Homemade Guns and Homegrown Pot

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Last week the U.S. Court of Appeals for the 9th Circuit continued to distinguish itself as one of the few federal courts making a serious effort to define the limits of Congress's power to regulate interstate commerce. In an opinion written by Alex Kozinski, a three-judge panel overturned a man's conviction for possession of a homemade machine gun. Applying the logic of United States v. Lopez , the 1995 case in which the U.S. Supreme Court overturned a federal law prohibiting possession of a gun in or near a school, the 9th Circuit found that the connection between a homemade machine gun and interstate commerce was too tenuous to justify federal action.

The district court, which upheld the conviction, had argued that while the machine gun never crossed state lines, "the parts, at least, moved in interstate commerce." Noting that the 9th Circuit had rejected such reasoning in a 2003 case involving homemade child pornography (the equipment and materials for which had "moved in interstate commerce"), Kozinski replied:

At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless. As Lopez reminds us, Congress's power has limits, and we must be mindful of those limits so as not to "'obliterate the distinction between what is national and what is local and create a completely centralized government.'"

Boston University law professor Randy Barnett, who is representing a California woman, Angel Raich, who grew marijuana for her own medical use, hopes the 9th Circuit will take the same view of homegrown cannabis as it did of homemade machine guns. "This case reinforces every argument that we've made in both the Oakland Cannabis Buyers Club and Raich cases," he says.

Another reason for optimism: Last year, when the 9th Circuit ruled that the federal government's attempt to prevent physicians from recommending marijuana to their patients violated the First Amendment, Kozinski noted in a concurring opinion that "medical marijuana, when grown locally for personal consumption, does not have any direct or obvious effect on interstate commerce….Federal efforts to regulate it considerably blur the distinction between what is national and what is local."

But the 9th Circuit still has to deal with Wickard v. Filburn, the 1942 case in which the U.S. Supreme Court said growing wheat for home consumption implicated interstate commerce because it affected overall demand. A similar rationale could be offered for banning homegrown pot. In the case of marijuana, Congress is trying to eliminate the market entirely, rather than regulate prices. I'm not sure whether that makes the Commerce Clause argument stronger or weaker. Either way, the argument is hard to take seriously.

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  1. This decision is so completely out of character with the 9th Circuit. I am not surprised by the reasoning just surprised that a court with the track record of the 9th Circuit could have produced this ruling. Sometimes when my kids do something out of character, I ask them, “Who are you and what have you done with my son?” This ruling makes me wonder if someone is impersonating the justices on the 9th Circuit and we are going to find them tied up and gagged in the court basement.

  2. Well. . . hmm. . . I’m presuming they don’t mean it’s merely a rifle modified to be automatic or something.

    I think the rationale in Wickard was that the state had an interest in propping up the price of wheat. Homegrown wheat would undercut that scenario by cutting into demand. The state (presumably) doesn’t have an interest in keeping pot expensive. (or do they?) So what’s the state’s interest, at least for the purposes of Wickard?

  3. Well. . . hmm. . . I’m presuming they don’t mean it’s merely a rifle modified to be automatic or something.

    I think the rationale in Wickard was that the state had an interest in propping up the price of wheat. Homegrown wheat would undercut that scenario by cutting into demand. The state (presumably) doesn’t have an interest in keeping pot expensive. (or do they?) So what’s the state’s interest, at least for the purposes of Wickard?

  4. To hell with the pot, I’m going to build a Sherman tank, from locally grown parts.

  5. There’s a more basic constitutional problem with banning marijuana: When Congress wanted to ban liquor it enacted a constitutional amendment and sent it to the states for ratification. Implicit was a recognition that banning a mood-altering drug was not something Congress could do under the constitution, so an amendment was necessary. The Prohibition amendment (18th? can’t recall for certain) ironically sets a great precedent.

    I wonder if anybody has ever challenged federal drug laws on those grounds.

