United States v. Kirk

REVISED
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 94-50472

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM JOSEPH KIRK,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas

February 3, 1997
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS,
JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
BENAVIDES,* STEWART, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:
By virtue of an equally divided en banc court, the judgment of the district court is
AFFIRMED.

*
Judge Benavides was recused from consideration of this case.
ROBERT M. PARKER, Circuit Judge, joined by POLITZ, Chief Judge,
KING, DAVIS, WIENER, STEWART, and DENNIS, Circuit Judges, would
affirm for the following reasons:

In my view, there was a rational basis for Congress to

conclude that post-1986 incidents of manufacture, transfer, and

possession of machineguns fall within its power to regulate

interstate commerce. Every circuit that has examined 18 U.S.C. §

922(o) -- both before and after United States v. Lopez, ___ U.S.

___, 115 S. Ct. 1624, 131 L. Ed. 2d 262 (1995) -- has determined

that § 922(o) does not exceed the authority granted to Congress by

the Commerce Clause.**

A careful reading of Lopez compels this conclusion. In Lopez,

the Supreme Court held that Congress exceeded its Commerce Clause

power by enacting § 922(q) which criminalizes possession of a

firearm within 1000 feet of the grounds of a school, see §

921(a)(25), a small geographic area finitely circumscribed and

related to education, a uniquely local concern. In contrast, the

extensive history of federal firearm regulation and the national

scope of § 922(o) distinguishes it from § 922(q). It is important

to the understanding of Lopez that the Supreme Court intended to

establish an outer limit to congressional authority, not to retreat

from well-established Commerce Clause precedent. United States v.

**
See United States v. Rybar, ___ F.3d ___ (1996 WL 740084 (3d
Cir.(Pa.)); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.
1996); United States v. Kenney, 91 F.3d 884 (7th Cir. 1996); United
States v. Rambo, 74 F.3d 948 (9th Cir.), cert. denied, ___ U.S.
___, 117 S. Ct. 72 (1996); United States v. Wilks, 58 F.3d 1518
(10th Cir. 1995); United States v. Hale, 978 F.2d 1016 (8th Cir.
1992), cert. denied, 507 U.S. 997, 113 S. Ct. 1614, 123 L. Ed. 2d
174 (1993).

2
Kenney, 91 F.3d 884, 887 (7th Cir. 1996). As Chief Justice

Rehnquist noted, “[S]ome of our prior cases have taken long steps

down that road, giving great deference to congressional action.

The broad language in these opinions has suggested the possibility

of additional expansion, but we decline here to proceed any

further.” Lopez, ___ U.S. at ___ , 115 S. Ct. at 1634.

Simply stated, I believe that we should join the other

circuits in holding that Congress had a rational basis for

concluding that the manufacture, transfer and possession of

machineguns substantially affect commerce and § 922(o) therefore is

constitutional.

3
PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by POLITZ, Chief
Judge, DAVIS and WIENER, Circuit Judges, would affirm for the
following reasons:

We are persuaded that a legislative judgment that possession

of machine guns acquired after 1986 has a substantial effect on

interstate commerce, particularly by facilitating the trade in

illegal drugs, is supported by our judicial experience and facts

about machine guns and interstate criminal activity common to

public discourse. Congress did not exceed its power under the

Commerce Clause, and we today correctly affirm this conviction.

I.

This case ultimately turns on the role of congressional

findings in judicial review of congressional exercises of its

commerce power. Our opinion in United States v. Lopez, 2 F.3d 1342

(5th Cir. 1993), aff’d, 115 S. Ct. 1624 (1995), stressed the

absence of congressional findings of the relationship between

Congress’s regulation of guns near schools and its commerce power.

We required that Congress justify its authority by findings. The

Supreme Court affirmed our holding that Congress lacked authority

to regulate possession of a gun in proximity to a school, but it

did not adopt our rationale. Rather, the Court shied away from so

direct an imposition of procedure upon the Congress. Nonetheless,

the court did give weight to the absence of congressionally

identified ties between the regulation and the commerce power. 115

S. Ct. at 1631-32.

Lopez, then, adhered to a rational basis standard of review.

This deferential standard does not insist that Congress actually

4
make factual findings. To the contrary, its tolerance of

hypothetical, judicially supposed purposes and means gives the

rational basis standard its deferential character. Courts can

assume a more activist role in judicial review by refusing to look

to a basis for legislation not identified by Congress. This

elevates the standard of review, according significantly less

deference to Congress. Giving weight to the absence of

congressional findings lies in the middle ground between an

intrusive absolute insistence upon legislative findings and

traditional rational basis inquiry. Congressional findings are not

merely playthings of formalism. They help define the respective

roles of the courts and the Congress and the federal and the state

governments. So the role of findings demands our attention. But

their absence does not end our inquiry. Here Congress made no

findings. We give weight to the absence of findings, but we do not

find their absence controlling. Under Lopez, we must continue to

apply the rational basis test, which asks courts not to set aside

congressional acts as exceeding the Commerce Clause power if the

Congress could have found that the relevant intrastate activity has

a substantial effect on interstate commerce. This deference

respects differences between the fact-finding of courts and

legislative findings, differences of a constitutional order.

Legislative “findings,” relative to judicial findings, are untidy

in their blending of empirical assessment and policy judgments.

The difference reflects the fundamentally different roles of the

judiciary and the Congress. Congress must respond actively to

5
problems faced by political communities; its judgment is accented

by its look to the future and its effort to offer solutions to

social ills. The judicial decision looks backward, responding to

the limits of a case or controversy. We must not forget these

differences in inquiring what the legislature rationally could have

found. Losing sight of these differences risks a blurring of the

respective roles of Congress and the courts, a difference the

rational basis test is intended to respect. On the one hand,

courts have a constitutional duty to scrutinize congressional

actions to ensure that Congress stays within its constitutionally

enumerated powers; “if Lopez means anything, it is that Congress’s

power under the Commerce Clause must have some limits.” United

States v. Rybar, ___ F.3d ___, ___, 1996 WL 740084 at *22 (3d Cir.

1996) (Alito, J., dissenting). On the other hand, we must

discipline our scrutiny to ensure that we are about the business of

judicial review and not the business of social policy. Stated

another way, respecting the policy-making role of majoritarian

legislative bodies is not an empty recitation.

This familiar problem for rational basis review is especially

awkward when the issue is whether an intrastate activity has a

substantial effect on interstate commerce. Unless the Court

follows Justice Thomas away from an effects test, see Lopez, 115 S.

Ct. at 1642-51 (Thomas, J., concurring), we cannot escape this

difficulty. Justice Breyer's elaborate study of education, guns,

and commerce will continue to be commonplace, despite the reality

that judicial searches for data that might have supported a

6
legislative finding raise the troubling prospect of the courts

doing work the Congress ought to have done. See id. at 1659-62

(Breyer, J., dissenting). And as Justice Souter has pointed out,

the doctrine of clear statement offers no escape. See id. at 1655

(Souter, J., dissenting). What the Supreme Court will do with the

meaning of “substantial effect” remains to be seen. These plastic

words may lessen deference to Congress by judicial demands for

empirical evidence as well as normative valuations of state and

federal “interests.” Regardless of that future, according weight

to the absence of legislative findings in close cases fairly

accommodates these competing interests. Cases are at least close

when courts feel the need to conduct elaborate empirical studies to

determine whether the facts support exercise of the federal

commerce power. If the facts were not within our easy reach, this

would be a close case indeed, and the absence of findings would

then tilt the outcome. This simply states a limit upon the role of

the courts in their inquiries into whether there is a rational

basis for a legislative judgment.

II.

In executing the rational basis test, we turn to facts bearing

on the relationship between possession of machine guns and

interstate commerce. The prosecution has not aided our factual

inquiry on this score. But the concern over machine guns was

hardly exotic. To the contrary, concern over both the unique

firepower of automatic weapons and the recent increase in their

number was the subject of public discussion, as a simple repair to

7
the popular press makes plain. That exercise also sheds light on

the type of data and expert opinion available to the Congress. A

1985 article in a national weekly magazine alerted Americans to the

dangerous proliferation of machine guns and reported that “[t]he

MAC-10 has become the side arm of choice for ‘cocaine cowboys’ and

other drug smugglers.” Machine Gun U.S.A., NEWSWEEK, October 14,

1985, at 46. According to the article, American gun dealers

imported an average of 55,000 machine guns during the early 1980s.

In 1988, two years after the passage of § 922(o), the International

Association of Chiefs of Police estimated that criminals possessed

between 650,000 and two million automatic and semi-automatic

weapons. The Arms Race in Your Own Back Yard, U.S. NEWS & WORLD

REPORT, April 4, 1988, at 24. Presumably, the great percentage of

these weapons were semi-automatic weapons and not machine guns. In

1987, the DEA “seized an average of one machine gun a day,” which

led the press to report that “most of this ferocious firepower is

deployed in connection with narcotics trafficking.” Id. This sort

of information, easily accessible to Congress, would support a

legislative judgment that the possession of machine guns interferes

with federal drug enforcement; that regulating the simple

possession of machine guns acquired after 1986 is necessary to stop

the rapid growth of the pool of supply. Indeed, there is reason to

think that Congress had these sorts of figures in mind when it

enacted § 922(o). See 1986 U.S.S.C.A.N. 1330 (noting that an

alternative bill “prohibited the transfer and possession of machine

8
guns, used by racketeers and drug traffickers for intimidation,

murder and protection of drugs and the proceeds of crime”).

The efficacy of § 922(o) also suggests that a legislative

judgment of a strong tie between machine guns and federal crimes

would have been valid. In 1983, ATF seized 871 machine guns and

conversion kits; by 1985, that number had ballooned to 3,263.

