Cite as Navegar, Inc., v. U.S. - F.Supp.2d - (D.D.C. 1998)

                     UNITED STATES DISTRICT COURT 
                     FOR THE DISTRICT OF COLUMBIA

NAVEGAR, INC., et al.,          )
                                )
                Plaintiffs,     )                          
                                )
           v.                   )     
                                )
UNITED STATES OF AMERICA,       )     Civil No. 95-550 (RCL)
                                )
               Defendant.       )
                                )

                          MEMORANDUM OPINION

      This matter comes before the court on defendant's and
plaintiffs' cross-motions for summary judgment on the issue of
the constitutionality of certain provisions of the Violent Crime
Control and Law Enforcement Act of 1994.  Rule 56(c) of the
Federal Rules of Civil Procedure provides that "summary judgment
shall be rendered forthwith if . . . there is no genuine issue as
to any material fact and that the moving party is entitled to a
judgment as a matter of law."  Fed. R. Civ. P. 56(c).  See also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).  Upon
consideration of the submissions of the parties and the relevant
law, plaintiffs' motion for summary judgment is denied and
defendant's motion for summary judgment is granted.

.     Factual and Procedural History

      On March 3, 1995, federally licensed firearm manufacturers
Navegar, Inc. ("Intratec") and Penn Arms, Inc. ("Penn Arms")
filed a complaint in this court seeking a declaratory judgment
that certain provisions of the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-327, 108 Stat. 1796
("the Act"), were outside of Congress's enumerated powers,
unconstitutional bills of attainder, and vague in violation of
the Due Process Clause of the Fifth Amendment to the United
States Constitution.  The facts leading up to plaintiffs'
challenges to the Act are fully set forth in Navegar, Inc. v.
United States, 914 F. Supp. 632, 633-35 (D.D.C. 1996).  

      The government filed a motion for summary judgment asserting
that plaintiffs' pre-enforcement constitutional challenge to
certain provisions of the Act did not constitute a justiciable
controversy under Article III as plaintiffs failed to demonstrate
a genuine threat of prosecution.  Upon consideration of the
arguments presented, this court granted the government's motion
and dismissed plaintiffs' case.  Id. at 637.

      Plaintiffs appealed the decision of this court to the Court
of Appeals for the District of Columbia Circuit.  Navegar, Inc.
v. United States, 103 F.3d 994 (D.C. Cir. 1997).  The Court of
Appeals first considered the justiciability of the plaintiffs'
challenges to the sections of the Act specifically mentioning
firearms produced by Intratec and Penn Arms by name.  By its
terms, the Act makes it unlawful for a person to "manufacture,
transfer, or possess a semiautomatic assault weapon."  18 U.S.C.
section 922(v)(1).  "Semiautomatic assault weapon" is defined to
include "any of the firearms, or copies or duplicates of the
firearms in any caliber, known as . . . INTRATECTEC-9, TEC-DC9
and TEC-22, and . . . revolving cylinder shotguns, such as (or
similar to) the Street Sweeper and Striker 12."  Id. section
921(a)(30)(A).  In effect, these portions of the Act make it
unlawful to manufacture or transfer Intratec's "TEC-9," "TEC-
DC9," and "TEC-22" models, and Penn Arms' "Striker 12" model. 
Id. sections 922(v)(1), 921(a)(30)(A)(viii) & (A)(ix).  Because
of the weapon-specific nature of these sections, the Court of
Appeals considered plaintiffs' challenges to these provisions
separately from the challenges based on the generally worded
provisions of the Act.

      The Court of Appeals reversed this court's conclusion
dismissing plaintiffs' pre-enforcement challenge to these
provisions of the Act for lack of a justiciable controversy. 
Navegar, 103 F.3d at 999-1001.  The Court of Appeals noted that
the Act effectively singles out both Intratec and Penn Arms as
intended targets by prohibiting the production of weapons that
only these companies manufacture.  The Court of Appeals commented
that "the applicability of the statute to appellants' business
[is] indisputable: if these provisions of the statute are
enforced at all, they will be enforced against these appellants
for continuing to manufacture and sell the specified weapons." 
Id. at 1000.  For this reason, the Court of Appeals determined
that the imminent threat of prosecution could be deemed
speculative only if it was likely that the government would
simply decline to enforce these provisions of the Acta
conclusion that the Court of Appeals was unwilling to reach.    
As such, plaintiffs demonstrated an imminent threat of
prosecution under this portion of the Act and the controversy was
ripe for adjudication.  Thus, the Court of Appeals was satisfied
that the controversy was justiciable.

      A contrary conclusion was reached by the Court of Appeals
with respect to plaintiffs' pre-enforcement challenges to those
portions of the Act identifying prohibited materials by general
characteristics only.  Plaintiffs sought to challenge the
constitutionality of other portions of the Act referring to
weapons and accessories sharing certain features, rather than to
particular brands and models of weapons.  Specifically,
plaintiffs alleged that the Act exceeded the powers of Congress
enumerated in the Constitution and that the Act was too vague to
comply with the Due Process Clause of the Fifth Amendment to the
Constitution.  The enumerated powers claim presented by
plaintiffs challenged the portion of the Act outlawing "large
capacity ammunition feeding devices," defined as ammunition
magazines "that ha[ve] a capacity of . . . more than 10 rounds of
ammunition."  18 U.S.C. sections 922(w)(1) and 921(a)(31). 
Plaintiffs' vagueness claims were centered on the portions of the
Act that prohibited firearms "known as . . . revolving cylinder
shotguns,"  18 U.S.C. section 921(a)(30)(A)(ix), and
semiautomatic pistols that have two out of five listed
characteristics.  18 U.S.C. section 921(a)(30)(C).  

      The Court of Appeals agreed with this court's conclusion
that plaintiffs were unable to show an imminent threat of
prosecution under the portions of the Act describing the outlawed
items in general categorical terms and thus, the challenges to
these portions of the Act were determined to be non-justiciable
at that time.  Navegar, 103 F.3d at 1001-02.  

      Upon remand to this court, plaintiffs sought leave to amend
their complaint in an effort to demonstrate their challenges to
the generic portions of the Act were justiciable in light of the
Court of Appeals' prior decision in this case.  After considering
plaintiffs' motion to amend their complaint, this court concluded
that the information contained in plaintiffs' Proposed Second
Amended Complaint failed to establish that plaintiffs would have
standing to assert a pre-enforcement challenge to the
constitutionality of the generic portions of the Act.  This court
further held that plaintiffs failed to make any showing that they
faced a greater or more imminent threat of prosecution than did
other manufacturers of the products covered by the terms of the
Act.  

      Because this court denied plaintiffs' motion to amend their
complaint, plaintiffs' pre-enforcement constitutional challenge
to the generic provisions of the Act identifying prohibited
materials by characteristics only remained dismissed.  Plaintiffs
and the government have since filed cross-motions for summary
judgment on the remaining constitutional challenges to the
weapon-specific portions of the Act.

II.   The Violent Crime Control and Law Enforcement Act of 1994

      The Gun Control Act of 1968, as amended, 18 U.S.C. sections
921-30 ("GCA"), imposes a comprehensive regulatory scheme on the
manufacture and distribution of firearms.  On September 13, 1994,
Congress passed the Violent Crime Control and Law Enforcement Act
of 1994, which amends section 922 of Title 18, United States
Code, and makes it unlawful to  "manufacture, transfer, and
possess a semiautomatic assault weapon."  18 U.S.C. section
922(v)(1).  The Act is to be in effect for a period of ten years
from the date of its enactment in 1994 and effectively maintains
the number of legal assault weapons in private hands at the 1994
level.

      The term "semiautomatic assault weapon" is defined as any of
the firearms known by nine categories of specified brand names or
model numbers,[footnote 1] including "any of the firearms, or
copies or duplicates of the firearms in any caliber, known as . .
. INTRATEC TEC-9, TEC-DC9 and TEC-22; and revolving cylinder
shotguns, such as (or similar to) the Street Sweeper and Striker
12."  Id. section 922(a)(30)(A).  Another section of the Act
defines prohibited firearms by generic features, including
semiautomatic rifles that have "an ability to accept a detachable
magazine" and have at least two of five other specified
characteristics.  Id. section 921(a)(30)(C). 

      In section 922(w)(1) of the Act, the transfer or possession
of any "large capacity ammunition feeding device" is outlawed for
a period of ten years.  Section 921(a)(31)(A) defines such
devices to include ammunition magazines manufactured after the
date of the enactment of the Act, which can hold more than ten
rounds of ammunition.[footnote 2]  Id. sections 922(w)(1),
921(a)(31).

