United States v. 2006-06-30 | 02-10318 | USA VSTEWART | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 02-10318
Plaintiff-Appellee, D.C. No.
v.  CR-00-00698-ROS
ROBERT WILSON STEWART, JR., OPINION
Defendant-Appellant. 
On Remand from the United States Supreme Court
Filed June 30, 2006
Before: Alex Kozinski and Thomas G. Nelson,
Circuit Judges, and Jane A. Restani,* Judge.
Opinion by Judge Kozinski
*The Honorable Jane A. Restani, Chief Judge, United States Court of
International Trade, sitting by designation.
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COUNSEL
Thomas E. Haney, Phoenix, Arizona, for the defendant-
appellant.
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Paul K. Charlton, United States Attorney; John Joseph Tuchi,
Deputy Appellate Chief; Joan G. Ruffennach, Assistant
United States Attorney, Phoenix, Arizona, for the plaintiff-
appellee.
James E. Leuenberger, Lake Oswego, Oregon, for amicus
curiae Oregon Firearms Educational Foundation.
Sharon L. Browne, Arthur B. Mark, III, Sacramento, Califor-
nia, for amicus curiae Pacific Legal Foundation.
OPINION
KOZINSKI, Circuit Judge:
We consider in light of Gonzales v. Raich, 125 S. Ct. 2195
(2005), whether Congress can use its commerce power to ban
possession of homemade machineguns.
Facts1
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 convic-
tion 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 fire-
arm, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 921(a)
1We restate the facts of this case from our prior opinion, United States
v. Stewart, 348 F.3d 1132 (9th Cir. 2003).
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(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 Stew-
art. 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. Stew-
art 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 Sec-
ond Amendment; he appeals his conviction for possession of
a firearm by a felon on Second Amendment grounds.2
In a prior opinion, we held, over Judge Restani’s dissent,
that as applied to Stewart, section 922(o) was an invalid exer-
2Stewart also claims the district court abused its discretion by denying
his request for an evidentiary hearing on his motion to suppress. Defen-
dant is entitled to an evidentiary hearing if he makes a “substantial prelim-
inary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is necessary to the finding of
probable cause.” Franks v. Delaware, 438 U.S. 154, 155-56 (1978). Stew-
art asserts that the ATF agent’s affidavit never said how much time was
required to convert Stewart’s parts kit into a firearm and gave the false
impression that the agent had fully converted the kit; thus, Stewart claims,
the affidavit could not support a finding of probable cause that the parts
kits could “readily be converted,” as defined in 18 U.S.C. § 921(a)(3)(A).
The district court, in a carefully reasoned opinion, held that Stewart failed
to meet his burden; even if the allegedly false and misleading statements
were redacted from the affidavit, and the alleged omissions were added to
it, the district court found that the affidavit, which contained Stewart’s
own statements about how easily his kits could be converted, still sup-
ported a finding of probable cause. We cannot see, and Stewart offers
hardly any explanation, how the district court’s reasoned opinion was an
abuse of its discretion.
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cise of Congress’s commerce power. See United States v.
Stewart, 348 F.3d 1132, 1140 (9th Cir. 2003). After its deci-
sion in Raich, the Supreme Court granted certiorari, vacated
our decision and remanded. See United States v. Stewart, 125
S. Ct. 2899 (2005) (mem.).
Analysis
[1] 1. Section 922(o) makes it illegal to “transfer or pos-
sess a machinegun.”3 As we recognized in our prior opinion,
there is nothing inherently economic or commercial about
mere possession of an object, so we must consider whether
criminalization of machinegun possession falls within Con-
gress’s commerce power. See U.S. Const. art I., § 8. It is well-
established that Congress can regulate three categories of eco-
nomic activity under its commerce power: (1) “the use of the
channels of interstate commerce,” (2) “the instrumentalities of
interstate commerce” and (3) “those activities having a sub-
stantial relation to interstate commerce.” United States v.