NEWSWEEK, October 14, 1985, at 46. After passage of § 922(o),

however, this figure dropped dramatically. There were only 834 ATF

machine gun seizures in fiscal year 1987, as opposed to 2,854

seizures in fiscal year 1986, a decrease of 71 percent.

Semiautomatic Assault Weapons Act of 1989: Hearings before the

Subcommittee on Crime of the Committee on the Judiciary, 101st

Cong., 1st Sess. 354 (1989) (Appendix 9: “The 1986 Machine Gun Law

Works”); Tony Freemantle, Police Groups Warm to Bill on Gun

Control, HOUSTON CHRONICLE, March 19, 1989, at A1. These figures at

least suggest that § 922(o) succeeded in substantially reducing the

number of machine guns in the hands of criminals encountered by

federal law enforcement. And the striking effectiveness of federal

enforcement of the congressional freeze of the machine gun market

gives us reason to think that in 1986 Congress could have mustered

facts to support its legislative judgment that the ban would be

effective in reducing the availability of machine guns to those

confronting federal law enforcement, particularly in the drug

trade. That other inferences might be drawn from the data or that

there is conflicting data is no answer because our question is not

9
what judges think or prefer, but what rational judgment Congress

could have made.

The bill that enacted § 922(o) also imposed on drug

traffickers who use a machine gun a special ten-year sentence

rather than the standard five-year sentence for other firearms.

Pub. L. No. 99-308 § 104, 100 Stat. 456, 457 (May 19, 1986)

(amending 18 U.S.C. § 924(c)(1)). Two years later, Congress

thought it prudent to add another twenty years to this penalty.

Pub. L. No. 100-690 § 6460, 102 Stat. 4373, 4373 (Nov. 18, 1988).

This concerted attention to the dangers of automatic weapons is at

odds with the suggestion that Congress’s freeze on the market in

machine guns rests on an irrational judgment about the ties between

machine guns and drug dealers and about the effects of tolerating

their possession after 1986. Federal law enforcement recognizes

the importance of having such powerful weapons in confrontations

with drug traffickers. In 1988, DEA, the primary enforcement

agency in the regulation of drugs, moved away from shotguns and

made 9-mm, 32-round weapons that can be fired automatically its

“primary” weapons. U.S. NEWS & WORLD REPORT, April 4, 1988, at 24.

These developments make it clear that it is at least rational to

conclude that federal regulation of a distinct market in machine

guns is part and parcel of federal drug regulation.

Judge Parker in his opinion for the panel found it important

that Congress has done more here than outlaw simple possession of

a machine gun. We agree. Not every possession is prohibited.

Rather, the Congress has left lawful the possession of machine guns

10
manufactured before 1986 and lawfully possessed before that date.

It is a crime to transfer any machine gun after 1986 or to possess

a machine gun manufactured after that date. That is, Congress

froze in place the market in machine guns. Judge Garwood made this

point in his opinion for the panel in Lopez:

Section 922(o) is restricted to a narrow class of highly
destructive, sophisticated weapons that have been either
manufactured or imported after enactment of the Firearms
Owners’ Protection Act, which is more suggestive of a
nexus to or [e]ffect on interstate or foreign commerce
than possession of any firearms whatever, no matter when
or where originated, within one thousand feet of the
grounds of any school.

2 F.3d at 1356 (emphasis in original) (footnote omitted). It is

true that simple possession is the stated offense under the

statute, but by excepting activity occurring before 1986, a

proscribed possession, by definition, must have been the product of

a post-1986 transfer, interstate or intrastate (putting to one side

the remote cases of worn guns and, for the moment, cases involving

conversion into fully automatic guns). Such careful regulation

reflects legislative deliberation we are bound to respect.

Machine guns possess a firepower that outstrips any other kind

of gun. Persons knowledgeable about firearms, such as those who

campaign for repeal of gun regulations, usually emphasize that

machine guns stand in a class of their own. See Assault Weapons:

A View from the Front Lines: Hearing before the Committee on the

Judiciary, 103d Cong., 1st Sess. 183, 185-86 (1994) (emphasizing

that the cosmetic similarities between machine guns and semi-

automatic assault weapons belie functional differences that make

assault weapons more like hunting and target rifles than like

11
machine guns). The destructive capacity of machine guns puts them

in the same category as explosives, which the federal government

has heavily regulated for over twenty-five years, except machine

guns have little lawful use. See Organized Crime Control Act of

1970, Title XI, § 1102(a), Pub. L. No. 91-452, 84 Stat. 953-55

(codified as amended at 18 U.S.C. §§ 842-843) (prohibiting, among

other things, the storage of explosives without a federal permit);

United States v. Dawson, 467 F.2d 668, 673 (8th Cir. 1972) (“There

being a rational basis upon which Congress properly could have

determined that the misuse of explosive materials is one activity

which, as a class, affects commerce, the Government need not

specifically allege and prove a connection between interstate

commerce and the conduct made criminal by § 842 (h).”), cert.

denied, 410 U.S. 956 (1973).

This fundamental difference between machine guns and other

guns is reflected in the long history of machine-gun regulation by

Congress. Initially, Congress used the taxing power to insist upon

machine gun registration. See National Firearms Act of 1934, Pub.

L. No. 474 §§ 2-6, 48 Stat. 1236, 1237-38. It soon turned to the

Commerce Clause as a basis for restricting the market in machine

guns. See Federal Firearms Act of 1938, Pub. L. No. 785, 52 Stat.

1250. That law remained in effect for thirty years, when Congress

enacted the Omnibus Crime Control and Safe Streets Act of 1968,

Pub. L. No. 90-351, 82 Stat. 197 (current version at 18 U.S.C. §§

921-928), of which § 922(o) is now a part. Machine guns, then,

12
have not been the exclusive regulatory domain of the states. Their

lethal force has produced a national response.

III.

Those who urge that this legislation is unconstitutional are

at pains not to undercut the constitutionality of laws prohibiting

the simple possession of drugs. Yet it is difficult to conclude

that Congress could not have rationally found that machine guns

play a large role in major drug transactions and thus that the

availability of these weapons of war has a substantial effect on

the interstate traffic in drugs. Congress has acted on that effect

in providing that the use of a gun, otherwise lawful, in a drug

transaction brings substantially increased penalties. 18 U.S.C. §

924(c)(1). We have repeatedly recognized firearms as one of the

drug dealer’s “tools of the trade.” See United States v. Martinez,

808 F.2d 1050, 1057 (5th Cir.), cert. denied, 481 U.S. 1032 (1987).

The firepower of a machine gun puts it in a quite different

category from the handguns, shotguns, and rifles so popular with

sportsmen. Its continuous fire puts the machine gun on a different

plane from the semi-automatic. The routine cases on the criminal

docket in federal courts make the connection between machine guns

and major drug transactions undeniable. Whether the effect is

“substantial” is less certain, as we have explained. See supra at

5-7. But we need conduct no elaborate study. As shown above, the

writing of the popular press and the scale of congressionally-set

penalties demonstrate that the baseline of public debate assumes a

heavy use of machine guns in drug-related crimes. Significantly,

13
our cases provide anecdotal information that meshes with this data

and together would make § 922(o) a rational way to cabin both

violence attending the drug trade and the trade itself.*** The

***
A brief survey of recent federal cases reveals many
examples. See, e.g., Smith v. United States, 113 S. Ct. 2050, 2052
(1993) (defendant in possession of a fully automatic MAC-10 and
MAC-11 machine gun attempts to buy cocaine by selling the MAC-10,
a gun that “apparently is a favorite among criminals” because it
“can fire more than 1,000 rounds per minute”); United States v.
Powell, 469 U.S. 57, 59 (1984) (search of defendant’s car yields,
among other things, two kilograms of cocaine and a machine gun);
County Court v. Allen, 442 U.S. 140, 143 (1979) (loaded machine gun
and more than a pound of heroin found in the trunk of defendants’
car); United States v. Jones, 102 F.3d 804, 806 (6th Cir. 1996)
(cocaine dealers attempt to sell federal agents a MAC-10, a MAC-11,
and an AK-47, two of which have obliterated serial numbers); United
States v. Agis-Meza, 99 F.3d 1052, 1054 (11th Cir. 1996) (two
defendants charged with violation of § 922(o) plead guilty to
possession of marijuana); United States v. Alerta, 96 F.3d 1230,
1233 (9th Cir. 1996) (two brothers arrested for methamphetamine
distribution are found in possession of two fully automatic
weapons: a MAC-10 and a converted TEC-9); United States v.
Hawthorne, 94 F.3d 118, 120 (4th Cir. 1996) (automatic pistols used
during drug transactions); U.S. v. Ulloa, 94 F.3d 949, 950-51 (5th
Cir. 1996) (defendant trading cocaine for five MAC-10’s, 48 M-16’s,
one UZI, and other weapons) petition for cert. filed No. 96-6914
(U.S. November 25, 1996); United States v. Cannon, 88 F.3d 1495,
1505 (8th Cir. 1996) (“The record in this case contains evidence
that a machine gun is a drug dealer's most prized possession.”);
United States v. Moskovits, 86 F.3d 1303, 1311 (3d Cir. 1996)
(affirming a finding that a defendant convicted of distributing
cocaine committed perjury when he denied owning a machine gun)
petition for cert. filed No. 96-6646 (U.S. September 17, 1996);
United States v. Blue, 78 F.3d 56, 58 (2d Cir. 1996) (DEA agents
discover a machine gun under a mattress while searching an
apartment during a cocaine investigation); United States v. Garcia,
77 F.3d 274, 275 (9th Cir. 1996) (sheriff’s deputies discover a
machine gun in “a typical stash house where drugs are stored and
weapons are kept to protect the merchandise”); United States v.
Buchanan, 70 F.3d 818, 824-25 (5th Cir. 1995) (9mm fully automatic
pistol found in car with 280 grams of crack cocaine), cert. denied,
116 S. Ct. 1366 (1996); United States v. Murphy, 69 F.3d 237, 239
(8th Cir. 1995) (defendant convicted of attempt to manufacture
methamphetamine, use of a firearm in relation to a drug offense,
and possession of a machine gun), cert. denied, 116 S. Ct. 1032
(1996); United States v. Brantley, 68 F.3d 1283, 1286 (11th Cir.
1995) (defendant convicted of both possession of cocaine with
intent to distribute and use of a fully automatic firearm in the

