USA v. Haney
FILED
United States Court of Appeals
Tenth Circuit
AUG 29 2001
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
No. 00_6129
Plaintiff _ Appellee,
v.
JOHN LEE HANEY,
Defendant _ Appellant.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 99_CR_157_L)
William P. Earley, Assistant Federal Public Defender, Oklahoma City,
Oklahoma, for Defendant_Appellant.
Edward J. Kumiega, Assistant United States Attorney (Daniel G. Webber, Jr.,
United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for
Plaintiff_Appellee.
Before EBEL, ANDERSON and MURPHY, Circuit Judges.
EBEL, Circuit Judge.
John Lee Haney was convicted of possessing two machineguns in
violation of 18 U.S.C. § 922(o). On appeal, he asserts that § 922(o) violates
the Second Amendment and the Commerce Clause. Both arguments are
foreclosed by controlling Tenth Circuit precedent. See United States v. Baer,
235 F.3d 561, 564 (10th Cir. 2000) (Second Amendment); United States v.
Wilks, 58 F.3d 1518, 1521 (10th Cir. 1995) (Commerce Clause).
BACKGROUND
The facts of this case are essentially undisputed. John Lee Haney walked
into a police station, engaged an officer in conversation, and told him that he
owned semiautomatic and fully automatic guns. He stated that they were not
licensed and that the federal government lacks authority to require him to get a
license. Through a combination of Haney's consent and a warrant, the
authorities found two fully automatic guns in Haney's car and house. Haney
also had literature on how to convert a semiautomatic gun to a fully automatic
gun. Haney had converted one of the guns himself and had constructed the
other out of parts. He admitted possessing them.
Section 922(o) of Title 18 of the United States Code provides,
(1) Except as provided in paragraph (2), it shall be unlawful for
any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to_
(A) a transfer to or by, or possession by or under 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 [May
19, 1986].
A "machinegun" is, among other things, "any weapon which shoots, is designed
to shoot, or can be readily restored to shoot, automatically more than one shot,
without manual reloading, by a single function of the trigger." 26 U.S.C.
§ 5845(b); see also 18 U.S.C. § 921(23) (adopting this definition). Both of
Haney's guns are machineguns.
Haney was indicted for possessing two machineguns in violation of
§ 922(o). He proceeded to a jury trial, was found guilty, and was sentenced to
thirty_three months' imprisonment.
DISCUSSION
The district court had jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291.(1) We review constitutional challenges to
statutes de novo. United States v. Hampshire, 95 F.3d 999, 1001 (10th Cir.
1996).
I. Second Amendment
The Second Amendment reads, "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." Haney argues that by banning possession of
machineguns, § 922(o) infringes his right to keep and bear arms and hence
violates the Second Amendment. We reject this contention as inconsistent
with governing case law.
There are two twentieth_century Supreme Court cases discussing the
Second Amendment in what appear to be holdings. In United States v. Miller,
307 U.S. 174 (1939), the Court rejected a Second Amendment challenge to a
criminal prosecution for transporting an unregistered firearm. The Court held,
In the absence of any evidence tending to show that possession or
use of a `shotgun having a barrel of less than eighteen inches in
length' at this time has some reasonable relationship to the
preservation or efficiency 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 military equipment or
that its use could contribute to the common defense.
Id. at 178.
In Lewis v. United States, 445 U.S. 55 (1980), the Court held that the
laws prohibiting a felon from possessing a firearm do not violate the Due
(1) Haney argues that the federal courts lack jurisdiction over him because
the above_cited statutes are unconstitutional. We reject this contention as
frivolous.
Process Clause. The Court applied rational_basis scrutiny, noting that the laws
"are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties." Id. at 65 n.8. In support, the
Court cited Miller, which it characterized as holding that "the Second
Amendment guarantees no right to keep and bear a firearm that does not have
some reasonable relationship to the preservation or efficiency of a well
regulated militia." Id. (quotation marks omitted).
Our published Tenth Circuit opinions treat the Second Amendment
similarly. In United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), we
rejected a Second Amendment challenge to the federal law criminalizing
possession of an unregistered machinegun, 26 U.S.C. § 5861(d). We found no
evidence that the firearm in question was connected with a militia, even though
the defendant was nominally a member of the Kansas militia and the "Posse
Comitatus," a militia_type organization registered with the state:
The purpose of the second amendment as stated by the Supreme
Court in United States v. Miller was to preserve the effectiveness
and assure the continuation of the state militia. The Court stated
that the amendment must be interpreted and applied with that
purpose in view. To apply the amendment so as to guarantee
appellant's right to keep an unregistered firearm which has not
been shown to have any connection to the militia, merely because
he is technically a member of the Kansas militia, would be
unjustifiable in terms of either logic or policy. This lack of
justification is even more apparent when applied to appellant's
membership in "Posse Comitatus," an apparently nongovernmental
organization. We conclude, therefore, that this prosecution did not
violate the second amendment.