      The Act contains various exceptions to the general
prohibitions.  The Act provides exemptions for the transfer of
the proscribed assault weapons to government agencies and law
enforcement officers, Id. section 922(v)(4) & (w)(3), and for
export of the weapons under certain conditions.  The Act also
contains a "grandfather" provision that permits the possession or
transfer of semiautomatic weapons and large capacity ammunition
feeding devices that were lawfully possessed on the date of
enactment of the Act.  Id. section 922(v)(2) & 922(w)(2). 
Persons convicted of knowingly violating these provisions are
subject to fines and prison sentences of up to five years.  Id.
section 924(a)(1).

      Because plaintiffs contend that neither the Act's language
nor its legislative history offers a clear explanation of its
nexus between the banning of assault weapons and interstate
commerce, plaintiffs submit that the Act exceeds Congress's
enumerated powers as set forth in Article I of the Constitution. 
Plaintiffs also assert that the weapon-specific nature of the Act
demonstrates that the Act is an unconstitutional Bill of
Attainder.

III. Whether section 922(v)(1) Constitutes a Valid Exercise of        
      Congress's Legislative Authority Pursuant to the Commerce       
Clause

      The Constitution vests in Congress the power "[t]o regulate
Commerce with foreign Nations, and among the several States, and
with the Indian Tribes."  U.S. Const., Art. I, section 8, cl. 3. 
The Commerce Clause is a grant of plenary authority to Congress. 
See Hodel v. Virginia Mining and Reclamation Ass'n, Inc., 452
U.S. 264, 276 (1981); Cleveland v. United States, 329 U.S. 14, 19
(1946).  For over sixty years, Congress has relied on this
constitutionally enumerated power to impose controls on the flow
of firearms and ammunition in interstate and foreign commerce in
an effort to assist the States in reducing and preventing violent
crime.  While Congress's authority to regulate such commerce
pursuant to the Commerce Clause has been determined to be far-
reaching, it is not without limit.[footnote 3]  As stated,
plaintiffs assert that section 922(v)(1) exceeds Congress's power
to legislate under the Commerce Clause standard established by
the Supreme Court in United States v. Lopez, 514 U.S. 549 (1995). 
However, as will be discussed below, the historically pervasive
regulation of firearms by Congress considered in conjunction with
the scope of the Commerce Clause power set forth by the Supreme
Court in Lopez leaves little room for doubt that the
congressional prohibition of the "manufactur[ing], transfer[ing],
or possess[ing] a semiautomatic assault weapon," within the
limits of section 922(v)(1) of the Act ,constitutes a
constitutionally valid exercise of Congress's legislative
authority.
      
      A.   The Scope of Congress's Power to Regulate Interstate
           Commerce

      The breadth of Congress's authority to legislate pursuant to
the Commerce Clause was first recognized by Chief Justice
Marshall in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).  The
commerce power, in Chief Justice Marshall's opinion, was not to
be restricted by the judiciary.  Indeed, Congress's power in this
area reaches "that commerce which concerns more States than one." 
Id. at 194.  The power itself was defined as "the power to
regulate; that is, to proscribe the rule by which commerce is to
be governed.  This power, like all others vested in congress, is
complete in itself, may be exercised to its utmost extent, and
acknowledges no limitations, other than are prescribed in the
constitution."  Id. at 196.  

      In determining the scope of congressional power to regulate
interstate commerce, the commerce power "must be considered in
the light of our dual system of government and may not be
extended so as to embrace effects upon interstate commerce so
indirect and remote that to embrace them, in view of our complex
society would effectually obliterate the distinction between what
is national and what is local and create a completely centralized
government."  NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,
37 (1937).  This limitation is admittedly slight, taken even to
its most outer limitsthe commerce power "extends to those 
activities intrastate which so affect interstate commerce, or the
exertion of the power of Congress over it, as to make regulation
of them appropriate means to the attainment of a legislative end,
the effective exertion of the granted power to regulate
interstate commerce."  United States v. Wrightwood Dairy Co., 315
U.S. 110, 119 (1942).  

      In essence, whether a particular exercise of congressional
power is valid under the Commerce Clause is a relatively narrow
and deferential inquiry.  In Hodel, the Supreme Court succinctly
explained that, in most instances, the inquiry is twofold.  452
U.S. 264 (1981).  "The court must defer to a congressional
finding that a regulated activity affects interstate commerce, if
there is any rational basis for such a finding."  Hodel, 452 U.S.
at 276 (citing Heart of Atlanta Motel, Inc. v. United States, 379
U.S. 241, 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 303-04
(1964)).[footnote 4]  "This established, the only remaining
question for judicial inquiry is whether 'the means chosen by
[Congress] must be reasonably adapted to the end permitted by the
Constitution.'"  Id.  (quoting Heart of Atlanta Motel, 379 U.S.
at 262).  Once the court determines that Congress acted
rationally in adopting a particular regulatory scheme, the
inquiry is at an end.  Id.  

      The Supreme Court recently offered a detailed examination of
its decisions defining the extent of congressional authority to
legislate pursuant to the Commerce Clause.  In Lopez v. United
States, the Supreme Court invalidated the Gun-Free School Zones
Act of 1990, which 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."  18 U.S.C.
section 922(q)(2)(A).  514 U.S. at 561.  The Act defined a
"school zone" as "in or on the ground of, a public, parochial, or
private school; or within a distance of 1,000 feet from the
grounds of [such] a . . . school."  Id. section 921(a)(25). 
Because this Act "neither regulate[d] a commercial activity nor
contain[ed] a requirement that the possession be connected in any
way to interstate commerce," Lopez, 524 U.S. at 551, the Court
concluded that Congress exceeded the "outer limits" of its
authority to legislate pursuant to the Commerce Clause.

      The Court in Lopez identified the three broad categories of
activity that Congress may regulate pursuant to 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) activities "that
substantially affect interstate commerce."  514 U.S. at 558-59. 
These categories were first laid out by the Court in Perez v.
United States, 402 U.S. 146, 150 (1971).  

      In considering the authority of Congress to enact section
922(q), the Court quickly rejected the first two categories set
forth above.  The refusal to consider the Act under the first two
categories was based on the Court's determination that section
922(q) was not "a regulation of the use of the channels of
interstate commerce, nor is it an attempt to prohibit the
interstate transportation of a commodity through the channels of
commerce; nor can section 922(q) be justified as a regulation by
which Congress has sought to protect an instrumentality of
interstate commerce or a thing in interstate commerce."  Lopez,
514 U.S. at 559.  Accordingly, the Court considered, in depth,
only whether the Gun Free School Zones Act could be considered a
regulation of an activity that substantially affected interstate
commerce.  The Court held that it could not.

      The conclusion in Lopez was based, in part, on the Court's
determination that the possession of guns within school zones was
neither commercial in nature nor an essential part of a larger
regulation of commercial activity, that the statute did not
contain a jurisdictional element to ensure on a case-by-case
basis that the gun in question was connected with interstate
commerce, and that Congress made no findings about the effect gun
possession in school zones has on interstate commerce.  Id. at
559-63.  The Court also rejected the government's theories
linking the possession of a firearm in a school zone to
interstate commerce.  Id. at 563-64.  Therefore, in the absence
of evidence to support the conclusion that Congress had a
rational basis for finding that gun possession within school
zones had a substantial effect on interstate commerce, the Court
declared the statute unconstitutional.  Id.  at 559.

      A.  Analysis of section 922(v)(1)

      Like the statute at issue in Lopez, section 922(v)(1) of the
Violent Crime Control and Law Enforcement Act contains no
jurisdictional nexus element specifically linking the
manufacture, transfer, or possession of assault weapons with
interstate commerce and does not include express congressional
findings regarding the effect of the prohibited activity on
interstate commerce.  However, nothing in the Lopez opinion or in
any other aspect of the Supreme Court's Commerce Clause
jurisprudence makes the inclusion or absence of either of these
dispositive.  

      The Court of Appeals for the District of Columbia Circuit
has expressly rejected the argument that a federal criminal
statute must contain a jurisdictional element.  In Terry v. Reno,
the Court of Appeals rejected a constitutional challenge to the
Freedom of Access to Clinic Entrances Act ("Access Act") which
prohibited the use of threat of force or physical obstruction
against a person seeking to obtain or provide reproductive health
services.  101 F.3d 1412 (D.C. Cir. 1996).  Plaintiffs in that
case contended that the Access Act exceeded Congress's authority
under the Commerce Clause because the statute lacked a
jurisdictional element.  Id. at 1418.  The Court of Appeals
clearly stated that the holding in Lopez did not mandate that
federal criminal statutes must contain a jurisdictional element, 
id., and further reasoned that "[i]f a jurisdictional element
were critical to a statute's constitutionality, the Court in
Lopez would not have gone on to examine the Government's
proffered rationales for the constitutionality of the gun
possession statute."  Id.  See also United States v. Wilson, 73
F.3d 675, 685 (7th Cir. 1995) ("In discussing the lack of a
jurisdictional element in Lopez, the Court simply did not state
or imply that all criminal statutes must have such an element, or
that all statutes with such an element would be constitutional,
or that any statute without such an element is per se
unconstitutional.").  

