Filed: May 16, 1997
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 96-10768 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus STEVEN SCOTT KNUTSON, Defendant-Appellant. Appeal from the United States District Court For the Northern District of Texas ( , 1997) Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges. PER CURIAM: In this appeal we must revisit the question whether Congress’s enactment of 18 U.S.C. § 922(o), criminalizing the transfer or possession of a machinegun that was not alread
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 96-10768 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus STEVEN SCOTT KNUTSON, Defendant-Appellant. Appeal from the United States District Court For the Northern District of Texas ( , 1997) Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges. PER CURIAM: In this appeal we must revisit the question whether Congress’s enactment of 18 U.S.C. § 922(o), criminalizing the transfer or possession of a machinegun that was not already..
More
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10768
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN SCOTT KNUTSON,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
( , 1997)
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:
In this appeal we must revisit the question whether Congress’s
enactment of 18 U.S.C. § 922(o), criminalizing the transfer or
possession of a machinegun that was not already lawfully possessed
before May 19, 1986, exceeds the limit of its power under the
Commerce Clause.1 Every other circuit that has considered this
issue has upheld § 922(o) as a rational exercise of that power,
1
This issue was the subject of our rehearing en banc in
United States v. Kirk, 70 F.3d 791, (5th Cir. 1995), vacated,
78
F.3d 169, aff’d en banc by an equally divided court,
105 F.3d 997
(5th Cir. 1997).
albeit for differing reasons.2 Today, we join those circuits in
affirming the constitutionality of § 922(o).
I
FACTS AND PROCEEDINGS
Appellant Steven Scott Knutson was arrested on July 28, 1995,
and charged with possessing a loaded .45 caliber Spitfire assault
rifle, serial number 3023, a firearm that is classified as a
machinegun for purposes of 26 U.S.C. § 5845(b).3 Knutson did not
possess the machinegun under the authority of the United States
government or of any state governmental department, agency, or
political subdivision; neither did he possess the machinegun
lawfully prior to the effective date of § 922(o), May 19, 1986.
Knutson was indicted on one count of unlawful possession of a
machinegun in violation of § 922(o).4 Before entering his guilty
2
See United States v. Rybar, 103 F.3d 273 (3d Cir.
1996)(upholding § 922(o) under the third of three possible
categories of activity that Congress may regulate under the
Commerce Clause, as a regulation of activities having a substantial
effect on interstate commerce); United States v. Kenney,
91 F.3d
884 (7th Cir. 1996)(upholding § 922(o) under the third category, as
a regulation of activities having a substantial effect on
interstate commerce); United States v. Beuckelaere,
91 F.3d 781
(6th Cir. 1996)(upholding § 922(o) under all three Lopez
categories); United States v. Rambo,
74 F.3d 948 (9th
Cir.)(upholding § 922(o) under the first category, as a regulation
of channels of interstate commerce), cert. denied,
117 S. Ct. 72,
136 L. Ed. 2d 32 (1996); United States v. Wilks,
58 F.3d 1518 (10th
Cir. 1995)(upholding § 922(o) under the second category, as a
regulation of a thing in interstate commerce).
3
A “machinegun” is defined in 26 U.S.C. § 5845(b) as “any
weapon which shoots, is designed to shoot, or can be readily
restored to shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger.” See 18 U.S.C.
§ 921(a)(23).
4
Congress passed § 922(o) as part of the Firearms Owners’
Protection Act of 1986, Pub. L. No. 99-308, 100 Stat. 449 (1986),
2
plea, Knutson filed a motion to dismiss the indictment, arguing
that § 922(o) is unconstitutional in light of the Supreme Court’s
decision in United States v. Lopez.5 After the district court
denied the motion, Knutson entered a conditional guilty plea,
reserving the right to appeal the district court’s ruling. This
appeal followed.
Both Knutson and the government filed summary appellate
briefs, anticipating that the outcome of our en banc consideration
of this issue in United States v. Kirk would be dispositive for
purposes of the instant appeal. Instead, Kirk resulted in an
affirmance by an equally divided en banc court and has no
precedential value,6 so we must consider anew the issue of
§ 922(o)’s constitutionality.
II
ANALYSIS
A. STANDARD OF REVIEW
In Lopez, the Supreme Court affirmed our conclusion that the
which amended the Gun Control Act of 1968, 18 U.S.C. §§ 921-28.
Section 922(o) provides, in relevant part:
(o)(1) Except as provided in paragraph (2), it shall be
unlawful for any person to transfer or possess a
machinegun.
(2) This subsection does not apply with respect to--
* * * * * *
(B) any lawful transfer or lawful possession of a
machinegun that was lawfully possessed before the date
this subsection takes effect.