Id. at 387 (citations omitted).
Our most recent pronouncement on the Second Amendment is United
States v. Baer, 235 F.3d 561 (10th Cir. 2000). In Baer, we rejected a "time_
worn" Second Amendment challenge to the federal felon_in_possession law,
noting that "the circuits have consistently upheld the constitutionality of
federal weapons regulations like [this one] absent evidence that they in any way
affect the maintenance of a well regulated militia." Id. at 564.
Consistent with these cases, we hold that a federal criminal gun_control
law does not violate the Second Amendment unless it impairs the state's ability
to maintain a well_regulated militia. This is simply a straightforward reading of
the text of the Second Amendment. This reading is also consistent with the
overwhelming weight of authority from the other circuits. See, e.g., United
States v. Napier, 233 F.3d 394, 402 (6th Cir. 2000) (holding that the Second
Amendment right "is limited to keeping and bearing arms that have some
reasonable relationship to the preservation or efficiency of a well regulated
militia" (quotation marks omitted)); Gillespie v. City of Indianapolis, 185 F.3d
693, 711 (7th Cir. 1999) (rejecting a Second Amendment challenge to 18
U.S.C. § 922(g)(9) because the plaintiff "does not argue (and we do not believe
under any plausible set of facts that he could) that the viability and efficacy of
state militias will be undermined by prohibiting those convicted of perpetrating
domestic violence from possessing weapons in or affecting interstate
commerce"), cert. denied, 528 U.S. 1116 (2000); United States v. Wright, 117
F.3d 1265, 1272_74 (11th Cir. 1997) (holding that a criminal defendant must
demonstrate a reasonable relationship between possession of a machinegun and
the preservation or efficiency of a militia actively trained and maintained by
the state), amended on other grounds by 133 F.3d 1412 (11th Cir. 1998);
United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996) (same); United States
v. Hale, 978 F.2d 1016, 1019_20 (8th Cir. 1992) (same).
Applying this standard, it is clear that § 922(o) is facially constitutional.
Section 922(o)(2)(A) sets forth a specific exemption for possession of a
machinegun "under the authority of" a state; therefore, that section cannot
impair the state's ability to maintain a well_regulated militia. Accord Wright,
117 F.3d at 1274 n.19. Haney does not contend that his possession of the
machineguns at issue in this case was under the authority of Oklahoma.
Nor has Haney proven several facts logically necessary to establish a
Second Amendment violation. As a threshold matter, he must show that (1) he
is part of a state militia; (2) the militia, and his participation therein, is "well
regulated" by the state; (3) machineguns are used by that militia; and (4) his
possession of the machinegun was reasonably connected to his militia service.
None of these are established.
The militia of the Second Amendment is a governmental organization:
The Constitution elsewhere refers to "the Militia of the several States," Art. II,
§ 2, and divides regulatory authority over the militia between the federal and
state governments, Art. I, § 8. See also Perpich v. Dep't of Defense, 496 U.S.
334, 345_46 (1990) (describing the "dual enlistment" provisions of the militia
statutes). Thus, the militia does not include the private anti_government groups
that sometimes refer to themselves as "militias." Haney is not part of the "well
regulated" militia, that is, a "militia actively maintained and trained by the
states," Wright, 117 F.3d at 1272. At best, Haney claims to be a member of the
"unorganized" (and therefore not a "well regulated" state) militia. See Okla.
Stat. Ann. Tit. 44, § 41 (dividing the population of able_bodied persons between
the ages of seventeen and seventy into the National Guard, the Oklahoma State
Guard, and the "Unorganized Militia"). Haney does not claim to be a member
of the National Guard or the Oklahoma State Guard, and he has submitted no
evidence that the Oklahoma unorganized militia and his participation therein
are well_regulated by the State of Oklahoma. Accord Wright, 117 F.3d at 1274
("[T]he substantial segment of the population comprising the unorganized
militia is not well regulated as that term was intended by the drafters of the
Second Amendment."); see also Oakes, 564 F.2d at 387 (noting that technical
membership in the state militia is insufficient to show a Second Amendment
violation); Hale, 978 F.2d at 1020 (same). Nor has Haney submitted any
evidence that machineguns of the sort he possessed are used by the militia, or
that his possession was connected to any sort of militia service.