      The lack of express congressional findings regarding the
effect of the prohibited activity on interstate commerce is also
not determinative of the issue before the court.  Congress's
power to legislate does not flow from the legislative findings it
may make on a given issue; rather, it flows from the
Constitution.  The constitutionality of a statute simply cannot
turn on the existence (or lack thereof) of legislative findings
on a particular issue upon which Congress has chosen to
legislate.  As the Supreme Court stated in Lopez, "Congress
normally is not required to make formal findings as to the
substantial burdens that an activity has on interstate commerce." 
514 U.S. at 562.  See Perez, 402 U.S. at 156; McClung, 379 U.S.
at 304.[footnote 5]  See also Heart of Atlanta Motel, 379 U.S.
at 252 (upholding Title II of the Civil Rights Act of 1964
despite absence of congressional findings).

      Perhaps the clearest expression of this principle is Justice
Powell's concurrence in Fullilove v. Klutznick, 448 U.S. 448
(1980).  In that case, contracting associations brought suit
challenging an affirmative action provision in section 103(f)(2)
of the Public Works Employment Act of 1977.  These associations
asserted, in part, "that a reviewing court may not look beyond
the legislative history of the PWEA itself for evidence that
Congress believed that it was combating invidious
discrimination."  448 U.S. at 502 (Powell, J., concurring).  In
his concurrence, Justice Powell reasoned that this position would
essentially require Congress to make specific factual findings
with respect to all legislative actions undertaken and would
ignore the institutional expertise Congress may have gained in a
particular area.  He further elaborated that:

      Congress is not expected to act as though it were duty bound
      to find facts and make conclusions of law.  The creation of
      national rules for the governance of our society simply does
      not entail the same concept of recordmaking that is
      appropriate to a judicial or administrative proceeding. 
      Congress has no responsibility to confine its vision to the
      facts and evidence adduced by particular parties.  Instead,
      its special attribute as a legislative body lies in its
      broader mission to investigate and consider all facts and
      opinions that may be relevant to the resolution of an issue. 
      One appropriate source is the information and expertise that
      Congress acquires in the consideration and enactment of
      earlier legislation.  After Congress has legislated
      repeatedly in an area of national concern, its Members gain
      experience that may reduce the need for fresh hearings or
      prolonged debate when Congress again considers action in an
      area.

Id. at 502-03.  

      Although not required to specifically elaborate on the
substantial affect a regulated activity has on interstate
commerce in order to legislate, it is appropriate to defer to a
congressional finding that a certain activity substantially
impacts interstate commerce.  However, courts may not resort to
"pil[ing] inference upon inference" to establish the existence of
such an impact in the absence of an express finding.  As stated,
the Court in Lopez, rejected the government's attenuated
explanation linking possession of a firearm in a school zone to
interstate commerce.  514 U.S. at 567 ("The possession of a gun
in a local school zone is in no sense an economic activity that
might, through repetition elsewhere, substantially affect any
sort of interstate commerce.").  The Court noted that to accept
the argument proffered by the government would in effect make it
"difficult to perceive any limitation on federal power, even in
areas such as criminal law enforcement or education where States
historically have been sovereign."  Id. at 564.  Accordingly,
section 922(v)(1) "must bear more than a generic relationship
several steps removed from interstate commerce, and it must be a
relationship that is apparent, not creatively inferred."  United
States v. Kenney, 91 F.3d 884, 888 (7th Cir. 1996).  

      In examining whether section 922(v)(1) of the Violent Crime
Control Act exceeds Congress's authority under the Commerce
Clause, this court notes that the reasoning employed by the Court
of Appeals for the Seventh Circuit in United States v. Kenney is
persuasive.  In that case, the Court of Appeals considered a
challenge nearly identical to the one presently presented by
plaintiffs in the instant case to section 109(9) of the Firearm
Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449, 452-
53, codified at 18 U.S.C. section 922(o).  This statute also
amended the Gun Control Act of 1968 and made it unlawful to
transfer or possess a machine gun.  As in the instant case, the
statute itself contained no congressional findings and no
jurisdictional nexus element linking the prohibited conduct to
interstate commerce.  Notwithstanding these factors, the Court of
Appeals joined every other Circuit to have considered the issue
in concluding that Congress did not exceed its authority under
the Commerce Clause in banning the transfer and possession of
machine guns.  See, e.g., United States v. Bailey, 123 F.3d 1381
(11th Cir. 1997); United States v. Wright, 117 F.3d 1265 (11th
Cir. 1997), cert. denied, 118 S. Ct. 584 (1998); United States v.
Rybar, 103 F.3d 273 (3d Cir. 1996), cert. denied, 118 S. Ct. 46
(1997); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.
1986); United States v. Kirk, 70 F.3d 791 (5th Cir. 1997),
aff'd by equally divided en banc panel, 105 F.3d 997 (5th Cir.)
(per curiam), cert. denied, 118 S. Ct. 47 (1997); United States
v. Rambo, 74 F.3d 948 (9th Cir.), cert. denied, 117 S. Ct. 72
(1996); United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995).

      The Court of Appeals in Kenney determined that the statute
would be best analyzed under the third Lopez/Perez
categorywhether the transfer and possession of a machine gun was
an activity having a substantial affect on interstate commerce. 
The Court of Appeals reasoned that section 922(o) could not be
properly categorized as a regulation of a "channel of interstate
commerce" based on the conclusion that in Lopez and Perez, each
statute cited by the Supreme Court and identified as being upheld
as a regulation of a channel of interstate commerce was a direct
regulation of interstate commerce as evidenced by an explicit
jurisdictional nexus element.  According to the Court of Appeals,
this category could only justify section 922(o) to the extent
that the statute regulated interstate transfers and possessions
of machine guns.  Moreover, the Court of Appeals noted that
"although it may be true that Congress must regulate intrastate
transfers and even mere possessions of machine guns in aid of its
prerogative of preventing the misuse of the channels of
interstate commerce, the regulation still regulates much more
than the channels of interstate commerce."  Id. at 889.  In the
view of the Court of Appeals, the statute at issue clearly
covered more than would legislation designed to regulate the
channels of interstate commerce.  Compare Rambo, 74 F.3d at 952
("[T]he ban on such possession is an attempt to control the
interstate market for machineguns."); Kirk, 70 F.3d at 795-96
(concluding that the section 922(o) falls into either the first
or second Lopez/Perez category and stating that "there could no
unlawful possession . . . without an unlawful transfer").

      The Court of Appeals also declined to rely on the second
category identified in Lopez and Perezthe regulation of things
or persons in or instrumentalities of interstate commerce, for
similar reasons.  The Court of Appeals again cited examples of
cases identified by the Supreme Court as falling within this
category and again concluded that this category could provide
only partial support for section 922(o).  The nexus between the
prohibited activity and interstate commerce in those cases was
identified as "explicit and obvious in each case."  Kenney, 91
F.3d at 889.  The Court of Appeals in Kenney rejected the Tenth
Circuit's observation that "[t]he interstate flow of machineguns
'not only has a substantial effect on interstate commerce; it is
interstate commerce,'"  Wilks, 58 F.3d at 1521, as this
observation failed to contemplate the different question of the
propriety of section 922(o)'s regulation of purely intrastate
possession and transfer.  Kenney, 91 F.3d at 889.  

      The Court of Appeals conceded that section 922(o) was a
congressional effort to regulate the whole of an economic
activitythe trade in machine guns.  With this in mind, the Court
of Appeals appropriately recognized that Congress's authority to
legislate pursuant to the Commerce Clause extended to purely
intrastate activities when such activities threaten Congress's
ability to regulate interstate commerce.  However, the Court of
Appeals concluded that "[p]ermitting unregulated intrastate
possessions and transfers of machine guns . . . indirectly
undermines . . . the effectiveness of the federal attempt to
regulate interstate commerce," and therefore, "the intrastate
activity 'affects' the interstate commerce[] in an attenuated way
that raises the Lopez concern of whether such effect is
'substantial.'"  Id. at 890 (emphasis supplied).