  6. My God… watching amateur lawyering is like watching amateur surgery.

    First off, the folks who sit on federal appellate courts are judges, not justices. Only the judges who sit on supreme courts of states and the U.S. are called justices. Don’t use the term “justice” to describe a federal circuit court judge – it tends to make people think your argument isn’t well informed.

    Second, Lopez didn’t make a machine gun, nor was he carrying a semiautomatic rifle modified to fire fully automatic. Mr. Lopez, of U.S. v. Lopez 514 U.S. 549 (1995) fame, was a 12th grade student who carried a concealed handgun to high school.

    Third, the argument Since there is no legal commerce in mj, on what basis could the state argue it had power to regulate its market? doesn’t hold water. It’s premised on the idea that if an activity is prohibited, it is beyond the reach of the law and cannot be regulated under the Commerce Clause. If this is true, it follows that an activity that may clearly be regulated as “in interstate commerce” – such as interstate trucking – could only be regulated if those engaging in it agreed to follow the law. For example, a fellow who engaged in illegal interstate trucking – say, shipping women across borders in trucks for illegal and immoral purposes, to dredge up an old bad law – would evade the reach of the law because he was in fact violating it. That would make no sense.

    Instead, the Commerce Clause typically focuses on ?activities? – though there are two other ways to bring something within the commerce clause. In this example, the pertinent question is ?is the sale of marijuana an activity that falls within ?interstate commerce?. There is a nexus with commerce (the sale of goods or services) and the vast scale of the enterprise ? reputedly California?s #2 crop ? means it is commerce in the aggregate (Wickard). Under older, strict constructionist cases, dope is in the channels of commerce; and often enough, it travels interstate. So the activity is in interstate commerce under a range of definitions of the term. As for homegrown spliff, like homegrown Tommy guns, that?s a different story.

    Please, no flames on the wisdom of this approach. Direct your comments to the Framers, who came up with the Commerce Clause, and the 110 or so Supreme Court justices who have interpreted the thing since Gibbons v. Ogden (1824).

    Finally, as to the 9th Circuit, it has 28 authorized seats. I believe 24 are presently filled. Yes, there are some conservatives on the court, but they are outnumbered 2:1 by Clinton appointees like Judge Paez. Most cases of any import are decided by a three judge panel, randomly drawn; really significant cases are decided by the whole court, sitting together ?en banc?. As the largest and most unwieldy circuit, you occasionally get a more or less conservative panel. Usually, you get a very liberal results oriented panel; more often than is healthy, you get panels with at least two nuts who utterly disregard the text of the law. Of note to conservatives and libertarians are Judge Alex Kozinski, and Judge Diarmud O?Scannlain. Conservatives in the legal community are also hoping for good things, i.e. obedience to the law, from recently appointed Judge Jay Bybee.

  7. The guns in question (according to the decision) looked vaguely like Sten guns, a WW-II era British machine gun, distinguished by the magazine jutting out horizontally from the receiver, that is not a particularly sophisticated weapon in any event. The guns contained various Sten gun parts, but also parts from other (non-machine) guns, and some completely home-made parts.

    Based on the 9th’s validations, sprinkled throughout the decision, of all the other abuses of the Commerce Clause, I would hardly say that the 9th is “distinguishing itself… to define the limits of Congress’ power.” I agree with the previous poster that this decision is an aberration for the 9th.

    G

  8. Stephen: I am here trying to learn something about law, not practice amateur lawyering. My thought about “moving women across borders” is that the harm comes not from the transport of women, but from their kidnapping and sale. My anti-state ideals object to the state using a tangential activty as basis for prosecuting the underlying harmful act.

    Watching amateur surgery can be fun and informative, if you are not the patient…

  9. The 9th Circuit is best known for decisions that conservatives like to call legislating. Reading a commerce clause case decided on strict construction principles that also involves gun ownership rights is extremely discordant with what I’ve come to expect from this Circuit.

