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.