In sum, § 992(o) does not impair the state's ability to maintain a well_
regulated militia and therefore does not violate the Second Amendment.
II. Commerce Clause
Article I, Section 8 of the Constitution grants Congress the power "[t]o
regulate Commerce . . . among the several States." Under this Commerce
Clause, Congress may regulate three broad categories of activities:
First, Congress may regulate the use of the channels of interstate
commerce. Second, 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. Finally, Congress' commerce authority
includes the power to regulate those activities having a substantial
relation to interstate commerce, i.e., those activities that
substantially affect interstate commerce.
United States v. Lopez, 514 U.S. 549, 558_59 (1995) (citations omitted).
Haney argues that § 922(o) exceeds Congress's power under the
Commerce Clause by regulating purely intrastate activity. We note at the
outset that all of the courts of appeals that have addressed this issue have
upheld § 922(o) as a valid enactment under the Commerce Clause. See United
States v. Franklyn, 157 F.3d 90 (2d Cir. 1998); United States v. Wright, 117
F.3d 1265 (11th Cir. 1997), amended on other grounds, 133 F.3d 1412 (11th
Cir. 1998); United States v. Knutson, 113 F.3d 27 (5th Cir. 1997) (per curiam);
United States v. Rybar, 103 F.3d 273 (3d Cir. 1996); United States v. Kenney,
91 F.3d 884 (7th Cir. 1996); United States v. Beuckelaere, 91 F.3d 781 (6th
Cir. 1996); United States v. Rambo, 74 F.3d 948 (9th Cir. 1996); United States
v. Wilks, 58 F.3d 1518 (10th Cir. 1995); United States v. Hale, 978 F.2d 1016
(8th Cir. 1992); cf. Navegar, Inc. v. United States, 192 F.3d 1050, 1055 (D.C.
Cir. 1999) (upholding a federal ban on possessing semiautomatic assault
weapons and comparing that law to § 922(o)), cert. denied, 531 U.S. 816
(2000).
Because § 922(o) contains no jurisdictional element (such as a
requirement that the possession be in or affecting interstate commerce), we
treat Haney's challenge as a facial challenge. See United States v. Riddle, 249
F.3d 529, 539 (6th Cir. 2001) ("Any as_applied challenge is irrelevant since
[the statute] does not contain a jurisdictional element and the prosecution need
not put on evidence of a particular connection with interstate commerce."). As
such, "[o]ur task is merely to determine whether Congress could have had a
rational basis to support the exercise of its commerce power; and, further, that
the regulatory means chosen were reasonably adapted to the end permitted by
the Constitution." Kenney, 91 F.3d at 886 (citing Hodel v. Va. Surface Mining
& Reclamation Ass'n, 452 U.S. 264, 276 (1981)); see also Goetz v. Glickman,
149 F.3d 1131, 1135 (10th Cir. 1998). "Due respect for the decisions of a
coordinate branch of Government demands that we invalidate a congressional
enactment only upon a plain showing that Congress has exceeded its
constitutional bounds." United States v. Morrison, 529 U.S. 598, 607 (2000)
(noting also the "presumption of constitutionality" that congressional
legislation possesses); see also United States v. Kirk, 105 F.3d 997, 999 (5th
Cir. 1997) (evenly divided en banc court) (opinion of Higginbotham, J.) ("This
deferential standard [in reviewing congressional legislation against a
Commerce Clause challenge] does not insist that Congress actually make
factual findings. To the contrary, its tolerance of hypothetical, judicially
supposed purposes and means gives the rational basis standard its deferential
character.").
In a post_Lopez decision, we upheld the constitutionality of § 922(o) and
distinguished it from the statute struck down in Lopez, § 922(q), which
prohibited possession of a firearm in a school zone:
Unlike § 922(q), § 922(o) embodies a proper exercise of
Congress' power to regulate "things in interstate commerce" ? i.e.,
machineguns. Whereas § 922(q) sought to regulate an activity
which by its nature was purely intrastate and could not substantially
affect commerce even when incidents of those activities were
aggregated together, § 922(o) regulates machineguns, which by
their nature are a commodity transferred across state lines for
profit by business entities. The interstate flow of machineguns not
only has a substantial effect on interstate commerce, it is
interstate commerce. Section 922(o) regulates this extensive,
intricate, and definitively national market for machineguns by
prohibiting the transfer and possession of machineguns
manufactured after May 19, 1986. As such, § 922(o) represents
Congressional regulation of an item bound up with interstate
attributes and thus differs in substantial respect from legislation
concerning possession of a firearm within a purely local school
zone.
