UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NAVEGAR INC

v.

UNITED STATES


98-5491a

D.C. Cir. 1999


*	*	*


Wald, Circuit Judge: Navegar, Inc., doing business as  Intratec
("Intratec"), and Penn Arms, Inc. ("Penn Arms")  (together
"appellants"), are licensed by the United States  Bureau of Alcohol,
Tobacco and Firearms ("BATF") to manu- facture firearms. Intratec and
Penn Arms brought a declara- tory judgment action under 28 U.S.C. s
2201 in the United  States District Court for the District of Columbia
to challenge  the constitutionality of section 110102 of the Violent
Crime  Control and Law Enforcement Act of 1994. See Pub. L. No. 
103-322, 108 Stat. 1796, 1996-98 (codified at 18 U.S.C.  ss
921(a)(30), 922(v) (1994)). Section 110102(a) makes it un- lawful to
"manufacture, transfer or possess a semiautomatic  assault weapon."
See 108 Stat. at 1996-97 (codified at 18  U.S.C. s 922(v)(1)). Section
110102(b) specifically identifies  the precise weapons Intratec and
Penn Arms manufacture as  semiautomatic assault weapons. See 108 Stat.
at 1997-98  (codified at 18 U.S.C. ss 921(a)(30)(A)(viii), (ix)).
Appellants  sought a declaration that these provisions exceed
Congress'  Commerce Clause power, and are unconstitutional Bills of 


Both the appellants and the government filed cross-motions  for summary
judgment on both of the constitutional chal- lenges to the Act. See
Memorandum Order and Opinion,  Joint Appendix ("J.A.") at 43. The
district court issued a  Memorandum Order and Opinion granting the
government's  motion, rejecting appellants' motion and dismissing the
case.  We affirm the district court's grant of summary judgment on 
both of appellants' challenges.


I. Background


A. The Violent Crime Control and Law Enforcement Act of  1994


In 1994, Congress passed the Violent Crime Control and  Law Enforcement
Act. Pub. L. No. 103-322, 108 Stat. 1796  ("the Act"). Subtitle A of
Title XI of the Act, which regulates  assault weapons, is entitled the
"Public Safety and Recre- ational Firearms Use Act." See Violent Crime
Control and  Law Enforcement Act of 1994, s 110101, 108 Stat. 1796,
1996. 


Section 110102(a) of the Act makes it "unlawful for a person  to
manufacture, transfer, or possess a semiautomatic assault  weapon."
See 18 U.S.C. s 922(v)(1). Section 110102(b) de- fines "semiautomatic
assault weapon" to include "any of the  firearms, or copies or
duplicates of the firearms" enumerated  in nine categories of guns
identifying 15 weapons by name.  See 18 U.S.C. s 921(a)(30)(A). Two of
the categories of guns  specified by the statute are "INTRATEC TEC-9,
TEC-DC9,  and TEC-22; and ... revolving cylinder shotguns, such as 
(or similar to) the Street Sweeper and Striker 12." 18 U.S.C.  ss
921(a)(30)(A)(viii), (ix). The definition of "semiautomatic  assault
weapon" in section 110102(b) also includes semiauto- matic rifles and
semiautomatic pistols that have the ability to  accept a detachable
magazine and any two of five enumerated  accessories, and
semiautomatic shotguns that have any two of  four enumerated features.


Section 110102(a) of the Act contains a "grandfather"  clause which
exempts from the Act semiautomatic assault  weapons lawfully possessed
on the date of enactment. See 18  U.S.C. s 922(v)(2). The Act does not
apply to certain enu- merated firearms as well as firearms, replicas
or duplicates of  firearms specified in an appendix. See id. s
922(v)(3); id.  App. A. Persons convicted of knowingly violating the
Act are  subject to a fine and imprisonment of up to five years. See 
id. s 924(a)(1).


B. Factual Background


Appellants are the sole manufacturers of firearms identi- fied by name
in the Act as "semiautomatic assault weapons."  See 42 U.S.C. s
921(a)(30)(A)(viii), (ix). Intratec is the sole  manufacturer of the
TEC-DC91 and TEC-22 semiautomatic  pistols. Penn Arms is the sole
manufacturer of the Striker  12, 12S, 12E and 12SE, 12-gauge revolving
cylinder shotguns.  See Navegar, Inc. v. United States, 914 F. Supp.
632, 633  (D.D.C. 1996). On September 13, 1994, the Act became law 
and agents from the BATF visited appellants' facilities to 




__________

n 1 The Itratec TEC-DC9 is simply the the Intratec TEC-9 re- named. See
Navegar, Inc. v. United States, 914 F. Supp. 632, 633  (D.D.C.
1996).


inform appellants' officers of the prohibitions of the Act and  give
notice that they planned to conduct inventories of the  weapons that
would be grandfathered. See Navegar, Inc. v.  United States, 103 F.3d
994, 997 (D.C. Cir. 1997). Over the  next two days, the BATF conducted
these inventories. See  id.


On September 26, 1994, the BATF sent letters to all  federally licensed
firearm manufacturers, including Intratec  and Penn Arms, giving
notice of the "grandfather" provision,  and that the BATF would permit
seven additional days of  weapon manufacturing before it would take a
final inventory  identifying all grandfathered weapons. See Navegar,
914 F.  Supp. at 633. When the additional seven-day window for 
grandfathering weapons closed, Intratec held in its inventory  over
40,000 TEC-DC9 and TEC-22 frames and thousands of  dollars of gun
parts which it could no longer assemble. Penn  Arms was unable to take
advantage of the seven-day window  and was left with an inventory of
$58,000 worth of gun parts  for the Striker 12 series of shotguns. See


C. Procedural Background


In March, 1995, Intratec and Penn Arms filed a declaratory  judgment
action in the United States District Court for the  District of
Columbia, challenging the constitutionality of cer- tain provisions of
the Act. See First Amended Compl., J.A.  at 9. Appellants alleged that
neither s 922(v)(1) nor  s 922(w)(1), which prohibits the transfer or
possession of a  large capacity feeding device, fell within the powers
delegated  to Congress under Article I because there were no
legislative  findings nor anything in the language of the Act which 
indicated any nexus with Congress' delegated powers. See  id., J.A. at
15. In addition, appellants asserted that  s 922(v)(1) together with s
922(a)(30)(A)(viii), (ix), singled out  the TEC-DC9, TEC-22 and
Striker 12 for prohibition in  order to punish them for manufacturing
their products and  thus were unconstitutional Bills of Attainder. See
id., J.A. at  15-16, 20-22. Further, they alleged that provisions
using  general terms to include certain types of semiautomatic rifles,
 pistols and shotguns, 18 U.S.C. s 921(a)(30)(B)-(D), in the 
definition of "semiautomatic assault weapon" were void for 


vagueness under the Due Process clause of the Fifth Amend- ment. See
id., J.A. at 17-20.


