No.________ IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 RAYMOND RYBAR, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit PETITION FOR WRIT OF CERTIORARI James H. Jeffries, III 3019 Lake Forest Drive Greensboro, NC 27408 (910) 282-6024 Counsel of Record i QUESTION PRESENTED Section 922(o) of Title 18, United States Code, criminalizes the mere possession of a machinegun, irrespective of any connection to commerce, interstate or otherwise. The question presented is whether, in light of the Court's decision in United States v. Lopez, 514 U.S. 549 (1995), Congress has such authority under its Commerce Clause power. ii TABLE OF CONTENTS Page Opinion below .......................................... 1 Jurisdiction ........................................... 1 Statutory provision involved ........................... 2 Statement .............................................. 3 Reasons for granting the petition ...................... 4 Conclusion ............................................. 14 Appendix A ............................................. 1a Appendix B ............................................. 42a Appendix C ............................................. 44a TABLE OF AUTHORITIES Cases: Page Hoffman v. Hunt, 923 F.Supp. 791 (W.D.N.C. 1996) ......................... 4 United States v. Bailey, 902 F.Supp. 727 (W.D. Tex. 1995) ........................ 4 United States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996) ................... 6, 10, 11, 12 United States v. Bishop, 66 F.3d 569 (3d Cir. 1995) .............................. 10 United States v. Bownds, 860 F.Supp. 336 (S.D. Miss. 1994) ....................... 10 United States v. Chesney, 86 F.3d 564 (6th Cir. 1996) ............................. 4 United States v. Denali, 73 F.3d 328 (11th Cir. 1996) ............................ 4 United States v. Edwards, 13 F.3d 291 (9th Cir. 1993) ............................. 7 United States v. Edwards, 55 F.3d 428 (9th Cir. 1995) ...................... 7, 8, 9, 11 iii AUTHORITIES -- Continued: Cases--Continued: Page United States v. Evans, 928 F.2d 858 (9th Cir. 1991) ................ 7, 8, 9, 10, 11, 12 United States v. Evans, 712 F.Supp. 1435 (Mont. 1989) ............................. 9, 11 United States v. Hale, 978 F.2d 1016 (8th Cir. 1992) ......................... 9, 11, 12 United States v. Kenney, 91 F.3d 884 (701 Cir. 1996) .............................. 10, 11 United States v. Kirk, 105 F. 3d 997 (501 Cir. 1997) ..................... 6, 10, 11, 15 United States v. Kirk, 70 F. 3d 791 (5th Cir. 1995) ................................. 10 United States v. Lopez, 514 U.S. 549 (1995) ..................................... passim United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993) .................................. 6 United States v. McKinney, 98 F.3d 974 (7th Cir. 1996) ................................. 12 United States v. Mussan, 894 F.Supp. 1360 (Ariz. 1995) ................................. 4 United States v. OIin Corp., 927 F.Supp. 1502 (S.D. Ala. 1996) ............................ 4 United States v. Orozco, 98 F.3d 105 (3d Cir. 1996) ................................... 13 United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995) ................................... 4 United States v. Parker, 911 F.Supp. 830 (E.D. Pa. 1995) .............................. 4 iv AUTHORITIES -- Continued: Cases--Continued: Page United States v. Pearson, 8 F.3d 631 (8th Cir. 1993) .......................... 10, 11, 12 United States v. Pinckney, 85 F.3d 4 (2d Cir. 1996) ...................................... 4 United States v. Rambo, 74 F.3d 948 (9th Cir. 1996) ................................ 8, 11 United States v. Rybar, 103 F.3d 273 (3d Cir. 1996) ............................... passim United Stares v. Stokes, 73 F.3d 23 (3d Cir. 1995) ...................................... 10 United Stares v. Wall, 92 F.3d 1444 (6th Cir. 1996) .............................. 4, 12 United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995) ............................. 10, 11 United States v. Wilson, 73 F.3d 675 (7th Cir. 1995) ............................ 5 Constitution and statutes: U.S. Const.: Art. I, section 8 ..................................... i, 4, 7 Amend. II .............................................. 7 Amend. X ............................................ 4, 7, 8, 10 Title 18, U.S.C.: Gun Control Act of 1968 sections 921-930 ........................................ 2, 6 Gun-Free School Zones Act .................................. 