Navegar Inc v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 1999 Decided October 8, 1999

No. 98-5491

Navegar, Incorporated, d/b/a Intratec, and
Penn Arms, Incorporated,
Appellants

v.

United States of America,
Appellee

---------

Appeal from the United States District Court
for the District of Columbia
(No. 95cv00550)

---------

Richard E. Gardiner argued the cause and was on the
briefs for appellants.

Mark B. Stern, Attorney, United States Department of
Justice, argued the cause for appellee. With him on the brief
were David W. Ogden, Acting Assistant Attorney General,
Michael S. Raab, Attorney, and Wilma A. Lewis, United
States Attorney.

Before: Wald, Silberman and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

 Wald, Circuit Judge: Navegar, Inc., doing business as
Intratec ("Intratec"), and Penn Arms, Inc. ("Penn Arms")
(together "appellants"), are licensed by the United States
Bureau of Alcohol, Tobacco and Firearms ("BATF") to manu-
facture firearms. Intratec and Penn Arms brought a declara-
tory judgment action under 28 U.S.C. s 2201 in the United
States District Court for the District of Columbia to challenge
the constitutionality of section 110102 of the Violent Crime
Control and Law Enforcement Act of 1994. See Pub. L. No.
103-322, 108 Stat. 1796, 1996-98 (codified at 18 U.S.C.
ss 921(a)(30), 922(v) (1994)). Section 110102(a) makes it un-
lawful to "manufacture, transfer or possess a semiautomatic
assault weapon." See 108 Stat. at 1996-97 (codified at 18
U.S.C. s 922(v)(1)). Section 110102(b) specifically identifies
the precise weapons Intratec and Penn Arms manufacture as
semiautomatic assault weapons. See 108 Stat. at 1997-98
(codified at 18 U.S.C. ss 921(a)(30)(A)(viii), (ix)). Appellants
sought a declaration that these provisions exceed Congress'
Commerce Clause power, and are unconstitutional Bills of
Attainder.

Both the appellants and the government filed cross-motions
for summary judgment on both of the constitutional chal-
lenges to the Act. See Memorandum Order and Opinion,
Joint Appendix ("J.A.") at 43. The district court issued a
Memorandum Order and Opinion granting the government's
motion, rejecting appellants' motion and dismissing the case.
We affirm the district court's grant of summary judgment on
both of appellants' challenges.

I. Background

A. The Violent Crime Control and Law Enforcement Act of
1994

In 1994, Congress passed the Violent Crime Control and
Law Enforcement Act. Pub. L. No. 103-322, 108 Stat. 1796
("the Act"). Subtitle A of Title XI of the Act, which regulates
assault weapons, is entitled the "Public Safety and Recre-
ational Firearms Use Act." See Violent Crime Control and
Law Enforcement Act of 1994, s 110101, 108 Stat. 1796, 1996.

Section 110102(a) of the Act makes it "unlawful for a person
to manufacture, transfer, or possess a semiautomatic assault
weapon." See 18 U.S.C. s 922(v)(1). Section 110102(b) de-
fines "semiautomatic assault weapon" to include "any of the
firearms, or copies or duplicates of the firearms" enumerated
in nine categories of guns identifying 15 weapons by name.
See 18 U.S.C. s 921(a)(30)(A). Two of the categories of guns
specified by the statute are "INTRATEC TEC-9, TEC-DC9,
and TEC-22; and ... revolving cylinder shotguns, such as
(or similar to) the Street Sweeper and Striker 12." 18 U.S.C.
ss 921(a)(30)(A)(viii), (ix). The definition of "semiautomatic
assault weapon" in section 110102(b) also includes semiauto-
matic rifles and semiautomatic pistols that have the ability to
accept a detachable magazine and any two of five enumerated
accessories, and semiautomatic shotguns that have any two of
four enumerated features. See 18 U.S.C. ss 921(a)(30)(B)-
(D).

Section 110102(a) of the Act contains a "grandfather"
clause which exempts from the Act semiautomatic assault
weapons lawfully possessed on the date of enactment. See 18
U.S.C. s 922(v)(2). The Act does not apply to certain enu-
merated firearms as well as firearms, replicas or duplicates of
firearms specified in an appendix. See id. s 922(v)(3); id.
App. A. Persons convicted of knowingly violating the Act are
subject to a fine and imprisonment of up to five years. See
id. s 924(a)(1).

B. Factual Background

Appellants are the sole manufacturers of firearms identi-
fied by name in the Act as "semiautomatic assault weapons."
See 42 U.S.C. s 921(a)(30)(A)(viii), (ix). Intratec is the sole
manufacturer of the TEC-DC91 and TEC-22 semiautomatic
pistols. Penn Arms is the sole manufacturer of the Striker
12, 12S, 12E and 12SE, 12-gauge revolving cylinder shotguns.
See Navegar, Inc. v. United States, 914 F. Supp. 632, 633
(D.D.C. 1996). On September 13, 1994, the Act became law
and agents from the BATF visited appellants' facilities to

__________
1 The Itratec TEC-DC9 is simply the the Intratec TEC-9 re-
named. See Navegar, Inc. v. United States, 914 F. Supp. 632, 633
(D.D.C. 1996).

inform appellants' officers of the prohibitions of the Act and
give notice that they planned to conduct inventories of the
weapons that would be grandfathered. See Navegar, Inc. v.
United States, 103 F.3d 994, 997 (D.C. Cir. 1997). Over the
next two days, the BATF conducted these inventories. See
id.

On September 26, 1994, the BATF sent letters to all
federally licensed firearm manufacturers, including Intratec
and Penn Arms, giving notice of the "grandfather" provision,
and that the BATF would permit seven additional days of
weapon manufacturing before it would take a final inventory
identifying all grandfathered weapons. See Navegar, 914 F.
Supp. at 633. When the additional seven-day window for
grandfathering weapons closed, Intratec held in its inventory
over 40,000 TEC-DC9 and TEC-22 frames and thousands of
dollars of gun parts which it could no longer assemble. Penn
Arms was unable to take advantage of the seven-day window
and was left with an inventory of $58,000 worth of gun parts
for the Striker 12 series of shotguns. See id. at 634-35.

C. Procedural Background

In March, 1995, Intratec and Penn Arms filed a declaratory
judgment action in the United States District Court for the
District of Columbia, challenging the constitutionality of cer-
tain provisions of the Act. See First Amended Compl., J.A.
at 9. Appellants alleged that neither s 922(v)(1) nor
s 922(w)(1), which prohibits the transfer or possession of a
large capacity feeding device, fell within the powers delegated
to Congress under Article I because there were no legislative
findings nor anything in the language of the Act which
indicated any nexus with Congress' delegated powers. See
id., J.A. at 15. In addition, appellants asserted that
s 922(v)(1) together with s 922(a)(30)(A)(viii), (ix), singled out
the TEC-DC9, TEC-22 and Striker 12 for prohibition in
order to punish them for manufacturing their products and
thus were unconstitutional Bills of Attainder. See id., J.A. at
15-16, 20-22. Further, they alleged that provisions using
general terms to include certain types of semiautomatic rifles,
pistols and shotguns, 18 U.S.C. s 921(a)(30)(B)-(D), in the
definition of "semiautomatic assault weapon" were void for

vagueness under the Due Process clause of the Fifth Amend-
ment. See id., J.A. at 17-20.

