United States v. Matthew Henry

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-30181
Plaintiff-Appellee, D.C. No.
v.  3:10-cr-00115-
MATTHEW WAYNE HENRY, HRH-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, Senior District Judge, Presiding
Argued and Submitted
June 26, 2012—Anchorage, Alaska
Filed August 9, 2012
Before: Alfred T. Goodwin, William A. Fletcher, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
9035
UNITED STATES v. HENRY 9037
COUNSEL
Fred Richard Curtner, III (argued), Anchorage, Alaska, for the
defendant-appellant.
Jo Ann Farrington (argued), Assistant United States Attorney,
Karen L. Loeffler, United States Attorney, Anchorage,
Alaska, for the plaintiff-appellee.
OPINION
M. SMITH, Circuit Judge:
Defendant-Appellant Matthew Wayne Henry appeals his
conviction for illegal possession of a homemade machine gun,
under 18 U.S.C. § 922(o). He contends that he has a Second
Amendment right to possess a homemade machine gun in his
home. We reject this argument because machine guns are
“dangerous and unusual weapons” that are unprotected by the
Second Amendment. Dist. of Columbia v. Heller, 554 U.S.
570, 627 (2008). Henry also argues that Congress did not
have the power to enact § 922(o)’s prohibition against pos-
sessing machine guns pursuant to the powers delegated to
Congress in the Commerce Clause. That argument fails
because we already have held that the Commerce Clause
authorizes § 922(o)’s machine gun possession ban. United
9038 UNITED STATES v. HENRY
States v. Stewart, 451 F.3d 1071, 1078 (9th Cir. 2006).
Accordingly, we affirm Henry’s conviction.
FACTUAL AND PROCEDURAL BACKGROUND
On October 30, 2009, the Anchorage Police Department
dispatched officers to a home after receiving reports of gun-
fire. Officers found numerous shell casings in the area. The
Anchorage police executed a search warrant of the residence,
seeking evidence of firearms and ammunition. Officers seized
a loaded .308-caliber assault rifle and an empty magazine
found under Henry’s bed. On October 31, 2009, Henry was
arraigned in state court for discharging firearms while intoxi-
cated. On December 7, 2009, the case was dismissed because
the state declined to prosecute.
After Henry’s release, the Anchorage police received an
anonymous tip that Henry had converted the .308-caliber rifle
into a machine gun prior to its seizure. The Bureau of Alco-
hol, Tobacco, and Firearms (ATF) examined the rifle and
determined that it had indeed been converted into a machine
gun. The ATF obtained a federal search warrant, and, on June
14, 2010, discovered at Henry’s residence twenty guns, gun
parts, firearms conversion instructions, and a machine gun
auto-sear, which converts rifles to automatic weapons.
On November 17, 2010, the grand jury indicted Henry on
two counts: (1) knowingly and unlawfully possessing a
machine gun, in violation of 18 U.S.C. §§ 922(o)(1)1 and
1
18 U.S.C. § 922(o) states:
(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 author-
ity 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.
UNITED STATES v. HENRY 9039
924(a)(2), and (2) knowingly and unlawfully possessing an
auto-sear, a part used to convert a weapon into a machine gun,
in violation of 18 U.S.C. §§ 922(o)(1) and 924(a)(2). Henry
moved to dismiss the two counts, arguing that, as applied to
him, § 922(o) violates his Second Amendment right to keep
and bear arms, and is not authorized under the Commerce
Clause. The district court denied Henry’s motion to dismiss,
concluding that there is no Second Amendment right to pos-
sess a homemade machine gun in one’s home, and that Con-
gress had the power to enact § 922(o) using the powers
delegated to it under the Commerce Clause.
After the district court denied Henry’s motion, the case pro-
ceeded to trial. Henry testified that a firearm the government
offered into evidence belonged to him. Henry further testified
that he acquired all of the necessary parts to build a rifle from
a variety of sources, and eventually built such a firearm.
Although he denied at trial that he was trying to make a
machine gun, he concedes on appeal that the rifle as con-
verted by him was a homemade machine gun.
The jury found Henry guilty on count 1, and not guilty on
count 2. The district court sentenced Henry to twenty-four
months’ imprisonment, and ordered his machine gun to be
forfeited pursuant to 18 U.S.C. § 924(d)(1). Henry timely
appealed his conviction.
STANDARD OF REVIEW AND JURISDICTION
We review a statute’s constitutionality de novo. United
States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir. 2010). We
have jurisdiction under 28 U.S.C. § 1291.
DISCUSSION
I. Second Amendment
Henry claims that the Second Amendment protects his right
to possess a homemade machine gun in his home.