13 Firearms Owners' Protection Act ............................. 2 section 922(a)(1)-(9) ........................................ 7 section 922(b)-(d) ............................................ 7 section 922(e)-(1) .......................................... 7 section 922(m) .............................................. 7 v AUTHORITIES -- Continued: Statutes--Continued: Page section 922(n) ......................................... 7 section 922(o) ........................................ passim section 922(q) ........................................... 5-9 section 923 ............................................... 7 section 926A ............................................... 7 section 930 ............................................... 7 Title 26, U.S.C.: section 5851 .............................................. 3 section 5861(e) ........................................... 5 Title 28, U.S.C.: section 1254(1) ........................................... 2 Miscellaneous: Richard A. Epstein, "Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. 167 (1996) ........................... 5 David T. Hardy, "The Firearms Owners' Protection Act: A Historical and Legal Perspective," 17 Cumberland L. Rev. 585 (1987) .......................................... 2 Deborah Jones Merritt, "Commerce!" 94 Mich. L. Rev. 674 (December 1995) .......................... 5 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 RAYMOND RYBAR, JR., Petitioner v. UNITED STATES OF AMERICA PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Raymond Rybar, Jr., by counsel, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. OPINION BELOW The decision of the court of appeals (App. A, infra, 1a-41a) was filed on December 30, 1996, and is reported at 103 F.3d 273. The order sur petition for rehearing (App. B, infra, 42a) and amended order sur petition for rehearing (App. C, infra, 44a) are unreported. JURISDICTION The judgment of the court of appeals was entered on the same day its opinion was filed, December 30, 1996. A petition for rehearing was denied by order dated January 2 31, 1997 (App. B, infra, 42a), and by amended order dated February 5, 1997 (App. C, infra, 44a). The jurisdiction of this Court is invoked under 28 U.S.C. section 1254(1). STATUTORY PROVISION INVOLVED Section 922(o) of Title 18, United States Code, provides: (1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun. (2) This subsection shall not apply with respect to-- (A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State or a department, agency, or political subdivision thereof; or (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect. This provision was added to the Gun Control Act of 1968, 18 U.S.C. 921-930, by the Firearms Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986). Section 922(o) became effective on May 19, 1986. Ibid. The section was a last minute addition to the bill on the House floor and has no legislative history. See David T. Hardy, "The Firearms Owners' Protection Act: A 3 Historical and Legal Perspective, 17 Cumberland L. Rev. 585 at 670-672 (1987). STATEMENT The petitioner, Raymond Rybar, Jr., at all times pertinent to this case was a federally licensed firearms dealer as well as a special Occupational taxpayer under 26 U.S.C. section 5851, authorized to manufacture and possess legally registered machineguns. App. A, infra, 2a, 18a. On March 31, 1995, in the United States District Court for the Western District of Pennsylvania, Rybar, a resident of Pennsylvania, was convicted, upon his conditional plea of guilty, on two counts of possessing a machinegun at a gun show in Monroeville, Pennsylvania, on April 4 and 5, 1992, Rybar's plea agreement reserved the right to contest the constitutionality of section 922(o). App. A, infra, 2a-9a. The indictment also charged Rybar with two counts of illegally transferring the same two guns in violation of section 5861(e) of Title 26, U.S. Code (the National Firearms Act). The district court dismissed those two counts on the ground that the machinegun provisions of the NFA had been rendered unconstitutional by enactment of section 922(o). Criminal No, 94-cr-00243 (USDC W.D. Pa.). The government did not appeal that ruling. The purchaser of the two guns was, like Rybar, a resident of Pennsylvania. Ibid. On appeal, a panel of the court of appeals (including a district judge sitting by designation), split two-to-one in favor of the constitutionality of section 922(o). 