UNITED STATES of America, Plaintiff-Appellee, v. Robert Wilson STEWART, Jr., Defendant-Appellant.
No. 02-10318.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 5, 2003. Filed Nov. 13, 2003.
348 F.3d 1132
In Lozada, the Board explained that the notice requirement serves both to notify a petitioner‘s former counsel of the ineffective assistance allegations and to give former counsel an opportunity to contest them before the IJ. The participation of a petitioner‘s former counsel, in turn, provides a mechanism by which the IJ may more accurately assess the merits of a petitioner‘s ineffective assistance claims. “[T]he potential for abuse is apparent,” the Board cautioned, “where no mechanism exists for allowing former counsel, whose integrity or competence is being impugned, to present his version of events if he so chooses, thereby discouraging baseless allegations.” Lozada, 19 I. & N. Dec. 637, at 639.
Here, Reyes may have put Salazar on notice concerning the substance of his ineffective assistance allegations (i.e., if he actually sent Salazar a copy of the complaint letter), but he offers absolutely no evidence that Salazar received notice of the concomitant motion to reopen. In essence, Reyes asks us to hold that Lozada only requires notice of the substance of a petitioner‘s ineffective assistance allegations, not notice of the motion to reopen itself. This cramped reading of Lozada does violence to the notice requirement‘s express purpose: to encourage petitioner‘s former counsel to contest ineffective assistance allegations before the IJ. Id. Because Reyes gave Salazar no notice of the motion to reopen and no opportunity to respond to Reyes‘s allegations before the IJ, we conclude that Reyes has not substantially satisfied Lozada‘s notice requirement. Id.
PETITION DENIED.
Frederick A. Battista, Assistant United States Attorney, Phoenix, AZ, argued for the plaintiff-appellee. Paul K. Charlton, United States Attorney, Phoenix, AZ, and Michael T. Morrissey, Chief, Appellate Section, Phoenix, AZ, joined him on the briefs.
Before: KOZINSKI and T.G. NELSON, Circuit Judges, and RESTANI,* Judge.
Opinion by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge RESTANI.
KOZINSKI, Circuit Judge:
We decide whether Congress can, under its Commerce Clause power, prohibit the mere possession of homemade machineguns.
Facts
Robert W. Stewart sold parts kits for the manufacture and assembly of Maadi-Griffin .50 caliber rifles; he advertised the kits on the Internet and in Shotgun News, a national firearms magazine. Stewart believed the kits were legal to sell because the receivers on the rifles had not yet been completely machined and the rifles were thus not usable as firearms. An agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) discovered that Stewart had a prior conviction for possession and transfer of a machinegun and decided to investigate Stewart‘s business. Another agent, acting undercover, purchased one of Stewart‘s kits and determined that it could be “readily . . . converted” into an unlawful firearm, in violation of
Commerce Clause
Section 922(o) makes it unlawful to “transfer or possess a machinegun.” Notably absent from this provision is any jurisdictional requirement that the machinegun has traveled in or substantially affected interstate commerce. We decide whether this statute, as applied to Stewart, offends the Commerce Clause.
1. There are three categories of activity that Congress can regulate under its commerce power: (1) “the use of the channels of interstate commerce“; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities“; and (3) “those activities having a substantial relation to interstate commerce.” United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In United States v. Rambo, 74 F.3d 948 (9th Cir.1996), we held that section 922(o) was “a regulation of the use of the channels of interstate commerce” because “there can be ‘no unlawful possession under section 922(o) without an unlawful transfer.‘” Id. at 952 (quoting United States v. Kirk, 70 F.3d 791, 796 (5th Cir.1995)). We elaborated that, “[i]n 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.” Id. (quoting Kirk, 70 F.3d at 796). Rambo thus held section 922(o) was a valid exercise of the commerce power because a transfer or sale must have preceded the criminalized possession.
