No. 95-3185 ____________________________________________________________ ____________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________________ UNITED STATES OF AMERICA, Plaintiff-Appellee v. RAYMOND RYBAR, JR., Defendant-Appellant ___________________ ON APPEAL FROM THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ___________________ BRIEF FOR THE APPELLANT ___________________ JAMES H. JEFFRIES, III 3019 Lake Forest Drive Greensboro, NC 27408 Telephone: (910) 282-6024 Of Counsel: VINCENT C. MUROVICH, JR. Murovich & Stump 100 Smithfield Street, Suites 104-106 Pittsburgh, PA 15222 Telephone: (412) 281-7222 ____________________________________________________________ ____________________________________________________________ TABLE OF CONTENTS Page Table of Contents ................................... i Statement of Jurisdiction ........................... 1 Statement of the Issues Presented and Designation of the Record Where the Issues Presented Were Raised and Ruled Upon..... 2 Statement of the Scope of Review .................... 3 Statement of Related Cases and Proceedings .......... 3 Statement of the Case ............................... 3 1. Course of Proceedings and Disposition in the Court Below .......................... 3 2. Statement of Facts.......................... 5 Summary of Argument ................................. 6 Argument: I. Section 922(o) of Title 18 of the United States Code is unconstitutional because it is beyond the enumerated powers of Congress and violative of the Tenth Amendment to the United States Constitution ............................. 7 II. Section 922(o) of Title 18 of the United States Code is unconstitutional because it impermissibly infringes upon the right to keep and bear arms guaranteed by the Second Amendment to the United States Constitution ....... 24 Conclusion .......................................... 28 Table of State Firearms Statutes .................... 29 Compilation of Law Review Articles .................. 31 Certification of Bar Membership ..................... 35 Attachments (per LAR 28.1(a)(iii)) .................. 36 Certificate of Service .............................. 37 CITATIONS Cases: Busic v. United States, 446 U.S. 398 (1980) ................................ 9 Eckert v. City of Philadelphia, 477 F.2d 610 (3d Cir. 1973)................ 27 Farmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990) .......................... 6 Frank v. United States, 860 F.Supp. 1030 (Vt. 1994) ........................... 10 Haynes v. United States, 390 U.S. 85 (1968) ................................. 9 Koog v. United States, 852 F.Supp. 1376 (W.D. Tex. 1994) ..................... 10 Mack v. United States, 856 F.Supp. 1372 (Ariz. 1994) ......................... 10 McGee v. United States, 863 F.Supp. 321 (S.D. Miss. 1994) ..................... 10 Nigro v. United States, 276 U.S. 332 (1928) ................................ 23 Printz v. United States, 854 F.Supp. 1503 (Mont. 1994) ......................... 10 Romero v. United States, Civ. No. 94-0419 (W.D. La.; 12/8/94) ............... 10 Simpson v. United States, 435 U.S. 6 (1978) .................................. 9 Tot v. United States, 319 U.S. 463 (1943) ................................ 9 United States v. Ardoin, 19 F.3d 177 (5th Cir. 1994) ....................... 6, 23 United States v. Bass, 404 U.S. 336 (1971) ................................ 9 United States v. Bownds, 860 F.Supp. 336 (S.D. Miss. 1994) ..................... 23 United States v. Dalton, 960 F.2d 121 (10th Cir. 1992) ...................... 15 United States v. Evans, 928 F.2d 858 (9th Cir. 1991) ....................... 17-18 United States v. Graves, 554 F.2d 65 (3d Cir. 1997) ......................... 27 United States v. Lopez, U.S. 9, , 1995 WL 238424 (No. 12-19, 93-1260, 4/26/95)......................... 24 United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993) ........................... 19 United States v. Miller, 307 U.S. 174 (1939) ....................... 24-27 United States v. Rock Island Armory, Inc., 773 F.Supp. 117 15, 20 (C.D. Ill. 1991) .......................... 23 United States v. Staples, 114 S.Ct. 1793 (1994) ............................... 9 United States v. Tepper, 793 F.Supp. 270 (Colo. 1992) .......................... 6 United States v. Thompson/Center Arms Co., 112 S.Ct. 2102 (1992) ........... 9 Statutes: Page Title 10, United States Code, Sec. 311 ....... 26 Title 18, United States Code: Gun Control Act of 1968 ................... 5, 19 Firearm Owners' Protection Act of 1986 .... 8, 10, 11 Sec. 102(9) ............................. 8, 11 Brady Handgun Prevention Act and Federal Firearms License Reform Act of 1993 ...................... 10 Sec. 922(o) ............................... passim Sec. 921(a)(23) ........................... 8 Sec. 922(q) ............................... 13-19 Sec. 3231 ................................. 2 Internal Revenue Code of 1986 (26 U.S.C.): National Firearms Act of 1934 ............. 5, 8, 20-22 Sec. 5801 ................................. 5 Sec. 5845(b) .............................. 3 Sec. 5861(e) .............................. 3, 4 Title 28, United States Code: Sec. 41 ................................... 2 Sec. 1291 ................................. 2 Pennsylvania Statutes Annotated (Purdon), tit. 18, Sec. 908 ............... 12 Miscellaneous: Page United States Constitution: Article III ............................... 2 Amendment II .............................. 2, 7, 24-28 Amendment IX .............................. 11, 12 Amendment X ............................... 2, 7, 12 Federal Rules of Criminal Procedure: Rule 4(b) ................................. 1 Rule 11(a)(2) ............................. 4 United States Sentencing Guidelines .......... 4, 5 132 Cong. Rec. H1750 (April 10, 1986) ........ 10, 11 National Firearms Act: Hearings Before the House Committee on Ways and Means, 73d Cong., 2d Sess. (1934) ................ 20 Federal Firearms Act: Hearings Before the Subcommittee to Investigate Juvenile Delinquency, Judiciary Committee, U.S. Senate, 90th Cong., 1st Sess., 1088 (1967) .................... 22 Gun-Free School Zones Act of 1990: Hearings on H.R. 3757 Before the Subcommittee on Crime of the House Committee on the Judiciary, 101st Cong., 2d Sess. 10 (1990) ................. 23 David T. Hardy, "The Firearms Owners' Protection Act: A Historical and Legal Perspective," 17 Cumberland L.R. 585 (1986-1987) ...................... 10 Jane's Infantry Weapons 1990-91 (Jane's Information Group; Surrey, UK; 1990) ......................... 