103 F.3d 273, App. A, infra. On petition for rehearing, three of the 12 4 circuit judges of the Third Circuit voted for rehearing in bane. App. C, infra. REASONS FOR GRANTING THE PETITION This Court's decision last term in United States v. Lopez, 514 U.S. 549 (1995), was either a benchmark denoting the outer limits of a half century of Commerce Clause erosion of the Tenth Amendment bulwark against intrusion of federal legislation into State concerns, or it was a constitutional aberration destined to be relegated to the dustbin of history. Many subordinate courts have had no difficulty in applying Lopez in a straightforward and workmanlike way. See, e.g., United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995) (holding that residential receipt of out-of-state natural gas was insufficient to confer federal jurisdiction under the arson statute); United States v. Denali, 73 F.3d 328 (11th Cir. 1996) (same); United States v. Pinckney, 85 F.3d 4 (2d Cir. 1996) (insufficient evidence of effect on interstate commerce to sustain conviction under the "chop-shop" statute); United States v. Mussari, 894 F.Supp. 1360 (Ariz. 1995) (ruling unconstitutional the Child Support Recovery Act); United States v. Bailey, 902 F.Supp. 727 (W.D. Tex. 1995) (same); United States v. Parker, 911 F.Supp. 830 (E.D. Pa. 1995) (same); Hoffman v. Hunt, 923 F.Supp. 791 (W.D.N.C. 1996) (declaring the Freedom of Access to Clinic Entrances Act beyond congressional Commerce Clause authority); United States v. Olin Corp., 927 F.Supp. 1502 (S.D. Ala. 1996) (holding Lopez prohibits the application of CERCLA liability); and the dissenting opinions in United States v. Wall, 92 F.3d 1444 (6th Cir. 1996); United States v. Chesney, 86 F.3d 564 (6th Cir. 5 1996); and United States v. Wilson, 73 F.3d 675 (7th Cir. 1995). See also, Richard A Epstein, "Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. 167 (1996); and Deborah Jones Merritt, "Commerce!" 94 Mich. L. Rev. 674 (December 1995). The actions of other lower courts have been characterized by uncertainty, confusion, and, in some instances, a downright hostile refusal to take the Lopez decision at face value. Without burdening this petition with scores of citations, the point can be made by "auto-citing" the Lopez decision and noting the numerous "decline to extend by" case citations. The same phenomenon is reflected in the pages and pages of "distinguished" citations in Shepard's Citations to Lopez. Some of these cases can be explained by the notorious desperation of defense lawyers and jail-house writ-writers to try to shoe-horn any case into the protection of a new or unusual decision of this Court, regardless of its applicability. And some cannot be so explained, But nowhere, it seems, has the failure to follow Lopez been so pronounced (and so wrong) as the section 922(o) cases. This case is a paradigm of that confusion and hostility, At issue in Lopez was a statute (18 U.S.C. section 922(q)) criminalizing the mere possession of a firearm. At issue in this case is a statute (18 U.S.C. section 922(o)) criminalizing the mere possession of a firearm. [fn 1] The firearm in Lopez had no known or discernible connection to commerce, interstate or otherwise. The firearms here have no known or discernible connection to commerce interstate or ------------------ 1. Section 922(o) also criminalizes the "transfer" of machineguns, an offense not charged in this case, nor briefed or argued. 6 otherwise. [fn 2] The statute in Lopez had no legislative history or findings tying it to the regulation of commerce. The statute here has no legislative history and is supported by no findings, period. The two statutes have been characterized by courts as "clones. "On its face, section 922(o) seems a clone of section 922(q), the provisions struck down in Lopez." United States v. Kirk, 105 F.3d 997 at 1010 (5th Cir. 1997) (opinion of Circuit Judge Jones); "Because of the similarity between section 922(q) and section 922(o)...," "Accepting the obvious parallels between section 922(q) as discussed in Lopez and section 922(o)...." United States v. Beuckelaere, 91 F.3d 781 at 788 (6th Cir. 1996) (dissenting opinion); "... 