The government filed a motion for summary judgment on
the ground that appellants did not have standing to bring a
pre-enforcement challenge to the provisions of the Act since
they did not demonstrate a genuine threat of prosecution.
On February 1, 1996, the district court issued a Memorandum
Order and Opinion granting the government's motion and
dismissing appellants' case. See Navegar, 914 F. Supp. at
632. Appellants appealed the district court's decision on
standing to this court. See Navegar, Inc. v. United States,
103 F.3d 994 (D.C. Cir. 1997). This court held that since the
provisions prohibiting the weapons that Intratec and Penn
Arms alone manufactured effectively single them out as in-
tended targets, these provisions presented an imminent
threat of prosecution sufficient to bring a pre-enforcement
challenge. See id. at 1001. However, this court also held
that appellants had failed to show an imminent threat of
prosecution under 18 U.S.C. ss 921(a)(30)(B)-(D) and 922(w),
which outlawed items using general terms, because nothing
indicated a special priority of enforcement against appellants
and the general nature of the language made it impossible to
predict whether these provisions would be applied to them.
See id. at 1002. Therefore, this Court reversed the part of
the order of the district court relating to the enumerated
powers claims challenge to s 922(v)(1) and the Bill of Attain-
der challenge to 18 U.S.C. ss 921(a)(30)(A)(viii), (ix) in con-
junction with s 922(v)(1) and affirmed the decision to dismiss
the void for vagueness claims and the enumerated powers
challenge to s 922(w)(1). See id.

On remand to the district court, appellants sought leave to
amend their complaint to demonstrate that their challenges to
the general provisions of the Act were justiciable in light of
this court's prior decision. See Memorandum Order and
Opinion, J.A. at 43. On December 1, 1997, the district court
issued an opinion denying appellants' motion to amend their
complaint. See Navegar, Inc. v. United States, 986 F. Supp.
650 (1997). The district court held that the motion to amend
was futile because the proposed amended complaint failed to

establish standing to bring a pre-enforcement challenge to the
provisions of the Act prohibiting general categories of weap-
ons. See id. at 653. Appellants did not appeal that order.

The appellants and the government subsequently filed
cross-motions for summary judgment on the enumerated
powers challenge to s 922(v)(1) and the Bill of Attainder
challenge to s 922(v)(1) in conjunction with
s 921(a)(30)(A)(viii), (ix). The district court held that Con-
gress did not exceed its authority in enacting s 922(v)(1) of
the Act and that s 922(v)(1) together with s 921(a)(30)(viii),
(ix) does not constitute a Bill of Attainder with respect to
Intratec and Penn Arms. See Memorandum Order and Opin-
ion, J.A. at 89. On the basis of congressional testimony
discussing the Act, the legislative history of prior Acts regu-
lating firearms and the decisions of other courts of appeals
upholding the validity of the Firearms Owner Protection Act
of 1986, which prohibits the "transfer or possession of ma-
chine guns," the district court held that the Act regulated
activities that had a substantial effect on interstate commerce.
See id., J.A. at 76. The district court further held that the
Act did not constitute a Bill of Attainder because even though
provisions of the Act singled out guns made by Intratec and
Penn Arms, the ban on the manufacture, transfer and posses-
sion did not fall within a historical meaning of punishment,
promoted non-punitive legislative purposes, and did not mani-
fest a congressional intent to punish. See id., J.A. at 88.
Therefore, the district court granted the government's motion
for summary judgment, denied appellants' motion and dis-
missed appellants' claims. This appeal followed.

II. Discussion

A. The Constitutional Attack Under the Commerce Clause

1. The Scope of Congress' Commerce Clause Power After
Lopez

In United States v. Lopez, 514 U.S. 549 (1995), the Su-
preme Court refined the scope of Congress' powers under the
Commerce Clause. Lopez held that the Gun Free School

Zones Act of 1990, which made possession of a firearm within
1,000 feet of a school a federal offense, exceeded Congress'
Commerce Clause authority. See id. at 561. The Lopez
Court identified three broad categories of activity that Con-
gress may regulate under its Commerce Clause authority: (1)
The "use of the channels of interstate commerce"; (2) "the
instrumentalities of interstate commerce, or persons or things
in interstate commerce"; and (3) "those activities having a
substantial relation to interstate commerce ... i.e., those
activities that substantially affect interstate commerce." Lo-
pez, 514 U.S. at 558-59.

The Court quickly concluded that possession of a gun in a
school zone did not fit the first two categories. See id. at 559.
The Court subsequently concluded that such activity could
not be regulated under the third category either; it did not
substantially affect interstate commerce because it was not
related to any sort of economic enterprise, nor was its regula-
tion an essential part of a larger regulation of interstate
economic activity, so that the interstate regulatory scheme
would be undercut unless the intrastate activity were regulat-
ed. See id. at 560. Further, the Court explained that
Congress had made no findings about the effect of such
activity on interstate commerce nor did the Act contain a
jurisdictional element which would ensure that, as applied,
the firearm possession in question would always affect inter-
state commerce. See id. 561-62. In addition, the Court
rejected arguments made at trial about the economic costs of
gun possession in school or that effective education is essen-
tial to national productivity; it said such attenuated reason-
ing, which would require it to pile inference upon inference to
find a connection to commerce, would justify a limitless
amount of regulation of intrastate activity by Congress. See
id. at 564, 567. Therefore, the Court concluded that Con-
gress had no rational basis for finding that gun possession in
a school zone had a substantial effect on interstate commerce
and declared the statute unconstitutional. See id. at 567.

In this case, we do not find it necessary to analyze whether
the Act is a Lopez category 1 regulation of the channels of
interstate commerce or a category 2 regulation of the instru-

mentalities of or persons or things in interstate commerce
because the Act readily falls within category 3 as a regulation
of activities having a substantial affect on interstate com-
merce.2 The legislative history and congressional hearings
conducted prior to the Act clearly manifest a congressional
intent to restrict the interstate flow of "semiautomatic assault
weapons," especially across the borders of states which had
laws prohibiting such weapons. Furthermore, the constitu-
tionality of the Act is supported by the history of prior
firearms legislation such as the Omnibus Crime Control and
Safe Streets Act of 1968 and the Gun Control Act of 1968,
which contain congressional findings that there is a large
interstate market in firearms and firearms legislation is
aimed at controlling that market. Finally, eight other circuit
courts of appeals have upheld a similar prohibition of the
"transfer or possession of machine guns" against post-Lopez

__________
2 Appellees argued below that the provisions at issue may also be
classified as a category 1 regulation of the channels of interstate
commerce. The trial judge concluded that it could not. We need
not address this issue. Some of our prior cases indicate that some
statutes are capable of classification as both a category 1 and
category 3 regulation of commerce. See National Ass'n of Home
Builders v. Babbitt, 130 F.3d 1041, 1046 (D.C. Cir. 1997). A prime
example of the interconnection of categories 1 and 3 is the Lopez
Court's citation of United States v. Darby, 312 U.S. 100, 114 (1941),
as a category 1 case and Maryland v. Wirtz, 392 U.S. 183, 196, n.27
(1968), for category 3. See 514 U.S. at 558-59. Wirtz involved a
challenge to a 1961 amendment to the Fair Labor Standards Act
originally challenged in Darby. The amendment extended the
coverage of the FLSA from employees "engaged in commerce" to
employees "employed in an enterprise engaged in commerce or in
the production of goods for commerce." See 392 U.S. at 188. The
Supreme Court held that the constitutionality of the 1961 extension
of employees covered by the Act was "settled by the reasoning of
Darby itself." Id. Therefore Wirtz, the paradigmatic category 3
case according to Lopez, is in fact a category 1 case as well. The
confluence of categories 1 and 3 demonstrates that while the
categories are useful as a synopsis of the Supreme Court's Com-
merce Clause jurisprudence, the attempt to fit a regulation squarely
within one category can prove elusive, even fruitless.

