Another 2nd Amendment Case Likely To Head To SCOTUS

[Unheard]

Article

9th Circuit Ruling Says Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority

November 14, 2003

KeepAndBearArms.com -- U.S. v Stewart has finally struck a blow for freedom. In a November 13 published opinion from the Ninth Circuit Court of Appeals, a majority of 2 to 1 says that the federal government's ban on homemade machineguns is abusive of the government's authority to regulate interstate commerce.

Ninth Circuit judge Alex Kozinski wrote the opinion. Judge Kozinski is the same judge who wrote a strong dissent in the Silveira v. Lockyer case, firmly supporting the true meaning of the Second Amendment.

The relevant and most interesting text from the ruling:

"We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) ?is a criminal statute that by its terms has nothing to do with ?commerce? or any sort of economic enterprise, however broadly one might define those terms.? Lopez, 514 U.S at 561. Unlike in Wickard v. Filburn, 317 U.S. 111 (1942), where growing wheat in one?s backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred?and there is none here?its relationship to interstate commerce is highly attenuated.

"Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals?an admirable goal, but not a commercial one." . . .

"This case fails Morrison?s other requirements as well.

"As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where?as here?such findings would ?enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.? Lopez, 514 U.S. at 563."

While we aren't necessarily recommending that you run out to get the parts to start making your own machineguns, we certainly appreciate the honesty from Judge Kozinski -- and we do believe that he is right. The federal government has been abusing the commerce clause for decades, to the detriment of individual liberties from sea to shining sea.

On June 3, 2002 Bob Stewart was sentenced to five years in prison. He was convicted of being a felon in possession of a firearm and of possessing several unregistered machineguns -- homemade machineguns. The machinegun possession conviction was just overturned. Naturally, the federal government will appeal -- either to an en banc panel in the Ninth Circuit, or to the U.S. Supreme Court. After all, the gun banners can't stand to lose power -- no matter how wrong they truly are. Such is tyranny -- when power is more important than the plain and simple truth.

Read the full opinion for yourself:

Findlaw.com: http://caselaw.lp.findlaw.com/...circs/9th/0210318p.pdf

Our archived copy: http://KeepAndBearArms.com/lawsuits/Stewart.pdf

Looks like SCOTUS is going to finally have to start making some rulings related to the 2nd amendment. Hopefully before to long all these illegal gun bans will go the way of the Dodo.

 

[Nebor]

This will not be appeal to the Supreme Court, as that would make it a national ruling. It is little known, but the "Hughes Amendment" which banned the manufacture of post-1986 machine guns for civilians was ruled unconstitutional in a federal court in Illinois. Their reasoning was that the NFA was originally set up to TAX machine guns, short barrel guns and silencers, and was incorporated as part of the tax code. However when the government said they would no longer issue tax stamps required for machine guns to be legal, they ceased being a taxing entity and became a regulatory\confiscatory entity, since they were turning down tax revenue and denying the right to own a machine gun.

The federal government never appealed the ruling, knowing that the SCOTUS would see things the same way. As a result, the NFA is not valid in southern Illinois, however there are still state laws forbidding the ownership of most NFA items.

 

[Nebor]

By the way, if all they do is strike down the law forbidding "home-made" non-transferrable machine guns, it won't allow complete restoration of machine gun rights. The ATF considers the "machine gun" part of most machine guns to be the seer or bolt. Meaning that simply possessing one of those parts, with nothing else, constitutes possessing a machine gun. Both parts that are relatively difficult to fashion yourself at home. So only weapons that are fairly easily to modify to full auto (AK and AR style weapons) would stand to benefit from such a ruling.

Still, every small victory counts!

 

[jonks]

Originally posted by: Unheard
Looks like SCOTUS is going to finally have to start making some rulings related to the 2nd amendment. Hopefully before to long all these illegal gun bans will go the way of the Dodo.