18 U.S.C. section 922(o) ... is the closest extant relative of the statute struck down in Lopez, 18 U.S.C. 922(q)(1)(A) ...." App. A, infra, 26a (dissenting opinion). See also United States v. Lopez, 2 F.3d 1342 at 1356 (5th Cir. 1993) ("While section 922(o) is a closer parallel than others to section 922(q)...."). An analysis of the myriad of offenses created by the Gun Control Act of 1968 quickly demonstrates the conceptual identity of sections 922(o) and 922(q), and their --------------- 2. In an attempt to bolster its Commerce Clause reasoning, the majority decision in the court below went outside the record to hypothesize that Rybar's Possession of the firearm must have been preceded by a "transfer" (App. A, infra, 18a, "possession and transfer"). As was pointed out below, the statute is in the disjunctive "possess or transfer"; Rybar was charged only with possession; and it is more logical to infer from the record here that a licensed machinegun manufacturer made the guns involved than to theorize that anyone else did. It will be recalled that Lopez itself involved a clearly commercial transaction which was insufficient to bring it inside the Commerce Clause: "... Lopez stated that 'Gilbert' had given him the gun so that he (Lopez) could deliver it after school to 'Jason,' who planned to use it in a 'gang war.' Lopez was to receive $40 for his services." United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 1993). 7 conceptual irreconciliation with the remainder of the Gun Control Act. One offense, section 930, is plainly grounded in congressional authority under the Federal Property Clause of section 8 of Article I of the Constitution. Every other offense except sections 922(o) and 922(q) is either expressly grounded upon affecting interstate commerce, [fn 3] or plainly tied to the licensing and regulatory provisions of the Act governing interstate commerce in firearms. [fn 4] Only sections 922(o) and 922(q) undertake to criminalize the bare possession of a firearm. Such "regulation" by prohibition of purely noncommercial, intrastate activity raises not only serious Commerce Clause/Tenth Amendment questions but also serious Second Amendment considerations, rejected by the court below. Indeed, this Court itself, in Lopez, specifically criticized and rejected the economic/commercial analysis used by the Ninth Circuit to affirm a section 922(o) conviction, the case of United Stares v. Evans, 928 F.2d 858 (9th Cir. 1991). See Lopez, 115 S.Ct. 1624 at 1632. Evans, in turn was then repudiated by the Ninth Circuit in United States v. Edwards, 55 F.3d 428 (1995). [fn 5] In short, this Court has already expressly repudiated the Commerce Clause ------------------ 3. E.g., sections 922(a)(3)-(5), (b)(3), (e)-(1), (n), 926A, etc., etc. 4. E.g., sections 922(a)(1)-(9), (6)-(4), (m), 923, etc., etc. 5. 55 F.3d 428 (9th Cir. 1995): In a published opinion, United States v. Edwards, 13 F.3d 291 (9th Cir. 1993), this court affirmed, in reliance upon the law of the circuit as set forth in United States v. Evans, 928 F.2d 858 (9th Cir. 1991). On May 1, 1995, the Supreme Court vacated our judgment, and remanded this matter for further consideration in light of United States v. Lopez.... 8 analysis used to uphold a section 922(o) machinegun conviction, a point which has escaped all the courts of appeals which have considered section 922(o) in light of Lopez. Oddly enough, this point seems to have escaped the Ninth Circuit itself, which in United States v. Rambo, 74 F.3d 948 (9th Cir. 1996), summarily affirmed, without argument, a section 922(o) machinegun conviction without reference to either its Evans decision or its second Edwards decision. The controlling effect of Lopez on this case and this statute can be convincingly illustrated by a simple computer exercise. If one were to use the replacement or substitute function of a word processor to replace "(q)" with "(o)" everywhere it appears in Lopez, the opinion would not be legally or logically altered in any discernible respect. The same result obtains when the phrase "mere possession of a machinegun" is substituted for "possession of a gun in a school zone." Indeed, could the result have been any different in Lopez had Alfonso Lopez been carrying a machinegun in the Texas school yard, rather than a .38 caliber handgun? Or if the statute in question had been entitled "The Machinegun-Free School Zones Act"? Even the principal dissenter in Lopez, Justice Breyer, recognized as much: The third legal problem created by the Court's holding is that it threatens legal uncertainty in an area of law that, until this case, seemed reasonably well settled. ---------------- In Lopez, the Court held that section 922(q)(l)(A) violates the Tenth Amendment. Id. Accordingly, the judgment of the district court is reversed. 