* Judge Benavides was recused from consideration of this case. 

### REVISED

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-50472

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM JOSEPH KIRK,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

February 3, 1997

Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS,

JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZ A, DeMOSS,

BENAVIDES, * 

### STEWART, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:

By virtu e of an equally divided en banc court, the judgment of the district court is

AFFIRMED.* * See United States v. Rybar

,

___ F.3d

___ (1996 WL 740084 (3d

Cir.(Pa.)); United States v. Beuckelaere

, 91 F.3 d 781 (6th Cir.

1996); United States v. Kenney

, 91 F.3d 884 (7th Cir. 1996); United

States v. Rambo

, 74 F. 3d 948 (9th Cir.), c ert. denied

,

___ U.S.

___, 117 S. Ct. 72 (1996); United States v. Wilks

, 58 F.3d 1518

(10th Cir. 1995); U nited States v. Hale

, 978 F.2d 1016 (8th Cir.

1992), cert. denied , 507 U.S. 997, 113 S. Ct. 1614, 123 L. Ed. 2d

174 (1993).

2 ROB ERT M. PARKER, Circuit Judge, joined by POLITZ, Chief Judge,

KING, DAVIS, WIENER, STEWART, and DENNIS, Circuit Jud ges, would

affirm for the following reasons:

In my view, there was a rational basis for Congress to

conclude that post-1986 incidents of manufacture, t ransfer, and

possession of machineguns fall within its power to regulate

interstate commerce. Every circuit that has examined 18 U.S.C. §

922(o)

-- both be fore and after U nited States v. Lopez

,

___ U.S.

___, 115 S. Ct. 1624, 131 L. Ed. 2d 262 (1995)

-- has determined

that § 922(o) does not exceed the authority granted to Congress by

the Commerce Clause. **

A careful reading of Lopez compels this conclusion. In L opez

,

the Supreme Court held that Congress exceeded its Commerce Clause

pow er by enacting § 922(q) which criminalizes possession of a

firearm within 1000 feet of the grounds of a school, see §

921(a)(25), a small geographic area finitely circ umscribed and

related to education, a uniquely local concern. In contrast, the

extensive history of federal firearm regulation and the n ational

scope of § 922(o) distinguishes it from § 922(q). It is important

to the understanding of Lopez that the Supreme Court intended to

establish an outer limit to congressional authority, not to retreat

from well-established Commerce Clause precedent. U nited States v.3

Kenney

, 91 F.3d 884, 887 (7th Cir. 1996). As Chief Justice

Rehnquist noted, “[S]ome of our prior cases have taken long steps

down that road , giving great deference to congressional action.

The broad language in these opinions has suggested the possibility

of additional expansion, but we decline here to proceed any

further.” Lopez, ___ U.S. at

___ , 115 S. Ct. at 1634.

Simply stated, I believe that we should join the other

circuits in holding that Congress had a rational basis for

concluding that t he manufacture, transfer and possession of

machineguns substantially affect commerce and § 922(o) therefore is

constitutional.4

PAT RICK E. HIGGINBOTHAM, Circuit Judge, joined by POLITZ, Chief

Judge, DAVIS and WIENER, Circuit Judges, would affirm for the

following reasons:

We are persuaded that a legislative judgment that possession

of machine guns acquired after 1986 has a substantial effect on

interstate commerce, particularly by faci litating the trade in

illegal drugs, is supported by our judicial e xperience and facts

about machine guns and interstate criminal activity common to

public discourse. Congress did not exceed its power under the

Commerce Clause, and we today correctly affirm this conviction.

I.

This case ultimately turns on the role of congressional

findings in judicial review of congressional exercises of its

commerce power. Our opinion in U nited States v. Lopez

, 2 F.3d 1342

(5th Cir. 1993), aff’d

, 115 S. Ct. 1624 (1995), stressed the

absence of congressi o nal findings of the relationship between

Congress’s regulation of guns near schools and its commerce power.

We required that Congress justify its authority by findings. The

Supreme Court affirmed our holding that Congress lacked authority

t o regulate possession of a gun in proximity to a school, but it

did not adopt our rationale. Rather, the Court shied away from so

direct an imposition of procedure upon the Congress. Nonetheless,

the court did give weight to the absence of congressionally

identified ties between the regulation and the commerce power. 115

S. Ct. at 1631-32.

Lopez , then, adhered to a rational basis standard of review.

This deferential standard does not insist that Congress actually5

make f actual findings. To the contrary, its tolerance of

hypothetical, judicially supposed purposes and mean s gives the

rational basis standard its deferential character. Courts can

assume a more activist role in judicial review by refusing to look

to a basis for legislation not identified by Congress. This

elevates the standard of review, ac c ording significantly less

deference to Congress. Giving weight to the absence of

congressional findings lies in the middle ground between an

intrusive absolute insistence upon legislative findings and

traditional rational basis inquiry. Congressional findings are not

merely playthings of formalism. They help define the respective

roles of the courts and the Congress and the federal and the state

governments. So the role of findings demands our attention. But

their absen ce does not end our inquiry. Here Congress made no

findings. We give weight to the absence of findings, but we do not

find their absence controlling. Under Lopez , we must continue to

apply the rational basis test, which asks courts not to set aside

congressional acts as exceedi ng the Commerce Clause power if the

Congress could have found that the relevant intrastate activity has

a substantial effect on interstate commerce. This deference

respects differences between the fact -finding of courts and

legislative findings, differences of a constitutional order.

Legislative “findings,” relative to judicial findings, are untidy

in their blending of empirical asse ssment and policy judgments.

The difference reflects t he fundamentally different roles of the

judiciary and the Congress. Congress must respond actively to6

problems faced by political communities; its judgment is accented

by its look to the future and its effort to offer s olutions to

social ills. The judicial decision looks backward, responding to

the limits of a case or controversy. We must not forget these

differences in inquiring what the legislature rationally could have

found. Losing sight of these differences risks a blurring of the

respective ro les of Congress and the courts, a difference the

rational basis test is intended to respect. On the one hand,

courts have a constitutional d u ty to scrutinize congressional

actions to ensure that Congress stays within its constitutionally

enumerated powers; “if L opez means anything, it is that Congress’s

power under the Commerce Clause must have some limits.” U nited

States v. Rybar

,

___ F.3d

___, ___, 1996 WL 740084 at *22 (3d Cir.

1996) (Alito, J., dissenting). On the other hand, we must

discipline our scrutiny to ensure that we are about the business of

judicial review and not the business of social policy. Stated

a nother way, respecting the policy-making role of majoritarian

legislative bodies is not an empty recitation.

This familiar problem for rational basis review is especially

awkward when the issue is whether an intrastate activity has a

substantial effect on interstate commerce. Unless the Court

follows Justice Thomas away from an effects test, see Lopez

, 115 S.

Ct. at 1642-51 (Thomas, J., concurring), we cannot escape this

difficulty. Justice Breyer's elaborate study of education, guns,

and commerce will continue to be commonplace, despite the reality

that judicial searches for data that might have supported a7

legislative f inding raise the troubling prospect of the courts

doing work the Congress ought to have done. S ee id. at 1659-62

(Breyer, J., dissenting). And as Justice Souter has pointed out,

the doctrine of clear statement offers no escape. S ee id. at 1655

(Souter, J., dissenting). What the Supreme Court will do with the

meaning of “substantial effect” remains to be seen. These plastic

words may lessen deference to Congress by judicial demands for

empirical evidence as well as normative valuations of state and

federal “interests.” Regardless of that future, according weight

to the absence of legislative fin dings in close cases fairly

accommodates these competing interests. Cases are at least close

when courts feel the need to conduct elaborate empirical studies to

dete rmine whether the facts support exercise of the federal

commerce power. If the facts were not within our easy reach, this

would be a close case indeed, and the absence of findings would

then tilt the outcome. This simply states a limit upon the role of

the courts in their inquiries into whether there is a rational

basis for a legislative judgment.

II.

In executing the rational basis test, we turn to facts bearing

on the relationship bet ween possession of machine guns and

interstate commerce. The prosecution has not aided our factual

inquiry on this score. But the concern over machine guns was

hardly exotic. To the contrary, concern over both the unique

firepower of automatic weapons and the recent increase in their

number was the subject of public discussion, as a simple repair to8

the popular press makes plain. That exercise also sheds light on

the type of data and expert opinion available to the Congress. A

1985 article in a national weekly magazine alerted Americans to the

dangerous proliferation of machine gu ns and reported that “[t]he

MAC-10 has become the side arm of choice for ‘cocaine cowboys’ and

other drug smugglers.” M ach ine Gun U.S.A. , N E WSWEEK

, October 14,

1985, at 46. According to the article, American gun dealers

imported an average of 55,000 machine guns during the early 1980s.

In 1988, two years after the passage of § 922(o), the International

Association of Chiefs of Police estimated that criminals possessed

between 650,0 00 and two million automatic and semi-automatic

weapo ns. The Arms Race in Your Own Back Yard , U.S. N EWS & W ORLD

R EPORT , April 4, 1988, at 24. Presumably, the great percentage of

these weapons were semi-automatic weapons and not machine guns. In

1987, the DEA “seized an average of one machine gun a day,” which

led the press to report that “most of this ferocious firepower is

deployed in connection with narcotics trafficking.” I d. This sort

of information, easily accessible to Co ngress, would support a

legislative judgment that the possession of machine guns interferes

with federal drug enforce ment; that regulating the simple

possession of machine guns acquired after 1986 is necessary to stop

the rapid growth of the pool of supply. Indeed, there is reason to

think that Congress had these sorts of figu res in mind when it

enacted § 922(o). S ee 1986 U.S.S.C.A.N. 1330 (noting that an

alternative bill “prohibited the transfer and possession of machine9

gun s, used by racketeers and drug traffickers for intimidation,

murder and protection of drugs and the proceeds of crime”).

The efficacy of § 922(o) also suggests that a legislative

judgment of a strong tie between machine guns and federal crimes

would hav e been valid. In 1983, ATF seized 871 machine guns and

conversion kits; by 1985, that numb er had ballooned to 3,263.

