U.S. v. Hale, 91-3830

• Decision Date: 20 November 1992
• Docket Number: No. 91-3830,91-3830
• Citation: 978 F.2d 1016
• Parties: 36 Fed. R. Evid. Serv. 1034 UNITED STATES of America, Plaintiff-Appellee, v. Wilbur HALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1016

978 F.2d 1016

36 Fed. R. Evid. Serv. 1034

UNITED STATES of America, Plaintiff-Appellee, v. Wilbur HALE, Defendant-Appellant.

No. 91-3830.

United States Court of Appeals,

Eighth Circuit.

Submitted June 10, 1992.

Decided Oct. 20, 1992.

Rehearing Denied Nov. 20, 1992.

Michael A. Skipper, Little Rock, Ark., argued, for defendant-appellant.

Clarence Dan Stripling, Little Rock, Ark., argued (Charles A. Banks and Robert L. Roddey, on the brief), for plaintiff-appellee.

Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Wilbur Hale appeals his conviction of thirteen counts of possession of a machine gun pursuant to 18 U.S.C.A. § 922(o) (West Supp.1992) and three counts of possession of unregistered firearms pursuant to 26 U.S.C. § 5861(d) (1988). He argues that the statutes under which he was prosecuted have no nexus with interstate commerce, and are therefore beyond the constitutional power of Congress; that the indictment violates his Second Amendment right to bear arms; and that the trial court erred both in admitting affidavits as to the nonregistration of his weapons and in refusing to take judicial notice of material concerning the reliability of firearm registration records. We affirm the judgment of the district court. ¹

On March 8, 1991, agents of the Bureau of Alcohol, Tobacco and Firearms executed a search warrant on Hale's residence and seized numerous weapons and gun parts. These included one MAC-10 .45 caliber submachine gun, three "Sten-type" 9 millimeter fully automatic submachine guns, two M-1 carbines with kits for enabling fully automatic fire, one .22 caliber pistol with a silencer, and five .223 caliber assault rifles modified into "M-16 type" fully automatic machine guns. The agents also seized the principal components or "receivers" of one MAC-10, one Sten, and one "M-16 type" machine gun. Hale was charged in a sixteen-count indictment and a jury convicted him of all counts.

Hale asserts pro se that there is no federal jurisdiction because the statutes under which Hale was prosecuted, 18 U.S.C. § 922(o ) and 26 U.S.C. § 5861(d), assert no nexus with interstate commerce, and thus are beyond the power granted to Congress under the Constitution. ² The Supreme Court recognized the breadth of the commerce power in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), explaining that Congress could properly regulate a class of activities that affected interstate commerce without proof that any particular intrastate activity within that class had an effect on interstate commerce. Id. at 152 to 153, 91 S.Ct. at 1360 to 1361. "Where the class of activities is regulated, and that class is within the reach of federal power, the courts have no power to 'excise, as trivial, individual instances' of the class." Id. at 154, 91 S.Ct. at 1361 (emphasis in original) (citation omitted).

18 U.S.C. § 922(o ) regulates the possession of machine guns. The legislative history of section 922(o ) indicates that Congress considered the relationship between the availability of machine guns, violent crime, and narcotics trafficking. See H.R.Rep. No. 495, 99th Cong., 2d Sess., at 1-5, reprinted in 1986 U.S.C.C.A.N. 1327, 1327-31. When it first enacted section 922, Congress found facts indicating a nexus between the regulation of firearms and the commerce power. See Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 225 (1968). The 1986 amendments to section 922 added sub-section (o ) without substantially altering the findings of fact on this point. See Firearm Owner's Protection Act, Pub.L. No. 99-308, 100 Stat. 449 (1986). We conclude, as did the Ninth Circuit on similar grounds, that 18 U.S.C. § 922(o ) is within the authority granted to Congress by the Commerce Clause. See United States v. Evans, 928 F.2d 858, 862 (9th Cir.1991).