The government filed a motion for summary judgment on  the ground that
appellants did not have standing to bring a  pre-enforcement challenge
to the provisions of the Act since  they did not demonstrate a genuine
threat of prosecution.  On February 1, 1996, the district court issued
a Memorandum  Order and Opinion granting the government's motion and 
dismissing appellants' case. See Navegar, 914 F. Supp. at  632.
Appellants appealed the district court's decision on  standing to this
court. See Navegar, Inc. v. United States,  103 F.3d 994 (D.C. Cir.
1997). This court held that since the  provisions prohibiting the
weapons that Intratec and Penn  Arms alone manufactured effectively
single them out as in- tended targets, these provisions presented an
imminent  threat of prosecution sufficient to bring a pre-enforcement 
challenge. See id. at 1001. However, this court also held  that
appellants had failed to show an imminent threat of  prosecution under
18 U.S.C. ss 921(a)(30)(B)-(D) and 922(w),  which outlawed items using
general terms, because nothing  indicated a special priority of
enforcement against appellants  and the general nature of the language
made it impossible to  predict whether these provisions would be
applied to them.  See id. at 1002. Therefore, this Court reversed the
part of  the order of the district court relating to the enumerated 
powers claims challenge to s 922(v)(1) and the Bill of Attain- der
challenge to 18 U.S.C. ss 921(a)(30)(A)(viii), (ix) in con- junction
with s 922(v)(1) and affirmed the decision to dismiss  the void for
vagueness claims and the enumerated powers  challenge to s 922(w)(1).


On remand to the district court, appellants sought leave to  amend
their complaint to demonstrate that their challenges to  the general
provisions of the Act were justiciable in light of  this court's prior
decision. See Memorandum Order and  Opinion, J.A. at 43. On December
1, 1997, the district court  issued an opinion denying appellants'
motion to amend their  complaint. See Navegar, Inc. v. United States,
986 F. Supp.  650 (1997). The district court held that the motion to
amend  was futile because the proposed amended complaint failed to 


establish standing to bring a pre-enforcement challenge to the 
provisions of the Act prohibiting general categories of weap- ons. See
id. at 653. Appellants did not appeal that order.


The appellants and the government subsequently filed  cross-motions for
summary judgment on the enumerated  powers challenge to s 922(v)(1)
and the Bill of Attainder  challenge to s 922(v)(1) in conjunction
with  s 921(a)(30)(A)(viii), (ix). The district court held that Con-
gress did not exceed its authority in enacting s 922(v)(1) of  the Act
and that s 922(v)(1) together with s 921(a)(30)(viii),  (ix) does not
constitute a Bill of Attainder with respect to  Intratec and Penn
Arms. See Memorandum Order and Opin- ion, J.A. at 89. On the basis of
congressional testimony  discussing the Act, the legislative history
of prior Acts regu- lating firearms and the decisions of other courts
of appeals  upholding the validity of the Firearms Owner Protection
Act  of 1986, which prohibits the "transfer or possession of ma- chine
guns," the district court held that the Act regulated  activities that
had a substantial effect on interstate commerce.  See id., J.A. at 76.
The district court further held that the  Act did not constitute a
Bill of Attainder because even though  provisions of the Act singled
out guns made by Intratec and  Penn Arms, the ban on the manufacture,
transfer and posses- sion did not fall within a historical meaning of
punishment,  promoted non-punitive legislative purposes, and did not
mani- fest a congressional intent to punish. See id., J.A. at 88. 
Therefore, the district court granted the government's motion  for
summary judgment, denied appellants' motion and dis- missed
appellants' claims. This appeal followed.


II. Discussion


A. The Constitutional Attack Under the Commerce Clause


1. The Scope of Congress' Commerce Clause Power After  Lopez


In United States v. Lopez, 514 U.S. 549 (1995), the Su- preme Court
refined the scope of Congress' powers under the  Commerce Clause.
Lopez held that the Gun Free School 


Zones Act of 1990, which made possession of a firearm within  1,000
feet of a school a federal offense, exceeded Congress'  Commerce
Clause authority. See id. at 561. The Lopez  Court identified three
broad categories of activity that Con- gress may regulate under its
Commerce Clause authority: (1)  The "use of the channels of interstate
commerce"; (2) "the  instrumentalities of interstate commerce, or
persons or things  in interstate commerce"; and (3) "those activities
having a  substantial relation to interstate commerce ... i.e., those 
activities that substantially affect interstate commerce." Lo- pez,
514 U.S. at 558-59.


The Court quickly concluded that possession of a gun in a  school zone
did not fit the first two categories. See id. at 559.  The Court
subsequently concluded that such activity could  not be regulated
under the third category either; it did not  substantially affect
interstate commerce because it was not  related to any sort of
economic enterprise, nor was its regula- tion an essential part of a
larger regulation of interstate  economic activity, so that the
interstate regulatory scheme  would be undercut unless the intrastate
activity were regulat- ed. See id. at 560. Further, the Court
explained that  Congress had made no findings about the effect of such
 activity on interstate commerce nor did the Act contain a 
jurisdictional element which would ensure that, as applied,  the
firearm possession in question would always affect inter- state
commerce. See id. 561-62. In addition, the Court  rejected arguments
made at trial about the economic costs of  gun possession in school or
that effective education is essen- tial to national productivity; it
said such attenuated reason- ing, which would require it to pile
inference upon inference to  find a connection to commerce, would
justify a limitless  amount of regulation of intrastate activity by
Congress. See  id. at 564, 567. Therefore, the Court concluded that
Con- gress had no rational basis for finding that gun possession in  a
school zone had a substantial effect on interstate commerce  and


In this case, we do not find it necessary to analyze whether  the Act
is a Lopez category 1 regulation of the channels of  interstate
commerce or a category 2 regulation of the instru-


mentalities of or persons or things in interstate commerce  because the
Act readily falls within category 3 as a regulation  of activities
having a substantial affect on interstate com- merce.2 The legislative
history and congressional hearings  conducted prior to the Act clearly
manifest a congressional  intent to restrict the interstate flow of
"semiautomatic assault  weapons," especially across the borders of
states which had  laws prohibiting such weapons. Furthermore, the
constitu- tionality of the Act is supported by the history of prior 
firearms legislation such as the Omnibus Crime Control and  Safe
Streets Act of 1968 and the Gun Control Act of 1968,  which contain
congressional findings that there is a large  interstate market in
firearms and firearms legislation is  aimed at controlling that
market. Finally, eight other circuit  courts of appeals have upheld a
similar prohibition of the  "transfer or possession of machine guns"




__________

n 2 Appellees argued below that the provisions at issue may also be 
classified as a category 1 regulation of the channels of interstate 
commerce. The trial judge concluded that it could not. We need  not
address this issue. Some of our prior cases indicate that some 
statutes are capable of classification as both a category 1 and 
category 3 regulation of commerce. See National Ass'n of Home 
Builders v. Babbitt, 130 F.3d 1041, 1046 (D.C. Cir. 1997). A prime 
example of the interconnection of categories 1 and 3 is the Lopez 
Court's citation of United States v. Darby, 312 U.S. 100, 114 (1941), 
as a category 1 case and Maryland v. Wirtz, 392 U.S. 183, 196, n.27 
(1968), for category 3. See 514 U.S. at 558-59. Wirtz involved a 
challenge to a 1961 amendment to the Fair Labor Standards Act 
originally challenged in Darby. The amendment extended the  coverage
of the FLSA from employees "engaged in commerce" to  employees
"employed in an enterprise engaged in commerce or in  the production
of goods for commerce." See 392 U.S. at 188. The  Supreme Court held
that the constitutionality of the 1961 extension  of employees covered
by the Act was "settled by the reasoning of  Darby itself." Id.
Therefore Wirtz, the paradigmatic category 3  case according to Lopez,
is in fact a category 1 case as well. The  confluence of categories 1
and 3 demonstrates that while the  categories are useful as a synopsis
of the Supreme Court's Com- merce Clause jurisprudence, the attempt to
fit a regulation squarely  within one category can prove elusive, even


commerce clause challenges.3


2. Activities Which May Be Regulated Because they Have  a Significant
Effect on Interstate Commerce


Appellants argue that after Lopez, Congress only has pow- er to
regulate "economic" or "commercial" activities and since  Congress
passed this statute principally to regulate the crimi- nal
activity--not commercial activity--associated with posses- sion of a
semiautomatic assault weapon, the Act is not a  proper exercise of the
Commerce power. This court has  already held that a "regulated
activity ... need not be  commercial, so long as its effect on
interstate commerce is  substantial." Terry v. Reno, 101 F.3d 1412,
1417 (D.C. Cir.  1996). Alas, appellants contend that this Court's