This case was decided almost entirely on commerce clause overreaching. The court quickly disposed of appellant's 2md Am argument in one brief paragraph, reiterating the court's holding that there is no individual right to gun ownership guaranteed by the 2nd amendment. Until SCOTUS finds otherwise anyway.

The court upheld appllant's conviction of possession by a felon of a firearm. If SCOTUS does find a 2nd Am individual right to gun ownership, states should still be able to pass reasonable restrictions on such ownership, and banning possession by felons is likely to be found to meet the level of scrutiny required. Just as state's can limit free speech should the law find sufficient nexus and meet the high burden necessary to pass such limiting legislation.

 

[hellokeith]

AFAIK, from the federal point of view, citizens can legally own a fully automatic machine gun. They just need a special (and expensive) license which is renewed every year I believe, and you can't have any criminal record to get that license. Now states may and probably have separate/stricter regulations and laws, up to and including outright bans. It's been a while since I looked into this subject matter.

I personally don't have a problem with an upstanding citizen owning a fully automatic machine gun, and I think it being licensed and not housed in metropolitan city limits are reasonable regulations.

 

[Nebor]

Originally posted by: hellokeith
AFAIK, from the federal point of view, citizens can legally own a fully automatic machine gun. They just need a special (and expensive) license which is renewed every year I believe, and you can't have any criminal record to get that license. Now states may and probably have separate/stricter regulations and laws, up to and including outright bans. It's been a while since I looked into this subject matter.

I personally don't have a problem with an upstanding citizen owning a fully automatic machine gun, and I think it being licensed and not housed in metropolitan city limits are reasonable regulations.

Citizens cannot own machine guns manufactured after 1986. For one's made before that, you just have to fill out some transfer\background check paper work, and pay $200 for a tax stamp to stick on that paperwork.

Full autos aren't the engines of destruction you people make them out to be. I know a guy who lives in a nice neighborhood in North Dallas, and his garage has a poured concrete vault with several hundred firearms in it, many of which are full auto. Next to the vault, in the garage, is a vietnam era artillery cannon, with shells lining the wall next to it. None of those guns have ever hurt anyone, even in a densely populated area. :Q

 

[Brainonska511]

I think another big issue besides the fact that it is an attempt to protect 2nd amendment rights is the fact the courts are telling the Federal government that they can't push the interstate commerce clause as a reason to be able to regulate whatever they feel like.

 

[Nebor]

Originally posted by: Brainonska511
I think another big issue besides the fact that it is an attempt to protect 2nd amendment rights is the fact the courts are telling the Federal government that they can't push the interstate commerce clause as a reason to be able to regulate whatever they feel like.

It's been done many times. THe courts struck down the "gun free schools" act because it wasn't a valid application of interstate commerce.

 

[shira]

Originally posted by: Unheard
Article

9th Circuit Ruling Says Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority

November 14, 2003

KeepAndBearArms.com -- U.S. v Stewart has finally struck a blow for freedom. In a November 13 published opinion from the Ninth Circuit Court of Appeals, a majority of 2 to 1 says that the federal government's ban on homemade machineguns is abusive of the government's authority to regulate interstate commerce.

Ninth Circuit judge Alex Kozinski wrote the opinion. Judge Kozinski is the same judge who wrote a strong dissent in the Silveira v. Lockyer case, firmly supporting the true meaning of the Second Amendment.

The relevant and most interesting text from the ruling:

"We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) ?is a criminal statute that by its terms has nothing to do with ?commerce? or any sort of economic enterprise, however broadly one might define those terms.? Lopez, 514 U.S at 561. Unlike in Wickard v. Filburn, 317 U.S. 111 (1942), where growing wheat in one?s backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred?and there is none here?its relationship to interstate commerce is highly attenuated.

"Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals?an admirable goal, but not a commercial one." . . .

"This case fails Morrison?s other requirements as well.

"As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where?as here?such findings would ?enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.? Lopez, 514 U.S. at 563."