9040 UNITED STATES v. HENRY
[1] The Second Amendment states: “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.” U.S. Const. amend. II. In Heller, the Supreme
Court struck down the District of Columbia’s ban on handgun
possession, concluding that the Second Amendment “gua-
rantee[s] the individual right to possess and carry weapons in
case of confrontation.” 554 U.S. at 592, 635.2 However, the
Court stated that the Second Amendment only protects the
right to own certain weapons, and that it “does not protect
those weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns.” Id. at
625. The Court also concluded that the “historical tradition of
prohibiting the carrying of ‘dangerous and unusual weap-
ons’ ” limits the right to keep and carry arms. Id. at 627.
[2] Heller did not specify the types of weapons that qualify
as “dangerous and unusual,” but the Court stated that it would
be “startling” for the Second Amendment to protect machine
guns. Id. at 624. Since Heller was decided, every circuit court
to address the issue has held that there is no Second Amend-
ment right to possess a machine gun.3
[3] We agree with the reasoning of our sister circuits that
machine guns are “dangerous and unusual weapons” that are
not protected by the Second Amendment. An object is “dan-
gerous” when it is “likely to cause serious bodily harm.”
Black’s Law Dictionary 451 (9th ed. 2009). Congress defines
“machinegun” as “any weapon which shoots, is designed to
shoot, or can be readily restored to shoot, automatically more
2
Subsequently, the Supreme Court held in McDonald v. City of Chi-
cago, 130 S. Ct. 3020 (2010), that the Second Amendment applies to the
states. Id. at 3026.
3
See United States v. Allen, 630 F.3d 762, 766 (8th Cir. 2011); United
States v. Marzzarella, 614 F.3d 85, 94-95 (3d Cir. 2010). cert. denied, 131
S. Ct. 958 (2011); Hamblen v. United States, 591 F.3d 471, 472, 474 (6th
Cir. 2009); United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008),
cert. denied, 555 U.S. 1174 (2009).
UNITED STATES v. HENRY 9041
than one shot, without manual reloading, by a single function
of the trigger.” 26 U.S.C. § 5845(b). The machine gun was
first widely used during World War I, where it “demonstrated
its murderously effective firepower over and over again.”
William Rosenau, Book Note, The Origins of the First Mod-
ern Weapon, TECH. REV., Jan. 1987, at 74, (reviewing John
Ellis, The Social History of the Machine Gun (1986). A mod-
ern machine gun can fire more than 1,000 rounds per minute,
allowing a shooter to kill dozens of people within a matter of
seconds. See George C. Wilson, Visible Violence, 12 NAT’L J.
886, 887 (2003). Short of bombs, missiles, and biochemical
agents, we can conceive of few weapons that are more dan-
gerous than machine guns.
A machine gun is “unusual” because private possession of
all new machine guns, as well as all existing machine guns
that were not lawfully possessed before the enactment of
§ 922(o), has been unlawful since 1986. Outside of a few
government-related uses, machine guns largely exist on the
black market.
[4] In short, machine guns are highly “dangerous and
unusual weapons” that are not “typically possessed by law-
abiding citizens for lawful purposes.” Heller, 554 U.S. at 625,
627. Thus, we hold that the Second Amendment does not
apply to machine guns. Moreover, because we conclude that
machine gun possession is not entitled to Second Amendment
protection, it is unnecessary to consider Henry’s argument
that the district court applied the incorrect level of constitu-
tional scrutiny in evaluating his claims.
II. Commerce Clause
Henry next asserts that the Commerce Clause does not give
Congress the power to prohibit possession of homemade
machine guns. We disagree.
[5] The Commerce Clause allows Congress to “regulate
Commerce . . . among the several States[.]” U.S. Const. art.
9042 UNITED STATES v. HENRY
I, § 8, cl. 3. The Supreme Court has interpreted this to mean
that Congress may regulate: 1) “the channels of interstate
commerce[,]” 2) “the instrumentalities of interstate com-
merce, and persons or things in interstate commerce[,]” and
3) “activities that substantially affect interstate commerce.”
Gonzales v. Raich, 545 U.S. 1, 16-17 (2005). Supreme Court
precedent “firmly establishes Congress’ power to regulate
purely local activities that are part of an economic ‘class of
activities’ that have a substantial effect on interstate com-
merce.” Id. at 17. In Raich, for example, the Supreme Court
concluded that the Commerce Clause allows Congress to reg-
ulate locally cultivated medical marijuana because “Congress
had a rational basis for concluding that leaving home-
consumed marijuana outside federal control would [ ] affect
price and market conditions.” Id. at 19.