commerce clause challenges.3

2. Activities Which May Be Regulated Because they Have
a Significant Effect on Interstate Commerce

Appellants argue that after Lopez, Congress only has pow-
er to regulate "economic" or "commercial" activities and since
Congress passed this statute principally to regulate the crimi-
nal activity--not commercial activity--associated with posses-
sion of a semiautomatic assault weapon, the Act is not a
proper exercise of the Commerce power. This court has
already held that a "regulated activity ... need not be
commercial, so long as its effect on interstate commerce is
substantial." Terry v. Reno, 101 F.3d 1412, 1417 (D.C. Cir.
1996). Alas, appellants contend that this Court's conclusion

__________
3 The confluence of Lopez categories 1 and 3 is also apparent
from the cases where other circuits have upheld the Firearm
Owners Protection Act of 1986, ("FOPA"), which makes it unlawful
to "transfer or possess a machine gun." 18 U.S.C. s 922(o) (1994).
FOPA has been upheld as a Lopez category 3 regulation of an
activity with a substantial effect on interstate commerce by the
Second, Third, Fifth, Seventh, Tenth and Eleventh Circuits. See
United States v. Franklyn, 150 F.3d 90, 96 & n.3 (2d Cir. 1998) (not
deciding whether FOPA fell within Lopez category 1); United
States v. Wright, 117 F.3d 1265, 1270 (11th Cir. 1997), vacated on
other grounds, 133 F.3d 1412 (1998); United States v. Knutson, 113
F.3d 27, 30 (5th Cir. 1997) (avoiding the issue of category 1 to
prevent controversy); United States v. Rybar, 103 F.3d 273, 283 (3d
Cir. 1996); United States v. Kenney, 91 F.3d 884, 890 (7th Cir.
1996); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir. 1995).
The FOPA has been upheld as a Lopez category 1 regulation of the
channels of interstate commerce by the Sixth and Ninth Circuits.
See United States v. Beuckelaere, 91 F.3d 781, 783 (6th Cir. 1996);
United States v. Rambo, 74 F.3d 948, 952 (9th Cir. 1995); see also
United States v. Kirk, 70 F.3d 791, 796-97 (5th Cir. 1996), vacated,
78 F.3d 160 (1996). Likewise, the First Circuit has upheld under
Lopez category 3 section 110201 of the Violent Crime Control and
Law Enforcement Act, entitled the Youth Handgun Safety Act,
which prohibits the mere possession of a firearm by a juvenile. See
United States v. Cardoza, 129 F.3d 6, 12 (1st Cir. 1997); 108 Stat.
1796, 2010 (codified at 18 U.S.C. s 922(x) (1994)).

in Terry is incorrect and "finds no support in Lopez." See
Appellants' Br. at 10. Appellants badly misread both Terry
and Lopez.

A close examination of Lopez reveals that it supports the
reasoning of Terry. Lopez described a statute prohibiting
possession of a gun within 1000 feet of a school which it
struck down as involving in "no sense an economic activity
that might ... substantially affect any sort of interstate
commerce." United States v. Lopez, 514 U.S. 549, 567 (1995)
(emphasis added). However, the Lopez Court pointedly left
out both "economic" and "commercial" when it concluded in a
normative vein that "the proper test requires an analysis of
whether the regulated activity 'substantially affects' interstate
commerce." 514 U.S. at 559. Furthermore, when the Lopez
Court did use the term "economic activity," it cited as an
example the home consumption of wheat at issue in Wickard
v. Filburn. See Lopez, 514 U.S. at 560-61 (citing 317 U.S.
111, 127 (1942).

The Lopez Court noted that Wickard "involved economic
activity in a way that the possession of a gun in a school zone
does not." Id. at 560. Wickard involved a constitutional
challenge to the Agricultural Adjustment Act of 1938 by
farmer Roscoe Filburn. The Lopez Court specifically cited as
an example of "economic activity" farmer Filburn's personal
consumption of his home-grown wheat. See Lopez, 514 U.S.
at 560 (quoting Wickard, 317 U.S. at 128). The passage from
Wickard quoted in Lopez makes clear that wheat grown at
home, even if it is not marketed, has a substantial effect on
interstate commerce because it competes with wheat in com-
merce by supplying the " 'need of the man who grew it which
would otherwise be reflected by purchases in the open mar-
ket.' " Id. at 560 (quoting Wickard, 317 U.S. at 128). The
Lopez Court's discussion of Wickard demonstrates that what
makes a regulated activity "economic" is not that it is intrinsi-
cally commercial in any ordinary sense of the word, but
rather that it "substantially affects" a larger market for the
product in interstate commerce. See id. The Lopez Court
made this point clear with the following quotation from
Wickard:

 Even if ... activity be local and though it may not be
regarded as commerce, it may still, whatever its nature,
be reached by Congress if it exerts a substantial econom-
ic effect on interstate commerce, and this irrespective of
whether such effect is what might at some earlier time
have been defined as 'direct' or 'indirect.'

Lopez, 514 U.S. 549 at 556 (quoting Wickard, 317 U.S. at 125)
(emphasis added).

Our decision in Terry v. Reno, 101 F.3d 1412 (D.C. Cir.
1997), is a logical extension of the reasoning in Lopez. In
Terry, this court upheld the Freedom of Access to Clinic
Entrances Act ("FACEA") against a Commerce Clause chal-
lenge. See 101 F.3d at 1418. This court rejected the argu-
ment that Congress could not regulate protest in front of
abortion clinics because protest against abortion clinics is an
intrastate, noncommercial activity. See id. at 1417. We
concluded that the regulated activity need not be commercial
in nature, rather the only relevant inquiry is whether the
effect on interstate commerce is substantial. See id. This
court found that Congress had a rational basis to conclude
that abortion clinics engage in interstate commerce because,
among other things, they treat patients who travel interstate
to obtain abortion services and obtain medical equipment and
supplies through interstate commerce. See id. at 1415-16,
1417. Therefore, even though violent and obstructive protest
was not an intrinsically "commercial" or "economic" activity,
we upheld the FACEA because such activity had a substan-
tially adverse effect on interstate commerce in reproductive
health services. See id. at 1417-18.

The most recent Supreme Court Commerce Clause case of
Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520
U.S. 564 (1997), also reinforces our holding in Terry that
activity need not be commercial in character in order to be
regulated under the Commerce Clause. Camps involved a
Commerce Clause challenge to an otherwise generally appli-
cable state property tax exemption for charitable institutions
which excluded organizations operated principally for the

benefit of nonresidents. See id. at 568. The Supreme Court
held that the Commerce Clause applies to activity regardless
of whether it was pursued with the purpose of earning a
profit. See id. at 584. The Camps Court cited an earlier
opinion in which it struck down a California statute prohibit-
ing the transport of indigent persons into the State under the
Commerce Clause by holding that transportation is commerce
" 'whether or not the transportation is commercial in charac-
ter.' " Id. (quoting Edwards v. California, 314 U.S. 160, 166
n.1). The Camps decision makes clear that an activity can be
regulated under the Commerce Clause regardless of whether
it is intrinsically "economic" or "commercial" but solely on the
basis of its substantial effect on interstate commerce. See
National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041,
1050 (D.C. Cir. 1997) (hereinafter (NAHB).

3. Whether the Activity Regulated By the Act Has a
Substantial Effect on Interstate Commerce

The Supreme Court has repeatedly held that the manufac-
ture of goods which may ultimately never leave the state can
still be activity which substantially affects interstate com-
merce. See United States v. Darby, 312 U.S. 100, 118-19
(1941); NLRB v. Jones & Laughlin Steel, 301 U.S. 1, 37
(1937) (holding that if manufacturing which may be intrastate
in character when separately considered has a substantial
effect on commerce, Congress may regulate it). Further-
more, Supreme Court precedent makes clear that the trans-
fer of goods, even as part of an intrastate transaction, can be
an activity which substantially affects interstate commerce.
See Lopez, 514 U.S. at 560-61 (citing Wickard v. Filburn, 317
U.S. 127-28 (1942)) (noting that farmer's home consumption
of wheat substantially affected interstate commerce)); see
also Wickard, 317 U.S. at 114, 127 (noting that the farmer
sold some of his wheat, and that even local marketing sub-
stantially affects interstate commerce). Therefore, it is not
even arguable that the manufacture and transfer of "semiau-
tomatic assault weapons" for a national market cannot be
regulated as activity substantially affecting interstate com-
merce.