25, 26 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 95-3185 ___________________ UNITED STATES OF AMERICA, Plaintiff-Appellee v. RAYMOND RYBAR, JR., Defendant-Appellant ___________________ ON APPEAL FROM THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ___________________ BRIEF FOR THE APPELLANT ___________________ STATEMENT OF JURISDICTION This is an appeal from a judgment of conviction entered on March 31, 1995, in the United States District Court for the Western District of Pennsylvania in Criminal No. 94-243. A notice of appeal (Appendix, p. 1) was filed on that date and the appeal is timely under the provisions of Federal Rule of Appellate Procedure 4(b). Subject matter jurisdiction was vested in the district court by 18 U.S.C. section 3231 and Article III of the United States Constitution, which establish the original jurisdiction of the district courts of the United States over all offenses against the laws of the United States. Subject matter jurisdiction is conferred upon this Court by 28 U.S.C. section 1291, which gives the United States courts of appeals jurisdiction over appeals from all final decisions of the district courts, and 28 U.S.C. section 41, which gives this Court appellate jurisdiction over the United States District Court for the Western District of Pennsylvania. STATEMENT OF THE ISSUES PRESENTED AND DESIGNATION OF THE RECORD WHERE THE ISSUES PRESENTED WERE RAISED AND RULED UPON 1. Whether Section 922(o) of Title 18 of the United States Code is unconstitutional because it is beyond the enumerated powers of Congress and violative of the Tenth Amendment to the United States Constitution. 2. Whether Section 922(o) of Title 18 of the United States Code is unconstitutional because it impermissibly infringes upon the right to keep and bear arms guaranteed by the Second Amendment to the United States Constitution. The issues presented here were raised in the plea agreement between the government and the appellant, Raymond Rybar, Jr. (hereafter "Rybar") (App. 13), and in Rybar's motion to dismiss the indictment (App. 4, entry 9). The motion was denied in pertinent part at the hearing on Rybar's change of plea on January 9, 1995. (App. 16). STATEMENT OF THE SCOPE OF REVIEW The scope of review as to all issues on appeal is plenary and de novo in that the only question presented is the constitutionality of a federal statute. STATEMENT OF RELATED CASES AND PROCEEDINGS Undersigned counsel is unaware of any related cases or proceedings. STATEMENT OF THE CASE 1. Course of proceedings and disposition in the court below. A grand jury of the United States District Court for the Western District of Pennsylvania indicted Rybar in a four count indictment returned on November 15, 1994. (App. 8-11). The indictment charged Rybar in counts one and three with knowingly and unlawfully possessing two specifically described machineguns[FN1] in violation of 18 U.S.C. section 922(o); and in counts two and four with knowingly and unlawfully transferring the same two machineguns in violation of 26 U.S.C. section 5861(e). (App. 8-11). On December 6, 1994, at his arraignment, Rybar entered a plea of not guilty. (App. 4). On December 29, 1994, Rybar concluded a plea agreement with the government whereby he would enter a conditional plea of guilty pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, preserving for appeal the issue of the constitutionality of the two statutes under which he was charged. (App. 12, 13-15). At a hearing on January 9, 1995, the district court granted Rybar's motion to dismiss counts two and four of the indictment and denied his motion to dismiss counts one and three. (App. 16-17). The district court dismissed counts two and four of the indictment because it found that the enactment of 18 U.S.C. section 922(o) in May 1986 had rendered 26 U.S.C. section 5861(e) unconstitutional insofar as that provision pertained to machineguns (ibid.); the court then accepted Rybar's conditional plea of guilty as to counts one and three of the indictment (App. 32). Following the submission of a presentence investigation report and a sentencing hearing (App. 49-56), Rybar was given the minimum sentence permissible under the United States Sentencing Guidelines, 18 months imprisonment, and his motion for release under bond pending appeal was denied. (App. 56, 57). He is presently incarcerated. As of the date of the filing of this brief the United States had not cross appealed from the decision of the district court dismissing counts two and four of the indictment. Thus, that ruling is the law of the case. As of the date of the filing of this brief the district court had not issued an opinion or memorandum pursuant to LAR 3.1. 2. Statement of Facts. Raymond Benjamin Rybar, Jr., is a 46-year-old citizen of the United States and a life-long resident of western Pennsylvania. (App. 4, 57). He had no previous criminal record, a fact evidenced by the Sentencing Guidelines criminal history category under which he was sentenced (Category I), and by his possession of a federal firearms dealer's license -- unavailable to a convicted felon. At all times pertinent to the indictment and this appeal Rybar was a duly licensed federal firearms dealer and a special occupational taxpayer under the National Firearms Act of 1934, 26 U.S.C. section 5801, et seq.,[FN2] authorized to manufacture, possess, sell and transfer machineguns. (App. 36-37, 44, 45, 52-53). On or about April 4, 1992, Rybar possessed the two machineguns described in the indictment. (App. 8, 10, 16-18). The machineguns were not registered with the United States under the NFA because, since passage of 18 U.S.C. section 922(o) in 1986, the government has refused to accept the legally required registration forms and transfer applications. (App. 4, entry 9; 16-17). See also Farmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990), rehearing and rehearing en banc denied, 914 F.2d 1498 (11th Cir. 1990) (Table); United States v. Ardoin, 19 F.3d 177 (5th Cir. 1994). As stated in United States v. Tepper, 793 F.Supp. 270, 271 (Colo. 1992): ... the government will not permit the registration of machineguns covered by section 922(o), and will not accept the tax which would otherwise be required by the registration requirements of the NFA. SUMMARY OF ARGUMENT 1. Our Constitution creates a national government of enumerated powers. The federal legislature may legislate only pursuant to an explicit grant of authority. All other power is reserved to the States and to the people. In purporting to ban the mere possession of machineguns (18 U.S.C. section 922(o)) Congress failed to articulate the authority under which it purported to act. The only conceivable power which it could have relied upon is the power under the Commerce Clause to regulate interstate commerce. However, section 922(o) is not a regulation of the channels of interstate commerce nor are machineguns, in and of themselves, instrumentalities of interstate commerce or commodities in interstate commerce. Nor is the bare possession of a machinegun an activity which substantially affects interstate commerce. Section 922(o) cannot be sustained under the Commerce Clause and is therefore unconstitutional. The appellant's conviction under an unconstitutional statute cannot stand. 