No. 96-1759 In the Supreme Court of the United States OCTOBER TERM, 1996 WILLIAM JOSEPH KIRK, PETITIONER v. UNITED STATES OF AMERICA ON THE PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting General Attorney General DAVID S. KRIS Attorney Department of Justice Washington D.C. 20530-0001 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the Commerce Clause of the Constitution, Article I, Section 8, Clause 3, authorized Congress to enact 18 U.S.C. 922(o), which makes it a federal crime to transfer or possess a machinegun. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Argument . . . . 4 Conclusion . . . . 7 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases: Black v. Cutter Lab., 351 U.S. 292(1956) . . . . 5 California v. Rooney , 483 U. S. 307(1987) . . . . 5 Huddleston v. United States, 415 U. S. 814 (1974) . . . . 6-7 Perez v. United States, 402 U.S. 146(1971) . . . . 7 United States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996) . . . . 5, 6 United States v. Kenney, 91 F.3d 884(7th Cir. 1996) . . . . 5 United States v. Knutson, 113 F.3d 27(5th Cir. 1997) . . . . 4-5, 6 United States v. Lopez, 514 U. S. 549 (1995) . . . . 3, 4, 5 United States v. Rambo, 74 F.3d 948(9th Cir.), cert. denied, 117 S. Ct. 72(1996) . . . . 5, 6 United States v. Rybar, 103 F.3d 273(3d Cir. 1996), petition for cert. pending, No. 96-1738 . . . . 5, 6 United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995) . . . . 5, 6 Wickard v. Filburn, 317 U.S. 111 (1942) . . . . 7 Constitution, statute and rule: U. S. Const. Art. I, 8, Cl.3 (Commerce C1ause) . . . . 2, 4 Gun-Free School Zones Act of 1990, 18 U.S.C. 922(q) . . . . 3, 4, 6 18 U.S.C. 922(o) . . . . 2, 3, 4, 5, 6 18 U. S. C. 922(0)(1) . . . . 2 18 U. S. C. 922(0)(2)(A) . . . . 2 (III) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 96-1759 WILLIAM JOSEPH KIRK, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the en bane court of appeals (Pet. App. A1-A51) is reported at 105 F.3d 997. The opinion of the court of appeals panel (Pet. App. A52-A81) is reported at 70 F.3d 791. JURISDICTION The en bane court of appeals entered its judgment on February 3, 1997. The petition for a writ of certio- rari was filed on May 5, 1997 (a Monday). The juris- diction of this Court is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT Following entry of a conditional guilty plea in the United States District Court for the Western Dis- trict of Texas, petitioner was convicted on one count of possessing a machinegun inviolation of 18 U.S.C. 922(o). He was sentenced to one year and one day's imprisonment, three years' supervised release, and a $3,000 fee. A panel of the court of appeals affirm- ed. Pet. App. A52-A81. The full court subsequently granted rehearing en bane. Id. at A82-A83. The court of appeals, sitting en bane, affirmed the conviction and sentence by an equally divided vote. Id. at A1-A51. 1. In January and February of 1989, petitioner sold two machineguns to a private citizen. He was in- dicted on two counts of possessing a machinegun, and two counts of transferring a machinegun, in violation of 18 U.S.C. 922(o). Section 922(o) generally provides that "it shall be unlawful for any person to transfer or possess a machinegun." 18, U.S.C. 922(0 )(1).1 Peti- tioner moved to dismiss the indictment on the ground that Section 922(o) exceeds Congress authority un- der the Commerce Clause. The district court denied the motion, and petitioner entered a conditional guilty plea (see Fed. R. Crim. P. ll(a)(2))-to one of-the pos- session counts, preserving the constitutional issue for appeal. See Pet. App. A53-A55. 2. A divided panel of the court of appeals affirmed. Pet. App. A52-A81. Petitioner contended, inter alia, ___________________(footnotes) 1 The statutory prohibition does not apply, however, to the transfer or possession of machineguns by federal, state or local governmental agencies, 18 U.S.C. 922(o) (2)(A) or to the "law- ful transfer or lawful possession of a machinegun that was law- fully possessed before" the statute's effective date, 18 U.S.C. 922(o)(2)(B). ---------------------------------------- Page Break ---------------------------------------- 3 that Section 922(o) "is unconstitutional because it is beyond the authority granted to Congress under the Commerce Clause." Pet. App. A60. Petitioner relied on this Court's decision in United States v. Lopez, 514 U.S. 549 (1995). In Lopez, the Court struck down the Gun-Free School Zones Act of 1990,18 U.S.C. 922(q), which made it a federal crime to possess a gun within 1,000 feet of a school. See Pet. App. A61. The court of appeals concluded that Lopez "does not control the result in our analysis of section 922(o)." Pet. App. A62. The court explained that the activity Congress intended to prohibit by ap- plication of section 922(o) was the introduction into the stream of commerce [of] machineguns manufactured, imported, or otherwise illegally obtained, after the effective date of the act. When read as a whole, it is plain that the activities pro- hibited by section 922(o) constitute commerce. Id. at A62-A63. The court of appeals characterized Section 922(o)'s ban on the possession of machineguns as "an attempt to control the interstate market for machineguns by creating criminal liability for those who would constitute the demand-side of the market Id. at A64-A65. "As with federal regulation of con- trolled substances," the court explained, "there is a rational basis to conclude that federal regulation, of intrastate incidents of transfer and possession is es sential to effective control of the interstate incidents of*** traffic" in machineguns. Id. at A65. The court therefore concluded that Section 922(o) "is a rational exercise of the authority granted Congress under the Commerce Clause." Ibid. Judge Jones dissented. Pet. App. A69-A81. She found "no meaningful distinction between Section ---------------------------------------- Page Break ---------------------------------------- 4 922(q) and Section 922(o) as the latter applies to pos- session, not transfer, of machineguns." Pet. App. A70. Judge Jones also concluded that "Section 922(o) cannot be upheld as a more direct exercise of Con- gressional commerce power." Ibid. 3. The full court of appeals subsequently granted rehearing en bane. Pet. App. A82-A83. On rehearing en bane, petitioner's conviction was affirmed by an equally divided court. Id. at A1-A5L Judge Parker, joined by seven other judges, voted to affirm the conviction, explaining that "Congress had a rational basis for concluding that the manufacture, transfer and possession of machineguns substantially affect commerce and 922(o) therefore is constitutional." Id. at A3.2 Judge Jones, joined by seven other-judges, concluded that " 922(o) seems a clone of 922(q), the provision] struck down in Lopez." Id. at A32. ARGUMENT Petitioner contends (Pet. 4-14) that 18 U.S.C. 922(o) exceeds Congress' authority under the Commerce Clause and is therefore unconstitutional. Petitioner principally relies on this Court's decision in United States v. Lopez, 514 U.S. 549 (1995), which invalidated the Gun-Free School Zones Act of 1990, 18 U.S.C. 922(q). Since this Court's decision in Lopez, however, the courts of appeals have consistently upheld Sec- tion 922(o) against constitutional attack. See. United ___________________(footnotes) 2 Judge Higginbotham, joined by three other judges (all of whom also joined in Judge Parker's opinion), published a sepa- rate concurrence. Pet. App. A3-A21. The concurring opinion asserted that Section 922(o) reflects a rational "legislative judg- ment that possession of machine guns acquired after 1986 has a substantial effect on interstate commerce, particularly by facilitating the trade in illegal drugs." Pet. App. A3. ---------------------------------------- Page Break ---------------------------------------- 5 States v. Knutson, 113 F.3d 27, 28-31 (5th Cir. 1997); United States v. Rybar, 103 F.3d 273, 276-285 (3d Cir. 1996), petition for cert. pending, No. 96-1738; United States v. Beuckelaere, 91 F.3d 781, 782-787 (6th Cir. 1996); United States v. Kenney, 91 F.3d 884, 885-891 (7th Cir. 1996); United States v. Rambo, 74 F.3d 948, 951-952 (9th Cir.), cert. denied, 117 S. Ct. 72 (1996); United States v. Wilks, 58 F.3d 1518, 1519-1521 (l0th Cir. 1995). In the absence of a conflict in the circuits, petitioner's constitutional challenge to Section 922(0) does not warrant this Court's reviews. 3 In Lopez, this Court concluded that "Section 922(q) is a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enter- prise, however broadly one might define those terms." 514 U.S. at 561. Section 922(0)'s ban on possession of machineguns, by contrast, is part of a larger prohibi- tion on the possession or transfer of a particularly dangerous class of weapons. "[A]t least in most situa- tions," unlawful possession of a machinegun "follows an unlawful transfer." Rybar, 103 F.3d at 283. The possession offense defined by Section 922(o)-unlike the conduct prohibited by the Gun-Free School Zones Act-is therefore typically linked to a prior unlawful transaction. Because the statutory ban on possession of machineguns is a rational means of effectuating the prohibition on transfers, see Pet. App. A64-A65 (char- acterizing the ban on possession as "an attempt to ___________________(footnotes) 3 Although he concedes that the courts of appeals have uni- formly upheld Section 922(o), petitioner argues (Pet. 5,6) that there are conflicts in the reasoning of the lower courts' opin- ions. This Court, however, "reviews judgments, not statements in opinions." California v. Rooney, 483 U.S. 307, 311 (1987) (quoting Black v. Cutter Lab., 351 U.S. 292,297 (1956)). ---------------------------------------- Page Break ---------------------------------------- 6 control the interstate market for machineguns by creating criminal liability for those who would consti- tute the demand-side of the market"), it is not akin to the prohibition imposed by Section 922(q). Petitioner does not contend that Section 922(o)'s prohibition on the transfer of machineguns is itself unconstitutional. 4 Any such claim would be unsound. Congress could reasonably conclude that transfers of machineguns would typically have a commercial or economic component. See Rybar, 103 F.3d at 283. Congress could also reasonably conclude that the "ex- tensive, intricate, and definitely national market for machineguns," Beuckelaere, 91 F.3d at 784, is an ap- propriate subject for federal regulation. See Knut- son, 113 F.3d at 29 ("the vast majority of machinegun possessions constitute the culminating step in interstate commercial transactions"); Rambo, 74 F.3d at 952 ("By regulating the market in machine guns, including regulating intrastate machinegun posses- sion, Congress has effectively regulated the inter- state trafficking in machineguns."); Wilks, 58 F.3d at 1521 (Section 922(o) "represents Congressional re- gulation of an item bound up with interstate attrib- utes"). Although the acts prohibited by the statute might occasionally involve purely intrastate activity, Congress has the authority to regulate intrastate conduct when a series of such events, taken in com- bination, might ultimately have substantial effects on interstate commerce. See, e.g., Huddleston v. United ___________________(footnotes) 4 To the contrary, petitioner appears to acknowledge the validity of the transfer ban. See Pet. 12 ("By prohibiting trans- fer of machineguns, 922(o) aims directly and completely at commercial activity in machineguns.") (internal quotation marks omitted). ---------------------------------------- Page Break ---------------------------------------- 7 States, 415 U.S. 814, 833 (1974); Perez v. United States, 402 U.S. 146 (1971); Wickard v. Filburn, 317 U.S. 111 (1942). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DAVID S. KRIS Attorney JULY 1997