TAKING COMMERCE SERIOUSLY.

United States v. Stewart, No. 02-10318 (9th Cir., 11/13/03) (Kozinski, J)

1. There are three categories of activity that Congress can regulate under its commerce power: (1) “the use of the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and (3) “those activities having a substantial relation to interstate commerce.” United States v. Lopez, 514 U.S. 549, 558-59 (1995). In United States v. Rambo, 74 F.3d 948 (9th Cir. 1996), we held that section 922(o) was “a regulation of the use of the channels of interstate commerce” because “there can be ‘no unlawful possession under section 922(o) without an unlawful transfer.’ ” Id. at 952 (quoting United States v. Kirk, 70 F.3d 791, 796 (5th Cir. 1995)). We elaborated that, “ ‘[i]n effect, the ban on such possession is an attempt to control the interstate market for machineguns by creating criminal liability for those who would constitute the demand-side of the market, i.e., those who would facilitate illegal transfer out of the desire to acquire mere possession.’ ” Id. (quoting Kirk, 70 F.3d at 796). Rambo thus held section 922(o) was a valid exercise of the commerce power because a transfer or sale must have preceded the criminalized possession. . . .

The district court ruled against Stewart’s Commerce Clause argument, reasoning that “the parts, at least, moved in interstate commerce.” Id. at 626. Indeed, some of the machinegun parts did move in interstate commerce. At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless. As Lopez reminds us, Congress’s power has limits, and we must be mindful of those limits so as not to “ ‘obliterate the distinction between what is national and what is local and create a completely centralized government.’ ” Lopez, 514 U.S. at 557 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)). Our sister circuits have also recognized that section 922(o) must have certain implicit limits, noting that, “because § 922(o) has no jurisdictional element, it has the potential to criminalize the possession of such guns that have never traveled in interstate commerce.” United States v. Wright, 117 F.3d 1265, 1270 (11th Cir. 1997), vacated in irrelevant part by 133 F.3d 1412 (11th Cir. 1998). The difficult question is where to draw the line between a regulated object and the matter from which that object was created.

In theory, the federal government is a limited government, with only those powers specifically granted to it by the people in the Constitution. The broadest of those powers is the power to regulate interstate commerce. The commerce clause has become the grant of last resort, justifying federal legislation of the smallest facet of our lives.

Consider, for example, the United States' prosecution of Robert Stewart. Stewart was charged with possession of a machine gun he had made himself out of some parts that he bought legally and some parts that he made. Congress had outlawed the transfer or possession of such a gun without a license that Stewart did not have and, as a convicted felon, would probably not have gotten. The Ninth Circuit held that possessing a such a gun, without having bought it, does not have a sufficient nexus with interstate commerce so as to allow the federal government to punish Stewart.

If Stewart had sold the gun he made, he would have been punishable by the federal government for the transfer and the person to whom he sold it would have been punishable for possession alone. If Stewart had simply bought the parts and assembled them, he could have been convicted. The state government can prosecute him for mere possession, if it has made the possession of machine guns illegal, without any worry about the Second Amendment because, as the Ninth Circuit emphasized, in upholding Stewart's conviction on another charge, "the Second Amendment 'was not adopted in order to afford rights to individuals with respect to private gun ownership or possession.' Silveira v. Lockyer, 312 F.3d 1052, 1087 (9th Cir. 2002). Thus, there is no Second Amendment limitation on [federal or state] 'legislation regulating or prohibiting the possession or use of firearms.' Id." And yet the right is going to celebrate this decision as a great victory for freedom.

The right will celebrate for two reasons. First, because the case involves machine guns. Our right to bear arms has been so beaten down and the entire issue has become such a wedge between blue and red America that anything appearing to be a victory for gun rights looks like a victory for the right. But Stewart was still convicted of a felony, the actual limitation here was minuscule (no one without access to a machine shop can even conceivably benefit) and no orgy of machine gun ownership is about to sweep the country. By denying that the Second Amendment secures a personal right, a position at odds with the current trend in the law, the Ninth Circuit has, if anything, set back gun rights. On the whole, this decision is more likely to further the cause of child pornographers than gun owners.

The second reason the right will celebrate is that the Ninth Circuit has recognized limits on the power of the federal government to regulate everything under the sun by making some vague reference to the commerce clause. There is something more to this second celebration than to the first, limits on the federal government always being welcome, but the meager nature of this victory, too, serves to highlight the extent to which Congressional power has carried the day.

In particular, having made a gun without implicating interstate commerce, it seems to me that the mere sale of that gun, if it takes place entirely within a state, cannot trigger the commerce clause. But the Ninth's holding to the contrary clearly is correct under the case law. Wickard v. Filburn, 317 U.S. 111 (1942), relied upon by the Ninth Circuit, held that the commerce clause gives Congress the power to forbid homeowners from growing their own wheat in their own backyard in order to prevent them from "saving money that would otherwise have been spent in the open market." (By the way, this is one of the reasons the left is correct, by its own lights, to oppose Judge Brown's nomination to the court. Wickard style regulation is fundamental to the modern regulatory state and Judge Brown's positions suggest that she would be particularly hostile to an expansive reading of the commerce clause.)

The question of the proper scope of the commerce clause implicates, as it happens, one of the great internal debates in modern conservatism: Is federalism dead? If it weren't for the war, this question might already have led to a schism, as the Bush administration seems to have concluded that federalism is dead and Republicans now control a national goverment. Compassionate conservatism is, in many ways, a euphamism for national conservatism and comes close to the liberal understanding of our government, which is that if something can be done by the national government to alleviate a problem, then it must be done. President Bush's goals are conservative goals, broadly defined, but his tools are liberal tools. This is one reason that the libertarian wing of Republican voters are more restive under Bush than they were under Reagan.

If we take a positive, rather than normative, look around, it becomes clear that federalism is, if not dead, than in a persistent vegetative state. The "federal" government permeates every aspect of our lives and the federal constitution is now more of a limit on state power than federal. Perhaps as a result, no one, including state politicians, takes state government seriously as a sovereign power seperate from the federal government. Most Americans would be astonished to learn that the states have any claim to be anything other than départements of the national state.

The only people left who take federalism seriously are constitutional conservatives and libertarians, although the constitutionalists like the theory of federalism while the libertarians like the effects. But it is expecting too much of politicians to think that they won't act in the ways that voters expect them to act. The era of limited government is over. Small offerings like Stewart are the homage that practice pays to theory.

Posted by David Cohen at November 14, 2003 11:24 AM