2. Individual citizens have a personal right under the Second Amendment to keep and bear arms which may not be infringed by the Congress. Section 922(o) infringes that constitutional right and is therefore void. Even if the right secured by the Second Amendment is viewed as a "collective" or governmental right tied to the existence of a well-regulated militia, machineguns are traditional infantry weapons and therefore intimately connected to the existence, training and equipage of a militia. By both historical standards and federal statute the appellant was a member of the militia and his right to possess a machinegun cannot be infringed. Section 922(o) is, therefore, constitutionally void on its face and as applied. ARGUMENT I. Section 922(o) of Title 18 of the United States Code is unconstitutional because it is beyond the enumerated powers of Congress and violative of the Tenth Amendment to the United States Constitution. Section 922(o) of Title 18 of the United States Code, the statute under which Rybar was convicted, provides in its entirety: (o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun (2) This subsection does not apply with respect to-- (A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; of (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect. The provision was added to Title 18 of the United States Code by Section 102(9) of the Firearm Owners' Protection Act of 1986, which became effective on May 19, 1986. Public Law No. 99-308, 100 Stat. 449-461, 99th Congress, 2d Session (May 19, 1986), hereafter "FOPA." Prior to that date, the only federal regulation of machineguns qua machineguns[FN3] was found in the National Firearms Act of 1934, supra. Four initial points should be made concerning 18 U.S.C. section 922(o): First, by Section 922(o) Congress purported to ban the mere possession of an entire class of firearms for the first time in the history of the Republic. The second time the Congress made such an attempt was the Gun-Free School Zones Act of 1990, 18 U.S.C. section 922(q), discussed infra. Second, the Supreme Court has always had to scrutinize federal firearms legislation carefully with one eye on the Constitution, and, on more than one occasion, has had to declare a firearms statute unconstitutional,[FN4] or to severely limit its reach in order to preserve its constitutionality.[FN5] Other federal firearms statutes appear to be destined for the same fate.[FN6] Third, Section 922(o) has no legislative history. It appeared as an overnight floor amendment to the FOPA with no floor debate, no committee report, and no congressional findings: "One final amendment, banning private ownership of any machinegun not already in lawful ownership on the date of enactment, was raised with only minutes left in the time allotted under the rule. It passed on a rather irregular voice vote.217 --------------- 217. The record shows simply that the amendment 'was agreed to.' [132 Cong. Rec.] at H1752 [(daily ed. Apr. 9, 1986)]. Those watching the debates could note that the chair, upon making this proclamation on the voice vote, refused to hear the Members calling for a recorded vote." David T. Hardy, "The Firearm Owners' Protection Act: A Historical and Legal Perspective, "17 Cumberland L.R. 585, 625 (1986-1987). Unlike many recent congressional enactments the title of FOPA does not violate truth-in-advertising principles. It is in large part a statute protecting firearm owners from a long list of enumerated abuses by the Bureau of Alcohol, Tobacco and Firearms (hereafter "BATF") and the Department of Justice.[FN7] Literally the only fingerprints left by the author of Section 922(o) consist of the remark by Representative Hughes that "I don't know why anyone would object to the banning of machineguns." 132 Cong. Rec. H1750 (April 10, 1986). (Some quarter-million private collectors and owners of legally registered machineguns, including a not inconsiderable number of lawyers and judges, could have answered Mr. Hughes' rhetorical question by pointing out that the founding fathers may have been objecting when they adopted the Second Amendment: the single-shot, muzzle-loading Brown Bess musket was, after all, the "assault rifle" of 1775.) Fourth, Pennsylvania, along with every other state, commonwealth and territory in the union, regulates firearms, including -- usually by name or function -- machineguns. See 18 Penna. Stats. Ann. (Purdon) section 908. See also the Table of State Firearms Statutes, infra. This regulation has traditionally and historically been an acknowledged exercise of the police power thought to have been reserved to the states by the Ninth and Tenth Amendments. It is unusual, perhaps unique, that 12 days before the due date of an appellant's brief in this Court the Chief Justice of the United States should write the appellant's brief for him. That is what has happened in this case with the issuance of the Supreme Court's opinion, on April 26, 1995, in United States v. Lopez, U.S. , 1995 WL 238424, 1995 U.S. LEXIS 3039 (No. 93-1260, 4/26/95), an opinion in a markedly similar case, involving an almost identical statute, which is seemingly dispositive of the issue before this Court. In summary, the Chief Justice wrote for the majority in Lopez: In the Gun-Free School Zones Act of 1990, Congress made it a federal offense "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)(1)(A) (1988 ed., Supp. V). The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress "[t]o regulate Commerce ... among the several States...." U.S. Const., Art. I, section 8, cl. 3. Majority opinion, slip opinion, page 1. The Court continued with an examination of the commerce power of the Congress under the Constitution: We start with first principles. The Constitution creates a Federal Government of enumerated powers. *** As James Madison wrote, "[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." *** This constitutionally mandated division of authority "was adopted by the Framers to ensure protection of our fundamental liberties." *** Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Id. at 2-3 (citations omitted). The Court noted that historically it had identified three broad categories of activity which Congress may regulate under the