    Stephen: You call them your honor whenever they have the bat suit on and by their first name the rest of the time. 🙂

  10. I especially like the way that this case repeatedly cites and contrasts United States v. Rambo!

  11. Stephen:

    “Instead, the Commerce Clause typically focuses on ?activities? – though there are two other ways to bring something within the commerce clause. In this example, the pertinent question is ?is the sale of marijuana an activity that falls within ?interstate commerce?. There is a nexus with commerce (the sale of goods or services) and the vast scale of the enterprise ? reputedly California?s #2 crop ? means it is commerce in the aggregate (Wickard). Under older, strict constructionist cases, dope is in the channels of commerce; and often enough, it travels interstate. So the activity is in interstate commerce under a range of definitions of the term. As for homegrown spliff, like homegrown Tommy guns, that?s a different story.”

    I have always wondered, what is an example of an activity that would not fall under the commerce clause as you have outlined? It can’t just be activities that involve interstate commerce, because there would be no cause to regulate possession on those grounds, just sales across borders. The argument seems to be that if any good could potentially be sold, the federal government has plenary regulatory power. Any activity that could involve an interstate transaction would be similarly unprotected.

    A paid speaker who travels and delivers an unpopular message could be regulated on these grounds? I know that there is a first amendment, but what would the argument be? In theory, both the first and the commerce clause are ‘in the constitution’, so we just choose which to ignore?

    Has any case ever been won on the grounds that the feds exceeded their ability to regulate interstate commerce?

    I hate this friggin’ thing! It was designed to prevent states from printing their own money, and any baboon could see that.

  12. Stephen Fetchet,

    Sorry if you think you’re above being flamed :-), but you seem to be taking the old “the courts have spoken, so don’t criticize me when I support their position” line. Do you refrain from ever criticizing court decisions? Or is it simply convenient to defer to the courts when you agree with them? Just because “it’s the law” doesn’t mean the law is right.

    And if I understand your reasoning (and thus the courts’ reasoning) correctly, all commerce is interstate that is associated with an interstate industry. It’s hard to imagine how any commerce could be exempt then, since there’s practically nothing that couldn’t be found to be connected to interstate commerce in some way.

  13. Judge Kosinski writes:

    At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless.

    Query what fraction of the items that the framers of the Constitution personally owned were goods that traveled in interstate commerce, and what fraction were grown, found or made within a mile or two of their personal residences.

    Query why the enormous growth in interstate commerce over the last 200+ years ought to mean that the interstate commerce clause should now be interpreted to exclude Congress from regulating at least some matters relating to interstate commerce, lest it become “entirely meaningless.”

  14. Fyodor ? that?s exactly the problem with the commerce clause. Without making too much of a fetish of the written word, there are few ways to interpret the Commerce Clause to make it a libertarian-friendly grant of power. It isn’t one, and we’ve wound up with the present expansive interpretation of the Clause because it isn’t well suited for limiting congressional mucking about in the economy – I don’t think the Framers foresaw the complexity of today’s economy, in which the CBOT sneezes, and London catches cold.

    I think the Supreme Court is moving in the right direction on the Clause. For a while there, it looked like a shallow gloss of the Wickard v. Filburn reasoning was all-encompassing ? anything with an economic effect was deemed in Commerce.

    Justice Rehnquist rather cleverly, from the start of his career on the S.Ct., focused on the unwritten presumption of Wickard ? that something had to be categorically in commerce, bought or sold, or used to make, buy, transport or sell, before it fell within the scope of the commerce clause. At that point Wickard’s “aggregate effects” argument makes some sense – otherwise Wickard means Congress can do whatever it wants.

    A lot of libertarians get caught up in the ?but it?s not in interstate? portion of the argument, but that sort of fails in a complex economy.

    If you assume:
    1. We want to have a robust economy
    2. To get there, we will encourage free trade
    3. Free trade in a capitalist system will ensure prosperity, or at least the freedom to become prosperous

    then you also have to think about government as a factor that can ensure an open market.