 However, the Supreme Court's decision in Lopez does raise
a question of whether mere possession of a "semiautomatic
assault weapon" can substantially affect interstate commerce.
For that reason, it is necessary to examine the purposes
behind the Act to determine if it was aimed at regulating
activities which substantially affect interstate commerce.

Appellants contend that as in Lopez, Congress in this Act
did not even address the issue of whether the manufacture,
transfer and possession of semiautomatic assault weapons
affects Commerce. To the contrary, there is extensive legis-
lative history indicating a firm congressional intent to control
the flow through interstate commerce of semiautomatic as-
sault weapons bought or manufactured in one state and
subsequently transported into other states. First, although
the legislative reports accompanying the 1994 Act do not
specifically address the Commerce Clause, one report does
state that the purpose of the Act was to stop the "wide-
spread" and growing threat posed by "criminal gangs, drug-
traffickers and mentally-deranged individuals armed with
semiautomatic assault weapons" by "restricting the availabili-
ty of such weapons in the future." See H.R. Rep. No. 103-489,
at 12 (1994), reprinted in 1994 U.S.C.C.A.N. 1820, 1820.
That report chronicles five years of congressional hearings on
the escalating use of semiautomatic assault weapons, the
difficulties such weapons cause state police officers and the
disproportionate link between such weapons and drug-
trafficking and violent crime. See H.R. Rep. No. 103-489, at
13-18. While the report itself does not pinpoint the effect of
the regulated activities on interstate commerce, the five years
of hearings discussed in the legislative report do contain
extensive testimony detailing the kind and extent of interstate
commerce, featuring the flow of semiautomatic assault weap-
ons across state lines. See id. at 13.

The congressional hearings referred to in House Report
489 of the 1994 Act amply demonstrate that the ban on
possession in the Act was a measure conceived to control and
restrict the interstate commerce in "semiautomatic assault
weapons," especially their importation into states which pro-
hibit them. To restrict that commerce it imposed criminal
liability for those activities which fuel the supply and demand
for such weapons. The ban on possession is a measure

intended to reduce the demand for "semiautomatic assault
weapons." See United States v. Rybar, 103 F.3d 273, 283 (3d
Cir. 1996) (holding that FOPA targets the mere intrastate
possession of machine guns as a "demand-side measure to
lessen the stimulus that prospective acquisition would have on
the commerce in machine guns"); United States v. Rambo, 74
F.3d 948, 951 (9th Cir. 1995) (holding that the ban on posses-
sion is in effect " 'an attempt to control the interstate market
... by creating criminal liability' " for the " 'demand-side of
the market, i.e., those who would facilitate illegal transfer out
of the desire to acquire mere possession") (quoting United
States v. Kirk, 70 F.3d 791, 796 (5th Cir. 1995), vacated, 78
F.3d 160 (1996)). The restriction on the manufacture and
transfer of such weapons is an attempt to restrict the supply
of such weapons in interstate commerce. Manufacture, trans-
fer and possession are activities that not only substantially
affect interstate commerce in "semiautomatic assault weap-
ons," but are also the necessary predicates to such commerce.
See NAHB, 130 F.3d at 1047. The ban on possession of
"semiautomatic assault weapons" in this context is necessary
to allow law enforcement to effectively regulate the manufac-
ture and transfers where the product comes to rest, in the
possession of the receiver. See id.; Kirk, 70 F.3d at 796; see
also 1 Lawrence H. Tribe, American Constitutional Law
s 5-4 at 819-20 n.50 (3d ed. 2000) (suggesting that the Act in
Lopez might have been upheld as a necessary and proper
means of effectuating the commerce power if Congress crimi-
nalized only the possession of guns whose interstate sale or
transport had been outlawed on the theory that making
possession a crime would facilitate enforcement of the ban on
sale or transport). The congressional testimony unmistak-
ably shows that the purpose of the ban on possession has an
"evident commercial nexus." Lopez, 514 U.S. at 580 (Kenne-
dy, J., concurring).

For instance, Barbara Fass, the Mayor of Stockton, Cali-
fornia, testified about the 1989 murders at a schoolyard in her
city and complained that "legislation alone in our community
is not sufficient." Semiautomatic Assault Weapons Act of

1989: Hearings on H.R. 1190 Before the Subcomm. on Crime
of the House Comm. on the Judiciary, 101st Cong. 142 (1989)
(noting that the assault weapon used was prohibited in Stock-
ton, but the assailant subverted local laws by legally purchas-
ing an assault weapon in Oregon and purchasing the bullets
in Rhode Island). Similarly, Boston Mayor Raymond L.
Flynn testified that local controls on assault weapons were
ineffective since "people can still buy guns in one state and
bring them into another." Assault Weapons: Hearings on
S.386 and S.747 Before the Subcomm. on the Constitution of
the Senate Comm. on the Judiciary, 101st Cong. 130 (1989);
see also id. at 87, 143 (remarks of Sen. Simon and statement
of Sen. Kennedy) (same). Richard Cook, the Chief of the
Firearms Division of the BATF attested to the existence of
interstate trafficking in weapons and its connection to inter-
state drug trafficking. See Select Crime Issues: Prevention
and Punishment: Hearings Before the Subcomm. on Crime
and Criminal Justice of the House Comm. on the Judiciary,
102d Cong. 43 (1991) (also noting that "New York City alone
seizes some 17,000 illegal weapons each year with 96 percent
coming from outside the State" as an example of the large
interstate market for firearms).4

Congress also heard extensive testimony from police offi-
cers about the significant flow of weapons across state lines
and the inability of a state to control it. The Vice President
of the International Association of Chiefs of Police and Chief
of Police of Greensboro North Carolina, Sylvester Daughtry,
Jr., testified that "the reason there is no decrease in gun-
related mayhem as a result of stringent State and local gun
control laws is that guns are easily purchased in less strin-
gent locations and brought into these stricter areas.... Gun

__________
4 Congress heard other testimony regarding specific crimes
where the assailant subverted state laws by buying a semiautomatic
assault weapon in one state and using it to commit a crime in
another where it was prohibited. See id. at 246 (statement of
Catherine Varner); Assault Weapons: A View From the Front
Lines: Hearing Before Senate Committee on the Judiciary, 103d
Cong. 38 (1994) (Statement of Sarah Brady, chair of Handgun
Control Int'l).

control will only work if all states are required to observe it."
Public Safety and Recreational Firearms Use Protection Act:
Hearing Before the Subcomm. on Crime and Criminal Jus-
tice of the House Comm. on the Judiciary, 103d Cong. 165
(1994). Fred Thomas, Chief of Police in Washington, D.C.
testified that despite stringent gun control laws in the District
of Columbia, gun violence did not decrease because "guns are
easily purchased in less stringent locations and brought into"
D.C. Assault Weapons: A View From the Front Lines:
Hearing Before Senate Committee on the Judiciary, 103d
Cong. 49 (1994) (also noting that of all the firearms seized by
D.C. police in the previous year, 97.7 percent came from
outside of D.C.). The National President of the International
Brotherhood of Police Officers concluded that a national ban
on assault weapons was necessary because not only do "many
individuals ... travel from one state into another to circum-
vent state laws" which restrict the sale and use of such
weapons, but "such circumvention of laws is common." See
id. at 58 (statement of Kenneth T. Lyons).5

In sum, the congressional testimony on the bill shows that
Congress was well aware that there was significant interstate