While we aren't necessarily recommending that you run out to get the parts to start making your own machineguns, we certainly appreciate the honesty from Judge Kozinski -- and we do believe that he is right. The federal government has been abusing the commerce clause for decades, to the detriment of individual liberties from sea to shining sea.

On June 3, 2002 Bob Stewart was sentenced to five years in prison. He was convicted of being a felon in possession of a firearm and of possessing several unregistered machineguns -- homemade machineguns. The machinegun possession conviction was just overturned. Naturally, the federal government will appeal -- either to an en banc panel in the Ninth Circuit, or to the U.S. Supreme Court. After all, the gun banners can't stand to lose power -- no matter how wrong they truly are. Such is tyranny -- when power is more important than the plain and simple truth.

Read the full opinion for yourself:

Findlaw.com: http://caselaw.lp.findlaw.com/...circs/9th/0210318p.pdf

Our archived copy: http://KeepAndBearArms.com/lawsuits/Stewart.pdf

Looks like SCOTUS is going to finally have to start making some rulings related to the 2nd amendment. Hopefully before to long all these illegal gun bans will go the way of the Dodo.

Why stop at "illegal gun bans?" Let's strike down all those illegal bans on homemade bazookas, rocket launchers, and atomic bombs.

Yeah! Let's hear it for the 2nd Amendment!

 

[Brainonska511]

Originally posted by: Nebor

Originally posted by: Brainonska511
I think another big issue besides the fact that it is an attempt to protect 2nd amendment rights is the fact the courts are telling the Federal government that they can't push the interstate commerce clause as a reason to be able to regulate whatever they feel like.

It's been done many times. THe courts struck down the "gun free schools" act because it wasn't a valid application of interstate commerce.

I understand that, I think it's good that they continue to strike down federal laws over things that the federal government has no jurisdiction over.

A tax law that my dad talks about sometimes was almost struck down using the overextension of the interstate commerce clause, but upon appeal to one of the higher courts, the ruling in favor of tossing the tax law was thrown out because the person suing didn't have proper standing (basically a technicality in this case as the court didn't want to make a ruling on the real issue).

 

[Brainonska511]

Originally posted by: shira

Why stop at "illegal gun bans?" Let's strike down all those illegal bans on homemade bazookas, rocket launchers, and atomic bombs.

Yeah! Let's hear it for the 2nd Amendment!

Yeah! Let's blow things out of proportion.

 

[Nebor]

Originally posted by: shira

Originally posted by: Unheard
Article

9th Circuit Ruling Says Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority

November 14, 2003

KeepAndBearArms.com -- U.S. v Stewart has finally struck a blow for freedom. In a November 13 published opinion from the Ninth Circuit Court of Appeals, a majority of 2 to 1 says that the federal government's ban on homemade machineguns is abusive of the government's authority to regulate interstate commerce.

Ninth Circuit judge Alex Kozinski wrote the opinion. Judge Kozinski is the same judge who wrote a strong dissent in the Silveira v. Lockyer case, firmly supporting the true meaning of the Second Amendment.

The relevant and most interesting text from the ruling:

"We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) ?is a criminal statute that by its terms has nothing to do with ?commerce? or any sort of economic enterprise, however broadly one might define those terms.? Lopez, 514 U.S at 561. Unlike in Wickard v. Filburn, 317 U.S. 111 (1942), where growing wheat in one?s backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred?and there is none here?its relationship to interstate commerce is highly attenuated.

"Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals?an admirable goal, but not a commercial one." . . .

"This case fails Morrison?s other requirements as well.

"As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where?as here?such findings would ?enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.? Lopez, 514 U.S. at 563."

While we aren't necessarily recommending that you run out to get the parts to start making your own machineguns, we certainly appreciate the honesty from Judge Kozinski -- and we do believe that he is right. The federal government has been abusing the commerce clause for decades, to the detriment of individual liberties from sea to shining sea.