__________

n 3 The confluence of Lopez categories 1 and 3 is also apparent  from
the cases where other circuits have upheld the Firearm  Owners
Protection Act of 1986, ("FOPA"), which makes it unlawful  to
"transfer or possess a machine gun." 18 U.S.C. s 922(o) (1994).  FOPA
has been upheld as a Lopez category 3 regulation of an  activity with
a substantial effect on interstate commerce by the  Second, Third,
Fifth, Seventh, Tenth and Eleventh Circuits. See  United States v.
Franklyn, 150 F.3d 90, 96 & n.3 (2d Cir. 1998) (not  deciding whether
FOPA fell within Lopez category 1); United  States v. Wright, 117 F.3d
1265, 1270 (11th Cir. 1997), vacated on  other grounds, 133 F.3d 1412
(1998); United States v. Knutson, 113  F.3d 27, 30 (5th Cir. 1997)
(avoiding the issue of category 1 to  prevent controversy); United
States v. Rybar, 103 F.3d 273, 283 (3d  Cir. 1996); United States v.
Kenney, 91 F.3d 884, 890 (7th Cir.  1996); United States v. Wilks, 58
F.3d 1518, 1521 (10th Cir. 1995).  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. See  United States v. Cardoza, 129 F.3d 6, 12 (1st Cir.
1997); 108 Stat.  1796, 2010 (codified at 18 U.S.C. s 922(x)


in Terry is incorrect and "finds no support in Lopez." See  Appellants'
Br. at 10. Appellants badly misread both Terry  and Lopez.


A close examination of Lopez reveals that it supports the  reasoning of
Terry. Lopez described a statute prohibiting  possession of a gun
within 1000 feet of a school which it  struck down as involving in "no
sense an economic activity  that might ... substantially affect any
sort of interstate  commerce." United States v. Lopez, 514 U.S. 549,
567 (1995)  (emphasis added). However, the Lopez Court pointedly left 
out both "economic" and "commercial" when it concluded in a  normative
vein that "the proper test requires an analysis of  whether the
regulated activity 'substantially affects' interstate  commerce." 514
U.S. at 559. Furthermore, when the Lopez  Court did use the term
"economic activity," it cited as an  example the home consumption of
wheat at issue in Wickard  v. Filburn. See Lopez, 514 U.S. at 560-61
(citing 317 U.S.  111, 127 (1942).


The Lopez Court noted that Wickard "involved economic  activity in a
way that the possession of a gun in a school zone  does not." Id. at
560. Wickard involved a constitutional  challenge to the Agricultural
Adjustment Act of 1938 by  farmer Roscoe Filburn. The Lopez Court
specifically cited as  an example of "economic activity" farmer
Filburn's personal  consumption of his home-grown wheat. See Lopez,
514 U.S.  at 560 (quoting Wickard, 317 U.S. at 128). The passage from 
Wickard quoted in Lopez makes clear that wheat grown at  home, even if
it is not marketed, has a substantial effect on  interstate commerce
because it competes with wheat in com- merce by supplying the " 'need
of the man who grew it which  would otherwise be reflected by
purchases in the open mar- ket.' " Id. at 560 (quoting Wickard, 317
U.S. at 128). The  Lopez Court's discussion of Wickard demonstrates
that what  makes a regulated activity "economic" is not that it is
intrinsi- cally commercial in any ordinary sense of the word, but 
rather that it "substantially affects" a larger market for the 
product in interstate commerce. See id. The Lopez Court  made this
point clear with the following quotation from  Wickard:


Even if ... activity be local and though it may not be  regarded as
commerce, it may still, whatever its nature,  be reached by Congress
if it exerts a substantial econom- ic effect on interstate commerce,
and this irrespective of  whether such effect is what might at some
earlier time  have been defined as 'direct' or 'indirect.'


Lopez, 514 U.S. 549 at 556 (quoting Wickard, 317 U.S. at 125) 
(emphasis added).


Our decision in Terry v. Reno, 101 F.3d 1412 (D.C. Cir.  1997), is a
logical extension of the reasoning in Lopez. In  Terry, this court
upheld the Freedom of Access to Clinic  Entrances Act ("FACEA")
against a Commerce Clause chal- lenge. See 101 F.3d at 1418. This
court rejected the argu- ment that Congress could not regulate protest
in front of  abortion clinics because protest against abortion clinics
is an  intrastate, noncommercial activity. See id. at 1417. We 
concluded that the regulated activity need not be commercial  in
nature, rather the only relevant inquiry is whether the  effect on
interstate commerce is substantial. See id. This  court found that
Congress had a rational basis to conclude  that abortion clinics
engage in interstate commerce because,  among other things, they treat
patients who travel interstate  to obtain abortion services and obtain
medical equipment and  supplies through interstate commerce. See id.
at 1415-16,  1417. Therefore, even though violent and obstructive
protest  was not an intrinsically "commercial" or "economic" activity,
 we upheld the FACEA because such activity had a substan- tially
adverse effect on interstate commerce in reproductive  health


The most recent Supreme Court Commerce Clause case of  Camps
Newfound/Owatonna, Inc. v. Town of Harrison, 520  U.S. 564 (1997),
also reinforces our holding in Terry that  activity need not be
commercial in character in order to be  regulated under the Commerce
Clause. Camps involved a  Commerce Clause challenge to an otherwise
generally appli- cable state property tax exemption for charitable
institutions  which excluded organizations operated principally for


benefit of nonresidents. See id. at 568. The Supreme Court  held that
the Commerce Clause applies to activity regardless  of whether it was
pursued with the purpose of earning a  profit. See id. at 584. The
Camps Court cited an earlier  opinion in which it struck down a
California statute prohibit- ing the transport of indigent persons
into the State under the  Commerce Clause by holding that
transportation is commerce  " 'whether or not the transportation is
commercial in charac- ter.' " Id. (quoting Edwards v. California, 314
U.S. 160, 166  n.1). The Camps decision makes clear that an activity
can be  regulated under the Commerce Clause regardless of whether  it
is intrinsically "economic" or "commercial" but solely on the  basis
of its substantial effect on interstate commerce. See  National Ass'n
of Home Builders v. Babbitt, 130 F.3d 1041,  1050 (D.C. Cir. 1997)


3. Whether the Activity Regulated By the Act Has a  Substantial Effect
on Interstate Commerce


The Supreme Court has repeatedly held that the manufac- ture of goods
which may ultimately never leave the state can  still be activity
which substantially affects interstate com- merce. See United States
v. Darby, 312 U.S. 100, 118-19  (1941); NLRB v. Jones & Laughlin
Steel, 301 U.S. 1, 37  (1937) (holding that if manufacturing which may
be intrastate  in character when separately considered has a
substantial  effect on commerce, Congress may regulate it). Further-
more, Supreme Court precedent makes clear that the trans- fer of
goods, even as part of an intrastate transaction, can be  an activity
which substantially affects interstate commerce.  See Lopez, 514 U.S.
at 560-61 (citing Wickard v. Filburn, 317  U.S. 127-28 (1942)) (noting
that farmer's home consumption  of wheat substantially affected
interstate commerce)); see  also Wickard, 317 U.S. at 114, 127 (noting
that the farmer  sold some of his wheat, and that even local marketing
sub- stantially affects interstate commerce). Therefore, it is not 
even arguable that the manufacture and transfer of "semiau- tomatic
assault weapons" for a national market cannot be  regulated as
activity substantially affecting interstate com- merce.


