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 ___________________ REPLY BRIEF FOR THE APPELLANT ___________________ The government's brief in defense of the constitutionality of 18 U.S.C. section 922(o), following the Supreme Court's decision on April 26, 1995, in United States v. Lopez, U.S. , 63 U.S.L.W. 4343, 1995 WL 238424, 1995 U.S. LEXIS 3039 (No. 93-1260), contains three fatal flaws. The government manufactures a non-existent legislative history for Section 922(o) based on "facts" never found by Congress (and which are themselves empirically non-existent); it treats pre-Lopez jurisprudence on Section 922(o) as if Lopez did not exist; and it urges absolute prohibition as a permissible form of regulation. LEGISLATIVE HISTORY As was shown in our opening brief, Section 922(o) has no legislative history, appearing as a last-minute floor amendment to the Firearms Owners' Protection Act of 1986, Pub. L. 99-308, 100 Stat. 449-461 (May 19, 1986). There was no floor debate and no discussion of the provision anywhere along the somewhat tortuous path by which FOPA became law: Seven years passed between FOPA's introduction and its Senate vote; the House vote required passage of a discharge petition -- only the eighth to succeed in the last twenty-six years. David T. Hardy, "The Firearms Owners' Protection Act: A Historical and Legal Perspective," 17 Cumberland Law Review 585 (1986-1987) (footnotes omitted). And-- FOPA reflects not a simple, single legislative decision, but a complex series of compromises, many of which are only partially reflected in the record. Even where the record is complete, it is rarely clear. The House Bill that ultimately became FOPA is supported by a report, but the report explains not why FOPA should have been adopted, but rather, why it should have been rejected. The House bill's predecessor and Senate counterpart, S. 49, was never referred to committee and went instead to the floor with no report whatsoever. S. 49's ancestors were the subject of two reports which, unfortunately, are in hopeless conflict in certain aspects. To add to its original complexity, FOPA was, prior to its effective date, amended by a second enactment which was in turn modified by a concurrent resolution. Id. at 588. (Footnotes omitted). Yet the government boldly asserts without record substantiation or citation that The possession and transfer of machine guns is an economic activity. Congress has also reasonably determined that due to the particular potential dangers associated with machine guns, the repetitious activity of possessing and transferring of these weapons could substantially and deleteriously affect interstate commerce. [Government's Brief, page 16] and There are currently substantial legal and illegal markets for machine guns. Congress therefore has the power to regulate those markets as it has the power to regulate any other type of market. [Government Brief, page 19] and In the instant case, although defendant Rybar's possession and transfer of the two machine guns may have been a local activity, it is an economic activity. Moreover, his actions have a substantial economic effect on interstate commerce. [Ibid.] The government is entitled to its own opinion, but not to its own facts. First of all, the defendant here was charged with and convicted of simple possession of two machineguns, not their manufacture, sale, transfer, conveyance, marketing, financing, transport, or other activity. Second, Congress has never, anywhere, "determined that the repetitious activity of possessing and transferring of these weapons could substantially and deleteriously affect interstate commerce." Third, there is neither a "currently substantial ... illegal market for machine guns," nor any such finding by Congress. Government counsel has been watching too much television. There is, of course, a market in legal machineguns, a tribute to the efficacy of the National Firearms Act of 1934, and a perfect refutation to the fiction that illegal machineguns constitute any burden on commerce. Significantly, that legal market is lawfully regulated by the national government under the exercise of its taxing power (or was until the NFA was undermined by enactment of Section 922(o)). Congress has no more power to ban Raymond Rybar's mere possession of a machinegun under a fictitious exercise of the commerce clause than it had to ban Alfonso Lopez' mere possession of a pistol in a Texas schoolyard. There simply is no conceptual or legal difference between the two acts in terms of the constitutional limits upon the power of Congress as set forth in the Tenth Amendment and in Lopez. PRE-LOPEZ DECISIONS The government argues that all existing cases dealing with the constitutionality of Section 922(o) uphold the statute except United States v. Bownds, 860 F.Supp. 336 (S.D. Miss. 1994), appeal pending. This is akin to arguing that all pre-Civil War cases uphold slavery. We can only repeat that Justice Breyer in his dissent noted the likely impact of Lopez on Section 922(o); Justice Thomas in his concurrence noted that Congress lacked the power which is defended by the government here; and the majority opinion explicitly rejected the reasoning of the Ninth Circuit in United States v. Evans, 928 F.2d 858 (1991), which had upheld Section 922(o) on exactly the fallacious economic impact grounds rejected by the Lopez court. The pre-Lopez cases dealing with Section 922(o) are as meaningless as the Dred Scott decision -- still on the books, but a dead letter. The only "post-bellum" decision on Section 922(o) has declared it unconstitutional and void. Bownds, supra. This Court should do the same. PROHIBITION AS REGULATION The government's sophistic attempt to color a flat prohibition of firearms as "regulation" brings to mind the remark of the U.S. Army major during the war in Vietnam that "We had to destroy the village in order to save it," or perhaps the words of Humpty Dumpty to Alice in Through the Looking-Glass: "When I use a word it means just what I choose it to mean, neither more nor less," said Humpty Dumpty. "The question is," replied Alice, "whether you can make words mean so many different things." "The question is," replied Humpty Dumpty, "which is to be master -- that's all.... They've a temper, some of them -- particularly verbs, they're the proudest -- adjectives you can do anything with, but not verbs -- however, I can manage the whole lot of them! Impenetrability! That's what I say!"[FN1] Just as the power to tax is not the power to destroy (at least, "not while this Court sits," Justice Holmes in Panhandle Oil Co. v. Mississippi, 277 U.S. 218 at 223 (1928)), neither is the power to regulate the power to ban. The Court will recall that the last time the Congress determined to ban possession of an otherwise legal article it required passage of the Eighteenth Amendment to the Constitution. And that was not regulation; it was prohibition. 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 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 June 26, 1995, to Mary Beth Buchanan, 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]. Lewis Carroll, Through the Looking-Glass, 130 (St. Martin's Press; New York; 1968).