N EWSWEEK

, October 14, 1985, at 46. After passage of § 922(o),

however, this figure dropped dramatically. There were only 834 ATF

machine gun seizures in fiscal year 1987, as opposed to 2,854

seizures in fiscal year 1986, a decrease of 71 p ercent.

Semiautomatic Assault Weapons Act of 1989: Hearings before the

Subcommittee on Crime of the Committee on the Judiciary

, 101st

Cong., 1st Sess. 354 (1989) (Appendix 9: “The 1986 Machine Gun Law

Works”); Tony Freemantle, Police Groups Warm to Bill on Gun

Control , H OUSTON C HRONICLE , March 19, 1989, at A1. These figures at

least suggest that § 922(o) succeeded in substantially reducing the

number of machine guns in the hands of criminals encountered by

federal law enforcement. And the striking effectiveness of federal

enforcement of the congressional freeze of the machine gun market

gives us reason to think that in 1986 Congress could have mustered

facts to support its legislative judgment that the ban would be

effective in reducing th e availability of machine guns to those

confronting federal law enf o rcement, particularly in the drug

trade. That other inferences might be drawn from the data or that

there is conflicting data is no answer because our question is not10

what judges think or prefer, but what rational judgment C ongress

could have made.

The bill that enacted § 922(o) also imposed on drug

traffickers who us e a machine gun a special ten-year sentence

rather than the standard five-year sentence for other firearms.

Pub. L. No. 99-308 § 104, 100 Stat. 456, 457 (May 19, 1986)

(amending 18 U.S.C. § 924(c)(1)). Two years later, Congress

thought it prudent to add another twenty years to this penalty.

Pub. L. No. 100-690 § 6460, 102 Stat. 4373, 4373 (Nov. 18, 1988).

This concerted attention to the dangers of automatic weapons is at

odds with the suggestion that Congress’s freeze on the market in

machine guns rests on an irrational judgment about the ties between

machine guns and drug dealers and about the effects of tolerating

their possess ion after 1986. Federal law enforcement recognizes

the importance of having such powerful weapons in confrontations

with drug traffickers. In 1988, DEA, the primary enforcement

agency in the regulation of drugs, moved away from shotguns and

ma de 9-mm, 32-round weapons that can be fired automatically its

“primary” weapons. U.S. N EWS & W ORLD R EPORT

, April 4, 1988, at 24.

These developments make it clear that it is at least rational to

conclude that federal regulation of a distinct market in machine

guns is part and parcel of federal drug regulation.

Judge Parker in his opinion for the panel found it important

that Congress has done more here than outlaw simple possession of

a machine gun. We agree. Not every possession is prohibited.

Rather, the Congress has left lawful the possession of machine guns11

manufactured before 1986 and lawfully possessed before that date.

It is a crime to transfer any machine gun after 1986 or to possess

a machine gun manufactured after that date. That is, Congress

froze in place the market in machine guns. Judge Garwood made this

point in his opinion for the panel in Lopez :

Section 922(o) is restricted to a narrow class of highly

destructive, sophisticated weapons that have been either

manufactured or imported after enactment of the Firearms

Ow ners’ Protection Act, which is more suggestive of a

nexus to or [e]ffect on i nterstate or foreign commerce

than possession of any firearms whatever, no matter when

or where originated, wi thin one thousand feet of the

grounds of any school.

2 F.3d at 1356 (emphasis in original) (footnote omitted). It is

true that simple possession is the stated offense under the

statute, but by excepting activity occurring before 1986, a

proscribed possession, by definition, must have been the product of

a post-1986 transfer, interstate or intrastate (putting to one side

the remote cases of worn guns and, for the moment, cases involving

conversion into fully automatic guns). Such careful regulation

reflects legislative deliberation we are bound to respect.

Machine guns possess a firepower that outstrips any other kind

of gun. Persons knowledgeable about firearms, such as those who

campaign for repeal of gun regulations, u sually emphasize that

machine guns stand in a class of their own. See Assault Weapons:

A View from the Front Lines: He aring before the Committee on the

Judiciary , 103d Cong., 1st Sess. 183, 185-86 (1994) (emphasizing

that the cosmetic similarities between machine guns and semiautomatic a ssault weapons belie functional differences that make

assault wea pons more like hunting and target rifles than like12

machine guns). The destructive capacity of machine guns puts them

in the same category as explo sives, which the federal government

h as heavily regulated for over twenty-five years, except machine

guns have little lawful use. S ee Org anized Crime Control Act of

1970, Title XI, § 1102(a), Pub. L. No. 91 -452, 84 Stat. 953-55

(codified as amended at 18 U.S.C. §§ 842-843) (prohibiting, among

other things, the storage of explosives without a federal permit);

United States v. Dawson

, 467 F.2d 668, 673 (8th Cir. 1972) (“There

being a rational basis upon which Congress properly could have

determined that the misuse of explosive materials is one activity

which, as a c lass, affects commerce, the Government need not

specifically allege and p r ove a connection between interstate

commerce and the conduct made criminal by § 842 (h).”), cert.

denied , 410 U.S. 956 (1973).

Thi s fundamental difference between machine guns and other

guns is reflected in the long history of machine-gun regulation by

Congress. Initially, Congress used the taxing power to insist upon

machine gun registration. S ee National Firearms Act of 1934, Pub.

L. No. 474 §§ 2-6, 48 Stat. 1236, 1237-38. It soon turned to the

Commerce Clause as a basis for restricting the market in machine

guns. S ee Federal Firearms Act of 1938, Pub. L. No. 785, 52 Stat.

1250. That law remained in effect for thirty years, when Congress

enacted the Omnibus Crime Control and Safe Streets Act of 1968,

Pub. L. No. 90-351, 82 Stat. 197 (current version at 18 U.S.C. §§

921-928), of which § 922(o) is now a part. Machine guns, then,13

have not been the exclusive regulatory domain of the states. Their

lethal force has produced a national response.

III.

Those who urge that this legislation is unconstitutional are

at pains not to undercut the constitutionality of laws prohibiting

the simple possession of drugs. Yet it is difficult to conclude

that Congress could not have rationa lly found that machine guns

play a large role in major drug transactions and thus that the

availability of these weapons of war has a substantial effect on

the interstate traffic in drugs. Congress has acted on that effect

in providing that the use of a gun, otherwise lawful, in a drug

transaction brings substantially increased penalties. 18 U.S.C. §

924(c)(1). We have repeatedly recognized firearms as one of the

drug dealer’s “tools of the trade.” S ee United States v. Martinez

,

808 F.2d 1050, 1057 (5th Cir.), cert. denied

, 481 U.S. 1032 (1987).

The firep ower of a machine gun puts it in a quite different

category from the handguns, shotguns, and rifles so popul ar with

sportsmen. Its continuous fire puts the machine gun on a different

plane from the semi-automatic. The routine cases on the criminal

docket in federal courts make the connection between machine guns

and major drug transactions undeniable. Whether the effect is

“substantial” is less certain, as we have explained. S ee supra at

5-7. But we need conduct no elaborate study. As shown above, the

writing of the popular press and the scale of congressionally-set

penalties demonstrate that the baseline of public debate assumes a

heavy use of machine guns in drug-related crimes. Significantly,* ** A brief survey of recent federa l cases reveals many

examples. S ee, e.g.

, Smith v. United States

, 113 S. Ct. 2050, 2052

(1993) (defe ndant in possession of a fully automatic MAC-10 and

MAC-11 machine gun attempts to buy cocaine by selling the MAC-10,

a gun that “apparently is a favorite among criminals” because it

“can fire more than 1,000 rounds per minute”); United States v.

Powell , 469 U.S. 57, 59 (1984) (search of defendant’s car yields,

among other things, two kilograms of cocaine and a machine gun);

County Court v. Allen

, 442 U.S. 140, 143 (1979) (loaded machine gun and more than a pound of heroin found in the trunk of defendants’

car); United States v. Jones

, 102 F.3d 804, 806 (6th Cir. 1996)

(cocaine dealers attempt to sell federal agents a MAC-10, a MAC-11,

and an AK-47, two of which have obliterated serial numbers); United

States v. Agis-Meza

, 99 F.3d 1052, 1054 (11th Cir. 1996) (two

defendants charged with violation of § 922(o) plead guilty to

posse ssion of marijuana); U nited States v. Alerta

, 96 F.3d 1230,

1233 (9th Cir. 1996 ) (two brothers arrested for methamphetamine

dist ribution are found in possession of two fully automatic

weapons: a MAC-10 and a con verted TEC-9); U nited States v.

Hawthorne

, 94 F.3d 118, 120 (4th Cir. 1996) (automatic pistols used

during drug transactions); U.S. v. Ulloa

, 94 F.3d 949, 950-51 (5th

Cir. 1996) (defendant trading cocaine for five MAC-10’s, 48 M-16’s,

one UZI, and other weapons) petition for cert. filed No. 96-6914

(U.S. November 25, 1996); United States v. Cannon

, 88 F.3d 1495,

1505 (8th Cir. 1996) (“The record in this case contains evidence

that a machine gun is a drug dealer's most prized possession.”);

United States v. Moskovits

, 86 F.3d 1303, 1311 (3d Cir. 1996)

(a ffirming a finding that a defendant convicted of distributing

cocaine committed perjury when he denied owning a machine gun)

petition for cert. filed No. 96-6646 (U .S. September 17, 1996);

United States v. Blue

, 78 F.3d 56, 58 (2d Cir. 1996 ) (DEA agents

discover a machine gun under a mattress while searching an

apartment during a cocaine investigation); United States v. Garcia

, 77 F.3d 274, 275 (9th Cir. 1996) (sheriff’s deputies discover a machine gun in “a typical stash house where drugs are stored and

weapons are kept to prot ect the merchandise”); U nited States v.