However, the Supreme Court's decision in Lopez does raise  a question
of whether mere possession of a "semiautomatic  assault weapon" can
substantially affect interstate commerce.  For that reason, it is
necessary to examine the purposes  behind the Act to determine if it
was aimed at regulating  activities which substantially affect
interstate commerce.


Appellants contend that as in Lopez, Congress in this Act  did not even
address the issue of whether the manufacture,  transfer and possession
of semiautomatic assault weapons  affects Commerce. To the contrary,
there is extensive legis- lative history indicating a firm
congressional intent to control  the flow through interstate commerce
of semiautomatic as- sault weapons bought or manufactured in one state
and  subsequently transported into other states. First, although  the
legislative reports accompanying the 1994 Act do not  specifically
address the Commerce Clause, one report does  state that the purpose
of the Act was to stop the "wide- spread" and growing threat posed by
"criminal gangs, drug- traffickers and mentally-deranged individuals
armed with  semiautomatic assault weapons" by "restricting the
availabili- ty of such weapons in the future." See H.R. Rep. No.
103-489,  at 12 (1994), reprinted in 1994 U.S.C.C.A.N. 1820, 1820. 
That report chronicles five years of congressional hearings on  the
escalating use of semiautomatic assault weapons, the  difficulties
such weapons cause state police officers and the  disproportionate
link between such weapons and drug- trafficking and violent crime. See
H.R. Rep. No. 103-489, at  13-18. While the report itself does not
pinpoint the effect of  the regulated activities on interstate
commerce, the five years  of hearings discussed in the legislative
report do contain  extensive testimony detailing the kind and extent
of interstate  commerce, featuring the flow of semiautomatic assault


The congressional hearings referred to in House Report  489 of the 1994
Act amply demonstrate that the ban on  possession in the Act was a
measure conceived to control and  restrict the interstate commerce in
"semiautomatic assault  weapons," especially their importation into
states which pro- hibit them. To restrict that commerce it imposed
criminal  liability for those activities which fuel the supply and
demand  for such weapons. The ban on possession is a measure 


intended to reduce the demand for "semiautomatic assault  weapons." See
United States v. Rybar, 103 F.3d 273, 283 (3d  Cir. 1996) (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"); United
States v. Rambo, 74  F.3d 948, 951 (9th Cir. 1995) (holding that the
ban on posses- sion is in effect " 'an attempt to control the
interstate market  ... by creating criminal liability' " for the "
'demand-side of  the market, i.e., those who would facilitate illegal
transfer out  of the desire to acquire mere possession") (quoting
United  States v. Kirk, 70 F.3d 791, 796 (5th Cir. 1995), vacated, 78 
F.3d 160 (1996)). The restriction on the manufacture and  transfer of
such weapons is an attempt to restrict the supply  of such weapons in
interstate commerce. Manufacture, trans- fer and possession are
activities that not only substantially  affect interstate commerce in
"semiautomatic assault weap- ons," but are also the necessary
predicates to such commerce.  See NAHB, 130 F.3d at 1047. The ban on
possession of  "semiautomatic assault weapons" in this context is
necessary  to allow law enforcement to effectively regulate the
manufac- ture and transfers where the product comes to rest, in the 
possession of the receiver. See id.; Kirk, 70 F.3d at 796; see  also 1
Lawrence H. Tribe, American Constitutional Law  s 5-4 at 819-20 n.50
(3d ed. 2000) (suggesting that the Act in  Lopez might have been
upheld as a necessary and proper  means of effectuating the commerce
power if Congress crimi- nalized only the possession of guns whose
interstate sale or  transport had been outlawed on the theory that
making  possession a crime would facilitate enforcement of the ban on 
sale or transport). The congressional testimony unmistak- ably shows
that the purpose of the ban on possession has an  "evident commercial


For instance, Barbara Fass, the Mayor of Stockton, Cali- fornia,
testified about the 1989 murders at a schoolyard in her  city and
complained that "legislation alone in our community  is not
sufficient." Semiautomatic Assault Weapons Act of 


1989: Hearings on H.R. 1190 Before the Subcomm. on Crime  of the House
Comm. on the Judiciary, 101st Cong. 142 (1989)  (noting that the
assault weapon used was prohibited in Stock- ton, but the assailant
subverted local laws by legally purchas- ing an assault weapon in
Oregon and purchasing the bullets  in Rhode Island). Similarly, Boston
Mayor Raymond L.  Flynn testified that local controls on assault
weapons were  ineffective since "people can still buy guns in one
state and  bring them into another." Assault Weapons: Hearings on 
S.386 and S.747 Before the Subcomm. on the Constitution of  the Senate
Comm. on the Judiciary, 101st Cong. 130 (1989);  see also id. at 87,
143 (remarks of Sen. Simon and statement  of Sen. Kennedy) (same).
Richard Cook, the Chief of the  Firearms Division of the BATF attested
to the existence of  interstate trafficking in weapons and its
connection to inter- state drug trafficking. See Select Crime Issues:
Prevention  and Punishment: Hearings Before the Subcomm. on Crime  and
Criminal Justice of the House Comm. on the Judiciary,  102d Cong. 43
(1991) (also noting that "New York City alone  seizes some 17,000
illegal weapons each year with 96 percent  coming from outside the
State" as an example of the large  interstate market for firearms).4


Congress also heard extensive testimony from police offi- cers about
the significant flow of weapons across state lines  and the inability
of a state to control it. The Vice President  of the International
Association of Chiefs of Police and Chief  of Police of Greensboro
North Carolina, Sylvester Daughtry,  Jr., testified that "the reason
there is no decrease in gun- related mayhem as a result of stringent
State and local gun  control laws is that guns are easily purchased in
less strin- gent locations and brought into these stricter areas....




