United States v. Robert Wilson Stewart, Jr.

Opinion by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge RESTANI.

We decide whether Congress can, under its Commerce Clause power, prohibit the mere possession of homemade machine-guns.

Facts

Robert W. Stewart sold parts kits for the manufacture and assembly of Maadi-Griffin .50 caliber rifles; he advertised the kits on the Internet and in Shotgun News, a national firearms magazine. Stewart believed the kits were legal to sell because the receivers on the rifles had not yet been completely machined and the rifles were thus not usable as firearms. An agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) discovered that Stewart had a prior conviction for possession and transfer of a machinegun and decided to investigate Stewart’s business. Another agent, acting undercover, purchased one of Stewart’s kits and determined that it could be “readily ... converted” into an unlawful firearm, in violation of 18 U.S.C. § 922 (a)(1)(A) and § 921(a)(3)(A). Based on this information, the ATF agent secured a federal search warrant for Stewart’s residence.

*1134 In addition to numerous rifle kits, the ATF search also turned up thirty-one firearms, including…

concurring in part, dissenting in part:

I dissent from that part of the majority’s opinion which finds 18 U.S.C. § 922 (o) un *1143 constitutional as applied to a machine gun partially home manufactured from legal parts. I agree that this case is not controlled by prior circuit precedent, which relies on earlier illegal transfers. See, e.g., United States v. Rambo, 74 F.3d 948 (9th Cir.1996). Rather, I adopt 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’s 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. Id. at 890 (upholding the constitutionality of § 922(o) as a regulation of activity substantially affecting interstate commerce).

Unlike the majority, and like the court in Kenney , I find Wickard v. Filburn, 317 U.S. 111 , 63 S.Ct. 82 , 87 L.Ed. 122 (1942) controlling. Possession of machine guns, home manufactured or not, substantially interferes with Congress’s long standing attempts to control the interstate movement of machine guns by…

348 F.3d 1132 UNITED STATES of America, Plaintiff-Appellee, v. Robert Wilson STEWART, Jr., Defendant-Appellant. No. 02-10318. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 5, 2003 — Pasadena, California. Filed November 13, 2003. Thomas E. Haney, Phoenix, AZ, argued for the defendant-appellant. Frederick A. Battista, Assistant United States Attorney, Phoenix, AZ, argued for the plaintiff-appellee. Paul K. Charlton, United States Attorney, Phoenix, AZ, and Michael T. Morrissey, Chief, Appellate Section, Phoenix, AZ, joined him on the briefs. Appeal from the United States District Court for the District of Arizona; Roslyn O. Silver, District Judge, Presiding. D.C. No. CR-00-00698-ROS. Before: ALEX KOZINSKI and Thomas G. NELSON, Circuit Judges, and JANE A. RESTANI, * Judge. Opinion by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge RESTANI. OPINION KOZINSKI, Circuit Judge: 1 We decide whether Congress can, under its Commerce Clause power, prohibit the mere possession of homemade machineguns. Facts 2 Robert W. Stewart sold parts kits for the manufacture and assembly of Maadi-Griffin.50 caliber rifles; he advertised the kits on the…