Last I heard this was vacated back to the 9th.

Is it a foregon conclusion that the 9th will reverse it's previous position and uphold Stewart's conviction?

What's the status?  Anyone know?

According to the 9th Circuit docket, they are in the process of back and forth filings to see what affect Gonzales v. Raich has on his case (or if it can be differentiated).  Last entry is 11/30/05.  I believe they are waiting on a special reply brief from Stewart's lawyer and then it might go before the three judge panel to make a determination as to whether Raich can be differentiated.

I have little doubt that the 9th Circuit will reafirm it's previous ruling.  They would love nothing better than to have one of their decisions upheld outright by SCOTUS and I am sure they feel their chances are better now with a Roberts led court and Alito involved in the discussion instead of O'Connor.

This is an edited extract concerning confirmation hearings of Judge Alito.  The original text came from the Brady Center, where they were trying to apply a negative spin.  I provide the following edited portion only to communicate Judge Alito's apparent position and likelihood to uphold the 9th’s opinion.

I also didn't find any mention of this on the NRA or ILA web pages.  I guess they are afraid to broach this topic.

I hope rickinvegas is right.  I never thought I'd be rooting for the 9th circuit!



In his Rybar opinion, Judge Alito wrote that the federal machine gun ban amounted to an unconstitutional exercise of Congressional power under the Commerce Clause.

Judge Alito suggested to the Committee that the machine gun ban is indistinguishable from the statute struck down in U.S. v. Lopez, 514 U.S. 549 (1995).  The Gun-Free School Zones Act at issue in Lopez banned possession of guns in a particular place; i.e. at or near a school.    

Moreover, Judge Alito went far beyond the limited holding in Lopez, and indeed his view in Rybar has been repudiated by the Supreme Court.  In June 2005, the Supreme Court issued its latest ruling on Congressional power under the Commerce Clause in Gonzales v. Raich, 125 S.Ct. 2195 (2005), rejecting the theory advanced in Judge Alito’s Rybar dissent.  Six Justices, including Justice Scalia, sustained the application of federal drug laws to intrastate medical marijuana use.  Based on this ruling, the Supreme Court vacated a 2-1 ruling in the Ninth Circuit case of U.S. v. Stewart, 348 F.3d 1132 (9th Cir. 2003), that had declared the machine gun ban to be unconstitutional.  In his exchange with Judge Alito, Senator Kyl cited the Stewart decision, without noting that it had been vacated by the Supreme Court.  

Quoted: This is an edited extract concerning confirmation hearings of Judge Alito.  The original text came from the Brady Center, where they were trying to apply a negative spin.  I provide the following edited portion only to communicate Judge Alito's apparent position and likelihood to uphold the 9th’s opinion. I also didn't find any mention of this on the NRA or ILA web pages.  I guess they are afraid to broach this topic. I hope rickinvegas is right.  I never thought I'd be rooting for the 9th circuit! In his Rybar opinion, Judge Alito wrote that the federal machine gun ban amounted to an unconstitutional exercise of Congressional power under the Commerce Clause. Judge Alito suggested to the Committee that the machine gun ban is indistinguishable from the statute struck down in U.S. v. Lopez, 514 U.S. 549 (1995).  The Gun-Free School Zones Act at issue in Lopez banned possession of guns in a particular place; i.e. at or near a school.     Moreover, Judge Alito went far beyond the limited holding in Lopez, and indeed his view in Rybar has been repudiated by the Supreme Court.  In June 2005, the Supreme Court issued its latest ruling on Congressional power under the Commerce Clause in Gonzales v. Raich, 125 S.Ct. 2195 (2005), rejecting the theory advanced in Judge Alito’s Rybar dissent.  Six Justices, including Justice Scalia, sustained the application of federal drug laws to intrastate medical marijuana use.  Based on this ruling, the Supreme Court vacated a 2-1 ruling in the Ninth Circuit case of U.S. v. Stewart, 348 F.3d 1132 (9th Cir. 2003), that had declared the machine gun ban to be unconstitutional.  In his exchange with Judge Alito, Senator Kyl cited the Stewart decision, without noting that it had been vacated by the Supreme Court.

Did they formally vacate it? or is that just an interpretation based on the other ruling?

Quoted: Did they formally vacate it? or is that just an interpretation based on the other ruling?

They vacated and remanded.  But, that does not necessarily preclude the 9th from issuing a new ruling that differentiates the case from Raich.  The most likely route would be that Congress has a very clear record of findings and intent on the drug issue, but there are no additional findings, data, or anything to support the '86 Hughes Amendment.  Raich was based a grander scheme of controlling the flow of illegal drugs (even though I disagree with the ruling).  In the machinegun case, there is no apparent grand scheme of controlling the flow of machineguns (or at least no evidence of a grand scheme).  Congress just passed the law 'cause it seemed like the politically correct thing to do, not because there was a justified need.