On June 3, 2002 Bob Stewart was sentenced to five years in prison. He was convicted of being a felon in possession of a firearm and of possessing several unregistered machineguns -- homemade machineguns. The machinegun possession conviction was just overturned. Naturally, the federal government will appeal -- either to an en banc panel in the Ninth Circuit, or to the U.S. Supreme Court. After all, the gun banners can't stand to lose power -- no matter how wrong they truly are. Such is tyranny -- when power is more important than the plain and simple truth.

Read the full opinion for yourself:

Findlaw.com: http://caselaw.lp.findlaw.com/...circs/9th/0210318p.pdf

Our archived copy: http://KeepAndBearArms.com/lawsuits/Stewart.pdf

Looks like SCOTUS is going to finally have to start making some rulings related to the 2nd amendment. Hopefully before to long all these illegal gun bans will go the way of the Dodo.

Why stop at "illegal gun bans?" Let's strike down all those illegal bans on homemade bazookas, rocket launchers, and atomic bombs.

Yeah! Let's hear it for the 2nd Amendment!

Feel free to point out the federal law that prohibits ownership of any of those things. They're all "destructive devices" under the law, and must be registered with the federal government and a $200 tax paid per item transfered. I know people that own RPGs, WW2 bazookas, LAW rockets, artillery cannons, even a few stinger missiles are in private hands.

Nuclear weapons are simply too expensive to manufacture and maintain, but there's no law against it. It takes nations decades to develop nuclear weapons, so the funding, research and time that goes into developing them simply isn't worth the tradeoff for a private citizen.

That said, I have no problem with private citizens owning nuclear weapons. If Bill Gates wants to spend his money on one, more (atomic) power to him.

 

[shira]

Originally posted by: Nebor

Originally posted by: shira

Originally posted by: Unheard
Article

9th Circuit Ruling Says Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority

November 14, 2003

KeepAndBearArms.com -- U.S. v Stewart has finally struck a blow for freedom. In a November 13 published opinion from the Ninth Circuit Court of Appeals, a majority of 2 to 1 says that the federal government's ban on homemade machineguns is abusive of the government's authority to regulate interstate commerce.

Ninth Circuit judge Alex Kozinski wrote the opinion. Judge Kozinski is the same judge who wrote a strong dissent in the Silveira v. Lockyer case, firmly supporting the true meaning of the Second Amendment.

The relevant and most interesting text from the ruling:

"We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) ?is a criminal statute that by its terms has nothing to do with ?commerce? or any sort of economic enterprise, however broadly one might define those terms.? Lopez, 514 U.S at 561. Unlike in Wickard v. Filburn, 317 U.S. 111 (1942), where growing wheat in one?s backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred?and there is none here?its relationship to interstate commerce is highly attenuated.

"Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals?an admirable goal, but not a commercial one." . . .

"This case fails Morrison?s other requirements as well.

"As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where?as here?such findings would ?enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.? Lopez, 514 U.S. at 563."

While we aren't necessarily recommending that you run out to get the parts to start making your own machineguns, we certainly appreciate the honesty from Judge Kozinski -- and we do believe that he is right. The federal government has been abusing the commerce clause for decades, to the detriment of individual liberties from sea to shining sea.

On June 3, 2002 Bob Stewart was sentenced to five years in prison. He was convicted of being a felon in possession of a firearm and of possessing several unregistered machineguns -- homemade machineguns. The machinegun possession conviction was just overturned. Naturally, the federal government will appeal -- either to an en banc panel in the Ninth Circuit, or to the U.S. Supreme Court. After all, the gun banners can't stand to lose power -- no matter how wrong they truly are. Such is tyranny -- when power is more important than the plain and simple truth.

Read the full opinion for yourself:

Findlaw.com: http://caselaw.lp.findlaw.com/...circs/9th/0210318p.pdf

Our archived copy: http://KeepAndBearArms.com/lawsuits/Stewart.pdf

Looks like SCOTUS is going to finally have to start making some rulings related to the 2nd amendment. Hopefully before to long all these illegal gun bans will go the way of the Dodo.