Buchanan

, 70 F.3d 818, 824-25 (5th Cir. 1995) (9mm fully automatic

pistol found in car with 280 grams of crack cocaine), cert. denied

, 116 S. Ct. 1366 (1996); United States v. Murphy , 69 F.3d 237, 239

(8th Cir. 1995) (de fendant convicted of attempt to manufacture

methamphetamine, use of a firearm in relation to a drug offense,

and posse ssion of a machine gun), c ert. denied

, 116 S. Ct. 1032

(1996); United States v. Brantley

, 68 F.3d 1283, 1286 (11th Cir.

1995) (defendant convicted of both possession of cocaine with

intent to distribute and use of a fully automatic firearm in the

14 our cases provide anecdotal information that meshes with this data

a nd together would make § 922(o) a rational way to cabin both

violence atten ding the drug trade and the trade itself. * ** Thecommission of a drug offense), cert. denied

, 116 S. Ct. 964, 116 S.

Ct. 1334 (1996); U nited States v. Zermeno

, 66 F.3d 1058, 1060 (9th

Cir. 1995)

(marijuana, packaging materials, money counters, camouflage gear,

two assault rifles, a machine gun, and 1,550 rounds of ammunition

found in “stash house”); United States v. Luciano-Mosquera

, 63 F.3d

1142, 1149 (1st Cir. 1995) (M-16 carried onto beach during offloading of cocaine base from boat), cert. denied , 116 S. Ct. 1879

(1996); United St ates v. Melendez , 60 F.3d 41, 44 (2d Cir. 1995)

(heroin trafficking operation accumulates a number of machine guns

and other firearms that were used to protect its operations), cert.

denied

, 116 S. Ct. 1020, 116 S. Ct. 900 (1996), 116 S. Ct. 429, 116

S. Ct. 258 (1995); United States v. Messino

, 55 F.3d 1241, 1245

(7th Cir. 1995) (cocaine dealer sells a fully automatic machine gun

with a silencer to a confidential informant); United States v.

Davis

, 53 F.3d 638, 639 (4th Cir. 1995) (probation of defendant

who pled guilty to distributing cocaine revoked after he is seen carrying a machine gun on a college campus); United States v.

Taffe , 36 F.3d 1047, 1048-49 (11th Cir. 1994) (UZI machine pistol

equipped with a silencer used in heist of three bales o f cocaine

and fired at police officers); United States v. Thomas

, 12 F.3d

1350, 1361-62 (5th Cir. 199 4) (AR-15 rifle modified to fire as a

machine gun used by defendant for protection because of “his line

of business” in conspiracy to distribute cocaine, amphetamine,

methamphetamine and marijuana), cert. denied

, 114 S. Ct. 1861, 114

S. Ct. 2119 (1994); United States v . Garcia , 997 F.2d 1273, 1277

(9th Cir. 1993) (machine gun used to protect and embolden drug

dealer found in house with a kilo of heroin, 4.5 kilos of cocaine,

and 1.24 grams of cocaine base); U nited States v. Sims

, 9 75 F.2d

1225, 1230 (6th Cir. 1992) (ATF agents discover two AR-15 rifles,

converted to fire fully automatically, and 257 rounds of ammunition

in th e back seat of a car in connection with the arrest of

defendants attempting to buy $337,500 w orth of cocaine); U nited

States v. Capote-Capote

, 9 46 F.2d 1100, 1102-04 (5th Cir. 1991)

(machine gun used to protect kilogramof cocaine), c ert. denied

, 504 U.S. 942 (1992); Un ited States v. Moore , 919 F.2d 1471 (10th

Cir. 1990) (loaded British Sten machine gun found in open closet of

room containing c ocaine, ziplock bags, weighing scale, dealing

records, $3,400, and a calculator); United St ates v. Rogers , 921

F.2d 1089 (10th Cir. 1990) (same facts as recited in M oore ),

modified

, 925 F.2d 1285 (10th Cir.), cert. denied

, 501 U.S. 1211

(1991); United States v. Lucas , 932 F.2d 1210, 1223-24 (8th Cir.)

(along with thirteen other guns, machine gun “kept at the ready” to

safeguard crack house and facilitate illegal manufacture and trade

in crack cocaine), cert. denied , 502 U.S. 869, 502 U.S. 949, 502

U.S. 991 (1991), 502 U.S. 1100 (1992); United States v. Matra

, 841

F.2d 837, 839 (8th Cir. 1988) (machine gun, along with eight other

weapons, made the crack house a “veritable fortress”).

15 quantity of machine guns that federal courts encounter in drug16

cas es is high enough to conclude that Congress would have had a

rational basis for a legislat ive judgment that prohibiting their

intrastate possession would have a substantial effect on the

interstate commerce in illegal drugs.

This rationale would not “conv ert the commerce power into a

reserved ‘general federal police power’” (quoting Lopez

, 115 S. Ct.

at 1632). As observed, machine guns are very different weapons

from guns without the capability of automatic fire and have been

the subject of federal commerce regulation for nearly sixty years.

We would expect a national rather than a state-by-state regulatory

pattern of, say, anti-tank bazookas, plastic explosives, plutonium,

or other tools of terrorists. Federal regulation of machine guns,

as distinguished from other guns, does not bring similar invasions

of traditional state interests. Although § 922(o) and § 922(q)

both criminalize the possession of certain guns, § 922(o) ought not

be brushed off as a mere “clone” of § 922(q).

Of course, the Lopez Court insist ed that we distinguish

between the regulation of cri me and the regulation of commercial

activity. 115 S. Ct. at 1630-31. This case differs from Lopez in

the critical respect that crimin als use machine guns to evade

regulation of the national drug trade while guns near schools have

a negligible effect on the traditionally local activity of public

education, which is not itself commercial. Crime can be interstate

business. And local intrastate criminal activity can have a

substantial effect on that interstate activity. Indeed, Congress

might rationally conclude that th e relationship between “local17

possession” of machine guns and the drug trade is even more

compelling than the ties between local loan sharking and organized

c rime. S ee Perez v. United States

, 402 U.S. 146, 157 (1971)

(“[L]oan sharking in its national setting is one way organized

interstate crime holds its guns to the heads of the poor and rich

alike and siphons funds from numerous localities to finance its

national operations.”).

The judiciary’s role in policing the process of federalism

brings hard calls, includ ing the task of distinguishing national

economic activity from local crime. Lopez is not merely symbolic

jurisprudence. Rather, it announces that there are yet limits upon

Congress’s use of the commerce power to make a federal case out of

traditionally local concerns, particularly in criminal law

enforcement. That said, we part company with the declaration that

§ 922(o) is an invasion of the state’s traditional police power.

That the Congress has attached a criminal penalty to the possession

of a machine gun or storage of explosives does not alone mean that

it has invaded the traditiona l police power of the states. With

respect, that announces an outcome, not a rationale.

There is no social utility in the distribution of cocaine and

marijuana, and their interstate character is undeniable. It is no

surprise, then, that Congress “regulates” the national market in

these drugs by banning them, a ban that rationally extends to

simple possession. There is little social utility in acquiring

since 1986 operable machine guns or in making them. They are not

sporting weapons; they are weapons of war. They are guns in the18

same sense that pussycats and tigers are both members of the cat

family. The courts have learned that a machine gun’s destructive

capacity makes it hig hly useful for protecting commerce in

contraband such as narcotics.

Given the rapid influx of machine guns, it is hardly

irrational to conclude that meaningful regulation of their use in

lines of interstate commerce requires regulation of this intrastate

possession. The attempt to distinguish drugs and machine guns on

the basis of fungibility fails to appreciate the fact that many

guns can easily be converted from semi-automatic to fully

automatic. S ee, e.g.

, United States v. Branch

, 91 F.3d 699, 736-37

(5th Cir. 1996) (affirming a § 922(o) conviction wh ere the

defendant used conversion kits and instructional books and

videotapes to manufacture fully automatic weapons out of semiautomatic weapons). News reports describe the process as “so low

tech on some brands that [ATF] agents

. . . have seen it done with

a paperclip.” U.S. N EWS & W ORLD R EPORT

, April 4, 1988, at 24. As

with drugs, identifying and tracing the fully automatic nature of

machine guns is often impossible.

Efforts to minimize the consequences of striking down this

statute by reassuring that Congress can cure the defects it finds

by inserting a jurisdict ional element are empty of content: for

example, it can p rovide penalties for possession of weapons that

are “in or affecting commerce.” With deference, this velvet over

the sword in fact erodes the logic of an otherwise not

insubstantial argument. If the present statute cannot be sustained19

because Congress could not rationally have made a legislative

judgment of the need to freeze the post-1986 market, there is

little federal regulatory scope left; that reality sh ould be

forthrightly acknowledged. If a legislative decision to freeze the

class is irrational, proof that an individual member of the class

had a substantial effect on commerce in a given case is problematic

if “substantial effect” is accorded a constant meaning. So those

who would strike this statute cast themselves as protecting state

interests by insisting that the Commerce Clause empowers Congress

to outlaw only those machine guns where in a specific case the

government proves that the use of the machine gun was in commerce

or affecting commerce. The irony is that this requirement is more

intrusive of state interests than the test we apply and they

reject. It is more tolerant of federal intrusion because it may be

met by showing merely that a gun “has previously traveled in

interstate commerce.” U nited States v. Bass

, 404 U.S. 336, 350

(1971). That is, this minimal nexus to commerce could give

Co ngress more latitude in exercising its federal commerce power

than the substantial-effects test we have employed here. A caseby-case inquiry into whether the defendant possessed a gun that was

once in interstate commerce, even “after any number of intermediate

sales within the State and after any lapse of time,” United States

v. Sullivan

, 332 U.S. 689, 693 (1948), would allo w federal

regulation of items that, taken as a class, have virtually no

effect on interstate commerce. It would concede congressional

power to outl aw possession of guns in general, an upset of a20

traditional state-federal balance and a concession we are not

persuaded to make. L opez would indeed look more like symbolic

jurisprudence with little real implementation of the federalist

arrangement of our Constitution. After all, few guns have never

crossed a state line. It is not for us to say that B ass cannot

survive Lopez

. We would not embrace it, however, to support a

rejection of a less intrusive inquiry.