9 Congress has enacted ... other statutes that contain no jurisdictional language at all, see, e.g., 18 U.S.C. section 922(o)(1) (possession of machine guns). Do these, or similar statutes regulate noncommercial activities? If so, would that alter the meaning of "affecting commerce" in a jurisdictional element? 115 S.Ct. at 1664. The short answers to Justice Breyer's rhetorical questions are "Yes, and "No". Yes, 922(o) plainly purports to regulate a noncommercial activity -- if, indeed mere possession of a firearm can be termed an "activity" -- and, No, that does not alter the plain meaning of "affecting commerce," a jurisdictional element that is plainly absent in the mere intrastate possession of a firearm. Six courts of appeals (and 40 different appellate judges [fn 6]) have now aired their views on the constitutionality of section 922(o). See United States v. Evans, 928 F.2d 858 (9th Cir. 1991), aff'g 712 F.Supp. 1435 (Mont. 1989) repudiated by United States v. Edwards, 55 F.3d 428 (9th Cir. 1995) (dictum), and ignored by United States v. Rambo, 74 F.3d 948 (9th Cir. 1996), cert. denied, 117 S.Ct. 72 (1996); United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993), followed by United States v. Pearson, 8 F.3d 631 (8th Cir. 1993), cert denied, 114 S.Ct. 2132 (1994); United States v. Wilks, 51 F.3d 1518 (10th Cir. 1995); United States v. Beuckelaere 91 F.3d 781 (6th Cir. 1996); United States v. Kenney, 9 F.3d 884 (7th Cir. 1996); United States v. Rybar, 103 F.3d ----------------- 6. Including those district court judges sitting by designation. 10 273 (3d Cir. 1996); United States v. Kirk, 105 F. 3d 997 (5th Cir. 1997) (en banc), aff'g 70 F.3d 791 (501 Cir. 1995) by an equally divided court. These decisions reflect not so much a split among the circuits, as multiple splits within the circuits. Even more startling is the wide disarray in the reasons for upholding the statute. While those who believe the statute is unconstitutional are unanimous in their reasoning, those judges upholding the statute cannot muster a majority rationale for their positions. Ten appellate judges believe section 922(o) is unconstitutional based upon Lopez and the Tenth Amendment -- eight members of the Kirk bench, and the dissenters in this case and Beuckelaere. [fn 7] The two additional votes in this case joining Circuit Judge Alito in voting for in banc rehearing strongly suggest two more judges of the Third Circuit may believe the statute is unconstitutional. App. C, infra. [fn 8] The repudiation of the Evans decision by the Ninth Circuit panel in Edwards reflects three more judges who have indicated, albeit by dictum, that section 922(o) was nullified by Lopez. Thus, 15 appellate judges in four circuits have either declared 922(o) unconstitutional, or given strong indications of that position . ----------------- 7. See also United States v. Bownds, 860 F.Supp. 336 (S.D. Miss. 1994), rev'd in light of Kirk. 8. See also Circuit Judge Becker's dissenting opinion in United States v. Bishop, 66 F.3d 569, 590 (3d Cir. 1995) (two cases), cert. denied, 116 S.Ct. 681 (1995), and the votes of three of the circuit's judges for rehearing of Bishop sub nom. United States v. Stokes, 73 F.3d 23 (3d Cir. 1995). 11 Eleven judges in four circuits believe machineguns possessed intrastate are "channels of commerce," the first Lopez category of regulatable commerce. [fn 9] Five judges in two circuits believe machineguns possessed intrastate are instrumentalities of or objects in interstate commerce, the second Lopez category of regulatable conduct. [fn 10] Fifteen judges in four circuits believe machineguns possessed intrastate are activities substantially affecting commerce, the third Lopez category of regulatable conduct. [fn 11] Two judges in the Sixth Circuit apparently believe the intrastate possession of machineguns falls into all three Lopez categories. [fn 12] --------------- 9. Hale, 978 F.2d 1016, 1017-1018; Pearson, 8 F.3d 631, 632-633; Rambo, 74 F.3d 948, 951-952. See also the district court's opinion in Evans, 712 F.Supp. 1435, 1440-1442 (Mont. 1989), aff'd on a different theory at 928 F.2d 858 (9th Cir. 1991), criticized by this Court in Lopez, 115 S.Ct. 1624 at 1632, and repudiated by the Ninth Circuit in United States v. Edwards, 55 F.3d 428 (1995). 