    In our economy, we would have a major problem employing the Commerce Clause to regulate only those things that literally move interstate. This would result in a clearly legitimate federal regulatory burden on things moving interstate, and no burden on locally produced goods that don?t leave the state. Locally produced goods would be cheaper and easier to obtain, but if your locale wasn?t large enough a market to support a major industry, you would lose out ? or pay a lot more for the good or service than people in neighboring states. Local production is nice for tomatoes in august, but it doesn?t work so well in industries where production is seasonal (food); or economies of scale (and hence shipping of raw materials and finished goods) are critical (cars); or in industries that are decentralized (cars, computer manufacture). A supposedly big step in the libertarian direction would actually set up unequal markets, and pose major barriers to interstate commerce.

    If we want to encourage interstate commerce, and keep actors in the market on a more or less equal footing with respect to each otherregardless of where they live, a Commerce Clause that applies categorically makes more sense than one that applies geographically.

    Now the wisdom of Congress using its legislative powers to regulate certain types of commerce is another question entirely ? but that?s one that ought to be asked and answered at the ballot box, not in the Court. It’s a question of policy choice, not of constitutional law.

    And regarding the other couple comments? When they?re on the bench, I call ?em ?Your Honor.? When they are off the bench, I call ?em ?Judge? unless I?m told to do otherwise. That?s just me, clinging to the Southern tradition of a courtly court room. You could say it?s respect for the law, or for the offices of the court ? I suspect most posters here would think that I have an archaic and conservative sensibility that is ill-suited to the hurly burly of egalitarian democracy. That?s fine? but I?d remind you Esq. that a lot of things judges do are discretionary, and between a good argument from a polite lawyer, and an equally good argument from a jerk, I know which argument I?d be more inclined to swallow.

    As for won/lost records, the feds have lost a lot of cases, but they didn?t lose many on commerce clause grounds between 1935 and 1995. In fact, it was dodgy for the feds to legislate under the Commerce Clause right up until the New Deal, when Roosevelt (damn his unholy name?) threatened to pack the court unless it allowed a bunch of big gubmint programs through. The tide is turning, but I don?t think you will ever see a huge rollback of government regulation of commercial transactions, or for that matter intrastate activities that have interstate impacts (such as pollution). The Commerce Clause was intended to regulate more than just currency ? otherwise the currency clause (the mint power) would be redundant. It?s just that the economy was a lot more local than it is now. That?s the biggest part of the problem ? the economy has changed so that people think it needs certain regulations, and the Commerce Clause isn?t really suited to limiting economic regulations, since it?s actually a power grant, rather than a restraint on power.

    The feds will likely lose more cases in the future. It may take a while, but the view of the Commerce Clause as the font of all federal power is fading. The end result will probably be lots of business regulation based on a categorical interpretation of the clause ? ?if it?s in business in our interdependent economy, then it?s in interstate commerce.? But social programs and regulations, such as the proposed new hatecrimes bill (there?s one every congressional session) will be a lot harder to sustain under the clause, because playa hatin? isn?t really a business, except for a select few people. Other than the categorical direction in which Rehnquist has moved the Clause, I don’t see how you can further restrict the Clause, without either damaging the markets, or the Clause itself, beyond recognition.

    Besides, you all are missing the real camel?s nose here, the thing that is insinuating the federal government into every aspect of your life. That?s the spending clause.

  15. Mark Fox

    It’s actually more difficult to convert semiautomatic firearms to full automatic than to construct an automatic from scratch. We are, after all, talking about devices invented in the late 1890s. Some of the WW submachineguns only had about a dozen simple parts.

    Historical sidenote: There’s an amusing anachronism in the Mel Gibson type end-of-the-world movies where they fight it out with compound bows and arrows because technology has regressed to the point firearms are no longer available. Actually, the materials necessary for compound bow technology weren’t invented until the late 1940s. Repeating firearms were widely available during the Civil War.

