No. 96-1759	

In the Supreme Court of the United States 	

OCTOBER TERM, 1996

WILLIAM JOSEPH KIRK, PETITIONER

v.

UNITED STATES OF AMERICA

ON THE PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WALTER DELLINGER
Acting Solicitor General

JOHN C. KEENEY
Acting General Attorney General
	
DAVID S. KRIS
Attorney

Department of Justice
Washington D.C. 20530-0001
(202)514-2217

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QUESTION PRESENTED

Whether the Commerce Clause of the Constitution,
Article I, Section 8, Clause 3, authorized Congress to
enact 18 U.S.C. 922(o), which makes it a federal crime
to transfer or possess a machinegun.

(I)

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TABLE OF CONTENTS

Page

Opinions below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 2
Argument . . . . 4
Conclusion . . . . 7

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TABLE OF AUTHORITIES

Cases:

Black v. Cutter Lab., 351 U.S. 292(1956) . . . . 5
California v. Rooney , 483 U. S. 307(1987) . . . . 5
Huddleston v. United States, 415 U. S. 814
(1974) . . . . 6-7
Perez  v. United  States,  402  U.S. 146(1971) . . . . 7
United States v. Beuckelaere, 91 F.3d 781 (6th
Cir. 1996) . . . . 5, 6
United States v. Kenney, 91 F.3d 884(7th Cir.
1996) . . . . 5
United States v. Knutson, 113 F.3d 27(5th Cir.
1997) . . . . 4-5, 6
United States v. Lopez, 514 U. S. 549 (1995) . . . . 3, 4, 5
United States v. Rambo, 74 F.3d 948(9th Cir.),
cert. denied, 117 S. Ct. 72(1996) . . . . 5, 6
United States v. Rybar, 103 F.3d 273(3d Cir.
1996), petition  for cert. pending, No. 96-1738 . . . . 5, 6
United States v. Wilks, 58 F.3d 1518 (10th Cir.
1995) . . . . 5, 6
Wickard v. Filburn, 317 U.S. 111 (1942) . . . . 7
Constitution, statute and rule:
U. S. Const. Art. I, 8, Cl.3 (Commerce C1ause) . . . . 2, 4
Gun-Free School Zones Act of 1990, 18 U.S.C.
922(q) . . . . 3, 4, 6
18 U.S.C. 922(o) . . . . 2, 3, 4, 5, 6
18 U. S. C. 922(0)(1) . . . . 2
18 U. S. C. 922(0)(2)(A) . . . . 2

(III)

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In the Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-1759

WILLIAM JOSEPH KIRK, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the en bane court of appeals (Pet.
App. A1-A51) is reported at 105 F.3d 997. The opinion
of the court of appeals panel (Pet. App. A52-A81) is
reported at 70 F.3d 791.

JURISDICTION

The en bane court of appeals entered its judgment
on February 3, 1997. The petition for a writ of certio-
rari was filed on May 5, 1997 (a Monday). The juris-
diction of this Court is invoked under 28 U.S.C.
1254(1).

(1)

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2

STATEMENT

Following  entry of  a conditional guilty plea in the
United States District Court for the Western Dis-
trict of Texas, petitioner was convicted on one count
of possessing a machinegun inviolation of 18 U.S.C.
922(o).  He was sentenced to one year and one day's
imprisonment, three years' supervised release, and
a $3,000 fee.  A panel of the court of appeals affirm-
ed. Pet. App. A52-A81.  The full court subsequently
granted rehearing en bane. Id. at A82-A83.  The court
of appeals, sitting en bane, affirmed the conviction and
sentence by an equally divided vote. Id. at A1-A51.
1. In January and February of 1989, petitioner sold
two machineguns to a private citizen.  He was in-
dicted on two counts of possessing a machinegun, and
two counts of transferring a machinegun, in violation
of 18 U.S.C.  922(o).  Section 922(o) generally provides
that "it shall be unlawful for any person to transfer or
possess  a  machinegun." 18, U.S.C. 922(0 )(1).1 Peti-
tioner moved  to  dismiss  the  indictment on the ground
that Section 922(o) exceeds Congress authority un-
der the Commerce Clause.  The district court denied
the motion, and petitioner entered a conditional guilty
plea (see Fed. R. Crim. P. ll(a)(2))-to one of-the pos-
session counts, preserving the constitutional issue
for appeal. See Pet. App. A53-A55.
2. A divided panel of the court of  appeals affirmed.
Pet. App. A52-A81. Petitioner contended, inter alia,

