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A glimmer of hope

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!

9 comments to A glimmer of hope

  • Dave J

    I really don’t think this is quite as revolutionary as you make it out to be. Since Lopez in 1995, the Wicklund decision you referred to about the farmer’s feed corn has basically been a dead letter: the Lopez Court didn’t expressly overrule it, but the two cases are pretty much irreconcilable. Although admittedly not having read the opinion yet, it sounds fairly consistent with Lopez: something certainly can’t be interstate commerce if it isn’t commerce at all. Thus, since it can be squared with current Supreme Court precedent, I’d only expect the Supremes to grant cert on this if another circuit has said the opposite: i.e., that Congress CAN ban homemade machineguns as an exercise of its Interstate Commerce Power.

  • Abby

    Yee-hah!! A couple of weeks ago I mentioned the medical marijuana case just argued in front of the Ninth Circuit.

    The clubs argued two theories: that under Lopez and Morrison the Commerce clause does not reach homegrown marijuana, and under the Lawrence the 14th Amendment ban on marijuana violates a fundamental liberty interest.

    That case is still pending, but it surely looks like the Court will find for the clubs; then the Supreme Court will have to take the case. I’ve waited a long time for this.

  • Abby

    Dave J.,

    I don’t know your area of practice, but I suspect it isn’t Constitutional law. Clearly you have read neither Wickard (the farmers wheat case) nor Lopez (the guns in schools case), in quite some time.

    “. . .the Wicklund decision you referred to about the farmer’s feed corn has basically been a dead letter: the Lopez Court didn’t expressly overrule it, but the two cases are pretty much irreconcilable.”

    The Gun-Free School Zone Act in Lopez was struck down because it, much like the Violence Against Women Act at issue in Morrison, had nothing whatever to do with economic activity.

    Explaining this, Rehnquist wrote: “Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over inter-state activity, involved economic activity in a way that the posession of a gun in a school zone does not.”

    Therefore, if something is not an economic activity, guns (Lopez), rapes (Morrison), and possibly homegrown marijuana, then you can’t use the “aggregate effects” test of Wickard, which is still good law for all economic activities.

  • Dave J

    Actually it is, at least in part, but since I work in state government you’re right that I haven’t dealt with federal interstate commerce cases in quite a while. Admittedly, this was all off the top of my head, hence “Wicklund,” a litigant in an entirely unrelated case interpreting the express right to privacy in the Montana Constitution: not my state, BTW, but rather more familiar territory for me.

    So maybe it is revolutionary, and if so, wonderful.

  • Fred Boness

    The Sten could have been built in a home shop – in England.

  • Alfred E. Neuman

    I am floored that this came out of the 9th. It’s nice to have their wackiness working for liberty for a change.

  • RK Jones

    The text of the decision is linked over at National Review Online.

    Though it is in pdf form, and the demand seems to have overloaded the server.

    RK Jones