14
quantity of machine guns that federal courts encounter in drug

commission of a drug offense), cert. denied, 116 S. Ct. 964, 116 S.
Ct. 1334 (1996); United States v. Zermeno, 66 F.3d 1058, 1060 (9th
Cir. 1995)
(marijuana, packaging materials, money counters, camouflage gear,
two assault rifles, a machine gun, and 1,550 rounds of ammunition
found in “stash house”); United States v. Luciano-Mosquera, 63 F.3d
1142, 1149 (1st Cir. 1995) (M-16 carried onto beach during off-
loading of cocaine base from boat), cert. denied, 116 S. Ct. 1879
(1996); United States v. Melendez, 60 F.3d 41, 44 (2d Cir. 1995)
(heroin trafficking operation accumulates a number of machine guns
and other firearms that were used to protect its operations), cert.
denied, 116 S. Ct. 1020, 116 S. Ct. 900 (1996), 116 S. Ct. 429, 116
S. Ct. 258 (1995); United States v. Messino, 55 F.3d 1241, 1245
(7th Cir. 1995) (cocaine dealer sells a fully automatic machine gun
with a silencer to a confidential informant); United States v.
Davis, 53 F.3d 638, 639 (4th Cir. 1995) (probation of defendant
who pled guilty to distributing cocaine revoked after he is seen
carrying a machine gun on a college campus); United States v.
Taffe, 36 F.3d 1047, 1048-49 (11th Cir. 1994) (UZI machine pistol
equipped with a silencer used in heist of three bales of cocaine
and fired at police officers); United States v. Thomas, 12 F.3d
1350, 1361-62 (5th Cir. 1994) (AR-15 rifle modified to fire as a
machine gun used by defendant for protection because of “his line
of business” in conspiracy to distribute cocaine, amphetamine,
methamphetamine and marijuana), cert. denied, 114 S. Ct. 1861, 114
S. Ct. 2119 (1994); United States v. Garcia, 997 F.2d 1273, 1277
(9th Cir. 1993) (machine gun used to protect and embolden drug
dealer found in house with a kilo of heroin, 4.5 kilos of cocaine,
and 1.24 grams of cocaine base); United States v. Sims, 975 F.2d
1225, 1230 (6th Cir. 1992) (ATF agents discover two AR-15 rifles,
converted to fire fully automatically, and 257 rounds of ammunition
in the back seat of a car in connection with the arrest of
defendants attempting to buy $337,500 worth of cocaine); United
States v. Capote-Capote, 946 F.2d 1100, 1102-04 (5th Cir. 1991)
(machine gun used to protect kilogram of cocaine), cert. denied,
504 U.S. 942 (1992); United States v. Moore, 919 F.2d 1471 (10th
Cir. 1990) (loaded British Sten machine gun found in open closet of
room containing cocaine, ziplock bags, weighing scale, dealing
records, $3,400, and a calculator); United States v. Rogers, 921
F.2d 1089 (10th Cir. 1990) (same facts as recited in Moore),
modified, 925 F.2d 1285 (10th Cir.), cert. denied, 501 U.S. 1211
(1991); United States v. Lucas, 932 F.2d 1210, 1223-24 (8th Cir.)
(along with thirteen other guns, machine gun “kept at the ready” to
safeguard crack house and facilitate illegal manufacture and trade
in crack cocaine), cert. denied, 502 U.S. 869, 502 U.S. 949, 502
U.S. 991 (1991), 502 U.S. 1100 (1992); United States v. Matra, 841
F.2d 837, 839 (8th Cir. 1988) (machine gun, along with eight other
weapons, made the crack house a “veritable fortress”).

15
cases is high enough to conclude that Congress would have had a

rational basis for a legislative judgment that prohibiting their

intrastate possession would have a substantial effect on the

interstate commerce in illegal drugs.

This rationale would not “convert the commerce power into a

reserved ‘general federal police power’” (quoting Lopez, 115 S. Ct.

at 1632). As observed, machine guns are very different weapons

from guns without the capability of automatic fire and have been

the subject of federal commerce regulation for nearly sixty years.

We would expect a national rather than a state-by-state regulatory

pattern of, say, anti-tank bazookas, plastic explosives, plutonium,

or other tools of terrorists. Federal regulation of machine guns,

as distinguished from other guns, does not bring similar invasions

of traditional state interests. Although § 922(o) and § 922(q)

both criminalize the possession of certain guns, § 922(o) ought not

be brushed off as a mere “clone” of § 922(q).

Of course, the Lopez Court insisted that we distinguish

between the regulation of crime and the regulation of commercial

activity. 115 S. Ct. at 1630-31. This case differs from Lopez in

the critical respect that criminals use machine guns to evade

regulation of the national drug trade while guns near schools have

a negligible effect on the traditionally local activity of public

education, which is not itself commercial. Crime can be interstate

business. And local intrastate criminal activity can have a

substantial effect on that interstate activity. Indeed, Congress

might rationally conclude that the relationship between “local

16
possession” of machine guns and the drug trade is even more

compelling than the ties between local loan sharking and organized

crime. See Perez v. United States, 402 U.S. 146, 157 (1971)

(“[L]oan sharking in its national setting is one way organized

interstate crime holds its guns to the heads of the poor and rich

alike and siphons funds from numerous localities to finance its

national operations.”).

The judiciary’s role in policing the process of federalism

brings hard calls, including the task of distinguishing national

economic activity from local crime. Lopez is not merely symbolic

jurisprudence. Rather, it announces that there are yet limits upon

Congress’s use of the commerce power to make a federal case out of

traditionally local concerns, particularly in criminal law

enforcement. That said, we part company with the declaration that

§ 922(o) is an invasion of the state’s traditional police power.

That the Congress has attached a criminal penalty to the possession

of a machine gun or storage of explosives does not alone mean that

it has invaded the traditional police power of the states. With

respect, that announces an outcome, not a rationale.

There is no social utility in the distribution of cocaine and

marijuana, and their interstate character is undeniable. It is no

surprise, then, that Congress “regulates” the national market in

these drugs by banning them, a ban that rationally extends to

simple possession. There is little social utility in acquiring

since 1986 operable machine guns or in making them. They are not

sporting weapons; they are weapons of war. They are guns in the

17
same sense that pussycats and tigers are both members of the cat

family. The courts have learned that a machine gun’s destructive

capacity makes it highly useful for protecting commerce in

contraband such as narcotics.

Given the rapid influx of machine guns, it is hardly

irrational to conclude that meaningful regulation of their use in

lines of interstate commerce requires regulation of this intrastate

possession. The attempt to distinguish drugs and machine guns on

the basis of fungibility fails to appreciate the fact that many

guns can easily be converted from semi-automatic to fully

automatic. See, e.g., United States v. Branch, 91 F.3d 699, 736-37

(5th Cir. 1996) (affirming a § 922(o) conviction where the

defendant used conversion kits and instructional books and

videotapes to manufacture fully automatic weapons out of semi-

automatic weapons). News reports describe the process as “so low

tech on some brands that [ATF] agents . . . have seen it done with

a paperclip.” U.S. NEWS & WORLD REPORT, April 4, 1988, at 24. As

with drugs, identifying and tracing the fully automatic nature of

machine guns is often impossible.

Efforts to minimize the consequences of striking down this

statute by reassuring that Congress can cure the defects it finds

by inserting a jurisdictional element are empty of content: for

example, it can provide penalties for possession of weapons that

are “in or affecting commerce.” With deference, this velvet over

the sword in fact erodes the logic of an otherwise not

insubstantial argument. If the present statute cannot be sustained

18
because Congress could not rationally have made a legislative

judgment of the need to freeze the post-1986 market, there is

little federal regulatory scope left; that reality should be

forthrightly acknowledged. If a legislative decision to freeze the

class is irrational, proof that an individual member of the class

had a substantial effect on commerce in a given case is problematic

if “substantial effect” is accorded a constant meaning. So those

who would strike this statute cast themselves as protecting state

interests by insisting that the Commerce Clause empowers Congress

to outlaw only those machine guns where in a specific case the

government proves that the use of the machine gun was in commerce

or affecting commerce. The irony is that this requirement is more

intrusive of state interests than the test we apply and they

reject. It is more tolerant of federal intrusion because it may be

met by showing merely that a gun “has previously traveled in

interstate commerce.” United States v. Bass, 404 U.S. 336, 350

(1971). That is, this minimal nexus to commerce could give

Congress more latitude in exercising its federal commerce power

than the substantial-effects test we have employed here. A case-

by-case inquiry into whether the defendant possessed a gun that was

once in interstate commerce, even “after any number of intermediate

sales within the State and after any lapse of time,” United States

v. Sullivan, 332 U.S. 689, 693 (1948), would allow federal

regulation of items that, taken as a class, have virtually no

effect on interstate commerce. It would concede congressional

power to outlaw possession of guns in general, an upset of a

19
traditional state-federal balance and a concession we are not

persuaded to make. Lopez would indeed look more like symbolic

jurisprudence with little real implementation of the federalist

arrangement of our Constitution. After all, few guns have never

crossed a state line. It is not for us to say that Bass cannot

survive Lopez. We would not embrace it, however, to support a

rejection of a less intrusive inquiry.

