1 This issue was the subject of our rehearing en banc in

United States v. Kirk

, 70 F.3d 791, (5th Cir. 1 995), vacated , 78

F.3d 169, aff’d en banc by an equally divided court , 105 F.3d 997

(5th Cir. 1997).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-10768

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEVEN SCOTT KNUTSON,

Defendant-Appellant.

Appeal from the United States District Court

For the Northern District of Texas

( , 1997)

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:

In this appeal we must revisit the question whether Congress’s

enactment of 18 U.S.C. § 922(o), criminalizing the transfer or

possession of a machinegun that was not already lawfully possessed

before May 19, 1986, exceeds the limit of its power under the

Commerce Clause. 1 Every other circuit that has considered this

issue has upheld § 922(o) as a rational exer cise of that power,2 S ee United States v. Rybar

, 10 3 F.3d 273 (3d Cir.

1996)(upholding § 922(o) under the third of three pos sible

categorie s of activity that Congress may regulate under the

Commerce Clause, as a regulation of activities having a substantial

effect on interstate commerce); United States v. Kenney

, 91 F.3d

884 (7th Cir. 1996)(upholding § 922(o) under the third category, as

a regulation of activities having a substantial effect on

interstate commerce); United States v. Beuckelaere

, 91 F.3d 781

(6th Cir. 1996)(upholding § 922(o) under all three L opez categories); United States v. Rambo

, 74 F.3d 948 (9th

Cir.)(upholding § 922(o) under the first category, as a regulation

of channels of intersta te commerce), c ert. denied

, 117 S.Ct. 72,

136 L.Ed.2d 32 (1996); United States v. Wilks , 58 F.3d 1518 (10th

Cir. 1995)(upholding § 922(o) under the second category, as a

regulation of a thing in interstate commerce).

3 A “machinegun” is defined in 26 U.S.C. § 5845(b) 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.” S ee 18 U.S.C.

§ 921(a)(23).

4 Congress passed § 922(o) as part of the Firearms Owners’

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

2 albeit for differing reasons. 2 Today, we join those circuits in

affirming the constitutionality of § 922(o).

I

FACTS AND PROCEEDINGS

Appellant Steven Scott Knutson was arrested on July 28, 1995,

and charged with possessing a loaded .45 caliber Spitfire assault

rifle, serial number 3023, a firearm that is classified as a

machinegun for purposes of 26 U.S.C. § 5845(b). 3 Knutson did not

possess the machinegun under the authority of the United States

government or of any state governmental department, agenc y, or

political subdivision; neither did he possess the machinegun

lawfully prior to the effective date of § 922(o), May 19, 1986.

Knutson was indicted on one count of unlawful possession of a

m achinegun in violation of § 922(o). 4 Before entering his guiltywhich amended the Gun Control Act of 1968, 18 U.S.C. §§ 921-28.

Section 922(o) provides, in relevant part:

(o)(1) Except as provided in paragraph (2), it shall be

unlawful for any person to transfer or poss ess a machinegun.

(2) This subsection does not apply with respect to--

* * * * * *

(B) any lawful transfer or lawful possession of a

machinegun that w as lawfully possessed before the date

this subsection takes effect.

5 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

6 S ee Neil v. Bigge rs , 409 U.S. 188, 192, 93 S.Ct. 375, 34

L.Ed.2d 401 (1972); Henderson v. Fort Worth Indep. Sch. Dist.

, 584

F.2d 115, 116 (5th Cir. 1978)(en banc), cert. denied

, 441 U.S. 906,

99 S.Ct. 1996, 60 L.Ed.2d 375 (1979).

3 ple a, Knutson filed a motion to dismiss the indictment, arguing

that § 922(o) is unconstitutional in light of the Supreme Court’s

decision in United States v . Lopez

. 5 After the district court

denied the motion, Knutson entered a conditional guilty plea,

reserving the right to appeal the district court’s ruling. This

appeal followed.

Both Knutson and the go vernment filed summary appellate

briefs, anticipating that the outcome of our en banc consideration

of this issue in United States v. Kirk would be dispositive for

purposes of the instant appeal. Instead, K irk resulted in an

affirmance by an equally divided en banc court and has no

precedential value, 6 so we must consider anew the i ssue of

§ 922(o)’s constitutionality.

II

ANALYSIS

A. S TANDARD OF R EVIEW

In Lopez , the Supreme Court affirmed our conclusion that the7 18 U.S.C. § 922(q). Section 922(q) made it 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.”

8 S ee Lopez

, 115 S.Ct. at 1634 (“Admittedly, some of our

prior cases have taken long steps down that road, giving great

deference to congressi onal action. The broad language in these

opinions has suggested the possibility of additional expansion, but

we decline here to proceed any further.”).