__________
5 Congress also heard testimony from state and federal lawmak-
ers regarding the necessity of a national ban on semiautomatic
assault weapons because existing state and federal regulation were
insufficient. Jim Florio, at that time Governor of New Jersey,
testified that "no individual state law, no matter how strong, can
stop the deadly flow of these weapons across State lines." Assault
Weapons: A View From the Front Lines: Hearing Before Senate
Committee on the Judiciary, 103d Cong. 22 (1994) (also noting that
the day a New Jersey statewide ban on assault weapons took effect,
a man with an assault weapon obtained from Florida took a mother
and her two children hostage, murdered the mother and shot her
daughter 14 times). Then-Representative Charles Schumer testi-
fied before the Senate Judiciary Committee that "[o]ne city or state
simply can't control the flow of weapons. They just go buy them in
another state. We need a national ban." Id. at 7; see also id. at 11
(statement of Senator Diane Feinstein) (stating that "without a
national ban on these weapons ... state and local initiatives are
meaningless. Lenient laws allow gun buyers ... to simply cross
state lines and purchase their weapons of choice.").

traffic in semiautomatic assault weapons and that state laws
and existing federal firearms regulation were inadequate to
control the flow of these weapons across state lines.

Appellants asserted at oral argument, however, that the
real purpose of the Act must be to prohibit purely intrastate
manufacture, transfer and possession of semiautomatic as-
sault weapons because both the manufacture and transfer of
semiautomatic assault weapons designed for interstate com-
merce is already prohibited by statute. However, we can
locate no federal law other than the Act which specifically
restricts intra- or interstate manufacture, transport or pos-
session of semiautomatic assault weapons. See, e.g., 18
U.S.C. s 922. Before this Act was passed, manufacturing,
importing, and dealing in "semiautomatic assault weapons"
was legal for any licensed importer, licensed manufacturer
or licensed dealer of firearms (hereinafter "licensee"). See
18 U.S.C. s 922(a)(1). The prior statutory framework of
firearms legislation thus left unregulated a wide array of
manufacture, transfer and possession of firearms all with un-
deniable substantial effects on interstate commerce.6 The

__________
6 While s 922(b)(3) prohibits a licensee from selling or delivering
a firearm to an unlicensed transferee whom the licensee knows or
has reasonable cause to know does not reside in the state of the
licensee's place of business ("LPOB"), it allows a licensee to (a) sell
or deliver any rifle or shotgun to a resident of a state other than the
state of the LPOB if the transferring parties meet in person to
effectuate the transfer, and the sale, delivery and receipt comply
with legal conditions of sale in both the state of residence of the
transferee and place of business of the transferor and (b) to loan or
rent a firearm to any person for temporary use for lawful sporting
purposes.

Further, s 922(a)(3) allows any licensee to transport or deliver
any firearm obtained outside her state into her state. See id.
s 922(a)(3). Persons without a license cannot transport weapons in
that fashion except for lawful receipt out-of-state through intestate
succession or bequest or the transportation or receipt of any rifle or
shotgun sold or delivered to her under s 922(b)(3). See id.
s 922(a)(3)(A), (B). In addition, any unlicensed person is prohibited
from transferring any firearm to any person whom the transferor

interstate activities prohibited solely by the 1994 Act, such as
the interstate sale and delivery of semiautomatic weapons
between federal licensees, are the type of activities which
arise out of or are connected with a commercial transaction,
and when viewed in the aggregate substantially affect inter-
state commerce. See Lopez, 514 U.S. at 561; see also Wick-
ard, 317 U.S. at 128-29. Moreover, since the Act does not
apply to the transfer or possession of a weapon otherwise

__________
knows or has reason to believe does not reside in her state except
for (a) the transport, transfer or delivery of a firearm pursuant to a
bequest or intestate succession and (b) the loan or rental of a
firearm to another for temporary use for lawful sporting purposes.
See id. s 922(a)(5). Finally, any person not otherwise prohibited
from transporting, shipping or receiving a firearm may transport a
firearm for any lawful purpose from any place where she may
lawfully possess such firearm to any other place where she may
lawfully possess such firearm so long as during such transportation,
the firearm is unloaded and neither the firearm nor ammunition is
accessible from the passenger compartment of the transporting
vehicle. See id. s 926A.

Many activities affecting interstate commerce which would be
prohibited under the Act in dispute here are not covered by the
firearms regulation framework existing before the Act. For exam-
ple, a licensee could otherwise buy, receive, sell or deliver in
interstate commerce any "semiautomatic assault weapon" to or from
a fellow licensee. See id. ss 922(a), (b). A licensee could sell or
deliver any rifle or shotgun, including the Penn Arms Striker 12 or
any semiautomatic rifle or shotgun under the definition of
s 921(a)(30)(B) or (D) to any transferee whom the licensee has
reason to know resides in another state that does not prohibit the
weapon. See id. s 922(b)(3). In turn, the transferee could then
transport that weapon into any other state which does not prohibit
that weapon. See id. s 926A. In addition, any licensee could sell
any type of "semiautomatic assault weapon" to another person
residing in his state, even if for the express purpose of the buyer
using it interstate. See id. ss 922(a)(3), 926A. The buyer could
then transport it to any other state which does not prohibit the
weapon. See id. ss 922(a)(3), 926A. In addition, a person from any
state could loan or rent a "semiautomatic assault weapon" for
temporary use in lawful sporting activities in another state. See id.
ss 922(a)(5)(B), (b)(3)(B).

lawfully possessed on the date of the Act's effectiveness, the
intrastate possession banned by the Act will virtually always
arise out of an illegal manufacture or transfer of a "semi-
automatic assault weapon". See 18 U.S.C. s 922(v)(2).

In the final analysis, however, the primary reason why
appellants' point about the purpose of the Act is not well
taken is because even if the interstate activities regulated by
this statute are already prohibited, the intrastate activities
regulated by the Act nonetheless have a substantial effect on
interstate commerce. The prohibition of the intrastate activi-
ties 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, 514
U.S. at 561; see also 1 Tribe, s 5-4, at 819-20 n.50. The
congressional testimony behind the 1994 Act demonstrated
that the previous federal firearms regulation scheme and
state law were being widely circumvented and were thus
inadequate to allow states to control the flow of semiautomat-
ic assault weapons across their borders. Based on the grave
dangers posed by such weapons before prior federal and state
laws could be enforced, Congress decided that it needed to
take the additional step of stifling their manufacture and flow
in interstate commerce. These circumstances necessitated a
law that would prevent any commercial activity in these
particularly dangerous types of guns where it began with the
manufacture and interstate transfer, and where it ended with
their possession in other states throughout the nation.7

__________
7 While it may be argued that the statute sweeps too broadly by
prohibiting "purely" intrastate transfers or possession of "semiauto-
matic assault weapons," the Supreme Court has made clear that
"where the class of activities is regulated and that class is within
the reach of federal power, the courts have no power 'to excise, as
trivial, individual instances' of the class." Perez v. United States,
402 U.S. 146, 154 (1971) (quoting Maryland v. Wirtz, 392 U.S. at
193); see also 1 Tribe, s 5-5, at 831 n.27 (noting that if a gun was
manufactured in one state and happened to be purchased by the
ultimate buyer in that same state, the purchase can "affect" inter-
state commerce, even though it was intrastate in this one instance,

 It may be argued that congressional hearings alone are not
sufficient to demonstrate that a statute is directed at regulat-
ing interstate commerce, but the Supreme Court's precedent
dictates otherwise. In Lopez, the Supreme Court stated that
it would consider legislative findings and even congressional
committee findings to determine if there was a rational basis
for congressional action; the Court in truth did not say
whether it would consider congressional hearings. See 514
U.S. at 562. However, there are instances where even
though Congress has not made findings about any substantial
effect on interstate commerce, the Supreme Court has upheld
legislation under the Commerce Clause solely on the basis of
congressional hearings. See Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 252-53 (1964); Katzenbach v.
McClung, 379 U.S. 294, 299-300 (1964).