__________

n 4 Congress heard other testimony regarding specific crimes  where the
assailant subverted state laws by buying a semiautomatic  assault
weapon in one state and using it to commit a crime in  another where
it was prohibited. See id. at 246 (statement of  Catherine Varner);
Assault Weapons: A View From the Front  Lines: Hearing Before Senate
Committee on the Judiciary, 103d  Cong. 38 (1994) (Statement of Sarah
Brady, chair of Handgun  Control Int'l).


control will only work if all states are required to observe it." 
Public Safety and Recreational Firearms Use Protection Act:  Hearing
Before the Subcomm. on Crime and Criminal Jus- tice of the House Comm.
on the Judiciary, 103d Cong. 165  (1994). Fred Thomas, Chief of Police
in Washington, D.C.  testified that despite stringent gun control laws
in the District  of Columbia, gun violence did not decrease because
"guns are  easily purchased in less stringent locations and brought
into"  D.C. Assault Weapons: A View From the Front Lines:  Hearing
Before Senate Committee on the Judiciary, 103d  Cong. 49 (1994) (also
noting that of all the firearms seized by  D.C. police in the previous
year, 97.7 percent came from  outside of D.C.). The National President
of the International  Brotherhood of Police Officers concluded that a
national ban  on assault weapons was necessary because not only do
"many  individuals ... travel from one state into another to circum-
vent state laws" which restrict the sale and use of such  weapons, but
"such circumvention of laws is common." See  id. at 58 (statement of
Kenneth T. Lyons).5


In sum, the congressional testimony on the bill shows that  Congress
was well aware that there was significant interstate 




__________

n 5 Congress also heard testimony from state and federal lawmak- ers
regarding the necessity of a national ban on semiautomatic  assault
weapons because existing state and federal regulation were 
insufficient. Jim Florio, at that time Governor of New Jersey, 
testified that "no individual state law, no matter how strong, can 
stop the deadly flow of these weapons across State lines." Assault 
Weapons: A View From the Front Lines: Hearing Before Senate  Committee
on the Judiciary, 103d Cong. 22 (1994) (also noting that  the day a
New Jersey statewide ban on assault weapons took effect,  a man with
an assault weapon obtained from Florida took a mother  and her two
children hostage, murdered the mother and shot her  daughter 14
times). Then-Representative Charles Schumer testi- fied before the
Senate Judiciary Committee that "[o]ne city or state  simply can't
control the flow of weapons. They just go buy them in  another state.
We need a national ban." Id. at 7; see also id. at 11  (statement of
Senator Diane Feinstein) (stating that "without a  national ban on
these weapons ... state and local initiatives are  meaningless.
Lenient laws allow gun buyers ... to simply cross  state lines and


traffic in semiautomatic assault weapons and that state laws  and
existing federal firearms regulation were inadequate to  control the
flow of these weapons across state lines.


Appellants asserted at oral argument, however, that the  real purpose
of the Act must be to prohibit purely intrastate  manufacture,
transfer and possession of semiautomatic as- sault weapons because
both the manufacture and transfer of  semiautomatic assault weapons
designed for interstate com- merce is already prohibited by statute.
However, we can  locate no federal law other than the Act which
specifically  restricts intra- or interstate manufacture, transport or
pos- session of semiautomatic assault weapons. See, e.g., 18  U.S.C. s
922. Before this Act was passed, manufacturing,  importing, and
dealing in "semiautomatic assault weapons"  was legal for any licensed
importer, licensed manufacturer  or licensed dealer of firearms
(hereinafter "licensee"). See  18 U.S.C. s 922(a)(1). The prior
statutory framework of  firearms legislation thus left unregulated a
wide array of  manufacture, transfer and possession of firearms all
with un- deniable substantial effects on interstate commerce.6 The 




__________

n 6 While s 922(b)(3) prohibits a licensee from selling or delivering 
a firearm to an unlicensed transferee whom the licensee knows or  has
reasonable cause to know does not reside in the state of the 
licensee's place of business ("LPOB"), it allows a licensee to (a)
sell  or deliver any rifle or shotgun to a resident of a state other
than the  state of the LPOB if the transferring parties meet in person
to  effectuate the transfer, and the sale, delivery and receipt comply
 with legal conditions of sale in both the state of residence of the 
transferee and place of business of the transferor and (b) to loan or 
rent a firearm to any person for temporary use for lawful sporting 


Further, s 922(a)(3) allows any licensee to transport or deliver  any
firearm obtained outside her state into her state. See id.  s
922(a)(3). Persons without a license cannot transport weapons in  that
fashion except for lawful receipt out-of-state through intestate 
succession or bequest or the transportation or receipt of any rifle or
 shotgun sold or delivered to her under s 922(b)(3). See id.  s
922(a)(3)(A), (B). In addition, any unlicensed person is prohibited 
from transferring any firearm to any person whom the transferor 


interstate activities prohibited solely by the 1994 Act, such as  the
interstate sale and delivery of semiautomatic weapons  between federal
licensees, are the type of activities which  arise out of or are
connected with a commercial transaction,  and when viewed in the
aggregate substantially affect inter- state commerce. See Lopez, 514
U.S. at 561; see also Wick- ard, 317 U.S. at 128-29. Moreover, since
the Act does not  apply to the transfer or possession of a weapon




__________

n knows or has reason to believe does not reside in her state except 
for (a) the transport, transfer or delivery of a firearm pursuant to a
 bequest or intestate succession and (b) the loan or rental of a 
firearm to another for temporary use for lawful sporting purposes. 
See id. s 922(a)(5). Finally, any person not otherwise prohibited 
from transporting, shipping or receiving a firearm may transport a 
firearm for any lawful purpose from any place where she may  lawfully
possess such firearm to any other place where she may  lawfully
possess such firearm so long as during such transportation,  the
firearm is unloaded and neither the firearm nor ammunition is 
accessible from the passenger compartment of the transporting 


Many activities affecting interstate commerce which would be 
prohibited under the Act in dispute here are not covered by the 
firearms regulation framework existing before the Act. For exam- ple,
a licensee could otherwise buy, receive, sell or deliver in 
interstate commerce any "semiautomatic assault weapon" to or from  a
fellow licensee. See id. ss 922(a), (b). A licensee could sell or 
deliver any rifle or shotgun, including the Penn Arms Striker 12 or 
any semiautomatic rifle or shotgun under the definition of  s
921(a)(30)(B) or (D) to any transferee whom the licensee has  reason
to know resides in another state that does not prohibit the  weapon.
See id. s 922(b)(3). In turn, the transferee could then  transport
that weapon into any other state which does not prohibit  that weapon.
See id. s 926A. In addition, any licensee could sell  any type of
"semiautomatic assault weapon" to another person  residing in his
state, even if for the express purpose of the buyer  using it
interstate. See id. ss 922(a)(3), 926A. The buyer could  then
transport it to any other state which does not prohibit the  weapon.
See id. ss 922(a)(3), 926A. In addition, a person from any  state
could loan or rent a "semiautomatic assault weapon" for  temporary use
in lawful sporting activities in another state. See id.  ss


lawfully possessed on the date of the Act's effectiveness, the 
intrastate possession banned by the Act will virtually always  arise
out of an illegal manufacture or transfer of a "semi-  automatic
assault weapon". See 18 U.S.C. s 922(v)(2).


In the final analysis, however, the primary reason why  appellants'
point about the purpose of the Act is not well  taken is because even
if the interstate activities regulated by  this statute are already
prohibited, the intrastate activities  regulated by the Act
nonetheless have a substantial effect on  interstate commerce. The
prohibition of the intrastate activi- ties is an "essential part of a
larger regulation of economic  activity, in which the regulatory
scheme could be undercut  unless the intrastate activity were
regulated." Lopez, 514  U.S. at 561; see also 1 Tribe, s 5-4, at
819-20 n.50. The  congressional testimony behind the 1994 Act
demonstrated  that the previous federal firearms regulation scheme and
 state law were being widely circumvented and were thus  inadequate to
allow states to control the flow of semiautomat- ic assault weapons
across their borders. Based on the grave  dangers posed by such
weapons before prior federal and state  laws could be enforced,
Congress decided that it needed to  take the additional step of
stifling their manufacture and flow  in interstate commerce. These
circumstances necessitated a  law that would prevent any commercial
activity in these  particularly dangerous types of guns where it began
with the  manufacture and interstate transfer, and where it ended with