The district court ruled against Stewart‘s Commerce Clause argument, reasoning that “the parts, at least, moved in interstate commerce.” Id. at 626. Indeed, some of the machinegun parts did move in interstate commerce. At some level, of course, everything we own is composed of something that once traveled in commerce.2 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.‘” Lopez, 514 U.S. at 557, 115 S.Ct. 1624 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937)). Our sister circuits have also recognized that section 922(o) must have certain implicit limits, noting that, “because § 922(o) has no jurisdictional element, it has the potential to criminalize the possession of such guns that have never traveled in interstate commerce.” United States v. Wright, 117 F.3d 1265, 1270 (11th Cir.1997), vacated in irrelevant part by 133 F.3d 1412 (11th Cir.1998).
In United States v. McCoy, 323 F.3d 1114 (9th Cir.2003), we confronted a similar line-drawing problem. McCoy held that a statute criminalizing possession of child pornography was unconstitutional as applied to a woman who posed nude with her child for her husband‘s camera. The photographs were intended only for home use. The statute contained a jurisdictional element allowing prosecutions even where the pornographic material “was produced using materials which have been mailed or . . . shipped or transported” in interstate commerce,
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.
Because these firearms were genuinely homemade, we find that Stewart did not obtain his machineguns by “us[ing] the channels of interstate commerce.” Thus, although Rambo found section 922(o) to be generally valid under the Commerce Clause, Rambo‘s reasoning does not cover Stewart‘s case.
2. Even if Stewart did not use the channels of interstate commerce, his possession of machineguns may still have substantially affected interstate commerce. Several courts of appeals have held section 922(o) constitutional on this ground. Wright, 117 F.3d at 1268-71; United States v. Rybar, 103 F.3d 273, 276-85 (3d Cir.1996); United States v. Kenney, 91 F.3d 884, 890-91 (7th Cir.1996). We cannot agree that simple possession of machineguns—particularly possession of homemade machineguns—has a substantial effect on interstate commerce.
In United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), the Supreme Court set out the controlling test for determining whether a regulated activity “substantially affects” interstate commerce: We must consider (1) whether the regulated activity is commercial or economic in nature; (2) whether an express jurisdictional element is provided in the statute to limit its reach; (3) whether Congress made express findings about the effects of the proscribed activity on interstate commerce; and (4) whether
We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) “is a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S at 561, 115 S.Ct. 1624. Unlike in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), where growing wheat in one‘s backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred—and there is none here—its relationship to interstate commerce is highly attenuated.
Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, 63 S.Ct. 82, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals—an admirable goal, but not a commercial one.
We can also say with some confidence that the effect of Stewart‘s possession of homemade machineguns on interstate commerce was attenuated under the fourth prong of the Morrison test. Lopez already rejected the reasoning that, because the cost of violent crimes is spread through insurance, regulations intended to prevent violent crimes significantly affect the national economy. Lopez, 514 U.S. at 563-64, 115 S.Ct. 1624. Nor did Lopez buy the argument that violent crime substantially affects commerce by reducing people‘s willingness to travel to unsafe areas of the country. Id. at 564, 115 S.Ct. 1624. Though prohibition of all machinegun possession may have a greater chance of reducing violent crime than a prohibition that extends only to school zones, this does not change what the Court said in Lopez: that under these expansive theories, “it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement . . . where States historically have been sovereign.” Id.; see also Morrison, 529 U.S. at 615-16, 120 S.Ct. 1740 (rejecting the argument, supported by legislative history, that the effect of gender-motivated violence on the national economy was not attenuated); McCoy, 323 F.3d at 1124 (“It is particularly important that in the field of criminal law enforcement, where state power is preeminent, national authority be limited to those areas in which interstate commerce is truly affected.“); United States v. Ballinger, 312 F.3d 1264, 1271 (11th Cir.2002) (“To allow Congress to regulate local crime on a theory of its aggregate effect on the national economy would give Congress a free hand to regulate any activity, since, in the modern world, virtually all crimes have at least some attenuated impact on the national economy.“). This “cost of crime” rationale thus cannot save the government‘s case.