      Upon determining that section 922(o) could not be considered
legislation falling within either the first or second Lopez/Perez
categories, the Court of Appeals concluded that the statute was
within the limits of the third category because the transfer or
possession of machine guns had a substantial impact on interstate
commerce.  In reaching this conclusion, the Court of Appeals
recognized that unlike the banning of firearms within one
thousand feet of a school, the banning of the transfer or
possession of machine guns was "an essential part of a larger
regulation of economic activity, in which the regulatory scheme
could be undercut unless the intrastate activity were regulated." 
Kenney, 91 F.3d at 890 (quoting Lopez, 514 U.S. at 561).  The
Court of Appeals likened the possession of a machine gun to the
Supreme Court's consideration of the harvesting and consumption
of wheat by a single farmer in Wickard v. Fillburn.  Kenney, 93
F.3d at 890.  In Wickard, Congress's power to legislate pursuant
to the Commerce Clause was considered to extend to this purely
intrastate commercial activity because of the prohibited activity
exerted a substantial effect on interstate commerce.  Wickard v.
Fillburn, 317 U.S. 111, 125 (1942).  

      The Court of Appeals also distinguished the ban considered
in Lopez on the grounds that the ban on transfer and possession
of machine guns did not "plow[] thoroughly new ground and
represent[] a sharp break with the long-standing pattern of
federal firearms legislation."  Lopez, 514 U.S. at 563.  For this
reason, the Court of Appeals concluded it was proper to examine
the legislative history and findings of other congressional
statutes regulating firearms.  "In light of [those] findings and
enactments, the 1986 addition of section 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."  Kenney, 91
F.3d at 890-91.  In sum, the nature of the statute and the
history of the federal firearms legislation led the Court of
Appeals to conclude that section 922(o) was a constitutional
exercise of Congress's authority to legislate pursuant to the
Commerce Clause.  See Wright, 117 F.3d at 1270 (reaching the same
conclusion); Rybar, 103 F.3d at 283-84 (same).

      The well-reasoned and thoughtful analysis relied on by the
Court of Appeals in Kenney is instructive on the issue presently
before this court.  This court's own review of the cases and
statutes traditionally considered by the Supreme Court to fall
within the first two categories identified in Lopez and Perez
demonstrates that section 922(v)(1), like section 922(o), cannot
properly be viewed as falling within either of these categories.

           .    Regulation of the Channels of Interstate Commerce

      Without question, the clearest exercise of Congress's
authority to regulate the use and channels of interstate commerce
can be identified in statutes which contain an explicit
jurisdictional nexus element.  Frequently cited examples of such
statutes include the prohibition of interstate transportation or
shipment of: stolen goods, 18 U.S.C. section 2312-2315; kidnaped
persons, 18 U.S.C. section 1201; prostitutes; 18 U.S.C. section
2421; and drugs, 21 U.S.C. section 841(a).  See also United
States v. Robertson, 514 U.S. 669, 670-72 (1995) (affirming
conviction under federal RICO statute because gold mine was
"engaged in commerce"); United States v. Darby, 312 U.S. 100, 105
(1941) (upholding statute making unlawful the interstate shipment
of goods produced by workers whose wages violated the Fair Labor
Standards Act).  In light of the fact that each statute and case
cited by the Supreme Court in Lopez and Perez as falling within
this category contains a jurisdictional nexus element, it is
reasonable to interpret this category as being restricted "to
legislation that specifically reaches interstate transfers,
possessions, and transactions and businesses 'engaged in
commerce.'"  Kirk, 105 F.3d 997, 1008 (5th Cir. 1997) (Jones, J.,
dissenting).

      The broadest reading of Congress's authority to regulate the
use of the channels of interstate commerce can be found in the
Supreme Court's opinion in Heart of Atlanta Motel.  In this case,
the Court upheld the constitutionality of Title II of the Civil
Rights Act of 1964.  Section 201(a) of Title II made it unlawful
for public accommodations "affecting commerce" to discriminate or
segregate on the basis of race, color, religion, or national
origin.  In elaborating on Congress's power to legislate pursuant
to the Commerce Clause, the Court stated:

      [T]he authority of Congress to keep the channels of
      interstate commerce free from immoral and injurious uses has
      been frequently sustained, and is no longer open to
      question.

379 U.S. at 256 (quoting Caminetti v. United States, 242 U.S.
470, 491 (1917)). 

      While it is not a far stretch to conclude that the
interstate manufacture, transfer, and possession of assault
weapons may very well constitute an immoral and injurious use of
interstate commerce, section 922(v)(1), in effect, simply reaches
more than the channels of interstate commerce alone.  Indeed,
given the absence of a jurisdictional nexus element, the statute
prohibits purely intrastate possession and transfer of assault
weapons.  Although it has been clearly established that Congress
may regulate purely local activity in furtherance of its power to
regulate the channels of interstate commerce, see, e.g., Darby,
312 U.S. at 118, the reach of section 922(v)(1) extends beyond
this category by potentially criminalizing assault weapons that
have never been a part of interstate commerce.  As the Court of
Appeals in Kenney reasoned, the breadth of the statute is
"therefore an aspect of Congress's broader power to regulate
things 'affecting' interstate commerce."  91 F.3d at 889. 
Furthermore, the government has offered no explanation regarding
how intrastate possession or transfer of an assault weapon is
necessary as a means to regulate a particular channel of
interstate commerce.  Compare Heart of Atlanta Motel, 379 U.S. at
258 (concluding it was lawful for Congress to prohibit
discrimination in local public accommodations because such
discrimination affected interstate travel).  As such, it is the
conclusion of this court that section 922(v)(1) cannot properly
be considered a regulation of the channels of interstate
commerce. [footnote 6]

      1    .    Regulation of Instrumentalities of Interstate
                Commerce or Things or Persons in Interstate
                Commerce

      It would require an equally strained interpretation of the
second Lopez/Perez category were this court to uphold section
922(v)(1) as a regulation of an instrumentality of interstate
commerce, or of persons or things in interstate commerce, despite
the fact that Congress's power extends to the regulation of
instrumentalities "even though the threat may come only from
intrastate activities."  Lopez, 514 U.S. at 558.  As the cases
and statutes cited by the Supreme Court in Lopez reveal, this
category includes regulation of instrumentalities or things as
they move through interstate commerce and the nexus between the
regulated instrumentality or thing and interstate commerce is
therefore clearly evident in each case.  The Court has cited the
regulation of the destruction of aircraft, 18 U.S.C. section 32,
thefts from interstate shipments, 18 U.S.C. section 659, the
Shreveport Rate Cases, 234 U.S. 342 (1914) (upholding authority
of Congress to regulate rail rates), and Southern Ry. Co. v.
United States, 222 U.S. 20, 32 (1911) (upholding authority of
Congress to regulate rail cars), as examples of the exercise of
congressional authority coming within this category.  The Court
has also determined that interstate roads and toll roads and
drawbridges connecting interstate roads are instrumentalities of
interstate commerce because these things are necessary to the
transport of persons and goods moving in interstate commerce. 
See Alstate Const. Co. v. Durkin, 345 U.S. 13 (1953) (interstate
roads); Overstreet v. North Shore Corp., 318 U.S. 125 (1943). 
See also United States v. Cobb, 144 F.3d 319, 322 (1998)
(discussing the second Lopez category).  

      To the extent that an assault weapon constitutes a "thing"
actually traveling from state to state via an instrumentality of
interstate commerce, section 922(v)(1) would constitute a valid
exercise of Congress's authority pursuant to the Commerce Clause
and this exercise of authority would seem to fit squarely within
this second category.  It is clear, however, that section
922(v)(1) extends much further than simply regulating assault
weapons in this fashion in its prohibition of purely intrastate
possession of assault weapons.  [footnote 7]

      Although the government submits that intrastate possession
or transfer of an assault weapon can be properly considered a
"thing" in interstate commerce because such possession may
threaten the instrumentalities of interstate commerce, it is
clear that the second category was not intended to extend to this
type of threat.  Purely intrastate activities and things that
have been traditionally described as falling within the second
category, and thus properly regulated by Congress, involve
activities or things that constitute a direct threat to the free
flow of interstate commerce as evidenced by either the inclusion
of a jurisdictional nexus element in the statute at issue or some
statutory presumption.  See, e.g., Lopez, 514 U.S. at 557-58
(citing federal statutes criminalizing the destruction of
aircraft "used, operated, or employed in interstate . . .
commerce").  While an intrastate transfer or possession of an
assault weapon certainly indirectly impacts interstate commerce,
the second category, if it is to have any meaning at all, simply
cannot be read to contemplate the regulation of such activities. 
See Kenney, 91 F.3d at 890 ("Permitting unregulated intrastate
possessions and transfers of machine guns instead indirectly
undermines, via a market theory, the effectiveness of the federal
attempt to regulate interstate commerce in machine guns.").  To
conclude otherwise would, in effect, permit Congress to legislate
pursuant to its Commerce Clause power in an unrestricted manner
with absolutely no assurance that the resulting federal
regulation, in fact, regulates persons or things in interstate
commerce.

