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            Title United States v. Rybar

 

            Date 1996

            By

            Subject Other\Dissenting

                

 Contents

 

 

Page 1

32 of 64 DOCUMENTS

UNITED STATES OF AMERICA v. RAYMOND RYBAR, JR., Appellant

No. 95-3185

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

103 F.3d 273; 1996 U.S. App. LEXIS 33855

September 13, 1995, Argued

December 30, 1996, Filed

SUBSEQUENT HISTORY: Certiorari Denied October

6, 1997, Reported at: 1997 U.S. LEXIS 4588.

PRIOR   HISTORY:             **1        On   Appeal   from   the United States District Court for the Western District of Pennsylvania. (D.C. Crim. No. 94-cr--00243).

DISPOSITION: Affirmed.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant challenged his conviction  in  the  United  States  District  Court  for  the Western District of Pennsylvania for selling machine guns in violation of 18 U.S.C.S. § 922(o).

OVERVIEW:  Appellant  gun  dealer  was  convicted  of selling machine guns in violation of 18 U.S.C.S. § 922(o). Appellant challenged the constitutionality of the statute on appeal, alleging that it exceeded Congress' authority under the Commerce Clause. The court noted that by the time Congress passed § 922(o), it had already passed three firearms statutes under its commerce power based on its explicit connection of the interstate flow of firearms to the increasing serious violent crime in this country. Congress was not required to make specific findings for enactment of § 922(o). Its intent to regulate possession and transfer of machine guns as a means of stemming interstate gun trafficking was manifest,  and the authority of Congress to enact § 922(o) under the Commerce Clause could be sustained as a regulation of an activity that "substantially affected"  commerce.  In  addition,  appellant's  challenge based on U.S. Const. amend. II failed because appellant did not establish that his firearm possession bore a rea- sonable relationship to the preservation or efficiency of a well-regulated militia. The conviction was affirmed.

OUTCOME: The court affirmed appellant's conviction for selling machine guns. By the time Congress enacted the law prohibiting such sales, it had already passed three

firearm  statutes  under  its  Commerce  Clause  authority, and Congress had made a connection between the inter- state flow of firearms and increasing violent crime. The prohibition against machine gun sales was sustainable as regulation of an activity that substantially affected com- merce.

LexisNexis(R) Headnotes

Criminal Law & Procedure > Appeals > Standards of

Review > De Novo Review

HN1  Appellate review of a district court's determination of the constitutionality of a statute is plenary. Constitutional Law > Congressional Duties & Powers > Commerce Clause

HN2  The court's examination of the scope of legisla- tive  prerogative  respecting  exercise  of  the  Commerce Clause power is twofold. The court must first determine whether Congress could rationally conclude that the reg- ulated activity substantially affects interstate commerce. If the court decides that it could, the only remaining ques- tion for judicial inquiry is whether the means chosen by Congress are reasonably adapted to the end permitted by the Constitution.

Governments > Legislation > Enactment

HN3  Congress need not make particularized findings in order to legislate.

Governments > Legislation > Enactment

HN4   The  authority  of  Congress  to  enact  18  U.S.C.S.

§ 922(o) under the Commerce Clause can be sustained as a regulation of an activity that "substantially affects" commerce.

Criminal  Law  &  Procedure  >  Criminal  Offenses  > Weapons

HN5  U.S. Const. amend. II furnishes no absolute right to firearms. Federal attempts at firearms regulation have also consistently withstood challenge under the Second Amendment.

103 F.3d 273, *; 1996 U.S. App. LEXIS 33855, **1

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COUNSEL:           James      H.             Jeffries,   III,            (Argued), Greensboro, NC 27408, Attorney for Appellant.

Bonnie  R.  Schlueter,  Mary  Beth  Buchanan,  (Argued), Office of United States Attorney, Pittsburgh, PA 15219, Attorneys for Appellee.

JUDGES:   Before:               SLOVITER,   Chief   Judge,   and

ALITO, Circuit Judge,  and  RENDELL,  District  Judge,

* ALITO, Circuit Judge, dissenting

*  Honorable  Marjorie  O.  Rendell,  United  States District         Judge      for            the           Eastern   District    of Pennsylvania, sitting by designation.

OPINIONBY: SLOVITER

OPINION:   *274   OPINION OF THE COURT

SLOVITER, Chief Judge.

Appellant Raymond Rybar, Jr. was convicted follow- ing a conditional guilty plea to two counts of violating

18  U.S.C.  §  922(o),  which  makes  it  "unlawful  for  any

person to transfer or possess a machinegun." On appeal, he argues that the district court erred in rejecting his chal- lenge  to  that  provision  as  beyond  Congress'  commerce power and as violating the Second Amendment. Neither challenge is persuasive. Every court of appeals that has considered a challenge to § 922(o) under the Commerce Clause has upheld **2   the constitutionality of the pro- vision. See United States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996); United States v. Kenney, 91 F.3d 884 (7th Cir.

1996); United States v. Rambo,  74 F.3d 948 (9th Cir.), cert. denied,  136 L. Ed. 2d 32,  1996 U.S. LEXIS 4776,

117 S. Ct. 72 (1996); United States v. Kirk, 70 F.3d 791

(5th Cir. 1995) n1 ; United States v. Wilks, 58 F.3d 1518

(10th Cir. 1995); United States v. Pearson, 8 F.3d 631 (8th

Cir. 1993), cert. denied, 128 L. Ed. 2d 863, 114 S. Ct. 2132

(1994). Nor has Rybar presented any authority in support of his Second Amendment argument. We examine each claim in turn.

n1 On March 5, 1996, the Fifth Circuit granted a rehearing en banc. See United States v. Kirk, 78

F.3d 160 (5th Cir. 1996).

103 F.3d 273, *275; 1996 U.S. App. LEXIS 33855, **2

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*275  I.

FACTS AND PROCEDURAL HISTORY

On  April  4,  1992,  Rybar,  a  federally  licensed  firearms dealer, attended a gun show in Monroeville, Pennsylvania, and  had  in  his  possession  a  Chinese  Type  54,  7.62- millimeter  submachine  gun,   serial  number  2052272, which he offered to sell to Thomas **3   Baublitz, who paid him and to whom he transferred possession. The next day, April 5, 1992, Rybar again visited the Monroeville gun show, this time in possession of a U.S. Military M-3,

.45 caliber submachine gun, serial number 216831, which he offered to sell to Baublitz, who paid him for it and to whom he transferred possession.

A grand jury indicted Rybar on two counts of unlaw- ful possession of a machine gun in violation of 18 U.S.C.

§ 922(o)(1) (Counts I and III), and two counts of unlaw- ful transfer of an unregistered firearm in violation of 26

U.S.C. § 5861(e) (Counts II and IV). Rybar moved to dis- miss the indictment on the ground that both statutes were unconstitutional. While the motion was pending, the court was informed that Rybar was prepared to plead guilty.

At the hearing on the change of plea, the district court first ruled on the pending motion. The court granted the motion to dismiss Counts II and IV. The court held that in- sofar as 26 U.S.C. § 5861(e) criminalizes the transfer of an unregistered machine gun, it is unconstitutional because

after Congress enacted Title 18 of the United States  Code  Section  922(o),  registration  of machine guns is no longer possible.   **4  Thus defendant has been charged in the in- dictment with failing to perform an act, reg- istration  of  two  machine  guns,  that  is  pro- hibited by law. This violates notions of fun- damental fairness as guaranteed by the Due Process  Clause  of  the  Fifth  Amendment. Further, this Court finds that Section 5861(e) is  no  longer  a  valid  taxing  statute  with  re- spect to machine guns, because the govern- ment currently does not register and tax such

machine guns.

App. at 16-17. n2

n2 Because the government has not appealed this  aspect  of  the  court's  ruling,  we  do  not  com- ment on the district court's analysis.

The court denied Rybar's motion to dismiss Counts I and III. The court held that § 922(o) was "a valid exercise of the authority granted to Congress under the Commerce Clause"  and  was  compatible  with  Second  Amendment protections "because this defendant's possession of a ma- chine gun was not reasonably related to the preservation or efficiency of a well-regulated militia." App. at 16.

The  court  then  proceeded  to  the  change   **5    of plea portion of the hearing. After the court fully informed Rybar of his rights, Rybar agreed to the facts as summa- rized by the government, i.e., that he approached Baublitz on both occasions and offered to sell him the machine guns described, and that Baublitz paid him on both occasions and took the machine guns. Rybar corrected the prosecu- tion's statement that he received a total of $1,300 for the machine guns, and stated instead that he received a total of $600 for both machine guns. App. at 31-32 (Hearing Transcript, Jan. 9, 1995).

Rybar had agreed to plead guilty to all four counts of the indictment, i.e., the two counts of possession and the two counts of transfer of an unregistered machine gun, and although the court had just dismissed Counts II and IV, Rybar attested to the entire agreement at the court's re- quest. Id. at 27-29. Rybar then entered a conditional guilty plea to the two remaining counts, preserving for appeal the disputed constitutionality of 18 U.S.C. § 922(o). At the sentencing hearing several months later, the district court sentenced Rybar to eighteen months' imprisonment, the minimum sentence under the applicable guideline range, ordered three years **6   of supervised release to follow, and imposed a special assessment of $100.00.

The district court had jurisdiction under 18 U.S.C. §

3231, and we have jurisdiction pursuant to 28 U.S.C. §

1291. HN1  Our review of a district court's determination of the constitutionality of a statute is plenary.

103 F.3d 273, *276; 1996 U.S. App. LEXIS 33855, **6

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*276   Dyszel v. Marks, 6 F.3d 116, 123 (3d Cir. 1993).

II.

DISCUSSION

In its entirety, § 922(o) reads:

(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 re- spect to--

(A) a transfer to or by, or possession by or un- der the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

18 U.S.C. § 922(o) (1994).

"Machinegun,"  in  turn,  is  defined  in  26  U.S.C.  §

5845(b), part of the National Firearms Act, as

any  weapon  which  shoots,  is  designed  to shoot, or can be readily restored to shoot, au- tomatically **7   more than one shot, with- out manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon,  any part designed and intended solely and exclu- sively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

See 18 U.S.C. § 921(a)(23) (1994).

The statute prohibits only those instances of posses- sion and transfer of machine guns not lawfully possessed

before its enactment date -- May 19, 1986; machine guns lawfully  possessed  before  that  date  are  left  unaffected. See 18 U.S.C. § 922(o)(2)(B) (1994); Pub. L. No. 99-308

§ 110(c), 100 Stat. 449, 461 (1986).