[6] In Stewart, we rejected the defendant’s claim that
§ 922(o)’s ban on machine gun possession was not within
Congress’s Commerce Clause authority, even though the stat-
ute applies to homemade machine guns that do not travel in
interstate commerce. 451 F.3d at 1078. Applying Raich, we
concluded that “Congress had a rational basis for concluding
that in the aggregate, possession of homemade machineguns
could substantially affect interstate commerce in
machineguns” because “[h]omemade guns, even those with a
unique design, can enter the interstate market and affect sup-
ply and demand.” Id. Every other circuit that has reached the
issue has similarly held that § 922(o) is constitutional under
the Commerce Clause.4
4
See, e.g., United States v. Haney, 264 F.3d 1161, 1170-71 (10th Cir.
2001), cert. denied, 536 U.S. 907 (2002); United States v. Franklyn, 157
F.3d 90, 93, 96-97 (2d Cir. 1998), cert. denied, 525 U.S. 1112 (1999);
United States v. Wright, 117 F.3d 1265, 1267, 1270-71 (11th Cir. 1997),
vacated in part on rehearing on other grounds by United States v. Wright,
133 F.3d 1412 (11th Cir. 1998); United States v. Knutson, 113 F.3d 27,
31 (5th Cir. 1997) (per curiam); United States v. Rybar, 103 F.3d 273,
284-85 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997); United States
v. Kenney, 91 F.3d 884, 889 (7th Cir. 1996); United States v. Beuckelaere,
91 F.3d 781, 784-85 (6th Cir. 1996); United States v. Hale, 978 F.2d 1016,
1018 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993).
UNITED STATES v. HENRY 9043
Henry points to no relevant change in the caselaw of our
circuit or the Supreme Court that overrules Stewart’s conclu-
sion that § 922(o) is a valid exercise of Congress’ Commerce
Clause powers.5 We reject Henry’s argument that Heller over-
rules Stewart’s Commerce Clause precedent because of what
we said in footnote 6 of that opinion. In Stewart, we noted “in
passing that since the Second Amendment does not grant indi-
vidual rights, we cannot rely on it as a basis for requiring
Congress to make specific findings in legislation touching on
firearms.” Stewart, 451 F.3d at 1075 n.6 (citation omitted). In
Heller, in contrast, the Supreme Court concluded that “the
Second Amendment conferred an individual right to keep and
bear arms.” 554 U.S. at 595. Our circuit precedent remains
binding until the Supreme Court “undercut[s] the theory or
reasoning underlying the prior circuit precedent in such a way
that the cases are clearly irreconcilable.” Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003) (en banc). Thus, while
Heller clearly overrules Stewart’s statement in footnote 6 that
the Second Amendment does not confer individual rights, it
has absolutely no impact on Stewart’s Commerce Clause
5
Two days after oral argument in this appeal, the Supreme Court
decided National Federation of Independent Business v. Sebelius, ___
U.S. ___, 2012 U.S. LEXIS 4876 (June 28, 2012), which held that the fed-
eral statute requiring individuals to purchase health insurance is a valid
exercise of Congress’s tax power. Five justices also agreed that the Com-
merce Clause did not authorize this statute. There has been considerable
debate about whether the statements about the Commerce Clause are dicta
or binding precedent. See, e.g., David Post, Commerce Clause “Holding
v. Dictum Mess” Not So Simple, THE VOLOKH CONSPIRACY, (July 3, 2012,
8:17 AM), http://www.volokh.com/2012/07/03/commerce-clause-holding-
v-dictum-mess-not-so-simple/. We need not resolve that issue here
because National Federation of Independent Business involved a require-
ment that individuals take action. See Nat’l Fed’n of Indep. Bus., 2012
U.S. LEXIS 4876, at *45 (Roberts, C.J.) (“Construing the Commerce
Clause to permit Congress to regulate individuals precisely because they
are doing nothing would open a new and potentially vast domain to con-
gressional authority.”) (emphasis in original). In contrast, Section 922(o)
involves a prohibition of conduct. Therefore, even if National Federation
of Independent Business changed Supreme Court precedent regarding the
Commerce Clause, we conclude it would not overrule Stewart.
9044 UNITED STATES v. HENRY
holding. Indeed, Heller does not even mention the Commerce
Clause. Accordingly, Stewart’s Commerce Clause holding
remains binding precedent in our circuit.
[7] In light of the above, Stewart requires us to reject
Henry’s claim that Congress did not have the authority to
enact § 922(o)’s ban on machine guns pursuant to the Com-
merce Clause.
CONCLUSION
For the foregoing reasons, Henry’s conviction is affirmed.
AFFIRMED.