Why stop at "illegal gun bans?" Let's strike down all those illegal bans on homemade bazookas, rocket launchers, and atomic bombs.

Yeah! Let's hear it for the 2nd Amendment!

Feel free to point out the federal law that prohibits ownership of any of those things. They're all "destructive devices" under the law, and must be registered with the federal government and a $200 tax paid per item transfered. I know people that own RPGs, WW2 bazookas, LAW rockets, artillery cannons, even a few stinger missiles are in private hands.

Nuclear weapons are simply too expensive to manufacture and maintain, but there's no law against it. It takes nations decades to develop nuclear weapons, so the funding, research and time that goes into developing them simply isn't worth the tradeoff for a private citizen.

That said, I have no problem with private citizens owning nuclear weapons. If Bill Gates wants to spend his money on one, more (atomic) power to him.

Feel free to point out that your argument is circular.

You claim that federal laws against "destructive devices" are okay because there are federal laws that prohibit owndership those things. By that reasoning, federal laws against homemade machine guns are okay because there are federal laws that prohibit ownership of homemade machine guns.

The issue is that many Americans think the 2nd amendment says citizens have the right to "bear arms." Even assuming the "well regulated militia" phrase is irrelevant, the kicker is, what does "arms" mean? Are we limited to those "arms" that existed when the Constitution was written, or does "arms" mean present-day arms? I assume you accept the latter interpretation, since homemade machine guns didn't exist in the 18th century.

But if it's present-day arms, why wouldn't modern-day "destructive devices" be covered? Why would it be okay from a Constitutional standpoint for the government to arbitrarily designate a class of arms to be illegal? And if it IS okay, what in principle is the difference for arbitrarily designating home-made machine guns (and other classes of firearms) to be illegal?

I'm being serious here. Please explain what constitutional grounds you're using in claiming that bans on homemade machine guns are unconstitutional, whereas bans on "destructive devices" are constitutional.

Edit: I just reread your first post, and I now think I see where you're coming from. You're claiming the ban is illegal since it's not based on federal law, but rather an arbitrary decision to not issue tax stamps. Hmm. That might well be a valid argument.

 

[jonks]

Originally posted by: Nebor

Originally posted by: shira

Originally posted by: Unheard
Article

9th Circuit Ruling Says Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority

November 14, 2003

KeepAndBearArms.com -- U.S. v Stewart has finally struck a blow for freedom. In a November 13 published opinion from the Ninth Circuit Court of Appeals, a majority of 2 to 1 says that the federal government's ban on homemade machineguns is abusive of the government's authority to regulate interstate commerce.

Ninth Circuit judge Alex Kozinski wrote the opinion. Judge Kozinski is the same judge who wrote a strong dissent in the Silveira v. Lockyer case, firmly supporting the true meaning of the Second Amendment.

The relevant and most interesting text from the ruling:

"We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) ?is a criminal statute that by its terms has nothing to do with ?commerce? or any sort of economic enterprise, however broadly one might define those terms.? Lopez, 514 U.S at 561. Unlike in Wickard v. Filburn, 317 U.S. 111 (1942), where growing wheat in one?s backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred?and there is none here?its relationship to interstate commerce is highly attenuated.

"Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals?an admirable goal, but not a commercial one." . . .

"This case fails Morrison?s other requirements as well.

"As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where?as here?such findings would ?enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.? Lopez, 514 U.S. at 563."

While we aren't necessarily recommending that you run out to get the parts to start making your own machineguns, we certainly appreciate the honesty from Judge Kozinski -- and we do believe that he is right. The federal government has been abusing the commerce clause for decades, to the detriment of individual liberties from sea to shining sea.

On June 3, 2002 Bob Stewart was sentenced to five years in prison. He was convicted of being a felon in possession of a firearm and of possessing several unregistered machineguns -- homemade machineguns. The machinegun possession conviction was just overturned. Naturally, the federal government will appeal -- either to an en banc panel in the Ninth Circuit, or to the U.S. Supreme Court. After all, the gun banners can't stand to lose power -- no matter how wrong they truly are. Such is tyranny -- when power is more important than the plain and simple truth.

