Industry News: Court Initially Throws Out, Then Reverses & Sustains Conviction for Homemade Machine Gun Possession
By Robert M. Hausman

The Ninth Circuit Court of Appeals recently reversed on an earlier opinion it had issued and sustained a conviction for a man who possessed unlicensed home-made machine guns.

In United States v. Stewart, No. 02-10318 (opinion issued June 30, 2006) the Ninth Circuit affirmed Stewart’s conviction under section 922(o) of the Gun Control Act of 1968 for possessing a home-made machine gun. The court found that the analysis used by the Supreme Court in Gonzales v. Raich, relating to possession of home-grown marijuana under the Controlled Substances Act, applied equally to home-made machine guns under 922(o).

The court held that the machine gun possession ban fits within a larger scheme for the regulation of interstate commerce in firearms. Thus, even though the machine gun possessed by the defendant never traveled in interstate or foreign commerce, the court affirmed the conviction under 922(o). The court commented that Raich stands for the proposition that Congress can ban possession of an object when it has a rational basis for finding that the object might ‘bleed’ into the interstate market and affect supply and demand.

Three years earlier, in 2003, the same court, threw out Stewart’s conviction on the same charge.


The case came about from Robert W. Stewart’s sale of parts kits for Maadi-Griffin .50-caliber rifles, which were advertised on the Internet and in the publication The Shotgun News.

Stewart’s advertising caught the attention of the Bureau of Alcohol, Tobacco, Firearms & Explosives, which monitors firearms publications, to which ATF has publicly admitted it maintains several subscriptions.

ATF discovered that Stewart had a prior conviction for possession and transfer of a machine gun and decided to investigate Stewart’s business. An ATF agent, posing as a buyer, purchased one of Stewart’s kits and later determined that it could be “readily...converted” into a functioning firearm. Based on this information, ATF secured a federal search warrant for Stewart’s residence.

The search turned up five machine guns, which had been machined and assembled by Stewart who was charged and convicted of being a felon in possession of firearms and five counts of unlawful possession of a machine gun in violation of 18 U.S.C. section 922(o). No charges were brought regarding the advertised parts kits that were initially the subject of the investigation. Stewart was convicted at trial.

The Appeal

Stewart based his initial appeal, among other matters, on a claim that 18 U.S.C. section 922(o) is an invalid exercise of Congress’ commerce power and that it violates the Second Amendment. Section 922(o) generally makes it unlawful to “transfer or possess a machine gun” made after the date of enactment.

In reaching its decision, the Ninth Circuit appeals court mentioned that notably absent from 922(o) was any jurisdictional requirement that the machine gun has traveled in or substantially affected interstate commerce. The court thus had to conclude, whether this statute, as applied to Stewart, offends the Commerce Clause, which gives Congress the authority to regulate commerce among the individual states of the union.

There are three categories of activity that Congress can regulate under its commerce power: (1) “the use of the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and (3) “those activities having a substantial relation to interstate commerce.”

Unique Situation

The case presented a unique situation to the court as Stewart had fabricated the machine guns himself, rather than is usually the case, acquiring them from someone else. Prior case precedent, most notably United States v. Rambo, 74 F 3d 948 (decided by the 9th Circuit in 1996) held that section 922(o) was a valid exercise of the commerce power because a transfer or sale preceded the criminalized possession.

The chief of the ATF Firearms Technology Branch, referring to one of Stewart’s machine guns, testified that it was “a unique type of firearm,” explaining it was “based on a ...Sten gun design” and had “certain Sten gun parts,” but “the rest of the parts...were not...conventional Sten gun parts.” He continued: “And I’ve seen many Sten guns assembled from Sten gun parts kits, but I had never previously seen one that was assembled with these other parts on it.” None of Stewart’s guns had original Sten receiver tubes and at least one was identified as having a “homemade receiver tube.”

The lower district court had earlier ruled against Stewart’s Commerce Clause argument, reasoning that “the parts, at least, moved in interstate commerce.” The appeals court, however, while agreeing that some of the machine gun parts did move in interstate commerce, added, “At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to regulation under the Commerce Clause, else that constitutional limitation (on the power of government) would be entirely meaningless...The difficult question is where to draw the line between a regulated object and the matter from which that object was created.”

