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Posted: 9/21/2004 1:36:09 PM EST
no i don't mean that the sunsetting of the ban legalizes full-auto gun's . what i mean is that i heard from a friend today that there is a case to come before the us supreme court in early october that might do this. seems the case came out of the 9th circut court which ruled that an individal can make a full-auto weapon for personal use, i assume this would be form 1. my friend said that if the supreme court decides not to hear this case or if they affirm it that we can make full-auto guns. anyway just wondering one if anyone knows the name of this case so i can look it up or cab tell me more about this thanks
Link Posted: 9/22/2004 5:05:22 AM EST
The case your friend I beleive is refering to is United States v. Stewart, 348 F.3d 1132, 03 C.D.O.S. 9805.

From the case caption in Westlaw:

Defendant was convicted in the United States District Court for the District of Arizona, Roslyn O. Silver, J., of felony possession of firearms, and five counts of unlawful possession of a machinegun, and he appealed. The Court of Appeals, Kozinski, Circuit Judge, held that: (1) Congress could not, under its Commerce Clause power, prohibit mere possession of homemade machineguns, and (2) Second Amendment did not place limitation on legislation regulating or prohibiting the possession or use of firearms.
Affirmed in part and reversed in part.
Restani, Judge, filed opinion concurring in part, dissenting in part.



West Headnote #2: (Copyrighted by Westlaw, 2004)

Conviction of defendant for possession of machineguns he had machined and assembled himself was unlawful extension of Congress's commerce powers; defendant did not obtain his machineguns by using channels of interstate commerce, and his possession of the homemade machineguns did not have substantial affect on interstate commerce.

(More quotes below)

Stewart is very limited in several regards. 1. The decision is only a 9th Circuit opinion -- if you don't live in WA, MT, ID, OR, NV, AZ, CA, AK, HI, MP,or GU, this doesn't even apply to you. 2. The decision does not affect state law, so if a state criminalizes possession of [unregistered] machineguns, they still are not legal, and a homebuilder would still face state criminal charges, as Stewart might (I don't know if he is being charged in AZ). The federal government does not have a federal police power, so it must craft laws under the interstate commerce power (remember the Lopez case a few years ago?); whereas states do have a generalized police power, and an absolute prohibition of any and all machineguns would probably end in a state conviction.


BTW Not to contradict your friend as a source, but I see no petiton to the US Supreme Court or docketing information for any other court listed in the History section of Westlaw for this case.
Normally (read as "always"), if a case is to come before the Supreme Court in regular session, a petition, or writ of certiori must be filed and granted first, and the Supreme Court ruling of either granting or denying "cert" is published in the federal reporters.


However, there is a 6th Cir case, U.S. v. Thompson, 361 F.3d 918, 2004 Fed.App. 0079P (6th Cir.(Tenn.) Mar 17, 2004), and a Wisconsin federal case, U.S. v. Harrellson, 2004 WL 1447781 (W.D.Wis. Jun 23, 2004), that distinguish Stewart. Thompson deals with explosive devises made from items in interstate commerce, and Harrellson mis-cites Stewart regarding a convicted felon's possession of firearms previously in interstate commerce.

Neither of these cases seem to be going anywhere, although Harrellson seems to be appealing, but I don't know on what grounds.

Cheers, Otto


Interesting quotes from Stewart:

Some components of Stewart's machineguns had crossed state lines, but these components did not add up to a gun. Not even close. Even more than in McCoy, many additional parts and tools, as well as expertise and industry, were needed to create functioning machineguns. This is quite different than if Stewart had ordered a disassembled gun and simply put the parts together, the way one might assemble a chair from IKEA. These machineguns were a "unique type of firearm," with legal parts mixed and matched from various origins; they required more than a simple turn of a screw-driver or a hit of a hammer to become machineguns. We therefore cannot say that the machineguns themselves-- in any recognizable form--traveled in interstate commerce.

348 F.3d at 1136


By contrast, Stewart's homemade machineguns did not stimulate a demand for anything illegal--all the components he bought were legally available from commercial sources. ... Similarly, by crafting his own guns and working out of his own home, Stewart functioned outside the commercial gun market. His activities obviously did not increase machinegun demand. Nor can we say that Stewart's homemade machineguns reduced overall demand. ... Thus, the link between Stewart's activity and its effect on interstate commerce is simply too tenuous to justify federal regulation.

348 F.3d at 1138

Link Posted: 9/22/2004 8:00:37 AM EST

Originally Posted By otto_esq:
BTW Not to contradict your friend as a source, but I see no petiton to the US Supreme Court or docketing information for any other court listed in the History section of Westlaw for this case.



