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.