  16. Stephen: I find the working of law fascinating, even as I disagree with some of the Constitutional issues underlying it. To promote commerce and prosperity, I prefer setting the regulatory burden as close to zero as my fellow citizens can stomach. The categorical interpretation seems to make more sense than the geographic one. Thanks for that info.

    Larry: The Ruger 10/22 can be converted to full auto by inserting one additional part, changing the cycle to open bolt. I’d own one, but they tell me it’s illegal…
    http://www.butokukai.com/product3.html

  17. Well, the Wickard case has always been an abomination, and is as good a place as any to date the death (or at least the permanent vegetative state) of the Constitution as granting the federal government only specifically enumerated powers.

  18. Correct me if I am wrong; but isn’t the 9th Circuit Court the very court that is regularly vilified by conservatives? I would have thought conservatives would love a court that rules in favor of the constitution and the restrictions that it is supposed to put on the federal government (e.g. preventing a centralized beast).

    🙂

  19. Sorry, fat-fingered the last post, and the one above that was from me … I forgot that I cleaned out my cookie jar the other day (excessive pop ups were getting annoying).

    🙂

  20. And another thing … when will the CSA of 1974(Controlled Substances Act) be ruled unconstitutional based on the same reasoning? I know, I know, I ain’t holding my breath.

    🙂

  21. What’s a homemade machine gun anyway? I imagine some sort of historical reenactor building his own Vickers or something.

  22. Unfortunately, the court clearly addressed this point:

    “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. Unlike wheat, for example, which is a staple commodity that Filburn
    would probably have had to buy, had he not grown it himself, there is no reason to think Stewart would ever have bought a machinegun from a commercial source, had he been precluded by law from building one himself. In fact, the evidence
    suggests that Stewart was cognizant of the law and
    made careful efforts not to come into conflict with it. Thus, the link between Stewart?s activity and its effect on interstate commerce is simply too tenuous to justify federal regulation.”

    In other words, the only reason Stewart won is that he demonstrated that he had absolutely no intention of purchasing a machine gun if he hadn’t been able to make his own. This won’t be of any help to a marijuana grower unless he can also show that he never would have purchased marijuana.

    And it certainly does nothing to overturn laws in general against growing marijuana, where it would be trivial for the government to show that at least some people who grow marijuana also participate in the marijuana market in some way.

  23. From skimming Wickard, I got the impression that the reason Filburn’s wheat’s effect on demand mattered in the first place was due to the Agriculture Act of 1938, which gave the state an interest in the wheat market. If there was no state interest in the wheat, pot, or machine gun markets, then the commerce clause would seem to be moot.

    Since there is no legal commerce in mj, on what basis could the state argue it had power to regulate its market?

    dude: Without looking at the machine gun case, I know that some common guns can be easily modified to be “machine guns”. Maybe that’s what Lopez did?

  24. I like the “liberal” 9th Circuit. If these decisions keep coming, then I am beginning to think we need more “liberal” judges.

  25. Stephen Fetchet,

    I’m with fyodor on this. Gibbon v. Ogden was the beginning of the road to perdition. Using the ordinary rules of construction (reading it in light of the evils it was designed to evil, reading the language in its normal sense at the time of ratification, referring to constructions by its proponents in the ratification debates, etc.), it’s pretty easy to construe the Commerce Clause in libertarian terms.

    I wish I could find an “Impeach John Marshall” bumper sticker.

  26. To answer dude’s question, information on how to build your own machine gun canbe found at:

    http://www.fortliberty.org/equipment/receivers.shtml

    Of course, even though you may now be safe(r) from federal prosecution, you may still find yourself in a state penitentary for utilizing your Second Amendment rights.

    Will

  27. To answer dude’s question, information on how to build your own machine gun can be found at:

    http://www.fortliberty.org/equipment/receivers.shtml

    Of course, even though you may now be safe(r) from federal prosecution, you may still find yourself in a state penitentary for utilizing your Second Amendment rights.

    Will

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