      1    .    Regulation of Activities that Have a Substantial
                Affect on Interstate Commerce   

      Having determined that the assault weapon ban does not fit
completely within either of the first two categories identified
in Lopez and Perez, the constitutionality of section 922(v)(1)
must rest on whether the prohibited activity substantially
affects interstate commerce.  The analysis employed by the
Supreme Court in Lopez in concluding that the possession of a
handgun within one thousand feet of a school did not
substantially affect interstate commerce is instructive on this
issue.  The Supreme Court's conclusion in Lopez rested on three
points: (1) section 922(q) regulated neither a commercial
activity nor an essential part of a larger regulation of
commercial activity; (2) the statute did not contain a
jurisdictional element to ensure on a case-by-case basis that the
firearm in question was connected with interstate commerce; and
(3) the government failed to provide a convincing explanation,
supported by either legislative findings or argument presented to
the Court, that the prohibited activity had a substantial affect
on interstate commerce without "pil[ing] inference upon
inference."  Lopez, 514 U.S. at 559-67.  While the Court found
that the statute failed to satisfy all of these considerations,
it did not assign the relative weights to be afforded each of
these factors.  The Court left unclear whether a statute must
satisfy all three of the Lopez considerations to be
constitutional or whether it simply needs to satisfy one of them.

      In United States v. Wall, the Court of Appeals for the Sixth
Circuit considered a constitutional challenge to 18 U.S.C.
section 1955, which criminalizes illegal gambling operations of a
certain size.  92 F.3d 1444 (6th Cir. 1996), cert. denied, 117 S.
Ct. 690 (1997).  In an opinion concurring in part and dissenting
in part with the Court of Appeals' determination that this
statute was constitutional, Judge Boggs presented a cogent
analysis demonstrating the interaction of the factors shaping the
Court's conclusion in Lopez that possession of a firearm within
one thousand feet of a school did not substantially affect
interstate commerce.  It is the conclusion of this court that
Judge Boggs' analysis permits a court to undertake the serious
judicial review of Commerce Clause measures contemplated by Lopez
when purely intrastate activities are potentially regulated by
federal legislation.  Judge Boggs explained that the factors
identified by the Court in Lopez should be considered in the
following manner:

           First, a reviewing court should determine whether the
      intrastate activity being regulated is commercial in nature
      or its regulation is an essential part of the regulation of
      some commercial activity.  If the activity is neither
      commercial nor is its regulation an essential part of the
      regulation of commercial activity, then that activity cannot
      be regulated under the Commerce Clause.  If the intrastate
      activity is either commercial or its regulation is necessary
      to the regulation of a commercial activity, however, then a
      reviewing court needs to go on to the next question.

           Second, that court must ask whether the statute
      contains a jurisdictional nexus requirement that limits
      jurisdiction over the intrastate activity generally to those
      instances of the activity that have some particular
      connection with interstate commerce.  If a facial challenge
      is mounted to the constitutionality of a statute with a
      jurisdictional nexus requirement, then this challenge must
      be rejected . . . If a statute contains a jurisdictional
      nexus requirement and the challenge is to the application of
      that requirement in a particular case, or the statute
      contains no jurisdictional nexus requirement, then the court
      must go on to the final question.
      
           Third, the court must ask whether the statute's
      constitutionality or the constitutionality of its
      application in a particular case is supported by (1) the
      findings in the statute or the legislative history of the
      statute; (2) by the litigant's proffered defenses of the
      constitutionality of the statute; or, (3) by the court's own
      attribution of congressional purpose to the statute. . . .
      The rationales offered to support the constitutionality of
      the statute . . . must have a logical stopping point that
      would prevent them from being used to regulate any
      intrastate activity.

Id. at 1462 (Boggs, J. concurring in part and dissenting in
part).

      Applying Judge Boggs's framework to the instant case clearly
demonstrates that the prohibited conduct at issue in section
922(v)(1) has a substantial effect on interstate commerce, and
therefore, section 922(v)(1) constitutes a constitutional
exercise of Congress's authority to legislate pursuant to the
Commerce Clause.  First, the regulation of the intrastate
activity covered in section 922(v)(1) constitutes an essential
part of the regulation of a commercial activity.  Section
922(v)(1) prohibits the manufacture, transfer, or possession of a
semiautomatic assault weapon and as stated, the prohibited
conduct extends to purely intrastate activity.  Regulation of the
intrastate manufacture, transfer, and possession of semiautomatic
assault weapons is essential to Congress's regulation of this
same conduct on an interstate level.  In Kenney, the Court of
Appeals for the Seventh Circuit analogized the regulation of
purely intrastate possession and transfers of machine guns to the
intrastate production and consumption of wheat in Wickard.  Just
as the regulation of local production and consumption of wheat in
Wickard was essential to controlling the volume of wheat moving
in interstate and foreign commerce, the regulation of the
intrastate manufacture, transfer, and possession of semiautomatic
assault weapons is essential to the congressional regulation of
these activities on an interstate level.  Preventing Congress
from reaching intrastate activities would essentially render
congressional efforts to regulate the market in semiautomatic
assault weapons ineffective given the national market for these
weapons.  Indeed, the prohibition of the transfer, manufacture,
or possession on a national level where interstate commerce is
directly impacted would prove to be of little good in the absence
of local control over these same activities where interstate
commerce is indirectly, though substantially, affected.  

      Because section 922(v)(1) does not contain a jurisdictional
nexus element, it is necessary to proceed to the third inquiry in
Judge Boggs's framework.  Upon conducting this third inquiry, the
court finds that the statute's constitutionality is supported by
congressional findings and legislative history.  In making this
inquiry, the court notes that it is not confined to simply
examining congressional findings and legislative history of the
statute at issue in circumstances where congressional legislation
in a particular area has been historically pervasive.  The
subject matter of section 922(v)(1) is sufficiently similar to
the subject matter of other federal firearms legislation which is
accompanied by explicit congressional findings and legislative
history so as to render the findings and history accompanying the
other statutes a reliable statement of the rational for
Congress's authority to enact section 922(v)(1).  See Rybar, 103
F.3d at 279 (reaching the same conclusion with respect to section
922(o)); Kenney, 91 F.3d at 890 (same).

      In Lopez, the Court refused to defer to the institutional
expertise accumulated by Congress in the area of regulating
firearms regulation because "prior federal enactments or
Congressional findings [did not] speak to the subject matter of
section 922(q) or its relationship to interstate commerce." 
Lopez, 514 U.S. at 563 (quoting the Court of Appeals for the
Fifth Circuit's opinion in United States v. Lopez, 2 F.3d 1342,
1366 (5th Cir. 1993)).  The Court reasoned that section 922(q)
"plow[ed] thoroughly new ground and represent[ed] a sharp break
with the long-standing pattern of federal firearms legislation." 
Id.  The Court made no mention of whether it was appropriate to
consider prior findings and legislative history when Congress re-
plows old ground, as was done with section 922(v)(1).  However,
as Justice Powell's concurrence in Fullilove makes clear,
deference to Congress is appropriate "[a]fter Congress has
legislated repeatedly in an area of national concern." 
Fullilove, 448 U.S. at 503.  In circumstances where deference to
Congress is appropriate, it is reasonable and, in fact, essential
to consider prior findings and legislative history to demonstrate
that Congress recognizes that a particular regulated activity
substantially affects interstate commerce.  To conclude otherwise
would require Congress to include either express findings with
every piece of legislation enacted pursuant to its Commerce
Clause power or for Congress to include a jurisdictional nexus
element with every such piece of legislationtwo requirements
that have been explicitly rejected by the Supreme Court.  See
supra, pp. 13-17.  

      For nearly six decades, Congress has enacted federal
legislation regulating firearms pursuant to its authority under
the Commerce Clause.  In 1938, Congress enacted the Federal
Firearms Act of 1938, Pub. L. No. 785, 52 Stat. 1250 (1938),
which was defined as "An Act to regulate commerce in firearms,"
and applied to all firearms and prohibited various transfers of
firearms by licensed as well as unlicensed dealers "in interstate
or foreign commerce."  This statute prohibited "any manufacturer
or dealer" not specifically licensed pursuant to that statute
from transporting, shipping, or receiving any firearm or
ammunition "in interstate or foreign commerce" and made it
unlawful for "any person" to receive firearms or ammunition that
was "transported or shipped in interstate or foreign commerce" in
violation of the licensing requirement.  Id.