Lopez, 514 U.S. 549, 558-59 (1995). We began our prior
opinion by holding that section 922(o) could not be justified
under either of the first two categories. See Stewart, 348 F.3d
at 1134-36. So we turned to whether Stewart’s possession of
a homemade machinegun substantially affected interstate
commerce. We applied the four-prong test articulated in
United States v. Morrison, 529 U.S. 598 (2000):
(1) whether the regulated activity is commercial or
economic in nature; (2) whether an express jurisdic-
tional element is provided in the statute to limit its
reach; (3) whether Congress made express findings
about the effects of the proscribed activity on inter-
state commerce; and (4) whether the link between
the prohibited activity and the effect on interstate
commerce is attenuated.
3Or, at least most of them. Section 922(o), which took effect in 1986,
does not affect possession and transfer of machineguns that were lawfully
possessed before the statute went into effect. See id. § 922(o)(2)(B).
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Stewart, 348 F.3d at 1136-37 (citing Morrison, 529 U.S. at
610-12). We held that section 922(o) failed the first prong
because “[p]ossession of a machinegun is not, without more,
economic in nature.” Id. at 1137. We next determined that the
effect of Stewart’s activities on interstate commerce was quite
attenuated: “Stewart’s homemade machineguns did not stimu-
late a demand for anything illegal—all the components he
bought were legally available from commercial sources.” Id.
at 1138. And his possession did not affect overall demand
because there was no evidence that “Stewart would ever have
bought a machinegun from a commercial source, had he been
precluded by law from building one himself.” Id. We then
noted that section 922(o) contains no “jurisdictional element
anchoring the prohibited activity to interstate commerce.” Id.
And finally, we noted that “Congress also failed to make any
legislative findings when it enacted the statute” that might
have explained and justified Congress’s policy choices. Id.
We held that legislative findings supporting prior firearms
legislation were not instructive in our evaluation of section
922(o) because the section represented a sharp break from
prior legislation in the field. Id. at 1139. Whereas earlier stat-
utes criminalized transactions, sales or deliveries of firearms
—quintessential economic activities—section 922(o) crimi-
nalizes mere possession. Because, as applied to Stewart, sec-
tion 922(o) failed all four prongs of the Morrison test, we held
that it was unconstitutional.
[2] 2. We now turn to whether our prior analysis is consis-
tent with the approach to applied Commerce Clause chal-
lenges articulated in Raich. There, the Court considered
whether the Controlled Substances Act (“CSA”) could consti-
tutionally be applied to the possession of marijuana autho-
rized by a physician’s prescription dispensed in accordance
with state law. The claims and the statute at issue in Raich
were nearly identical to those at issue here:4 Like Raich,
4Except, of course, for one difference that is quite important to Stewart:
Whereas Raich sought declaratory and injunctive relief, see Raich, 125
S. Ct. at 2200, Stewart challenges a successful government prosecution.
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Stewart makes an as-applied challenge; he does not contend
that the statute under which he was convicted falls entirely
outside Congress’s commerce power, as did the defendants in
Morrison and Lopez. See Raich, 125 S. Ct. at 2209. And like
Raich, Stewart claims his possession falls within a subgroup
of purely intrastate activities that can easily be cordoned off
from those Congress may constitutionally control. The con-
tested statutes themselves are nearly identical as well. Both
the CSA and section 922(o) criminalize possession—an activ-
ity that, under the Morrison framework, seems entirely non-
economic. Neither contains an express jurisdictional element
to limit its reach, nor any express congressional findings that
intrastate possession will affect interstate commerce.5
The Supreme Court systematically rejected each of Raich’s
claims. It began by reiterating its prior holding that Congress
may “regulate purely local activities that are part of an eco-
nomic ‘class of activities’ that have a substantial effect on
interstate commerce.” Raich, 125 S. Ct. at 2205. Therefore,
“when ‘a general regulatory statute bears a substantial relation
to commerce, the de minimis character of individual instances
arising under that statute is of no consequence.’ ” Raich, 125
S. Ct. at 2206 (quoting Lopez, 514 U.S. at 558); see also id.
at 2209 (“That the regulation ensnares some purely intrastate
activity is of no moment.”).