Our most recent child pornography case, United States v. Adams, 343 F.3d 1024 (9th Cir.2003), used a different approach to link simple possession of child pornography to interstate commerce. Adams reasoned that prohibiting possession of child pornography “could strike a blow to the [child pornography] industry . . . ‘because
Adams, however, is distinguishable from Stewart‘s case because Adams involved commercial child pornography that had been bought in the open market. Id. at 1030. Purchase of these illegal materials thus stimulates the demand for others to produce and sell them. 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. This case is much closer to McCoy, where McCoy‘s photographs, which were intended “for her own personal use,” did not “‘compete’ with other depictions exchanged, bought or sold in the illicit market for child pornography and did not affect their availability or price.” McCoy, 323 F.3d at 1122. 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.3 In fact, the evidence suggests that Stewart was cognizant of the law and made careful efforts not to come into conflict with it.4 Thus, the link between Stewart‘s activity and its effect on interstate commerce is simply too tenuous to justify federal regulation.
This case fails Morrison‘s other requirements as well. As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where—as here—such findings would “enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.” Lopez, 514 U.S. at 563, 115 S.Ct. 1624.
The Third Circuit looked at the legislative findings of other federal firearms statutes as evidence of a nexus between machinegun possession and interstate commerce, because “the subject matter of § 922(o) is sufficiently similar to that of the other legislation accompanied by these findings so as to be a reliable statement of the rationale for Congress’ authority to pass § 922(o).” Rybar, 103 F.3d at 279.
Section 922(o) is quite different from previous firearms regulations. Whereas section 922(o) addresses possession of machineguns, all of the earlier legislation cited by the Third Circuit deals with transactions, sales or deliveries of firearms, and nearly all of the provisions specifically require that the transaction, sale or delivery be conducted interstate.5 All of these provisions are cut from the ordinary cloth of Commerce Clause regulation of interstate commerce, while section 922(o) is much closer to the statute struck down in Lopez. That statute criminalized gun possession in a particular location—a school zone. Section 922(o) criminalizes possession of a particular type of firearm—a machinegun. The latter no more has an inherent link to interstate commerce than the former. The Supreme Court found that the school zones statute “‘plow[ed] thoroughly new ground and represent[ed] a sharp break with the long-standing pattern of federal firearms legislation,‘” Lopez, 514 U.S. at 563, 115 S.Ct. 1624 (quoting United States v. Lopez, 2 F.3d 1342, 1366 (5th Cir.1993)). As a result, the Court found it was “especially inappropriate” to import previous legislative findings to justify the statute there. Id. Section 922(o) is no less of a “sharp break” from previous regulations.
Moreover, nothing in the legislative history of any of the earlier firearms statutes speaks to the relationship between mere possession of firearms and interstate commerce. Instead, the legislative findings focus primarily on the need for federal enforcement where firearms cross state and international borders, and are thus difficult for individual states to regulate on their own. The legislative findings supporting the Omnibus Act, for example, address the need for federal regulation to “adequately enable the States to control the firearms traffic within their own borders through the exercise of their police power.” S.Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2197 (emphasis added). More specifically, Congress found that “the United States has become the dumping ground of the castoff surplus military weapons of other nations,” which has “contributed greatly to lawlessness and to the Nation‘s law enforcement problems.” 1968 U.S.C.C.A.N. at 2199 (emphasis added). Congress also found that “the lack of adequate Federal
Based on the four-factor Morrison test, section 922(o) cannot be viewed as having a substantial effect on interstate commerce. We therefore conclude that section 922(o) is unconstitutional as applied to Stewart.
3. This raises the question posed by the dissent in McCoy—whether claims under the Commerce Clause are susceptible to as-applied challenges at all. McCoy, 323 F.3d at 1133 (Trott, J., dissenting). According to the McCoy dissent, once it is determined that a particular statute is a legitimate exercise of congressional power under the Commerce Clause, an individual may not escape the statute‘s sweep by showing that his particular activities lack an interstate nexus. McCoy, of course, found an as-applied violation and thus controls this case. However, because the McCoy majority did not address the dissent‘s superficially plausible arguments, we do so here.