___________________(footnotes)

1 The statutory prohibition does not apply, however, to the
transfer  or  possession  of   machineguns  by federal, state or local
governmental agencies, 18 U.S.C.  922(o) (2)(A) or to the "law-
ful transfer or lawful possession of a machinegun that was law-
fully possessed before" the statute's effective date, 18 U.S.C.
922(o)(2)(B).

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3

that Section 922(o) "is unconstitutional because it is
beyond the authority granted to Congress under the
Commerce Clause." Pet. App. A60. Petitioner relied
on this Court's decision in United States v. Lopez, 514
U.S. 549 (1995).  In Lopez, the Court struck down the
Gun-Free School Zones Act of 1990,18 U.S.C. 922(q),
which made it a federal crime to possess a gun within
1,000 feet of a school. See Pet. App. A61.
The court of appeals concluded that Lopez "does not
control the result in our analysis of section 922(o)."
Pet. App. A62.  The court explained that

the activity Congress intended to prohibit by ap-
plication of section 922(o) was the introduction
into the stream of commerce [of] machineguns
manufactured, imported, or otherwise illegally
obtained, after the effective date of the act.  When
read as a whole, it is plain that the activities pro-
hibited by section 922(o) constitute commerce.

Id. at A62-A63.  The court of appeals characterized
Section 922(o)'s ban on the possession of machineguns
as "an attempt to control the interstate market for
machineguns by creating criminal liability for those
who would constitute the demand-side of the market
Id. at A64-A65. "As with federal regulation of con-
trolled substances," the court explained, "there is a
rational basis to conclude that federal regulation, of
intrastate incidents of transfer and possession is es
sential to effective control of the interstate incidents
of*** traffic" in machineguns. Id. at A65. The
court therefore concluded that Section 922(o) "is a
rational exercise of the authority granted Congress
under the Commerce Clause." Ibid.
Judge Jones dissented. Pet. App. A69-A81. She
found "no meaningful distinction between Section

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4

922(q) and Section 922(o) as  the  latter  applies to pos-
session, not transfer, of machineguns."  Pet. App.
A70.  Judge Jones also concluded that "Section 922(o)
cannot be upheld as a more direct exercise of Con-
gressional commerce power." Ibid.
3. The full court of appeals subsequently granted
rehearing en bane. Pet. App. A82-A83.  On rehearing
en bane, petitioner's conviction was affirmed by an
equally divided court. Id. at A1-A5L Judge Parker,
joined by seven other judges, voted to affirm the
conviction, explaining that "Congress had a rational
basis for concluding that the manufacture, transfer
and possession of machineguns substantially affect
commerce and  922(o) therefore is constitutional."
Id. at A3.2 Judge Jones, joined by seven other-judges,
concluded that " 922(o) seems a clone of  922(q), the
provision] struck down in Lopez." Id. at A32.

ARGUMENT

Petitioner contends (Pet. 4-14) that 18 U.S.C. 922(o)
exceeds Congress' authority under the Commerce
Clause and is therefore unconstitutional. Petitioner
principally relies on this Court's decision in United
States v. Lopez, 514 U.S. 549 (1995), which invalidated
the Gun-Free School Zones Act of 1990, 18 U.S.C.
922(q).  Since this Court's decision in Lopez, however,
the courts of appeals have consistently upheld Sec-
tion 922(o) against constitutional attack. See. United

___________________(footnotes)

2 Judge Higginbotham, joined by three other judges (all of
whom also joined in Judge Parker's opinion), published a sepa-
rate concurrence. Pet. App. A3-A21. The concurring opinion
asserted that Section 922(o) reflects a rational "legislative judg-
ment that possession of machine guns acquired after 1986 has a
substantial effect on interstate commerce, particularly by
facilitating the trade in illegal drugs." Pet. App. A3.