__________

n 7 While it may be argued that the statute sweeps too broadly by 
prohibiting "purely" intrastate transfers or possession of "semiauto-
matic assault weapons," the Supreme Court has made clear that  "where
the class of activities is regulated and that class is within  the
reach of federal power, the courts have no power 'to excise, as 
trivial, individual instances' of the class." Perez v. United States, 
402 U.S. 146, 154 (1971) (quoting Maryland v. Wirtz, 392 U.S. at 
193); see also 1 Tribe, s 5-5, at 831 n.27 (noting that if a gun was 
manufactured in one state and happened to be purchased by the 
ultimate buyer in that same state, the purchase can "affect" inter-
state commerce, even though it was intrastate in this one instance, 


It may be argued that congressional hearings alone are not  sufficient
to demonstrate that a statute is directed at regulat- ing interstate
commerce, but the Supreme Court's precedent  dictates otherwise. In
Lopez, the Supreme Court stated that  it would consider legislative
findings and even congressional  committee findings to determine if
there was a rational basis  for congressional action; the Court in
truth did not say  whether it would consider congressional hearings.
See 514  U.S. at 562. However, there are instances where even  though
Congress has not made findings about any substantial  effect on
interstate commerce, the Supreme Court has upheld  legislation under
the Commerce Clause solely on the basis of  congressional hearings.
See Heart of Atlanta Motel, Inc. v.  United States, 379 U.S. 241,
252-53 (1964); Katzenbach v.  McClung, 379 U.S. 294, 299-300 (1964).


Both Heart of Atlanta Motel and McClung involved Com- merce Clause
challenges to the public accommodations provi- sions of the Civil
Rights Act of 1964, which contained no  congressional findings. The
Court in both cases held, as it  did in Lopez, that Congress was not
required to make formal  findings in order to legislate under the
Commerce Clause.  See Heart of Atlanta Motel, 379 U.S. at 252;
McClung, 379  U.S. at 299, 304; see also Lopez, 514 U.S. at 562
(noting that  Congress is normally not required to make formal
findings as  to the substantial effects that an activity has on
interstate  commerce). In fact, the Lopez Court cited McClung with 
approval for this exact proposition. See 514 U.S. at 563. As  with the
public accommodations provisions of the Civil Rights  Act of 1964, the
"record" of the Violent Crime Control and  Law Enforcement Act's
"passage through each house is re- plete with evidence" of the effect
of the prohibited activities  on interstate commerce. Heart of
Atlanta, 379 U.S. at 252;  McClung, 379 U.S. at 299. Therefore, we
find that in light of  the extensive testimony regarding the
interstate flow of sem- iautomatic assault weapons across state lines,
that Congress  had a rational basis for regulating the manufacture,




__________

n in the same way that the farmer's consumption of his home-grown 
wheat did in Wickard).


and possession of semiautomatic assault weapons as an exer- cise of the
commerce power that substantially affects inter- state commerce.


Our conclusion that the Act regulates activity which has a  substantial
effect on interstate commerce is supported not  only by testimony
before the Congress that enacted it but  also by the congressional
findings accompanying federal fire- arms legislation enacted prior to
the Act at issue. In 1938,  Congress enacted the Federal Firearms Act,
which regulated  the manufacture and transfer of firearms in
interstate com- merce, and defined it as "[a]n Act to regulate
commerce in  firearms." See Pub. L. No. 785, 52 Stat. 1250, 1250. In
1968,  Congress passed the Omnibus Crime Control and Safe  Streets Act
of 1968 ("OCCSSA") and the chapter regulating  firearms was titled
"State Firearms Control Assistance."  Pub. L. No. 90-351, 82 Stat.
197, 225. The OCCSSA con- tained congressional findings that: "there
is a widespread  traffic in firearms moving in or otherwise affecting
interstate  commerce, and ... the existing Federal controls over such 
traffic do not adequately enable the states to control this  traffic
within their own borders through the exercise of their  police power."
82 Stat. at 225. Congress further found that  "the ease with which any
person can acquire firearms, ... is  a significant factor in the
prevalence of lawlessness and  violent crime in the United States."




__________

n 8 Appellants claim that the Gun Control Act of 1968 superseded  and
impliedly repeals these findings from the OCCSSA because the  findings
were not contained in the later Act. However, the House  Report
accompanying the Gun Control Act states that the Act  "builds
substantially on the regulatory framework contained in title  IV of
the Omnibus Crime Control and Safe Streets Act of 1968" and  makes
three major additions. See H.R. Rep. No. 90-1577, at 7  (1968),
reprinted in 1968 U.S.C.C.A.N. 4410, 4413. Since the Gun  Control Act
was merely extending the OCCSSA, the congressional  findings were
omitted as unnecessary. See id. at 5. The report  does not make any
reference to the Gun Control Act repealing or  superseding any part of


It is a well-established principle of statutory interpretation that 
implied repeals should be avoided. See, e.g., Randall v. Loftsgaar-
den, 478 U.S. 647, 661 (1986) ("repeals by implication are not 


findings express the widely accepted knowledge that there is  a vast
interstate market in firearms that makes the states  unable to control
the flow of firearms across their borders or  to prevent the crime
inevitably attendant to the possession of  such weapons once inside
their borders.


The congressional findings which accompanied the Gun  Control Act of
1968 were even more explicit: "the principal  purpose of [the Act] ...
is to strengthen Federal controls  over interstate and foreign
commerce in firearms and to  assist the States effectively to regulate
firearms traffic within  their borders." H.R. Rep. No. 90-1577, at 6
(1968), reprinted  in 1968 U.S.C.C.A.N. 4410, 4411. These
congressional find- ings further attest to Congress' concern over a
significant  interstate commerce in firearms, and the need to regulate
 possession of firearms to control the unwanted flow of fire- arms


The district court here found that s 922(v) is sufficiently  similar to
the subject matter of prior federal firearms legisla- tion to permit
the use of earlier findings to demonstrate that  the activities
regulated by the current Act substantially affect  interstate
commerce. See Memorandum Order and Opinion,  J.A. at 69. Appellants
argue that under Lopez, the prohibito- ry provisions of the Act cannot
be supported by legislative  findings in previous firearms
legislation. In Lopez, the Court  refused to import Congressional




__________

n favored"). Courts have "seldom, if ever, held that a federal statute 
is impliedly repealed," and will only find such a repeal when two 
statutes are in "irreconcilable conflict." See Matsushita Elec. In-
dus. Co. v. Epstein, 516 U.S. 367, 381 (1996). Furthermore, this 
court has noted that the reason for the rule is that Congress is 
normally expected to be aware of its previous enactments and to 
provide clear statement of repeal if it intends to do so. See  Samuels
v. District of Columbia, 770 F.2d 184, 194 n.7 (citing TVA  v. Hill,
437 U.S. 153, 189-93 (1978)). This rationale is particularly 
applicable here, where the two laws at issue were passed four  months
apart and the legislative history of the second Act specifical- ly
discusses the first Act. See H.R. Rep. No. 90-1577, at 6-7. The 
legislative report shows that not only was Congress aware of the 
Omnibus Act, it also did not intend to repeal the Omnibus Act's 


arms legislation in order to find an interstate nexus for the  Gun Free
School Zones Act ("GFSZA"). See Lopez, 514 U.S.  at 563. The Court
said that importing findings from previous  law was "especially
inappropriate" since previous enactments  and findings did not address
the subject matter of the ban in  dispute, i.e., a ban on guns in a
school zone and its relation- ship to interstate commerce. Rather, the
Court concluded,  the GFSZA " 'plows thoroughly new ground and
represents a  sharp break with the long-standing pattern of federal
fire- arms legislation.' " Id. (quoting United States v. Lopez, 2 
F.3d 1342, 1366 (5th Cir. 1993)); see also Lopez, 2 F.3d at  1366-67
(noting that the GFSZA is a regulation of schools).