In general, judges are not equipped by training to engage in

elaborate empirical studies; more importantly, the courts are

institutionally ill-equipped. Deference to Congress does not

require courts to leave their traditional roles by pursuing

empirical research. But it does require courts not to ignore the

obvious, at least when the obvious is born of judicial experience.

We need look no further than our considerable experience with the

drug market and the role of automatic weapons in that activity.

Based on that experience, we are comfortable in concluding that

Congress could have rationally found the required nexus between its

careful regulation of the possession of machine guns and the

interstate commerce in, for example, illegal drugs, as well as the

attendant commerce in machine guns alone. The federal government

has the power under the Commerce Clause to wage the war on drugs.

It equally has the power to freeze the escalating destructive power

of the weapons of that war, the automatic firepower drawn by the

drug trade.

Automatic and non-automatic weapons fire on different planes,

functionally and legally. Guns without the capability of automatic

20
fire are lawfully found in the hands of thousands of persons across

the country. The states have traditionally regulated these

weapons, indeed virtually all guns, except the machine gun. We

weigh the absence of congressional findings against the

constitutionality of § 922(o), but given the facts we have outlined

conclude that the absence of an invasion of a traditional state

interest tilts this case in favor of the constitutionality of the

statute. Saying so pulls no teeth from Lopez and sounds no retreat

from the judicial scrutiny of efforts to make federal cases of

state crimes.

21
EDITH H. JONES, Circuit Judge, joined by GARWOOD, JOLLY, SMITH,
DUHE’, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges,
would reverse for the following reasons:

This appeal has provided an occasion for our en banc

court to consider the breadth of Congress’s power to enact criminal

laws under the Commerce Clause in light of United States v. Lopez,

__ U.S. __, 115 S. Ct. 1624 (1995). The specific issue is whether

Congress breached its Commerce Clause authority in enacting 18

U.S.C. § 922(o), which was the basis for appellant Kirk’s

conviction for the wholly intrastate possession of a machinegun.

Half of the judges participating in this en banc**** rehearing

conclude that Lopez has more than mere symbolic significance.

Carefully applied, it compels the conclusion that the § 922(o) ban

on mere intrastate possession of a machinegun exceeds Congress’

authority “[t]o regulate Commerce . . . among the several States.”

U.S. Const., Art. 1, § 8, cl.3. The other half of the

participating judges disagree with this conclusion, although their

reasoning differs. Kirk’s conviction must be affirmed by an

equally divided court, but the importance and recurring nature of

these issues lead us to publish this opinion.

I. BACKGROUND

William J. Kirk was charged in a four-count indictment

with violations of 18 U.S.C. § 922(o)(1988). The indictment

charged Kirk with two counts of unlawful possession of a machinegun

(Counts One and Three); and two counts of unlawful transfer of a

****
Judge Benavides was recused from consideration of this case.

22
machinegun (Counts Two and Four).***** The possession counts make no

mention of interstate commerce or of any connection between Kirk’s

machinegun or his possession of it with commerce, interstate or

otherwise. Kirk moved to dismiss the indictment, contending in

part that § 922(o) exceeds Congress’ delegated powers under the

Commerce Clause in that it punishes the transfer or possession of

a machinegun with no showing that the intrastate transfer or

possession affects interstate commerce. The district court denied

the motion to dismiss. Kirk then pled guilty to Count One for

unlawful possession of a machinegun, reserving his right to appeal

the denial of his pre-trial constitutional challenge to § 922(o).

A divided panel of this court rejected Kirk’s

constitutional challenge and affirmed his conviction. United

States v. Kirk, 70 F.3d 791 (5th Cir. 1995), reh’g en banc granted,

78 F.3d 160 (5th Cir. 1996). Because this case poses similar

constitutional questions to those presented in United States v.

Lopez, __ U.S. __, 115 S. Ct. 1624 (1995), we granted rehearing en

*****
For purposes of 18 U.S.C. § 922(o), a “machinegun” is
defined as “any weapon which shoots, is designed to shoot, or can
be readily restored to shoot, automatically more than one shot,
without manual reloading, by a single function of the trigger. The
term shall also include the frame or receiver of any such weapon,
any part designed and intended solely and exclusively, or
combination of parts designed and intended, for use in converting
a weapon into a machinegun, and any combination of parts from which
a machinegun can be assembled if such parts are in the possession
or under the control of a person.” 26 U.S.C. § 5845(b)(1988); see
18 U.S.C. § 921(a)(23).

23
banc, vacating the panel opinion to determine the constitutionality

of the § 922(o) ban on the possession of machineguns.******

II. PREFACE

The language and legislative history of § 922(o) and a

brief discussion of Lopez form a backdrop for further analysis.

A. Section 922(o)

In 1986 Congress amended the Gun Control Act of 1968, 18

U.S.C. §§ 921-28, with the passage of the Firearms Owners’

Protection Act (FOPA), Pub. L. No. 99-308, 100 Stat. 449 (1986).

Section 102(9) of FOPA added § 922(o) to the existing statute. 100

Stat. at 453. Section 922(o) provides:

(o)(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--

(A) 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
(B) any lawful transfer or lawful possession of a
machinegun that was lawfully possessed before the date
this subsection takes effect.

18 U.S.C. § 922(o). Section 922(o) became effective May 19, 1986.

See FOPA § 110(c), 100 Stat. at 461 (effective date).

The legislative history of § 922(o) is sparse. See David

T. Hardy, The Firearms Owners’ Protection Act: A Historical and

******
With certain exceptions, § 922(o) bans both the transfer
and possession of machineguns. See infra part II. We need not
consider here the constitutionality of § 922(o)’s restriction on
the transfer of machineguns. The prohibition on the transfer of
machineguns raises different constitutional questions than those
raised by § 922(o)’s ban on their mere possession.

24
Legal Perspective, 17 Cumb. L. Rev. 585, 669-71 (1987). Section

922(o) was added to FOPA as a last minute amendment on the House

floor and its provisions were not debated. See United States v.

Wilks, 58 F.3d 1518, 1519 (10th Cir. 1995); United States v. Lopez,

2 F.3d 1342, 1356 (5th Cir. 1993), aff’d, __ U.S. __, 115 S. Ct.

1624 (1995); 132 Cong. Rec. H1750-52 (daily ed. April 10, 1986);

Hardy, supra, at 670. The only apparent explanation for § 922(o)

is a statement from its sponsor, Representative Hughes, who,

rushing to explain his position before the time for debate expired,

stated, “I do not know why anyone would object to the banning of

machineguns.” 132 Cong. Rec. H1750 (daily ed. April 10, 1986). No

other reference to § 922(o) appears in committee reports or

elsewhere, with the exception of a brief Senate colloquy primarily

concerned with the scope of the provision’s exemptions as they

relate to machinegun manufacturers and government-authorized

machineguns. 132 Cong. Rec. S5358-62 (daily ed. May 6, 1986);

Hardy, supra, at 670-71 & nn. 462-463.******* Thus, the legislative

*******
Following a colloquy between Senators Hatch and Dole
concerning the exemptions contained in § 922(o), Senator Metzenbaum
expressed concern that the colloquy did not express the correct
interpretation of the amendment. In partial response, Senator
McClure stated: “I know that the Senator [Metzenbaum] from Ohio has
interposed a reservation with respect to my request. I take this
time only to say to the Senator from Ohio that this discussion
[concerning § 922(o)] is up at all because the other body injected
some language at the very last minute, literally, of their debate,
and there is no legislative history as to what that language means.
There are a substantial number of House Members as well as other
interested parties who have asked questions about what it means;
and what we are trying to do is provide some legislative history as
to our understanding of what the House provision means, since the
House itself had no legislative history on this subject.” 132 Cong.
Rec. S5361-62 (daily ed. May 6, 1986).

25
history of § 922(o) itself provides no insight into the

relationship between § 922(o) and interstate commerce.

B. United States v. Lopez

In United States v. Lopez, __ U.S. __, 115 S. Ct. 1624

(1995), the Supreme Court considered the constitutionality of 18

U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V), which banned the

possession of firearms near a school and which had been overturned

in this court. United States v. Lopez, 2 F.3d 1342 (5th Cir.

1993).******** The Court recognized that Congressional power over

interstate commerce under the Commerce Clause extends to (1)

legislation regulating “the use of the channels of interstate

commerce;” (2) laws regulating and protecting “the

instrumentalities of interstate commerce, or persons or things in

interstate commerce, even though the threat may come only from

intrastate activities;” and (3) regulations of intrastate

activities that have a substantial effect on interstate commerce.

Id. at __, 115 S. Ct. at 1629-30.

Each of these categories of cases represents a distinct

way, exemplified by the Court’s chosen citations, to describe the

impact of federal legislation upon interstate commerce. See United

States v. Robertson, ___ U.S. ___, 115 S.Ct. 1732 (1995). Before

going further, we note that although Lopez does not explicitly

abandon the deferential rational basis standard of review, see,

********
Section 922(q)(1)(A) was enacted as part of the Gun-Free
School Zone Act of 1990 and provides: “It shall be unlawful for any
individual knowingly to possess a firearm at a place that the
individual knows, or has reasonable cause to believe, is a school
zone.”

26
e.g., Hodel v. Virginia Surface Mining & Reclamations Ass’n, Inc.,

452 U.S. 264, 276-80, 101 S.Ct. 2352, 2360-61 (1981), neither does

the Court defer unblinkingly to Congress’s judgment. Indeed, the

Court’s citations emphasize that it is the judicial duty ultimately

to review conformity of legislation to the Commerce Clause. Lopez,

115 S.Ct. at 1629 n.2; see also Hodel, 452 U.S. at 311, 101 S.Ct.

at 2391-92 (“simply because Congress may conclude that a particular

activity substantially affects interstate commerce does not

necessarily make it so.”) (Rehnquist, J. concurring in judgment).