Read the full opinion for yourself:

Findlaw.com: http://caselaw.lp.findlaw.com/...circs/9th/0210318p.pdf

Our archived copy: http://KeepAndBearArms.com/lawsuits/Stewart.pdf

Looks like SCOTUS is going to finally have to start making some rulings related to the 2nd amendment. Hopefully before to long all these illegal gun bans will go the way of the Dodo.

Why stop at "illegal gun bans?" Let's strike down all those illegal bans on homemade bazookas, rocket launchers, and atomic bombs.

Yeah! Let's hear it for the 2nd Amendment!

Feel free to point out the federal law that prohibits ownership of any of those things. They're all "destructive devices" under the law, and must be registered with the federal government and a $200 tax paid per item transfered. I know people that own RPGs, WW2 bazookas, LAW rockets, artillery cannons, even a few stinger missiles are in private hands.

Nuclear weapons are simply too expensive to manufacture and maintain, but there's no law against it. It takes nations decades to develop nuclear weapons, so the funding, research and time that goes into developing them simply isn't worth the tradeoff for a private citizen.

That said, I have no problem with private citizens owning nuclear weapons. If Bill Gates wants to spend his money on one, more (atomic) power to him.

And if your excitable next door neighbor was a rich radical muslim who owned a nuke...ok with you?

 

[Specop 007]

Originally posted by: sirjonk
And if your excitable next door neighbor was a rich radical muslim who owned a nuke...ok with you?

Implying said rich radical muslim would set it off....

Islam might end up short a couple hundred million worshippers.

Sure, hell give him 2.

 

[Vic]

Sorry, folks, but tactical and strategic ordnance like nukes don't fall under the definition of firearms.

 

[jonks]

Originally posted by: Specop 007

Originally posted by: sirjonk
And if your excitable next door neighbor was a rich radical muslim who owned a nuke...ok with you?

Implying said rich radical muslim would set it off....

Islam might end up short a couple hundred million worshippers.

Sure, hell give him 2.

Implying what, the US (or any country) could WIN a nuclear war? Did you even see Wargames? Do you maintain there is such a thing as acceptable losses when the numbers of dead climb into the billions?

And not to mention, who would we nuke and why? This hypothetical is based on Nebor's understanding of the rights of individual possession of weapons under our own laws, and if we allow a US citizen possession of a nuke if they are rich enough, then when one crazy US citizen who happens to be muslim sets it off, you want to blame another country??

 

[Nebor]

Originally posted by: shira

Originally posted by: Nebor

Originally posted by: shira

Originally posted by: Unheard
Article

9th Circuit Ruling Says Federal Ban on Homemade Machineguns Exceeds Commerce Clause Authority

November 14, 2003

KeepAndBearArms.com -- U.S. v Stewart has finally struck a blow for freedom. In a November 13 published opinion from the Ninth Circuit Court of Appeals, a majority of 2 to 1 says that the federal government's ban on homemade machineguns is abusive of the government's authority to regulate interstate commerce.

Ninth Circuit judge Alex Kozinski wrote the opinion. Judge Kozinski is the same judge who wrote a strong dissent in the Silveira v. Lockyer case, firmly supporting the true meaning of the Second Amendment.

The relevant and most interesting text from the ruling:

"We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) ?is a criminal statute that by its terms has nothing to do with ?commerce? or any sort of economic enterprise, however broadly one might define those terms.? Lopez, 514 U.S at 561. Unlike in Wickard v. Filburn, 317 U.S. 111 (1942), where growing wheat in one?s backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred?and there is none here?its relationship to interstate commerce is highly attenuated.

"Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals?an admirable goal, but not a commercial one." . . .

"This case fails Morrison?s other requirements as well.

"As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where?as here?such findings would ?enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.? Lopez, 514 U.S. at 563."