OK all I've been outta the loop for awhile and haven't heard much on the Stewart case.  If he does win what does that mean as far as autos are concerned? Please don't flame me to bad, like I said I've been outta the loop for awhile.

Taken from Subguns:

It seems that US v. Stewart was effectively decided with the Raich ruling last year. However, some commentators believe that with the case handed back to the 9th Circuit, the 86 ban will again be ruled unconstitutional and sent back to the Supreme Court.  The fact that Alito and Roberts are now on the bench is cited as helpful. My question is, why will there be a different result this time around?  If you look at the voting on Raich, it was: Voting For Raich decision Stevens, J. Kennedy Souter Ginsburg Breyer, JJ. Scalia, J. (concurring) Voting against Raich decision O’Connor, J. Rehnquist, C. J. Thomas, J. That's a 6-3 decision, and Alito and Roberts have replaced two of the dissenters.  That means the vote is still 6-3, unless two of the original "for" justices change their minds. Help me out here?

Quoted: In June 2005, the Supreme Court issued its latest ruling on Congressional power under the Commerce Clause in Gonzales v. Raich, 125 S.Ct. 2195 (2005), rejecting the theory advanced in Judge Alito’s Rybar dissent.  Six Justices, including Justice Scalia, sustained the application of federal drug laws to intrastate medical marijuana use.

This is the problem when we allow politics to become confused with law.  If it's a machine gun, the commerce clause does not reach it.  But if it's medical marijuana, the commerce clause does reach it.  Or vice-versa, depending upon your politics.

No wonder there is no respect for law.  People do thier damndest to corrupt the process to suit thier political ideology, and when they succeed lose all respect for the process.  

What do you expect?   It's like marrying your mistress and then discovering she is unfaithful.

PeteG

So I shouldn't plan on buying a full-auto at my local K-Mart anytime soon?

Was the Rybar thing they were talking about the '34 MG ban or the '86 MG ban?  I'm assuming '34... but not sure.

Quoted: To recap Stewart, very briefly: The challenge brings forth the notion that the federal MG ban works under the Commerce Clause,  which regulates INTERSTATE commerce only.    An MG manufactured in a given state, and that never leaves that state,  can not be said to have had any involvement with interstate commerce and hence is exempt from the Commerce Clause as long as it does not leave that state as part of any commercial transaction.     Hence,  if no state law specifically restricts you, you could make your own MG as long as it stays in-state.  It can't leave the state as part of any commercial transaction. I guess you could take it with you when on vacation,  if the ATF approves.   You could sell it to someone else as long as it stayes in your state.    But you can't sell it outside the state. That's the supposition. It would be nice to see it upheld by the Supremes. CJ

Oooh... so one could make their AR-15 into an M16 with no tax stamp if the case were ruled on properly?

Quoted: Was the Rybar thing they were talking about the '34 MG ban or the '86 MG ban?  I'm assuming '34... but not sure.

Rybar was 1986 ban.  Miller in 1939 was the NFA.

tag for updates.

Any other Commerce Clause cases pending outside of Guns or Pot?  Could a broad sweeping ruling on Congressional authority be handed down or must it be piecemealed apart?

Quoted: Yep.   Pretty much. CJ

i thought it was a big no-no to make an m16 out of an ar15, because that would still affect interstate commerce, even if it never makes it out of state, by increasing the general supply.

wasn't the machine gun made of a new design in Stewart v. US?

Based on the Stewart ruling, modification of an existing rifle would still be a no-no.  The rifle would have passed through interstate commerce, and more than likely so would the modification parts.  Stewart is based on the idea that he built the machinegun from scratch.  It pseudo-resembled a Sten gun, but the testimony in the trial upheld that it was sufficiently different from a Sten gun so as to be considered a new creation of Stewart's.  If he created it, then it didn't move in interstate commerce.

The rationale behind Raich is that even items that have not moved in interstate commerce can still be reached by the Feds if there is a sufficient broader enforcement program that can be affected by the presence of the wholly intrastate item.  The only real way that Kozinski can differentiate Stewart from Raich is to say that there is not the broad enforcement program to remove all machineguns from commerce, whereas there is such a beast for marijuana.  Machineguns can still be legally possessed by civvies, if proper procedures are followed.  Mj is not legal to possess at all for civvies.

You can fantasize all you want on what might be allowed under Stewart, but that case is deader than a doornail.