      The 1938 Act, in conjunction with the National Firearms Act
of 1934 which regulated firearms pursuant to Congress's taxing
power under Article I, Section 8, Clause 2 of the Constitution, 
remained in force and otherwise unchanged for the next three
decades.  In June 1968, Congress enacted the Omnibus Crime
Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82
Stat. 197 (1968) ("Omnibus Act").  As explained in the Court of
Appeals opinion in Lopez, Title IV of Pub. L. 90-351 repealed the
Federal Firearms Act and enacted a new chapter 44 of Title 18 (18
U.S.C. sections 921-28) which incorporated, with some amendments,
nearly all of the provisions of the Federal Firearms Act and
included additional firearms offenses.  Lopez, 2 F.3d at 1350-52.

      This legislation required a federal license "for any person
. . . to engage in the business of importing, manufacturing, or
dealing in firearms, or ammunition" regardless of whether the
transaction operated in interstate commerce.  The relevant
committee report and express findings included in the Omnibus Act
clearly demonstrate that this legislation was based on a
congressional finding of an extensive interstate commerce in
firearms and the inadequacy of state control at a local level
over the difficulties this presented.  

      The Omnibus Act contains the following express congressional
findings:

           [T]here is a widespread traffic in firearms moving in
      or otherwise affecting interstate or foreign commerce, and .
      . . the existing Federal controls over such traffic do not
      adequately enable the States to control this traffic within
      their own borders through the exercise of their police
      power; . . . .

           [T]he ease with which any person can acquire firearms .
      . . is a significant factor in the prevalence of lawlessness
      and violent crime in the United States; . . . .

           [O]nly through adequate Federal control over interstate
      and foreign commerce in these weapons, and over all persons
      engaging in the business of importing, manufacturing, or
      dealing in them, can this grave problem be properly dealt
      with, and effective State and local regulation of this
      traffic be made possible;

. . . .
      
           [T]he lack of adequate federal control over interstate
      and foreign commerce in highly destructive weapons . . . has
      allowed such weapons and devices to fall into the hands of
      lawless persons, . . . thus creating a problem of national
      concern.

82 Stat. at 225-26 (1968).

      Congress expanded and strengthened federal restrictions on
firearms that same year through the passage of the Gun Control
Act of 1968, which superseded previous firearms legislation
through the following measures: (1) implementing restrictions
similar to those Congress had already applied to handguns to most
transactions involving rifles and shotguns; (2) adding broader
coverage of transactions in ammunition; (3) tightening
restrictions on deliveries and sales of heavy firearms, including
machine guns; and (4) prohibiting interstate movement of firearms
by or to unlawful drug users or adjudicated mental defectives. 
Pub. L. No. 90-618, 90th Cong., 2d Sess., 82 Stat. 1213, 1218-21
(1968).

      As with the Omnibus Act, the legislative findings
accompanying the Gun Control Act clearly demonstrate the
connection between the increasing crime rates, the increasing
prevalence in the use of firearms, and the trafficking of
firearms through interstate commerce.  The House Report stated: 

           The principal purpose of H.R. 17735, as amended, is to
      strengthen Federal controls over interstate and foreign
      commerce in firearms and to assist the States effectively to
      regulate firearms traffic within their borders. 

  . . . . 

           The increasing rate of crime and lawlessness and the
      growing use of firearms in violent crime clearly attest to a
      need to strengthen Federal regulation of interstate firearms
      traffic.  
           
           The subject legislation responds to widespread national
      concern that existing Federal control over the sale and
      shipment of firearms [across] State lines is grossly
      inadequate. 
      
           Handguns, rifles, and shotguns have been the chosen
      means to execute three-quarters of a million people in the
      United States since 1900.  The use of firearms in violent
      crimes continues to increase today.  Statistics indicate
      that 50 lives are destroyed by firearms each day.  In the 13
      months ending in September 1967 guns were involved in more
      than 6,500 murders, 10,000 suicides, 2,600 accidental
      deaths, 43,500 aggravated assaults and 50,000 robberies.  No
      civilized society can ignore the malignancy which this
      senseless slaughter reflects.

           H.R. 17735, as amended, builds substantially on the
      regulatory framework contained in Title IV of the Omnibus
      Crime Control and Safe Streets Act of 1968.

H.R. Rep. No. 1577, 90th Cong., 2d Sess. 6-7 (1968).

      The House Report also attaches a letter from the Attorney
General stating that: 

           By recognizing the Federal responsibility to control 
      the indiscriminate flow of firearms and ammunition across
      State borders, this bill will give States and local
      communities the capacity and the incentive to enforce
      effectively their own gun control laws.  Once enacted into
      law, it will insure that strong local or State laws are not
      subverted by a deadly interstate traffic in firearms and
      ammunition. 

 Id. at 19.

      The enactment of the section 922(v)(1) represented the next
logical step by Congress in its efforts to eradicate the dangers
associated with the national market for certain firearms.  H.R.
4296, the House Report accompanying the 1994 assault weapons
legislation, summarized a series of hearings conducted over a
five year period detailing the problems presented to the nation
by semiautomatic assault weapons.  H.R. Rep. No. 489, 103d Cong.,
2d Sess. 13-20 (1994).  During the hearings summarized in the
House Report, witnesses offered extensive testimony on the
increasing use of semiautomatic assault weapons and the inability
of States to appropriately address this problem.  Id. at 14-15. 
See, e.g., Hearing on H.R. 4296 and H.R. 3527, Public Safety and
Recreational Firearms Use Protection Act, House of
Representatives, Committee on the Judiciary, Subcommittee on
Crime and Criminal Justice, April 25, 1994 (statements of various
witnesses).  It is evident from the House Report's substantial
reference to these hearings that in enacting the ban on the
transfer, manufacture, and possession of semiautomatic assault
weapons that Congress recognized that regulation on a national
level would be ineffective in the absence of Congress's ability
to reach this activity on a local, intrastate level because of
the substantial affect of this activity on interstate commerce. 
See, e.g., Hearing on H.R. 4296 and H.R. 3527, Public Safety and
Recreational Firearms Use Protection Act, House of
Representatives, Committee on the Judiciary, Subcommittee on
Crime and Criminal Justice, April 25, 1994 (statement of
Representative Charles Schumer) ("A number of states and cities
have already banned [semiautomatic assault weapons]. . . . And
these state laws will never be effective without a national
ban."); id. (statement of John Magaw, Director of the Department
of Treasury, Bureau of Alcohol, Tobacco, and Firearms) ("[The]
statistics and cases . . . demonstrate the proliferation of
semiautomatic assault weapons that are used by criminals against
law-abiding citizens and law enforcement officers.").  See also
Hearing on the Need for a national Assault Weapons Ban, Senate
Judiciary Committee, August 3, 1998 (statement of Jim Florio,
Governor of New Jersey) ("[N]o individual state's law, no matter
how strong, can stop the deadly flow of assault weapons across
state lines.").  

      The Supreme Court has recognized that Congress enacted
federal firearms legislation because "it was concerned with the
widespread traffic in firearms."  Huddleston v. United States,
415 U.S. 814, 824 (1974).  Because local manufacture, transfer,
and possession of semiautomatic assault weapons is so closely
related to the interstate market for these weapons, such
transfer, manufacture, and possession has a substantial affect on
interstate commerce when viewed in the aggregate and cannot truly
be considered purely local.  See Kenney, 91 F.3d at 891.  See
also Wickard, 317 U.S. at 125.  As the Court of Appeals for the
Third Circuit explained in Rybar, the regulation contemplated by
section 922(v)(1), like the ban on the possession and transfer of
machine guns, targets the transfer, manufacture, and possession
of assault weapons "as a demand-side measure to lessen the
stimulus that prospective acquisition would have on the commerce"
in semiautomatic assault weapons.  Rybar, 103 F.3d at 283.  The
prohibition of the manufacture, transfer, and possession of
semiautomatic assault weapons constitutes a rational means to
eradicate the substantial and detrimental impact these weapons
have on our nation.  Accordingly, it is the conclusion of this
court that Congress did not exceed its authority to legislate
pursuant to the Commerce Clause in enacting section 922(v)(1). 