As  in  the  district  court,  Rybar  urges  the  unconsti- tutionality of § 922(o) on two grounds. He argues:  (1) that the provision outstrips Congress' regulatory author- ity under the Commerce Clause and (2) that it offends his Second Amendment right "to keep and bear arms."

A.

Commerce Clause

Rybar relies primarily on the Supreme Court's recent opin- ion in United States   **8    v. Lopez, 514 U.S. 549, 131

L. Ed. 2d 626, 115 S. Ct. 1624 (1995), in support of his Commerce Clause challenge. In Lopez, the Court inval- idated the Gun-Free School Zones Act of 1990,  which made it a federal offense "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." 18

U.S.C. § 922(q)(2)(A) (1994). A "school zone" was de- fined as "in, or on the ground of, a . . . school" or "within a distance of 1,000 feet." 18 U.S.C. § 921(a)(25) (1994). The decision generated six separate opinions,  with five justices supporting the Court's holding that the statute ex- ceeded Congress' authority under the Commerce Clause. On behalf of the majority, Chief Justice Rehnquist re- viewed the Court's Commerce Clause decisions dealing with the extent of Congress' power, stating that § 922(q)

"neither  regulates  a  commercial  activity  nor  contains  a requirement that the possession be connected in any way to interstate commerce." 115 S. Ct. at 1626. In summariz- ing the earlier cases, he observed that in Perez v. United States,  402 U.S. 146,  150,  28 L. Ed. 2d 686,  91 S. Ct.

1357 (1971), the Court had identified three broad cate- gories of activity that Congress may regulate under **9  its commerce power: (1) "the use of the channels of inter- state commerce;" (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate ac- tivities;" and (3) those activities "that substantially affect interstate commerce." 115 S. Ct. at 1629-30.

He quickly disposed of the first two categories as in- applicable to § 922(q), and stated that if that statute were to be sustained it

103 F.3d 273, *277; 1996 U.S. App. LEXIS 33855, **9

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*277   would have to be as a regulation of an activity that substantially affects interstate commerce. It failed that test because "by its terms" the statute prohibiting possession of a gun in a school zone had "nothing to do with 'com- merce' or any sort of economic enterprise," 115 S. Ct. at

1630-31, nor was it "an essential part of a larger regula- tion of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were reg- ulated." Id. at 1631. Furthermore, § 922(q) contained "no jurisdictional element which would ensure, through case- by-case inquiry, that the firearm possession in question affects interstate commerce." Id.

Justice  Kennedy,  joined  by  Justice  O'Connor,  con- curred, outlining **10   what they perceived as the ma- jority's "necessary though limited holding." 115 S. Ct. at

1634. From his survey of the Supreme Court's efforts to chart the limits of the Commerce Clause, Justice Kennedy extracted two relevant "lessons" from the past decisions: the  inadequacy  of  using  "content-based  distinctions," such  as  that  between  "direct"  and  "indirect"  effects  on commerce, to define those limits, and the importance of maintaining the "practical conception" of the commerce power that had been forged out of the Court's precedents.

115 S. Ct. at 1637. Most significantly, Justice Kennedy observed that where an enactment under the Commerce Clause  bears  only  a  tenuous  connection  to  commerce, courts should inquire whether it "seeks to intrude upon an area of traditional state concern." Id. at 1640. Justice Kennedy went on to observe that "here neither the actors nor their conduct have a commercial character, and neither the purposes nor the design of the statute have an evident commercial nexus." Id. at 1640. He was concerned that

§ 922(q) foreclosed states from crafting independent so- lutions to the guns-in--schools problem, id. at 1641, and concluded that, "absent a stronger connection **11   or identification with commercial concerns," § 922(q)'s in- trusion into education "contradicted the federal balance" and  was  therefore  invalid.  Id.  at  1642.  Justice  Thomas also filed a separate concurrence.

The principal opinion for the four dissenters was au-

thored by Justice Breyer, who emphasized the following three  basic  principles:   (1)  local  activities  may  be  reg- ulated under the Commerce Clause where they "signif- icantly  affect  interstate  commerce";  (2)  these  local  ac- tivities must be considered cumulatively in viewing their effect on interstate commerce; and (3) the court's inquiry is limited to whether Congress could have had a ratio- nal basis for concluding the regulated activity sufficiently affected interstate commerce. Id. at 1657-58 (Breyer, J., dissenting). He stated, inter alia, that Congress could have had a rational basis for concluding that the "widespread" and "extremely serious" problem of guns in and around schools had a substantial effect on interstate and foreign commerce because it "significantly undermines the qual- ity of education in our Nation's classrooms," id. at 1659, thereby reducing the pool of skilled workers available to businesses,  diminishing   **12    industrial  productivity, and eroding global competitiveness. Id. at 1659-61.

Justices  Stevens  and  Souter,  both  of  whom  joined Justice  Breyer's  dissent,  each  wrote  separately  as  well. Justice  Stevens  emphasized  the  multiple  links  he  per- ceived between firearms possession in schools and inter- state commerce. Id. at 1651. Justice Souter emphasized the highly deferential judicial review in Commerce Clause cases, criticized as "highly formalistic" the Court's early conceptions of "commerce," and analogized the majority's insistent distinction between "commercial" and "noncom- mercial" activity to the Court's Lochner-era substantive due process approach. Id. at 1651-54.

Rybar forwards all of the reasons given by the Lopez majority, many in haec verba, as equally determinative of the invalidity of Congress' prohibition of machine guns. He contends that § 922(o)'s proscription of machine gun transfer and possession can be upheld only as regulation of  an "activity  that substantially  affects  interstate  com- merce." Brief of Appellant at 14 (quoting Lopez, 115 S. Ct. at 1630). He argues that § 922(o) fails this "substan- tial  effect"  test,  since  its  attempt  to  reach  mere   **13  intrastate gun possession has only the

103 F.3d 273, *278; 1996 U.S. App. LEXIS 33855, **13

Page 6

*278    most tenuous links to interstate commerce and would  blur  past  any  principled  limit  on  the  commerce power. Finally, Rybar invokes the same federalism con- cerns  expressed  in  Lopez,  arguing  that  Pennsylvania's own  regime  of  machine  gun  regulation  makes  relevant the Court's observation in Lopez that "states possess pri- mary  authority  for  defining  and  enforcing  the  criminal law." Id. at 1631 n.3 (quoting Brecht v. Abrahamson, 507

U.S. 619, 635, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993)). Before we examine the particular statute at issue here, it  may  be  helpful  to  set  forth  the  principles  governing the standards by which we review such a challenge. As Justice Kennedy observed in his concurrence in Lopez, while Congress enjoys "extensive power and ample dis- cretion  to  determine   the   appropriate  exercise   of  its Commerce Clause authority ," the courts, for their part, must  observe  "great  restraint"  before  determining  "that the  Clause  is  insufficient  to  support  an  exercise  of  the national power." 115 S. Ct. at 1634 (Kennedy, J., concur- ring). HN2  Our examination of the scope of legislative prerogative respecting exercise of the Commerce Clause power is twofold, and "relatively **14   narrow." Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452

U.S. 264, 276, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981). We must first determine whether Congress could ratio- nally  conclude  that  the  regulated  activity  substantially affects interstate commerce. Lopez, 115 S. Ct. at 1629-

30.  n3  If  we  decide  that  it  could,  "the  only  remaining question for judicial inquiry is whether 'the means cho- sen  by   Congress   are   reasonably  adapted  to  the  end permitted by the Constitution.'" Virginia Surface Mining,

452 U.S. at 276 (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262, 13 L. Ed. 2d 258, 85 S. Ct. 348 (1964)); accord Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 17, 108 L. Ed. 2d 1, 110 S. Ct. 914

(1990).

N3  In  Virginia  Surface  Mining,  452  U.S.  at

276,  the  Court  had  framed  the  question  merely as whether the activity regulated "affects interstate commerce," without the adverb "substantially" that was added by the Lopez majority. See also Hodel

v. Indiana, 452 U.S. 314, 324, 326, 69 L. Ed. 2d 40,

101 S. Ct. 2376 (1981).

In Lopez the government had conceded that neither

**15   § 922(q) nor its legislative history contained any express findings regarding the effects on interstate com- merce of gun possession in a school zone. 115 S. Ct. at

1631. Chief Justice Rehnquist commented that the Court's ability to evaluate the legislative judgment as to the effect of  gun  possession  on  interstate  commerce  would  have been  aided  by  the  existence  of  congressional  findings, and  declined  to  consider  findings  accompanying  prior firearms legislation because the previous legislation did not address the subject matter of § 922(q) or its relation- ship to interstate commerce. The prohibition of firearm possession in a school zone effected by § 922(q) "'plowed thoroughly  new  ground  and  represented  a  sharp  break with the longstanding pattern of federal firearms legisla- tion.'" Id. at 1632 (quoting approvingly from the Court of Appeals decision).

The majority thus proceeded to determine, without the aid of Congress' views, whether possession of a firearm in  a  school  zone  does  in  fact  substantially  affect  inter- state  commerce.  The  government  had  argued  that  such possession may result in violent crime, which can be ex- pected to affect the national economy in two ways: (1) the costs **16   of violent crime are spread throughout the population through the mechanism of insurance; and (2) violent crime reduces the willingness of people to travel to unsafe areas. The government had also contended that the  presence  of  guns  in  schools  threatens  the  learning environment, resulting in a less productive citizenry and adverse effects on the nation's economic well-being. Id. The Lopez majority rejected these arguments because it saw no boundaries, commenting that under the govern- ment's theories it would be "difficult to perceive any lim- itation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign." Id. In response to Justice Breyer's

dissent, which argued that "Congress

103 F.3d 273, *279; 1996 U.S. App. LEXIS 33855, **16

Page 7

*279   . . . could rationally conclude that schools fall on the commercial side of the line," id. at 1664 (Breyer, J., dissenting),  Chief Justice Rehnquist  characterized  such analysis as "equally applicable, if not more so, to subjects such as family law and direct regulation of education," id. at 1633. He continued,

We do not doubt that Congress has author- ity under the Commerce Clause to regulate numerous commercial activities **17   that substantially affect interstate commerce and also affect the educational process. That au- thority,  though broad,  does not include the authority to regulate each and every aspect of local schools.

Id. He added:

The  possession  of  a  gun  in  a  local  school zone is in no sense an economic activity that might,  through  repetition  elsewhere,  sub- stantially  affect  any  sort  of  interstate  com- merce. Respondent was a local student at a local  school;  there  is  no  indication  that  he had recently moved in interstate commerce, and there is no requirement that his posses- sion of the firearm have any concrete tie to interstate commerce.

