US v. Haney, No. 00-6129

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore EBEL, ANDERSON and MURPHY; EBEL
Citation264 F.3d 1161
Decision Date29 August 2001
Docket NumberNo. 00-6129
Parties(10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN LEE HANEY, Defendant - Appellant

Page 1161

264 F.3d 1161 (10th Cir. 2001)
UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JOHN LEE HANEY, Defendant - Appellant.
No. 00-6129
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
August 29, 2001

Appeal from the United States District Court for the Western District of Oklahoma

(D.C. No. 99-CR-157-L)

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Copyrighted Material Omitted

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William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

Edward J. Kumiega, Assistant United States Attorney (Daniel G. Webber, Jr., United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before EBEL, ANDERSON and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

John Lee Haney was convicted of possessing two machineguns in violation of 18 U.S.C. 922(o). On appeal, he asserts that 922(o) violates the Second Amendment and the Commerce Clause. Both arguments are foreclosed by controlling Tenth Circuit precedent. See United States v. Baer, 235 F.3d 561, 564 (10th Cir. 2000) (Second Amendment); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir. 1995) (Commerce Clause).

BACKGROUND

The facts of this case are essentially undisputed. John Lee Haney walked into a police station, engaged an officer in conversation, and told him that he owned semiautomatic and fully automatic guns. He stated that they were not licensed and that the federal government lacks authority to require him to get a license. Through a combination of Haney's consent and a warrant, the authorities found two fully automatic guns in Haney's car and house. Haney also had literature on how to convert a semiautomatic gun to a fully automatic gun. Haney had converted one of the guns himself and had constructed the other out of parts. He admitted possessing them.

Section 922(o) of Title 18 of the United States Code provides,

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 [May 19, 1986].

A "machinegun" is, among other things, "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); see also 18 U.S.C. 921(23) (adopting this definition). Both of Haney's guns are machineguns.

Haney was indicted for possessing two machineguns in violation of 922(o). He proceeded to a jury trial, was found guilty, and was sentenced to thirty-three months' imprisonment.

DISCUSSION

The district court had jurisdiction under 18 U.S.C. 3231. We have jurisdiction under 28 U.S.C. 1291.1 We review

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constitutional challenges to statutes de novo. United States v. Hampshire, 95 F.3d 999, 1001 (10th Cir. 1996).

I. Second Amendment

The Second Amendment reads, "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." Haney argues that by banning possession of machineguns, 922(o) infringes his right to keep and bear arms and hence violates the Second Amendment. We reject this contention as inconsistent with governing case law.

There are two twentieth-century Supreme Court cases discussing the Second Amendment in what appear to be holdings. In United States v. Miller, 307 U.S. 174 (1939), the Court rejected a Second Amendment challenge to a criminal prosecution for transporting an unregistered firearm. The Court held,

In the absence of any evidence tending to show that 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.

Id. at 178.

In Lewis v. United States, 445 U.S. 55 (1980), the Court held that the laws prohibiting a felon from possessing a firearm do not violate the Due Process Clause. The Court applied rational-basis scrutiny, noting that the laws "are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties." Id. at 65 n.8. In support, the Court cited Miller, which it characterized as holding that "the Second Amendment guarantees no right to keep and bear a firearm that does not have some reasonable relationship to the preservation or efficiency of a well regulated militia." Id. (quotation marks omitted).

Our published Tenth Circuit opinions treat the Second Amendment similarly. In United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), we rejected a Second Amendment challenge to the federal law criminalizing possession of an unregistered machinegun, 26 U.S.C. 5861(d). We found no evidence that the firearm in question was connected with a militia, even though the defendant was nominally a member of the Kansas militia and the "Posse Comitatus," a militia-type organization registered with the state:

The purpose of the second amendment as stated by the Supreme Court in United States v. Miller was to preserve the effectiveness and assure the continuation of the state militia. The Court stated that the amendment must be interpreted and applied with that purpose in view. To apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy. This lack of justification is even more apparent when applied to appellant's membership in "Posse Comitatus," an apparently nongovernmental organization. We conclude, therefore,

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that this prosecution did not violate the second amendment.

Id. at 387 (citations omitted).

Our most recent pronouncement on the Second Amendment is United States v. Baer, 235 F.3d 561 (10th Cir. 2000). In Baer, we rejected a "time-worn" Second Amendment challenge to the federal felon-in-possession law, noting that "the circuits have consistently upheld the constitutionality of federal weapons regulations like [this one] absent evidence that they in any way affect the maintenance of a well regulated militia." Id. at 564.

Consistent with these cases, we hold that a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state's ability to maintain a well-regulated militia. This is simply a straightforward reading of the text of the Second Amendment. This reading is also consistent with the overwhelming weight of authority from the other circuits. See, e.g., United States v. Napier, 233 F.3d 394, 402 (6th Cir. 2000) (holding that the Second Amendment right "is limited to keeping and bearing arms that have some reasonable relationship to the preservation or efficiency of a well regulated militia" (quotation marks omitted)); Gillespie v. City of Indianapolis, 185 F.3d 693, 711 (7th Cir. 1999) (rejecting a Second Amendment challenge to 18 U.S.C. 922(g)(9) because the plaintiff "does not argue (and we do not believe under any plausible set of facts that he could) that the viability and efficacy of state militias will be undermined by prohibiting those convicted of perpetrating domestic violence from possessing weapons in or affecting interstate commerce"), cert. denied, 528 U.S. 1116 (2000); United States v. Wright, 117 F.3d 1265, 1272-74 (11th Cir. 1997) (holding that a criminal defendant must demonstrate a reasonable relationship between possession of a machinegun and the preservation or efficiency of a militia actively trained and maintained by the state), amended on other grounds by 133 F.3d 1412 (11th Cir. 1998); United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996) (same); United States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir. 1992) (same).