Wilks, 58 F.3d at 1521 (citations, quotation marks, and alterations omitted).
A. Things in Interstate Commerce
Wilks holds that machineguns are inherently "things in interstate
commerce" and therefore may be regulated under the second Lopez category.
We reject Haney's argument that Wilks has been undermined by recent Supreme
Court cases. United States v. Morrison discussed only the third Lopez
category, not the second category relied upon in Wilks. See 529 U.S. at 609.
Jones v. United States, 529 U.S. 848 (2000), merely interpreted the scope of
the jurisdictional element ("affecting interstate or foreign commerce") in the
arson statute, 18 U.S.C. § 844(i). See 529 U.S. at 850. That decision is
statutory and avoids the constitutional question. See id. at 858. Section
922(o) has no jurisdictional element, and Jones is therefore inapposite.
Haney also seeks to distinguish Wilks as applying only to interstate
possession or transfer of machineguns. The Wilks opinion, however, recited
no facts showing that the two machineguns found in a search of Wilks's home
themselves traveled in or otherwise affected interstate commerce. To the
contrary, Wilks simply describes a machinegun as "an item bound up with
interstate attributes," suggesting that an individualized inquiry is inappropriate.
58 F.3d at 1521. Wilks therefore cannot be distinguished on this basis.
B. Activities That Substantially Affect Interstate Commerce
Moreover, we believe § 922(o) can also properly be sustained under the
third Lopez category as regulating activities that substantially affect interstate
commerce.(2) Indeed, Wilks suggested this basis too in relying on the
"extensive, intricate, and definitively national market for machineguns" and
noting that machineguns "by their nature are a commodity transferred across
state lines for profit by business entities." 58 F.3d at 1521. We are guided in
this approach by the Supreme Court's recent decisions in Lopez and Morrison.
Lopez invalidated 18 U.S.C. § 922(q), which criminalized possession of a
firearm in a school zone, finding that such possession "is in no sense an
economic activity that might, through repetition elsewhere, substantially affect
any sort of interstate commerce." 514 U.S. at 567. Morrison similarly struck
down 42 U.S.C. § 13981, a provision of the Violence Against Women Act that
created a federal civil remedy for gender_motivated violence. The Supreme
Court refused to allow Congress to regulate "noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate
commerce." 529 U.S. at 617.
Both Lopez and Morrison reaffirmed, however, that "[w]here economic
activity substantially affects interstate commerce, legislation regulating that
activity will be sustained." Lopez, 514 U.S. at 560; see also Morrison, 529
U.S. at 610. The Lopez Court also suggested that a statute would be sustained
if it was "an essential part of a larger regulation of economic activity, in which
the regulatory scheme could be undercut unless the intrastate activity were
regulated." 514 U.S. at 561; cf. Groome Res. v. Parish of Jefferson, 234 F.3d
192, 205 (5th Cir. 2000) (holding that an activity is "economic" if it is either
"any sort of economic enterprise, however broadly one might define those
terms," or "an essential part of a larger regulation of economic activity").
1. Essential Part of a Regulatory Scheme
We hold that banning possession of post_1986 machineguns is an
essential part of the federal scheme to regulate interstate commerce in
dangerous weapons. Congress has found that "firearms and ammunition move
easily in interstate commerce," § 922(q)(1)(C), and has therefore taken
numerous steps to regulate these transactions. Machineguns legally possessed
(2) Some courts have reached a similar conclusion under the first Lopez
category, regulation of the channels of interstate commerce. See, e.g.,
Beuckelaere, 91 F.3d at 784; Rambo, 74 F.3d at 952 (9th Cir. 1996). But see
Kenney, 91 F.3d at 889 (criticizing this approach and suggesting that the
analysis must be done under the third category). We do not discuss the first
category here but note that the Lopez categories necessarily overlap to some
extent. See United States v. Schaffner, 258 F.3d 675, 2001 WL 827618, at *4
(7th Cir. 2001).
may not be transferred in commerce without approval from the Secretary of the
Treasury, and a substantial tax must be paid. 26 U.S.C. §§ 5811(a), 5812(a).