Id.  at  1634.  The  Chief  Justice  concluded  by  declining

"to  pile  inference  upon  inference"  in  order  "to  convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Id.

Nonetheless,  the  Lopez  majority  emphasized  that

"Congress normally is not required to make formal find- ings  as  to  the  substantial  burdens  that  an  activity  has on  interstate  commerce."  Id.  at  1631.  The  Court  com- mented  only  that  such  findings  might  have  special  rel- evance where they would aid judicial evaluation **18  of "the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye." Id. at 1632.

In any event, in our analysis of § 922(o) we find that,

unlike the situation in Lopez,  there are legislative find- ings  to  aid  judicial  evaluation  of  the  effect  of  machine guns  on  interstate  commerce.  While  these  findings  did not accompany the passage of § 922(o), the subject mat- ter of § 922(o) is sufficiently similar to that of the other legislation accompanied by these findings so as to be a re- liable statement of the rationale for Congress' authority to pass § 922(o). Congressional findings generated through- out Congress' history of firearms regulation link both the flow of firearms across state lines and their consequen- tial indiscriminate availability with the resulting violent criminal acts that are beyond the effective control of the states. Thus, § 922(o) does not "plow new ground," as the Lopez majority said § 922(q) did. Id. at 1632. Rather than represent a "sharp break" in pattern, which concerned the Lopez Court, it continues in the stream of prior legislation. The **19   National Firearms Act of 1934, the first major federal statute to deal with firearms,  required all persons engaged in the business of selling "firearms" (in- cluding  machineguns)  and  all  firearm  owners  to  regis- ter with the Collector of Internal Revenue, subjected all firearm sales to a special tax, and required that they be accompanied by written order forms. The statute made it illegal to move a firearm in interstate commerce with- out  payment  of  the  tax,  or  to  possess  a  firearm  trans- ferred in contravention of the tax and form requirements. Pub. L. No. 474, §§ 2-6, 48 Stat. 1236, 1237-38 (super- seded by Internal Revenue Code of 1939). Although the

1934  statute  was  enacted  under  the  taxing  power,  four years  later  Congress  used  the  commerce  power  to  reg- ulate firearms with the passage of the Federal Firearms Act of 1938. Pub. L. No. 785, 52 Stat. 1250 (1938) (re- pealed 1968). All subsequent federal firearms legislation was enacted under the commerce power.

In  the  Federal  Firearms  Act  of  1938,  Congress  re- quired firearm manufacturers and dealers to obtain federal licenses before engaging in interstate commerce, permit- ted such licensees to ship firearms interstate only to other licensees and **20   to persons with state-required per- mits, mandated that licensees keep permanent records of firearm transactions, and prohibited the interstate move- ment of firearms by or to fugitives or persons indicted or convicted of violent crimes, or if the firearms were stolen or had

103 F.3d 273, *280; 1996 U.S. App. LEXIS 33855, **20

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*280    altered  serial  numbers.  Id.  §§  2-3,  52  Stat.  at

1250-52.

In  1968,  Congress  decided  additional  federal  legis- lation  was  needed,  and  enacted  the  more  far-reaching Omnibus Crime Control and Safe Streets Act ("Omnibus Act"), based upon its findings of an extensive interstate commerce in firearms and the need for adequate federal control over such traffic. Because Rybar places much em- phasis on the absence of congressional findings accompa- nying the passage of § 922(o), the congressional findings supporting the enactment of the Omnibus Act, one of its statutory predecessors, are significant:

There is a widespread traffic in firearms mov- ing in or otherwise affecting interstate or for- eign commerce, and . . . the existing Federal controls over such traffic do not adequately enable the States to control this traffic within their  own  borders  through  the  exercise  of their police power;

. . . .

. . . only **21    through adequate Federal control over interstate and foreign commerce in these weapons . . . can this grave problem be  properly  dealt  with,  and  effective  State and local regulation of this traffic be made possible;

. . . .

.  .  .  the  United  States  has  become  the dumping ground of the castoff surplus mili- tary weapons of other nations, and . . . such weapons, . . . imported into the United States in  recent  years,  has  contributed  greatly  to lawlessness and to the Nation's law enforce- ment problems;

.  .  .  the  lack  of  adequate  Federal  con- trol over interstate and foreign commerce in highly destructive weapons . . . has allowed such  weapons  and  devices  to  fall  into  the hands of lawless persons, . . . thus creating a problem of national concern ...

Pub. L. No. 90-351, § 901(a), 82 Stat. 197, 225-26 (1968)

(current version at 18 U.S.C. §§ 921-928 (1994)).

The  1968  Omnibus  Act,  which  incorporated  nearly every  provision  of  the  Federal  Firearms  Act,  addition- ally  required  federal  licenses  for  all  persons  in  the

firearms  business,  regardless  of  whether  the  commerce in which they were engaged was interstate. With respect to all firearms except for shotguns and rifles, the **22  Omnibus Act channelled all interstate traffic through li- censees and prohibited licensees from transferring them to persons under 21 or living out-of--state. With respect to heavy firearms, including machine guns, the Act prohib- ited licensees from selling or delivering them without first receiving affidavits from local law enforcement confirm- ing the intended  use as lawful,  and forbade  unlicensed persons  from  transporting  them  in  interstate  commerce without specific Treasury authorization. And with respect to all firearms, the Act prohibited their importation with- out  Treasury  authorization,  proscribed  their  sale  where their possession or purchase would contravene local law, and declared them subject to forfeiture when involved in violations of its provisions. Id. §§ 922-924,  82 Stat. at

228-33.

Later the same year,  federal controls over interstate and foreign commerce in firearms were strengthened by the passage of the Gun Control Act of 1968, which ex- tended restrictions similar to those Congress had already applied to handguns to most transactions involving rifles and shotguns, added broader coverage of transactions in ammunition, tightened restrictions on deliveries and sales of **23    heavy firearms, including machine guns, and prohibited interstate movement of firearms by or to un- lawful drug users or adjudicated mental defectives. Pub. L.  No.  90-618,  §  922,  82  Stat.  1213,  1218-21  (1968)

(current version at 18 U.S.C. §§ 921-928 (1994)).

As with the earlier Omnibus Act, the legislative find- ings supporting the Gun Control Act emphasized the con- nection between the increasing rate of crime, the growing use of firearms, and interstate firearms traffic. The House Report explained:

The  principal  purpose  of  H.R.  17735,  as amended,  is  to  strengthen  Federal  controls over  interstate  and  foreign  commerce  in firearms and to assist the States effectively to regulate firearms traffic within their bor- ders.

. . . .

The  increasing  rate  of  crime  and  law- lessness  and  the  growing  use  of  firearms in  violent  crime  clearly  attest  to  a  need  to strengthen  Federal  regulation  of  interstate firearms traffic.

103 F.3d 273, *281; 1996 U.S. App. LEXIS 33855, **23

Page 9

*281

The   subject   legislation   responds   to

It is therefore not surprising that when Congress again turned its attention to firearms in 1986, it focused, inter

widespread  national  concern  that  existing Federal control over the sale and shipment of firearms across  State lines is grossly in- adequate.

Handguns, rifles, and shotguns have been the chosen means to execute three-quarters

**24    of  a  million  people  in  the  United States  since  1900.  The  use  of  firearms  in violent  crimes  continues  to  increase  today. Statistics indicate that 50 lives are destroyed by firearms each day. In the 13 months end- ing in September 1967 guns were involved in more  than  6,500  murders,  10,000  suicides,

2,600 accidental deaths,  43,500 aggravated assaults and 50,000 robberies. No civilized society can ignore the malignancy which this senseless slaughter reflects.

H.R. Rep. No. 1577,  90th Cong.,  2d Sess. 6-7 (1968), reprinted in 1968 U.S.C.C.A.N. 4410, 4411-13.

The Report attaches a letter from the Attorney General which states, inter alia:

By recognizing the Federal responsibility to control  the  indiscriminate  flow  of  firearms and  ammunition  across  State  borders,  this bill will give States and local communities the capacity and the incentive to enforce ef- fectively their own gun control laws. Once enacted into law, it will insure that strong lo- cal or State laws are not subverted by a deadly interstate traffic in firearms and ammunition.

Id. at 19, 1968 U.S.C.C.A.N. at 4425.

Thus, by the time Congress passed the 1986 Firearms

Owners' Protection Act ("FOPA"),   **25    Pub. L. No.

99-308,  100  Stat.  449  (current  version  at  18  U.S.C.  §

921-928 (1994)) --  of which § 922(o) is a part --  it had already passed three firearm statutes under its commerce power based on its explicit connection of the interstate flow of firearms to the increasing serious violent crime in this country, which Congress saw as creating a problem of "national concern."

alia, on the hazards of machine guns and the desirability of their control. See H.R. Rep. No. 495, 99th Cong., 2d Sess., 2, 7 (1986), reprinted in 1986 U.S.C.C.A.N. 1327,

1328,  1333  (describing  proposed  machine  gun  restric- tions  as  "benefits  for  law  enforcement"  and  citing  "the need  for  more  effective  protection  of  law  enforcement officers from the proliferation of machine guns"); id. at

4, 1986 U.S.C.C.A.N. at 1330 (describing machine guns as "used by racketeers and drug traffickers for intimida- tion, murder and protection of drugs and the proceeds of crime"); see also 132 Cong. Rec. 9,602 (1986) (statement of Sen. Kennedy) ("The only thing that has changed about the machine gun **26   situation since the 1968 act . . . is that machine guns have become a far more serious law enforcement problem.").

The fact that the findings accompanying prior firearms legislation were not reiterated with the passage of § 922(o) is not controlling, as evidenced by a long line of Supreme Court cases. See Fullilove v. Klutznick, 448 U.S. 448, 502-

03, 65 L. Ed. 2d 902, 100 S. Ct. 2758 (1980) (Powell, J., concurring)  (describing  "information  and expertise that Congress  acquires  in  the  consideration  and  enactment of earlier legislation" as sufficient where "Congress has legislated  repeatedly  in  an  area  of  national  concern"); Maryland v. Wirtz, 392 U.S. 183, 190 n.13, 20 L. Ed. 2d

1020, 88 S. Ct. 2017 (1968) (confirming, where Congress had earlier passed related legislation with relevant find- ings, that subsequent provisions "were presumably based on similar findings and purposes with respect to the areas newly covered");  cf.   Preseault v. Interstate Commerce Comm'n,  494  U.S.  1,  19,  108  L.  Ed.  2d  1,  110  S.  Ct.