Applying this standard, it is clear that 922(o) is facially constitutional. Section 922(o)(2)(A) sets forth a specific exemption for possession of a machinegun "under the authority of" a state; therefore, that section cannot impair the state's ability to maintain a well-regulated militia. Accord Wright, 117 F.3d at 1274 n.19. Haney does not contend that his possession of the machineguns at issue in this case was under the authority of Oklahoma.

Nor has Haney proven several facts logically necessary to establish a Second Amendment violation. As a threshold matter, he must show that (1) he is part of a state militia; (2) the militia, and his participation therein, is "well regulated" by the state; (3) machineguns are used by that militia; and (4) his possession of the machinegun was reasonably connected to his militia service. None of these are established.

The militia of the Second Amendment is a governmental organization: The Constitution elsewhere refers to "the Militia of the several States," Art. II, 2, and divides regulatory authority over the militia between the federal and state governments, Art. I, 8. See also Perpich v. Dep't of Defense, 496 U.S. 334, 345-46 (1990) (describing the "dual enlistment" provisions of the militia statutes). Thus, the militia does not include the private anti-government groups that sometimes refer to themselves as "militias." Haney is not

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part of the "well regulated" militia, that is, a "militia actively maintained and trained by the states," Wright, 117 F.3d at 1272. At best, Haney claims to be a member of the "unorganized" (and...

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  • Colo. Outfitters Ass'n v. Hickenlooper, Civil Action No. 13–cv–01300–MSK–MJW
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 26, 2014
    ...required “some reasonable relationship to the preservation or efficiency of a well regulated militia.” See, e.g., United States v. Haney, 264 F.3d 1161, 1164–66 (10th Cir.2001); Gillespie v. Indianapolis, 185 F.3d 693, 710–11 (7th Cir.1999); Stevens v. United States, 440 F.2d 144, 149 (6th ......
  • People v. Dykes, No. S050851.
    • United States
    • United States State Supreme Court (California)
    • June 15, 2009
    ...In support of his claim, defendant refers to the Solicitor General's briefing in a federal case. (United States v. Haney (10th Cir. 2001) 264 F.3d 1161.) More recently, however, the United States Supreme Court decided District of Columbia v. Heller (2008) ___ U.S. ___, 128 S.Ct. 2783, 171 L......
  • U.S. v. Peters, No. 04-11658.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 24, 2005
    ...pieces of federal firearms legislation based on the national character of the market for firearms. See, e.g., United States v. Haney, 264 F.3d 1161, 1169 (10th Cir.2001) (upholding 18 U.S.C. § 922(o), which bans the possession or transfer of a machine gun, and finding "no question that the ......
  • Dist. of Columbia v. Heller, No. 07–290.
    • United States
    • U.S. Supreme Court
    • June 26, 2008
    ...Amendment does not protect the right to possess and use guns for purely private, civilian purposes. See, e.g., United States v. Haney, 264 F.3d 1161, 1164–1166 (C.A.10 2001); United States v. Napier, 233 F.3d 394, 402–404 (C.A.6 2000); Gillespie v. Indianapolis, 185 F.3d 693, 710–711 (C.A.7......
  • Request a trial to view additional results
25 cases
  • Colo. Outfitters Ass'n v. Hickenlooper, Civil Action No. 13–cv–01300–MSK–MJW
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 26, 2014
    ...required “some reasonable relationship to the preservation or efficiency of a well regulated militia.” See, e.g., United States v. Haney, 264 F.3d 1161, 1164–66 (10th Cir.2001); Gillespie v. Indianapolis, 185 F.3d 693, 710–11 (7th Cir.1999); Stevens v. United States, 440 F.2d 144, 149 (6th ......
  • People v. Dykes, No. S050851.
    • United States
    • United States State Supreme Court (California)
    • June 15, 2009
    ...In support of his claim, defendant refers to the Solicitor General's briefing in a federal case. (United States v. Haney (10th Cir. 2001) 264 F.3d 1161.) More recently, however, the United States Supreme Court decided District of Columbia v. Heller (2008) ___ U.S. ___, 128 S.Ct. 2783, 171 L......
  • U.S. v. Peters, No. 04-11658.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 24, 2005
    ...pieces of federal firearms legislation based on the national character of the market for firearms. See, e.g., United States v. Haney, 264 F.3d 1161, 1169 (10th Cir.2001) (upholding 18 U.S.C. § 922(o), which bans the possession or transfer of a machine gun, and finding "no question that the ......
  • Dist. of Columbia v. Heller, No. 07–290.
    • United States
    • U.S. Supreme Court
    • June 26, 2008
    ...Amendment does not protect the right to possess and use guns for purely private, civilian purposes. See, e.g., United States v. Haney, 264 F.3d 1161, 1164–1166 (C.A.10 2001); United States v. Napier, 233 F.3d 394, 402–404 (C.A.6 2000); Gillespie v. Indianapolis, 185 F.3d 693, 710–711 (C.A.7......
  • Request a trial to view additional results

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