Other Federal Appellate Judges on Machine Guns:

In United States v. Rybar, Judge Alito's dissent persuasively argued that the Supreme Court's precedent in Lopez meant that Congress could not ban the simple possession of machine guns--at least not without an assertion of a basis of federal jurisdiction and Congressional findings about the effects of machine guns on interstate commerce. While Judge Alito's dissenting opinion did not carry the day, the dissent was hardly an outlier among federal judges.

For example, district court Chief Judge Barbour in Mississippi used similar reasoning to hold the ban unconstitutional.United States v. Bownds, 860 F. Supp. 336 (S.D. Miss. 1994). See also United States v. Gambill, 912 F. Supp. 287, 290 (S.D. Ohio 1996) ("mere possession of a machine gun may not implicate interstate commerce").

On appeal, the Fifth Circuit reversed the Mississippi district court and upheld the ban by a 2-1 vote. In dissent, Judge Edith Jones suggested that Congress lacks the power to prohibit possession of a machine gun under the commerce power. Rejecting the majority's theory that a ban on possession of an item is a permissible exercise of the power to ban interstate commerce in an item, Judge Jones argued:

The statute is not limited to possession in or even affecting interstate commerce, or to possession of a firearm that has traveled in interstate commerce. Rather, it criminalizes the mere private possession of a machine gun. The majority infer from the fact that Section 922(o) prohibits "transfer" as well as "possession" that channels or things in commerce were intended to be regulated. This inference seems unwarranted for two reasons. First, transfer as well as possession of a thing can be of a wholly intrastate character. Second, when the government criminalizes conduct in the disjunctive, it may prosecute separately each type of conduct disjunctively named. Thus, as in this case, possession alone is criminalized independent of any transfer of a machine gun.

Judge Jones concluded her analysis by pointing out that:

Lopez reminds us forcefully that Congress's enumerated power over commerce must have some limits in order to maintain our federal system of government and preserve the states' traditional exercise of the police power. Section 922(o) is a purely criminal law, without any nexus to commercial activity, and its enforcement would intrude the federal police power into every village and remote enclave of this vast and diverse nation.

United States v. Kirk, 70 F.3d 791, 799, 802 (5th Cir. 1996) (Jones, J., dissenting).

The Fifth Circuit reheard the case en banc, and split eight-to-eight, thereby leaving the original decision intact. United States v. Kirk, 105 F.3d 997 (5th Cir. 1997).

In the en banc case, eight judges voted to affirm per curiam. Three of them joined a lengthy opinion by Judge Higginbotham which (like Justice Breyer's dissent in Lopez) stitched together excerpts from various popular magazine articles which allegedly showed that machine guns were sometimes used in crime; repeatedly asserted how dangerous machine guns are; said that machine guns have no social utility, and claimed that while Congress would not ban mere possession of ordinary guns, machine guns were on a different plane, and could be banned.

The dissenters (Garwood, Jolly, Smith, Duhe, Barksdale, Emilio M. Graza, and DeMoss), joined an opinion by Judge Jones. They argued replied that the ban on possession could not be justified as carrying out a ban on commercial transfer--since a person could acquire a machine gun through a non-commercial transfer, such as a bequest; or a malfunctioning semi-automatic might fire two bullets with a single trigger press, and thereby be classified as a machine gun by federal law.

In the Sixth Circuit, a machine gun/Lopez case led to a 2-1 split upholding the statute. United States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996)(dissent by Judge Suhrheinrich).

In the Third Circuit's Rybar case, the majority was forced to made the preposterous argument that although 18 U.S.C. 922(o)(the ban on possession of machine guns manufactured after May 19, 1986) had no legislative history or findings about interstate commerce, the legislative history of other portions of the Gun Control Act--which had been enacted in different years and which said nothing about machine guns--supplied sufficient findings about interstate commerce. Rybar at 279-80.

Judge Alito's dissent pointed out that not all cases of possession in violation of 922(o) involve any form of commerce, let alone interstate commerce. For example, the owner could have converted a semiautomatic to automatic. Nor is every illegal transfer an interstate transfer. Further, the possession of a machine gun on one's property has no more genuine connection with interstate commerce or commerce of any sort than does possession of a gun within a school zone (the federal law struck down in Lopez).

