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Industry News: February 2002

By Robert M. Hausman

Judges Rule Federal Machine Gun Ban Constitutional

The 1986 federal machine gun ban (which prohibited registration and transfer of full-auto firearms made after May 9, 1986) violates neither the Second Amendment of the Bill of Rights, nor the Interstate Commerce Clause of the US Constitution, a three-judge panel ruled in late August.

In a published opinion of the US Court of Appeals for the tenth circuit, Circuit Judges Ebel, Anderson and Murphy rejected an appeal filed by defendant/appellant John Lee Haney, while citing controlling Tenth Circuit precedent. Haney was convicted of possessing two unregistered machine guns. The defendant had apparently decided to challenge the federal machine gun ban on his own.

The case began when Haney walked into a police station, engaged an officer in conversation, and told him that he owned semi-automatic and fully automatic firearms. He stated that they were not licensed and that the federal government lacks authority to require him to get a license. Through a combination of Haney’s consent and a warrant, two fully-automatic guns were found in Haney’s car and house. Haney also had literature on how to convert a semi-automatic gun to fire full-auto. Haney had converted one of the guns himself and had constructed the other out of parts. He also admitted possessing them.

Haney was indicted for possessing two machineguns in violation of federal law. He proceeded to a jury trial, was found guilty, and sentenced to thirty-three months’ of imprisonment. On his appeal, he asserted the federal machine gun ban violates the Second Amendment and the Commerce Clause of the US Constitution.

The part of federal law under which Haney was convicted is Section 922(o) of Title 18 of the US Code that states:

•1. Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

•2. This subsection does not apply with respect to-
        •1. a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a state, or a department, agency, or political subdivision thereof; or

        •2. any lawful transfer or lawful possession of a machinegun that was lawfully possessed before May 19, 1986.

The Second Amendment reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In rejecting Haney’s argument on appeal, the Tenth Circuit justices held that a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state’s ability to maintain a well-regulated militia. Thus, in effect, the court said there is no individual right to keep and bear arms.

Cited Cases

In reaching its decision, the appeals court cited two twentieth century Supreme Court cases as justification. In US v. Miller (1939) the court held that “in the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than eighteen inches in length has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

Author Hausman’s note: In his comprehensive guide to book, Firearms Law Deskbook, attorney Stephen Halbrook says that in the Miller decision, the Supreme Court avoided determining whether a short-barreled shotgun may be taxed and subjected to stringent registration requirements under the National Firearms Act consistent with the Second Amendment. In fact, he writes the lower district court had declared the Act unconstitutional on its face as in violation of the Second Amendment, and thus no evidence was in the record that such shotgun was an ordinary military arm.

“The Miller court did not suggest that the possessor must be a member of the militia or National Guard, asking only whether the arms could have militia use. The private, individual character of the right protected by the Second Amendment went unquestioned,” Halbrook writes.

The Haney appeals court also mentioned Lewis v. US (1980), where it said, “the court held that the laws prohibiting a felon from possessing a firearm do not violate the Due Process Clause” (the constitutional provision that prohibits the government from unfairly or arbitrarily depriving a person of life, liberty or property). The court noted the laws “are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties.” The Haney appeals court added the Supreme Court cited the Miller decision, which it characterized as holding that “the Second Amendment guarantees no right to keep and bear a firearm that does not have some reasonable relationship to the preservation or efficiency of a well regulated militia.”

The appeals court also cited two of its Tenth Circuit opinions. In US v. Oakes, (1977) a Second Amendment challenge to the federal law criminalizing possession of an unregistered machinegun was rejected. The court in that case, found no evidence that the firearm in question was connected with a militia, even though the defendant was nominally a member of the Kansas militia and the “Posse Comitatus,” a militia-type organization registered with the state. Since the defendant and his firearm were connected with a non-state militia, the court concluded the prosecution did not violate the Second Amendment.

The Tenth Circuit also noted its most recent pronouncement on the Second Amendment was in US v. Baer (2000) in which the court rejected a “time worn” Second Amendment challenge to the federal felon-in-possession law, noting “the circuits have consistently upheld the constitutionality of federal weapons regulations like (this one) absent evidence that they in any way affect the maintenance of a well regulated militia.”

Militia Membership

Claiming it is doing, “simply a straightforward reading of the text of the Second Amendment,” the tenth circuit justices held, “a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state’s ability to maintain a well-regulated militia.”