The court continued: “Some components of Stewart’s machine guns had crossed state lines, but these components did not add up to a gun. ...Many additional parts and tools, as well as expertise and industry, were needed to create functioning machine guns. This is quite different than if Stewart had ordered a disassembled gun and simply put the parts together, the way one might assemble a chair from IKEA. These machine guns were ‘a unique type of firearm’, with legal parts mixed and matched from various origins; they required more than the simple turn of a screwdriver or a hit of a hammer to become machine guns. We therefore cannot say that the machine guns themselves - in any recognizable form - traveled in interstate commerce. Because these firearms were genuinely homemade, we find that Stewart did not obtain his machine guns by ‘using the channels of interstate commerce.’”

The court also noted that though other courts have found that although a defendant did not use the channels of interstate commerce, the possession of a machine gun may still have substantially affected interstate commerce. The justices deciding Stewart’s appeal however, said that they could not agree that simple possession of machine guns - particularly possession of homemade machine guns - has a substantial effect on interstate commerce.

“Substantial Affect” Test

In United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court set out the controlling test for determining whether a regulated activity “substantially affects” interstate commerce. It must be considered:

  • whether the regulated activity is commercial or economic in nature;
  • whether an express jurisdictional element is provided in the statute to limit its reach;
  • whether Congress made express findings about the effects of the proscribed activity on interstate commerce; and
  • whether the link between the prohibited activity and the effect on interstate commerce is attenuated. The appeals court began by considering the first and fourth prongs of the test. The first prong was found not to be satisfied, as the Stewart court was of the opinion that mere possession of a machine gun alone is not economic in nature. Without some evidence that Stewart had intended to sell or transfer his machine gun, and none was presented, there was no relationship to interstate commerce.

    On the fourth prong of the test, the court found Stewart’s possession of the machine guns could not be linked to an effect on interstate commerce. By crafting his own guns and working out of his own home, Stewart functioned outside the commercial gun market and did not have any effect on it, the court reasoned: “Thus, the link between Stewart’s activity and its effect on interstate commerce is simply too tenuous to justify federal regulation.”

    The appeals court found Stewart’s case also failed the other two Morrison tests. It contained no jurisdictional element, anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute.

    Nothing in the legislative history of federal firearms statutes address the relationship between mere possession of firearms and interstate commerce, the appeals court continued. Instead the legislative findings focus primarily on the need for federal enforcement where firearms cross state and international borders, and are thus difficult for individual states to regulate on their own. The legislative findings supporting the Gun Control Act of 1968 address the need for federal regulation to “adequately enable the states to control the firearms traffic within their own borders through the exercise of their police power.”

    “Nothing in the legislative history suggests that Congress ever considered the impact of purely intrastate possession of homemade machine guns on interstate commerce, and there is no reason to assume that prohibiting local possession of machine guns would have the same national and commercial consequences as prohibiting the interstate and foreign traffic in firearms. We therefore cannot import these earlier legislative finds to give section 922(o) constitutional ground,” the appeals court found.

    Conviction Reversed

    “Based on the four-factor Morrison test, section 922(o) cannot be viewed as having a substantial effect on interstate commerce. We therefore conclude that section 922(o) is unconstitutional as applied to Stewart,” the court declared. Further, Stewart’s conviction for machine gun possession under section 922(o) was reversed as an “unlawful extension of Congress’ commerce power.” His conviction for possession of firearms by a convicted felon was, however, affirmed.

    One judge out of the three judge panel however dissented in regard to the reversal. Judge Restani adopted the reasoning of the Seventh Circuit in United States v. Kenney, 91 F.3d 884 (7th Cir. 1996), which finds that the regulation of possession, as well as transfer, of machine guns is part of Congress’ long-standing efforts to regulate the trade in machine guns, that is, to regulate the whole of the economic activity of trade in machine guns.

    “Congress’ chosen method in section 922(o) was to totally eliminate the demand side of the economic activity by freezing legal possession at 1986 levels, an effect that is closely entwined with regulating interstate commerce even as applied to purely intrastate possession of machine guns resulting from home manufacture.