Neither Congress nor the government attorneys defending 922(o) have produced any evidence that the occasional intrastate possession of machine guns by interstate criminals (e.g. controlled substance merchants, racketeers) has a substantial effect on interstate commerce.

Regarding the post-hoc efforts of various courts to conclude that Congress-- while remaining utterly silent on the subject--had somehow determined that machine guns burden interstate commerce, Stephen Halbrook writes in the Firearms Law Deskbook (the only national practice manual on firearms law):

The suggestion that Congress secretly made such a finding is just as speculative as it would be to suggest that Congress secretly thought such firearms to be a burden on raising armies, collecting taxes, coining money, establishing post offices, punishing piracies on the high seas, or other subjects of Congress's enumerated powers in Article I, Section 8 of the Constitution.
That many federal courts have upheld the machine gun ban--despite its manifest unconstitutionality under Lopez--shows the breadth of the problem of federal courts ignoring the law in order to achieve particular policy results. Judge Alito's opinion in Rybar shows him to be conscientious and intellectually honest in following precedent.

Besides acting illegitimately in disobeying Lopez in order to reach a preferred policy result, the fedeal judges who have taken positions contrary to the opinions of judges such as Alito and Jones have been unreasonable. Today in the United States, machine gun possession is lawful in 41 states. (It is banned for non-government employees in Delaware, Hawaii, Iowa, Illinois, Kansas, New York, Rhode Island, and Washington. California's permit law is applied so as to make possession possible only by the film industry.) There are over 200,000 lawfully possessed machine guns in the United States, every one of them registered and taxed according to the strict requirements of the National Firearms Act of 1934. Neither Congress nor any scholar has ever produced evidence showing that the 1986 ban on manufacturing new machine guns for the civilian market has contributed in the slightest to public safety.

UPDATE: A commenter points to United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003), in which Judges Kozinski and Nelson wrote for a 2-1 majority holding that the interstate commerce power did not reach a machine gun which had never entered the stream of commerce, because the gun had always been the property of its inventor, who had created a completely original design for the gun, not even resembling ordinary machine guns (and thus not even affecting the market for ordinary machine guns). After deciding Ashcroft v. Raich, the U.S. Supreme Court vacated the Stewart decision, and remanded it for consideration in light of Ashcroft.

As the Stewart remand implies, it is entirely possible that the current Court is unwilling to follow through on Lopez, and lacks the nerve to challenge the contempt with which many lower federal courts have treated Lopez. See Glenn H. Reynolds & Brannon P. Denning, Lower Court Interpretations of Lopez, or What If the Supreme Court Held a Constitutional Revolution and Nobody Came? 2000 Wisconsin Law Review 369. But to get back to the original point of this post: Alito's position is Rybar was the same as that a significant minority of lower federal court judges who have tried to apply the Supreme Court's precedents faithfully.

SomeJarhead (mail):
Neither Congress nor any scholar has ever produced evidence showing that the 1986 ban on manufacturing new machine guns for the civilian market has contributed in the slightest to public safety.

Well, duh.

A room full of academics and I have to be the one to say it first.
11.1.2005 5:10pm
Anecdotally, I don't feel safer.
11.1.2005 5:22pm
Gordon (mail):

either Congress nor any scholar has ever produced evidence showing that the 1986 ban on manufacturing new machine guns for the civilian market has contributed in the slightest to public safety.

Do you have any proof that it hasn't?

In my humble opinion, advocating a constitutional right to own a machine gun is a good definition of a 2nd amendment absolutist.

Sort of like a 2nd amendment version of the ACLU's position on some of the other amendments.

And I don't consider that a compliement.

[From Dave Kopel: This post is not about whether there is a Second Amendment right to own machine guns. It is about whether Congress has the authority to ban the mere intrasate possession of an object. Please stay on topic.]
11.1.2005 5:52pm
Gordon (mail):
Just out of curiosity, if it isn't wise to ban machine guns, can we at least require their registration? Or is that too much to ask too.