[3] The Court then held Raich’s arguments were squarely
5After Raich, the Supreme Court also vacated the Eleventh Circuit’s
opinion in United States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004),
which struck down the application of the Child Pornography Prevention
Act of 1996 to the intrastate possession of child pornography produced
within the state. See id. at 1045; United States v. Maxwell, 126 S. Ct. 321
(2005) (mem.). In affirming the conviction on remand, the Eleventh Cir-
cuit stated “much of the Court’s analysis could serve as an opinion in this
case by simply replacing marijuana and the CSA with child pornography
and the CPPA.” United States v. Maxwell, 446 F.3d 1210, 1216 (11th Cir.
2006). Well put. We might as easily say “machineguns and section
922(o).”
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controlled by Wickard v. Filburn, 317 U.S. 111 (1942): “Con-
gress can regulate purely intrastate activity that is not itself
‘commercial,’ in that it is not produced for sale, if it con-
cludes that failure to regulate that class of activity would
undercut the regulation of the interstate market . . . .” Raich,
125 S. Ct. at 2206. Applying Wickard, the Court rejected
Raich’s attempt to carve out a narrow class of intrastate activ-
ities as beyond the reach of the Commere Clause. Raich
claimed that when evaluating her activities under Wickard,
the Court should look only at the effect of homegrown mari-
juana authorized by state law. However, the Court refused to
do so; after explaining that homegrown marijuana—
authorized under state law or not—could quite easily leak into
the interstate market, the Court held that “Congress had a
rational basis for concluding that leaving home-consumed
marijuana outside federal control would similarly affect price
and market conditions.” Id. at 2207; see id. at 2209
(“Congress had a rational basis for believing that failure to
regulate the intrastate manufacture and possession of mari-
juana would leave a gaping hole in the CSA.”). Absent was
any analysis of whether state-authorized marijuana differed
from other homegrown marijuana. Therefore, the fact that
Raich did not herself affect interstate commerce was of no
moment; when Congress makes an interstate omelet, it is enti-
tled to break a few intrastate eggs. Id. at 2206.
[4] The lack of specific congressional findings regarding
the effect of homegrown marijuana on interstate activity
didn’t change the Court’s view: “[W]e have never required
Congress to make particularized findings in order to legislate,
absent a special concern such as the protection of free speech.”6
Id. at 2208 (internal citations omitted). And the Court made
clear that courts are not to scrutinize Congress’s conclusions
6We note in passing that since the Second Amendment does not grant
individual rights, see Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002),
we cannot rely on it as a basis for requiring Congress to make specific
findings in legislation touching on firearms.
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closely. “We need not determine whether [Raich’s] activities,
taken in the aggregate, substantially affect interstate com-
merce in fact, but only whether a ‘rational basis’ exists for so
concluding.”7 Id.
Contrasting the Controlled Substances Act with the statutes
at issue in Lopez and Morrison, the Court noted that the CSA
“regulates the production, distribution, and consumption of
commodities for which there is an established, and lucrative,
interstate market.” Id. at 2211. And “[p]rohibiting the intra-
state possession or manufacture of an article of commerce is
a rational (and commonly utilized) means of regulating com-
merce in that product.” Id. Therefore, “[g]iven the findings in
the CSA and the undisputed magnitude of the commercial
market for marijuana, . . . Wickard v. Filburn and the later
cases endorsing its reasoning foreclose” “the claim that a
locally cultivated product that is used domestically rather than
sold on the open market is not subject to federal regulation.”
Id. at 2215.