commerce power: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, including persons or things in interstate commerce; and (3) "those activities having a substantial relation to interstate commerce ... , i.e., those activities that substantially affect interstate commerce." Id. at 9-10 (citations omitted). The Court then turned to an analysis of the statute at issue in Lopez in terms of the congressional commerce power: We now turn to consider the power of Congress, in the light of this framework, to enact section 922(q). The first two categories of authority may be quickly disposed of: section 922(q) is 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. Thus, if section 922(q) is to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate commerce. Id. at 10. The government could point to no other source of constitutional authority for enactment of section 922(q). It suffers the same inability here. This Court will note that section 922(o) "is not a regulation of the use of the channels of commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce." Neither can section 922(o) "be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce." The Court in Lopez also states: Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. Id. at 12-13 (footnote omitted). This Court will note that section 922(o) "is a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise." Nor is it "an essential part of a larger regulation of economic activity, in which the regulatory scheme would be undercut unless the interstate activity were regulated." Indeed, to the extent that section 922(o) has been held to nullify the machinegun provisions of the NFA, it is positively destructive of an economic regulatory (tax) scheme. See United States v. Dalton, 960 F.2d 121 (10th Cir. 1992); United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D. Ill. 1991). The Court in Lopez next stated: Second, section 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce. For example, in United States v. Bass, 404 U.S. 336 (1971), the Court interpreted former 18 U.S.C. section 1202(a), which made it a crime for a felon to "receiv[e], posses[s], or transpor[t] in commerce or affecting commerce ... any firearm." *** The Court interpreted the possession component of section 1202(a) to require an additional nexus to interstate commerce both because the statute was ambiguous and because "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance." *** The Bass Court set aside the conviction because although the Government had demonstrated that Bass had possessed a firearm, it had failed "to show the requisite nexus with interstate commerce." *** The Court thus interpreted the statute to reserve the constitutional question whether Congress could regulate, without more, the "mere possession" of firearms. *** Unlike the statute in Bass, section 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce. Maj. op. at 13 (citations omitted). Just as clearly, section 922(o) "contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." The Lopez Court then addressed the government's economic impact/national productivity arguments: We pause to consider the implications of the Government's arguments. The Government admits, under its "costs of crime" reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. See Tr. of Oral Arg. 8-9. Similarly, under the Government's "national productivity" reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of section 922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate. Id. at 15-16. The Court went on to note that These are not precise formulations, and in the nature of things they cannot be. But we think they point the way to a correct decision of this case. 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. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. Id. at 18-19. Moreover To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. *** The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, ... and that there never will be a distinction between what is truly national and what is truly local.... This we are unwilling to do. Id. at 19 (citations omitted). What must be immediately apparent to this Court is that every cogent principle announced by the Supreme Court in its Lopez analysis of section 922(q) under the Commerce Clause applies with equal force and logic to section 922(o) here. Indeed, 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." We are not left to conjecture, however, whether the Lopez analysis reaches section 922(o). The constitutionality of section 922(o), our statute here, was upheld earlier by the United States Court of Appeals for the Ninth Circuit in United States v. Evans, 928 F.2d 858 (9th Cir. 1991), on precisely the same "economic impact" grounds urged by the government as sustaining section 922(q) in Lopez. The Lopez Court explicitly cites Evans and explicitly rejects its reasoning. Id. at 15-16. Manifestly, there is no other possible source of constitutional authority than the Commerce Clause under which Congress could have enacted section 922(o). We invite the government to demonstrate otherwise. Justice Thomas, concurring, also recognized the implications of Lopez on the situation here: While the principal dissent concedes that there are limits to federal power, the sweeping nature of our current test enables the dissent to argue that Congress can regulate gun possession. But it seems to me that the power to regulate "commerce" can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals throughout the 50 States. Concurring opinion of Justice Thomas, slip op. at 2. Elsewhere Justice Thomas notes These cases all establish a simple point: from the time of the ratification of the Constitution to the mid-1930's, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause. Moreover, there was no question that activities wholly separated from business, such as gun possession, were beyond the reach of the commerce power. Id. at 17-18 (footnote omitted). Failing to find solace in the law, the principal dissenter in Lopez, Justice Breyer, decided to commit sociology. Carrying the concept of the "Brandeis Brief" to a reductio ad absurdum, he appends 17 pages of citations to sociological studies to his dissent. Nevertheless, the dissent agrees with our contention here that the majority's analysis of section 922(q) in Lopez reaches section 922(o): 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. Congress has enacted many statutes (more than 100 sections of the United States Code), including criminal statutes (at least 25 sections), that use the words "affecting commerce" to define their scope, see, e.g., 18 U.S.C. section 844(i) (destruction of buildings used in activity affecting interstate