Supremes Act on US v. Stewart
US v. Stewart is an appeal from a 9th Circuit panel ruling, reversing a conviction under 18 USC 922(o) for having possessed a homemade full auto weapon. The panel (led by the pro-gun and libertarian-leaning Judge Kozinksi) reversed based on the Commerce Clause -- there was nothing commercial about the defendant's making the arm and keeping it in his home. (You can get the pdf file via the link on this page.
The Supremes (as I'd expected) remanded for reconsideration in light of their recent medicinal pot case.
There are similarities and distinctions between the two cases. On the one hand, given that the medicinal pot case says you must consider the entire of the economic activity and not just the defendant's actions, or what was legal activity, it undercuts the original Stewart rationale. It'd be a safe bet that there is enough illegal commerce in full auto to pass any likely commerce test.
On the other hand, Stewart does resemble Lopez in that it involves a non-economic possessory activity (indeed, it could be a bit stronger than Lopez in that here the gun involved had not even travelled in commerce). Although -- if we are to look at an entire "industry" rather a segment of it -- possession of a gun within 1000 ft. of a school can hardly spawn an industry, whereas making machineguns could.
Further thought: what role would Congressional determinations play? In the medicinal pot case, Congress had expressly found, in preambles to the drug laws, that there was interstate commerce and impacts upon interstate commerce. In the case of 922(o), it was an amendment, hastily added with almost no debate and zip mention of interstate commerce. Congress just voted to ban new MGs because it sounded like a good idea at the time.
Still another thought: how does the fact play in that, if there were no 922(o), all MGs would still have to be registered under the NFA? Plus the fact that registered MGs have been involved in no or virtually no crime, and thus don't affect commerce negatively? (I think around the time of this amendment, ATF was asked whether there was any evidence of a registered NFA device having ever been used in crime, and it responded no -- back in the mid 1970s, I did have one dealer tell me that he had once heard of a criminal use of a registered NFA, but that was the only case. So depending upon which is correct, the answer is one or zero, in seventy years of the statutory scheme). Here's a link to an ATF statement (pdf, 4 megs) that that registered NFAs are rarely used in crime.
Actually -- as Elmer Keith says, hell, I was there. No, I can't give details, but I was there, in a congressional office while the tactics were hashed out. Congress didn't ban MGs because it sounded like a good idea. It banned them because the Members knew they were passing a pro-gun bill, the Firearm Owners' Protection Act, and felt they needed to add on something anti-gun so they've have something to say when they were criticized as clones of the NRA. There were two amendments which had been introduced by the other side -- the other would have banned licensed silencers -- and one was going to be passed, period, whether it was good, bad, or indifferent. Yep, that's the sad story of how laws are made.
04-617 UNITED STATES V. STEWART, ROBERT W.
The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Gonzales v. Raich, 545 U.S. ____ (2005).