On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Crim. No. 94-cr-00243)
Before: SLOVITER, Chief Judge, and ALITO, Circuit Judge, and RENDELL, District Judge *fn*
Argued September 13, 1995
Appellant Raymond Rybar, Jr. was convicted following a conditional guilty plea to two counts of violating 18 U.S.C. Section(s) 922(o), which makes it "unlawful for any person to transfer or possess a machine gun." On appeal, he argues that the district court erred in rejecting his challenge to that provision as beyond Congress' commerce power and as violating the Second Amendment. Neither challenge is persuasive. Every court of appeals that has considered a challenge to 922(o) under the Commerce Clause has upheld the constitutionality of the provision. See United States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996); United States v. Kenney, 91 F.3d 884 (7th Cir. 1996); United States v. Rambo, 74 F.3d 948 (9th Cir.), cert. denied, 117 S. Ct. 72 (1996); United States v. Kirk, 70 F.3d 791 (5th Cir. 1995) *fn1; United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995); United States v. Pearson, 8 F.3d 631 (8th Cir. 1993), cert. denied, 114 S. Ct. 2132 (1994). Nor has Rybar presented any authority in support of his Second Amendment argument. We examine each claim in turn.
I. FACTS AND PROCEDURAL HISTORY
On April 4, 1992, Rybar, a federally licensed firearms dealer, attended a gun show in Monroeville, Pennsylvania, and had in his possession a Chinese Type 54, 7.62-millimeter submachine gun, serial number 2052272, which he offered to sell to Thomas Baublitz, who paid him and to whom he transferred possession. The next day, April 5, 1992, Rybar again visited the Monroeville gun show, this time in possession of a U.S. Military M-3, .45 caliber submachine gun, serial number 216831, which he offered to sell to Baublitz, who paid him for it and to whom he transferred possession.
A grand jury indicted Rybar on two counts of unlawful possession of a machine gun in violation of 18 U.S.C. Section(s) 922(o)(1) (Counts I and III), and two counts of unlawful transfer of an unregistered firearm in violation of 26 U.S.C. Section(s) 5861(e) (Counts II and IV). Rybar moved to dismiss the indictment on the ground that both statutes were unconstitutional. While the motion was pending, the court was informed that Rybar was prepared to plead guilty.
At the hearing on the change of plea, the district court first ruled on the pending motion. The court granted the motion to dismiss Counts II and IV. The court held that insofar as 26 U.S.C. Section(s) 5861(e) criminalizes the transfer of an unregistered machine gun, it is unconstitutional because
[a]fter Congress enacted Title 18 of the United States Code Section 922(o), registration of machine guns is no longer possible. Thus defendant has been charged in the indictment with failing to perform an act, registration of two machine guns, that is prohibited by law. This violates notions of fundamental fairness as guaranteed by the Due Process Clause of the Fifth Amendment. Further, this Court finds that Section 5861(e) is no longer a valid taxing statute with respect to machine guns, because the government currently does not register and tax such machine guns. App. at 16-17. *fn2
The court denied Rybar's motion to dismiss Counts I and III. The court held that Section(s) 922(o) was "a valid exercise of the authority granted to Congress under the Commerce Clause" and was compatible with Second Amendment protections "because this defendant's possession of a machine gun was not reasonably related to the preservation or efficiency of a well-regulated militia." App. at 16.
The court then proceeded to the change of plea portion of the hearing. After the court fully informed Rybar of his rights, Rybar agreed to the facts as summarized by the government, i.e., that he approached Baublitz on both occasions and offered to sell him the machine guns described, and that Baublitz paid him on both occasions and took the machine guns. Rybar corrected the prosecution's statement that he received a total of $1,300 for the machine guns, and stated instead that he received a total of $600 for both machine guns. App. at 31-32 (Hearing Transcript, Jan. 9, 1995).
Rybar had agreed to plead guilty to all four counts of the indictment, i.e., the two counts of possession and the two counts of transfer of an unregistered machine gun, and although the court had just dismissed Counts II and IV, Rybar attested to the entire agreement at the court's request. Id. at 27-29. Rybar then entered a conditional guilty plea to the two remaining counts, preserving for appeal the disputed constitutionality of 18 U.S.C. Section(s) 922(o). At the sentencing hearing several months later, the district court sentenced Rybar to eighteen months' imprisonment, the minimum sentence under the applicable guideline range, ordered three years of supervised release to follow, and imposed a special assessment of $100.00.
The district court had jurisdiction under 18 U.S.C. Section(s) 3231, and we have jurisdiction pursuant to 28 U.S.C. Section(s) 1291. Our review of a district court's determination of the constitutionality of a statute is plenary. Dyszel v. Marks, 6 F.3d 116, 123 (3d Cir. 1993).