commerce), and 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? Dissenting opinion of Justice Breyer, slip op. at 17. The Court of Appeals for the Fifth Circuit also recognized in its opinion in Lopez that section 922(o), like section 922(q), was generically different from the other provisions of the Gun Control Act of 1968, all of which have an interstate or commerce nexus. See United States v. Lopez, 2 F.3d 1342, 1356 (5th Cir. 1993). The short answers to Justice Breyer's rhetorical questions are "Yes," and "No." Yes, section 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 possession of a firearm. Oddly, in defending the constitutionality of section 922(o), as it has done here, the executive branch is asserting a congressional power, in the exact same legal context, it has long denied existed. Consistency may, as said by Ralph Waldo Emerson, be the hobgoblin of little minds, but it is also the foundation stone -- stare decisis -- of our juridical system. Sixty-two years ago this month the House Ways and Means Committee of the Seventy-third Congress was considering House Bill 9066, which became the National Firearms Act of 1934. Throughout lengthy hearings, all concerned agreed that the federal legislature lacked the constitutional authority to ban the mere possession of machineguns (or any other firearms for that matter). As United States Attorney General Homer S. Cummings acknowledged at the time, "we have no inherent police power to go into certain localities and deal with local crime. It is only when we can reach those things under ... the power of taxation, that we can act." National Firearms Act: Hearings Before the House Committee on Ways and Means, 73d Cong., 2d Sess. 6-8 (1934), quoted in United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D. Ill. 1991). When Representative Harold Knutson asked "why should we permit the manufacture, that is, permit the sale of the machine guns to any one outside of the several branches of the Government?" National Firearms Act Hearings, supra, at 13-14. Representative Sumners suggested that "this is a revenue measure and you have to make it possible at least in theory for these things to move in order to get internal revenue?" Ibid. The Attorney General agreed: "That is the answer exactly." Id. at 14. The following dialogue then occurred: Attorney General CUMMINGS: ... If we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say, "we will tax the machine gun," ... you are easily within the law. Mr. LEWIS. In other words, it does not amount to prohibition, but allows of regulation. Attorney General CUMMINGS: That is the idea. We have studied that very carefully. Id. at 19. The following interesting exchange also occurred between two committee members, Representative McClintic from Oklahoma, and an obscure Kentucky constitutionalist who would become a venerated Chief Justice of the United States: Mr. VINSON. Mr. McClintic, listening to this argument in regard to making it a felony to have a pistol, my mind reverts back to felonies that were set up in Russia at the time when the Czar was the ruler of Russia. I imagine that the Czar and his department of justice had the most splendid purpose in mind when they picked up a Russian citizen and tried that Russian citizen on some trivial offense and then transported him to Siberia when, as a matter of fact, what they were trying to get at was a conspiracy against the Czar. They justified the punishment and that method of dealing it out by saying that the end justified the means. Mr. MCCLINTIC. I do not think that is comparable to the situation that exists in this country. Mr. VINSON. I rather imagine that that describes the mental processes of the people over there when they sent their citizens to Siberia for the commission of a criminal offense of one kind when they could not get the evidence to convict them for the offense which they were really trying to reach. Id. at 121. Thus, at least in 1934, both the executive and the legislative branches of the government understood that Congress lacked the constitutional authority it asserts here -- the power to ban the mere possession of firearms. This understanding apparently continued into 1967 when Treasury Department General Counsel Fred B. Smith advised Congress against a proposed amendment to the NFA which would make it unlawful for a person under 21 years of age to possess an NFA firearm: It seems doubtful that the ... provision can be justified under the taxing or commerce powers, or under any other power enumerated in the Constitution, for Federal enactment. Consequently, the Department questions the advisability of including in the bill a measure which could be construed as an usurpation of a [police] power reserved to the states by Article X of the United States Constitutional Amendments. Federal Firearms Act: Hearings Before the Subcommittee to Investigate Juvenile Delinquency, Judiciary Committee, U.S. Senate, 90th Cong., 1st Sess., 1088 (1967). A faint glimmer of this understanding is found in the prophetic testimony of BATF's Deputy Chief Counsel and its Chief of the Firearms Division in their testimony regarding the proposed Gun-Free School Zones Act: Finally, we would note that the source of constitutional authority to enact the legislation is not manifest on the face of the bill. By contrast, when Congress first enacted the prohibitions against possession of firearms by felons, mental incompetents and others, the legislation contained specific findings relating to the Commerce Clause and other constitutional bases, and the unlawful acts specifically included a commerce element. Gun-Free School Zones Act of 1990: Hearings on H.R. 3757 Before the Subcommittee on Crime of the House Committee on the Judiciary, 101st Cong., 2d Sess. 10 (1990) (statement of Bradley Buckles and Richard Cook). This understanding of constitutional limitations was also shared by the courts. See for example the analysis of Nigro v. United States, 276 U.S. 332, 48 S.Ct. 388, 72 L.Ed. 600 (1928), and other decisions, and their interaction with the NFA as described in United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D. Ill. 1991), gov't appeal dismissed on gov't motion, No. 91-2595, 1991 WL 224268 (7th Cir., 8/13/91). See also the dissenting opinion in United States v. Ardoin, 19 F.3d 177, 187-188 (5th Cir. 1994). Finally, the only court which has considered the constitutionality of section 922(o) in light of the Lopez result (albeit at the court of appeals level) has declared the statute unconstitutional based upon the principles enunciated in Lopez. See United States v. Bownds, 860 F.Supp. 336 (S.D. Miss. 1994). The government has not appealed the Bownds