10. Wilks, 58 F.3d 1518, 1519-1522; Beuckelaere, 91 F.3d 781, 782-787. The majority in this case below also hedged its bets by endorsing these cases without specifically following them. App. A., infra, 20a-22a. 11. Beuckelaere, 91 F.3d 781, 782-787; Kenney, 91 F.3d 884, 885-891; Rybar, 103 F.3d 273, 276-284, App. A, infra, 5a-20a; Kirk, 105 F.3d 997, 998-1005. Four of the eight Kirk "affirmers" conclude only that "Congress had a rational basis for concluding that the manufacture, transfer and possession of machineguns substantially affect commerce and section 922(o) therefore is constitutional." Id. at 998. Four others go on to construct their own "legislative findings," discussed infra. Id. at 998-1005. 12. Beuckelaere, 91 F.3d 781, 782-787. See also the majority's opinion in this case. App. A, infra, 20a-23a. 12 Eighteen judges in five circuits believe that the legislative histories of statutes which only tax and regulate firearms, and which are three and five decades old, somehow constitute sufficient legislative findings to support an outright ban of firearms under a Commerce Clause rationale years later. [fn 13] As the Court of Appeals for the Sixth Circuit noted in United States v. Wall, 92 F.3d 1444, 1447 (1996) (speaking of and quoting from Lopez), "Section 922(q) represented a 'sharp break' with prior firearm regulation. The 'importation of previous [legislative] findings ... (would therefore be) especially inappropriate.' Lopez, 115 S.Ct. at 1632." Also quoted with approval in United States v. McKinney, 98 F.3d 974, 978 (7th Cir. 1996), "Lopez instructs that the courts may not construct attenuated justifications for expanding further the authority of Congress under the Commerce Clause." Section 922(o) represents an equally sharp break with earlier firearms legislation, both conceptually and temporally, and it is especially inappropriate to import previous -- much previous -- legislative findings. Two judges (in this case) have located contemporaneous legislative Commerce Clause "findings" to support the constitutionality of section 922(o) -- consisting of three fleeting and miscellaneous excerpts from committee reports on other legislation and a single sentence spoken on ---------------- 13. Evans, 928 F.2d 858, 862; Hale, 978 F.2d 1016, 1017-1018; Pearson, 8 F.3d 631, 632633 (citing Evans and Hale); Wilks, 58 F.3d 1518, 1519-1522; Beuckelaere, 91 F.3d 781, 782-787; Rybar, 103 F.3d 273, 279-281, App. A, infra, 11a-15a. In fairness to the judges in Evans, Hale and Pearson, they did not have the benefit of this Court's Lopez decision. 13 the floor of the Senate. [fn 14] The "findings" are irrelevant, conclusory, and foundationless opinion which would be summarily rejected in any judicial proceeding. Four members of the Kirk bench have, through the magic of electronic research "created" their own findings by marrying machineguns to the illegal narcotics trade and, thereby, to the undisputed legislative history of the effect of drug trafficking on interstate commerce. [fn 15] With respect, the same result -- with a higher degree of statistical validity -- could have been achieved by a Lexis-Nexis or Westlaw search combining the terms (narcotics or drugs) & (automobiles or telephones or pocket knives or pink flamingos). This intellectually fraudulent methodology in creating a non-existent set of "legislative findings" is self- evidently invalid. It impermissibly couples firearms, themselves neutral, non-contraband, constitutionally protected objects, [fn 16] with illicit (and inflammatory) contraband per se. As the Third Circuit has noted, "Drug trafficking is an inherently commercial activity; the mere possession of a firearm is not." United States v. Orozco, 98 F.3d 105, 107 (3d Cir. 1966). ----------------- 14. App. A, infra, 12a-17a. The error in this approach is effectively pointed out in the dissenting opinion. Id at 36a-40a. 15. 105 F.3d at 1000, 1001-1002. 16. "... in the Gun-Free School Zones Act, Congress attempted to make illegal in certain areas within a state what was otherwise legal (if not constitutionally protected conduct), the personal possession of a firearm." United States v. McKinney, 98 F.3d 974, 97 (7th Cir. 1996). 14 This splendid judicial disarray over a single, short, simple statute cries out for instruction from a superior court. The Court predicted in Lopez that "a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty." 115 S.Ct. at 1633. That prophesy has been more than fulfilled and this case is the perfect opportunity and the perfect statute to eliminate some of that uncertainty and to close the credibility gap with those lower courts which cannot quite bring themselves to believe the Court meant what it said in Lopez. CONCLUSION The petition for writ of certiorari should be granted. Respectfully submitted, JAMES H. JEFFRIES, III Counsel for Raymond Rybar, Jr.