As Lopez demonstrates, exercise of this duty requires independent

judicial scrutiny of the reasons advanced to explain why the

regulation is necessary to protect interstate commerce. Even a

statutorily imposed requirement of a jurisdictional nexus to

interstate commerce will not insulate a provision from judicial

review. See, e.g., United States v. Pappadopoulos, 64 F.3d 522,

527 (9th Cir. 1995).*********

Moving to a more detailed consideration of the Lopez

categories, regulation of the “channels of interstate commerce,”

the first category, is limited to direct regulation of the

interstate channels themselves. The cases cited in Lopez, or by

*********
“. . . where Congress seeks to regulate a purely
intrastate noncommercial activity that has traditionally been
subject to exclusive regulation by state or local government, and
where the connection of the regulated activity as a whole to
interstate commerce is neither readily apparent nor illuminated by
express congressional findings, the government must satisfy the
jurisdictional requirement by pointing to a “substantial” effect on
or connection to interstate commerce.” Pappadopoulos, 64 F.3d at
527 (holding arson directed against a private home not sufficiently
related to interstate commerce).

27
its reference to Perez v. United States, 402 U.S. 146, 91 S. Ct.

1357, 1359 (1971), to describe the first category involve statutes

that contain an express jurisdictional nexus element. See, e.g.,

18 U.S.C. §§ 2312-2315 (interstate shipment of stolen goods); 18

U.S.C. § 1201 (interstate transport of kidnaping victims); United

States v. Darby, 312 U.S. 100, 61 S. Ct. 451 (1941) (regulation of

working conditions in the production of goods “for interstate

commerce”). This category must be limited to legislation that

specifically reaches interstate transfers, possessions, and

transactions and business “engaged in commerce.” United States v.

Robertson, supra at ___, 115 S.Ct. at 1733 (goldmine “engaged in

commerce”).

The second category of Commerce Clause power permits laws

regulating or protecting instruments of interstate commerce, or

persons or things in interstate commerce, even though the threat

may derive from intrastate activity. The Court cites in this

connection the Shreveport Rate Cases, 234 U.S. 342, 34 S.Ct. 833

(1914), which upheld rate regulation of a railroad engaged in

interstate commerce, and Southern Railway Company v. United States,

222 U.S. 20, 32 S.Ct. 2 (1911), permitting regulation of interstate

railway safety. The Court also cites a statute criminalizing the

destruction of aircraft used in interstate commerce, 18 U.S.C.

§ 32, and vehicle thefts from interstate shipments, 18 U.S.C.

§ 659. This category includes regulation or protection pertaining

to instrumentalities or things as they move in interstate commerce.

With regard to the third category of cases, as the Court

28
put it, “the pattern is clear.” Lopez, ____ U.S. at ____, 115

S.Ct. at 1630. Federal regulation of even intrastate economic

activity will be sustained if the activity substantially affects

interstate commerce. The Court’s citations again bear out its

purpose. See Hodel v. Virginia Surface Mining & Reclamation Ass’n,

Inc., 452 U.S. 264, 276-280, 101 S.Ct. 2352, 2360-61 (1981)

(upholding regulation of intrastate coal mining); Perez v. United

States, supra (intrastate extortionate credit transactions);

Katzenbach v. McClung, 379 U.S. 294, 299-301, 85 S.Ct. 377, 381-382

(1964) (restaurants utilizing substantial interstate supplies);

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-

253, 85 S.Ct. 348, 354-355 (1964) (inns and hotels catering to

interstate guests). All of the cases involved economic regulations

or legislation bearing on commercial activity, and in those cases,

the intrastate activity either substantially affected interstate

commerce, or it had to be regulated in order not to undercut a

federal commercial regulatory scheme. Lopez, ___ U.S. at ___, 115

S.Ct. at 1631.**********

The Court majority agreed that § 922(q) neither regulates

“the channels of interstate commerce” nor protects “an

instrumentality of interstate commerce or a thing in interstate

commerce,” id. at __, 115 S.Ct. at 1630. The problem in Lopez

**********
See also United States v. Robertson, supra, (“The
‘affecting commerce’ test was developed in our jurisprudence to
define the extent of Congress’s power over purely intrastate
commercial activities that nonetheless have substantial interstate
effects.”); United States v. DiSanto, 86 F.3d 1238, 1245 (1st Cir.
1996).

29
centered on the third category of Commerce Clause power. There are

three steps to the Court’s analysis of the substantial effects

test. The threshold question is whether the local activity sought

to be regulated is commercial in nature, or whether its regulation

is necessary to effectuate federal regulation of a larger

commercial activity. The majority agreed that the ban on

possession of a gun in a school zone fails to “substantially affect

any sort of interstate commerce.” Id. at __, 115 S.Ct. at 1634.

Further, § 922(q) “by its terms has nothing to do with ‘commerce’

or any sort of economic enterprise, however broadly one might

define those terms.” Id. at 1630-31. The majority easily rejected

the notion that the act of possessing a gun in a school zone is

subject to federal regulation because, viewed in the aggregate,

such acts substantially affect interstate commerce. Lopez, 115

S.Ct. 1631. What this means is that non-commercial intrastate acts

may not be deemed commercial, for purposes of extending federal

regulation, simply by considering them en masse;*********** such

activities are only subject to federal regulation if their

regulation is essential to a larger economic regulatory scheme.

Lopez thus holds that “commercial activity” is not a definitional

vacuum waiting to be filled by a creative Congress and judges.

***********
This reasoning does not undermine Wickard v. Filburn,
317 U.S. 111, 63 S.Ct. 82 (1942), because the farmer’s activity
there, albeit local, directly distorted the federally controlled
market for wheat. Lopez, 115 S.Ct. at 1630. Nevertheless, the
Court’s analysis does not hold that any intrastate commercial
activity is regulable by Congress simply because it is commercial
-- the substantial effects test must be met to ensure a sufficient
connection with interstate commerce.

30
While the Court acknowledges that characterizing an intrastate

activity as commercial or non-commercial may create some legal

uncertainty, 115 S.Ct. at 1633, the Court’s conclusion regarding

the purely criminal provision, § 922(q), caused no interpretive

difficulty to the majority. Lopez sends a clear cautionary signal

that federal criminalization of intrastate noneconomic activity,

when such regulation is not essential to a broader regulation of

commercial activity, will have difficulty satisfying the

substantial effects basis for Commerce Clause regulation.

The second element of the substantial effects test is

whether the statute contains a jurisdictional nexus to interstate

commerce. Lopez commented on the absence of any jurisdictional

nexus requirement in § 922(q) that would insure, through case-by-

case inquiry, that a particular firearm possession substantially

affects interstate commerce. Lopez illustrated how a

jurisdictional nexus requirement could save a statute from

Constitutional infirmity by describing United States v. Bass, 404

U.S. 336, 92 S.Ct. 515 (1971). The provision at issue in Bass

criminalized, inter alia, a felon’s possession of a firearm “in

commerce or affecting commerce.” Former 18 U.S.C. § 1202(a). The

government convicted Bass without offering proof of a nexus to

interstate commerce. The Court reversed the conviction for this

omission and “thus interpreted the statute to reserve the

Constitutional question whether Congress could regulate, without

more, the ‘mere possession’ of firearms.” Lopez, ___ U.S. at ___,

115 S.Ct. at 1624 (citing Bass, 404 U.S. at 339, n.4, 92 S.Ct. at

31
518, n.4). As previously noted, a jurisdictional nexus requirement

does not ipso facto validate a statute against an as-applied

Commerce Clause challenge,************ but its existence is reassuring

against a facial challenge.

The final element of the substantial effects inquiry is

whether there are limits in the statute that mark a boundary of

some sort between matters of truly national concern and those

traditionally subject to state regulation. In this connection, the

Court acknowledged that legislative findings, while not legally

necessary, would facilitate judicial review of the substantial

effects question. Lopez, ____ U.S. at ____, 115 S.Ct. at 1631-32;

Perez, supra, 402 U.S. at 156, 91 S.Ct. at 1362. No such findings

accompanied § 922(q), however. The Court also agreed with the

Fifth Circuit************* that legislative findings pertaining to

previous firearms statutes could not be imported into the analysis

of § 922(q). ____ U.S. at ____, 115 S.Ct. at 1632. The Court

finally rejected both the “costs of crime” and “national

productivity” theories proffered by the federal government to

demonstrate substantial interstate commerce effects, and it

rejected Justice Breyer’s equation of education with commercial

activity. 115 S.Ct. at 1632-34. Neither of these attenuated

strings of logic, according to Lopez, furnishes any principled

************
See United States v. Collins, 40 F.3d 95, 99-101 (5th
Cir. 1994) (robbery of an individual victim lacks sufficient nexus
to interstate commerce to prosecute under Hobbs Act).
*************
United States v. Lopez, 2 F.3d at 1366.

32
limit on federal power in areas such as criminal law enforcement or

education, where states have traditionally been sovereign.