9 Id. at 1629.

4 Gun Free School Zones Act of 1990, 18 U.S.C . § 922(q), 7 was

unconstitutional because it regulated conduct falling outside the

scope of the Commerce Clause. In doing so, the Court identified an

outer limit to congressional authority under the Commerce Clause;

nevertheless, the Court did not purport to eliminate or erode wellestablished Commerce Clause precedents. 8 In particular, the Court

made clear that f ederal Commerce Clause legislation continues to

merit a high degree of judicial deference, and that courts

considering the constitutionality of such legislation should apply

only “rational basis” review. 9 Accordingly, we must limit our

inquiry to a determination whether Congress c ould have had a

rational basis to conclude that its enactment of § 922(o) was a

valid exercise of its commerce power.

As the result in Lopez demonstrates, however, deference is not

acquiescence; this court has the obligation to review the facts and

circumstances of each case and determine the constitutionality of

each statute brought before us for review. The question for us to

de cide today is whether Congress could rationally conclude that

§ 922(o) effectively regulates interstate trafficking in10 Id. at 1629-30.

11 Id. at 1629.

12 Id. at 1634.

13 Id. at 1632.

5 machineguns or otherwise regulates conduct that substantially

affects interstate commerce.

B. B ACKGROUND : THE L OPEZ D ECISION

The Lopez Court described three categories of ac tivity that

Congress may regulate under the Commerce Clause: (1) the use of

the channels of interstate commerce; (2) “the instrumentalities of

interstate commerce, even though the threat may come only from

intrastate activities”; and (3) activities wh ich have “a

substantial relat ion to interstate commerce ... i.e., those

activities that substantially affect interstate commerce.” 10

As the fi rst two categories did not apply to § 922(q), the

Lopez Court analyzed that statute under the third category to

determ ine whether “a rational basis existed for concluding that

[the] regulated activity sufficiently affected interstate

commerce.” 11 The Court ultimately concluded that § 922(q) failed

to satisfy the third category. First, the Court noted that

“possession of a gun in a local schoo l zone is in no sense an

economic activity that might, through repetition elsewhere,

substantially affect any sort of interstate commerce.” 12 Moreover,

Congress failed to include congressional findings that might have

enabled t he Court “to evaluate the legislative judgment that the

activity in question substantially affected interstate commerce.” 1314 Id. at 1632.

1 5 The interstate flow of machineguns “not only has a

substantial ef fect on interstate commerce; it is interstate

commerce.” U nited States v. Hunter

, 843 F.Supp. 235, 249 (E.D.

Mich. 1994). Moreover, as § 922(o) prohibits the possession or

transfer only of machin eguns not lawfully possessed prior to May

1 9, 1996, it is clear that Congress’s intent was focused on

prohibiting the introduction into the stream of interstate commerce machineguns manufactured, imported, or otherwise illegally

obtained, after the effective date of the Act. S ee Wilks

, 58 F.3d

at 1522(quoting United States v. Hunter

, 843 F.Supp. 235, 249 (E.D.

Mich. 1994))(“Although not explicitly stated in the language of the

statute itself, it is evident that Congress prohibited the transfer

and possession of most post-1986 machineguns not merely to ban

these firearms, but rather, to control their interstate movement by

proscribing transfer or possession.”).

16 Wilks , 58 F.3d at 1521.

6 Thus, absent congressional findings to demonstrate a rational basis

when none was “visible to the naked eye,” 14 the Court held that the

statute was unconstitutional.

C. S ECTION 922( O )

In contrast to § 922(q), much of the conduct covered by

§ 922(o) fits comfortably within Constitutional bounds under either

of the first two Lopez categories, as the vast majority of

machinegun possessions constitute the culminating step in

interstate commercial transactions. 15 ”As such, § 922(o) represents

Congressional regulation of an it em bound up with interstate

attributes and thus differs in substantial respect from legislation

concerning possession of a firea rm within a purely local school

zone.” 16

We are not unmindful that the statute is worded in terms broad

enough to support a conviction

-- at least theoretically, if not

practically

-- in rare yet conceivable instances of pu rely non-1 7 S ee, e.g.

, Kirk , 70 F.3d at 796 (“In this context, the

limited ban on possession of machineguns must be seen as a

necessary and proper measure meant to allow law enforcement to

detect illegal transfers where the banned commod ity has come to

rest: in the receiver’s possession. In effect, the ban on such

possession is an attempt to control the interstate mark et for

machineguns by creating criminal liability for those who would

constitute the demand-side of the market, i.e., those who would

facilitate illegal tra nsfer out of the desire to acquire mere

possession.”).

7 commercial intrastate possession. In fact, those who believe

§ 920(o) is unconstitutional focus their attention exclusively on

such instances of “mere” possession. Even crediting that some

machineguns may be “homemade” and are therefore not the object of

a commercial transaction, it would be myopic to view possession in

a vacuum. 17 Rather than wallow in that debate, however, we choose

the path of least resistance and go directly to the third L opez

category to determine whether a ll transfers and possessions of

machineguns, including those that might conceivably be

characterized as exclusively intrastate or noncommercial, could

substantially affect interstate c ommerce. We conclude that they

could indeed.

