Metropolitan News-Enterprise


Monday, July 3, 2006


Page 1


Ninth Circuit Says Congress Can Ban Homemade Machineguns


By a MetNews Staff Writer


Congress can outlaw the possession of homemade machine guns under its power to regulate interstate commerce, the Ninth U.S. Circuit Court of Appeals held Friday.

The court affirmed Robert Stewart’s conviction on one count of felony possession of firearms and five counts of unlawful possession of a machinegun, which was based on evidence that Stewart sold kits which could be assembled into .50-caliber machine guns.

In addition to assembling the parts, one of the parts had to be “machined” in order to produce a working firearm, according to testimony.

Stewart advertised the kits on the Internet and in the national magazine “Shotgun News.”

A Bureau of Alcohol, Tobacco, Firearms and Explosives agent purchased one of Stewart’s kits and found that it could be readily converted into an illegal firearm. Agents searched Stewart’s home, where they found numerous rifle kits and 31 firearms, including five machineguns which Stewart had machined and assembled.


He was not charged with respect to his advertising or selling the kits.

Stewart appealed his conviction on the grounds that the law making it illegal to “transfer or possess a machinegun” was not a valid exercise of Congress’s power to regulate commerce, and violated his Second Amendment rights to keep and bear arms.

In a previous opinion in the same case, the Ninth Circuit panel agreed with Stewart, holding that possession of a homemade machinegun was not inherently commercial in nature, and that the effect of Stewart’s possessing such guns on interstate commerce was attenuated.

The U.S. Supreme Court then decided the case of Gonzales v. Raich, 125 S. Ct. 2195 (2005) in which it held that Congress’ commerce power extended far enough to allow it to prohibit California residents from growing and using their own marijuana for medicinal purposes pursuant to doctor’s recommendation in compliance with California law. 

Supreme Court

The Supreme Court then granted certiorari in Stewart, vacated the Ninth Circuit’s original decision, and remanded the case back for reconsideration in light of Raich.

Judge Alex Kozinski, writing for the Ninth Circuit on remand, said, “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.”

On remand, the defense argued that Raich did not apply because the guns were unique and only parts of them entered into interstate commerce. 

Kozinski responded:

“After Raich, the proper focus . . . is not Stewart and his unique homemade machineguns, but all homemade machineguns 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.

“Homemade guns, even those with a unique design, can enter the interstate market and affect supply and demand. We therefore hold that Congress had a rational basis for concluding that in the aggregate, possession of homemade machineguns could substantially affect interstate commerce in machineguns.”

The court held that Raich did not affect its previous opinion that precedent clearly showed that Stewart’s Second Amendment rights had not been violated.

Senor Judge Thomas G. Nelson and Chief Judge Jane A. Restani of the Court of International Trade, sitting by designation, joined in the opinion.

The case is United States v. Stewart, 02-10318.


Copyright 2006, Metropolitan News Company