True, the Supreme Court's opinion in Lopez does not speak  with
sharpness or clarity in laying down a test for determin- ing if a
statute represents a break with a long-standing  pattern of prior
legislation. See 514 U.S. at 559. However,  the Supreme Court's
decision in Maryland v. Wirtz, 392 U.S.  183 (1968), overruled on
other grounds by National League of  Cities v. Usery, 426 U.S. 833
(1976), overruled by Garcia v.  San Antonio Metropolitan Transit
Authority, 469 U.S. 528  (1985), is more instructive on this issue. In
Wirtz, the Court  considered a Commerce Clause challenge to the 1961
amend- ments to the Fair Labor Standards Act, which had itself been 
upheld as a valid exercise of the Commerce power in United  States v.
Darby. See id. at 188 (citing Darby, 312 U.S. 100  (1941)). The
provision at issue in Wirtz extended the scope of  employees covered
by the Act from employees "engaged in  commerce or in the production
of goods for commerce" which  was upheld in Darby, to every employee
"employed in an  enterprise engaged in commerce or in the production
of goods  for commerce" even if the particular employee did not work 
in the enterprise's commercial activity. Id. at 188. The  Wirtz Court
concluded that the constitutionality of the ex- tended protection was
settled by the Court's reasoning in  Darby. See id. The Court reasoned
that it was irrelevant  whether the legislative history of the
amendments contained  a new finding that the extension affected
commerce because  "the original Act stated Congress' findings and


1938. Subsequent extensions of coverage were presumably  based on
similar findings and purposes with respect to the  areas newly
covered." Id. at 190 n.13. Therefore, even  though the amendments at
issue in Wirtz in some sense  "broke new ground," the prior findings
were nonetheless held  sufficient to support the constitutionality of
the new amend- ments under the Commerce Clause.


The extension of federal regulation over "semiautomatic  assault
weapons" to all manufacture, transfer and possession  is in our view,
quite similar to the extension of the scope of  employees covered by
the FLSA in Wirtz. In Wirtz, the  subject matter of both the original
act and the amendments  was employees of manufacturers engaged in
interstate com- merce. See 392 U.S. at 187. The congressional findings
in  the original FLSA that sub-par labor conditions in manufac- ture
carried on in one state could cause interstate commerce  to be used to
spread poor labor conditions among workers in  other states, burden
the flow of commerce, and constitute an  unfair method of competition
in interstate commerce served  to adequately explain the connection
between the labor condi- tions of the newly-protected employees and
interstate com- merce. See id. at 190. In this case, the subject
matter of  both the prior firearms legislation and the present Act is 
control over the distribution of firearms in a national market.  See
Scarborough v. United States, 431 U.S. 563, 564 (1977);  Huddleston v.
United States, 415 U.S. 814, 824 (1974) (hold- ing that the purpose of
the OCCSSA and Gun Control Act  was to control the "widespread traffic
in firearms"). In  addition, Congress originally found a connection
between the  widespread traffic in firearms in interstate commerce,
and the  purpose of the present Act, i.e., to help states adequately 
control that traffic across their own borders. See 82 Stat. at  225-26
(1968). This Act merely extends federal control over  the distribution
of a certain type of firearm to all manufac- ture, transfer and
possession. To the extent that the connec- tion to interstate commerce
is not clear from the congression- al hearings for the present Act,
the congressional findings in  prior federal firearms regulation more
than adequately dem- onstrate that connection.


The statute at issue in Lopez is clearly distinguishable  because it
dealt not with federal control over the distribution  of firearms, but
with federal protection of a discrete geo- graphical zone around a
school. The congressional findings  behind earlier federal firearms
regulation that we have allud- ed to did not address the subject of
gun possession around a  school, rather they addressed the widespread
flow of weapons  across state lines and the inability of state law
enforcement to  regulate it. Nor did these findings explain how
possession in  a school zone has any connection to interstate traffic
in  firearms or the flow of firearms across state lines. Finally,  the
statute in Lopez was not supported by any extensive  congressional
testimony addressing problems discussed in  congressional findings
behind earlier firearms legislation. As  a result, the ban on school
zone firearm possession, entirely  intrastate, could not be justified
as necessary to effectuate a  larger scheme to control interstate


The use of congressional findings from prior federal fire- arms
legislation to demonstrate the connection between the  Act and
interstate commerce is supported by the decisions of  other circuits
upholding the Firearms Owner Protection Act  of 1986 ("FOPA"). Courts
of appeals have unanimously  upheld the FOPA, which makes it unlawful
to "transfer or  possess a machine gun."9 18 U.S.C. s 922(o) (1994).
The  FOPA is not supported by any legislative findings. See  United
States v. Franklyn, 157 F.3d 90, 95 (2d Cir. 1998);  United States v.
Rybar, 103 F.3d 273, 279 (3d Cir. 1996).  Nonetheless, other circuits
have held that the subject matter  of FOPA is sufficiently similar to
previous firearms legislation  to render appropriate the importation
of prior legislative  findings as a reliable statement of Congress'
intent in passing  FOPA. See, e.g., Franklyn, 150 F.3d at 95; Rybar,
103 F.3d  at 279; Kenney, 91 F.3d at 890; Wilks, 58 F.3d at 1521; see 
also Knutson, 113 F.3d at 30-31; Beuckelaere, 91 F.3d at 




__________

n 9 The Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth and 
Eleventh Circuits have all upheld the FOPA against post-Lopez 
Commerce Clause challenges. In each case, the court upheld the 
defendant's conviction for possession of a machine gun. In addition, 
the First Circuit has upheld a similar statute banning possession of 
firearms by juveniles. See supra, note 3.


784-85 (not specifically making a finding of similar subject  matter
but nonetheless relying on congressional findings in  prior acts).
These cases have distinguished FOPA from the  Gun Free School Zone Act
in Lopez on the ground that the  former does not represent a "sharp
break" with the long- standing pattern of federal firearms
legislation, but rather a  continuation of the design of earlier
statutes to regulate the  interstate flow of firearms. See Rybar, 103
F.3d at 279;  Wilks 58 F.3d at 1521 n.4. That is certainly true of
this Act  as well, which prohibits a particularly dangerous class of 
weapons from interstate commerce.


B. The Constitutional Attack Under the Bill of Attainder  Clause


Appellants' argument that s 921(a)(30)(viii) and (ix) when  combined
with s 922(v)(1) is an unconstitutional Bill of At- tainder is largely
disposed of by this court's recent decisions  involving the BellSouth
Corporation's challenges to provisions  of the Telecommunications Act
of 1996. See BellSouth Corp.  v. FCC, 162 F.3d 678 (D.C. Cir. 1998)
("BellSouth II");  BellSouth Corp. v. FCC, 144 F.3d 58 (D.C. Cir.
1998) ("Bell- South I"). BellSouth II defined the framework for modern
 bill of attainder analysis. Under the current interpretation of  the
Bill of Attainder Clause, a law is constitutionally imper- missible if
it both specifically singles out individuals (or  businesses) and
imposes punishment on them. See BellSouth  II, 162 F.3d at 683 (citing
United States v. Lovett, 328 U.S.  303, 315 (1946)); see also Nixon v.
Administrator of Gen.  Serv., 433 U.S. 425, 471-72 (1977) ("the Act's
specificity, the  fact that it refers to appellant by name does not
automatically  offend the Bill of Attainder Clause"). Once it is
determined  that a law identifies its subject with specificity, the
next  question is whether the statute inflicts punishment as defined 
by Nixon. See BellSouth II, 162 F.3d at 684. Under Nixon,  whether a
statute inflicts a "punishment" under the Bill of  Attainder Clause


(1) whether the challenged statute falls within the  historical meaning
of legislative punishment; (2) whether  the statute, viewed in terms
of the type and severity of 


the burdens imposed, reasonably can be said to further  non-punitive
legislative purposes; and (3) whether the  legislative record evinces
a congressional intent to pun- ish.