[From Dave Kopel: Read before you write. MGs have been registered since 1934. Nothing in Judge Alito's opinion in Rybar says anything about questioning the registration requirement, which was enacted under a tax pretext.]
11.1.2005 5:54pm
Do you have any proof that it hasn't?

In my humble opinion, advocating a constitutional right to own a machine gun is a good definition of a 2nd amendment absolutist.

This is how liberals attack constitutional rights they don't like: they say the government can do whatever it wants unless there's a reason not to.

Gordon, please tell me why people should not be able to own machine guns.
11.1.2005 6:00pm
tylerh (mail):

I get message: constitutionally, machine guns are good. Could someone please enlighten this non-lawyer as to where the line for constitutionally-ungood weaponry lies? Do Nuclear Weapons pass constitutation muster? Why or Why not?
11.1.2005 6:01pm
Robert Lyman (mail):

Who said anything about the 2nd Amendment? This is a commerce clause case: can Congress regulate your non-commercial activities on private property?

It works for machine guns, gay sex, frequency of lawnmowing, erection of statuary, hosting dinner parties, growing pot (oops! not that one!), whatever.

The qustion is not "should machine guns be legal?" or "should machine guns be registered?" but rather "Can Congress (as opposed to state legislatures or municipalities) regulate these things?"

Pardon me for being an absolutist on the Constitution, including the Commerce Clause.

But to answer your question: I think registration is a waste of money and time and serves only to create "paperwork criminals." So either ban or don't, but don't register, it's stupid.
11.1.2005 6:10pm
Sebastianguy99 (mail):
Outside the insular confines of legal academia(and blogsphere), and the conservative punditry, the vast majority of citizens are outcome-oriented. No matter what their political orientation, they could care less about the form, logical cohesiviness, or "quality"(a very subjective term) of any particular legal opinion or argument.

People care about where you went more than how you got there.Particularly in the zeor-sum world of hot button politica/judicial issues.

If, no, when, the charge is made that Judge Alito " think's it ok to have machine guns on our streets", or something to that effect, the answer better be a heck of alot more listener-friendly than,

"at least not without an assertion of a basis of federal jurisdiction and Congressional findings about the effects of machine guns on interstate commerce. "

Citing some judge in Mississippi will not help the cause much either. For more effect, one would have to find a judge where such a ruling was unexpected.

Everyone is going to have to face the fact that this is not going to be a smooth, or polite confirmation process. There are going to be any number of opinions that are not going to play well in the public sphere.The man has written some opinions that easily lend themselves to ridicule in today's political climate and most people just aren't going to go read those decisions and evalute them on the same basis as lawyers.

When the substantial evaluation and subsequent ridicule somes, his defenders better speak in every clear and accessible language, rather than in a way that reminds one of John Kerry trying to explain his position on the war during the campaign.
11.1.2005 6:12pm
Nunzio (mail):
Isn't the question whether banning possession of machine guns is a necessary and proper means of regulating the interstate market in the sale of machine guns?
11.1.2005 6:13pm
Dan Pawson (mail) (www):
You're missing perhaps the best support for Alito's position: the Ninth Circuit, in an opinion by Judge Kozinski, agreed with Judge Alito in late 2003, invalidating a conviction for possession of a machine gun in violation of 922(q). United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003).
11.1.2005 7:12pm
Gordon (mail):
My apologies for straying off-topic. It is an interesting Commerce Clause issue, an angle I hadn't thought of. I don't know that it is "manifestly unconstitutional under Lopez," but it certainly is arguably unconstitutional.

I asked Professor Volokh if he thought registration itself was a violation of the 2nd amendment right to bear arms, and he replied that he didn't know the answer to that yet. Do you have an opinion on that subject?

By the way, I'm speaking as an individual who has been convinced that the Constitution does indeed confer an individual right to bear arms, and I'm also speaking as an individual with a strong personal aversion to firearms and a strong policy desire to have as few of them around as possible. It explains, even if it does not excuse, my earlier comments.

