U.S. v. Kenney

Decision Date30 July 1996
Docket NumberNo. 95-3937,95-3937
Citation91 F.3d 884
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John W. KENNEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

John W. Vaudreuil (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Thomas J. Coaty (argued), Madison, WI, for Defendant-Appellant.

Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

The sole question in this direct appeal is whether John Kenney's conviction for possession of a machine gun is invalid because the criminal statute, 18 U.S.C. § 922(o), is unconstitutional. He argues that the Supreme Court's reasoning in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), demonstrates that § 922(o) exceeds the scope of Congress's legislative power under the Commerce Clause, U.S. Const. Art. I, § 8, cl. 3. The magistrate judge agreed and recommended granting Kenney's motion to dismiss the indictment, but the district court took the contrary view and denied the motion. We affirm the district court.


The relevant facts are undisputed. In 1991, after receiving a tip from Kenney's wife and her consent to search their Wisconsin residence, an FBI agent recovered an Intratec TEC-9 semiautomatic pistol that had been converted to fire as a machine gun. The weapon was testified and operated only in the fully automatic mode. Kenney admitted possessing the weapon and stated that he needed it because of "past dealings in Central America." He later fled the jurisdiction. In 1995 he was arrested in Florida and returned to Wisconsin, where he pleaded guilty to one count of unlawful possession of a machine gun. 1


Section 922(o) was enacted in 1986 as § 102(9) of the Firearm Owners' Protection Act, Pub.L. No. 99-308, 100 Stat. 449, 452-53, amending the Gun Control Act of 1968, 18 U.S.C. § 921 et seq. The subsection provides:

(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to--

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

18 U.S.C. § 922(o). Section 922(o), which took effect on May 19, 1986, regulates more than assembled machine guns: the term "machine gun" is defined as either a weapon that fires repeatedly on a single trigger pull or as a part or parts designed to convert a manually firing weapon into a machine gun. 26 U.S.C. § 5845(b). The Bureau of Alcohol, Tobacco, and Firearms has interpreted § 922(o) to ban private possession or transfer of new machine guns not lawfully possessed before the statute's effective date, and therefore the Bureau will not approve applications to register new weapons because to do so would place the applicant in violation of the law. 27 C.F.R. § 179.105; see also Farmer v. Higgins, 907 F.2d 1041 (11th Cir.1990) (agreeing with this interpretation of § 922(o)), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991). Section 922(o), then, effectively freezes the number of legal machine guns in private hands at its 1986 level.

As the Tenth Circuit noted in United States v. Wilks, 58 F.3d 1518 (10th Cir.1995), Congress enacted § 922(o) with little discussion: "The scant legislative history merely contains a discussion of an earlier bill proposed in the House of Representatives which 'prohibited the transfer and possession of machine guns, used by racketeers and drug traffickers for intimidation, murder and protection of drugs and the proceeds of crime.' " Id. at 1519 (quoting H.R.Rep. No. 495, 99th Cong., 2d Sess. 4 (1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1330). The only explanation supplied for the last-minute amendment that was later enacted was "the statement of its sponsor, Representative Hughes, that 'I do not know why anyone would object to the banning of machine guns.' " Id. (quoting 132 Cong. Rec. H1750 (1986) (statement of Rep. Hughes)); see also Farmer, 907 F.2d at 1044-45; David T. Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb. L.Rev. 585, 670-71 (1987).

The standard of Commerce Clause review is narrow and deferential. "Judicial review in this area is influenced above all by the fact that the Commerce Clause is a grant of plenary authority to Congress. This power is 'complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution.' " Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (1981) (citations omitted) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196, 6 L.Ed. 23 (1824)). "The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control." United States v. Darby, 312 U.S. 100, 115, 61 S.Ct. 451, 457-58, 85 L.Ed. 609 (1941). Our task is merely to determine whether Congress could have had a rational basis to support the exercise of its commerce power; and, further, that the regulatory means chosen were "reasonably adapted to the end permitted by the Constitution." Hodel, 452 U.S. at 276, 101 S.Ct. at 2360; see also United States v. Wilson, 73 F.3d 675, 679-83 & n. 6 (7th Cir.1995) (citing Hodel), petition for cert. filed, 64 U.S.L.W. 3669 (U.S. Mar. 20, 1996) (No. 95-1523). But deference is not acquiescence: consistent with the principle of judicial review set forth in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), it is for the courts to judge whether Congress has exceeded its constitutionally enumerated powers. Wilson, 73 F.3d at 680.

In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Supreme Court divided 5-4 to strike down 18 U.S.C. § 922(q), which forbade "any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." As this court recently explained:

In Lopez, the Court determined that in enacting 18 U.S.C. § 922(q), the Gun-Free School Zones Act, Congress had exceeded the "outer limits" of its power under the Commerce Clause. Under the clause, Congress can regulate, the court recounted, three broad categories of activity: the use of the channels of interstate commerce; the instrumentalities of interstate commerce and persons and things in interstate commerce; and activities having a substantial relation to interstate commerce. The latter was the only possible justification for § 922(q).

The Gun-Free School Zone[s] Act failed to survive the constitutional challenge because it was not an essential part of a larger regulation of economic activity and it did not contain a "jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Lopez, 514 U.S. at ----, 115 S.Ct. at 1631. The statute also did not contain congressional findings which would, the Court said, enable them "to evaluate the legislative judgment that the activity in question substantially affected interstate commerce...." 514 U.S. at ----, 115 S.Ct. at 1632.

United States v. Bell, 70 F.3d 495, 498 (7th Cir.1995). The three categories of commerce regulation outlined by the Court were not new to Lopez, but were originally established in Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359-60, 28 L.Ed.2d 686 (1971). Lopez addressed only the third category.

The Lopez majority acknowledged that "a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty," and that "the question of congressional power under the Commerce Clause 'is necessarily one of degree.' " Lopez, 514 U.S. at ----, 115 S.Ct. at 1633 (citation omitted). The majority heeded Justice Cardozo's concern that an overly expansive view of causation "would obliterate the distinction of what is national and what is local in the activities of commerce," id. (quoting A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 554, 55 S.Ct. 837, 853, 79 L.Ed. 1570 (1935) (Cardozo, J., concurring)), and concluded that to uphold § 922(q) would require the Court "to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Id. 514 U.S. at ----, 115 S.Ct. at 1634. But Lopez must also be noted for what it did not do. The majority indicated that it intended to establish an outer limit to congressional authority, not to retrench well-established Commerce Clause precedent: "Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further." Id.; see also id. 514 U.S. at ----, 115 S.Ct. at 1637 (Kennedy, J., concurring). The essential defect of § 922(q), in short, was that the narrow scope of its regulation, limited to prohibiting simple possession of a firearm within a school zone, was a noncommercial local activity that neither was interstate commerce nor, whether taken as a single act or as the aggregate effect of all such acts, had a substantial effect on interstate commerce.

In Bell, the appellant argued that the Lopez analysis rendered unconstitutional 18 U.S.C. § 922(g)(1), a provision that prohibits the possession of firearms by convicted felons. We readily distinguished § 922(g)(1) because it includes a...

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