914 (suggesting a "history of congressional attempts" in a particular area as basis for heightened deference to leg- islative  judgment).  See  also  Turner  Broadcasting  Sys., Inc. v. Federal Communications Comm'n, 512 U.S. 622,

114 S. Ct. 2445, 2471, 129 L. Ed. 2d 497 (1994) (Congress not obligated "to **27   make a record of the type that an administrative agency or court does"); Perez v. United States, 402 U.S. 146, 156, 28 L. Ed. 2d 686, 91 S. Ct. 1357

(1971) HN3  (Congress need not "make particularized findings in order to legislate"); Katzenbach v. McClung,

379 U.S. 294, 299, 13 L. Ed. 2d 290, 85 S. Ct. 377 (1964)

(no formal findings necessary).

Unlike the Lopez opinion which may be read to cabin

Congress' commerce power to

103 F.3d 273, *282; 1996 U.S. App. LEXIS 33855, **27

Page 10

*282   enact § 922(q) regulating guns in a local school zone, the dissent does not challenge Congress' power to enact § 922(o). Instead, the dissent would require as a con- dition of upholding § 922(o) either that Congress make findings that there was a link between the subject mat- ter being regulated --  here the transfer or possession of a machine gun-and its effect on interstate commerce or that "Congress or the Executive assemble  empirical ev- idence documenting such a link." Dissenting Typescript Op. at 2; see also id. at 15-16.

We know of no authority to support such a demand on Congress. While the dissent writes in the name of "con- stitutional federalism," it recognizes that even Lopez ab- jures such a requirement, 115 S. Ct. at 1631, referred to in Dissenting Typescript Op. at 16, but overlooks that mak- ing **28   such a demand of Congress or the Executive runs counter to the deference that the judiciary owes to its two coordinate branches of government, a basic tenet of the constitutional separation of powers. Nothing in Lopez requires either Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute.

As the Supreme Court has recognized, Congress en- acted the federal gun laws because "it was concerned with the widespread traffic in firearms." Huddleston v. United States, 415 U.S. 814, 824, 39 L. Ed. 2d 782, 94 S. Ct. 1262

(1974). It intended "to halt" unregulated "mail-order and interstate consumer traffic in these weapons," id., and "to insure that . . . weapons could not be obtained by individ- uals whose possession of them would be contrary to the public interest," id. at 825. Having attempted regulation through registration and licensing and incrementally ex- tended the coverage of earlier statutes, and having in 1968 decided to ban possession of firearms by felons because it

"constitutes . . . a burden on commerce or threat affecting the free flow of commerce," see United States v. Bass, 404

U.S. 336, 345-46 n.14, 30 L. Ed. 2d 488, 92 S. Ct. 515

(1971) (quoting Omnibus **29    Act of 1968, § 1201,

82 Stat. at 236), it was a natural progression for Congress to decide in 1986 that the growth in crime and destruc- tion caused by machine guns had expanded to the point

that justified banning the possession and transfer of post-

1986 machine guns. There was no reason for Congress to believe that traffic in machine guns had any less con- nection with interstate commerce than did the possession of a firearm by a felon, and Congress' intent to regulate possession and transfer of machine guns as a means of stemming interstate gun trafficking is manifest.

In suggesting that this case is like Lopez, where the Court  found  that  possession  of  a  gun  in  a  local  school zone had an insubstantial effect on interstate commerce, the dissent disregards a significant distinction. The statute at issue in Lopez attempted to regulate possession of guns only inside school zones -- a discrete area unlikely to have a meaningful aggregate effect on commerce. By contrast, the regulation effected by § 922(o) is not limited to pos- session "on one's own property," Dissenting Typescript Op. at 14; it regulates possession of a class of firearms -- machine guns -- in a much more dispersed **30  and ex- tensive area. Congress could reasonably have concluded that such a general ban of possession of machine guns will have a meaningful effect on interstate commerce that would be more substantial than the effect of banning pos- session within school zones.

Moreover, the concerns expressed by the majority in Lopez, particularly by the concurring opinion of Justice Kennedy,  about  federal intrusion  into local schools,  an area traditionally left for the overview and regulation by states,  are  not  presented  by  §  922(o).  Unlike  the  con- clusion  in  Lopez  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," 115 S. Ct. at 1634, it is evident from  §  922(o)  that  "possession  and  transfer"  of  a  ma- chine  gun  is  an  economic  activity  that  Congress  could reasonably  have  believed  would  be  repeated  elsewhere and thereby substantially affect interstate commerce. The potentiality  for  repetition  by  Rybar  himself  of  transac- tions such as those that were the subject of this indict- ment is evidenced by the uncontested facts set forth in the Presentence

103 F.3d 273, *283; 1996 U.S. App. LEXIS 33855, **30

Page 11

*283  Investigation Report. **31  Rybar was a licensed federal firearms dealer, had been authorized to manufac- ture  firearms,  including  machine  guns,  and  operated  a steel and firearms business from his home. After the con- fiscation of the two machine guns, federal agents deter- mined that Rybar had 16 National Firearms Act weapons registered to him. n4

n4 Therefore, looking at the totality of the activ- ity with which Rybar was charged, it was more than

"the purely intrastate possession of a machine gun," see Dissenting Typescript Op. at 13, and he was cer- tainly not one who was simply in "private posses- sion of machine guns," see Dissenting Typescript Op. at 2.

The dissent presses us to find a commercial or eco- nomic  component  of  possession  of  a  firearm.  The  re- sponse  can  be  found  in  the  dissenting  opinion  itself. Certainly  Congress  did  not  enact  §  922(o)  in  response to  the  hypothetical  situation  posed  by  the  dissent  by which  the  possessors  of  machine  guns  converted  them from semiautomatic weapons or retained them from days of government  service.   **32    Instead,  as the dissent acknowledges, we may infer, at least in most situations, that  such  possession  follows  an  unlawful  transfer.  See Dissenting Typescript Op. at 7. We may also assume that Congress was not concerned about the non-commercial transfer from father to son or sister to sister, and thus the unlawful transfer will undoubtedly have had a commer- cial or economic component. It follows that in 1986 when Congress prohibited possession and transfer of a machine gun, it could well have contemplated that the economic activity regulated, at least in the aggregate, substantially affects interstate commerce.

Although  Rybar  would  have  us  view  machine  gun possession as a purely intrastate phenomenon, Supreme Court cases have long sustained the authority of Congress to regulate singular instances of intrastate activity when the cumulative effect of a collection of such events might ultimately have substantial effect on interstate commerce. See, e.g., Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U.S. 264, 277, 69 L. Ed. 2d 1, 101 S. Ct. 2352

(1981); Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241, 258, 13 L. Ed. 2d 258, 85 S. Ct. 348 (1964); Wickard v. Filburn, 317 U.S. 111, 125, 87 L. Ed. 122, 63

S. Ct. 82 (1942); United States   **33            v. Wrightwood

Dairy Co., 315 U.S. 110, 119, 86 L. Ed. 726, 62 S. Ct.

523  (1942);  see  also  Mandeville  Island  Farms,  Inc.  v. American Crystal Sugar Co.,  334 U.S. 219,  232,  92 L. Ed. 1328, 68 S. Ct. 996 (1948).

Just as the Court in Wickard sustained the regulation of wheat intended wholly for home consumption because it was connected to an overall interstate market which it could depress, 317 U.S. at 128-29, and the Court in Perez sustained the regulation of purely intrastate loansharking because  in  the  aggregate  such  local  loansharking  sub- stantially affected interstate commerce, 402 U.S. at 154, so also § 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 guns. It follows, and we hold, that HN4  the authority of Congress to enact

§ 922(o) under the Commerce Clause can be sustained under the third category identified by the Supreme Court: as a regulation of an activity that "substantially affects" commerce.

The  same  approach  was  followed  by  the  Seventh Circuit which, in sustaining § 922(o) over a Commerce Clause challenge,  stated that the statute was "best ana- lyzed" under the third category.   **34   United States v. Kenney, 91 F.3d 884, 889 (7th Cir. 1996). The court rea- soned that § 922(o) was "recognizable as 'an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated,'" id. at 890 (quoting Lopez, 115 S. Ct. at 1631), and therefore more comparable to the wheat- growing scheme in Wickard or the anti-loansharking law in Perez than the Gun-Free School Zones Act in Lopez. Kenney held that "there is a rational basis to regulate the local conduct of machine gun possession, including possession resulting from home manufacture, to effectu- ate § 922(o)'s purpose of freezing the number of legally possessed machine guns at 1986 levels, an effect that is closely  entwined  with  regulating  interstate  commerce."

Id. The court also determined that, in view of prior

103 F.3d 273, *284; 1996 U.S. App. LEXIS 33855, **34

Page 12

*284    congressional findings and enactments concern- ing  firearms  and  "the  serious  problems  associated  with interstate trafficking in firearms," § 922(o) "was not novel but  incremental,"  id.,  and  thus  justified  "deference  to Congress's  accumulated  institutional  expertise,"  id.  at

891.

Although  we  need   **35                not  address  whether  §

922(o) is also sustainable under the other two categories of  Congress'  commerce  powers  cited  by  Chief  Justice Rehnquist in Lopez, we note that other courts of appeals have relied on those categories in rejecting challenges to

§ 922(o). Their underlying reasoning provides additional support to our holding that § 922(o) regulates an activity that substantially affects interstate commerce.

In sustaining § 922(o), the Courts of Appeals for the Fifth, Sixth and Ninth Circuits viewed § 922(o) as a regu- lation of "the use of the channels of interstate commerce," the first of the three categories of activity reachable un- der the commerce power, Lopez, 115 S. Ct. at 1629. See United States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996); United States v. Rambo, 74 F.3d 948 (9th Cir.), cert. de- nied,  136 L. Ed. 2d 32,  1996 U.S. LEXIS 4776,  117 S. Ct. 72 (1996); United States v. Kirk, 70 F.3d 791 (5th Cir.

1995), reh'g en banc granted, 78 F.3d 160 (5th Cir. 1996). The court in Kirk noted that the statute applied only to ma- chine guns not lawfully possessed before May 1986, and thus functioned principally to prohibit "the introduction into the stream of commerce of  machineguns"   **36  illegally obtained after that date.  70 F.3d at 796. It char- acterized § 922(o) as a "necessary and proper measure" to permit readier interdiction of, and depress demand for, prohibited machine gun transfers, and likened it to fed- eral regulation of controlled substances as "essential to effective control of the interstate incidents" of traffic in particular commodities.  Id. at 796-97.