See generally David T. Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585, 589_605 (1987)
(detailing the history of federal gun_control legislation). Thus, there is a
general regulatory scheme to regulate interstate commerce in firearms,
particularly including machineguns.
But focusing on weapons only as they move in interstate commerce has
not been effective to curb the interstate flow of these weapons. Rather,
Congress has found it necessary also to regulate intrastate activities as a way
of addressing the interstate market in machineguns. Similar statutes regulate
intrastate possession of other extremely dangerous devices such as biological
weapons, 18 U.S.C. § 175(a), nuclear material, 18 U.S.C. § 831(a), and
semiautomatic assault weapons, 18 U.S.C. § 922(v)(1). There is no question
that the market in firearms generally is heavily interstate ? indeed,
international ? in character. E.g., 18 U.S.C. § 922(q)(1)(D) (finding that "even
before the sale of a firearm, the gun, its component parts, ammunition, and the
raw materials from which they are made have considerably moved in interstate
commerce"); S. Rep. No. 90_1097 (1968), reprinted in 1968 U.S.C.C.A.N.
2112, 2164_65 (noting testimony that "50 to 80 percent of the crime guns that
are confiscated each year are foreign imports" and that "90 out of every 100
crime guns confiscated in Detroit are not purchased and registered in Michigan
and that the prime source of these crime guns is by purchases in neighboring
Ohio, where controls on firearms are minimal").(3) Because of the ease of
moving weapons across state and national lines, Congress has rationally
concluded that it cannot rely on the states to control the market in these
devices by themselves. See Omnibus Crime Control and Safe Streets Act of
1968, Pub. L. No. 90_351, § 901(a)(1), 82 Stat. 197, 225 ("[T]here is a
widespread traffic in firearms moving in or other affecting interstate or foreign
commerce . . . .").
The First Circuit has explained this reasoning further in upholding the
constitutionality of § 922(x)(2), the provision of the Youth Handgun Safety Act
(YHSA) that prohibits a juvenile from possessing a handgun. United States v.
Cardoza, 129 F.3d 6, 12 (1st Cir. 1997). After noting that "the Commerce
power has long been exercised to regulate the national market in firearms," id.,
the court explained:
[W]e think the possessory prong of the YHSA . . . is "an essential
part of a larger regulation of economic activity, in which the
regulatory scheme could be undercut unless the intrastate activity
were regulated." This is so because the YHSA was designed
expressly to stop the commerce in handguns with juveniles
nationwide. Part of this regulatory approach involves the
suppression of the demand for such handguns. The YHSA can be
thus seen as criminalization of the two points where the prohibited
commerce finds its nexus[:] the demand for the firearms
(possession), and the sale or transfer designed to meet that
demand. The two prohibitions go hand in hand with one another.
Invalidation of one half of the equation would likely have
deleterious effects on the efficacy of the legislation. In this
regard, we think it clear that given Congress' express purpose, its
decision to punish both the supply (sale or transfer) and demand
(possession) sides of the market is a means reasonably calculated
to achieve its end.
Id. (citations and alterations omitted). Similarly, the possessory component of
§ 922(o) goes "hand in hand" with the prohibition on transfers and is therefore
an "essential part" of the larger regulatory scheme. Accord Franklyn, 157 F.3d
at 95 ("[Section] 922(o) is integral to an overall system for the federal
regulation of firearms."); Kenney, 91 F.3d at 890 ("Permitting unregulated
intrastate possessions . . . of machine guns . . . indirectly undermines, via a
market theory, the effectiveness of the federal attempt to regulate interstate
commerce in machine guns. In other words, the intrastate activity `affects' the
interstate commerce . . . ."); Beukelaere, 91 F.3d at 786 ("[T]here is a rational
basis to conclude that federal regulation of intrastate incidents of transfer and
possession of machineguns is essential to effective control of interstate
(3) In Commerce Clause challenges to 922(o), we and other circuits have
referred to legislative history not only of 922(o) itself, but also of other
federal gun legislation generally. E.g., Wilks, 58 F.3d at 1521 n.4; Franklyn,
157 F.3d at 95; Rybar, 103 F.3d at 279; Kenney, 91 F.3d at 889_90. We have
concluded that 922(o) is closely intertwined with other federal gun
legislation and that Congress should not be required to rearticulate its old
findings every time it adds an additional provision. Furthermore, because a
Commerce Clause justification for legislation can be any rational basis,
whether or not so articulated by Congress, we refer to congressional findings
in the context of other gun legislation for rational arguments in support of the
gun provision at issue. Cf. Lopez, 514 U.S. at 562_63 (stating that "Congress
normally is not required to make formal findings as to the substantial burdens
that an activity has on interstate commerce," particularly when a "substantial
effect [is] visible to the naked eye").
incidents of traffic in machineguns."); see also Wilks, 58 F.3d at 1522 ("Congress prohibited the transfer and possession of most post_1986
machineguns not merely to ban these firearms, but rather, to control their
interstate movement by proscribing transfer or possession.").
