 (9th Cir.2006). Accordingly, we affirm Henry's conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On October 30, 2009, the Anchorage Police Department dispatched officers to a home after receiving reports of gunfire. Officers found numerous shell casings in the area. The Anchorage police executed a search warrant of the residence, seeking evidence of firearms and ammunition. Officers seized a loaded .308-caliber assault rifle and an empty magazine found under Henry's bed. On October 31, 2009, Henry was arraigned in state court for discharging firearms while intoxicated. On December 7, 2009, the case was dismissed because the state declined to prosecute.

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After Henry's release, the Anchorage police received an anonymous tip that Henry had converted the .308-caliber rifle into a machine gun prior to its seizure. The Bureau of Alcohol, Tobacco, and Firearms (ATF) examined the rifle and determined that it had indeed been converted into a machine gun. The ATF obtained a federal search warrant, and, on June 14, 2010, discovered at Henry's residence twenty guns, gun parts, firearms conversion instructions, and a machine gun auto-sear, which converts rifles to automatic weapons.

On November 17, 2010, the grand jury indicted Henry on two counts: (1) knowingly and unlawfully possessing a machine gun, in violation of 18 U.S.C. §§ 922( o )(1)1 and 924(a)(2), and (2) knowingly and unlawfully possessing an auto-sear, a part used to convert a weapon into a machine gun, in violation of 18 U.S.C. §§ 922( o )(1) and 924(a)(2). Henry moved to dismiss the two counts, arguing that, as applied to him, § 922( o ) violates his Second Amendment right to keep and bear arms, and is not authorized under the Commerce Clause. The district court denied Henry's motion to dismiss, concluding that there is no Second Amendment right to possess a homemade machine gun in one's home, and that Congress had the power to enact § 922( o ) using the powers delegated to it under the Commerce Clause.

After the district court denied Henry's motion, the case proceeded to trial. Henry testified that a firearm the government offered into evidence belonged to him. Henry further testified that he acquired all of the necessary parts to build a rifle from a variety of sources, and eventually built such a firearm. Although he denied at trial that he was trying to make a machine gun, he concedes on appeal that the rifle as converted by him was a homemade machine gun.

The jury found Henry guilty on count 1, and not guilty on count 2. The district court sentenced Henry to twenty-four months' imprisonment, and ordered his machine gun to be forfeited pursuant to 18 U.S.C. § 924(d)(1). Henry timely appealed his conviction.

STANDARD OF REVIEW AND JURISDICTION

We review a statute's constitutionality de novo. United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir.2010). We have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

I. Second Amendment

Henry claims that the Second Amendment protects his right to possess a homemade machine gun in his home.

The Second Amendment states: " 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." U.S. Const. amend. II. In Heller, the Supreme Court struck down the District of Columbia's ban on handgun possession, concluding that the Second Amendment " guarantee[s] the individual right to possess and carry weapons in case

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of confrontation." 554 U.S. at 592, 635, 128 S.Ct. 2783.2 However, the Court stated that the Second Amendment only protects the right to own certain weapons, and that it " does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Id. at 625, 128 S.Ct. 2783. The Court also concluded that the " historical tradition of prohibiting the carrying of ‘ dangerous and unusual weapons' " limits the right to keep and carry arms. Id. at 627, 128 S.Ct. 2783.

Heller did not specify the types of weapons that qualify as " dangerous and unusual," but the Court stated that it would be " startling" for the Second Amendment to protect machine guns. Id. at 624, 128 S.Ct. 2783. Since Heller was decided, every circuit court to address the issue has held that there is no Second Amendment right to possess a machine gun.3

We agree with the reasoning of our sister circuits that machine guns are " dangerous and unusual weapons" that are not protected by the Second Amendment. An object is " dangerous" when it is " likely to cause serious bodily harm." Black's Law Dictionary 451 (9th ed.2009). Congress defines " machinegun" as " any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." 26 U.S.C. § 5845(b). The machine gun was first widely used during World War I, where it " demonstrated its murderously effective firepower over and over again." William Rosenau, Book Note, The Origins of the First Modern Weapon, TECH. REV., Jan. 1987, at 74, (reviewing John Ellis, The Social History of the Machine Gun (1986)). A modern machine gun can fire more than 1,000 rounds per minute, allowing a shooter to kill dozens of people within a matter of seconds. See George C. Wilson, Visible Violence, 12 NAT'L J....

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