While we aren't necessarily recommending that you run out to get the parts to start making your own machineguns, we certainly appreciate the honesty from Judge Kozinski -- and we do believe that he is right. The federal government has been abusing the commerce clause for decades, to the detriment of individual liberties from sea to shining sea.

On June 3, 2002 Bob Stewart was sentenced to five years in prison. He was convicted of being a felon in possession of a firearm and of possessing several unregistered machineguns -- homemade machineguns. The machinegun possession conviction was just overturned. Naturally, the federal government will appeal -- either to an en banc panel in the Ninth Circuit, or to the U.S. Supreme Court. After all, the gun banners can't stand to lose power -- no matter how wrong they truly are. Such is tyranny -- when power is more important than the plain and simple truth.

Read the full opinion for yourself:

Findlaw.com: http://caselaw.lp.findlaw.com/...circs/9th/0210318p.pdf

Our archived copy: http://KeepAndBearArms.com/lawsuits/Stewart.pdf

Looks like SCOTUS is going to finally have to start making some rulings related to the 2nd amendment. Hopefully before to long all these illegal gun bans will go the way of the Dodo.

Why stop at "illegal gun bans?" Let's strike down all those illegal bans on homemade bazookas, rocket launchers, and atomic bombs.

Yeah! Let's hear it for the 2nd Amendment!

Feel free to point out the federal law that prohibits ownership of any of those things. They're all "destructive devices" under the law, and must be registered with the federal government and a $200 tax paid per item transfered. I know people that own RPGs, WW2 bazookas, LAW rockets, artillery cannons, even a few stinger missiles are in private hands.

Nuclear weapons are simply too expensive to manufacture and maintain, but there's no law against it. It takes nations decades to develop nuclear weapons, so the funding, research and time that goes into developing them simply isn't worth the tradeoff for a private citizen.

That said, I have no problem with private citizens owning nuclear weapons. If Bill Gates wants to spend his money on one, more (atomic) power to him.

Feel free to point out that your argument is circular.

You claim that federal laws against "destructive devices" are okay because there are federal laws that prohibit owndership those things. By that reasoning, federal laws against homemade machine guns are okay because there are federal laws that prohibit ownership of homemade machine guns.

The issue is that many Americans think the 2nd amendment says citizens have the right to "bear arms." Even assuming the "well regulated militia" phrase is irrelevant, the kicker is, what does "arms" mean? Are we limited to those "arms" that existed when the Constitution was written, or does "arms" mean present-day arms? I assume you accept the latter interpretation, since homemade machine guns didn't exist in the 18th century.

But if it's present-day arms, why wouldn't modern-day "destructive devices" be covered? Why would it be okay from a Constitutional standpoint for the government to arbitrarily designate a class of arms to be illegal? And if it IS okay, what in principle is the difference for arbitrarily designating home-made machine guns (and other classes of firearms) to be illegal?

I'm being serious here. Please explain what constitutional grounds you're using in claiming that bans on homemade machine guns are unconstitutional, whereas bans on "destructive devices" are constitutional.

Edit: I just reread your first post, and I now think I see where you're coming from. You're claiming the ban is illegal since it's not based on federal law, but rather an arbitrary decision to not issue tax stamps. Hmm. That might well be a valid argument.

Eh? I never said that ANY of those laws are ok. I'm against all of them. Infringed is infringed, be it on machine guns or nuclear weapons. If I have to allow nuclear weapons to keep you from throwing them in my face when I say I want a machine gun, then so be it. It's not a big concern, no non-state would spend the time and money to develop one, and no one else would sell them one.

What I said, if you had read carefully, is that there are NO laws against owning a nuclear weapon, it just needs to be registered as a destructive device, just like a grenade, an artillery shell, a pipebomb or a conventional air bomb. I'm saying that that law, along with all other arms laws pertaining to the citizenry of the United States are unconstitutional.