Both Heart of Atlanta Motel and McClung involved Com-
merce Clause challenges to the public accommodations provi-
sions of the Civil Rights Act of 1964, which contained no
congressional findings. The Court in both cases held, as it
did in Lopez, that Congress was not required to make formal
findings in order to legislate under the Commerce Clause.
See Heart of Atlanta Motel, 379 U.S. at 252; McClung, 379
U.S. at 299, 304; see also Lopez, 514 U.S. at 562 (noting that
Congress is normally not required to make formal findings as
to the substantial effects that an activity has on interstate
commerce). In fact, the Lopez Court cited McClung with
approval for this exact proposition. See 514 U.S. at 563. As
with the public accommodations provisions of the Civil Rights
Act of 1964, the "record" of the Violent Crime Control and
Law Enforcement Act's "passage through each house is re-
plete with evidence" of the effect of the prohibited activities
on interstate commerce. Heart of Atlanta, 379 U.S. at 252;
McClung, 379 U.S. at 299. Therefore, we find that in light of
the extensive testimony regarding the interstate flow of sem-
iautomatic assault weapons across state lines, that Congress
had a rational basis for regulating the manufacture, transfer

__________
in the same way that the farmer's consumption of his home-grown
wheat did in Wickard).

and possession of semiautomatic assault weapons as an exer-
cise of the commerce power that substantially affects inter-
state commerce.

Our conclusion that the Act regulates activity which has a
substantial effect on interstate commerce is supported not
only by testimony before the Congress that enacted it but
also by the congressional findings accompanying federal fire-
arms legislation enacted prior to the Act at issue. In 1938,
Congress enacted the Federal Firearms Act, which regulated
the manufacture and transfer of firearms in interstate com-
merce, and defined it as "[a]n Act to regulate commerce in
firearms." See Pub. L. No. 785, 52 Stat. 1250, 1250. In 1968,
Congress passed the Omnibus Crime Control and Safe
Streets Act of 1968 ("OCCSSA") and the chapter regulating
firearms was titled "State Firearms Control Assistance."
Pub. L. No. 90-351, 82 Stat. 197, 225. The OCCSSA con-
tained congressional findings that: "there is a widespread
traffic in firearms moving in or otherwise affecting interstate
commerce, and ... the existing Federal controls over such
traffic do not adequately enable the states to control this
traffic within their own borders through the exercise of their
police power." 82 Stat. at 225. Congress further found that
"the ease with which any person can acquire firearms, ... is
a significant factor in the prevalence of lawlessness and
violent crime in the United States." See id.8 These two

__________
8 Appellants claim that the Gun Control Act of 1968 superseded
and impliedly repeals these findings from the OCCSSA because the
findings were not contained in the later Act. However, the House
Report accompanying the Gun Control Act states that the Act
"builds substantially on the regulatory framework contained in title
IV of the Omnibus Crime Control and Safe Streets Act of 1968" and
makes three major additions. See H.R. Rep. No. 90-1577, at 7
(1968), reprinted in 1968 U.S.C.C.A.N. 4410, 4413. Since the Gun
Control Act was merely extending the OCCSSA, the congressional
findings were omitted as unnecessary. See id. at 5. The report
does not make any reference to the Gun Control Act repealing or
superseding any part of the OCCSSA.

It is a well-established principle of statutory interpretation that
implied repeals should be avoided. See, e.g., Randall v. Loftsgaar-
den, 478 U.S. 647, 661 (1986) ("repeals by implication are not

findings express the widely accepted knowledge that there is
a vast interstate market in firearms that makes the states
unable to control the flow of firearms across their borders or
to prevent the crime inevitably attendant to the possession of
such weapons once inside their borders.

The congressional findings which accompanied the Gun
Control Act of 1968 were even more explicit: "the principal
purpose of [the Act] ... is to strengthen Federal controls
over interstate and foreign commerce in firearms and to
assist the States effectively to regulate firearms traffic within
their borders." H.R. Rep. No. 90-1577, at 6 (1968), reprinted
in 1968 U.S.C.C.A.N. 4410, 4411. These congressional find-
ings further attest to Congress' concern over a significant
interstate commerce in firearms, and the need to regulate
possession of firearms to control the unwanted flow of fire-
arms across state lines.

The district court here found that s 922(v) is sufficiently
similar to the subject matter of prior federal firearms legisla-
tion to permit the use of earlier findings to demonstrate that
the activities regulated by the current Act substantially affect
interstate commerce. See Memorandum Order and Opinion,
J.A. at 69. Appellants argue that under Lopez, the prohibito-
ry provisions of the Act cannot be supported by legislative
findings in previous firearms legislation. In Lopez, the Court
refused to import Congressional findings from previous fire-

__________
favored"). Courts have "seldom, if ever, held that a federal statute
is impliedly repealed," and will only find such a repeal when two
statutes are in "irreconcilable conflict." See Matsushita Elec. In-
dus. Co. v. Epstein, 516 U.S. 367, 381 (1996). Furthermore, this
court has noted that the reason for the rule is that Congress is
normally expected to be aware of its previous enactments and to
provide clear statement of repeal if it intends to do so. See
Samuels v. District of Columbia, 770 F.2d 184, 194 n.7 (citing TVA
v. Hill, 437 U.S. 153, 189-93 (1978)). This rationale is particularly
applicable here, where the two laws at issue were passed four
months apart and the legislative history of the second Act specifical-
ly discusses the first Act. See H.R. Rep. No. 90-1577, at 6-7. The
legislative report shows that not only was Congress aware of the
Omnibus Act, it also did not intend to repeal the Omnibus Act's
congressional findings.

arms legislation in order to find an interstate nexus for the
Gun Free School Zones Act ("GFSZA"). See Lopez, 514 U.S.
at 563. The Court said that importing findings from previous
law was "especially inappropriate" since previous enactments
and findings did not address the subject matter of the ban in
dispute, i.e., a ban on guns in a school zone and its relation-
ship to interstate commerce. Rather, the Court concluded,
the GFSZA " 'plows thoroughly new ground and represents a
sharp break with the long-standing pattern of federal fire-
arms legislation.' " Id. (quoting United States v. Lopez, 2
F.3d 1342, 1366 (5th Cir. 1993)); see also Lopez, 2 F.3d at
1366-67 (noting that the GFSZA is a regulation of schools).

True, the Supreme Court's opinion in Lopez does not speak
with sharpness or clarity in laying down a test for determin-
ing if a statute represents a break with a long-standing
pattern of prior legislation. See 514 U.S. at 559. However,
the Supreme Court's decision in Maryland v. Wirtz, 392 U.S.
183 (1968), overruled on other grounds by National League of
Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v.
San Antonio Metropolitan Transit Authority, 469 U.S. 528
(1985), is more instructive on this issue. In Wirtz, the Court
considered a Commerce Clause challenge to the 1961 amend-
ments to the Fair Labor Standards Act, which had itself been
upheld as a valid exercise of the Commerce power in United
States v. Darby. See id. at 188 (citing Darby, 312 U.S. 100
(1941)). The provision at issue in Wirtz extended the scope of
employees covered by the Act from employees "engaged in
commerce or in the production of goods for commerce" which
was upheld in Darby, to every employee "employed in an
enterprise engaged in commerce or in the production of goods
for commerce" even if the particular employee did not work
in the enterprise's commercial activity. Id. at 188. The
Wirtz Court concluded that the constitutionality of the ex-
tended protection was settled by the Court's reasoning in
Darby. See id. The Court reasoned that it was irrelevant
whether the legislative history of the amendments contained
a new finding that the extension affected commerce because
"the original Act stated Congress' findings and purposes as of

1938. Subsequent extensions of coverage were presumably
based on similar findings and purposes with respect to the
areas newly covered." Id. at 190 n.13. Therefore, even
though the amendments at issue in Wirtz in some sense
"broke new ground," the prior findings were nonetheless held
sufficient to support the constitutionality of the new amend-
ments under the Commerce Clause.