The DoJ asked for and received a 30-day extension to make the decision on whether or not to file the writ of certiorari. The deadline is October 8th, 2004.

http://www.supremecourtus.gov/docket/04a176.htm
Link Posted: 9/22/2004 8:09:32 AM EST
What happens if DoJ does NOT file the writ?

What happens if DoJ does file the writ?
Link Posted: 9/22/2004 9:11:09 AM EST

Originally Posted By Bubbles:
The DoJ asked for and received a 30-day extension to make the decision on whether or not to file the writ of certiorari. The deadline is October 8th, 2004.


www.supremecourtus.gov/docket/04a176.htm
(Made hot)

Interesting. The fact that it hasn't been filed yet would explain why there is not a listing for it.
In any event, Stewart will not be before the Supreme Court on the merits in October (at least not this October).


Maddogkiller:
If DOJ does not file, the 9th Cir opinion remains unappealed.
If DOJ does file, the SC can either grant or deny cert (at least 4 justices have to want to hear the case to grant cert)
If cert is granted, the SC will docket the case and it will go on the calendar (the docket) to be heard by all 9 Justices sometime in their next cycle. Then they debate and issue an opinion.

I am wrong as often as I am right in my predictions on how the SC would go on a particular case that interests me, so I won't hazard a guess, but the libertarianism in me hopes it goes the way of Lopez (the first unconstitutional finding of a law (gun-related, no less!) based on the commerce clause in several decades, after the "expansion" of interstate commerce findings of the early 20th cent. IIRCFMLSD (if I recall correctly from my lawschool daze).)

Cheers, Otto
Link Posted: 9/23/2004 3:11:32 AM EST
hey otto thanks for the great info.
Link Posted: 9/23/2004 3:19:59 AM EST

Originally Posted By shermy:
hey otto thanks for the great info.

+1
Link Posted: 9/23/2004 3:28:21 AM EST

Originally Posted By otto_esq:
If DOJ does not file, the 9th Cir opinion remains unappealed.
If DOJ does file, the SC can either grant or deny cert (at least 4 justices have to want to hear the case to grant cert)



Not to be a pest, but...

What are the implications if the DoJ doesn't file?

What are the implications if the DoJ files and the USSC denies cert?

Also, does it matter that the DoJ asked for an en banc appeal in the Ninth Circuit, and the appeal was denied?
Link Posted: 9/23/2004 5:13:35 AM EST
Originally Posted By Bubbles:

Not to be a pest, but...


No worries.

What are the implications if the DoJ doesn't file?

The 9th Cir ruling stands until either they overrule themselves or the SC overrules them or declines to follow them in some subsequent case or controversy dealing with comparable issues; Stewart's federal conviction for possession of unregistered MG's is overturned, and there is precedent in the states in the 9th Cir listed above that the federal law does not prevent homemade machineguns as described in the narrow facts of the case. It does not affect state law prohibitions, and you'd better beleive that if you were to try what Stewart did, BATFE & DOJ would still come down hard -- it would be up to you to prove that your key MG parts were 1. completely homemade and unique, and not modifications of existing parts, and that 2. that they were never in the stream of commerce in recognizable form, and 3. that you couldn't have legally bought a MG anyhow (Stewart was a felon and the court recognized that any ATF Form he filed was likely to be denied), 4. the MG's or unique parts were never to be for sale or traded or end up in commerce, (probably including sharing the design elements), etc. etc. In other words, ATF and DoJ will most likely continue to act as if the law still applied (for they may win in the 9th the next time) and it is up to you to use Stewart as a defense. Its 10 years if you are unsuccessful, and there is the state prohibition to consider as well.

What are the implications if the DoJ files and the USSC denies cert?

The same as above.

Also, does it matter that the DoJ asked for an en banc appeal in the Ninth Circuit, and the appeal was denied?

The DoJ would have asked for a rehearing en banc (meaning a review by the entire panel of justices of the current opinion formed by relatively few 9th Cir justices) -- it wasn't really an appeal.

To answer your question.
If the rehearing did take place and issued a contrary ruling but made mistakes in interpreting federal law to do so, the SCOTUS might be more inclined to take it up. In that it didn't happen, I don't know. If the petition for cert identifies other circuits' rulings that are in direct conflict with Stewart, possibly, but again I don't know -- not much popped up in Westlaw.
As I said re: Lopez, above: I hope the SC generally agrees with the 9th Cir's restriction on the Commerce Power, for as you can see from Stewart, Congress was getting pretty far afeild with using it as justification for all sorts of laws.

It will be interesting to see what the DoJ comes up with. I can post their petition after it is submitted, if someone reminds me...