decision. Section 922(o) of Title 18 of the United States Code is manifestly unconstitutional on its face, because it was beyond the enumerated powers of Congress to enact, and should be declared void by this Court. II. Section 922(o) of Title 18 of the United States Code is unconstitutional because it impermissibly infringes upon the right to keep and bear arms guaranteed by the Second Amendment to the United States Constitution. Like the comedian Rodney Dangerfield, the Second Amendment to the United States Constitution "don't get no respect." The Amendment provides in its entirety that "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." Article II of Articles in Addition to, and Amendment of, the Constitution of the United States of America, Proposed by Congress, and Ratified by the Several States, Pursuant to the Fifth Article of the Original Constitution. The amendment became law on December 15, 1791, upon ratification by the Commonwealth of Virginia, the eleventh of the then 14 existing States. Only once has the Supreme Court squarely addressed the issue presented by this case, and only in an ex parte context. In United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), the Court dealt with a prosecution under the NFA for possession of an unregistered sawed-off shotgun. The defendants had contended in the district court that the act violated the Second Amendment and the district court declared the act unconstitutional under that amendment. 26 F.Supp. 1002 (W.D. Ark. 1939). In a direct appeal to the Supreme Court, where no appearance was made or brief filed on behalf of the defendants, the Supreme Court dealt with the Second Amendment issue by stating: In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. 307 U.S. at 177. The decision could therefore be said to be one of a failure of proof (where the defendants were not represented and not before the Court). In fact, shotguns -- including short-barreled shotguns -- have been issued to and used by U.S. forces in every conflict since at least 1917. They are still carried in the U.S. military inventory. One obvious conclusion to be drawn from Miller -- in addition to the efficacy of the adversary system -- is that if the firearm had been shown to be a military-type firearm, such as the ones involved here, the Court's sole basis for rejecting the Second Amendment argument would have been lacking. The machineguns described in this indictment are incontestably military-type firearms. The M3 .45 caliber submachinegun was designed, manufactured, purchased and issued by the United States government to its armed forces during World War II, continuing in official use until 1957. See Jane's Infantry Weapons 1990-91, pp. 121-122 (Jane's Information Group; Surrey, UK; 1990). The Chinese Type 54 machinegun is a Chinese government copy of a Soviet machinegun issued to the Chinese armed forces. Id. at 304, 349-350. The Miller Court also went into a lengthy exposition on the history of the "militia" without explaining the pertinence of its discussion to the case before it. The implication appears to be that the defendants were not members of the militia (so far as appeared from the record) and therefore were ineligible to invoke the protection of the Second Amendment. Aside from the fact that this would be a singular interpretation of a right guaranteed by the Bill of Rights, it flies in the face of both history and the legal implications of 10 U.S.C. section 311. There was no National Guard or military reserve in 1791. The "militia" at the time of the adoption of the Second Amendment was the entire male citizenry. This fact is reflected today in 10 U.S.C. section 311 which provides in pertinent part that [t]he militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are ... citizens of the United States.... Thus, at all times pertinent to the indictment here, Rybar was a member of the federally-defined statutory militia of the United States. If, indeed, the rights protected by the Second Amendment can only be sustained as a vehicle for maintenance of a militia, and only with respect to militarily useful firearms, then this appellant comes squarely within its protection. Moreover, the Miller Court was quite simply wrong in its superficial (and one-sided) analysis of the Second Amendment. The overwhelming body of scholarly analysis and commentary in recent years demonstrates persuasively the Court's error. See the listing of law review articles in the compilation attached infra. This Court has also twice given a superficial nod to the Miller holding. In Eckert v. City of Philadelphia, 477 F.2d 610 (3d Cir. 1973), the Court went out of its way to "rule" on a Second Amendment issue (the constitutionality of a Philadelphia city firearms ordinance) even though the issue had been rendered moot.[FN8] In United States v. Graves, 554 F.2d 65 (3d Cir. 1977) (en banc), the five members of the majority went out of their way to demolish a Second Amendment argument never raised (or presumably argued) by the parties.[FN9] This case offers this Court the same opportunity presented to and seized by the Fifth Circuit in Lopez: to correct 60 years of sloppy and erroneous analysis of a fundamental constitutional issue. In summary, there is nothing in Supreme Court jurisprudence to suggest that a flat ban or prohibition on firearms, especially a class of militarily useful firearms, can survive Second Amendment scrutiny, and much to suggest that it cannot. CONCLUSION For the reasons discussed above, the decision of the district court of January 9, 1995, refusing to dismiss counts one and three of the indictment, and the judgment of conviction entered thereon on March 31, 1995, were erroneous and should be reversed and the indictment ordered dismissed. Respectfully submitted, ______________________________ JAMES H. JEFFRIES, III 3019 Lake Forest Drive Greensboro, NC 27408 Telephone: (910) 282-6024 Of Counsel: VINCENT C. MUROVICH, JR. Murovich & Stump 100 Smithfield Street, Suites 104-106 Pittsburgh, PA 15222 Telephone: (412) 281-7222 TABLE OF STATE FIREARMS STATUTES Alaska Statutes, section 11.61.200. American Samoa Territorial Law, title 46, section 46.4202(a)(2). Arizona Revised Statutes Annotated section 13-3101. Arkansas Code Annotated sections 5-73-103, 104, 202-211. California Penal Code, section 12200, et seq. Colorado Revised Statutes section 18-12-102. Connecticut Gen. Statutes Annotated, title 53, section 53-202. Delaware Code Annotated, title 11, section 1444 District of Columbia Code Annotated, title 6, chapter 23; title 22, chapter 32. Florida Statutes Annotated, chapter 790. Georgia Code of 1981, Annotated, title 16, chapter 11. Guam Territorial Law, title 10, section 