3. Notwithstanding the numerous similarities between this
case and Raich, see p. 7269-70 supra, Stewart claims that
Raich should be distinguished. Stewart’s first argument is
that, under the framework articulated in Raich, this case
should be governed by Lopez and Morrison. In Raich, the
Court distinguished Lopez as concerning “a brief, single-
subject statute making it a crime for an individual to possess
a gun in a school zone.” Id. at 2209. The Court noted that the
statute was not an “essential part[ ] of a larger regulation of
economic activity, in which the regulatory scheme could be
undercut unless the intrastate activity were regulated.” Id. at
7Though the Court didn’t say so explicitly, we read its use of the term
“rational basis” as incorporating the rational basis test that we employ in
run-of-the-mill equal protection cases—those not involving fundamental
rights or discrete and insular minorities. See, e.g., Williamson v. Lee Opti-
cal of Okla., Inc., 348 U.S. 483, 487-88 (1955); see also United States v.
Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
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2210 (quoting Lopez, 514 U.S. at 561). Similarly, Morrison
was distinguished as merely granting “a federal civil remedy
for the victims of gender-motivated crimes.” Id. at 2210. The
Court found that “[t]he statutory scheme [at issue in Raich] is
at the opposite end of the regulatory spectrum.” Id. The CSA
is “a lengthy and detailed statute creating a comprehensive
framework for regulating the production, distribution, and
possession of five classes of ‘controlled substances.’ ” Id.
[5] In our earlier opinion, we concluded that section 922(o)
was quite similar to the statute at issue in Lopez. See Stewart,
348 F.3d at 1139. But Raich forces us to reconsider. Like the
possession regulation in the Controlled Substances Act, the
machinegun possession ban fits within a larger scheme for the
regulation of interstate commerce in firearms. Guns, like
drugs, are regulated by a detailed and comprehensive statu-
tory regime designed to protect individual firearm ownership
while supporting “Federal, State and local law enforcement
officials in their fight against crime and violence.” Gun Con-
trol Act of 1968, Pub. L. No. 90-618, § 101, 82 Stat. 1213,
1213. Just as the CSA classifies substances in five different
categories, placing different controls on each class based on
a combination of its legitimate uses, potential for abuse and
effects on the body, the federal firearms statutory regime clas-
sifies weapons for differential treatment as well: Some fire-
arms are freely transferrable, others must be registered and,
still others (like machineguns) are largely banned.
[6] Nevertheless, there is one major difference between the
possession ban in the CSA and section 922(o): The
machinegun ban was enacted almost twenty years after the
statute establishing the current federal firearms regulatory
regime. See Firearms Owners’ Protection Act, Pub. L. No. 99-
308, § 102(9), 100 Stat. 449, 452-53 (1986) (codified at 18
U.S.C. § 922(o)). Nevertheless, we don’t read Raich as requir-
ing us to consider section 922(o) as stand alone legislation
like that in Morrison and Lopez. Raich stands for the proposi-
tion that Congress can ban possession of an object where it
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has a rational basis for concluding that object might bleed into
the interstate market and affect supply and demand, especially
in an area where Congress regulates comprehensively. Neither
the Gun-Free School Zones Act of 1990 nor the Violence
Against Women Act of 1994 could be defended as plugging
a hole in otherwise comprehensive regulation. Whether guns
could be possessed in school zones was highly unlikely to
affect the supply and demand for guns in the national market.
And the Violence Against Women Act was at best tenuously
related to interstate commerce. But section 922(o), like the
marijuana possession ban in the CSA, is different—Congress
could have rationally concluded that homemade machineguns
would affect the national market. That Congress took a wait-
and-see approach when it created the regime doesn’t matter.
The Commerce Clause does not prevent Congress from cor-
recting deficiencies in its regulatory scheme in piecemeal
fashion. To conclude otherwise would eliminate Congress’s
ability to regulate with a light touch in the first instance and
tinker at the margins in light of experience. Raich’s deferen-
tial review of comprehensive federal regulatory schemes
ensures that Congress retains as much discretion to adjust the
details of its regulatory scheme as it had when it created the
regime. Therefore, the fact that section 922(o) was passed
long after the Gun Control Act is not of constitutional signifi-
cance.