The same general argument is applicable to 26 U.S.C. § 5861(d). Furthermore, the Ninth Circuit has upheld § 5861(d) as a valid exercise of the taxing power of Congress. United States v. Tous, 461 F.2d 656, 657 (9th Cir.1972) citing United States v. Giannini, 455 F.2d 147 (9th Cir.1972). The Sixth Circuit has upheld section 5861 as a "reasonable regulation for the maintenance of public order." United States v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976).

Therefore, we reject Hale's arguments and conclude that both 18 U.S.C. § 922(o ) and 26 U.S.C. § 5861(d) are within the authority granted to Congress under the Constitution.

Hale next argues that the indictment violates his Second Amendment rights: "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. Relying on United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), Hale argues that the Second Amendment bars the federal government from regulating the particular weapons seized because the weapons are susceptible to military use and are therefore, by definition, related to the existence of "a well regulated militia".

In Miller, the Supreme Court upheld a conviction under the National Firearms Act for transporting a sawed-off shotgun in interstate commerce. In so doing, the Court rejected the argument that the Second Amendment protected the possession of that weapon:

In the absence of any evidence tending to show that the possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Miller, 307 U.S. at 178, 59 S.Ct. at 818 (citation omitted).

Hale wants to find in Miller the rule that individual possession of true military weapons is protected under the Second Amendment. When the Second Amendment was ratified in 1791, the state militias functioned as both the principal units of military organization and as an implicit check on federal power. See generally Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U.Dayton L.Rev. 5 (1989). These militias were comprised of ordinary citizens who typically were required to provide their own equipment and arms. The Second Amendment prevented federal laws that would infringe upon the possession of arms by individuals and thus render the state militias impotent. Over the next 200 years, state militias first faded out of existence and then later reemerged as more organized, semi-professional military units. The state provided the arms and the equipment of the militia members, and these were stored centrally in armories. With the passage of the Dick Act in 1903, the state militias were organized into the national guard structure, which remains in place today. Id.

More recently, the Supreme Court in Perpich v. U.S. Department of Defense, 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990), has analyzed the early history of the militia, including the Act of 1792 which required militia members to provide themselves "with a good musket or firelock," as well as cartridges and other equipment. The Court observed that these requirements were virtually ignored for more than a century. Id. at 341, 110 S.Ct. at 2423. Perpich discusses in detail the relationship between the militia and the National Guard and recognizes that the "Federal Government provides virtually all of the funding, the materiel, and the leadership for the State Guard units." Id. at 351, 110 S.Ct. at 2428. While Perpich does not deal with the Second Amendment issue present here, its discussion of the militia gives further dimension to our analysis.

Considering this history, we cannot conclude that the Second Amendment protects the individual possession of military weapons. In Miller, the Court simply recognized this historical residue. The rule emerging from Miller is that, absent a showing that the possession of a certain weapon has "some reasonable relationship to the preservation or efficiency of a well-regulated militia," the Second Amendment does not guarantee the right to possess the weapon. Miller, 307 U.S. at 178, 59 S.Ct. at 818. Miller simply "did not hold ... that the Second Amendment is an absolute prohibition against all regulation of the manufacture, transfer and possession of any instrument capable of being used in military action." Warin, 530 F.2d at 106.

This court has on at least three occasions, citing and relying on Miller, denied challenges to the constitutionality of arms control legislation, because there was no evidence of a reasonable relationship to the maintenance of a militia. See United States v. Nelsen, 859 F.2d 1318 (8th Cir.1988); Cody v. United States, 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972); United States v. Decker, 446 F.2d 164 (8th Cir.1971). In Nelsen and Cody we also cited and relied on the decisions of other circuits discussed in this opinion. ³

The Supreme Court has not addressed a Second Amendment issue since the Miller decision. Cases v. United States, 131 F.2d 916 (1st Cir.1942), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943) remains one of the most illuminating circuit opinions on the subject of "military" weapons and the Second Amendment. Cases states that "under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual, as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or...