In its entirety, Section(s) 922(o) reads:
(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machine gun.
(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; or
(B) any lawful transfer or lawful possession of a machine gun that was lawfully possessed before the date this subsection takes effect. 18 U.S.C. Section(s) 922(o) (1994).
"Machinegun," in turn, is defined in 26 U.S.C. Section(s) 5845(b), part of the National Firearms Act, as
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. See 18 U.S.C. Section(s) 921(a)(23) (1994).
The statute prohibits only those instances of possession and transfer of machine guns not lawfully possessed before its enactment date -- May 19, 1986; machine guns lawfully possessed before that date are left unaffected. See 18 U.S.C. Section(s) 922(o)(2)(B) (1994); Pub. L. No. 99-308 Section(s) 110(c), 100 Stat. 449, 461 (1986).
As in the district court, Rybar urges the unconstitutionality of Section(s) 922(o) on two grounds. He argues: (1) that the provision outstrips Congress' regulatory authority under the Commerce Clause and (2) that it offends his Second Amendment right "to keep and bear arms."
Rybar relies primarily on the Supreme Court's recent opinion in United States v. Lopez, 115 S. Ct. 1624 (1995), in support of his Commerce Clause challenge. In Lopez, the Court invalidated the Gun-Free School Zones Act of 1990, which 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(s) 922(q)(2)(A) (1994). A "school zone" was defined as "in, or on the ground of, a . . . school" or "within a distance of 1,000 feet." 18 U.S.C. Section(s) 921(a)(25) (1994). The decision generated six separate opinions, with five justices supporting the Court's holding that the statute exceeded Congress' authority under the Commerce Clause.
On behalf of the majority, Chief Justice Rehnquist reviewed the Court's Commerce Clause decisions dealing with the extent of Congress' power, stating that Section(s) 922(q) "neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce." 115 S. Ct. at 1626. In summarizing the earlier cases, he observed that in Perez v. United States, 402 U.S. 146, 150 (1971), the Court had identified three broad categories of activity that Congress may regulate under its commerce power: (1) "the use of the channels of interstate commerce;" (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;" and (3) those activities "that substantially affect interstate commerce." Id. at 1629-30.
He quickly disposed of the first two categories as inapplicable to Section(s) 922(q), and stated that if that statute were to be sustained it would have to be as a regulation of an activity that substantially affects interstate commerce. It failed that test because "by its terms" the statute prohibiting possession of a gun in a school zone had "nothing to do with 'commerce' or any sort of economic enterprise," id. at 1630-31, nor was it "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Id. at 1631. Furthermore, Section(s) 922(q) contained "no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id.
Justice Kennedy, joined by Justice O'Connor, concurred, outlining what they perceived as the majority's "necessary though limited holding." Id. at 1634. From his survey of the Supreme Court's efforts to chart the limits of the Commerce Clause, Justice Kennedy extracted two relevant "lessons" from the past decisions: the inadequacy of using "content-based distinctions," such as that between "direct" and "indirect" effects on commerce, to define those limits, and the importance of maintaining the "practical conception" of the commerce power that had been forged out of the Court's precedents. Id. at 1637. Most significantly, Justice Kennedy observed that where an enactment under the Commerce Clause bears only a tenuous connection to commerce, courts should inquire whether it "seeks to intrude upon an area of traditional state concern." Id. at 1640. Justice Kennedy went on to observe that "here neither the actors nor their conduct have a commercial character, and neither the purposes nor the design of the statute have an evident commercial nexus." Id. at 1640. He was concerned that Section(s) 922(q) foreclosed states from crafting independent solutions to the guns-in-schools problem, id. at 1641, and concluded that, "[a]bsent a stronger connection or identification with commercial concerns," Section(s) 922(q)'s intrusion into education "contradict[ed] the federal balance" and was therefore invalid. Id. at 1642. Justice Thomas also filed a separate concurrence.
The principal opinion for the four dissenters was authored by Justice Breyer, who emphasized the following three basic principles: (1) local activities may be regulated under the Commerce Clause where they "significantly affect interstate commerce"; (2) these local activities must be considered cumulatively in viewing their effect on interstate commerce; and (3) the court's inquiry is limited to whether Congress could have had a rational basis for concluding the regulated activity sufficiently affected interstate commerce. Id. at 1657-58 (Breyer, J., dissenting). He stated, inter alia, that Congress could have had a rational basis for concluding that the "widespread" and "extremely serious" problem of guns in and around schools had a substantial effect on interstate and foreign commerce because it "significantly undermines the quality of education in our Nation's classrooms," id. at 1659, thereby reducing the pool of skilled workers available to businesses, diminishing industrial productivity, and eroding global competitiveness. Id. at 1659-61.
Justices Stevens and Souter, both of whom joined Justice Breyer's dissent, each wrote separately as well. Justice Stevens emphasized the multiple links he perceived between firearms possession in schools and interstate commerce. Id. at 1651. Justice Souter emphasized the highly deferential judicial review in Commerce Clause cases, criticized as "highly formalistic" the Court's early conceptions of "commerce," and analogized the majority's insistent distinction between "commercial" and "noncommercial" activity to the Court's Lochner-era substantive due process approach. Id. at 1651-54.
Rybar forwards all of the reasons given by the Lopez majority, many in haec verba, as equally determinative of the invalidity of Congress' prohibition of machine guns. He contends that Section(s) 922(o)'s proscription of machine gun transfer and possession can be upheld only as regulation of an "activit[y] that substantially affect[s] interstate commerce." Brief of Appellant at 14 (quoting Lopez, 115 S. Ct. at 1630). He argues that Section(s) 922(o) fails this "substantial effect" test, since its attempt to reach mere intrastate gun possession has only the most tenuous links to interstate commerce and would blur past any principled limit on the commerce power. Finally, Rybar invokes the same federalism concerns expressed in Lopez, arguing that Pennsylvania's own regime of machine gun regulation makes relevant the Court's observation in Lopez that "[s]tates possess primary authority for defining and enforcing the criminal law." Id. at 1631 n.3 (quoting Brecht v. Abrahamson, 507 U.S. 619, 635 (1993)).
Before we examine the particular statute at issue here, it may be helpful to set forth the principles governing the standards by which we review such a challenge. As Justice Kennedy observed in his concurrence in Lopez, while Congress enjoys "extensive power and ample discretion to determine [the] appropriate exercise [of its Commerce Clause authority]," the courts, for their part, must observe "great restraint" before determining "that the Clause is insufficient to support an exercise of the national power." Id. at 1634 (Kennedy, J., concurring). Our examination of the scope of legislative prerogative respecting exercise of the Commerce Clause power is twofold, and "relatively narrow." Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276 (1981). We must first determine whether Congress could rationally conclude that the regulated activity substantially affects interstate commerce. Lopez, 115 S. Ct. at 1629- 30. *fn3 If we decide that it could, "the only remaining question for judicial inquiry is whether 'the means chosen by [Congress] [are] reasonably adapted to the end permitted by the Constitution.'" Virginia Surface Mining, 452 U.S. at 276 (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262 (1964)); accord Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 17 (1990).
In Lopez the government had conceded that neither Section(s) 922(q) nor its legislative history contained any express findings regarding the effects on interstate commerce of gun possession in a school zone. 115 S.Ct. at 1631. Chief Justice Rehnquist commented that the Court's ability to evaluate the legislative judgment as to the effect of gun possession on interstate commerce would have been aided by the existence of congressional findings, and declined to consider findings accompanying prior firearms legislation because the previous legislation did not address the subject matter of Section(s) 922(q) or its relationship to interstate commerce. The prohibition of firearm possession in a school zone effected by Section(s) 922(q) "'plow[ed] thoroughly new ground and represent[ed] a sharp break with the longstanding pattern of federal firearms legislation.'" Id. at 1632 (quoting approvingly from the Court of Appeals decision).
The majority thus proceeded to determine, without the aid of Congress' views, whether possession of a firearm in a school zone does in fact substantially affect interstate commerce. The government had argued that such possession may result in violent crime, which can be expected to affect the national economy in two ways: (1) the costs of violent crime are spread throughout the population through the mechanism of insurance; and (2) violent crime reduces the willingness of people to travel to unsafe areas. The government had also contended that the presence of guns in schools threatens the learning environment, resulting in a less productive citizenry and adverse effects on the nation's economic well-being. Id.
The Lopez majority rejected these arguments because it saw no boundaries, commenting that under the government's theories it would be "difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign." Id. In response to Justice Breyer's dissent, which argued that "Congress . . . could rationally conclude that schools fall on the commercial side of the line," id. at 1664 (Breyer, J., dissenting), Chief Justice Rehnquist characterized such analysis as "equally applicable, if not more so, to subjects such as family law and direct regulation of education," id. at 1633. He continued,
We do not doubt that Congress has authority under the Commerce Clause to regulate numerous commercial activities that substantially affect interstate commerce and also affect the educational process. That authority, though broad, does not include the authority to regulate each and every aspect of local schools. Id. He added:
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 1634.
The Chief Justice concluded by declining "to pile inference upon inference" in order "to convert congressional authority under the Commerce Clause to a general police ...