IV.   Whether section 921(a)(30)(A)(viii) and (ix) Constitutes an
      Unconstitutional Bill of Attainder

      Plaintiffs assert that section 922(a)(30)(A)(viii) and (ix),
when read in conjunction with section 922(v)(1), constitutes a
bill of attainder in violation of Article I, Section 9, Clause 3
of the Constitution ("No Bill of Attainder . . . Law shall be
passed.").  As stated, section 922(v)(1) makes it unlawful to
"manufacture, transfer, and possess a semiautomatic assault
weapon."  Section 921(a)(30)(A)(viii) and (ix) define the term
"semiautomatic assault weapon" as including the "INTRATEC TEC 9,
TEC-DC and TEC-22" and "revolving cylinder shotguns, such as (or
similar to) the Street Sweeper and Striker 12."  Plaintiffs
submit that the reference to "INTRATEC TEC 9, TEC-DC and TEC-22"
is to products manufactured by plaintiff Intratec and the
reference to the "Striker 12" is to a product manufactured by
plaintiff Penn Arms.  Plaintiffs contend that the weapon-specific
nature of section 921(a)(30)(A)(viii) and (ix) and the alleged
punitive effects of the statute demonstrate that this statute is
an unconstitutional bill of attainder.  

      In essence, a bill of attainder is "a law that legislatively
determines guilt and inflicts punishment upon an identifiable
individual without provision of the protections of a judicial
trial."  Nixon v. Administrator of General Services, 433 U.S.
425, 468 (1977).  See also United States v. Lovett, 328 U.S. 303,
315 (1946).  When the prior activity of an identifiable person or
group serves as "a point of reference for the ascertainment of
particular persons ineluctably designated by the legislature" for
punishment, the statute at issue may be an attainder.  Communist
Party of the United States v. Subversive Activities Control Bd.,
367 U.S. 1, 87 (1961).  The Bill of Attainder Clause prohibits
the legislature from assuming judicial functions and conducting
trials and reflects "the Framers' belief that the Legislative
Branch is not so well suited as politically independent judges
and juries to the task of ruling upon the blameworthiness of, and
levying appropriate punishment upon specific persons."  United
States v. Brown, 381 U.S. 437, 445 (1965).  Indeed, as the
Supreme Court explained in Brown, the prohibition against bills
of attainder is bound up in the principle of separation of
powers.  Id. at 445-46.  

      "[O]nly the clearest proof [can] suffice to establish the
unconstitutionality of a statute" on the ground that it is a bill
of attainder.  Communist Party, 367 U.S. at 83 (quoting Flemming
v. Nestor, 363 U.S. 603, 617 (1960)).  The examination of whether
a particular legislative action constitutes a bill of attainder
necessarily requires consideration of two separate criteria:
specificity in classification and punishment.  See Nixon, 433
U.S. at 470 (describing these criteria as "the anchor that ties
the bill of attainder guarantee to realistic conceptions").  See
also BellSouth Corp. v. FCC, 144 F.3d 58, 62 (D.C. Cir. 1998)
(noting that a Bill of Attainder "is a prohibition triggered when
a legislative act meets two testsfirst, that it apply with
specificity, and second, that it imposes punishment").  While it
cannot be disputed that section 921(a)(30)(A)(viii) and (ix)
specifically prohibits the manufacture of the semiautomatic
assault weapons produced by plaintiffs, "[a]n otherwise valid law
is not transformed into a bill of attainder merely because it
regulates conduct on the part of designated individuals or
classes of individuals."  Fresno Rifle & Pistol Club, Inc. v. Van
De Kamp, 965 F.2d 723, 727 (9th Cir. 1992).  "Legislatures may
act to curb behavior which they regard as harmful to the public
welfare, whether that conduct is found to be engaged in by many
persons or by one."  Communist Party, 367 U.S. at 88. 

           1.   The Specificity Element
       
      In Nixon v. Administrator of General Services, the Supreme
Court specifically rejected the position that legislation
singling out a specific group or individual by name necessarily
constituted a bill of attainder.  The statute at issue in Nixon,
the Presidential Recordings and Materials Preservation Act, was
challenged as an unconstitutional bill of attainder because it
directed the Administrator of General Services to take custody of
the Presidential papers and tape recordings of former President
Richard Nixon.  443 U.S. at 429.  The Supreme Court determined
that "the fact that [the Act] refers to [President Nixon] by name
does not automatically offend the Bill of Attainder Clause."  Id.
at 472.  The Court's determination was based, in part, upon the
notion that "[h]owever expansive the prohibition against bills of
attainder, it surely was not intended to serve as a variant of
the equal protection doctrine, invalidating every Act of Congress
. . . that legislatively burdens some persons or groups but not
all other plausible individuals."  Id. at 472.

      The Court's reference in Nixon to United States v. Brown is
also instructive in this regard.  In Brown, the Court
distinguished the Labor Management Disclosure Act of 1959, which
made it a crime for a member of the Communist Party to serve as
an officer or as an employee of a labor union and was held to be
an unconstitutional bill of attainder, from a provision in the
Banking Act of 1933, which disqualified identifiable members of a
group of officers and employees from serving as officers of
Federal Reserve Banks.  381 U.S. at 453-54.  The Court reasoned
that the latter piece of legislation did not constitute a bill of
attainder despite the fact that it prohibited conduct on the part
of designated individuals or classes of individuals.  In sum, as
the Court succinctly stated in Nixon, "specificity of the law
[alone] does not call into play the Bill of Attainder clause." 
Nixon, 433 U.S. at 471 n.33.

      The conclusions reached by the Court in Nixon and Brown make
it abundantly clear that the prohibition of the transfer,
manufacture, and production of certain semiautomatic assault
weapons specifically by name does not render section
921(a)(30)(A)(viii) and (ix) a bill of attainder.  Additional
firearms, beyond those specifically identified in the statute,
may also be deemed semiautomatic assault weapons within the
definition of "semiautomatic assault weapon" contained in section
921(a)(30)(B), (C), and (D).  It is significant that the statute
"casts a wider net" and it is the conclusion of this court that
it was not the intent of Congress to punish specific
individualsin this case Navegar and Penn Armsbut rather, it was
to regulate certain types of firearms.  See Fresno Rifle and
Pistol Club, 965 F.2d at 728.  
      
      2    .    The Punishment Element

      Having concluded that the inclusion of a weapon-specific
prohibition alone does not carry the day for plaintiffs, the
second criterion must be considered.  In order to succeed in
their challenge to the constitutionality of the statute,
plaintiffs must demonstrate that the statute at issue
"'inflict[ed] punishment' within the constitutional proscription
against bills of attainder."  Nixon, 433 U.S. at 472-73 (quoting
Lovett, 328 U.S. at 315).  See also Selective Serv. Sys. v.
Minnesota Pub. Interest Research Group, 468 U.S. 841, 852 (1984)
("The proscription against bills of attainder reaches only
statutes that inflict punishment on the specified individual or
group.");  Brown, 381 U.S. at 456-60; Cummings v. Missouri, 71
U.S. (4 Wall.) 277, 320 (1866).  

      In considering whether a statute inflicts punishment within
the constitutional proscription of bills of attainder, three
inquiries must be made:

      (1) whether the challenged statute falls within the
      historical meaning of legislative punishment; (2) whether
      the statute, "viewed in terms of the type and severity of
      burdens imposed, reasonably can be said to further
      nonpunitive legislative purposes; and (3) whether the
      legislative record "evinces a[n] . . . intent to punish."

Selective Service Sys., 468 U.S. at 852 (quoting Nixon, 433 U.S.
at 473).  Consideration of these factors must establish that the
statute at issue imposes more than merely "burdensome
consequences."  Nixon, 433 U.S. at 472.  Upon inquiry into the
three components of punishment, this court concludes that
plaintiffs are unable to establish that they have suffered
impermissible punishment with the proscriptions of the Bill of
Attainder Clause.    

           3    .     The Historical Meaning of Legislative
                      Punishment

      Traditionally, bills of attainder have often imposed a
penalty of death with lesser punishments imposed by bills of
pains and penalties.  Cummings, 71 U.S. (4 Wall.) at 323.  The
Supreme Court has explained that the "Constitution proscribes
[the] lesser penalties [including those imposed by bills of pains
and penalties] as well as those imposing death."  Selective
Service Sys. 468 U.S. at 852.  See also BellSouth, 144 F.3d at 62
(noting that "[a]s early as 1810 . . . in Fletcher v. Peck . . .
Chief Justice Marshall noted in dictum that the prohibition on
bills of attainder ought to extend to legislation subjecting
specified persons to penalties short of deathwhat the framers
called 'bills of pains and penalties.'").  