In general, judges are not equipped by training to engage in

elaborate empirical studies; m o re importantly, the courts are

institut i onally ill-equipped. Deference to Congress does not

require courts to leave their traditiona l roles by pursuing

empirical research. But it does require courts not to ignore the

obvious, at least when the obvious is born of judicial experience.

We need look no further than our considerable experience with the

drug market and the role of automatic weapons in that activity.

Based on that experience, we are comfortable in conclu ding that

Congress could have rationally found the required nexus between its

careful regulation of the possession of machine guns and the

interstate commerce in, for example, illegal drugs, as well as the

attendant commerce in machine guns alone. The federal government

has the power under the Commerce Clause to wage the war on drugs.

It equally has the power to freeze the escalating destructive power

of the weapons of that war, the automatic firepower drawn by the

drug trade.

Automatic and non-automatic weapons fire on different planes,

functionally and legally. Guns without the capability of automatic21

fire are lawfully found in the hands of thousands of persons across

the country. The states have traditionally regulated these

weapons, indeed virtually all guns, except the machine gun. We

weigh the absence of congressional findings against the

constitutionality of § 922(o), but given the facts we have outlined

conclude that the absence of an invasion of a traditional state

interest tilts this case in favor of the constitutionality of the

statute. Saying so pulls no teeth from L opez and sounds no retreat

from the judicial scrutiny of efforts to make federal cases of

state crimes.**** Judge Benavides was recused from consideration of this case.

22 EDI TH H. JONES, Circuit Judge, joined by GARWOOD, JOLLY, SMITH,

D UHE’, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges,

would reverse for the following reasons:

This appeal has provided an occasion for our en banc

court to consider the breadth of Congress’s power to enact criminal

laws under the Commerce Clause in light of United States v. Lopez

,

__ U.S.

__, 115 S. Ct. 1624 (1995). The specific issue is whether

Congress breached its Commerce Clause authority in enac ting 18

U.S.C. § 922(o), which was the basis for appellant Kirk’s

conviction for the wholly intrastate possession of a machinegun.

Half of the judges participating in this en b anc * *** rehearing

conclude that Lopez has more than mere symbolic significance.

Carefully applied, it compels the conclusion that the § 922(o) ban

on mer e intrastate possession of a machinegun exceeds Congress’

authority “[t]o regulate Commerce

. . . among the several States.”

U.S. Const., Art. 1, § 8, cl.3. The other half of the

participating judges disagree with this conclusion, although their

reasoning dif fers. Kirk’s conviction must be affirmed by an

equally divided court, but the importance and recurring nature of

these issues lead us to publish this opinion.

I. BACKGROUND

William J. Kirk was charged in a four-cou nt indictment

with violations of 18 U.S.C. § 92 2(o)(1988). The indictment

charged Kirk with two counts of unlawful possession of a machinegun

(Counts One and Three); and two counts of unlawful tr ansfer of a* **** For purposes of 18 U.S.C. § 922(o), a “machinegun” is

defined as “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. The

term shall also include the frame or receiver of any such weapon,

any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting

a weapon into a machinegun, and any combination of parts from which

a machinegun can be assembled if such parts are in the possession

or under the control of a person.” 26 U.S.C. § 5845(b)(1988); see

18 U.S.C. § 921(a)(23).

23 machinegun (Counts Two and Four). ***** The possession counts make no

mention of interstate commerce or of any connection between Kirk’s

machinegun or his possession of it with commerce, interstate or

otherwise. Kirk moved to dismiss the indictment, contending in

part that § 922(o) exceed s Congress’ delegated powers under the

Commerce Clause in that it punishes the transfer or possession of

a machinegun with no showing that the intrastate transfer or

possession affects interstate commerce. The district court denied

the mot ion to dismiss. Kirk then pled guilty to Count One for

unlawful possession of a machinegun, reserving his right to appeal

the denial of his pre-trial constitutional challenge to § 922(o).

A divided panel of this court rejected Kirk’s

con s titutional challenge and affirmed his conviction. U nited

States v. Kirk

, 70 F.3d 791 (5th Cir. 1995), reh’g en banc granted

,

78 F.3d 160 (5th Cir . 1996). Because this case poses similar

constitutional questions to those presented in United States v.

Lopez

,

__ U.S.

__, 115 S. Ct. 1624 (1995), we granted rehearing en* ***** With certain exceptions, § 922(o) bans both the transfer

and possession of machineguns. See infra part II. We need not

consider here the constit utionality of § 922(o)’s restriction on

the transfer of machineguns. The prohibition on the transfer of

machineguns raises different constitutional questions than those

raised by § 922(o)’s ban on their mere possession.

24 banc

, vacating the panel opinion to determine the constitutionality

of the § 922(o) ban on the possession of machineguns. ******

II. PREFACE

The language an d legislative history of § 922(o) and a

brief discussion of Lopez form a backdrop for further analysis.

A. Section 922(o)

In 1986 Congress amended the Gun Control Act of 1968, 18

U.S.C. §§ 921-28, with the passage of the Firearms Owners’

Protection Act (FOPA), Pub. L. No. 99-308, 100 Stat. 449 (1986).

Section 102(9) of FOPA added § 922(o) to the existing statute. 100

Stat. at 453. Section 922(o) provides:

(o)(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 l awful possession of a

mac hinegun that was lawfully possessed before the date

this subsection takes effect.

18 U.S.C. § 922(o). Section 922(o) became effective May 19, 1986.

See FOPA § 110(c), 100 Stat. at 461 (effective date).

The legislative history of § 922(o) is sparse. See David

T. Hardy, The Firearms O wners’ Protection Act: A Historical and******* F ollowing a colloquy between Senators Hatch and Dole

concerning the exemptions contained in § 922(o), Senator Metzenbaum

expressed con cern that the colloquy did not express the correct

interpretation of the amendment. In partial response, Senator

McClure stated: “I know that the Senator [Metzenbaum] from Ohio has

interposed a reservation with respect to my request. I take this

time only to say to the Senator from Ohio that this discussion

[concerning § 922(o)] is up at all because the other body injected

some language at the very last minute, literally, of their debate,

and there is no legislative history as to what that language means.

There are a substantial number of House Members as we ll as other

interested parties who have asked quest ions about what it means;

and what we are trying to do is provide some legislative history as to our understanding of what the House provision means, since the

House itself had no legislative history on this subject.” 132 Cong.

Rec. S5361-62 (daily ed. May 6, 1986).

25 Legal Perspective

, 17 Cumb. L. Rev. 585, 669-71 (1987). Section

922(o) was added to FOPA as a last minute amendment on the House

floor and its provisions were not debated. See United States v.

Wilks

, 58 F.3d 1518, 1519 (10th Cir. 1995); United States v. Lopez

,

2 F.3d 13 42, 1356 (5th Cir. 1993), a ff’d

,

__ U.S.

__, 115 S. Ct.

1624 (1995); 132 Cong. Rec. H1750-52 (daily ed. April 10, 1986);

Hardy, supra , at 670. The only apparent explanation for § 922(o)

is a statemen t from its sponsor, Representative Hughes, who,

rushing to explain his position before the time for debate expired,

stated, “I do not know why anyone would object to the banning of

machineguns.” 132 Cong. Rec. H1750 (daily ed. April 10, 1986). No

other reference to § 922(o) appears in committee reports or

elsewhere, with the exception of a brief Senate colloquy primarily

concerned with the scope of the provision’s exemptions as they

relate to machinegun manufacturers and government-authorized

machineguns. 132 Cong. Rec. S5358-62 (daily ed. May 6, 1986);

Hardy, supra , at 670-71 & nn. 462-463. ******* Thus, the legislative* ******* Section 922(q)(1)(A) was enacted as part of the Gun-Free

School Zone Act of 1990 and provides: “It shall be unlawful for any

individual knowingly to possess a firearm at a place that the

individual knows, or has reasonable cause to believe, is a school

zone.”

26 history of § 922(o) itself p rovides no insight into the

relationship between § 922(o) and interstate commerce.

B. United States v. Lopez

In United State s v. Lopez , __ U.S. __, 115 S. Ct. 1624

(1995), t he Supreme Court considered the constitutionality of 18

U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V), which banned the

possession of firearms near a school and which had been overturned

in this court. U nited States v. Lopez

, 2 F.3d 1342 (5th Cir.

1993). ******** The Court recognized that Congressional power over

interstate commerce under the Com merce Clause extends to (1)

legislation regulating “the use of the channels of interstate

commerce;” (2) laws regulating and protecting “the

instrumentalities of interstate commerce, or persons or things in

interstate commerce, even though the threat may come only from

intrastate activities;” and (3) regulations of intrastate

activities that have a substantial effect on interstate commerce.

Id . at __, 115 S. Ct. at 1629-30.

Each of these categories of cases represents a distinct

way, exemplified by the Court’s chosen citations, to describe the

impact of federal legislation upon interstate commerce. S ee United

States v. Robertson , ___ U.S. ___, 115 S.Ct. 1732 (1995). Before

going further, we note that although Lopez does not explicitly

abandon the deferential rational basis standard of review, s e e

,********* “

. . . where Congress seeks to regulate a purely

intrastate noncommercial activity that has traditionally been

subject to exclusive regulation by state or local government, and

where the connection of the regulated activity as a whole to

interstate commerce is neither readily apparent nor illuminated by

express congressional findings, the government must satisfy the

jurisdictional requirement by pointing to a “substantial” effect on

or connection to interstate commerce.” Pappadopoulos , 64 F.3d at

527 (holding arson directed against a private home not sufficiently

related to interstate commerce).

27 e.g., Hodel v. Virginia Surface Mining & Reclamations Ass’n, Inc.