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5

States v. Knutson, 113 F.3d 27, 28-31 (5th Cir. 1997);
United States v. Rybar, 103 F.3d 273, 276-285 (3d Cir.
1996), petition for cert. pending, No. 96-1738; United
States v. Beuckelaere, 91 F.3d 781, 782-787 (6th Cir.
1996); United States v. Kenney, 91 F.3d 884, 885-891
(7th Cir. 1996); United States v. Rambo, 74 F.3d 948,
951-952 (9th Cir.), cert. denied, 117 S. Ct. 72 (1996);
United States v. Wilks, 58 F.3d 1518, 1519-1521 (l0th
Cir. 1995).  In the absence of a conflict in the circuits,
petitioner's constitutional challenge to Section 922(0)
does not warrant this Court's reviews. 3
In Lopez, this Court concluded that "Section 922(q)
is a criminal statute that by its terms has nothing to
do with `commerce' or any sort of economic enter-
prise, however broadly one might define those terms."
514 U.S. at 561.  Section 922(0)'s ban on possession of
machineguns, by contrast, is part of a larger prohibi-
tion on the possession or transfer of a particularly
dangerous class of weapons. "[A]t least in most situa-
tions," unlawful possession of a machinegun "follows
an unlawful transfer." Rybar, 103 F.3d at 283.  The
possession offense defined by Section 922(o)-unlike
the conduct prohibited by the Gun-Free School Zones
Act-is therefore typically linked to a prior unlawful
transaction.  Because the statutory ban on possession
of machineguns is a rational means of effectuating the
prohibition on transfers, see Pet. App. A64-A65 (char-
acterizing the ban on possession as "an attempt to

___________________(footnotes)

3 Although he concedes that the courts of appeals have uni-
formly upheld Section 922(o), petitioner argues (Pet. 5,6) that
there are conflicts in the reasoning of the lower courts' opin-
ions.  This Court, however, "reviews judgments, not statements
in opinions." California v. Rooney, 483 U.S. 307, 311 (1987)
(quoting Black v. Cutter Lab., 351 U.S. 292,297 (1956)).

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6

control the interstate market for machineguns by
creating criminal liability for those who would consti-
tute the demand-side of the market"), it is not akin to
the prohibition imposed by Section 922(q).
Petitioner does not contend that Section 922(o)'s
prohibition on the transfer of machineguns is itself
unconstitutional. 4  Any such claim would be unsound.
Congress could reasonably conclude that transfers of
machineguns would typically have a commercial or
economic component.  See Rybar, 103 F.3d at 283.
Congress could also reasonably conclude that the "ex-
tensive, intricate, and definitely national market for
machineguns," Beuckelaere, 91 F.3d at 784, is an ap-
propriate subject for federal regulation.  See Knut-
son, 113 F.3d at 29 ("the vast majority of machinegun
possessions constitute the culminating step in
interstate commercial transactions"); Rambo, 74 F.3d
at 952 ("By regulating the market in machine guns,
including regulating intrastate machinegun posses-
sion, Congress has effectively regulated the inter-
state trafficking in machineguns."); Wilks, 58 F.3d at
1521 (Section 922(o) "represents Congressional re-
gulation of an item bound up with interstate attrib-
utes").  Although the acts prohibited by the statute
might occasionally involve purely intrastate activity,
Congress has the authority to regulate intrastate
conduct when a series of such events, taken in com-
bination, might ultimately have substantial effects on
interstate commerce.  See, e.g., Huddleston v. United

___________________(footnotes)           

4 To the contrary, petitioner appears to acknowledge the
validity of the transfer ban.  See Pet. 12 ("By prohibiting trans-
fer of machineguns,  922(o) aims directly and completely at
commercial activity in machineguns.") (internal quotation
marks omitted).

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7

States, 415 U.S. 814, 833 (1974); Perez v. United
States, 402 U.S. 146 (1971); Wickard v. Filburn, 317
U.S. 111 (1942).

CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney
General

DAVID S. KRIS
Attorney

JULY 1997