Stewart makes a few more claims, none of which have
merit. He points out that the machineguns he possessed never
traveled in interstate commerce; only some of their compo-
nents had. This fact, while true, is entirely irrelevant. Neither
the fully mature homegrown marijuana at issue in Raich nor
the harvested wheat at issue in Wickard had ever crossed state
lines either. Nor does it matter that Stewart’s activities alone
did not have a substantial effect on interstate commerce. Since
Wickard, it has been well established that we aggregate intra-
state activities in as-applied Commerce Clause challenges.
After Raich, the proper focus in that inquiry is not Stewart
and his unique homemade machineguns, but all homemade
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machineguns manufactured intrastate. Moreover, we do not
require the government to prove that those activities actually
affected interstate commerce; we merely inquire whether
Congress had a rational basis for so concluding.
We have no doubt that it did. The market for machineguns
is established and lucrative, like the market for marijuana.
“[T]here is a rational basis to conclude that federal regulation
of intrastate incidents of transfer and possession is essential to
effective control of the interstate incidents of such traffic.”
United States v. Rambo, 74 F.3d 948, 952 (9th Cir. 1996)
(alteration in original) (quoting United States v. Kirk, 70 F.3d
791, 797 (5th Cir. 1995)); see also United States v. Wilks, 58
F.3d 1518, 1521 (10th Cir. 1995) (“[M]achineguns . . . by
their nature are ‘a commodity . . . transferred across state lines
for profit by business entities.’ ” (second omission in original)
(quoting United States v. Hunter, 843 F. Supp. 235, 249 (E.D.
Mich. 1994)); id. (describing the “extensive, intricate, and
definitively national market for machineguns” (quoting
Hunter, 843 F. Supp. at 249)).
It doesn’t matter, as the amici would have us believe, that
the machineguns Stewart manufactured were unique. See
Stewart, 348 F.3d at 1135 (quoting the ATF Firearms Tech-
nology Branch as saying that one of Stewart’s machineguns
was “a unique type of firearm” (emphasis in original)). One
of the amici argues that “[b]ecause Mr. Stewart’s gun is
unique, homemade, and hand-tooled, it does not ‘overhang’
the market, and threaten to enter the market, and affect prices
and demand in the same way as wheat or marijuana.” But at
some level, everything is unique; fungibility is a matter of
degree. One of the motivating concerns underlying the blan-
ket prohibition on possession of marijuana under the CSA is
that those in a state of drug-induced euphoria care not a whit
whether their marijuana has ever crossed state borders.
Similarly, those seeking machineguns care only whether
the guns work effectively—whether they discharge large
amounts of ammunition with a single trigger pull. To the
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extent that homemade machineguns function like commercial
machineguns, it doesn’t matter whether they do so in a unique
way; as economic substitutes, they are interchangeable.
[7] We therefore hold that Congress had a rational basis for
concluding that in the aggregate, possession of homemade
machineguns could substantially affect interstate commerce in
machineguns. Homemade guns, even those with a unique
design, can enter the interstate market and affect supply and
demand. Having reached that conclusion, we need not inquire
into the specifics of Stewart’s possession: “[W]hen ‘a general
regulatory statute bears a substantial relation to commerce,
the de minimis character of individual instances arising under
that statute is of no consequence.’ ” Raich, 125 S. Ct. at 2206
(quoting Lopez, 514 U.S. at 558). Section 922(o) can constitu-
tionally be applied to Stewart’s possession of homemade
machineguns.
[8] 4. Stewart also contends that the Second Amendment
guarantees him the right to possess machineguns, as well as
the right to possess firearms generally despite his prior felony
conviction. We previously held that this claim is squarely pre-
cluded by Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002),
and Raich did nothing to change that. See Stewart, 348 F.3d
at 1142 (quoting Silveira, 312 F.3d at 1087).
AFFIRMED.
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