,

452 U.S. 264, 276-80, 101 S.Ct. 2352, 2360-61 (1981), neither does

the Court defer unblinkingly to Congress’s judgment. Indeed, the

Court’s citations emphasize that it is the judicial duty ultimately

to review conformity of legislation to the Commerce Clause. L opez

,

115 S.Ct. at 1629 n.2; see also Hodel , 452 U.S. at 311, 101 S.Ct.

at 2391-92 (“simply because Congress may conclude that a particular

activity substantially affects interstate commerce does not

necessarily make it so.”) (Rehnquist, J. concurring in judgment).

As Lopez demonstrates, exercise of this duty requires independent

judicial scru tiny of the reasons advanced to explain why the

regulation is necessary to prote ct interstate commerce. Even a

statutorily imposed requirement o f a jurisdictional nexus to

interstate commerce will not insulate a pro vision from judicial

review. S ee, e.g., United States v. Pappadopoulos

, 64 F.3d 522,

527 (9th Cir. 1995). *********

Moving to a more detailed consideration of the Lo pez

categories, regulation of the “channels of interstate commerce,”

t he first category, is limited to direct regulation of the

interstate channels themselves. The cases cited in L opez, or by28

its reference to Perez v. United States

, 402 U.S. 146, 91 S. Ct.

1357, 1359 (1971), to describe the first category involve statutes

that contain an express jurisdictional nexus element. See

, e.g.

,

18 U.S.C. §§ 2312-2315 (interstate sh ipment of stolen goods); 18

U.S.C. § 1201 (interstate transport of kidnaping victims); United

States v. Darby

, 312 U.S. 100, 61 S. Ct. 451 (1941) (regulation of

working conditions in the production of goods “for interstate

commerce”). This category must be limited to legislation that

specifically reaches interstate transfers, possessions, and

transactions and business “engaged in commerce.” U nited States v.

Robertson, supra at

___, 115 S.Ct. at 1733 (goldmine “engaged in

commerce”).

The second category of Commerce Clause power permits laws

regulating or protecting instruments of int erstate commerce, or

persons or things in interstate commerce, even th ough the threat

may derive from intrastate activity. The Court cites in this

connection the Shreveport Rate Cases, 234 U.S. 342, 34 S.Ct. 833

(1914), which u pheld rate regulation of a railroad engaged in

interstate commerce, and Southern Railway Company v. United States

,

222 U.S. 20, 32 S.Ct. 2 (1911), permitting regulation of interstate

railway safety. The Court also cites a statute criminalizing the

destr uction of aircraft used in interstate commerce, 18 U.S.C.

§ 32, and vehicle thefts fr om interstate shipments, 18 U.S.C.

§ 659. This category includes regulation or protection pertaining

to instrumentalities or things as they move in interstate commerce.

With regard to the third category of cases, as the Court* ********* See also United States v. Robertson, s upra , (“The

‘affecting commerce’ t est was developed in our jurisprudence to

define the extent of Congress’s p ower over purely intrastate

commercial activities that nonetheless have substantial interstate

effects.”); United States v. DiSanto

, 86 F.3d 1238, 1245 (1st Cir.

1996).

29 put it, “the pattern is clear.” L opez

,

____ U.S. at

____, 115

S.Ct. at 1630. Federal regulation of even intrastate economic

a ctivity will be sustained if the activity substantially affects

interstate commerce. The Court’s citations again bear out its

purpose. S ee Hodel v. Virginia Surface Mining & Reclamation Ass’n,

Inc.

, 452 U.S. 264, 276-280, 101 S.Ct. 2352, 2360-61 (1981)

(upholding regulation of intrastate coal mining); Perez v. United

States

, supra (intrastate extortionate credit transactions);

Katzenbach v. McClung

, 379 U.S. 294, 299-301, 85 S.Ct. 377, 381-382

(1964) (restaurants utilizing substantial interstate supplies);

Heart of Atlanta Motel, Inc. v. United States , 379 U.S. 241, 252-

253, 85 S.Ct. 348, 354-355 (1964) (inns and hotels catering to

interstate guests). All of the cases involved economic regulations

or legislation bearing on commercial activity, and in those cases,

the intrastate activity either substantially affected interstate

commerce, or it had to be regulated in order not to undercut a

federal commercial regulatory scheme. L opez

,

___ U.S. at

___, 115

S.Ct. at 1631. **********

The Court majority agreed that § 922(q) neither regulates

“the channels of interstate commerce” nor protect s “an

instrumentality of interstate commerce or a thing in interstate

comme rce,” i d

. at

__, 115 S.Ct. at 1630. The problem in L opez* ********** This reasoning does not undermine Wickard v. Filburn

,

317 U.S. 111, 63 S.Ct. 82 (1942), because the farmer’s activity

there, albeit local, directly distorted the federally controlled

market for wheat. L op ez , 115 S.Ct. at 1630. Nevertheless, the

Court’s analysis does not hold that any intrastate commercial

activity is regulable by Congress simply because it is commercial

-- the substantial effects test must be met to ensure a sufficient

connection with interstate commerce.

30 centered on the third category of Commerce Clause power. There are

three steps to the Court’s analysis of the substantial effects

test. The threshold question is whether the local activity sought

to be regulated is commercial in nature, or whether its regulation

is necessary to effectuate federal regulation of a larger

commercial activity. The majority agreed that the ban on

possession of a gun in a school zone fails to “substantially affect

any sort o f interstate commerce.” I d

. at

__, 115 S.Ct. at 1634.

Further, § 922(q) “by its terms has nothing to do with ‘commerce’

or any s ort of economic enterprise, however broadly one might

define those terms.” Id

. at 1630-31. The majority easily rejected

the notion that the act of posse ssing a gun in a school zone is

subjec t to federal regulation because, viewed in the aggregate,

such acts substantially affect interstate c ommerce. L opez

, 115

S.Ct. 1631. What this means is that non-commercial intrastate acts

may not be deemed commercial, for purposes of extendin g federal

regulation, simply by considering them en masse ; ********* * * such

activities ar e only subject to federal regulation if their

regulation is essential to a larger eco nomic regulatory scheme.

Lopez thus holds that “commercial activity” is not a definitional

vacuum waiting to be filled by a creative Congress and judges.31

While the Cou rt acknowledges that characterizing an intrastate

activity as commercial or non-commercial may create some legal

u ncertainty, 115 S.Ct. at 1633, the Court’s conclusion regarding

the purely criminal provision, § 922(q), caused no interpretive

difficulty to the majority. L opez sends a clear cautionary signal

that federal criminalization of intrastate noneconomic activity,

when such regulation is not essential to a broader regulation of

commercial activity, will have difficulty satisfying the

substantial effects basis for Commerce Clause regulation.

T he second element of the substantial effects tes t is

whether the statute contains a jurisdictional nexus to interstate

commerce. L opez commented on th e absence of any jurisdictional

nexus requirement in § 922(q) that would insure, through case-bycase inquiry, that a particular firearm possession substantially

affects interstate commerce. L opez illustrated how a

jurisdictional nexus requirement could save a statute from

Constitutional infirmity by describing United States v. Bass , 404

U.S. 336, 92 S.Ct. 515 (1971). The provision at issue in B ass

criminalized, inter alia

, a felon’s pos session of a firearm “in

commerce or affecting commerce.” Former 18 U.S.C. § 1202(a). The

government convicted Bass without offering proof of a nexus to

interstate commerce. The Court reversed the conviction for this

omission and “thus interpreted the statute to reserve the

Constitutional question whether Congress could regulate, without

more, the ‘mere possession’ of firearms.” L opez

,

___ U.S. at

___,

115 S.Ct. at 1624 (citing Bass , 404 U.S. at 339, n.4, 92 S.Ct. at* *********** See United States v. Collins , 40 F.3d 95, 99-101 (5th

Cir. 1994) (robbery of an individual victim lacks sufficient nexus to interstate commerce to prosecute under Hobbs Act).

************* United States v. Lopez , 2 F.3d at 1366.

32 518, n.4). As previously noted, a jurisdictional nexus requirement

does not ipso facto validate a statute against an as-applied

Commerce Clause challenge, ************ but its existence is reassuring

against a facial challenge.

The final element of the substantial effects inquiry is

whether there are limits in the statute that mark a boundary of

some sort bet ween matters of truly national concern and those

traditionally subject to state regulation. In this connection, the

Court acknowledged that legislative findings, w hile not legally

necessary, would facilitate judicial review o f the substantial

effects question. L opez

,

____ U.S. at

____, 115 S.Ct. at 1631-32;

Perez, supra

, 402 U.S. at 156, 91 S.Ct. at 1362. No such findings

accomp anied § 922(q), however. The Court also agreed with the

Fifth Circuit ************* that legislative findings pertaining to

previous firearms statutes could not be imported into the analysis

of § 922(q). ____ U.S. at ____, 115 S.Ct. at 1632. The Court

finally rejected both the “costs of crime” and “n ational

productivity” t h eories proffered by the federal government to

demonstrate substantial interstate commerce effects, and it

rejected Just ice Breyer’s equation of education with commercial

activity. 115 S.Ct. at 1632-34. Neither of these attenuated

strin gs of logic, according to L opez

, furnishes any principled* ************* United States v. Kenney

, 91 F.3d 884 (7th Cir. 1996); U nited States v.

Beuckelaere

, 91 F.3d 781 (6th Cir. 1996); United State s v. Rambo , 74 F.3d 948 (9th Cir. 1996);

United States v. Wilks

, 58 F.3d 1518 (10th Cir. 1995); United States v. Rybar , ___ F.3d ___, 1996

WL 740084 (3d Cir. Dec. 30, 1996).

*************** Judge Parker and Judge Higginbotham imply that this

analysis strays from the rational b asis test for evaluating the

constitutionality of legislation. Not so. First, as a general

principle, following Lopez

, the rational basis test will apply the

data created, referenced or expressed by Congress in conjunction

with an enactment to the three aspects of federal commerce clause

power described in Lopez

. That is what we have done here, hampered

33 limit on federal power in areas such as criminal law enforcement or

education, where states have traditionally been sovereign.