60100, et seq. Hawaii Revised Statutes, title 10, chapter 134. Idaho Code, chapter 33. Illinois Compiled Statutes Annotated, chapter 430, Act 65, chapter 720, article 24. Indiana Statutes Annotated (Burns), title 35, article 47. Iowa Code Annotated, chapter 724. Kansas Statutes Annotated, chapter 21. Kentucky Revised Statutes, chapters 237, 527. Louisiana Statutes Annotated, title 14, chapter 1, sections 91, 95.1, chapter 9. Maine Revised Statutes Annotated, title 15, title 17-A, chapters 1, 23, 43, 252-A. Maryland Annotated Code, article 27. Massachusetts Annotated Laws, chapter 140, chapter 269, section 10, et seq. Michigan Compiled Laws, Acts 372 of 1927, 319 of 1990, 328 of 1931. Minnesota Statutes Annotated, chapter 471, section 471.633, et seq., chapter 609, section 609.11, et seq., chapter 624, section 624.71, et seq. Mississippi Code, title 97, chapter 9. Missouri Annotated Statutes (Vernon's), chapter 571. Montana Code Annotated, title 45, chapter 8, section 45-8-301, et seq. Nebraska Revised Statutes, chapter 28, articles 12, 24. Nevada Revised Statutes, title 16, chapter 202. New Hampshire Revised Statutes Annotated, title XII, chapter 159. New Jersey Statutes Annotated, title 2C, chapters 39, 58. New Mexico Statutes Annotated, chapter 30, section 30-7-16, et seq. New York Consolidated Laws (McKinney's), Book 39, articles 265, 400. North Carolina General Statutes, chapter 14, sections 14-288.8, 14-315, 14-402, et seq. North Dakota Century Code, title 62.1. Northern Marianas Territorial Law, title 6, chapter 2. Ohio Revised Code, title 29, chapter 2923. Oklahoma Statutes Annotated, title 21, chapter 53. Oregon Revised Statutes, title 16, chapter 166. Pennsylvania Statutes Annotated (Purdon), title 18, section 908. Puerto Rico Laws Annotated, title 25, chapters 51, 57. Rhode Island General Laws, title 11, chapter 47. South Carolina Code, title 16, chapters 23, 31. South Dakota Codified Laws, titles 22, 23. Tennessee Code Annotated, title 39, chapter 17, part 13. Texas Codes Annotated (Vernon's), title 10, chapter 46. Utah Code Annotated, title 76, chapter 10, part 5. Vermont Statutes Annotated, title 13, chapter 85. Virginia Code, title 18.2, section 18-2-85, et seq. Virgin Islands Code, title 23, section 451, et seq. Washington Revised Code Annotated, title 9, chapter 9.41. West Virginia Code, chapter 61, article 7. Wisconsin Statutes Annotated, chapter 175, section 175.35, chapter 941, section 941.25, et seq. Wyoming Statutes, title 6, chapter 7. SECOND AMENDMENT LAW REVIEW ARTICLES Akhil Reed Amar, "The Bill of Rights and the Fourteenth Amendment," 101 Yale Law Journal 1131 (April 1992). --- "The Bill of Rights as a Constitution," 100 Yale Law Journal 1131 (1990). Bernard J. Bordenet, "The Right to Possess Arms: The Intent of the Framers of the Second Amendment," 21 University of West Los Angeles Law Review 1 (1990). David I. Caplan, "The Right of the Individual to Bear Arms: A Recent Judicial Trend," 1982/4 Detroit College of Law Review 789 (Winter). --- "Handgun Control: Constitutional or Unconstitutional?" 10 North Carolina Central Law Journal 53 (1979). --- "Restoring the Balance: The Second Amendment Revisited," 5 Fordham Urban Law Journal 31 (Fall 1976). Robert J. Cottrol and Raymond T. Diamond, "The Second Amendment: Toward an Afro-Americanist Reconsideration," 80 Georgetown Law Journal 309 (1991). --- "The Fifth Auxiliary Right," 104 Yale Law Journal 995 (1995). Robert Dowlut, "Federal and State Constitutional Guarantees to Arms," 15 University of Dayton Law Review 59 (1989). --- "The Current Relevancy of Keeping and Bearing Arms," 15 University of Baltimore Law Forum 32 (1984). --- "The Right to Arms," 36 Oklahoma Law Review 65 (1983). Smith Fussner, Review, 3 Constitutional Commentary 582 (1986). Richard E. Gardiner, "To Preserve Liberty -- A Look at the Right to Keep and Bear Arms," 10/1 Northern Kentucky Law Review 63 (1982). --- "Gun Control: Is It a Legal and Effective Means of Controlling Firearms in the United States?" 21 Washburn Law Journal 244 (1982). Stephen P. Halbrook, "Personal Security, Personal Liberty, and the 'Constitutional Right to Bear Arms': Visions of the Framers of the Fourteenth Amendment," 5/2 Seaton Hall Constitutional Law Journal 341 (Spring 1995). Stephen P. Halbrook, "The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment," 26 Valparaiso University Law Review 131 (1991). --- "Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment," 15 University of Dayton Law Review 91 (Fall 1989). --- "What the Framers Intended: A Linguistic Analysis of the Right to 'Bear Arms'," 49 Law and Contemporary Problems 151 (1986). --- "To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791," 10/13 Northern Kentucky Law Review 13 (1982). --- "The Jurisprudence of the Second and Fourteenth Amendments," 4 George Mason University Law Review 1 (1981), reprinted in part in The Right to Keep and Bear Arms, Report of the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 2d Sess., pp. 68-82 (February 1982). David T. Hardy, "The Firearms Owners' Protection Act: A Historical and Legal Perspective," 17 Cumberland Law Review 585 (1986-1987). --- "The Second Amendment and the Historiography of the Bill of Rights," 4 Journal of Law and Policy 1 (1987). --- "Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment," 9 Harvard Journal of Law and Public Policy 559 (1986). --- "Historical Bases of the Right to Keep and Bear Arms," The Right to Keep and Bear Arms, Report of the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 2d Sess., pp. 45-67 (February 1982). --- "Firearms Ownership and Regulation: Tackling an Old Problem with Renewed Vigor," 20 William and Mary Law Review 235 (1978). Nicholas Johnson, "Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment," 24 Rutgers Law Journal 1 (1992). Don B. Kates, Jr., "The Second Amendment and the Ideology of Self-Protection," 9 Constitutional Commentary 87 (February 1992). Don B. Kates, Jr., "The Second Amendment: A Dialogue," 49 Law and Contemporary Problems 143 (1986). --- "Handgun Prohibition and the Original Meaning of the Second Amendment," 82 Michigan Law Review 203 (1983). --- "Some Remarks on the Prohibition of Handguns," 23 St. Louis University Law Journal 12 (1978). --- "Reflections on the Relevancy of Gun Control," 13 Criminal Law Bulletin 119 (1977). John Levin, "The Right to Bear Arms: The Development of the American Experience," 48 Chicago-Kent Law Review 148 (Fall-Winter 1971), reprinted in The Right to Keep and Bear Arms, Report of the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 2d Sess., pp. 110-129 (February 1982). Sanford Levinson, "The Embarrassing Second Amendment," 99 Yale Law Journal 637 (1989). Nelson