 

[Ozoned]

Originally posted by: sirjonk


Do you maintain there is such a thing as acceptable losses when the numbers of dead climb into the billions?

Depends upon which religion you talk to.....

 

[Nebor]

Originally posted by: sirjonk

Originally posted by: Specop 007

Originally posted by: sirjonk
And if your excitable next door neighbor was a rich radical muslim who owned a nuke...ok with you?

Implying said rich radical muslim would set it off....

Islam might end up short a couple hundred million worshippers.

Sure, hell give him 2.

Implying what, the US (or any country) could WIN a nuclear war? Did you even see Wargames? Do you maintain there is such a thing as acceptable losses when the numbers of dead climb into the billions?

And not to mention, who would we nuke and why? This hypothetical is based on Nebor's understanding of the rights of individual possession of weapons under our own laws, and if we allow a US citizen possession of a nuke if they are rich enough, then when one crazy US citizen who happens to be muslim sets it off, you want to blame another country??

You clearly lack a competitive instinct. The whole, US vs. them mentality. Even if you walk away limping, as long as the other guy doesn't walk away, you've won.

 

[jonks]

Originally posted by: Nebor

Originally posted by: sirjonk

Originally posted by: Specop 007

Originally posted by: sirjonk
And if your excitable next door neighbor was a rich radical muslim who owned a nuke...ok with you?

Implying said rich radical muslim would set it off....

Islam might end up short a couple hundred million worshippers.

Sure, hell give him 2.

Implying what, the US (or any country) could WIN a nuclear war? Did you even see Wargames? Do you maintain there is such a thing as acceptable losses when the numbers of dead climb into the billions?

And not to mention, who would we nuke and why? This hypothetical is based on Nebor's understanding of the rights of individual possession of weapons under our own laws, and if we allow a US citizen possession of a nuke if they are rich enough, then when one crazy US citizen who happens to be muslim sets it off, you want to blame another country??

You clearly lack a competitive instinct. The whole, US vs. them mentality. Even if you walk away limping, as long as the other guy doesn't walk away, you've won.

"Do you ever actually win any fights?"
"Nobody ever wins a fight"
- the Zen of Roadhouse

But back to my impossible hypothetical based on Nebor's tolerance of individual ownership of fission devices. Say nukes are legal. A US citizen owns one, and detonates it. Who do you blame but yourself for allowing such things into the hands of citizens? And if a citizen owns one, how hard would it be for those with "bad intentions" from killing him and stealing it? See the plot of [enter any movie starring steven segal or james bond]

 

[BoberFett]

Roughly 50% of the US population carries with them at all times the tool of a rapist. Say one of those people rapes a woman. Who do you blame but yourself for allowing such things into the hands of citizens? Castration at birth. It's the only sensible option.

 

[fallout man]

Originally posted by: BoberFett
Roughly 50% of the US population carries with them at all times the tool of a rapist. Say one of those people rapes a woman. Who do you blame but yourself for allowing such things into the hands of citizens? Castration at birth. It's the only sensible option.

Last time I checked, "rape" wasn't the act of tea-bagging.

 

[bamacre]

Originally posted by: BoberFett
Roughly 50% of the US population carries with them at all times the tool of a rapist. Say one of those people rapes a woman. Who do you blame but yourself for allowing such things into the hands of citizens? Castration at birth. It's the only sensible option.

:laugh:

 

[Rainsford]

I'm not sure a ban on homemade guns is a 2nd amendment issue. While I don't think the government should have the right to limit civilian access to firearms for personal protection, I think the government SHOULD step in when there are significant safety issues involved. This goes for anything, but particularly for inherently dangerous devices like firearms. The risks of a "homemade" gun that doesn't meet safety standards injuring the user or some innocent third party seems like a problem too large to ignore.

And I think that safety issues fall directly in the realm of interstate commerce, and I assume that idea has been upheld multiple times. I'm not sure the government should ban homemade machine guns because they are homemade, they should ban them because it doesn't seem too likely that they are safe.