U.S. v. Stewart

• Decision Date: 13 November 2003
• Docket Number: No. 02-10318.,02-10318.
• Citation: 348 F.3d 1132
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Wilson STEWART, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

348 F.3d 1132

UNITED STATES of America, Plaintiff-Appellee, v. Robert Wilson STEWART, Jr., Defendant-Appellant.

No. 02-10318.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 5, 2003 — Pasadena, California.

Filed November 13, 2003.

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

Frederick A. Battista, Assistant United States Attorney, Phoenix, AZ, argued for the plaintiff-appellee. Paul K. Charlton, United States Attorney, Phoenix, AZ, and Michael T. Morrissey, Chief, Appellate Section, Phoenix, AZ, joined him on the briefs.

Appeal from the United States District Court for the District of Arizona; Roslyn O. Silver, District Judge, Presiding. D.C. No. CR-00-00698-ROS.

Before: ALEX KOZINSKI and Thomas G. NELSON, Circuit Judges, and JANE A. RESTANI,^* Judge.

Opinion by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge RESTANI.

OPINION

KOZINSKI, Circuit Judge:

We decide whether Congress can, under its Commerce Clause power, prohibit the mere possession of homemade machineguns.

Facts

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.¹

Commerce Clause

Section 922(o) makes it unlawful to "transfer or possess a machinegun." Notably absent from this provision is any jurisdictional requirement that the machinegun has traveled in or substantially affected interstate commerce. We decide whether this statute, as applied to Stewart, offends the Commerce Clause.

1. There are three categories of activity that Congress can regulate under its commerce power: (1) "the use of the channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; 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). In United States v. Rambo, 74 F.3d 948 (9th Cir.1996), we held that section 922(o) was "a regulation of the use of the channels of interstate commerce" because "there can be `no unlawful possession under section 922(o) without an unlawful transfer.'" Id. at 952 (quoting United States v. Kirk, 70 F.3d 791, 796 (5th Cir.1995)). We elaborated that, "`[i]n effect, the ban on such possession is an attempt to control the interstate market for machineguns by creating criminal liability for those who would constitute the demand-side of the market, i.e., those who would facilitate illegal transfer out of the desire to acquire mere possession.'" Id. (quoting Kirk, 70 F.3d at 796). Rambo thus held section 922(o) was a valid exercise of the commerce power because a transfer or sale must have preceded the criminalized possession.

Stewart's case reveals the limits of Rambo's logic. Contrary to Rambo's assumption that an unlawful transfer must precede unlawful possession, Stewart did not acquire his machineguns from someone else: He fabricated them himself. The government has never contested Stewart's claim that the machineguns were entirely homemade, and the evidence supports his claim. The chief of the ATF Firearms Technology Branch, referring to one of the machineguns, testified that it was "a unique type of firearm." Tr. of Trial at 562 (emphasis added). He explained that the machineguns were "based on a ... Sten gun design," which is a type of British machinegun, and had "certain [Sten gun] parts," id. at 558, but "the rest of the parts ... [were] not ... conventional Sten gun parts," id. at 562. He also testified that one of the machineguns had "some Sten gun parts on it, but then it also ha[d] parts which [were] not original Sten gun parts." Id. at 550. He continued: "And I've seen many Sten guns assembled from Sten gun parts kits, but I had never previously seen one that was assembled with these other parts on it." Id. at 550-51. None of the machineguns had original Sten receiver tubes (the part of the gun that houses the cartridge when the weapon is fired), and at least one was identified as having a "homemade receiver tube." Id. at 567. On some of the machineguns, the trigger was "quite different" from "an ordinary Sten gun trigger." Id. at 561. The ATF chief testified that "[t]he only time [he'd] ever seen ... this [type of mechanism was] in conjunction with [a] .... single-shot rifle." Id. at 561-62.

The district court ruled against Stewart's Commerce Clause argument, reasoning that "the parts, at least, moved in interstate commerce." Id. at 626. Indeed, some of the machinegun parts did move in interstate commerce. At some level, of course, everything we own is composed of something that once traveled in commerce.² This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless. As Lopez reminds us, Congress's power has limits, and we must be mindful of those limits so as not to "`obliterate the distinction between what is national and what is local and create a completely centralized government.'" Lopez, 514 U.S. at 557, 115 S.Ct. 1624 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937)). Our sister circuits have also recognized that section 922(o) must have certain implicit limits, noting that, "because § 922(o) has no jurisdictional element, it has the potential to criminalize the possession of such guns that have never traveled in interstate commerce." United States v. Wright, 117 F.3d 1265, 1270 (11th Cir.1997), vacated in irrelevant part by 133 F.3d 1412 (11th Cir.1998). The difficult question is where to draw the line between a regulated object and the matter from which that object was created.

In United States v. McCoy, 323 F.3d 1114 (9th Cir.2003), we confronted a similar line-drawing problem. McCoy held that a statute criminalizing possession of child pornography was unconstitutional as applied to a woman who posed nude with her child for her husband's camera. The photographs were intended only for home use. The statute contained a jurisdictional element allowing prosecutions even where the pornographic material "was produced using materials which have been mailed or... shipped or transported" in interstate commerce, 18 U.S.C. § 2252(a)(4)(B); this would seem to include any of the film, paper, cameras, computers or other technology needed to produce pornographic images. However, because "`all but the most self-sufficient child pornographers will rely on film, cameras, or chemicals that traveled in interstate commerce,'" McCoy, 323 F.3d at 1125 (quoting United States v. Rodia, 194 F.3d 465, 473 (3d Cir.1999)), McCoy held that the jurisdictional element "provide[d] no support for the government's assertion of federal jurisdiction," id. at 1126. McCoy thus recognized that, just because certain of the elements that make up an object have traveled interstate at one time or another, this does not necessarily mean Congress can regulate that object under the Commerce Clause.

Some components of Stewart's machineguns had crossed state lines, but these components did not add up to a gun. Not even close. Even more than in McCoy, many additional parts and tools, as well as expertise and industry, were needed to create functioning machineguns. This is quite different than if Stewart had ordered a disassembled gun and simply put the parts together, the way one might assemble a chair from IKEA. These machineguns were a "unique type of firearm," with legal parts mixed and matched from various origins; they required more than a simple turn of a screw-driver or a hit of a hammer to become machineguns. We therefore cannot say that the machineguns themselves—in any recognizable form— traveled in interstate commerce.

Because these firearms were genuinely homemade, we find that Stewart did not obtain his machineguns by "us[ing] the channels of interstate commerce." Thus, although Rambo found section 922(o) to be generally valid under the Commerce Clause, Rambo's reasoning does not cover Stewart's case.

2. Even if Stewart did not use the channels of interstate commerce, his possession of machineguns may still have substantially affected interstate commerce. Several courts of appeals have held section 922(o) constitutional on this ground. Wright, 117 F.3d at 1268-71; United States v....