Well, well, well. The usually flaky and oft-overturned 9th Circuit Court of Appeals (the regional appellate court in the US that includes California and sits one notch below the Supreme Court) has lobbed a high hard one at the Supremes, a direct challenge to one of the linchpins of jurisprudence permitting the federal government to exercise almost unlimited “police” powers.
The 9th Circuit just ruled that the federal government has no power to outlaw homemade machine guns, because homemade guns are not in interstate commerce. The extraordinarily broad readings of the Interstate Commerce Clause, which permits the federal government to regulate interstate commerce, were adopted in a New Deal era case in which a farmer challenged federal rules dictating how much wheat he could grow. The case was beautifully positioned, with the wheat in question being fed to the farmer’s cattle and thus never leaving his farm, much less entering into commerce at all, never mind interstate commerce. The Supreme Court would have none of it, though, and ruled that this wheat was nonetheless in interstate commerce and thus subject to federal control.
Under this reading of the Interstate Commerce Clause, I don’t see how a homemade machine gun is not in interstate commerce. After all, it affects the global supply and demand for machine guns in exactly the same way that the wheat did. This case mounts a pretty direct challenge to one of the worst Supreme Court decisions ever. Its a rare day when I root for the 9th Circuit, but all things come around in time, I suppose.
The Volokhs have a little more detail. The case (or another on the same principle) will almost certainly have to be taken up by the Supremes, as there is now a conflict between appellate courts on the issue.
The Instapundit, that wag, notes that, while he hasn’t read the opinion, any position is defensible with enough homemade machine guns!