The extension of federal regulation over "semiautomatic
assault weapons" to all manufacture, transfer and possession
is in our view, quite similar to the extension of the scope of
employees covered by the FLSA in Wirtz. In Wirtz, the
subject matter of both the original act and the amendments
was employees of manufacturers engaged in interstate com-
merce. See 392 U.S. at 187. The congressional findings in
the original FLSA that sub-par labor conditions in manufac-
ture carried on in one state could cause interstate commerce
to be used to spread poor labor conditions among workers in
other states, burden the flow of commerce, and constitute an
unfair method of competition in interstate commerce served
to adequately explain the connection between the labor condi-
tions of the newly-protected employees and interstate com-
merce. See id. at 190. In this case, the subject matter of
both the prior firearms legislation and the present Act is
control over the distribution of firearms in a national market.
See Scarborough v. United States, 431 U.S. 563, 564 (1977);
Huddleston v. United States, 415 U.S. 814, 824 (1974) (hold-
ing that the purpose of the OCCSSA and Gun Control Act
was to control the "widespread traffic in firearms"). In
addition, Congress originally found a connection between the
widespread traffic in firearms in interstate commerce, and the
purpose of the present Act, i.e., to help states adequately
control that traffic across their own borders. See 82 Stat. at
225-26 (1968). This Act merely extends federal control over
the distribution of a certain type of firearm to all manufac-
ture, transfer and possession. To the extent that the connec-
tion to interstate commerce is not clear from the congression-
al hearings for the present Act, the congressional findings in
prior federal firearms regulation more than adequately dem-
onstrate that connection.

 The statute at issue in Lopez is clearly distinguishable
because it dealt not with federal control over the distribution
of firearms, but with federal protection of a discrete geo-
graphical zone around a school. The congressional findings
behind earlier federal firearms regulation that we have allud-
ed to did not address the subject of gun possession around a
school, rather they addressed the widespread flow of weapons
across state lines and the inability of state law enforcement to
regulate it. Nor did these findings explain how possession in
a school zone has any connection to interstate traffic in
firearms or the flow of firearms across state lines. Finally,
the statute in Lopez was not supported by any extensive
congressional testimony addressing problems discussed in
congressional findings behind earlier firearms legislation. As
a result, the ban on school zone firearm possession, entirely
intrastate, could not be justified as necessary to effectuate a
larger scheme to control interstate traffic.

The use of congressional findings from prior federal fire-
arms legislation to demonstrate the connection between the
Act and interstate commerce is supported by the decisions of
other circuits upholding the Firearms Owner Protection Act
of 1986 ("FOPA"). Courts of appeals have unanimously
upheld the FOPA, which makes it unlawful to "transfer or
possess a machine gun."9 18 U.S.C. s 922(o) (1994). The
FOPA is not supported by any legislative findings. See
United States v. Franklyn, 157 F.3d 90, 95 (2d Cir. 1998);
United States v. Rybar, 103 F.3d 273, 279 (3d Cir. 1996).
Nonetheless, other circuits have held that the subject matter
of FOPA is sufficiently similar to previous firearms legislation
to render appropriate the importation of prior legislative
findings as a reliable statement of Congress' intent in passing
FOPA. See, e.g., Franklyn, 150 F.3d at 95; Rybar, 103 F.3d
at 279; Kenney, 91 F.3d at 890; Wilks, 58 F.3d at 1521; see
also Knutson, 113 F.3d at 30-31; Beuckelaere, 91 F.3d at

__________
9 The Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth and
Eleventh Circuits have all upheld the FOPA against post-Lopez
Commerce Clause challenges. In each case, the court upheld the
defendant's conviction for possession of a machine gun. In addition,
the First Circuit has upheld a similar statute banning possession of
firearms by juveniles. See supra, note 3.

784-85 (not specifically making a finding of similar subject
matter but nonetheless relying on congressional findings in
prior acts). These cases have distinguished FOPA from the
Gun Free School Zone Act in Lopez on the ground that the
former does not represent a "sharp break" with the long-
standing pattern of federal firearms legislation, but rather a
continuation of the design of earlier statutes to regulate the
interstate flow of firearms. See Rybar, 103 F.3d at 279;
Wilks 58 F.3d at 1521 n.4. That is certainly true of this Act
as well, which prohibits a particularly dangerous class of
weapons from interstate commerce.

B. The Constitutional Attack Under the Bill of Attainder
Clause

Appellants' argument that s 921(a)(30)(viii) and (ix) when
combined with s 922(v)(1) is an unconstitutional Bill of At-
tainder is largely disposed of by this court's recent decisions
involving the BellSouth Corporation's challenges to provisions
of the Telecommunications Act of 1996. See BellSouth Corp.
v. FCC, 162 F.3d 678 (D.C. Cir. 1998) ("BellSouth II");
BellSouth Corp. v. FCC, 144 F.3d 58 (D.C. Cir. 1998) ("Bell-
South I"). BellSouth II defined the framework for modern
bill of attainder analysis. Under the current interpretation of
the Bill of Attainder Clause, a law is constitutionally imper-
missible if it both specifically singles out individuals (or
businesses) and imposes punishment on them. See BellSouth
II, 162 F.3d at 683 (citing United States v. Lovett, 328 U.S.
303, 315 (1946)); see also Nixon v. Administrator of Gen.
Serv., 433 U.S. 425, 471-72 (1977) ("the Act's specificity, the
fact that it refers to appellant by name does not automatically
offend the Bill of Attainder Clause"). Once it is determined
that a law identifies its subject with specificity, the next
question is whether the statute inflicts punishment as defined
by Nixon. See BellSouth II, 162 F.3d at 684. Under Nixon,
whether a statute inflicts a "punishment" under the Bill of
Attainder Clause depends on

(1) whether the challenged statute falls within the
historical meaning of legislative punishment; (2) whether
the statute, viewed in terms of the type and severity of

 the burdens imposed, reasonably can be said to further
non-punitive legislative purposes; and (3) whether the
legislative record evinces a congressional intent to pun-
ish.

See BellSouth II, 162 F.3d at 684 (quoting Nixon, 433 U.S. at
473, 475-76, 478).

We need not address the issue of whether the Act applies
with specificity,10 because the Act does not impose punish-
ment on Intratec and Penn Arms as contemplated by the Bill
of Attainder Clause in Article I, Section 9 of the Constitution.

The historical meaning of legislative punishment includes a
death sentence, imprisonment, banishment, confiscation of
property and legislative bars to participation by individuals or
groups in specific employments or professions. See Nixon,
433 U.S. at 473-74; Selective Serv. Sys. v. Minnesota Pub.
Interest Research Group, 468 U.S. 841, 852 (1984). The Act
at issue in this case does not condemn appellants to death or
imprisonment, but rather specifies certain conduct from
which appellants must refrain in order to avoid punishment.
Appellants argue that the Act operates as a legislative bar to
their participation in specific employments or professions.
Appellants claim that the Act prohibits them from the em-
ployment or profession of manufacturing "semiautomatic as-
sault weapons."