The Ninth Circuit in Rambo observed that, "by regu- lating the market in machineguns," § 922(o) "effectively regulates  the  interstate  trafficking  in  machineguns."  74

F.3d at 952. Echoing the Fifth Circuit's analysis in Kirk, the Rambo court reasoned that, because there could be no unlawful possession without first an unlawful transfer, §

922(o)'s regulation of possession "regulates commerce" itself.   Id. at 951-52. Unlike § 922(q), which regulated possession  of  weapons  "in  a  specific  geographic  area" rather than any market in weapons, § 922(o) "prohibits the possession of all machineguns illegally transferred." Id. at 952.

Similarly,  the  Sixth  Circuit  in  Beuckelaere  charac- terized the statute as regulating the "extensive, intricate, and definitely national market for machineguns"   **37  acquired  after  May  19,  1986,  91  F.3d  at  784  (quoting United  States  v.  Hunter,  843  F.  Supp.  235,  249  (E.D. Mich.  1994)),  and  emphasized  the  statute's  links  to  in- terstate commerce. It observed that "illegal possession of a machinegun cannot occur without an illegal transfer," and stressed Congress' prior findings concerning the in- terstate flow of firearms and the resulting threats to local law enforcement.  91 F.3d at 784-85.

The Beuckelaere court also held § 922(o) sustainable under the second category of Congress' commerce power, reasoning that machine guns are "things in interstate com- merce." The court observed that, like narcotics, machine guns are items "which flow across state lines for profit by business entities and hamper local and state law enforce- ment efforts." Id. at 785.

That court relied on the Tenth Circuit's earlier deci- sion  in  United  States  v.  Wilks,  58  F.3d  1518  (10th  Cir.

1995), which had upheld § 922(o) under the second com- merce category. The Wilks court characterized machine guns as commodities "bound up with interstate attributes" and thus readily distinguished from the "purely intrastate" objects of § 922(q)'s prohibition.  Id. at 1521. **38   The court observed that § 922(o) was "consistent" with ear- lier firearms legislation "because it merely regulates the movement of a particular firearm in interstate commerce," id. at 1521 n.4, surveyed prior congressional findings con- cerning the interstate flow of weapons and its attendant dangers, and concluded that § 922(o) represented a valid attempt  to  control  the  interstate  movement  in  machine guns, id. at 1521-22.

Whatever the category relied on, it is telling that each of our sister circuits has found

103 F.3d 273, *285; 1996 U.S. App. LEXIS 33855, **38

Page 13

*285    that the regulation of machine gun transfer and possession comes within Congress' power to legislate un- der the Commerce Clause. That uniform result confirms the  observation  made  in  United  States  v.  Bell,  70  F.3d

495,  497 (7th Cir. 1995), that,  for criminal defendants,

"it appears that United States v. Lopez has raised many false hopes," and that challenges based on Lopez "almost invariably" fail. See, e.g., United States v. Orozco, 98 F.3d

105 (3d Cir. 1996) (rejecting challenge based on Lopez to  Drug-Free  School  Zones  Act,  21  U.S.C.  §  860(a)); United States v. Bishop, 66 F.3d 569 (3d Cir. 1995) (re- jecting challenge to car-jacking statute).   **39

Finally, we deal with Rybar's argument that § 922(o) is deficient because it lacks a "jurisdictional element," the term  used  to  refer  to a  statutory  clause  (such  as "in  or affecting interstate commerce") that limits application of the statute to those instances where the particular machine gun transfer or possession is shown to be related to in- terstate commerce. Although the Lopez Court noted the lack of a jurisdictional element in § 922(q) and observed that  such  an  element  "would  ensure,  through  case-by-- case inquiry, that the firearm possession in question af- fects interstate commerce," 115 S. Ct. at 1631 (emphasis added), it did not state, as it easily could have, that such a statutory feature was essential.

In its discussion of this issue, the Court contrasted §

922(q) with former 18 U.S.C. App. § 1202(a) (prohibit- ing felons from "receiving, possessing, or transporting in commerce or affecting commerce . . . any firearm"). In United States v. Bass,  404 U.S. 336,  30 L. Ed. 2d 488,

92 S. Ct. 515 (1971), the Court had construed the am- biguous scope of the jurisdictional element in former §

1202(a)  to  apply  to  possession  of  firearms  in  order  to avoid a constitutional issue. However, rather than making

**40    it a sine qua non, the Bass decision merely sig- nified that a statute's inclusion of a jurisdictional element is a condition sufficient to establish its validity under the Commerce  Clause.  We  find  no  basis  in  either  Bass  or Lopez for Rybar's claim that inclusion of such language is a necessary condition. See Kenney, 91 F.3d at 887 ("We have  rejected  the  argument  that  Lopez  requires  federal criminal statutes to contain a jurisdictional element."). n5

n5  Because  Rybar  interposed  a  facial  chal- lenge  to  §  922(o)  there  was  no  occasion  for  the

district  court  to  consider  whether,  in  fact,  these two  machine  guns  had  passed  through  interstate commerce.  We  note  but  do  not  rely  on  the  fact that  although  Rybar  was  authorized  to  manufac- ture firearms, including machine guns, the very na- ture of the machine guns he possessed and sold to Baublitz, one of which was a U.S. military machine gun and the other described as a "Chinese Type 54" machine gun, suggests interstate traffic.

We thus join the five other **41   circuits in rejecting the Commerce Clause challenge to Congress' authority to enact § 922(o).

B.

Second Amendment

As an independent basis for his argument that § 922(o) is unconstitutional, Rybar relies on the Second Amendment of the Constitution,  which provides:  "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II.

In support, Rybar cites, paradoxically, the Supreme Court decision in United States v. Miller, 307 U.S. 174, 83 L. Ed.

1206, 59 S. Ct. 816 (1939), where the Court upheld the constitutionality  of  a  firearms-registration  requirement against  a  Second  Amendment  challenge.  Rybar  draws on  that  holding,  relying  on  the  Miller  Court's  observa- tion that the sawed-off shotgun in question had not been shown to bear "some reasonable relationship to the preser- vation or efficiency of a well regulated militia." Brief of Appellant  at  24-25;  Miller,  307  U.S.  at  178.  Drawing from that language the contrapositive implication, Rybar suggests that because the military utility of the machine guns proscribed by § 922(o) is clear, a result contrary to that reached in   **42   Miller is required, and the statute is therefore invalid under the Second Amendment.

Rybar's  reliance  on  Miller  is  misplaced.  The  language

Rybar cites is taken from the following passage:

In  the  absence  of  any  evidence  tending  to show that possession or use of a "shotgun

103 F.3d 273, *286; 1996 U.S. App. LEXIS 33855, **42

Page 14

*286   having a barrel of less than eighteen inches in length" at this time has some rea- sonable relationship to the preservation or ef- ficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary mili- tary equipment or that its use could contribute to the common defense.

307 U.S. at 178.

We note first that however clear the Court's sugges- tion that the firearm before it lacked the necessary military character, it did not state that such character alone would be sufficient to secure Second Amendment protection. In fact, the Miller Court assigned no special importance to the character of the weapon itself, but instead demanded a reasonable relationship between its "possession or use" and  militia-related  activity.  Id.;  see  Cases   **43          v. United States, 131 F.2d 916, 922 (1st Cir. 1942) (suscep- tibility of firearm to military application not determina- tive),  cert. denied,  319 U.S. 770 (1943). Rybar has not demonstrated that his possession of the machine guns had any  connection  with  militia-related  activity.  Indeed,  as noted above, Rybar was a firearms dealer and the transac- tions in question appear to have been consistent with that business activity.

Nonetheless, Rybar attempts to place himself within the  penumbra  of  membership  in  the  "militia"  specified by the Second Amendment by quoting from 10 U.S.C. §

311(a):

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title

32, under 45 years of age who are . . . citizens of the United States . . . .

Rybar's invocation of this statute does nothing to es- tablish that his firearm possession bears a reasonable re- lationship to "the preservation or efficiency of a well reg- ulated militia," as required in Miller, 307 U.S. at 178. Nor can claimed membership in a hypothetical or "sedentary" militia suffice. See United States v. Hale, 978 F.2d 1016,

1020 (8th Cir. 1992),   **44   cert. denied, 507 U.S. 997,

123 L. Ed. 2d 174, 113 S. Ct. 1614 (1993); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert. denied,

435 U.S. 926, 55 L. Ed. 2d 521, 98 S. Ct. 1493 (1978); United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948, 49 L. Ed. 2d 1185, 96 S. Ct. 3168

(1976).

Rybar boldly asserts that "the Miller Court was quite simply wrong in its superficial (and one-sided) analysis of the Second Amendment." Brief of Appellant at 27. As one of the inferior federal courts subject to the Supreme Court's precedents,  we have neither the license nor the inclination  to  engage  in  such  freewheeling  presumptu- ousness. In any event, this court has on several occasions emphasized that HN5  the Second Amendment furnishes no absolute right to firearms. See United States v. Graves,

554  F.2d  65,  66  n.2  (3d  Cir.  1977);  Eckert  v.  City  of

Philadelphia,  477 F.2d 610 (3d Cir.),  cert. denied,  414

U.S. 839, 38 L. Ed. 2d 74, 94 S. Ct. 89 (1973). Federal at- tempts at firearms regulation have also consistently with- stood challenge under the Second Amendment. See, e.g., Hale, 978 F.2d at 1020; Warin, 530 F.2d at 108; United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290 n.5 (7th Cir. 1974); United States v.   **45     Johnson, 497 F.2d 548, 550 (4th Cir.

1974); Cases, 131 F.2d at 923. We see no reason why §

922(o) should be an exception.

III.

CONCLUSION

In light of the foregoing, we reject Rybar's challenge to the constitutional validity of 18 U.S.C. § 922(o) and will affirm the district court's judgment of conviction.

DISSENTBY: ALITO

DISSENT: ALITO, Circuit Judge, dissenting:

Was United States v. Lopez, 514 U.S. 549, 131 L. Ed.

2d 626,  115 S. Ct. 1624 (1995), a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?