Cheers, Otto
Link Posted: 9/23/2004 10:02:17 AM EST
[Last Edit: 9/23/2004 10:03:10 AM EST by shermy]
otto i really shouldn't even worry because of the following makes it so it wouldn't apply to me ,right ?
indiana state code
35-47-5-8. Ownership or possession of
machine gun prohibited. A person who owns
or possesses a machine gun commits a Class C
felony.
35-47-5-10. Exemptions to machine gun
prohibitions. The provisions of section 8 or 9 of
this chapter shall not be construed to apply to
any of the following:
(1) Members of the military or naval forces of
the United States, National Guard of Indiana, or
Indiana State Guard, when on duty or practicing.
(2) Machine guns kept for display as relics
and which are rendered harmless and not
usable.
(3) Any of the law enforcement officers of this
state or the United States while acting in the
furtherance of their duties.
(4) Persons lawfully engaged in the display,
testing, or use of fireworks.
(5) Agencies of state government.
(6) Persons permitted by law to engage in the
business of manufacturing, assembling, conducting
research on, or testing machine guns,
bombs, airplanes, tanks, armored vehicles, or
ordnance equipment or supplies while acting
within the scope of such business.
(7) Persons possessing, or having applied to
possess, machine guns under applicable United
States statutes. Such machine guns must be
transferred as provided in this article.
(8) Persons lawfully engaged in the manufacture,
transportation, distribution, use, or possession
of any material, substance, or device for
the sole purpose of industrial, agricultural, mining,
construction, educational, or any other law -
ful use.
Link Posted: 9/23/2004 12:19:35 PM EST
[Last Edit: 9/23/2004 12:32:54 PM EST by otto_esq]
Well, the plain reading of this statute under Stewart is that you are not in the 9th Circuit, for 1. meaning that the DoJ/ATF position is not necessarily affected by Stewart, and 2. the state law section requires that any MG ownership in Indiana must be by a "(7) Person[] possessing, or having applied to possess, machine guns under applicable United States statutes. Such machine guns must be transferred as provided in this article."

I can see someone trying to argue in state court that there is no "applicable United States statutes" due to the homemade nature of their parts a la Stewart, but they will undoubtably lose because the intent of the language seems to be "only federally registered MG's are OK" and this reading is especially supported by the transfer requirement in the next sentence. (i.e. "must be")

I don't give legal advice over the internet to non-clients, but I would advise against anyone trying to build their own MG's-- Stewart not withstanding. I expect Stewart's legal fees, even "winning" by getting a few of his convictions reversed, would make the cost of a transferable M-16 look like pocket change.

Cheers, Otto

Edited to Add: if anyone is interested, here is a link to the Stewart opinion
and here is a link to state-by-state NFA issues: www.mp5.net/info/sbsconr.htm linked thru the tacked NFA thread by Steve-in-Va at the top of this forum.
Link Posted: 9/23/2004 2:44:16 PM EST
otto
ok i understand now the 9th circuit decision only applies to those states under it's jurisdiction. yes i kind of felt it i out of reach when i read the state law. i also work in a profession where i deal with the law on a daily basis and the breaking of such is not a good thing that's why i usually ask my friendly neighborhood atf agent before i do anything.

thanks for all the help
Link Posted: 10/3/2004 12:41:03 PM EST
(8) Persons lawfully engaged in the manufacture,
transportation, distribution, use, or possession
of any material, substance, or device for
the sole purpose of industrial, agricultural, mining,
construction, educational, or any other law -
ful use.

Does this mean one could buy a post '86 mg for educationl purposes?

i.e. I'm educating myself of the proper use and safety of automatic weapons.

Whadda ya think?

T
Link Posted: 10/3/2004 12:56:38 PM EST
This case is out of Arizona? Arizona, IIRC requires only that NFA weapons be owned legally uderr Federal law. If he can skate on the Federal weapons charge, he ought to be clear of State charges.
Link Posted: 10/3/2004 1:18:35 PM EST

Originally Posted By Combat_Jack:
This case is out of Arizona? Arizona, IIRC requires only that NFA weapons be owned legally uderr Federal law. If he can skate on the Federal weapons charge, he ought to be clear of State charges.



But not the murder-for-hire charge he picked up when he tried to call in a hit on the judge who presided over his initial trial...
Link Posted: 10/3/2004 1:20:33 PM EST
[Last Edit: 10/3/2004 1:20:48 PM EST by Combat_Jack]

Originally Posted By Dave_A:

Originally Posted By Combat_Jack:
This case is out of Arizona? Arizona, IIRC requires only that NFA weapons be owned legally uderr Federal law. If he can skate on the Federal weapons charge, he ought to be clear of State charges.



But not the murder-for-hire charge he picked up when he tried to call in a hit on the judge who presided over his initial trial...



It's sad that its always asshat gun owners in the media. To think, many people think of a guy like this when they learn we are AR owners.
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