The appeals court further said it is clear that § 922(o), the provision under which Haney was convicted, “is factually constitutional.” The provisions of that section set forth a specific exemption for possession of a machinegun “under the authority of” a state. “Haney does not contend that his possession of the machineguns at issue in this case was under the authority of Oklahoma” (his home state), the court said.

“Nor has Haney proven several facts logically necessary to establish a Second Amendment violation. He must show (1) he is part of a state militia; (2) the militia, and his participation therein, is “well-regulated” by the state; (3) machineguns are used by that militia; and (4) his possession of the machinegun was reasonably connected to his militia service. None of these are established,” the court ruled.

“The militia of the Second Amendment is a governmental organization,” the appeals court continued. “Haney is not part of the ‘well regulated’ militia, that is, a ‘militia actively maintained and trained by the states.’ At best, Haney claims to be a member of the ‘unorganized’ (and therefore not a ‘well regulated’ state” militia.”

While mentioning that Title 44, §41 of the Oklahoma Statutes divide the population of able-bodied persons between the ages of seventeen and seventy into the National Guard, the Oklahoma State Guard, and the “Unorganized Militia,” Haney did not claim to be a member of the National Guard or the Oklahoma State Guard, and he “has submitted no evidence that the Oklahoma unorganized militia and his participation therein are well regulated by the State of Oklahoma. Nor has Haney submitted any evidence that machineguns of the sort he possessed are used by the militia, or that his possession was connected to any sort of militia service,” the court decided.

Commerce Clause Challenge

In respect to Haney’s Commerce Clause challenge, the court said that under the Commerce Clause, Congress may regulate three broad categories of activities: First, Congress may regulate the use of the channels of interstate commerce. Second Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may only come from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

Haney had argued that § 922(o) exceeds Congress’ power under the Commerce Clause by regulating purely intrastate activity. But the appeals court said “that all of the courts of appeals that have addressed this issue have upheld § 922(o) as a valid enactment under the Commerce Clause.

Further, the court said, that banning possession of post-1986 machineguns “is an essential part of the federal scheme to regulate interstate commerce in dangerous weapons. Congress has found that ‘firearms and ammunition move easily in interstate commerce,’ and has therefore taken numerous steps to regulate these transactions. Machineguns legally possessed may not be transferred in commerce, without approval from the Secretary of the Treasury, and a substantial tax must be paid. Thus, there is a general regulatory scheme to regulate interstate commerce in firearms, particularly including machineguns.

“But focusing on weapons only as they move in interstate commerce has not been effective to curb the interstate flow of these weapons. Rather, Congress has found it necessary also to regulate intrastate activities as a way of addressing the interstate market in machineguns. Similar statues regulate intrastate possession of other extremely dangerous devices such as biological weapons, nuclear material and ‘semi-automatic assault weapons.’ There is no question that the market in firearms generally is heavily interstate-indeed, international-in character.

“Even purely intrastate possession and transfers of machineguns have a substantial effect on interstate commerce. Congress has concluded that regulating intrastate possession and transfers is necessary to control the interstate market in these weapons. Moreover, Congress has found that the interstate market itself is significant. It follows that intrastate possession and transfers have a substantial effect on interstate commerce,” the court wrote.

Though it found no legislative history explaining § 922(o), under which Haney was charged, the court found rationality for its conclusions in another section of federal law, specifically § 922(v), which bans manufacturing, transferring or possessing certain ‘semi-automatic assault weapons.’ “To restrict interstate commerce in ‘semi-automatic assault weapons,’ particularly into states that prohibit them, Congress imposed criminal liability for those activities which fuel the supply and demand for such weapons,” the court explained. “The ban on possession is a measure intended to reduce the demand. After surveying the extensive congressional testimony on how common it was for individuals to purchase ‘semi-automatic assault weapons’ in one state and bring them to another, the court concluded (in a challenge brought by gun manufacturer Navegar, Inc. to the 1994 federal ban on manufacture and sale of so-called “semi-automatic assault weapons” to the general public) ‘Congress was well aware that there was significant interstate traffic in semi-automatic assault weapons’ and that state laws and existing federal firearms regulation were inadequate to control the flow of these weapons across state lines.’ It likewise is rational for Congress to conclude that intrastate machinegun possession substantially affects interstate commerce in those weapons.”

In conclusion, the court held that the federal machinegun ban is constitutional and does not violate either the Second Amendment or the Commerce Clause, and therefore affirmed Haney’s conviction. Haney was represented on the appeal by an assistant federal public defender.

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. Visit He may be reached at:


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