The statutory provision challenged in this case,  the portion of 18 U.S.C. § 922(o) that generally prohibits the purely intrastate possession n1

103 F.3d 273, *287; 1996 U.S. App. LEXIS 33855, **45

Page 15

*287     of  a  machine  gun,  is  the  closest  extant  rela- tive  of  the  statute  struck  down  in  Lopez,  18  U.S.C.  §

922(q)(1)(A), which made it a federal offense knowingly to possess a firearm in a school zone. Both are criminal statutes that regulate the purely intrastate possession of firearms. Both statutes, departing from the mold of prior federal criminal statutes governing firearms possession, lack a jurisdictional element, n2 that is, they do not require federal prosecutors **46  to prove that the firearms were possessed in or affecting interstate commerce. Compare, e.g.,  18  U.S.C.  §  922(d).  And  in  passing  both  statutes, Congress made no findings regarding the link between the intrastate activity regulated by these laws and interstate commerce. If Lopez does not govern this case, then it may well be a precedent that is strictly limited to its own pe- culiar circumstances. That may be what the majority here would like, see Maj. Op. at 28 (citation omitted) ("chal- lenges based on Lopez 'almost invariably' fail"), but our responsibility is to apply Supreme Court precedent. That responsibility, it seems to me, requires us to invalidate the statutory provision at issue here in its present form.

n1 Title 18 U.S.C. § 922(o) also applies to trans- fers of machine guns. However,  the defendant in this  case  pled  guilty  to  two counts  of  the  indict- ment charging only possession, and thus the con- stitutionality of the transfer provision is not before us here.

n2  See  United  States  v.  Lopez,  2  F.3d  1342,

1347 (5th Cir. 1993), aff'd,  514 U.S. 549,  131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995).

**47

This would not preclude adequate regulation of the private possession of machine guns. Needless to say, the Commerce Clause does not prevent the states from regu- lating machine gun possession, as all of the jurisdictions within our circuit have done. See Del. Code Ann. tit. 11, §

1444 (1995); N.J. Stat. Ann. § 2C: 39-5a (West 1995); 18

Pa. Cons. Stat. Ann. § 908 (1996); V.I. Code Ann. tit. 14, §

2253( 1994). Moreover, the statute challenged here would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element --  a common fea- ture  of  federal  laws  in  this  field  and  one  that  has  not posed any noticeable problems for federal law enforce- ment. In addition, as I explain below, 18 U.S.C. § 922(o) might be sustainable in its current form if Congress made findings that the purely intrastate possession of machine guns has a substantial effect on interstate commerce or if Congress or the Executive assembled empirical evidence documenting such a link. If, as the government and the majority baldly insist, the purely intrastate possession of machine guns has such an effect, these steps are not too

much to demand to protect our system of constitutional federalism.   **48

I.

In Lopez, the Supreme Court identified "three broad categories" of legislation permitted under the Commerce Clause:  (1) regulation of "the use of the channels of in- terstate commerce, (2) regulation and protection of "the instrumentalities  of  interstate  commerce,  or  persons  or things in interstate commerce, even though the threat may come only from intrastate activities," and (3) regulation of

"activities that substantially affect interstate commerce."

n3

n3 The court wrote:

We  have  identified  three  broad  cate- gories  of  activity  that  Congress  may regulate  under  its  commerce  power

.   .   .   .   First,   Congress   may   regu- late  the  use  of  the  channels  of  in- terstate  commerce  See,  e.g.,   United States  v.  Darby,  312  U.S.  100,  114,

61  S.  Ct.  451,  457,  85  L.  Ed.  609

(1941);  Heart  of  Atlanta  Motel  Inc. v.  United  States,  379  U.S.  241,  256,

85 S. Ct. 348, 357, 13 L. Ed. 2d 258

(1964) ('The authority of Congress to keep  the  channels  of  interstate  com- merce  free  from  immoral  and  injuri- ous uses has been frequently sustained, and  is  no  longer  open  to  question.'"

(quoting   Caminetti  v.  United  States,

242  U.S.  470,  491,  37  S.  Ct.  192,

197,  61  L.  Ed.  442  (1917)).  Second Congress is empowered to regulate and protect  the  instrumentalities  of  inter- state commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.  See,  e.g.,  Shreveport  Rate Cases,  234  U.S.  342,  34  S.  Ct.  833,

58  L.  Ed.  1341  (1914);  Southern  R. Co. v. United States, 222 U.S. 20, 32

S. Ct. 2, 56 L. Ed. 72 (1911)(uphold- ing amendments to Safety Appliance Act as applied to vehicles used in in- trastate  commerce);   Perez  v.  United States,  402  U.S.  146,  150,  91  S.  Ct.

1357, 1359, 28 L. Ed. 2d 686 (1964)

("For  example,  the  destruction  of  an aircraft (18 U.S.C. § 32), or. . . thefts from interstate shipments (18 U.S.C. §

103 F.3d 273, *287; 1996 U.S. App. LEXIS 33855, **48

Page 16

659)").  Finally,  Congress'  commerce authority includes the power to regu- late those activities having a substan- tial  relation  to  interstate  commerce,

NLRB v. Jones & Laughlin Steel, 301

**49

183,  196  n.27,  88  S.  Ct.  2017,  2024

n.27, 20 L. Ed. 2d 1020 (1968).

U.S. 1,  37,  57 S. Ct. 615,  624,  81 L. Ed. 893 (1937) , i.e.,  those activities that substantially affect interstate com- merce.   Maryland  v.  Wirtz,  392  U.S.

115 S. Ct. at 1629-30.

The majority in this case quite properly focuses its analysis primarily on the third of

103 F.3d 273, *288; 1996 U.S. App. LEXIS 33855, **49

Page 17

*288   these categories --  Congress's power to regulate those "activities that substantially affect interstate com- merce" -- because this is plainly the category under which

18 U.S.C. § 922(o) must be analyzed. But panels in the Fifth, Sixth, Ninth, and Tenth Circuits have tried to shoe- horn 18 U.S.C § 922(o) into the first or second categories, and the majority cannot bring itself to acknowledge these courts'  errors.  Therefore,  without  embracing  or  repudi- ating  the  reasoning  of  these  other  courts,  the  majority writes:

Whatever   the   category   relied   on,   it is  telling  that  each  of  our  sister  circuits has  found  that  the  regulation  of  machine gun  transfer  and  possession  comes  within Congress'   power   to   legislate   under   the Commerce Clause. That uniform result con- firms the observation made in United States Bell,   70  F.3d  495,   497  (7th  Cir.  1995), that, for criminal defendants, "it appears that United States v. Lopez has raised many false hopes," and that challenges based on Lopez

"almost invariably" fail.

Maj. Op. at 27-28. This approach requires me to discuss the **50   first two categories and explain why I believe they are clearly inapplicable here.

II.

Regulation of the channels of commerce. As the ma- jority notes (Maj. Op. at 25), panels in the Fifth, Sixth, and Ninth Circuits have upheld 18 U.S.C. § 922(o) as a regulation of "the use of the channels of interstate com- merce." Lopez, 115 S. Ct. at 1629. See United States v. Beuckelaere,  91  F.3d  781,  783  (6th  Cir.  1996);  United States v. Rambo, 74 F.3d 948, 951-52 (9th Cir.), cert. de- nied, 136 L. Ed. 2d 32, 1996 U.S. LEXIS 4776, 117 S. Ct.

72 (1996); United States v. Kirk, 70 F.3d 791, 796 (5th Cir.

1995), reh'g en banc granted, 78 F.3d 160 (5th Cir. 1996). However, these courts seem to me to have fundamentally misunderstood the first category set out in Lopez.

To  illustrate  the  meaning  of  this  category,  Lopez quoted a sentence from Caminetti v. United States, 242

U.S. 470, 61 L. Ed. 442, 37 S. Ct. 192 (1917), in which the  Court  upheld  the  constitutionality  of  the  so-called White Slave Traffic Act, which prohibited the interstate transportation of women for prostitution or other immoral purposes. The sentence from Caminetti that was partially quoted in Lopez was as follows:

The transportation of passengers **51  in  interstate  commerce,  it  has  long  been settled,  is  within  the  regulatory  power  of Congress, under the commerce clause of the Constitution, and the authority of Congress to keep the channels of interstate commerce free  from  immoral  and  injurious  uses  has been frequently sustained, and is no longer open to question.

Lopez, 115 S. Ct. at 1629, citing Caminetti, 242 U.S. at

491. Lopez also cited United States v. Darby,  312 U.S.

100, 114, 85 L. Ed. 609, 61 S. Ct. 451 (1941), where the

Court wrote:

Congress,  following  its  own  conception  of public   policy   concerning   the   restrictions which may appropriately be imposed on in- terstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals, or welfare, even though the state has not sought to regulate their use.

In support of this statement, the Darby Court cited (id.), among other cases, Champion v. Ames, 188 U.S. 321, 47

L.  Ed.  492,  23  S.  Ct.  321  (1903)  (the  "Lottery  Case"), which  upheld  a  law  prohibiting  the  interstate  shipment of lottery tickets, and Hipolite Egg Co. v. United States,

220 U.S. 45, 55 L. Ed. 364, 31 S. Ct. 364 (1911), which sustained a law banning **52    the interstate shipment of adulterated food. Thus, it seems clear that the first cat- egory of Commerce Clause authority outlined in Lopez concerns Congress's power to regulate, for economic or social purposes, the

103 F.3d 273, *289; 1996 U.S. App. LEXIS 33855, **52

Page 18

*289    passage in interstate commerce of either people or goods.

The statute at issue in this case, 18 U.S.C. § 922(o), would fall within this category if it barred the interstate shipment of machine guns, but of course that is not what it  does.  Instead,  it  goes  much  farther  and  reaches  the wholly intrastate possession of machine guns. I therefore agree with the Seventh Circuit, which, while sustaining

18 U.S.C. § 922(o) under the third Lopez category, can- didly  acknowledged  that  it did  not fall  within the  first. United States v. Kenney, 91 F.3d 884, 889 (7th Cir. 1996); see also Beuckelaere, 91 F.3d at 787-88 (Suhrheinrich, J., dissenting); Kirk, 70 F.3d at 799 (Jones, J., dissenting).

In  holding  that  18  U.S.C.  §  922(o)  falls  within  the first  category,  the  Fifth,  Sixth,  and  Ninth  Circuits  rea- soned  chiefly  as  follows.  This  statute,  while  generally banning  the  private  possession  of  machine  guns,  does not apply to machine guns lawfully possessed prior to its

**53   enactment in 1986. See 18 U.S.C. § 922(o)(2)(B). Therefore,  "there  could  be  no  unlawful  possession  un- der section 922(o) without an unlawful transfer." Kirk, 70

F.3d at 796. Accordingly, "the limited ban on possession of machine guns 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 machine guns 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 desire to acquire mere possession." Id.;  see also Beuckelaere, 91

F.3d at 783; Rambo, 74 F.3d at 951-52.