2. Economic Activity Substantially Affecting Interstate Commerce
The third Lopez category allowing regulation of intrastate economic
activity requires that such activity have a substantial effect on interstate
commerce. We agree with the majority of circuits that, after Morrison, have
concluded "economic activity" should be read broadly to include activities that
are closely linked to commercial transactions. Cf. Groome Res., 234 F.3d at
208; United States v. Gregg, 226 F.3d 253, 262 (3d Cir. 2000), cert. denied,
121 S. Ct. 1600 (2001); Gibbs v. Babbitt, 214 F.3d 483, 491 (4th Cir. 2000),
cert. denied, 121 S. Ct. 1081 (2001). Possession of an illegal machinegun is
closely linked to the commercial transaction of transferring an illegal
machinegun. It is unlike possession of a gun in a school zone, which restricts
only the location in which a transfer could take place by restricting gun
possession at that location, and therefore it has a more attenuated connection
to commercial transactions. Cf. Navegar, 192 F.3d at 1059 ("Manufacture,
transfer and possession are activities that not only substantially affect
interstate commerce . . . but are also the necessary predicates to such
commerce."). We conclude that § 922(o) is "economic activity" for purposes
of the third Lopez category.
Even purely intrastate possession and transfers of machineguns have a
substantial effect on interstate commerce. As noted above, Congress has
concluded that regulating intrastate possession and transfers is necessary to
control the interstate market in these weapons. Moreover, Congress has found
that the interstate market itself is significant. It follows that intrastate
possession and transfers have a substantial effect on interstate commerce.
Although there is virtually no legislative history explaining § 922(o)
itself, see Wilks, 58 F.3d at 1519, we find support for the rationality of these
conclusions in the legislative history of § 922(v), which bans manufacturing,
transferring, or possessing certain semiautomatic assault weapons.(4) To restrict
interstate commerce in semiautomatic assault weapons, particularly into states
that prohibit them, Congress "imposed criminal liability for those activities
which fuel the supply and demand for such weapons. The ban on possession is a
measure intended to reduce the demand for semiautomatic assault weapons."
Navegar, 192 F.3d at 1058 (quotation marks omitted). After surveying the
extensive congressional testimony on how common it was for individuals to purchase semiautomatic assault weapons in one state and bring them to another,
the Navegar court concluded that "Congress was well aware that there was
significant interstate traffic in semiautomatic assault weapons and that state
laws and existing federal firearms regulation were inadequate to control the
flow of these weapons across state lines." Id. at 1060. It likewise is rational
for Congress to conclude that intrastate machinegun possession substantially
affects interstate commerce in those weapons.(5)
CONCLUSION
We hold that 18 U.S.C. § 922(o) is constitutional and does not violate
either the Second Amendment or the Commerce Clause, and therefore we
AFFIRM Haney's conviction.
(4) The markets for semiautomatic weapons and machineguns are closely
linked because of the ease with which a semiautomatic weapon can be
converted to fully automatic (as Haney did to one of the weapons in this case).
See H.R. Rep. No. 99_495, at 28, reprinted in 1986 U.S.C.C.A.N. 1327.
Indeed, simple wear and tear can make a machinegun out of a semiautomatic
weapon. See Staples v. United States, 511 U.S. 600, 615 (1994). Thus,
restrictions on semiautomatic assault weapons are closely related to
restrictions on machineguns.
(5) We note that some courts seem to rely on the costs of violence
associated with the use of weapons. Cf. Rybar, 103 F.3d at 281; United States
v. Synnes, 438 F.2d 764, 768 (8th Cir. 1971), vacated, 404 U.S. 1009 (1972).
After Morrison, it appears we may not rely solely on this to find a substantial
effect on interstate commerce, see 529 U.S. at 617, but it is unclear whether
we may consider it as an additional effect on interstate commerce. We do not
decide this issue because we find a substantial effect even without considering
this evidence.