The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
FINAL RECOMMENDATION REGARDING MOTION TO DISMISS COUNTS 1 AND 2
The Court issued an Initial Recommendation at Docket 35. The Government filed it's Objections at Docket 42 and the Defendant filed his Reply at Docket 43. After due consideration, the magistrate judge declines to modify the Initial Recommendation. A few comments regarding the Objections and Reply are appropriate, however.
I. Heller outlines a more stringent test regarding the right to bear arms, which this court must apply in this case.
The Government has not cited any case law specifically addressing the issue of whether 18 U.S.C. § 922(o), as applied to Mr. Henry, is an invalid exercise of the Commerce Clause considering the new heightened scrutiny analysis addressed in Heller.*fn1 The Initial Recommendation adequately examined this issue and the Government has offered no arguments or case law which persuade the magistrate judge to alter his recommendation.
II. This Court does not lack authority to make a determination in a case of first impression.
The Government asserts that this court does not have the authority to make a decision outside of the parameters established in Stewart II.*fn2 More specifically, the Government argues that this court does not have the authority to make the decision recommended in the Initial Recommendation. The issue of possession of a machine gun in the context of the facts of this case, and in light of the individual right conferred in Heller, makes this a case of first impression. This court has authority to determine the appropriate legal remedy under case precedent and the facts presented in this matter.
III. The Initial Recommendation adequately analyzed Stewart II in light of Heller.
The Government argues in their Objections that the Initial Recommendation misconstrued the Ninth Circuit's decisions in Stewart I and Stewart II. The Stewart cases examined the constitutionality of 18 U.S.C. § 922(o). The Court in Stewart II noted that the analysis of whether the defendant's activities substantially affects interstate commerce would be different if the Second Amendment granted individual rights.*fn3 The magistrate judge examined the facts of this case and the case precedent in Stewart II in light of the individual right recognized in Heller. The magistrate declines to modify the analysis or conclusions outlined in the Initial Recommendation.
IV. The Recommendation examines the intersection of Second Amendment rights in light of the controlling case precedent of Stewart II.
As noted above, the magistrate judge analyzed the Second Amendment rights described in Heller and their intersection with the Commerce Clause in this case, with the heightened scrutiny resulting from the individual right conveyed in Heller. That examination intersects with analysis in Stewart II in that the heightened scrutiny described in Heller results in a test that is out of line with the analysis in Stewart II. The magistrate judge declines to modify the analysis or conclusions outlined in the Initial Recommendation based on the arguments asserted by the Government in it's Objections.
V. Ninth Circuit case precedent establishes an analysis of § 922(o) under the third prong of the Commerce Clause test.
The Government argues in their Objections that this court should
examine the facts of this case under the first test regarding the
Commerce Clause: Congress may regulate the use of the channels of
interstate commerce. In this case, the Defendant is charged in Counts
1 and 2 of the Indictment of violating 18 U.S.C. § 922(o). In Stewart
II, the Ninth Circuit determined that § 922(o) "could not be justified
under either of the first two categories" and instead examined whether
§ 922(o) "substantially affected interstate commerce."*fn4
The magistrate judge applied this test in the Initial
The Government points to United States v. Rambo to support it's position.*fn5 However, Rambo was decided in 1996, prior to Stewart II. The court, instead, followed the rule outlined by Stewart II in 2006. Again, the magistrate judge declines to modify the analysis or conclusions outlined in the Initial ...