Lund, "The Second Amendment, Political Liberty, and the Right to Self-Preservation," 39 Alabama Law Review 103 (1987). Joyce Lee Malcolm, Review, 54 George Washington University Law Review 582 (1986). --- "The Right of the People to Keep and Bear Arms: The Common Law Tradition," 10 Hastings Constitutional Law Quarterly 285 (1983). Thomas M. Moncure, Jr., "Who is the Militia -- The Virginia Ratifying Convention and the Right to Bear Arms," 19 Lincoln Law Review 1 (1990). Eric C. Morgan, "Assault Rifle Legislation: Unwise and Unconstitutional," 17 American Journal of Criminal Law 143 (1990). Glenn H. Reynolds, "The Right to Keep and Bear Arms Under the Tennessee Constitution," 61/2 Tennessee Law Review (Winter 1994). --- "Firearms Purchases and the Right to Keep Arms," 96 West Virginia Law Review 1 (1993). Elaine Scarry, "War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms," 139 University of Pennsylvania Law Review 1257 (1991). Robert E. Shalhope, "The Armed Citizen in the Early Republic," 49 Law and Contemporary Problems 125 (1986). Robert E. Shalhope, "The Ideological Origins of the Second Amendment," 69 Journal of American History 599 (1982). Stefan B. Tahmassebi, "Gun Control and Racism," 2 George Mason University Civil Rights Law Journal 67 (1991). William Van Alstyne, "The Second Amendment and the Personal Right to Arms," 43/6 Duke Law Journal 1236 (April 1994). David C. Williams, "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment," 101 Yale Law Journal 551 (1991). CERTIFICATION OF BAR MEMBERSHIP Undersigned counsel for the appellant hereby certifies in accordance with LAR 46.1 that he is a member in good standing of the Bar of this Court and has been since January 5, 1967. ______________________________ JAMES H. JEFFRIES, III 3019 Lake Forest Drive Greensboro, NC 27408 Telephone: (910) 282-6024 ATTACHMENTS (in compliance with LAR 28.1(a)(iii)) 1. Transcript of Order of January 9, 1995, Denying Defendant-Appellant's Motion to Dismiss Counts One and Three of the Indictment. 2. Judgment of Conviction on Counts One and Three of the Indictment Entered on March 31, 1995. CERTIFICATE OF SERVICE It is hereby certified that service of this brief has been made upon counsel for the appellee by mailing, postage prepaid, two true copies thereof on May ____, 1995, to Bonnie R. Schlueter, Esquire, Assistant United States Attorney, 633 United States Post Office & Courthouse, 7th Avenue and Grant Street, Pittsburgh, Pennsylvania 15219. ______________________________ JAMES H. JEFFRIES, III 3019 Lake Forest Drive Greensboro, NC 27408 Telephone: (910) 282-6024 Counsel for Appellant FOOTNOTES [FN1]. I.e., "a Chinese, Type 54, 7.62 mm submachine gun," (count 1) and "a U.S. Military, M-3, .45 caliber submachine gun" (count 3). [FN2]. Public Law No. 474, 48 Stat. 1236-1240 (June 26, 1934), 26 U.S.C. sections 1132-1132q; as amended by Act of April 10, 1936, chap. 169, 49 Stat. 1192; as codified by chap. 736, Act of August 16, 1954 (Internal Revenue Code of 1954), 68A Stat. 721; as amended by Public Law No. 85-859, 72 Stat. 1427 (September 2, 1958); as amended by Public Law No. 86-478, 74 Stat. 149 (June 1, 1960); as amended by Public Law No. 90-618, 82 Stat. 1227 (October 22, 1968); as amended by Public Law No. 94-455, 90 Stat. 1834 (October 4, 1976); as amended by Public Law No. 99-308, 100 Stat. 449 (May 19, 1986); and as amended by Public Law No. 100-203, 101 Stat. 1330 (December 22, 1987); Internal Revenue Code of 1986, Title 26 United States Code, chap. 53, 26 U.S.C. sections 5801-5872 (Title II of the Gun Control Act of 1968), hereafter "NFA". [FN3]. Section 921(a)(23) of Title 18, United States Code, provides that "[As used in this chapter] ... [t]he term 'machinegun' has the meaning given such term in section 5845(b) of the National Firearms Act (26 U.S.C. 5845(b))." "Machinegun" is defined by Section 5845(b) of the NFA as follows: (b) Machinegun.--The term "machinegun" means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. [FN4]. E.g., Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943) (two cases); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968); United States v. Lopez, U.S. , 1995 WL 238424, 1995 U.S. LEXIS 3039 (No. 93-1260, 4/26/95). [FN5]. E.g., United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978) (two cases); Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980); United States v. Thompson/Center Arms Co., U.S. , 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992); United States v. Staples, U.S. , 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). [FN6]. E.g., the Brady Handgun Violence Prevention Act and Federal Firearms License Reform Act of 1993, Public Law No. 103-159, 107 Stat. 1539, 1541, 1545 (November 11, 1993; November 30, 1993), 103d Cong., 1st Sess. (1993). That statute has been declared unconstitutional in part by five different district courts. McGee v. United States, 863 F.Supp. 321 (S.D. Miss. 1994); Frank v. United States, 860 F.Supp. 1030 (Vt. 1994); Mack v. United States, 856 F.Supp. 1372 (Ariz. 1994); Printz v. United States, 854 F.Supp. 1503, 16 Mont.F.Rep. 469 (Mont. 1994); and Romero v. United States, Civ. No. 94-0419 (W.D. La.; 12/8/94) (as yet unreported). Contra: Koog v. United States, 852 F.Supp. 1376 (W.D. Tex. 1994). [FN7]. Section 102(9) of FOPA contains the following findings and declarations: The Congress finds that-- (1) the rights of citizens-- (A) to keep and bear arms under the second amendment to the United States Constitution; (B) to security against illegal and unreasonable searches and seizures under the fourth amendment; (C) against uncompensated taking of property, double jeopardy, and assurance of due process of law under the fifth amendment; (D) against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies; and (2) additional legislation is required to reaffirm the intent of Congress, as expressed in section 101 of the Gun Control Act of 1968, that "it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trap-shooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes." [FN8]. In its one paragraph ruling, the Court makes the curious statement that "It must be remembered that the right to keep and bear arms is not a right given by the United States Constitution." Ibid., citing Miller. This only makes sense if it refers to the truism that the Constitution did not create the fundamental and pre-existing right of every free person to keep and bear arms, but only protected it. [FN9]. The majority did acknowledge that the plain language of the Second Amendment seemed to contradict the judicial gloss previously given it: "Arguably, any regulation of firearms may be violative of this constitutional provision." Id. at 67.