The dissent in McCoy asserted that as-applied challenges cannot be brought under the Commerce Clause, relying on a single sentence from Lopez for support: “[W]here a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” Id. at 1134 (citing Lopez, 514 U.S. at 558, 115 S.Ct. 1624 (emphasis omitted)). The McCoy dissent took this sentence entirely out of context.
Lopez itself borrowed this sentence from a footnote in Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968)—a case that had nothing to do with as-applied challenges, but instead announced the so called “enterprise concept,” which allows Congress to exercise authority over a large enterprise or industry by regulating its smaller components, even those components that bear no relation to interstate commerce on their own. See id. at 188, 196-97 n. 27, 88 S.Ct. 2017 (discussing the definition of the term “enterprise“).6 Wirtz held that Congress could regulate a group of employees who had no direct connection to interstate commerce, reasoning that labor-related “strife disrupting an enterprise involved in commerce may disrupt commerce,” and that “substandard labor conditions among any group of employees, whether or not they are personally engaged in commerce or production, may lead to strife disrupting an entire enterprise.” Id. at 192, 88 S.Ct. 2017. The Court in Wirtz was careful to explain that, although the employees’ activities were not themselves in interstate commerce, Congress had reasonably determined they had a material effect on inter-
Read in context, the sentence quoted by the McCoy dissent can only mean that, where a general regulatory statute governs a large enterprise, it does not matter that its components have a de minimis relation to interstate commerce on their own. What does matter is that the components could disrupt the enterprise, and could thus interfere with interstate commerce. In the Wirtz situation, then, the enterprise is the mechanism through which a multitude of the intrastate effects are consolidated and amplified so that they have an effect on interstate commerce. This obviously has no bearing at all on a case such as ours where the activity in question is not part of a large enterprise that itself has an effect on interstate commerce.
Our Commerce Clause jurisprudence supports this reading. Before cases like Wirtz, the Court drew a much sharper line between local and interstate commerce, holding that certain activities such as production, manufacturing and mining were exclusively the province of state governments. See, e.g., United States v. E.C. Knight Co., 156 U.S. 1, 12, 15 S.Ct. 249, 39 L.Ed. 325 (1895) (holding that manufacturing is not commerce and thus is not subject to Congress‘s commerce power). Cases like Wirtz and Wickard were thus quite radical in their expansive conception of the Commerce Clause, because they first articulated Congress‘s power to regulate persons and things twice and thrice removed from interstate commerce. See Lopez, 514 U.S. at 556, 115 S.Ct. 1624 (describing Wickard as “usher[ing] in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause“). But this is entirely different than saying Congress can regulate someone with no relation to interstate commerce at all—such as a person who builds a machinegun from scratch in his garage—so long as there is an otherwise valid statute that covers his activities. There is nothing in Wirtz, Wickard, Lopez, or in any of our cases—not even buried in a footnote—suggesting this understanding of the Commerce Clause is plausible.
Quite the contrary, the Supreme Court has always entertained as-applied challenges under the Commerce Clause. In Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), for example, the Court found Title II of the Civil Rights Act of 1964 was valid “as applied . . . to a motel which concededly serves interstate travelers.” Id. at 261, 85 S.Ct. 348. In Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964), the Court found the same statutory provision valid “as applied to a restaurant annually receiving about $70,000 worth of food which has moved in commerce.” Id. at 298, 85 S.Ct. 377. If the dissent in McCoy were right, we would have only needed one case to say Title II is valid, period. There would have
Indeed, it is hard to believe the Court would ever eliminate as-applied challenges for one particular area of constitutional law. As Professor Fallon explains, “[a]s-applied challenges are the basic building blocks of constitutional adjudication.” Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000). An as-applied challenge asks a court to consider whether a statute‘s application to a particular litigant is a valid one. Whereas the “enterprise concept” is only relevant when a party is regulated in relation to a large industry or enterprise, whether a given statute can constitutionally be applied to a claimant is an inquiry that occurs in every constitutional case:
In order to raise a constitutional objection to a statute, a litigant must always assert that the statute‘s application to her case violates the Constitution. But when holding that a statute cannot be enforced against a particular litigant, a court will typically apply a general norm or test and, in doing so, may engage in reasoning that marks the statute as unenforceable in its totality. In a practical sense, doctrinal tests of constitutional validity can thus produce what are effectively facial challenges. Nonetheless, determinations that statutes are facially invalid properly occur only as logical outgrowths of rulings on whether statutes may be applied to particular litigants on particular facts.