There are numerous flaws in this analysis. First (but least important), it is not true that every possession crim- inalized by 18 U.S.C. § 922(o) must be preceded by an

"unlawful transfer." A lawfully possessed semiautomatic weapon could be converted by its owner into an automatic. See Kenney, 91 F.3d at 889. The statute may also reach a person who initially possesses a machine gun lawfully pursuant to **54   18 U.S.C. § 922(o)(2)(A), which per- mits possession under governmental authority,  but who exceeds the scope of that authority or retains possession

after it has terminated. Second and more important, this reasoning seems to confuse an unlawful transfer with an interstate transfer. Even if it were true that every posses- sion made illegal by 18 U.S.C. § 922(o) were preceded by an unlawful transfer,  it would not follow that every such possession is preceded by an interstate transfer, and Congress's authority under the first Lopez category con- cerns  the  passage  of  people  and  goods  in  the  channels of interstate commerce. Third, insofar as the Fifth, Sixth, and Ninth Circuits justified 18 U.S.C § 922(o) as an at- tempt to suppress an interstate market by banning purely intrastate possession, their arguments fall within the third Lopez category, i.e., Congress's authority to regulate an intrastate activity (intrastate possession) that has a sub- stantial effect on interstate commerce (the interstate mar- ket). The Seventh Circuit recognized this point when it wrote:

Although  it  may  be  true  that  Congress must  regulate  intrastate  transfers  and  even mere possessions of **55   machine guns in aid of its prerogative of preventing the mis- use of the channels of interstate commerce, the regulation still regulates much more than the  channels  of  commerce.  This  rationale is therefore an aspect of Congress's broader power to regulate things 'affecting" interstate commerce; we must look further, in light of Lopez, to confirm the existence of a rational and substantial basis underlying its power to do so.

Kenny, 91 F.3d at 889.

III.

Regulation of activities that threaten the instrumental- ities of interstate commerce or persons or things in inter- state commerce. In Lopez, the Court wrote that "Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." 115 S. Ct. at 1629. The Court cited two cases involving the exercise of this power. The first, Houston & Texas Ry. v. United

103 F.3d 273, *290; 1996 U.S. App. LEXIS 33855, **55

Page 19

*290    States, 234 U.S. 342, 58 L. Ed. 1341, 34 S. Ct.

833 (1914), (the "Shreveport Rate Cases") in which the Court upheld the regulation of intrastate railroad rates on the theory that this regulation was needed to protect "the security of interstate  traffic," "the **56   efficiency of the interstate service," and "the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance." Id. at

351. The second Southern R. Co. v. United States,  222

U.S. 20, 56 L. Ed. 72, 32 S. Ct. 2 (1911), upheld federal safety regulations as applied to trains and railroad cars travelling intrastate on a railroad line that was a highway of interstate commerce. The Court reasoned that the "ab- sence of appropriate safety appliances" from the intrastate trains and cars was "a menace," not only to those trains and cars, but also to those moving in interstate commerce. Id. at 27. See United States v. Bishop, 66 F.3d 569, 597-

98 (3d Cir. 1995)(Becker, J., dissenting).

In addition to these two cases, the Lopez Court cited two statutes that had been listed in Perez v. United States,

402 U.S. 146, 150, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971), as falling within this category of congressional authority. See Lopez, 115 S. Ct. at 1629. The statutes were 18 U.S.C

§  32,  which,  at  the  time  of  Perez,  made  it  a  crime  to damage or destroy an aircraft that was used in interstate commerce, and 18 U.S.C. § 659, which criminalizes thefts from interstate **57   shipments.

Based  on  the  Lopez  Court's  description  of  this  second category of congressional authority and on the examples that it provided, it is apparent that this authority reaches threats to "the instrumentalities" of interstate commerce, i.e., the means of conveying people and goods across state lines, such as airplanes and trains. This power also reaches threats to people and goods travelling in interstate com- merce, such the theft of goods moving interstate and the setting of rates that could affect interstate trade.

Title 18 U.S.C. § 922(o) would fall within this second Lopez category if Congress had banned the intrastate pos- session of machine guns in order to prevent them from be-

ing used to damage vehicles travelling interstate, to carry out robberies of goods moving in interstate commerce, or to threaten or harm interstate travellers. However, there is no indication that Congress passed 18 U.S.C. § 922(o) for any of these reasons; and neither the government, the majority in this case, nor any of the other courts of appeals have adduced any evidence that this statute is needed for any  of  these  purposes.  Thus,  I  agree  with  the  Seventh Circuit that 18 U.S.C **58   § 922(o) "appears to be an ill fit in the second" Lopez category.  Kenney, 91 F.3d at

889.

Although  the  Sixth  and  Tenth  Circuits  upheld  18

U.S.C. § 922(o) under this second category, I find their reasoning elusive. Both courts stressed that machine guns travel in interstate commerce. See Beuckelaere, 91 F.3d at

784 ("Machineguns travel in interstate commerce, posing a threat to local law enforcement, which has a disruptive effect on interstate commerce."); United States v. Wilks,

58 F.3d 1518, 1521 (10th Cir. 1995) ("machineguns . . . by their nature are 'a commodity . . . transferred across state lines for profit by business entities'")("the interstate flow of machineguns . . . is interstate commerce"). But how these assertions show that 18 U.S.C § 922(o) can be sustained under the second Lopez category, I am at a loss to understand. Those machine guns that are actually trav- elling in interstate commerce may be regulated under the first Lopez category, i.e., Congress may ban them from the channels of interstate commerce altogether or restrict their admission. However, machine guns that are simply possessed  intrastate  and  are  not  travelling  in  interstate

**59    commerce may not be regulated under the first Lopez category, and as previously explained, unless they are menacing interstate commerce, they do not fall within the second category either.

Accordingly, I think it is clear that "if 18 U.S.C. §

922(o)  is to be sustained," it cannot be under the first or second Lopez categories, but "must be under the third category as a regulation of an activity that substantially affects interstate commerce." Lopez, 115 S. Ct. at 1630.

103 F.3d 273, *291; 1996 U.S. App. LEXIS 33855, **59

Page 20

*291   IV.

Regulation of activities that substantially affect interstate commerce.  I  come  now  to  the  crux  of  this  case,  viz., whether 18 U.S.C. § 922(o) can be upheld in its present form  and  on  the  present  record  on  the  ground  that  the purely intrastate possession of machine guns substantially affects interstate commerce. As I understand its opinion, the majority advances two separate theories,  and I will address each separately.

A. The majority writes:

Just as the Court in Wickard v. Filburn,

317  U.S.  111,  125,  87  L.  Ed.  122,  63  S. Ct.  82  (1942),   sustained  the  regulation  of wheat intended wholly for home consump- tion  because  it  was  connected  to  an  over- all interstate market which it could depress,

317 U.S. at **60   128-29, and the Court in

Perez v. United States, 402 U.S. 146, 156,

91  S.  Ct.  1357,  28  L.  Ed.  2d  686  (1971),  sustained the regulation of purely intrastate loansharking because in the aggregate such local loansharking substantially affected in- terstate commerce, 402 U.S. at 154, so also

§  922(o)  can  be  sustained  because  it  tar- gets  the  possession  of  machine  guns  as  a demand-side  measure  to  lessen  the  stimu- lus that prospective acquisition would have on the commerce in machine guns.

Maj. Op. at 23-24. In other words, the majority argues in effect that the private, purely intrastate possession of machine  guns  has  a  substantial  effect  on  the  interstate machine gun market.

This  theory,  if  accepted,  would  go  far  toward  con- verting  Congress's  authority  to  regulate  interstate  com- merce into "a plenary police power." Lopez, 115 S. Ct. at

1633. If there is any sort of interstate market for a com- modity --  and I think that it is safe to assume that there is  some  sort  of  interstate  market  for  practically  every- thing -- then the purely intrastate possession of that item will have an effect on that market, and outlawing private possession of the item will presumably have a substantial effect. Consequently, the majority's **61   theory leads

to the conclusion that Congress may ban the purely in- trastate possession of just about anything. But if Lopez means  anything,  it  is  that  Congress's  power  under  the Commerce  Clause  must  have  some  limits.  Cf.  Charles Fried, Foreword:  Revolutions?, 109 HARV. L. REV. 13,

36-37 (1995).

The  Lopez  Court  of  course  recognized  the  poten- tial  sweep  of  Wickard,  on  which  the  majority's  theory is chiefly based, and the Lopez Court sought to place rea- sonable  limits  on  that  theory.  Observing  that  Wickard represents  "perhaps  the  most  far  reaching  example  of Commerce Clause authority over interstate activity," the Court noted that Wickard "involved economic activity in a way that the possession of a gun in a school zone does not." 115 S. Ct. at 1630. The Court then added:

Section 922(q) is a criminal statute that by  its  terms  has  nothing  to  do  with  'com- merce'  or  any  sort  of  economic  enterprise, however  broadly  one  might  define  those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in  which  the  regulatory  scheme  could  be undercut  unless  the  intrastate  activity  were regulated. It cannot, therefore, be sustained

**62    under  our  cases  upholding  regula- tions of activities that arise out of or are con- nected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

115 S. Ct. at 1630-31 (footnote omitted).

The activity that the Lopez Court found was not "eco- nomic" or "connected with a commercial transaction" was a type of intrastate firearm possession, i.e., the possession of a firearm (including a machine gun) within a school zone.  At  issue  here  is  another  type  of  purely  intrastate firearm possession, i.e., the purely intrastate possession of a machine gun. If the former must be regarded as non- economic and non-commercial, why isn't the same true of the latter?  Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms? n4 Is the possession of a firearm within a school zone somehow less "economic

103 F.3d 273, *292; 1996 U.S. App. LEXIS 33855, **62

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*292   " and "commercial" than possession elsewhere -- say, on one's own property? n5 If there are distinctions of constitutional dimension here, they are too subtle for me to grasp. It seems to me that the most natural reading of Lopez is that the simple possession of a firearm, without

**63   more, is not "economic" or "commercial" activity in the same sense as the production of wheat in Wickard and  that  therefore  such  possession  cannot  be  regulated under the Wickard theory. Cf.  United States v. Bishop, 66

F.3d at 601-02 (Becker, J., dissenting).

n4 See United States v. Bishop, 66 F.3d at 587 n.27 ("The dangerousness of the object is not the source of Congressional power; the connection to interstate commerce is.").

n5 The majority does not explain why posses- sion  of  a  firearm  within  a  school  zone  is  more

"commercial" or "economic" than possession else- where-- because it plainly is not. (If someone drives through a school zone with a firearm in his posses- sion, does that person quickly begin to engage in a "commercial" activity on entering the zone and then quickly cease on leaving?) Instead, the major- ity argues that a general ban on the possession of machine guns may reasonably be viewed as having a greater effect on interstate commerce than a ban on the possession of all firearms within certain lim- ited areas (school zones). See Maj. Op. 22. But this argument says nothing about the "commercial" or

"noncommercial" character of firearms possession.