III. DISCUSSION

On its face, § 922(o) seems a clone of § 922(q), the

provisions struck down in Lopez

. The statute bans for present

purposes “mere possession” of machineguns manufactured or imported

after 1986; i t is supported neither by a jurisdictional nexus

r equirement nor by salvaging legislative findings; it is a

crimina l, not an economic regulatory provision; and it clearly

overlaps state and local law enforcement authority. Other circuit

courts and other judges in this c ourt, however, have not seen it

that way, ************** although their reasons for upholding the statute

differ significantly. Most of these cases err by assuming that

every intrastate possession of machineguns involves interstate

commerce. That error leads to misapplication of the first and

second categories of Commerce Clause cases described by Lopez

, and

to an untenable distinction between § 922(o) and § 922(q) when the

third Lopez category is considered. The errors in other cases are

best exposed by our analysis, *************** which will discuss § 922(o)by the absence of data from Congress concerning how banning the

possession of machineguns nationwide involves or substantially

affects interstate commerce. Second, the rational basis test

assumes the existence of data created or referenced in the

legislative process whose rationality can be analyzed. Here, there

are no relevant data relating the ban on mere intrastate possession

of machineguns by § 922 (o) to Congress’s interstate commerce

jurisdictio n. There are no legislative findings, no committee

reports, and no pertinent Congressional debate that “would enable

us to evaluate the legislative judgment that the acti vity in

question substantially affected interstate commerce, even though no

such substantial effect was visib le to the naked eye. . . .”

Lopez

, 115 S.Ct. at 1632. Most important, there is neither an

e xplicit jurisdictional nexus requirement nor any other tie to

interstate commerce apparent from the statutory architecture. It

is not this court’s responsibility or place to invent a rational

basis for Congr ess. Third, the absence of such data mirrors the

situation before the Court in Lopez and reinforces the consistency

between these two cases. In L opez

, Congress had not endeavored in

§ 922(q) to express any connection between interstate commerce and

possession of a gun in a school zone. Unlike the majority, the

dissent there was willing to create a factual backdrop for the

statute, just as Judges Parker and Higginbotham seek to do here.

* ************** It would be a mistake to argue that because Justices

Kennedy and O’Connor concur red in L opez and joined a separate

writing, the Lopez analysis is not definitive. The two justices

joined and endorsed Justice Rehnquist’s majority opinion. (“As the

Chief Justice explains, unlike the earlier cases to come before the

Court, here neither the actors nor their conduct have a commercial

character, and neither the purposes nor the design of the statute

have an evident commercial nexus.” L opez

,

___U.S. at ___, 115

S.Ct. at 1640 (Kennedy, J., citing Rehnquist opinion).

34 under each category of Lopez

, and which takes Lopez seriously as

establishing at least an outer boundary on Congress ’s criminal

jurisdiction under the Commerce Clause. ***************

A. Does § 922(o) Regulate “Channels of” or “Things in”

Interstate Commerce?

The Government contends that § 922(o) may be justified

under either of the first two Lopez categories, as a regulation of

the channels of interstate commerce or of a thing in interstate

commerce. There is circuit court support for each position. See35

United States v. Wilks

, 58 F.3d 1518 (10th Cir. 1995) (upholding

§ 922(o) as regulation of a thing in interstate commerce); United

States v. Rambo

, 74 F.3d 948 (9th Cir. 1996) (§ 922(o) valid as

regulation of channels of interstate commerce); U nited States v.

Beuckelaere

, 91 F.3d 781 (6th Cir. 1996) (§ 922(o) valid under all

three Lopez categories); but see United States v. Kenney , 91 F.3d

884 (7th Cir. 1996) (§ 922(o) upheld only under substantial effects

prong of Lopez ).

1. The Channels of Interstate Commerce

Recourse to the first two Lopez c ategories suffers

initially, however, from a seriou s factual error. Proponents of

the constitutionality of § 922(o) assume that every possession of

a machinegun manufactured after May 19, 1 986, excepting only the

narrow class of possessions permitted in the statute, connotes that

the gun traveled or was transferred in interstate commerce. These

decisions overlook that an automatic weapon may be created by

modifying a semiautomatic weapon, see United States v. Jones , 976

F.2d 176, 178 (4th Cir. 1992), cert. denied 508 U.S. 914, 113 S.Ct.

2 351 (1993) (describing home conversion of shotguns), or that it

may evolve from ordinary wear and tear on a semiautomatic firearm.

In United States v. Anderson

, 885 F.2d 1248, 1250-51 (5th Cir.

1989) ( en banc ), this court recognized that “[s]everal of the most

popular shotgun models, many handguns, and not a few rifles” can by

“either wear and tear or a simple operation” become “machineguns”

within th e statutory definition. Section 922(o) would therefore

prohibit the simple possession of an ordinary semi-automatic pistol* ************** United States v. Kirk

, 70 F .3d 791, 796 (5th Cir.

1995); Rambo, supra, 74 F.3d at 952 (same); Beuckelaere, supra

, 91

F.3d at 783 (same).

36 whose sear wore off in 1987. Shorn of the misunderstanding that

illegal possession cannot occur without illegal transfer ***************

,

§ 922(o) plainly reaches mere intrastate possession of machineguns

as well as possession of machineguns which have illegally moved or

been tran sferred in interstate commerce. Any decision upholding

§ 922(o) under Lopez must come to grips with this reality.

Rambo

, f or instance, seeks to justify § 922(o) as

regulating the channels of interstate commerce becaus e it is “an

attempt to prohibit the i nterstate transportation of a commodity

through the channels of commerce.” Rambo , 74 F.3d at 951, citing

Lopez

,

___ U.S. at

___, 115 S.Ct. at 1630. But because § 922(o)

also prohibits purely intrastate possession of machineguns, Rambo ’s

logic proves too much. The first L opez category, as earlier

described, in cluded cases that were distinguished by express

jurisdictional nexus requirements to movements or transactions in

interstate commerce. In K enney

, the court rejected the channels of

commerce rationale for § 922(o) on this basis:

. . . altho ugh it may be true that Congress

must regulate intrastate transfers and even mere possessions of machineguns in aid of its

prerogative of preventing the misuse of the

channels of interstate co mmerce, the

regulation still regulates much more than the

channels of commerce.

91 F.3d at 889.

Lopez summarily rejected the argument that banning

firearm possession in school zones regulates the chan nels of* ************* * The effect of the grandfather clause does,

paradoxically, assure a nexus between interstate commer c e and

criminal possession of pre-1986 unlawfully possessed machineguns,

because, as this court’s Lopez opinion noted, pre-1986 regulatory

l aws expressly embodied a jurisdictional nexus to commerce. See

Lopez , 2 F.3d at 1356, n.29.

37 commerce. Section 922(o) does not more clearly express a nexus to

channels of commerce than did its virtual clone, § 922(q), the

Lopez provisio n. To disregard the similarity of the provisions

trifles with Lopez

. Section 922(o) is limited neither to transfers

nor to possession in or even affecting interstate commerce. It

criminalizes, as in this case, the mere possession of a machinegun

independent of any type of transfer. This provision does not

regulate the channels of interstate commerce. Decisions like R ambo

and the panel opinion, in holding otherwise, ha ve distorted the

channels of commerce rationale and are attempting to read a statute

which does not exist.

Cases relying on the channels of commerce rationale also

misplace emphasis on the temporal limit on the possession ban and

the dangerousness of the product. Neither of these characteristics

more closely aligns § 922(o) with a regulation of the channels of

interstate commerce. The grandfather clause of the ban applies it

only to machineguns manufactured or imported after May of 1986, but

that feature fails to enhance its rel ation to interstate

commerce. *************** After 1986, both interstate and wholly

intrastate pr ivate possessions are prohibited, yet there are no

Congressional findings that this drastic impact up on intrastate

activity was connected to or mandated by a relation to the channels38

of interstate commerce. Similarly, the fact that machineguns are a

dangerous commodity does not place them more or less within the

c hannels of commerce for purposes of federal regulation. U nited

States v. Bishop

, 66 F.3d 569, 58 7 n.28 (3d Cir. 1995) (“The

dangerousness of the object is not the source of Congressional

power; the connection to interstate commerce is.”) Baseball cards

as well as toxic chemicals can be re gulated by Congress only if

there is a necessary relationship to interstate commerce. The

argument based on dangerousness is more c losely attuned to

justifying a national police power than a national commerce power.

Lopez reminded us that the Constitution does not confer a general

police power upon the federal government. L opez

,

___ U.S. at

___,

115 S.Ct. at 1634.

2. Things in Interstate Commerce

The flawed premise underlying regulating machineguns as

“things in interstate commerce” is that they are by their nature a

commodity “transferred across state lines for profit by b usiness

entities.” W ilks

, 58 F.3d at 1521 (citation omitted). We agree

again with the Seventh Circuit’s criticism of this reasoning,

b ecause “the regulation is much broader than the catego ry.”

Kenney

, 91 F.3d at 889. The second L opez/Perez category, as

previously explained, includes regulations of instrumentalities or

things

-- suc h as interstate transportation rates and safety

regulations

-- whose nexus to interstate commerce is obvious.

Thus, again to quote Kenney :

The Wilks court’s observation that “[t]he

interstate flow of machineguns ‘not only has a*************** Omnibus Crime Control and Safe Streets Act of 1968,

Pub. L. No. 90-351, 82 Stat. 197 (1968).

* ************** Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat.

1213 (1968).

39

substantial effect on interstate commerce; it

is interstate commerce,’” 58 F.3d at 1521

[(quoting United States v. Hunter

, 843 F.

Supp. 235, 249 (E.D. Mich. 1994)) (emphasis in

original)], is correct as far as it goes, but

it does not address the different question of

the propriety of § 922(o)’s regulation of

intrastate possession and transfer.