Id. at 1327-28. Professor Fallon also notes that “[t]raditional thinking has long held that the normal if not exclusive mode of constitutional adjudication involves an as-applied challenge.” Id. at 1321 (citing United States v. Raines, 362 U.S. 17, 20-21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), and Yazoo & Miss. Valley R.R. v. Jackson Vinegar Co., 226 U.S. 217, 219-20, 33 S.Ct. 40, 57 L.Ed. 193 (1912)); see also United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully. . . .“). We therefore cannot agree with the bold assertion in the McCoy dissent that an as-applied challenge is inapposite in cases such as this.
Second Amendment
Finally, Stewart argues that the Second Amendment guarantees him the right to possess machineguns, as well as the right to possess firearms generally despite his former felony conviction—as charged in count one of Stewart‘s indictment. We have held that the Second Amendment “was not adopted in order to afford rights to individuals with respect to private gun ownership or possession.” Silveira v. Lockyer, 312 F.3d 1052, 1087 (9th Cir.2002). Thus, there is no Second Amendment limitation on “legislation regulating or prohibiting the possession or use of firearms.” Id. Stewart‘s Second Amendment argument must therefore fail. We reverse Stewart‘s conviction for machinegun possession under section 922(o) as an unlawful extension of Congress‘s commerce power and affirm his conviction for possession of firearms by a felon.
AFFIRMED in part and REVERSED in part.
RESTANI, Judge, concurring in part, dissenting in part:
I dissent from that part of the majority‘s opinion which finds
Unlike the majority, and like the court in Kenney, I find Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942) controlling. Possession of machine guns, home manufactured or not, substantially interferes with Congress‘s long standing attempts to control the interstate movement of machine guns by proscribing transfer and possession. Congress‘s chosen method in § 922(o) was to totally eliminate the demand side of the economic activity by freezing legal possession at 1986 levels, “an effect that is closely entwined with regulating interstate commerce” even as applied to purely intrastate possession of machine guns resulting from home manufacture. Kenney, 91 F.3d at 890. Allowing home manufacture is clearly not within the intent of § 922(o) and would upset Congress‘s entirely lawful plan to regulate trade in machine guns. Accordingly, I dissent in part.
Notes
I, Pencil, simple though I appear to be, merit your wonder and awe, a claim I shall attempt to prove. . . .
My family tree begins with what in fact is a tree, a cedar of straight grain that grows in Northern California and Oregon. Now contemplate all the saws and trucks and rope and the countless other gear used in harvesting and carting the cedar logs to the railroad siding. Think of all the persons and the numberless skills that went into their fabrication: the mining of ore, the making of steel and its refinement into saws, axes, motors; the growing of hemp and bringing it through all the stages to heavy and strong rope; the logging camps with their beds and mess halls, the cookery and the raising of all the foods. Why, untold thousands of persons had a hand in every cup of coffee the loggers drink!
Leonard E. Read, I, Pencil: My Family Tree as Told to Leonard E. Read, THE FREEMAN, Dec. 1958, reprinted in THE FREEMAN, May 1996, Vol. 46, No. 5, available at http://www.libertyhaven.com/thinkers/leonarderead/ipencil.html.