I also think the arguments in favor of mandatory registration of all firearms outweigh the arguments against, especially if we can establish once and for all an individual right under the 2nd amendment - so that registration does not become a Trojan horse for confiscation.
11.1.2005 7:32pm
Dan Pawson (mail) (www):
Oops; obviously, I meant 922(o), not 922(q), the law Lopez struck down.
11.1.2005 7:46pm
therut (mail):
Registration will not be politically accepted in this country. Let some party try it and that political party will be destroyed come election time. Those who support such measures have no idea how a large majority of citizens would vote out such a politician and would not follow the law. Any law is only effective as long as a majority will see it as legetimate. This will not be seen that way. I hope I never see the day. If you think Roe vs Wade has caused problems in this country just try to tell citizens they have to register their firearms. Lets see somewhere around 280 -300 million firearms. There are not enough police,Judges or military personal to carry out that law aganist those who would just ignore it. Civil disobedience would be rampant. Are you going to do away with illegal search and seizure to enfore registration. Impossible.
11.1.2005 9:05pm
Duncan Frissell (mail):
When, the charge is made that Judge Alito " think's it ok to have machine guns on our streets", or something to that effect, the answer better be a heck of alot more listener-friendly

The question wasn't whether it was OK. The question was, "is it OK for Congress to ban new (manufactured post '86) MG's in civilian hands." It was already OK to have old MGs.

As for the question of where the 2nd stops -- it's legal to own 155 mm howitzers and ammunition for same (as long as you pay the federal transfer tax on each round and can find some one to sell you one) so we're still in negotiations on that question.

I recommend a mathematical approach:

1) Take the porno of 1791 and the porno of 2005.

2) Establish some comparison ratio (quantity, salaciousness, and ubiquity).

3) Take a Ferguson Rifle and a Gribeauval System 12-pounder.

4) Multiply their capabilities by the ratio established in step 2).

5) That establishes the level of weaponry protected by the 2nd Amendment.
11.1.2005 10:10pm
sammler (mail) (www):
The problem of lower courts ignoring precedent, which Mr. Kopel returns to several times, is a severe one. It evidences the greatest failing of the Rehnquist Court, namely the paucity of strong and unambiguous rulings. I believe that President Bush is aware of this problem, and that the choice of reserved and taciturn judges (or lawyers) is a key part of his strategy to combat it. More here.
11.2.2005 8:46am
Jerry S:

Laws regulation/controlling the sale and transfere of machine guns are already in place by the enactment of the 1934 NFA and the 1968 GCA. Both in their statutes do not ban but regulate the interstate transfer and sale of Full auto Firearms. Each of these setforth the proceedure for criminal back round checks and finger printing of the transferee befor legal transfer can be legally done. All interstate transfers of machine gun must be done by Federal Firearms dealers with a special tax paid addition to deal in machine guns. Instate and interstate sale and transfere is still 100% controlled by the BATF in its fire arms branch. With this much control on a item that has never been involved in crime since 1934 what good would society gain by more laws??????? More people get killed by golf clubs in the US than Machine Guns. Possibly we should control Golf Clubs as dangerous in interstate commerce. EOD
11.2.2005 9:44am
David Matthews (mail):
"the paucity of strong and unambiguous rulings."

Amen. And the worst perpetrators of this in the court have been O'Connor and Breyer. I guess the fact that Justice O'Connor could not even remain self-consistent is what identified her as a "swing" vote. And as for Breyer, one need look no further than his reasoning on Van Orden v. Perry and McCreary Co. v. ACLU, which practically assured that no lower court has any clear precedent to follow and that most religious display questions will have to be resolved in the Supreme Court. (Or at least that's the view of this non-lawyer.)
11.2.2005 11:00am
James of England:

Judge Alito's opinion in Rybar shows him to be conscientious and intellectually honest in following precedent.

Although I agree with you that Alito's position is probably correct, I'm not certain that it shows him to be more intellectually honest than those that we disagree with. It would be very possible to come, via a results-oriented approach, to many of the results that we would like. You just need a judge who agrees with us on policy.

I get the impression that Alito writes well, and so he could easily disguise a results-oriented decision making process. I also get the impression that he's a man of principle and that you are right in thinking him intellectually honest. I look forward to reading more of his opinions and hope he is swiftly confirmed.

Still, it seemed like that it's important to keep the epistemic high ground in these debates, no?
11.2.2005 2:15pm