III. DISCUSSION

On its face, § 922(o) seems a clone of § 922(q), the

provisions struck down in Lopez. The statute bans for present

purposes “mere possession” of machineguns manufactured or imported

after 1986; it is supported neither by a jurisdictional nexus

requirement nor by salvaging legislative findings; it is a

criminal, not an economic regulatory provision; and it clearly

overlaps state and local law enforcement authority. Other circuit

courts and other judges in this court, however, have not seen it

that way,************** although their reasons for upholding the statute

differ significantly. Most of these cases err by assuming that

every intrastate possession of machineguns involves interstate

commerce. That error leads to misapplication of the first and

second categories of Commerce Clause cases described by Lopez, and

to an untenable distinction between § 922(o) and § 922(q) when the

third Lopez category is considered. The errors in other cases are

best exposed by our analysis,*************** which will discuss § 922(o)

**************
United States v. Kenney, 91 F.3d 884 (7th Cir. 1996); United States v.
Beuckelaere, 91 F.3d 781 (6th Cir. 1996); United States v. Rambo, 74 F.3d 948 (9th Cir. 1996);
United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995); United States v. Rybar, ___ F.3d ___, 1996
WL 740084 (3d Cir. Dec. 30, 1996).
***************
Judge Parker and Judge Higginbotham imply that this
analysis strays from the rational basis test for evaluating the
constitutionality of legislation. Not so. First, as a general
principle, following Lopez, the rational basis test will apply the
data created, referenced or expressed by Congress in conjunction
with an enactment to the three aspects of federal commerce clause
power described in Lopez. That is what we have done here, hampered

33
under each category of Lopez, and which takes Lopez seriously as

establishing at least an outer boundary on Congress’s criminal

jurisdiction under the Commerce Clause.***************

A. Does § 922(o) Regulate “Channels of” or “Things in”
Interstate Commerce?

The Government contends that § 922(o) may be justified

under either of the first two Lopez categories, as a regulation of

the channels of interstate commerce or of a thing in interstate

commerce. There is circuit court support for each position. See

by the absence of data from Congress concerning how banning the
possession of machineguns nationwide involves or substantially
affects interstate commerce. Second, the rational basis test
assumes the existence of data created or referenced in the
legislative process whose rationality can be analyzed. Here, there
are no relevant data relating the ban on mere intrastate possession
of machineguns by § 922(o) to Congress’s interstate commerce
jurisdiction. There are no legislative findings, no committee
reports, and no pertinent Congressional debate that “would enable
us to evaluate the legislative judgment that the activity in
question substantially affected interstate commerce, even though no
such substantial effect was visible to the naked eye. . . .”
Lopez, 115 S.Ct. at 1632. Most important, there is neither an
explicit jurisdictional nexus requirement nor any other tie to
interstate commerce apparent from the statutory architecture. It
is not this court’s responsibility or place to invent a rational
basis for Congress. Third, the absence of such data mirrors the
situation before the Court in Lopez and reinforces the consistency
between these two cases. In Lopez, Congress had not endeavored in
§ 922(q) to express any connection between interstate commerce and
possession of a gun in a school zone. Unlike the majority, the
dissent there was willing to create a factual backdrop for the
statute, just as Judges Parker and Higginbotham seek to do here.
***************
It would be a mistake to argue that because Justices
Kennedy and O’Connor concurred in Lopez and joined a separate
writing, the Lopez analysis is not definitive. The two justices
joined and endorsed Justice Rehnquist’s majority opinion. (“As the
Chief Justice explains, unlike the earlier cases to come before the
Court, here neither the actors nor their conduct have a commercial
character, and neither the purposes nor the design of the statute
have an evident commercial nexus.” Lopez, ___ U.S. at ___, 115
S.Ct. at 1640 (Kennedy, J., citing Rehnquist opinion).

34
United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995) (upholding

§ 922(o) as regulation of a thing in interstate commerce); United

States v. Rambo, 74 F.3d 948 (9th Cir. 1996) (§ 922(o) valid as

regulation of channels of interstate commerce); United States v.

Beuckelaere, 91 F.3d 781 (6th Cir. 1996) (§ 922(o) valid under all

three Lopez categories); but see United States v. Kenney, 91 F.3d

884 (7th Cir. 1996) (§ 922(o) upheld only under substantial effects

prong of Lopez).

1. The Channels of Interstate Commerce

Recourse to the first two Lopez categories suffers

initially, however, from a serious factual error. Proponents of

the constitutionality of § 922(o) assume that every possession of

a machinegun manufactured after May 19, 1986, excepting only the

narrow class of possessions permitted in the statute, connotes that

the gun traveled or was transferred in interstate commerce. These

decisions overlook that an automatic weapon may be created by

modifying a semiautomatic weapon, see United States v. Jones, 976

F.2d 176, 178 (4th Cir. 1992), cert. denied 508 U.S. 914, 113 S.Ct.

2351 (1993) (describing home conversion of shotguns), or that it

may evolve from ordinary wear and tear on a semiautomatic firearm.

In United States v. Anderson, 885 F.2d 1248, 1250-51 (5th Cir.

1989) (en banc), this court recognized that “[s]everal of the most

popular shotgun models, many handguns, and not a few rifles” can by

“either wear and tear or a simple operation” become “machineguns”

within the statutory definition. Section 922(o) would therefore

prohibit the simple possession of an ordinary semi-automatic pistol

35
whose sear wore off in 1987. Shorn of the misunderstanding that

illegal possession cannot occur without illegal transfer***************,

§ 922(o) plainly reaches mere intrastate possession of machineguns

as well as possession of machineguns which have illegally moved or

been transferred in interstate commerce. Any decision upholding

§ 922(o) under Lopez must come to grips with this reality.

Rambo, for instance, seeks to justify § 922(o) as

regulating the channels of interstate commerce because it is “an

attempt to prohibit the interstate transportation of a commodity

through the channels of commerce.” Rambo, 74 F.3d at 951, citing

Lopez, ___ U.S. at ___, 115 S.Ct. at 1630. But because § 922(o)

also prohibits purely intrastate possession of machineguns, Rambo’s

logic proves too much. The first Lopez category, as earlier

described, included cases that were distinguished by express

jurisdictional nexus requirements to movements or transactions in

interstate commerce. In Kenney, the court rejected the channels of

commerce rationale for § 922(o) on this basis:

. . . although it may be true that Congress
must regulate intrastate transfers and even
mere possessions of machineguns in aid of its
prerogative of preventing the misuse of the
channels of interstate commerce, the
regulation still regulates much more than the
channels of commerce.

91 F.3d at 889.

Lopez summarily rejected the argument that banning

firearm possession in school zones regulates the channels of

***************
United States v. Kirk, 70 F.3d 791, 796 (5th Cir.
1995); Rambo, supra, 74 F.3d at 952 (same); Beuckelaere, supra, 91
F.3d at 783 (same).

36
commerce. Section 922(o) does not more clearly express a nexus to

channels of commerce than did its virtual clone, § 922(q), the

Lopez provision. To disregard the similarity of the provisions

trifles with Lopez. Section 922(o) is limited neither to transfers

nor to possession in or even affecting interstate commerce. It

criminalizes, as in this case, the mere possession of a machinegun

independent of any type of transfer. This provision does not

regulate the channels of interstate commerce. Decisions like Rambo

and the panel opinion, in holding otherwise, have distorted the

channels of commerce rationale and are attempting to read a statute

which does not exist.

Cases relying on the channels of commerce rationale also

misplace emphasis on the temporal limit on the possession ban and

the dangerousness of the product. Neither of these characteristics

more closely aligns § 922(o) with a regulation of the channels of

interstate commerce. The grandfather clause of the ban applies it

only to machineguns manufactured or imported after May of 1986, but

that feature fails to enhance its relation to interstate

commerce.*************** After 1986, both interstate and wholly

intrastate private possessions are prohibited, yet there are no

Congressional findings that this drastic impact upon intrastate

activity was connected to or mandated by a relation to the channels

***************
The effect of the grandfather clause does,
paradoxically, assure a nexus between interstate commerce and
criminal possession of pre-1986 unlawfully possessed machineguns,
because, as this court’s Lopez opinion noted, pre-1986 regulatory
laws expressly embodied a jurisdictional nexus to commerce. See
Lopez, 2 F.3d at 1356, n.29.

37
of interstate commerce. Similarly, the fact that machineguns are a

dangerous commodity does not place them more or less within the

channels of commerce for purposes of federal regulation. United

States v. Bishop, 66 F.3d 569, 587 n.28 (3d Cir. 1995) (“The

dangerousness of the object is not the source of Congressional

power; the connection to interstate commerce is.”) Baseball cards

as well as toxic chemicals can be regulated by Congress only if

there is a necessary relationship to interstate commerce. The

argument based on dangerousness is more closely attuned to

justifying a national police power than a national commerce power.

Lopez reminded us that the Constitution does not confer a general

police power upon the federal government. Lopez, ___ U.S. at ___,

115 S.Ct. at 1634.

2. Things in Interstate Commerce

The flawed premise underlying regulating machineguns as

“things in interstate commerce” is that they are by their nature a

commodity “transferred across state lines for profit by business

entities.” Wilks, 58 F.3d at 1521 (citation omitted). We agree

again with the Seventh Circuit’s criticism of this reasoning,

because “the regulation is much broader than the category.”

Kenney, 91 F.3d at 889. The second Lopez/Perez category, as

previously explained, includes regulations of instrumentalities or

things -- such as interstate transportation rates and safety

regulations -- whose nexus to interstate commerce is obvious.

Thus, again to quote Kenney:

The Wilks court’s observation that “[t]he
interstate flow of machineguns ‘not only has a

38
 substantial effect on interstate commerce; it
is interstate commerce,’” 58 F.3d at 1521
[(quoting United States v. Hunter, 843 F.
Supp. 235, 249 (E.D. Mich. 1994)) (emphasis in
original)], is correct as far as it goes, but
it does not address the different question of
the propriety of § 922(o)’s regulation of
intrastate possession and transfer.