**64

B.  The  majority's  second  theory  appears  to  be  that Congress could have rationally concluded that the purely intrastate possession of machine guns increases the inci- dence of certain crimes -- the majority specifically men- tions violent crime, racketeering, and drug trafficking -- that are of "national concern." See Maj. Op. 19-20. In or- der to bring this case within the third Lopez category, it is not enough to observe that violent criminals, racketeers, and  drug  traffickers  occasionally  use  machine  guns  in committing their crimes and that these crimes have inter- state effects. Rather, there must be a reasonable basis for concluding that the regulated activity (the purely intrastate possession of machine guns) facilitates the commission of these crimes to such a degree as to have a substantial

effect on interstate commerce.

I take this theory very seriously, but my problem with it is that it rests on an empirical proposition for which neither Congress, the Executive (in the form of the gov- ernment lawyers who briefed and argued this case), nor the majority has adduced any appreciable empirical proof. I  would  view  this  case  differently  if  Congress  as  a whole  or  even  one  of  the   **65    responsible  congres- sional committees had made a finding that intrastate ma- chine gun possession, by facilitating the commission of certain crimes, has a substantial effect on interstate com- merce.  But  despite  the  resources  at  their  command  to investigate questions such as this, neither Congress nor any of its committees did so, and indeed Congress never even identified the source of constitutional authority un- der  which  18  U.S.C.  §  922(o)  was  enacted.  Of  course, Congress is not obligated to make findings. "But to the extent that congressional findings would enable us to eval- uate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye,

they are lacking here." Lopez, 115 S. Ct. at 1632.

Likewise, the Justice Department, which has been liti- gating the constitutionality of 18 U.S.C. § 922(o) in courts across the country, has not brought to our attention any studies  or  reports  by  federal  law  enforcement  agencies or others that establish that the purely intrastate posses- sion of machine guns has a substantial effect on interstate commerce.

Without  assistance  from  Congress  or   **66             the Executive,  the majority has combed the legislative his- tory of federal firearms legislation going back more than a half century, but in my view the majority has not found anything  of  significant  value  for  present  purposes.  The majority cites congressional findings made in connection with prior firearms legislation concerning the problems resulting from the interstate movement of firearms. See Maj. Op. at 15 (emphasis added)(findings that "link the flow of firearms across state lines and their consequen- tial indiscriminate availability with the resulting violent criminal acts that are beyond the effective control of the states");  Maj. Op. at 16 (emphasis added) ("findings of an extensive interstate commerce in firearms and the need for adequate federal control over such

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Page 22

*293  traffic"); Maj. Op. at 18 (emphasis added)(findings emphasizing "the connection between the increasing rate of  crime,  the  growing  use  of  firearms,  and  interstate firearms traffic); Maj. Op. at 19-20 (connection between

"the interstate flow of firearms and  the increasing seri- ous crime in the country"). However, the question here is not whether the interstate flow of firearms substantially

**67   affects interstate commerce; rather, the question is whether the entirely intrastate possession of machine guns has such an effect, and none of the findings noted above speak to that question. Indeed,  Congress had no occasion  to  consider  that  question  when  it  made  those findings, since none of the laws in connection with which those findings were made reached purely intrastate pos- session without requiring proof in court of a jurisdictional link.

The remaining underpinnings of the majority's anal- ysis are three snippets from a committee report and one comment made on the floor of the Senate. The commit- tee report, H.R. Rep. No. 99-495, 99th Cong., 2d Sess.

(1986), reprinted in 1986 U.S.C.C.A.N. 1327, concerned a bill, H.R. 4332, 99th Cong., 2d Sess. (1986), that lacked any provision similar to 18 U.S.C. § 922(o). Instead, H.R.

4332 dealt with machine guns by providing (sec. 11) for enhanced  penalties  for  defendants  who  used  or  carried a machine gun during and in relation to a federal drug trafficking offense or a federal crime of violence. See 18

U.S.C.  §  924(c).  This  provision  did  not  raise  any  new Commerce  Clause  problems,  because  the  statutes  cre- ating the underlying federal **68    drug trafficking of- fenses or crimes of violence had presumably been enacted pursuant  to  one  of  the  federal  government's  delegated powers  (whether  the  Commerce  Clause  or  some  other provision). Accordingly,  the committee had no need to consider the general question of the relationship between machine  guns  and  interstate  commerce,  much  less  the specific  question  of  the  relationship  between  intrastate machine  gun  possession  and  interstate  commerce,  and there is no indication that the committee explored either of these topics.

Not surprisingly, however, since H.R. 4332 provided for enhanced penalties in certain cases involving machine gun use, the committee did mention machine guns, and it

is upon these fleeting references that the majority relies. The first reference, which appears in a portion of the report captioned  "BENEFITS  FOR  LAW  ENFORCEMENT" simply summarizes the enhanced penalty provision. H.R. Rep.  99-308,  supra,  at  2,  1986  U.S.C.C.A.N.  at  1328. This  statement  obviously  has  nothing  to  do  with  inter- state commerce.

The next reference concerns another bill, H.R. 3155,

99th  Cong.,  1st  Sess.  (1985),  entitled  the  "Racketeer

Weapons and Violent Crime Control Act of 1985," that

**69   contained a provision (sec. 3(b)) very much like

18 U.S.C. § 922(o). The report states that this bill would have "prohibited the transfer and possession of machine guns used by racketeers and drug traffickers for intimida- tion, murder and protection of drugs and the proceeds of crime." H.R. Rep. 99-308, supra at 4, 1986 U.S.C.C.A.N.

1330. I do not think that it is reasonable to conclude based on this brief statement that the committee looked into the question and found that there was a substantial link be- tween the conduct prohibited by that bill (the intrastate possession  of  machine  guns)  and  interstate  commerce. After all, the committee did not recommend adoption of the prohibition on intrastate possession contained in H.R.

3155.

The final reference in the committee report concerns

"the need for more effective protection of law enforcement officers from the proliferation of machine guns and high- powered 'assault-type' weapons that are increasingly be- ing  used  by  criminals."  H.R.  Rep.  99-495,  supra  at  7,

1986 U.S.C.C.A.N. at 1333. This statement, which lumps together machine guns and assault weapons, says nothing about interstate commerce or particular types of crimes that **70   have substantial interstate effects; and since the committee did not recommend banning the private, intrastate possession of machine guns, the committee pre- sumably felt that the needs of law enforcement would be met  by  the  more  limited  machine  gun  provision  that  it favored. Viewing all three of the statements in the com- mittee report together, I do not think that it is reasonable to conclude that the committee considered or drew any con- clusions  concerning  the  relationship  between  intrastate machine gun possession and interstate commerce.

103 F.3d 273, *294; 1996 U.S. App. LEXIS 33855, **70

Page 23

*294    Nor do I see any value for present purposes in the  last  bit  of  congressional  material  unearthed  by  the majority, a statement made by Senator Kennedy in a col- loquy concerning 18 U.S.C. § 922(o). Voicing opposition to a proposal to "grant amnesty to people who now pos- sess  machine  guns  outside  the  law,"  Senator  Kennedy stated:  "The only thing that has changed about the ma- chine gun situation since the 1968 act,  and the limited amnesty granted then, is that machine guns have become a far more serious law enforcement problem." 132 Cong. Rec. 9,602 (1986). This observation by a single member of Congress says nothing about interstate commerce or crimes having **71   substantial interstate effects.

In sum,  we are left with no congressional findings and no appreciable empirical support for the proposition that the purely intrastate possession of machine guns, by fa- cilitating  the  commission  of  certain  crimes,  has  a  sub- stantial effect on interstate commerce, and without such support I do not see how the statutory provision at issue here  can  be  sustained --  unless,  contrary  to  the  lesson that  I  take  from  Lopez,  the  "substantial  effects"  test  is to be drained of all practical significance. n6 As Lopez reminded us, the "constitutionally mandated division of authority between  the federal government and the states

'was adopted by the Framers to ensure protection of our fundamental liberties.'" Lopez, 115 S. Ct. at 1626, quot- ing Gregory v. Ashcroft, 501 U.S. 452, 458, 115 L. Ed. 2d

410, 111 S. Ct. 2395 (1991). See also Lopez, 115 S. Ct. at

1638-39 (Kennedy, J., concurring). And even today, the normative case for federalism remains strong. See Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 Mich. L. Rev. 752, 756-790 (1995). Out of respect for this vital element, we should require **72   at least some empiri- cal support before we sustain a novel law that effects "a significant change in the sensitive relation between fed- eral and state criminal jurisdiction." United States v. Bass,

404 U.S. 336, 349, 30 L. Ed. 2d 488, 92 S. Ct. 515 (1971).

n6  The  majority's  suggestion  (Maj.  Op.  21) that my analysis "requires either Congress or the Executive to play Show and Tell with the federal courts" is simply wrong. The Supreme Court has recognized  the  importance  of congressional  find- ings. See, e.g., Lopez, 115 S. Ct. at 1632. Indeed, in United States v. Bass, 404 U.S. at 336 (1971), where the Court construed ambiguous language in a felon-in--possession statute to require proof that the possession was connected with interstate com- merce, the Court wrote: "In light of our disposition of the case, we do not reach the question whether, upon appropriate findings, Congress can constitu- tionally punish the 'mere possession' of firearms." Id. at 339 n.4.

With  respect  to  the  Executive,  it  is  a  litigant seeking  to  persuade  us  that  there  is  a  reasonable case  to  be  made  for  the  proposition  that  the  in- trastate possession  of machine  guns substantially affects interstate commerce. There is nothing im- proper or unusual about asking a litigant to point to support for its position, whether in the form of evidence in the record or legislative facts that can be judicially noticed. Such assistance would have been particularly valuable here, since the Executive is in a far better position than we are to determine whether there is a reasonable empirical case to be made for the proposition it is advancing. Without congressional  findings  or  empirical  support,  it  is not possible for appellate judges, who are not ex- perts on firearms, machine guns, racketeering, drug trafficking,  or  crime  in  general,  to  verify  in  any intellectually  respectable  way  that  there  is  a  rea- sonable  case  to  be  made  for  the  proposition  that the interstate  possession  of firearms substantially affects interstate commerce.

**73

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