91 F.3d. at 889.

Criminal possession of a machinegun after May 19, 1986

und er § 922(o) is not dependent on or related to the movement of

the machinegun in interstate commerce, and it is not “bound up with

interstate attributes.” Wilks , 58 F.3d at 1521. Further, not all

commerce is interstate commerce, as commerce “which is completely

internal, which is carried on between man and man in a state, or

between different parts of the same state, and which does not

extend to or affect other States” is not commerce within the

meaning of the Commerce Clause. G ibbons v. Ogden

, 22 U.S. 1, 19 4

(1824). The W ilks reasoning makes the things in commerce basis of

Commerce Clause regulation limitless, contrary to its purpose.

Nor are we persuaded that § 922(o) can be upheld on the

basis of legislative findings -- eighteen years old when § 922(o)

was enacted

-- contained in the Omnibus Act *************** and the Gun

Control Act of 1968. *************** Cases such as Wilks have sought to

enhance the things in commerce rationale by describing § 922(o) as

an incremen tal development in a seamless web of federal firearm* ************** Additionally, § 1 of FOPA contains Cong ressional

findings that the rights of citizens “to keep and bear arms under

the second amendment of the United States Constitution

. . . require[s] additional legislation to correct existing firearms

statutes and enforcement policies.” FOPA § 1(b)(1)(A), 100 Stat. at

40 regulation. W ilks

, 58 F.3d at 1521-22. But as explained in detail

b y Judge Garwood’s opinion in L opez

, all previous federal gun

control laws have been expressly tied to the conduct of the

firearms business, a business whose inter- and intra-state

activitie s are clearly commercial. S ee Lopez

, 2 F.3d at 1348-57.

The Supreme Court in Lopez approved this court’s reading of the

general legislative history and pattern of previous f ederal

firearms legislation, Lopez

,

__ U.S. at

__, 115 S.Ct. at 1632, and

refused to rest on Congre ssional findings from other statutes to

justify § 922(q). Id . at __, 115 S.Ct. at 1632. Like the Supreme

Court in Lopez

, and unlike Wilks

, we find reliance on Congressional

findings from previous federal firearms legislation inappropriate

to support the § 922(o) possession ban. See Lopez , 2 F.3d at 1357

n.31.

Relia nce on findings from other legislation not only

contradicts the Supreme Court, it is a misleading indicator of the

relevant gun control law. The Congressional findings relating to

FOPA indicate that the Act’s purpose was to s ecure the rights of

citizens to possess firearms and to ensure that no “ undue or

unnecessary Federal restrictions ” are placed on citiz ens “with

respect to the acquisition, possession or use of firearms.” FOPA

§ 1(b)(2), 100 Stat. at 449 (emphasis added) ( quoting Gun Control

Act of 1968 § 101, 82 Stat. at 1213-14 (1968)). *************** Neither449.

*************** Section 922(g) was amended to provide that it would

be unlawful for certain persons (as defined by § 922(g))

- “to ship

or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammuniti on; or to receive any

firearm or ammunition which has been shipped or transported in

interstate or foreign commerce.” FOPA § 102, 100 Stat. at 452.

Section 922(h) was replaced in its entirety and states:

”It shall be unlawful for any individual, who to that individual’s

knowledge and while being employed for any person described in any

paragraph of subsection (g) of this section, in the course of such

employment

-- (1) to receive, possess, or transport any firearm or ammunition in or affecting interstate or foreign commerce; or (2)

to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Id

.

Section 922(n) was added to § 922 and provides: “It shall

be unla wful for any person who is under indictment for a crime

punishable by imprisonment for a term exceeding one year to ship or

transport in interstate or foreign commerce any firearm or

ammunition or receive any firearm or ammunition which has been

shipped or transported in interstate commerce.” Id

.

41 the language of § 922(o) nor its legislative history provides any

indication that Congress view ed the prohibition on possession of

machineguns as an essential part of a broader regulatory scheme or

that Congress considered the rela tionship between the ban on

possession of machineguns and interstate commerce.

In comparison to § 922(o), which lacks any reference to

interstate commerce, Congress specifically tied other regulations

enacted co ncurrently with § 922(o) to interstate commerce. FOPA

§ 102, 100 Stat. at 451-5 2. * ************** Two other provisions

contained in § 922 were amended and one new subsection was added to

§ 922(o). FOPA § 102, 100 Stat. at 451-53. Congress thus

maintained the “basic jurisdictional structure” found in previous

firearms legislation, which required the “licensing of all firearms* ************** Section 922(o) also does not regulate an

“instrumentality” of interstate commerce. Like § 922(q) in L opez

, § 922(o) regulates mere possession of a machinegun, regardless of

its movement in interstate commerce. S ee Lopez

,

__ U.S. at

__, 115

S.Ct. at 1630; see also Perez v. United States

, 402 U.S. 146, 150,

91 S.Ct. 1357, 1359 (1971)(aircraft are instrumentalities);

Shreveport Rate Cases

, 234 U.S. 342, 351, 34 S.Ct. 833, 836

(1914)(interstate carriers are instruments of interstate commerce).

Section 922(o) therefore fails to regulate an instrumentality of

interstate commerce.

42 dealers and manufacturers,

. . . and in all other instances

[provided] an express nexus either to interstate commerce or to the

activit y of, or dealing with, federally licensed dealers or

manufacturers. . . .” Lopez , 2 F.3d at 1354. Unlike § 922(o) and

(q), these other regulations, however, are grounded in either

Congress’ taxing powers, or are expressly tied to interstate or

foreign commerce. Id

. at 1354-57. Neither the language of § 922(o)

nor its legislative history supports a finding that the ban on

possession of machineguns regulates only machineguns connected with

i nterstate commerce. See supra part II.A. Section 922(o) stands

isolated from the rest of the FOPA because it conspicuously lacks

either a nexus to commerce or the support of findings that banning

mere intr astate possession of machineguns is essential to

effectuate federal regulation. Section 922(o) cannot be upheld as

a permissible regulation of a “thing” in interstate

commerce. ***************

B. Does § 922(o) “Substantially Affect” Interstate Commerce?

The essential question in this case as in Lopez becomes

whether § 922(o) represents a valid exercise of Congressional

authority to regulate an activity “substantially affecting”43

interstate commerce. “Where economic activity substantially affects

interstate commerce, legislation regulating that activity will be

sustained.” Lopez , __ U.S. at __, 115 S.Ct. at 1630.

The Government contends that § 922(o) has the requisite

effect, as it is part of a comprehensive approach to the regulation

of machineguns and that a single intrastate possession or transfer

of a machinegun is nationally significant because of the cumulative

e ffect such a transaction has on the supply-and-demand fo r

machineguns. In a similar vein, K enney argues that both the nature

of § 922(o) and the history of federal firearms legislation support

the provision ’s consistency with the post- L opez scope of the

Comme rce Clause. K enney first analogizes the banning of private

post-1986 machinegun possession to the farmer’s harvest of

excessive wheat in Wickard v. Filburn

, 317 U.S. at 125, 63 S.Ct. at

89, and concludes, “.

. . there is a rational basis to regulate the

local conduct of machinegun possession, including possession

resulting from home manufacture, to effectuate § 922(o)’s purpose

of freezing the number of legally possessed machineguns at 1986

levels, an effect that is closely entwined with regulat ing

interstate commerce.” 91 F.3d at 890. K enney also describes the

possession ban as rooted in a sixty-year history of federal

machinegun regulation and thus as an incremen tal step in federal

firearms regulation; it is a measure commanding “deference to

Congress’s accumulated institutional expertise.” Id

.

Among the three elements of Lopez ’s substantial effects

test, the first and most critical is that of characterization:* ************** See generally Lopez

, 2 F.3d 1342, 1348-1360 (Garwood,

J.), reciting the history of federal firearms legislation.

*************** Taking a different slant at the substantial effects

test, Judge Higginbotham’s novel approach to the test pays verbal

obeisance to Lopez while seriously undermining it. Judge

Higginbotham posits that rational basis review should lead federal

courts to uphold the possession ban based on “facts

... within our [ju dges’] easy reach.” Lacking any data from the legislative

44 whether § 922 (o) fulfills the mission of regulating interstate

commerce as (1) a regulation of economic activity which, although

itself local, has substantial effect on interstate commerce, or

(2) a regulation of activity which is essential to maintaining a

larger, interstate regime of economic regulation. Neither Kenney

nor the government in supporting § 922(o) has characterized it as

a regulation of economic activity. It is not. It is “a criminal

statute that by its terms has nothing to do with ‘commerce’ or any

sort of economic enterprise, however broadly one might define those

terms.” Lopez ,___ U.S. at ___, 115 S.Ct. at 1630-31.

Defenders of § 922(o) argue instead that the possession

ban is an essential par t of the regulation of “commercial

act ivity,” either to insure federal control of the market for

machineguns or to enforce a freeze on the number of available

machineguns. S ee, e.g. Beuckelaere

, 91 F.3d at 785; Kenney

, 91

F.3d at 890. No doubt Congress has undertaken fully to regulate

the business of firearms dealing, insofar as sales and transfers in

or affecting commerce are concerned. *************** But as we have

repeatedly noted, mere intrastate possession of a machinegun does

not necessarily involve a transfer or an economic transaction of

any kind. ***************process, his opinion stitches together bits of news articles,

statistics, and Congressional testimony from unrelated hearings to

conclude that Congress might have banned machinegun possession to

stem the illegal drug trade. His is an interesting empirical

creation, but methodologically it follows Justice Breyer’s dissent

in Lopez

. More troubling, Judge Higginbotham’s opinion begs the

question: it never explains why banning the wholly intrastate,

non-crime-related, noncommercial personal possession of a machinegun is reasonably or substantially necessary to control use of these firearms in the illegal drug trade or other interstate

commerce. Unlike the L opez majority, his opinion ultimately

substitutes wholesa le deference to Congress for any attempt to

define the boundaries of the commerce clause, even in noncommercial

criminal statutes like § 922(o).

* ************** Not all transfers are comm ercial in nature.

Transfers by gift or by succession would not be.