      Throughout history, the list of punishments proscribed by
the Bill of Attainder Clause "has expanded to include legislative
bars to participation by individuals or groups in specific
employments or professions."  Selective Service Sys., 468 U.S. at
852.  As the Court of Appeals for the District of Columbia
Circuit noted in BellSouth, "the Court's four major decisions
invalidating statutes on Bill of Attainder Clause grounds have
all involved legislation preventing specific classes of persons
from pursuing certain occupations."  BellSouth, 144 F.3d at 64. 
The first two cases, Cummings v. Missouri, 71 U.S. (4 Wall.) 277
(1866) and Ex Parte Garland, 71 U.S. (4 Wall.) 333 (1866), struck
down restrictions imposed immediately after the Civil War that
prohibited individuals from holding certain employment if they
either aided the Confederacy or if they refused to swear on oath
that they never assisted the Confederacy during the Civil War. 
The second two cases, United States v. Lovett, 328 U.S. 303
(1946) and United States v. Brown, 381 U.S. 437 (1965), involved
restrictions on members of the Communist Party during the Cold
War that terminated the salaries of these members or prohibited
them from serving as officers or employees of labor unions.  

      Although plaintiffs in the instant case argue that the
restrictions imposed upon them by section 921(a)(30)(A)(viii) and
(ix) impose burdens historically associated with punishment, this
argument clearly without merit.  Plaintiffs present no indication
that their business is solely and completely linked to the
production of the weapons identified by the statute at issue or
that they are unable to produce other firearms that are not made
unlawful by the statute.  Although plaintiffs contend that if
they were to violate section 922(v)(1) of the Act, then they
would lose their licenses to manufacture any type of firearm, the
decision to violate section 922(v)(1) and thereby incur the
accompanying criminal penalty is theirs alone.  Plaintiffs have
not been denied the ability to participate in a specified field
of employment or a particular vocation and therefore, the type of
economic burden imposed on plaintiffs in terms of financial loss,
see Navegar, 914 F. Supp. at 633-35 (discussing financial impact
on plaintiffs), does not rise to the level of punishment
traditionally proscribed by the Bill of Attainder Clause.  See
Fresno Rifle & Pistol Club, 965 F.2d at 728 (reaching the same
conclusion with respect to a bill of attainder challenge to
portions of a California statute prohibiting the manufacture,
transfer, or possession of certain firearms by name).

           4    .     Furtherance of Nonpunitive Legislative
                      Purposes

      The second inquiry which must be conducted requires a
reviewing court employ a functional test to determine whether the
challenged legislation, in light of the types and severity of the
burdens it imposes, can reasonably be said to further nonpunitive
legislative purposes.  BellSouth, 144 F.3d at 65.  See also
Nixon, 433 U.S. at 475-76.  The Supreme Court has explained that
even though a particular burden may not traditionally be
considered to fall within those proscribed by the Bill of
Attainder Clause, the second inquiry is essential.  "To ensure
that the Legislature has not created an impermissible penalty not
previously held to be within the proscription against bills of
attainder, we must determine whether the challenged statute can
be reasonably said to further nonpunitive goals."  Selective
Service Sys., 468 U.S. at 853-54.  See also BellSouth, 144 F.3d
at 65 ("[T]he second factor prevents Congress from circumventing
the clause by cooking up newfangled ways to punish disfavored
individuals or groups.").  The Court of Appeals for the District
of Columbia Circuit has commented on the importance of this
factor by stating that "[t]he line of Supreme Court law on the
Bill of Attainder Clause indicates that legislation will survive
Bill of Attainder attack if the statute furthers nonpunitive
legislative purposes."  Siegel v. Lyng, 851 F.2d 412, 418 (D.C.
Cir. 1988).  

      In order to establish that section 921(a)(30)(A)(viii) and
(ix) serves only punitive purposes, plaintiffs must demonstrate
that there no legitimate legislative purposes are apparent, for
it is only in such instances that "it is reasonable to conclude
that punishment of individuals disadvantaged by the enactment was
the  purpose of the decisionmakers."  Nixon, 433 U.S. at 476. 
Plaintiffs are simply unable to meet this burden in the instant
case.  Section 921(a)(30)(A)(viii) and (ix) is an intricate part
of federal legislation designed to eradicate the serious threat
to the safety and health of the nation by semiautomatic assault
weapons.  See H.R. Rep. No. 489 at 12 ("The threat posed by
criminals and mentally deranged individuals armed with semi-
automatic assault weapons has been tragically widespread. . . .
[T]he use of semiautomatic assault weapons . . . continues to
grow.  H.R. 4296 will restrict the availability of such weapons
in the future.").  As discussed previously, the House Report
accompanying the bill that became the statute at issue included
references to extensive testimony offered to the Subcommittee on
Crime and Criminal Justice detailing the devastating violence
wrought by semiautomatic assault weapons.  See H.R. Rep. No. 489
at 13-19.  The congressional findings and legislative history
accompanying other closely related federal firearms regulations
further bolster the conclusion that a nonpunitive legislative
purpose for section 921(a)(30)(A)(viii) and (ix) exists and
"legitimate justifications for passage of the Act are readily
apparent."  Nixon, 433 U.S. at 476.  Furthermore, in light of the
evidence before the court, it would be unreasonable to conclude
that the statute at issue "rests upon a congressional
determination of blameworthiness and a desire to punish
[plaintiffs]."  Id. at 476.  See also Springfield Armory, Inc. v.
City of Columbus, 805 F. Supp. 489, 495 (S.D. Ohio 1992)
(considering a challenge to a weapon-specific firearm ban by the
city of Columbus and concluding that "as a matter of law the
ordinance, on its face, was designed to serve a nonpunitive
purpose, namely, the protection of the people of Columbus from
the perceived danger posed by certain firearms").  Accordingly,
it is the conclusion of this court that the nonpunitive purposes
of the statute clearly outweigh the burdens imposed on
plaintiffs. [footnote 8]

           5    .     The Motivational Test
           
      The final inquiry to be conducted requires the court to
determine "whether the legislative record evinces a congressional
intent to punish."  Nixon, 433 U.S. at 478.  In BellSouth, the
Court of Appeals noted that the third inquiry is closely linked
to the second inquiry and "in practice appears to differ from the
second only in inviting a journey through legislative history." 
BellSouth, 144 F.3d at 67. 

      Plaintiffs' arguments with respect to this inquiry can be
disposed of quickly as plaintiffs have failed to present the type
of "unmistakable evidence of punitive intent which . . . is
required before a Congressional enactment of this kind may be
struck down."  Selective Service Sys., 468 U.S. at 855-56
(quoting Flemming, 363 U.S. at 619).  Unlike the Communist Party
members in Brown who established that the statute at issue in
that case, which prevented them from occupying the position of
officers or employees in labor unions, intended to "inflict[]
deprivations on . . . blameworthy or tainted individaul[s] in
order to prevent [their] future conduct," Nixon, 433 U.S. at 476
(discussing the holding in Brown), plaintiffs have failed to make
any similar showing in this case.  Plaintiffs' bare assertions
also stand in stark contrast to the House Report accompanying the
statute struck down in Lovett which expressly characterized
individuals as "subversive . . . and . . . unfit . . . to
continue in Government employment."  H.R. Rep. No. 448, 78th
Cong., 1st Sess. 6 (1943).  

      The court's independent evaluation of the legislative record
accompanying both the Violent Crime Control and Law Enforcement
Act and prior federal firearms legislation eliminates any notion
that Congress intended to punish plaintiffs in enacting section
921(a)(30)(A)(viii) and (ix).  "[T]he decided absence from the
legislative history of any congressional sentiments expressive of
this purpose is probative of nonpunitive intentions and largely
undercuts [the] major concern[s] that prompted the bill of
attainder prohibition."  Nixon, 433 U.S. at 480.

      In sum, because the challenged statute does not fall within
the historical meaning of legislative punishment, furthers
nonpunitive legislative purposes, and fails to evince any
congressional intent to punish, it is the conclusion of this
court that section 921(a)(30)(A)(viii) and (ix) is not a bill of
attainder with respect to plaintiffs in this case.

6.    Conclusion

      For the reasons set forth herein, it is the conclusion of
this court that Congress did not exceed its authority under the
Commerce Clause in enacting section 922(v)(1) and the court also
finds that section 921(a)(30)(A)(viii) and (ix), when read in
conjunction with section 922(v)(1), is not a bill of attainder
with respect to plaintiffs in this case.  Accordingly,
defendant's motion for summary judgment is granted and
plaintiffs' motion for summary judgment is denied.  This case
stands dismissed with prejudice.

      A separate order shall issue this date.



                                      ______________________________
                                           Royce C. Lamberth
                                       United States District Judge

Date: