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U.S. v. Kirk

9 Citing cases

  1. U.S. v. Rybar

    103 F.3d 273 (3d Cir. 1996)   Cited 59 times
    Holding that FOPA targets the mere intrastate possession of machine guns as a "demand-side measure to lessen the stimulus that prospective acquisition would have on the commerce in machine guns"

    On March 5, 1996, the Fifth Circuit granted a rehearing en banc. See United States v. Kirk, 78 F.3d 160 (5th Cir. 1996). I. FACTS AND PROCEDURAL HISTORY

  2. Navegar, Inc. v. U.S.

    192 F.3d 1050 (D.C. Cir. 1999)   Cited 20 times
    Holding that a statute banning the manufacture of semiautomatic assault weapons did not constitute a bill of attainder against gun manufacturers

    The FOPA has been upheld as a Lopez category 1 regulation of the channels of interstate commerce by the Sixth and Ninth Circuits. See United States v. Beuckelaere, 91 F.3d 781, 783 (6th Cir. 1996); United States v. Rambo, 74 F.3d 948, 952 (9th Cir. 1995); see also United States v. Kirk, 70 F.3d 791, 796-97 (5th Cir. 1996), vacated, 78 F.3d 160 (1996). Likewise, the First Circuit has upheld under Lopez category 3 section 110201 of the Violent Crime Control and Law Enforcement Act, entitled the Youth Handgun Safety Act, which prohibits the mere possession of a firearm by a juvenile.

  3. U.S. v. Branch

    91 F.3d 699 (5th Cir. 1996)   Cited 158 times   2 Legal Analyses
    Holding that 18 U.S.C. § 924(c) does not create separate offense

    There is no requirement that the machinegun have been in interstate commerce. Subsequent to the district court's ruling, we held in United States v. Kirk, 70 F.3d 791 (5th Cir. 1995), that Section(s) 922(o) did not exceed Congress' power under the Commerce Clause. That panel decision has been vacated, and the case is currently pending before the en banc court. 78 F.3d 160 (5th Cir. 1996). The en banc court's resolution of this issue will govern the ultimate validity of Fatta's convictions on Counts 9 and 10. Under pre-Kirk caselaw now binding this panel, we must reject this contention.

  4. U.S. v. Wall

    92 F.3d 1444 (6th Cir. 1996)   Cited 40 times
    Upholding 18 U.S.C. § 1955, which prohibits illegal gambling operations, as a third-category regulation

    s one way in which courts have distinguished Lopez. See, e.g., Staples, 85 F.3d at 463 ("Unlike education, drug trafficking is a commercial activity which substantially affects interstate commerce."); Bishop, 66 F.3d at 581 ("[C]arjacking is economic in a way that possession of a handgun in a school zone is not."); Wilson, 73 F.3d at 683 ("We agree . . . that the [Freedom of Access to Clinic Entrances Act], unlike the Gun-Free School Zones Act, regulates a commercial activity — the provision of reproductive health services."); cf. Gomez, 87 F.3d at 1096 (upholding arson conviction because a "rental property is a commercial establishment, and is not substantially different than any other business"); United States v. Kirk, 70 F.3d 791, 802 (5th Cir. 1995) (Jones, J., dissenting) (arguing that 18 U.S.C. §(s) 922(o), which prohibits the possession of machineguns, should be invalidated because it "is a purely criminal law, without any nexus to commercial activity"), reh'g en banc granted, 78 F.3d 160 (5th Cir. 1996); Hoffman, 923 F. Supp. at 813 ("[T]his court believes that Congress cannot regulate the protest activities of the Plaintiffs because those activities, like the gun possession at issue in Lopez, are simply not properly characterized as commercial or economic activities."). Even the dissents in Bishop and Wilson might uphold Section(s) 1955 because it clearly regulates economic activity.

  5. U.S. v. Kenney

    91 F.3d 884 (7th Cir. 1996)   Cited 56 times
    Holding that "both the nature of the statute and the history of federal firearms legislation" suggest that Section 922(o ) was a valid exercise of Congress's Commerce Clause power to regulate activity that has a substantial effect on interstate commerce, i.e. the third category in Lopez

    The government argues that sec. 922(o) is constitutional as part of either the second or third Lopez/Perez categories, as a regulation of things in interstate commerce or as a regulation of activities substantially affecting interstate commerce. For support, the government points out that every circuit court to consider the question of sec. 922(o)'s constitutionality in light of Lopez has upheld it: United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995); United States v. Kirk, 70 F.3d 791 (5th Cir. 1995), rehearing en banc granted, 78 F.3d 160 (5th Cir. 1996); and United States v. Rambo, 74 F.3d 948 (9th Cir. 1996). Kenney counters by citing the contrary pre-Lopez view of United States v. Bownds, 860 F. Supp. 336 (S.D. Miss. 1994).

  6. U.S. v. Kirk

    105 F.3d 997 (5th Cir. 1997)   Cited 31 times
    Upholding machine gun ban under third prong of Lopez rather than under a predecessor case to Scarborough

    A divided panel of this court rejected Kirk's constitutional challenge and affirmed his conviction. United States v. Kirk, 70 F.3d 791 (5th Cir. 1995), reh'g en banc granted, 78 F.3d 160 (5th Cir. 1996). Because this case poses similar constitutional questions to those presented in United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624 (1995), we granted rehearing en banc, vacating the panel opinion to determine the constitutionality of the Section(s) 922(o) ban on the possession of machine guns.

  7. U.S. v. Beuckelaere

    91 F.3d 781 (6th Cir. 1996)   Cited 24 times
    Holding that "machineguns are `things in interstate commerce' which flow across state lines for profit by business entities and hamper local and state law enforcement efforts," and, alternatively, that "Congress is regulating the channels of interstate commerce by prohibiting from the introduction into the stream of commerce machineguns manufactured, imported, or otherwise illegally obtained after the effective date of the Act"

    I disagree, however, with the majority's attempt to uphold 18 U.S.C. §(s) 922(o) as a valid exercise of Congress's Commerce Clause power in light of United States v. Lopez, 115 S.Ct. 1624 (1995). The arguments against upholding Section(s) 922(o) have been persuasively set out by Judge Jones in her dissent from United States v. Kirk, 70 F.3d 791 (5th Cir. 1995), petition for reh'g en banc granted, 78 F.3d 160 (5th Cir. 1996). Briefly, however, I address several areas in which I disagree with the majority.

  8. U.S. v. Lerebours

    87 F.3d 582 (1st Cir. 1996)   Cited 22 times
    Holding that "courts will not strike down a statute under the Tenth Amendment where Congress was within its powers under the Commerce Clause to enact the statute"

    Accord United States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995). See, e.g., United States v. Kirk, 70 F.3d 791, 794-95 (5th Cir. 1995), reh'g en banc granted, 78 F.3d 160 (Mar. 5, 1996); United States v. Bishop, 66 F.3d 569, 575-89 (3d Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 681 (1995). Finally, defendant argues that this case amounts to an abridgment of the reservation of police powers to the states under the Tenth Amendment.

  9. U.S. v. Cleveland

    951 F. Supp. 1249 (E.D. La. 1997)   Cited 5 times

    However, the decision in Kirk was recently vacated, and the case is presently pending before the en banc court. See 78 F.3d 160 (1996). In United States v. Coleman, the Court clarified that the type of rational basis review required under Lopez is a deferential form of review.