45 Moreover, the analogy to Wickard is flawed. In W ickard

,

the government’s agricultural program aimed to control and support

p rices in the wheat market. Filburn’s consumption of home-grown

wheat substituted for the controlled wheat, impairing to that

extent the price support effort. Section 922(o), by contrast,

intends to extirpate any domestic commercial market for machineguns

manufactured or imported after 1986. Even if this goal constitutes

a legitimate regulation of interstate commerce, it does not follow

that criminalizing purely private, intrastate possession is

necessary to eliminate the market. Section 922(o) also prohibits

transfers of machineguns and, to the extent it represents a

permissible exercise of Commerce Clause power, *************** that

prohibition aims directly and completely at commercial activity in

machineguns. Private possession of a machinegun does not involve

a market activity , and there is no legitimate market in which a

substitution effect would occur.* ************** See United States v. Genao

, 79 F.3d 1333 (2d Cir.

1996) (upholding 21 U.S.C. §§ 841, 846); United States v. Leshuk

, 65 F.3d 1105 (4th Cir. 1995) (21 U.S.C. § 841(a)(1)); United States

v. Clark

, 67 F.3d 1154 (5th Cir. 1995) (upholding 21 U.S.C. § 860),

cert. denied

,

___ U.S.

___, 116 S.Ct. 1432, 134 L.Ed.2d 554 (1996);

United States v. Tucker

, 90 F.3d 1135 (6th Cir. 1996) (same);

United States v. Bell

, 90 F.3d 318 (8th Cir . 1996) (upholding 21

U.S.C. § 841(a)(1)); United States v. Brown , 72 F.3d 96 (8th Cir.

1995) (same); United States v. Yoon , No. 95-16698, 1996 WL 367621

(9th Cir. June 28, 1996) (unpublished p er curiam) (upholding 21

U.S.C. § 841(a)(1)); United States v. Wacker

, 72 F.3d 1453 (10th

Cir. 1995) (upholding 21 U.S.C. §§ 841(a)(1), 846); United States

v. Kremetis , 903 F. Supp. 250 (D.N.H. 1995) (same); United States

v. Smith, 920 F. Supp. 245 (D.Me. 1996) (upholding 21 U.S.C.

§§ 841(a)(1)-(2), 846); United States v. Salmiento

, 898 F. Supp. 45

(D.P.R. 1995) (upholding 21 U.S.C. § 860); United States v.

Gonzalez

, 893 F. Supp. 935 (S.D. Cal. 1995) (upholding 21 U.S.C.

§ 841(a)(1)); United States v. Garcia-Salazar

, 891 F. Supp. 568 (D.

Kan. 1995) (upholding 21 U.S.C. § 860); United States v. Murillo

, No. CR 93-20131 JW, 1995 WL 621797 (N.D. Cal. 1995) (upholding 21

U.S.C. §§ 841(a), 843(b), 846); United States v. Grafton , 1995 WL

506001 (N.D. Ga. 1995) (upholding 21 U.S.C. §§ 841, 846); United

States v. Walker

, 910 F. Supp. 837 (N.D.N.Y. 1995) (upholding 21

U.S.C. §§ 841, 846, 848); U nited States v. Bramble

, 894 F. Su pp. 1384 (D. Haw. 1995) (upholding 21 U.S.C. §§ 841(a)(1), 844(a)).

46 Another w ay of explaining the superfluousness of the

§ 922(o) ban on possession is to compare firearms regulation to the

narcotics trafficking laws. Not only are most of those criminal

provisions also expressly tied to the commerce in illegal

controlled substances, but Congress also made extensive findings to

establish the necessary relationship of possession and intrastate

trade to the overall scheme. See, e.g., United States v. Leshuk

,

65 F.3d 1105, 1112 (4th Cir. 1995); Lopez

, 2 F.3d at 1367, n.51;

United States v. Lopez

, 459 F.2d 949, 951-53 (5th Cir.), cert.

denied sub nom. Llerena v. United States

, 409 U.S. 878, 93 S. Ct.

130 (1972). *************** The nature of controlled substances supports

Congress’s findings: they are fungible, and their intrastate,

interstate or imported origin is often impossible to discern.* ************** We are not at liberty to question the Supreme Court’s

approval of the predecessor statute to 18 U.S.C. § 922(g)(1), which

criminalizes possession of a firearm by a felon “in or affecting

47 Firearms, including machineguns, are identifiable and traceable.

Banning private, intrasta te machinegun possession is not an

essential link in the chain of federal r egulation of firearms

dealing.

Kenney also asserts that because Congress has

historically regulated firearms and has evinced particular interest

in regulating machineguns, its “accumulated institutional

expertise” justifies § 922(o). This argument might be called “the

nose under the camel’s tent” theory of Commerce Clause power: once

Congress has begun to regulate a particular activity, courts should

defer to any extensions of regulation that Congress legisl ates.

Surely this position renders any theoretical limit on the

enumerated Commerce Clause power nugatory.

Because we have concluded that mere intrastate possession

is neither an economic activity nor an intrastate activity whose

regulation is essential to a larger commercial regulatory regime,

§ 922(o) cannot pass muster under the L opez substantial effects

test. Reinforcing this conclusion, although not necessary to it,

are the results of the other two parts of the test, which deal with

Congressional findings and the limits on federal authority.

If Congress had made findings explaining the connection

of mere intrastate possession of machineguns to interstate

commerce, or if there were an expressly required nexus between such

possessio n and commerce, * ************** § 922(o) might be vindicatedcommerce.” Only a minimal jurisdictional nexus is required, i.e.

that at some time the firearm had travelled in interstate commerce.

Scarborough v. United States

, 431 U.S. 563, 575, 97 S.Ct. 1963,

1969 (1 977). As this broad reading of the Commerce Clause has

Supreme Court inprimatur, albeit pre- L opez

, we can only note the

tension between the two decisions and will continue to enforce

§ 922(g)(1). S ee United States v. Rawls

, 85 F.3d 240, 243 (5th

Cir. 1996) (Garwood, J., specially concurring).

48 under the second Lopez prong. These features are lacking.

Whatever the effect a single intrastate possession of a machinegun

has on economic activity in firearms, the text and legislative

history of § 922(o) do not support any conclusion that Congress

considered such effects or viewed § 922(o) as part of a

comprehensiv e approach to federal regulation of commerce in

machineguns. As discussed previously, § 922(o) was inserted into

FOPA with virtually no discussion of its content and with

absolutely no discussion of its place in the broad scheme of

federal firearms regulations. S ee supra part II.A. Like § 922(q)

found unconstitutional in Lopez , no Congressional findings attest

that § 922(o) is “an esse ntial part of a larger regulation of

economic activity, in which the regulatory scheme could be undercut

unless the intrastate activity were regulated.” Lopez , __ U.S. at

__, 115 S.Ct. at 1631. No studies, testimony or evidence of any

other sort

-- Congressional or otherwise

-- is adduced in favor of

§ 922(o). Nor does § 922(o) contain a “jurisdictional element

which would ensure, through case-by-case inquiry, that the firearm

possession in question affects interstate commerce.” Id

. at

__, 115

S.Ct. at 1631. To infer in the face of this void that regulation

of intrast a te possession is essential to effectively regulate49

interstate traffic in machineguns states a naked conclusion, a fiat

without supporting facts. Congress has not helped us to discern a

connection between the possession ban and interstate commerce which

is otherwise invisible to the naked eye. Lopez , ___ U.S. at ___,

115 S.Ct. at 1632.

Finally, like § 922(q), § 922(o) intrudes upon the

traditional police powers of the states and violates Lopez ’s third

mandate for a substantial-effects regulation of intrastate activity

because it affords no logical demarcation between the national and

local interests. B recht v. Abrahamson

, 507 U.S. 619, 635, 113

S.Ct. 1710, 1720 (1993)(states have primary authority for defining

and enforcing criminal law); see Lopez

,

__ U.S. at

__, 115 S.Ct. at

1631 n.3; Bass

, 404 U.S. at 349-50, 92 S. Ct. at 523-24. Section

922(o) would punish a local resident for the mere possession of a

machinegun acquired after 1986 with “no requirement t hat his

possession of the [machinegun] have any concrete tie to interstate

commerce.” Lopez

,

__ U.S. at

__, 115 S.Ct. at 1634. The Supreme

Court avoided such a result in Bass

. Bass , 404 U.S. at 349-50, 92

S.Ct. at 523-24. To uphold § 922(o), a purely criminal law, with

no nexus to interstate commerce, whos e enforcement intrudes upon

traditional police powers of the states, would convert the commerce

power into a reserved “general federal police power.” I d

. at 1632-

33; see also id. at

__, 115 S.Ct. at 1638 (Kennedy, J.,

concurring)(“Were the Fede ral Government to take over the

regulation of entire areas of traditional state concern, areas

having nothing to do with the regulation of commercial activities,50

the boundaries between the spheres of federal and state authority

would blur and political responsibility would become illusory.”).

The rationale that Congress can, on a blank slate, criminalize

possession under the interstate Commerce Clause in order to

regulate “the demand side of the market” can be applied to the

possession of anything. Following L opez

, § 922(o) cannot be upheld

as a regulation which substantially affects interstate commerce.

CONCLUSION

Re gardless of one’s view of the wisdom of banning the

private possession of machineguns, the question before this court

is whether the Commerce Clause grants Congress the authority to ban

private, intrastate possession of a machinegun with no showing that

the prohibition is connected in any way to interstate commerce or

is part of a broader federal regulatory scheme. Congress’s commerce

powers are broad, reaching even Roscoe Filburn’s wheat field in

Ohio. Wickard v. Filburn

, 317 U.S. 111, 63 S.Ct. 82 (1942). L opez

,

however, closely controls this case. L opez does not permit

Congress, acting pursuant to the Commerce Clause, to criminalize

the mere intrastate possession of machineguns without some

indication that the possession ban is necessary to the regulation

of, or has some other substantial tie to, interstate commerce.

Section 922(o)’s ban on the mere possession of a machinegun exceeds

Congress’s authority under the Commerce Clause.