Those cases in which the Supreme Court has struck down
statutes which bar specific parties from employment as im-
posing punishment, however, are different than the present
case because all involved situations in which the ban was used
as a "mode of punishment ... against those legislatively
branded as disloyal." Nixon, 433 U.S. at 474; see United
States v. Brown, 381 U.S. 437 (1965) (statute preventing a

__________
10 Indeed, the fact that ss 921(a)(30)(A)(viii) and (ix) name not
only the guns produced by appellants but also any copies or
duplicates of those firearms, raises a question of whether or not the
Act specifically applies to appellants. Moreover, the fact that the
definition of "semiautomatic assault weapons" includes fourteen
other firearms by name as well as three broad categories of pistols,
rifles and shotguns is evidence that Congress was not singling out
appellants, but rather aiming to prohibit an entire class of weapons.

member of the Communist Party from holding office in a
labor union); United States v. Lovett, 328 U.S. 303 (1946)
(statute cutting off salary of three named employees based on
their membership in the Communist Party); Ex Parte Gar-
land, 71 U.S. 333 (1866) (statute requiring attorneys to take
oath that they had not aided the Confederacy before being
allowed to practice in federal court); Cummings v. Missouri,
71 U.S. 277 (1866) (state constitution provision barring those
who had aided or sympathized with the Confederacy from
teaching, holding office, or serving as a trustee for a religious
organization). This court in BellSouth I focused on the
Supreme Court's opinion in Brown which distinguished a
statute making it a crime for a member of the Communist
Party to hold a position as an officer in a labor union from
section 32 of the Banking Act which prevented members of
securities underwriting firms from working for banks that
belong to the Federal Reserve System. See BellSouth I, 144
F.3d at 65 (citing Brown, 381 F.3d at 453-55). The court in
Brown distinguished the two statutes on the ground that
while the former statute " 'inflicted its deprivation upon the
members of a group thought to present a threat to the
national security' " the latter " 'incorporate[d] no judgment
censuring or condemning any man or group of men.' " See
BellSouth I, 144 F.3d at 65 (quoting Brown, 381 U.S. at 453-
54); see also BellSouth II, 162 F.3d at 686 (noting that a law
falls within the historical punishment of a bar to employment
only where there are concerns that the restrictions it imposes
violate fundamental guarantees of political and religious free-
dom). In this case, the ban on semiautomatic assault weap-
ons raises no concern that Congress is singling out appellants
for punishment because they are disloyal or disfavored. Con-
gress has rather singled out certain weapons as dangerous
and disproportionately linked to crime. Therefore, the Act's
prohibition of the specific weapons manufactured by appel-
lants does not fall within the historical meaning of punish-
ment.

Even if a statute does not fall within the historical defini-
tion of a punishment, this court must apply the second prong
of Nixon, which requires that a nonpunitive legislative pur-
pose is served by the legislation. See BellSouth I, 144 F.3d

at 65. The purpose of this requirement is to "prevent
Congress from circumventing the clause by cooking up new-
fangled ways to punish disfavored individuals or groups." Id.
This approach recognizes that merely because a regulation is
burdensome does not mean that it constitutes punishment.
For example, the Supreme Court has upheld a statute prohib-
iting convicted felons from serving as officers of a waterfront
union. See DeVeau v. Braisted, 363 U.S. 144 (1960). The
Court reasoned that even though the statute placed a burden
on convicted felons, it did not seek to punish them but rather
to devise an effective scheme to regulate waterfront criminal
activity. Since the goal of the legislative scheme was to
improve the integrity of waterfront commerce, exclusion of
individuals previously convicted of a felony was a legitimate
means to that end. See id. at 160. Similarly, although the
Act in this case does place a particular burden on appellants,
the legislative history of the Act shows that the intent of the
Act was not to inflict punishment on appellants, but rather to
reduce the availability of semiautomatic assault weapons,
prevent the flow of such weapons into states with laws
prohibiting them, and reduce the violent crime disproportion-
ately associated with these types of guns. See H.R. Rep. No.
103-489, at 1-2 (1994). In addition, Congress' inclusion of
copies and duplicates of the guns made by appellants, four-
teen other guns by name and three broad categories of
pistols, rifles and shotguns in the definition of "semiautomatic
assault weapon" indicates that it was aiming not to punish
appellants, but rather to regulate an entire class of weapons.
See 18 U.S.C. s 922(a)(30). The text and legislative history
of the Act therefore demonstrate that the Act serves a
legitimate nonpunitive purpose.

The final prong of the Nixon test is whether the legislative
record indicates a legislative intent to punish. The case law
instructs that under this prong, appellants must show " 'un-
mistakable evidence of punitive intent.' " See BellSouth I,
144 F.3d at 67 (quoting Selective Serv. Sys., 468 U.S. at 856
n.15. Moreover, isolated statements are not sufficient to
show a punitive intent. See Selective Serv. Sys., 468 U.S. at
856 n.15; see also BellSouth I, 144 F.3d at 67 (requiring

" 'smoking gun' evidence of congressional vindictiveness" to
justify finding punitive intent). Appellants note that in a
footnote the House Report summarizing the Act lists all of
the semiautomatic weapons that are specifically listed in the
statute. See H.R. Rep. No. 103-489, at 20 n.35. Further-
more, appellants point out that they are repeatedly named in
the floor debates as the manufacturers of banned weapons.
These allegations fall well short of the type of evidence
required to show a legislative intent to punish. In BellSouth
I, this court held that even a few scattered remarks referring
to anti-competitive abuses committed by baby-Bells in the
past were insufficient to show the necessary legislative intent
to punish. See 144 F.3d at 67. The statements appellants
complain of do not rise to the statements in BellSouth I. In
BellSouth I, the statement singled out specific bad acts by the
party, indicating the possibility that the speaker had found
fault with the baby-Bell. Here, the mere mention of appel-
lants' guns in the House Report and their names in the floor
debates do not so much suggest an intent to punish as
represent mere recitals of the content of the Act itself. This
is far from the unmistakable evidence of punitive intent
required by the Supreme Court in Selective Serv. Sys. See
468 U.S. at 856 n.15.

Therefore, since the prohibition effectuated by the Act
neither falls within the historical meaning of punishment, nor
exhibits a purely punitive purpose, nor manifests a congres-
sional intent to punish appellants, it does not constitute an
unconstitutional Bill of Attainder.11

__________
11 Finally, appellants argue that the BellSouth cases and the
Nixon test should be inapposite here because the statute at issue
imposes a criminal penalty whereas the statutes in BellSouth,
Nixon and previous Bill of Attainder cases did not. See Appellants'
Reply Br., at 19-20. However, appellants are unable to point to
any authority nor give a rational justification for this distinction.
Rather, appellants argue that since the Act imposes a criminal
penalty, it automatically satisfies the punishment requirement of a
bill of attainder. Yet nowhere in Nixon or the cases subsequent to

 III. Conclusion

We hold that section 110102 of the Violent Crime Control
and Law Enforcement Act of 1994 is within Congress' Com-
merce Clause power and does not constitute an unconstitu-
tional Bill of Attainder. The district court's decision granting
the government's motion for summary judgment is therefore

Affirmed.

__________
it is there indication that the Nixon test doesn't apply to a statute
that imposes criminal penalties. Furthermore, appellants' argu-
ment is disproved by United States v. Brown, 381 U.S. 437 (1965),
which also involved a statute imposing a criminal penalty. See id.
at 438. In Brown, the Court applied the same factors as Nixon
when it inquired into the question of punishment by first consider-
ing the historical gloss on the meaning of punishment, and next
determining whether the purpose of the Act was punitive or non-
punitive. See id. at 458-59. The Court's analysis in Brown demon-
strates that the factors used in the Nixon test for punishment
under the Bill of Attainder Clause apply with equal force to both
civil and criminal statutes. Indeed, the mere fact that Nixon cites
Brown as determining whether punitive or nonpunitive objectives
underlie a law is strong evidence that the Nixon Court did not
believe that a different test applied to a statute which imposed a
criminal penalty, as was the case in Brown. See 433 U.S. at 475-76
n.40.