5
514 U.S. 549,
115 S. Ct. 1624,
131 L. Ed. 2d 626 (1995).
6
See Neil v. Biggers, 409 U.S. 188, 192,
93 S. Ct. 375,
34
L. Ed. 2d 401 (1972); Henderson v. Fort Worth Indep. Sch. Dist.,
584
F.2d 115, 116 (5th Cir. 1978)(en banc), cert. denied,
441 U.S. 906,
99 S. Ct. 1996,
60 L. Ed. 2d 375 (1979).
3
Gun Free School Zones Act of 1990, 18 U.S.C. § 922(q),7 was
unconstitutional because it regulated conduct falling outside the
scope of the Commerce Clause. In doing so, the Court identified an
outer limit to congressional authority under the Commerce Clause;
nevertheless, the Court did not purport to eliminate or erode well-
established Commerce Clause precedents.8 In particular, the Court
made clear that federal Commerce Clause legislation continues to
merit a high degree of judicial deference, and that courts
considering the constitutionality of such legislation should apply
only “rational basis” review.9 Accordingly, we must limit our
inquiry to a determination whether Congress could have had a
rational basis to conclude that its enactment of § 922(o) was a
valid exercise of its commerce power.
As the result in Lopez demonstrates, however, deference is not
acquiescence; this court has the obligation to review the facts and
circumstances of each case and determine the constitutionality of
each statute brought before us for review. The question for us to
decide today is whether Congress could rationally conclude that
§ 922(o) effectively regulates interstate trafficking in
7
18 U.S.C. § 922(q). Section 922(q) made it unlawful “for
any individual knowingly to possess a firearm at a place that the
individual knows, or has reasonable cause to believe, is a school
zone.”
8
See Lopez, 115 S. Ct. at 1634 (“Admittedly, some of our
prior cases have taken long steps down that road, giving great
deference to congressional action. The broad language in these
opinions has suggested the possibility of additional expansion, but
we decline here to proceed any further.”).
9
Id. at 1629.
4
machineguns or otherwise regulates conduct that substantially
affects interstate commerce.
B. BACKGROUND: THE LOPEZ DECISION
The Lopez Court described three categories of activity that
Congress may regulate under the Commerce Clause: (1) the use of
the channels of interstate commerce; (2) “the instrumentalities of
interstate commerce, even though the threat may come only from
intrastate activities”; and (3) activities which have “a
substantial relation to interstate commerce ... i.e., those
activities that substantially affect interstate commerce.”10
As the first two categories did not apply to § 922(q), the
Lopez Court analyzed that statute under the third category to
determine whether “a rational basis existed for concluding that
[the] regulated activity sufficiently affected interstate
commerce.”11 The Court ultimately concluded that § 922(q) failed
to satisfy the third category. First, the Court noted that
“possession of a gun in a local school zone is in no sense an
economic activity that might, through repetition elsewhere,
substantially affect any sort of interstate commerce.”12 Moreover,
Congress failed to include congressional findings that might have
enabled the Court “to evaluate the legislative judgment that the
activity in question substantially affected interstate commerce.”13
10
Id. at 1629-30.
11
Id. at 1629.
12
Id. at 1634.
13
Id. at 1632.
5
Thus, absent congressional findings to demonstrate a rational basis
when none was “visible to the naked eye,”14 the Court held that the
statute was unconstitutional.
C. SECTION 922(O)
In contrast to § 922(q), much of the conduct covered by
§ 922(o) fits comfortably within Constitutional bounds under either
of the first two Lopez categories, as the vast majority of
machinegun possessions constitute the culminating step in
interstate commercial transactions.15 ”As such, § 922(o) represents
Congressional regulation of an item bound up with interstate
attributes and thus differs in substantial respect from legislation
concerning possession of a firearm within a purely local school
zone.”16
We are not unmindful that the statute is worded in terms broad
enough to support a conviction -- at least theoretically, if not
practically -- in rare yet conceivable instances of purely non-
14
Id. at 1632.
15
The interstate flow of machineguns “not only has a
substantial effect on interstate commerce; it is interstate
commerce.” United States v. Hunter, 843 F. Supp. 235, 249 (E.D.
Mich. 1994). Moreover, as § 922(o) prohibits the possession or
transfer only of machineguns not lawfully possessed prior to May
19, 1996, it is clear that Congress’s intent was focused on
prohibiting the introduction into the stream of interstate commerce
machineguns manufactured, imported, or otherwise illegally
obtained, after the effective date of the Act. See Wilks, 58 F.3d
at 1522(quoting United States v. Hunter,
843 F. Supp. 235, 249 (E.D.
Mich. 1994))(“Although not explicitly stated in the language of the
statute itself, it is evident that Congress prohibited the transfer
and possession of most post-1986 machineguns not merely to ban
these firearms, but rather, to control their interstate movement by
proscribing transfer or possession.”).
16
Wilks, 58 F.3d at 1521.
6
commercial intrastate possession. In fact, those who believe
§ 920(o) is unconstitutional focus their attention exclusively on
such instances of “mere” possession. Even crediting that some
machineguns may be “homemade” and are therefore not the object of
a commercial transaction, it would be myopic to view possession in
a vacuum.17 Rather than wallow in that debate, however, we choose
the path of least resistance and go directly to the third Lopez
category to determine whether all transfers and possessions of
machineguns, including those that might conceivably be
characterized as exclusively intrastate or noncommercial, could
substantially affect interstate commerce. We conclude that they
could indeed.
D. SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE
It is obvious “to the naked eye” that the transfer and
possession of machineguns has a substantial effect on interstate
commerce. For example, in Rybar, the Third Circuit held that
§ 922(o) “can be sustained because it targets the possession of
machine guns as a demand-side measure to lessen the stimulus that
prospective acquisition would have on the commerce in machine
17
See, e.g., Kirk, 70 F.3d at 796 (“In this context, the
limited ban on possession of machineguns must be seen as a
necessary and proper measure meant to allow law enforcement to
detect illegal transfers where the banned commodity has come to
rest: in the receiver’s possession. In effect, the ban on such
possession is an attempt to control the interstate market for
machineguns by creating criminal liability for those who would
constitute the demand-side of the market, i.e., those who would
facilitate illegal transfer out of the desire to acquire mere
possession.”).
7
guns.”18 In Kenney, the Seventh Circuit held that “there is a
rational basis to regulate the local conduct of machine gun
possession, including possession resulting from home manufacture,
to effectuate § 922(o)’s purpose of freezing the number of legally
possessed machine guns at 1986 levels, an effect that is closely
entwined with interstate commerce.”19 Finally, Judge Higginbotham’s
en banc opinion in Kirk, explaining why he would uphold the
constitutionality of § 922(o), presented a forceful collection of
evidence to “support a legislative judgment that the possession of
machine guns interferes with federal drug enforcement.”20
We need not delve into theoretical considerations, however, as
we discern convincing evidence of a substantial effect on
interstate commerce in the extensive legislative histories that
accompanied each prior incarnation of what has been a durable line
of federal machinegun regulations. We cannot ignore those
congressional findings: Even though they were not explicitly
reiterated in support of § 922(o), they clearly subsist in the
cumulative memory of Congress. The Lopez Court refused to consider
§ 922(q) in light of the legislative history from earlier firearms
legislation, for, in contrast to the statute presently under
review, § 922(q) “represent[ed] a sharp break with the longstanding
pattern of federal firearms legislation.”21 Section 922(o), on the
18
103 F.3d at 283.
19
91 F.3d at 889.
20
Kirk, 105 F.3d at 1000.
21
Lopez, 115 S. Ct. at 1632.
8
other hand, is but the latest manifestation of the federal
government’s longstanding record of regulating machineguns. The
Seventh Circuit offered a succinct review of that tradition in its
opinion in Kenney:
Congress has closely regulated machine guns pursuant to
its taxation power since the National Firearms Act of
1934, which subjected machine guns, unlike ordinary
firearms, to federal registration and a transfer tax.
Hardy, 17 Cumb. L. Rev. at 593. The Act was the first
major federal attempt at firearms regulation, and it
expressly targeted machine guns, a modern weapon whose
unusual destructive power was of great appeal to
interstate organized crime. Id. In considering the
bills that became the Gun Control Act of 1968, Congress
found that federal control over firearms licensing for
dealers, even for intrastate activity, was necessary to
address the serious problems associated with interstate
trafficking in firearms generally. S.Rep. No. 1097, 90th
Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2112,
2114, 2168. In light of these findings and enactments,
the 1986 addition of § 922(o) was not novel but
incremental, merely preventing further growth in the
number of machine guns in private hands as an exercise of
the historic federal interest in the regulation of
machine guns. As such, and quite unlike § 922(q),
deference to Congress’s accumulated institutional
expertise is appropriate.22
Congress did not alter or repudiate any of its prior findings
when it enacted § 922(o) under the Firearm Owner’s Protection Act
(FOPA). In fact, Congress specifically noted that one of the aims
of the FOPA was “to strengthen the Gun Control Act of 1968 to
enhance the ability of law enforcement to fight violent crime and
narcotics trafficking.”23 Thus, when we read § 922(o) in pari
materiae with its legislative pedigree, we see clearly that
22
Kenney, 91 F.3d at 890-91.
23
H.R.Rep. No. 495, 99th Cong., 2d Sess. 1 (1986), reprinted
in 1986 U.S.C.C.A.N. 1327, 1327.
9
Congress views “the availability of machineguns, violent crime, and
narcotics trafficking”24 as parts of one larger problem. Even if
we were to disagree with that assessment, we cannot say that
Congress could not have had a rational basis for its conclusion.
III
CONCLUSION
We hold that Congress could have had a rational basis for
concluding that § 922(o) regulates conduct that has a substantial
effect on interstate commerce, and that § 922(o) is not
unconstitutional. Therefore, we need not consider whether the
statute would be constitutional under either of the other two Lopez
categories. As such, Knutson’s conviction for unlawfully
possessing a machinegun in violation of § 922(o) is
AFFIRMED.
24
Beuckelaere, 91 F.3d at 785 (quoting United States v. Hale,
978 F.2d 1016 (8th Cir. 1992), cert. denied,
507 U.S. 997,
113
S. Ct. 1614,
123 L. Ed. 2d 174 (1993)).
10