D. S UBSTANTIAL E FFECT ON I NTERSTATE C OMMERCE

It is obvious “to the naked eye” that the transfer and

possession of machineguns has a substantial effec t on interstate

commerce. For example, in R ybar

, the Third Circuit held that

§ 922(o) “can be sustained because it targets the possession of

machine guns as a demand-side measure to lessen the stimulus that

prospective acquisition would have on the commerce in machine18 103 F.3d at 283.

19 91 F.3d at 889.

20 Kirk , 105 F.3d at 1000.

21 Lopez , 115 S.Ct. at 1632.

8 guns.” 18 In Kenney , the Seventh Circuit held that “there is a

rational basis to regulate the local conduct of machine gun

possession, including possession resulting from home manufacture,

to effectuate § 922(o)’s purpose of freezing the number of legally

possessed machine guns at 1986 levels, an effect that is closely

entwined with interstate commerce.” 19 Finally, Judge Higginbotham’s

en banc opinion in Kirk

, explaining why he would uphold the

constitutionality of § 922(o), presented a forceful collection of

evidence to “support a legislative judgment that the possession of

machine guns interferes with federal drug enforcement.” 20

We need not delve into theoretical considerations, however, as

we discern convincing evidence of a substantial effect on

inters tate commerce in the extensive legislative histories that

accompanied each prior incarnation of what has been a durable line

of federal machinegun regulations. We cannot ignore those

congressional findings: Even though they were not explicitly

reiterated in support of § 922(o), they clearly subsist in the

cumulative memory of Congress. The L opez Court refused to consider

§ 922(q) in light of the legislative history from earlier firearms

legislation, for, in contrast to the statute presently under

review, § 922(q) “represent[ed] a sharp break with the longstanding

pattern of federal firearms legislation.” 21 Section 922(o), on the22 Kenney , 91 F.3d at 890-91.

2 3 H.R.Rep. No. 495, 99th Cong., 2d Sess. 1 (1986), reprinted

in 1986 U.S.C.C.A.N. 1327, 1327.

9 other hand, is but the latest manifestation of the fe deral

government’s longstanding rec ord of regulating machineguns. The

Seventh Circuit offered a succinct review of that tradition in its

opinion in Kenney :

Congress has closely regulated machine guns pursuant to

its taxation p ower since the National Firearms Act of

1934, which subjected machine guns, unlike ordinary

firearms , to federal registration and a transfer tax.

Hardy, 17 Cumb. L. Rev. at 593. The Act was the first

major federal attempt at fire arms regulation, and it

expressly targeted machin e guns, a modern weapon whose

unusual destructive power was of great appeal to

interstate organized cr ime. Id. In considering the

bills that became the Gun Control Act of 1968, Congress

found tha t federal control over firearms licensing for

dealers, even for intrastate activity, was necessary to

address the serious problems associated with interstate

trafficking in firearms generally. S.Rep. No. 1097, 90th

Cong., 2d Sess., reprinted i n 1968 U.S.C.C.A.N. 2112,

2114, 2168. In light of these findings and enactments,

the 1986 addition of § 922(o) was not novel but

incremental, merely preventing further growth in the

number of machine guns in private hands as an exercise of

the historic federal interest in the regulation of

machine guns. As such, and quite unlike § 922(q),

deference to Congress’s accumulated institutional

expertise is appropriate. 22

Congress did not alter or repudiate any of its prior findings

when it enacted § 922(o) under the Firearm Owner’s Protection Act

(FOPA). In fact, Congress specifically noted that one of the aims

of the FOPA was “to strengthen the Gun Control Act of 1968 to

enhance the ability of law enforcement to fight violent crime and

narco tics trafficking.” 2 3 Thus, when we read § 922(o) in pari

m ateriae with its legislative pedigree, we see clearly that2 4 B euckelaere

, 91 F.3d at 785 (quoting United States v. Hale

,

978 F.2d 1016 (8th Cir. 1992), ce rt. denied , 507 U.S. 997, 113

S.Ct. 1614, 123 L.Ed.2d 174 (1993)).

10 Congress views “the availability of machineguns, violent crime, and

narcotics traffick ing” 2 4 as parts of one larger problem. Even if

we were to disagree with that assessment, we cannot say that

Congress could not have had a rational basis for its conclusion.

III

CONCLUSION

We hold that Congress could have had a rational basis for

concluding that § 922(o) regulates conduct that has a substantial

effect o n interstate commerce, and that § 922(o) is not

unconstitutional. Therefore, we need not consider whether the

statute would be constitutional under either of the other two Lopez

categories. As such, Knutson’s conviction for unlawfully

possessing a machinegun in violation of § 922(o) is

AFFIRMED.