91 F.3d. at 889.

Criminal possession of a machinegun after May 19, 1986

under § 922(o) is not dependent on or related to the movement of

the machinegun in interstate commerce, and it is not “bound up with

interstate attributes.” Wilks, 58 F.3d at 1521. Further, not all

commerce is interstate commerce, as commerce “which is completely

internal, which is carried on between man and man in a state, or

between different parts of the same state, and which does not

extend to or affect other States” is not commerce within the

meaning of the Commerce Clause. Gibbons v. Ogden, 22 U.S. 1, 194

(1824). The Wilks reasoning makes the things in commerce basis of

Commerce Clause regulation limitless, contrary to its purpose.

Nor are we persuaded that § 922(o) can be upheld on the

basis of legislative findings -- eighteen years old when § 922(o)

was enacted -- contained in the Omnibus Act*************** and the Gun

Control Act of 1968.*************** Cases such as Wilks have sought to

enhance the things in commerce rationale by describing § 922(o) as

an incremental development in a seamless web of federal firearm

***************
Omnibus Crime Control and Safe Streets Act of 1968,
Pub. L. No. 90-351, 82 Stat. 197 (1968).
***************
Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat.
1213 (1968).

39
regulation. Wilks, 58 F.3d at 1521-22. But as explained in detail

by Judge Garwood’s opinion in Lopez, all previous federal gun

control laws have been expressly tied to the conduct of the

firearms business, a business whose inter- and intra-state

activities are clearly commercial. See Lopez, 2 F.3d at 1348-57.

The Supreme Court in Lopez approved this court’s reading of the

general legislative history and pattern of previous federal

firearms legislation, Lopez, __ U.S. at __, 115 S.Ct. at 1632, and

refused to rest on Congressional findings from other statutes to

justify § 922(q). Id. at __, 115 S.Ct. at 1632. Like the Supreme

Court in Lopez, and unlike Wilks, we find reliance on Congressional

findings from previous federal firearms legislation inappropriate

to support the § 922(o) possession ban. See Lopez, 2 F.3d at 1357

n.31.

Reliance on findings from other legislation not only

contradicts the Supreme Court, it is a misleading indicator of the

relevant gun control law. The Congressional findings relating to

FOPA indicate that the Act’s purpose was to secure the rights of

citizens to possess firearms and to ensure that no “undue or

unnecessary Federal restrictions” are placed on citizens “with

respect to the acquisition, possession or use of firearms.” FOPA

§ 1(b)(2), 100 Stat. at 449 (emphasis added) (quoting Gun Control

Act of 1968 § 101, 82 Stat. at 1213-14 (1968)).*************** Neither

***************
Additionally, § 1 of FOPA contains Congressional
findings that the rights of citizens “to keep and bear arms under
the second amendment of the United States Constitution . . .
require[s] additional legislation to correct existing firearms
statutes and enforcement policies.” FOPA § 1(b)(1)(A), 100 Stat. at

40
the language of § 922(o) nor its legislative history provides any

indication that Congress viewed the prohibition on possession of

machineguns as an essential part of a broader regulatory scheme or

that Congress considered the relationship between the ban on

possession of machineguns and interstate commerce.

In comparison to § 922(o), which lacks any reference to

interstate commerce, Congress specifically tied other regulations

enacted concurrently with § 922(o) to interstate commerce. FOPA

§ 102, 100 Stat. at 451-52.*************** Two other provisions

contained in § 922 were amended and one new subsection was added to

§ 922(o). FOPA § 102, 100 Stat. at 451-53. Congress thus

maintained the “basic jurisdictional structure” found in previous

firearms legislation, which required the “licensing of all firearms

449.
***************
Section 922(g) was amended to provide that it would
be unlawful for certain persons (as defined by § 922(g)) - “to ship
or transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.” FOPA § 102, 100 Stat. at 452.

Section 922(h) was replaced in its entirety and states:
”It shall be unlawful for any individual, who to that individual’s
knowledge and while being employed for any person described in any
paragraph of subsection (g) of this section, in the course of such
employment -- (1) to receive, possess, or transport any firearm or
ammunition in or affecting interstate or foreign commerce; or (2)
to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.” Id.

Section 922(n) was added to § 922 and provides: “It shall
be unlawful for any person who is under indictment for a crime
punishable by imprisonment for a term exceeding one year to ship or
transport in interstate or foreign commerce any firearm or
ammunition or receive any firearm or ammunition which has been
shipped or transported in interstate commerce.” Id.

41
dealers and manufacturers, . . . and in all other instances

[provided] an express nexus either to interstate commerce or to the

activity of, or dealing with, federally licensed dealers or

manufacturers. . . .” Lopez, 2 F.3d at 1354. Unlike § 922(o) and

(q), these other regulations, however, are grounded in either

Congress’ taxing powers, or are expressly tied to interstate or

foreign commerce. Id. at 1354-57. Neither the language of § 922(o)

nor its legislative history supports a finding that the ban on

possession of machineguns regulates only machineguns connected with

interstate commerce. See supra part II.A. Section 922(o) stands

isolated from the rest of the FOPA because it conspicuously lacks

either a nexus to commerce or the support of findings that banning

mere intrastate possession of machineguns is essential to

effectuate federal regulation. Section 922(o) cannot be upheld as

a permissible regulation of a “thing” in interstate

commerce.***************

B. Does § 922(o) “Substantially Affect” Interstate Commerce?

The essential question in this case as in Lopez becomes

whether § 922(o) represents a valid exercise of Congressional

authority to regulate an activity “substantially affecting”

***************
Section 922(o) also does not regulate an
“instrumentality” of interstate commerce. Like § 922(q) in Lopez,
§ 922(o) regulates mere possession of a machinegun, regardless of
its movement in interstate commerce. See Lopez, __ U.S. at __, 115
S.Ct. at 1630; see also Perez v. United States, 402 U.S. 146, 150,
91 S.Ct. 1357, 1359 (1971)(aircraft are instrumentalities);
Shreveport Rate Cases, 234 U.S. 342, 351, 34 S.Ct. 833, 836
(1914)(interstate carriers are instruments of interstate commerce).
Section 922(o) therefore fails to regulate an instrumentality of
interstate commerce.

42
interstate commerce. “Where economic activity substantially affects

interstate commerce, legislation regulating that activity will be

sustained.” Lopez, __ U.S. at __, 115 S.Ct. at 1630.

The Government contends that § 922(o) has the requisite

effect, as it is part of a comprehensive approach to the regulation

of machineguns and that a single intrastate possession or transfer

of a machinegun is nationally significant because of the cumulative

effect such a transaction has on the supply-and-demand for

machineguns. In a similar vein, Kenney argues that both the nature

of § 922(o) and the history of federal firearms legislation support

the provision’s consistency with the post-Lopez scope of the

Commerce Clause. Kenney first analogizes the banning of private

post-1986 machinegun possession to the farmer’s harvest of

excessive wheat in Wickard v. Filburn, 317 U.S. at 125, 63 S.Ct. at

89, and concludes, “. . . there is a rational basis to regulate the

local conduct of machinegun possession, including possession

resulting from home manufacture, to effectuate § 922(o)’s purpose

of freezing the number of legally possessed machineguns at 1986

levels, an effect that is closely entwined with regulating

interstate commerce.” 91 F.3d at 890. Kenney also describes the

possession ban as rooted in a sixty-year history of federal

machinegun regulation and thus as an incremental step in federal

firearms regulation; it is a measure commanding “deference to

Congress’s accumulated institutional expertise.” Id.

Among the three elements of Lopez’s substantial effects

test, the first and most critical is that of characterization:

43
whether § 922(o) fulfills the mission of regulating interstate

commerce as (1) a regulation of economic activity which, although

itself local, has substantial effect on interstate commerce, or

(2) a regulation of activity which is essential to maintaining a

larger, interstate regime of economic regulation. Neither Kenney

nor the government in supporting § 922(o) has characterized it as

a regulation of economic activity. It is not. It is “a criminal

statute that by its terms has nothing to do with ‘commerce’ or any

sort of economic enterprise, however broadly one might define those

terms.” Lopez,___ U.S. at ___, 115 S.Ct. at 1630-31.

Defenders of § 922(o) argue instead that the possession

ban is an essential part of the regulation of “commercial

activity,” either to insure federal control of the market for

machineguns or to enforce a freeze on the number of available

machineguns. See, e.g. Beuckelaere, 91 F.3d at 785; Kenney, 91

F.3d at 890. No doubt Congress has undertaken fully to regulate

the business of firearms dealing, insofar as sales and transfers in

or affecting commerce are concerned.*************** But as we have

repeatedly noted, mere intrastate possession of a machinegun does

not necessarily involve a transfer or an economic transaction of

any kind.***************

***************
See generally Lopez, 2 F.3d 1342, 1348-1360 (Garwood,
J.), reciting the history of federal firearms legislation.
***************
Taking a different slant at the substantial effects
test, Judge Higginbotham’s novel approach to the test pays verbal
obeisance to Lopez while seriously undermining it. Judge
Higginbotham posits that rational basis review should lead federal
courts to uphold the possession ban based on “facts ... within our
[judges’] easy reach.” Lacking any data from the legislative

44
 Moreover, the analogy to Wickard is flawed. In Wickard,

the government’s agricultural program aimed to control and support

prices in the wheat market. Filburn’s consumption of home-grown

wheat substituted for the controlled wheat, impairing to that

extent the price support effort. Section 922(o), by contrast,

intends to extirpate any domestic commercial market for machineguns

manufactured or imported after 1986. Even if this goal constitutes

a legitimate regulation of interstate commerce, it does not follow

that criminalizing purely private, intrastate possession is

necessary to eliminate the market. Section 922(o) also prohibits

transfers of machineguns and, to the extent it represents a

permissible exercise of Commerce Clause power,*************** that

prohibition aims directly and completely at commercial activity in

machineguns. Private possession of a machinegun does not involve

a market activity, and there is no legitimate market in which a

substitution effect would occur.

process, his opinion stitches together bits of news articles,
statistics, and Congressional testimony from unrelated hearings to
conclude that Congress might have banned machinegun possession to
stem the illegal drug trade. His is an interesting empirical
creation, but methodologically it follows Justice Breyer’s dissent
in Lopez. More troubling, Judge Higginbotham’s opinion begs the
question: it never explains why banning the wholly intrastate,
non-crime-related, noncommercial personal possession of a
machinegun is reasonably or substantially necessary to control use
of these firearms in the illegal drug trade or other interstate
commerce. Unlike the Lopez majority, his opinion ultimately
substitutes wholesale deference to Congress for any attempt to
define the boundaries of the commerce clause, even in noncommercial
criminal statutes like § 922(o).
***************
Not all transfers are commercial in nature.
Transfers by gift or by succession would not be.