    “Allowing home manufacture is clearly not within the intent of section 922(o) and would upset Congress’ entirely lawful plan to regulate trade in machine guns,” Justice Restani reasoned.

    Decision Reversed on Remand

    The case came before the U.S. Ninth Circuit Court of Appeals once again three years later in 2006, when, the U.S. Supreme Court granted a request to review the earlier Stewart decision and subsequently vacated it and sent it back to the Ninth Circuit for review in light of the Supreme Court decision in a subsequent case, Gonzales v. Raich, 125 S. Ct. 2195 (2005) to see whether Congress can use its commerce power to ban possession of home-made machine guns.

    In Raich, the Supreme Court considered whether the Controlled Substances Act could constitutionally be applied to the possession of marijuana authorized by a physician’s prescription dispensed in accordance with state law. Raich had been growing marijuana solely for her own use. “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market...” the Supreme Court said.

    The Ninth Circuit justices said Raich forces a reconsideration of its earlier decision. “Like the possession regulation in the Controlled Substances Act, the machine gun possession ban fits within a larger scheme for the regulation of interstate commerce in firearms,” the court wrote. “Guns, like drugs, are regulated by a detailed and comprehensive statutory regime designed to protect individual firearms ownership while supporting federal, state and local law enforcement officials in their fight against crime and violence.

    “Just as the Controlled Substances Act classifies substance 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 classifies weapons for differential treatment as well. Some firearms are freely transferable, others must be registered and, still others (like machine guns) are largely banned,” the Ninth Circuit justices wrote.

    Raich stands for the proposition that Congress can ban possession of an object where it 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,” the justices reasoned in their reversal of their earlier opinion.

    While it had previously concluded that Stewart’s activities alone did not have a substantial effect on interstate commerce, since the Raich decision, the court said the proper focus is not on Stewart and his unique homemade machine guns, but on all homemade machine guns 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,” the court said.

    “We have no doubt that it did. The market for machine guns is established and lucrative, like the market for marijuana. There 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.

    “It doesn’t matter...that the machine guns Stewart manufactured were unique. Those seeking machine guns care only whether the guns work effectively - whether they discharge large amounts of ammunition with a single trigger pull to the extent that homemade machine guns function like commercial machine guns, it doesn’t matter whether they do so in a unique way; as economic substitutes, they are interchangeable,” the justices now decided.

    Homemade Guns Can Effect Interstate Commerce

    “We therefore hold that Congress had a rational basis for concluding that in the aggregate, possession of homemade machine guns could substantially affect interstate commerce in machine guns. 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.

    Quoting from Raich, the court concluded: “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 can constitutionally be applied to Stewart’s possession of homemade machine guns.”

    Therefore, the court reversed its earlier decision and affirmed Stewart’s conviction under section 922(o).

    As a side note, Stewart had also mounted a Second Amendment challenge to his conviction, arguing that the Second Amendment guaranteed him the right to possess machine guns, as well as the right to possess firearms generally despite his prior felony conviction. As it did during Stewart’s first appeal three years earlier, the court held that this claim is squarely precluded by Silveira v. Lockyer, 312 F.3d 1052 (also decided by the Ninth Circuit in 2002) which held that the Second Amendment doesn’t confer an inalienable individual right to keep and bear arms.

    The decision in the Stewart case applies only in the Ninth Circuit. It is not an opinion with nationwide effect. Only those opinions rendered by the U.S. Supreme Court have nationwide effect. The Ninth Circuit, however, is the largest of the 13 judicial circuits with 28 judgeships, so its opinions have influence on the other districts.

    The author publishes two of the small arms industry’s most widely read trade newsletters. The International Firearms Trade covers the world firearms scene, and The New Firearms Business covers the domestic market. He also offers FFL-mailing lists to firms interested in direct marketing efforts to the industry. He may be reached by e-mail at: FirearmsB@aol.com.

    This article first appeared in Small Arms Review V10N4 (January 2007)
    and was posted online on December 21, 2012


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