45
 Another way of explaining the superfluousness of the

§ 922(o) ban on possession is to compare firearms regulation to the

narcotics trafficking laws. Not only are most of those criminal

provisions also expressly tied to the commerce in illegal

controlled substances, but Congress also made extensive findings to

establish the necessary relationship of possession and intrastate

trade to the overall scheme. See, e.g., United States v. Leshuk,

65 F.3d 1105, 1112 (4th Cir. 1995); Lopez, 2 F.3d at 1367, n.51;

United States v. Lopez, 459 F.2d 949, 951-53 (5th Cir.), cert.

denied sub nom. Llerena v. United States, 409 U.S. 878, 93 S.Ct.

130 (1972).*************** The nature of controlled substances supports

Congress’s findings: they are fungible, and their intrastate,

interstate or imported origin is often impossible to discern.

***************
See United States v. Genao, 79 F.3d 1333 (2d Cir.
1996) (upholding 21 U.S.C. §§ 841, 846); United States v. Leshuk,
65 F.3d 1105 (4th Cir. 1995) (21 U.S.C. § 841(a)(1)); United States
v. Clark, 67 F.3d 1154 (5th Cir. 1995) (upholding 21 U.S.C. § 860),
cert. denied, ___ U.S. ___, 116 S.Ct. 1432, 134 L.Ed.2d 554 (1996);
United States v. Tucker, 90 F.3d 1135 (6th Cir. 1996) (same);
United States v. Bell, 90 F.3d 318 (8th Cir. 1996) (upholding 21
U.S.C. § 841(a)(1)); United States v. Brown, 72 F.3d 96 (8th Cir.
1995) (same); United States v. Yoon, No. 95-16698, 1996 WL 367621
(9th Cir. June 28, 1996) (unpublished per curiam) (upholding 21
U.S.C. § 841(a)(1)); United States v. Wacker, 72 F.3d 1453 (10th
Cir. 1995) (upholding 21 U.S.C. §§ 841(a)(1), 846); United States
v. Kremetis, 903 F. Supp. 250 (D.N.H. 1995) (same); United States
v. Smith, 920 F. Supp. 245 (D.Me. 1996) (upholding 21 U.S.C.
§§ 841(a)(1)-(2), 846); United States v. Salmiento, 898 F. Supp. 45
(D.P.R. 1995) (upholding 21 U.S.C. § 860); United States v.
Gonzalez, 893 F. Supp. 935 (S.D. Cal. 1995) (upholding 21 U.S.C.
§ 841(a)(1)); United States v. Garcia-Salazar, 891 F. Supp. 568 (D.
Kan. 1995) (upholding 21 U.S.C. § 860); United States v. Murillo,
No. CR 93-20131 JW, 1995 WL 621797 (N.D. Cal. 1995) (upholding 21
U.S.C. §§ 841(a), 843(b), 846); United States v. Grafton, 1995 WL
506001 (N.D. Ga. 1995) (upholding 21 U.S.C. §§ 841, 846); United
States v. Walker, 910 F. Supp. 837 (N.D.N.Y. 1995) (upholding 21
U.S.C. §§ 841, 846, 848); United States v. Bramble, 894 F. Supp.
1384 (D. Haw. 1995) (upholding 21 U.S.C. §§ 841(a)(1), 844(a)).

46
Firearms, including machineguns, are identifiable and traceable.

Banning private, intrastate machinegun possession is not an

essential link in the chain of federal regulation of firearms

dealing.

Kenney also asserts that because Congress has

historically regulated firearms and has evinced particular interest

in regulating machineguns, its “accumulated institutional

expertise” justifies § 922(o). This argument might be called “the

nose under the camel’s tent” theory of Commerce Clause power: once

Congress has begun to regulate a particular activity, courts should

defer to any extensions of regulation that Congress legislates.

Surely this position renders any theoretical limit on the

enumerated Commerce Clause power nugatory.

Because we have concluded that mere intrastate possession

is neither an economic activity nor an intrastate activity whose

regulation is essential to a larger commercial regulatory regime,

§ 922(o) cannot pass muster under the Lopez substantial effects

test. Reinforcing this conclusion, although not necessary to it,

are the results of the other two parts of the test, which deal with

Congressional findings and the limits on federal authority.

If Congress had made findings explaining the connection

of mere intrastate possession of machineguns to interstate

commerce, or if there were an expressly required nexus between such

possession and commerce,*************** § 922(o) might be vindicated

***************
We are not at liberty to question the Supreme Court’s
approval of the predecessor statute to 18 U.S.C. § 922(g)(1), which
criminalizes possession of a firearm by a felon “in or affecting

47
under the second Lopez prong. These features are lacking.

Whatever the effect a single intrastate possession of a machinegun

has on economic activity in firearms, the text and legislative

history of § 922(o) do not support any conclusion that Congress

considered such effects or viewed § 922(o) as part of a

comprehensive approach to federal regulation of commerce in

machineguns. As discussed previously, § 922(o) was inserted into

FOPA with virtually no discussion of its content and with

absolutely no discussion of its place in the broad scheme of

federal firearms regulations. See supra part II.A. Like § 922(q)

found unconstitutional in Lopez, no Congressional findings attest

that § 922(o) is “an essential part of a larger regulation of

economic activity, in which the regulatory scheme could be undercut

unless the intrastate activity were regulated.” Lopez, __ U.S. at

__, 115 S.Ct. at 1631. No studies, testimony or evidence of any

other sort -- Congressional or otherwise -- is adduced in favor of

§ 922(o). Nor does § 922(o) contain a “jurisdictional element

which would ensure, through case-by-case inquiry, that the firearm

possession in question affects interstate commerce.” Id. at __, 115

S.Ct. at 1631. To infer in the face of this void that regulation

of intrastate possession is essential to effectively regulate

commerce.” Only a minimal jurisdictional nexus is required, i.e.
that at some time the firearm had travelled in interstate commerce.
Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963,
1969 (1977). As this broad reading of the Commerce Clause has
Supreme Court inprimatur, albeit pre-Lopez, we can only note the
tension between the two decisions and will continue to enforce
§ 922(g)(1). See United States v. Rawls, 85 F.3d 240, 243 (5th
Cir. 1996) (Garwood, J., specially concurring).

48
interstate traffic in machineguns states a naked conclusion, a fiat

without supporting facts. Congress has not helped us to discern a

connection between the possession ban and interstate commerce which

is otherwise invisible to the naked eye. Lopez, ___ U.S. at ___,

115 S.Ct. at 1632.

Finally, like § 922(q), § 922(o) intrudes upon the

traditional police powers of the states and violates Lopez’s third

mandate for a substantial-effects regulation of intrastate activity

because it affords no logical demarcation between the national and

local interests. Brecht v. Abrahamson, 507 U.S. 619, 635, 113

S.Ct. 1710, 1720 (1993)(states have primary authority for defining

and enforcing criminal law); see Lopez, __ U.S. at __, 115 S.Ct. at

1631 n.3; Bass, 404 U.S. at 349-50, 92 S.Ct. at 523-24. Section

922(o) would punish a local resident for the mere possession of a

machinegun acquired after 1986 with “no requirement that his

possession of the [machinegun] have any concrete tie to interstate

commerce.” Lopez, __ U.S. at __, 115 S.Ct. at 1634. The Supreme

Court avoided such a result in Bass. Bass, 404 U.S. at 349-50, 92

S.Ct. at 523-24. To uphold § 922(o), a purely criminal law, with

no nexus to interstate commerce, whose enforcement intrudes upon

traditional police powers of the states, would convert the commerce

power into a reserved “general federal police power.” Id. at 1632-

33; see also id. at __, 115 S.Ct. at 1638 (Kennedy, J.,

concurring)(“Were the Federal Government to take over the

regulation of entire areas of traditional state concern, areas

having nothing to do with the regulation of commercial activities,

49
the boundaries between the spheres of federal and state authority

would blur and political responsibility would become illusory.”).

The rationale that Congress can, on a blank slate, criminalize

possession under the interstate Commerce Clause in order to

regulate “the demand side of the market” can be applied to the

possession of anything. Following Lopez, § 922(o) cannot be upheld

as a regulation which substantially affects interstate commerce.

CONCLUSION

Regardless of one’s view of the wisdom of banning the

private possession of machineguns, the question before this court

is whether the Commerce Clause grants Congress the authority to ban

private, intrastate possession of a machinegun with no showing that

the prohibition is connected in any way to interstate commerce or

is part of a broader federal regulatory scheme. Congress’s commerce

powers are broad, reaching even Roscoe Filburn’s wheat field in

Ohio. Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82 (1942). Lopez,

however, closely controls this case. Lopez does not permit

Congress, acting pursuant to the Commerce Clause, to criminalize

the mere intrastate possession of machineguns without some

indication that the possession ban is necessary to the regulation

of, or has some other substantial tie to, interstate commerce.

Section 922(o)’s ban on the mere possession of a machinegun exceeds

Congress’s authority under the Commerce Clause.

50