See BellSouth II, 162 F.3d at 684 (quoting Nixon, 433 U.S. at  473,
475-76, 478).


We need not address the issue of whether the Act applies  with
specificity,10 because the Act does not impose punish- ment on
Intratec and Penn Arms as contemplated by the Bill  of Attainder
Clause in Article I, Section 9 of the Constitution.


The historical meaning of legislative punishment includes a  death
sentence, imprisonment, banishment, confiscation of  property and
legislative bars to participation by individuals or  groups in
specific employments or professions. See Nixon,  433 U.S. at 473-74;
Selective Serv. Sys. v. Minnesota Pub.  Interest Research Group, 468
U.S. 841, 852 (1984). The Act  at issue in this case does not condemn
appellants to death or  imprisonment, but rather specifies certain
conduct from  which appellants must refrain in order to avoid
punishment.  Appellants argue that the Act operates as a legislative
bar to  their participation in specific employments or professions. 
Appellants claim that the Act prohibits them from the em- ployment or
profession of manufacturing "semiautomatic as- sault weapons."


Those cases in which the Supreme Court has struck down  statutes which
bar specific parties from employment as im- posing punishment,
however, are different than the present  case because all involved
situations in which the ban was used  as a "mode of punishment ...
against those legislatively  branded as disloyal." Nixon, 433 U.S. at
474; see United  States v. Brown, 381 U.S. 437 (1965) (statute




__________

n 10 Indeed, the fact that ss 921(a)(30)(A)(viii) and (ix) name not 
only the guns produced by appellants but also any copies or 
duplicates of those firearms, raises a question of whether or not the 
Act specifically applies to appellants. Moreover, the fact that the 
definition of "semiautomatic assault weapons" includes fourteen  other
firearms by name as well as three broad categories of pistols,  rifles
and shotguns is evidence that Congress was not singling out 
appellants, but rather aiming to prohibit an entire class of


member of the Communist Party from holding office in a  labor union);
United States v. Lovett, 328 U.S. 303 (1946)  (statute cutting off
salary of three named employees based on  their membership in the
Communist Party); Ex Parte Gar- land, 71 U.S. 333 (1866) (statute
requiring attorneys to take  oath that they had not aided the
Confederacy before being  allowed to practice in federal court);
Cummings v. Missouri,  71 U.S. 277 (1866) (state constitution
provision barring those  who had aided or sympathized with the
Confederacy from  teaching, holding office, or serving as a trustee
for a religious  organization). This court in BellSouth I focused on
the  Supreme Court's opinion in Brown which distinguished a  statute
making it a crime for a member of the Communist  Party to hold a
position as an officer in a labor union from  section 32 of the
Banking Act which prevented members of  securities underwriting firms
from working for banks that  belong to the Federal Reserve System. See
BellSouth I, 144  F.3d at 65 (citing Brown, 381 F.3d at 453-55). The
court in  Brown distinguished the two statutes on the ground that 
while the former statute " 'inflicted its deprivation upon the 
members of a group thought to present a threat to the  national
security' " the latter " 'incorporate[d] no judgment  censuring or
condemning any man or group of men.' " See  BellSouth I, 144 F.3d at
65 (quoting Brown, 381 U.S. at 453- 54); see also BellSouth II, 162
F.3d at 686 (noting that a law  falls within the historical punishment
of a bar to employment  only where there are concerns that the
restrictions it imposes  violate fundamental guarantees of political
and religious free- dom). In this case, the ban on semiautomatic
assault weap- ons raises no concern that Congress is singling out
appellants  for punishment because they are disloyal or disfavored.
Con- gress has rather singled out certain weapons as dangerous  and
disproportionately linked to crime. Therefore, the Act's  prohibition
of the specific weapons manufactured by appel- lants does not fall


Even if a statute does not fall within the historical defini- tion of a
punishment, this court must apply the second prong  of Nixon, which
requires that a nonpunitive legislative pur- pose is served by the
legislation. See BellSouth I, 144 F.3d 


at 65. The purpose of this requirement is to "prevent  Congress from
circumventing the clause by cooking up new- fangled ways to punish
disfavored individuals or groups." Id.  This approach recognizes that
merely because a regulation is  burdensome does not mean that it
constitutes punishment.  For example, the Supreme Court has upheld a
statute prohib- iting convicted felons from serving as officers of a
waterfront  union. See DeVeau v. Braisted, 363 U.S. 144 (1960). The 
Court reasoned that even though the statute placed a burden  on
convicted felons, it did not seek to punish them but rather  to devise
an effective scheme to regulate waterfront criminal  activity. Since
the goal of the legislative scheme was to  improve the integrity of
waterfront commerce, exclusion of  individuals previously convicted of
a felony was a legitimate  means to that end. See id. at 160.
Similarly, although the  Act in this case does place a particular
burden on appellants,  the legislative history of the Act shows that
the intent of the  Act was not to inflict punishment on appellants,
but rather to  reduce the availability of semiautomatic assault
weapons,  prevent the flow of such weapons into states with laws 
prohibiting them, and reduce the violent crime disproportion- ately
associated with these types of guns. See H.R. Rep. No.  103-489, at
1-2 (1994). In addition, Congress' inclusion of  copies and duplicates
of the guns made by appellants, four- teen other guns by name and
three broad categories of  pistols, rifles and shotguns in the
definition of "semiautomatic  assault weapon" indicates that it was
aiming not to punish  appellants, but rather to regulate an entire
class of weapons.  See 18 U.S.C. s 922(a)(30). The text and
legislative history  of the Act therefore demonstrate that the Act


The final prong of the Nixon test is whether the legislative  record
indicates a legislative intent to punish. The case law  instructs that
under this prong, appellants must show " 'un- mistakable evidence of
punitive intent.' " See BellSouth I,  144 F.3d at 67 (quoting
Selective Serv. Sys., 468 U.S. at 856  n.15. Moreover, isolated
statements are not sufficient to  show a punitive intent. See
Selective Serv. Sys., 468 U.S. at  856 n.15; see also BellSouth I, 144


" 'smoking gun' evidence of congressional vindictiveness" to  justify
finding punitive intent). Appellants note that in a  footnote the
House Report summarizing the Act lists all of  the semiautomatic
weapons that are specifically listed in the  statute. See H.R. Rep.
No. 103-489, at 20 n.35. Further- more, appellants point out that they
are repeatedly named in  the floor debates as the manufacturers of
banned weapons.  These allegations fall well short of the type of
evidence  required to show a legislative intent to punish. In
BellSouth  I, this court held that even a few scattered remarks
referring  to anti-competitive abuses committed by baby-Bells in the 
past were insufficient to show the necessary legislative intent  to
punish. See 144 F.3d at 67. The statements appellants  complain of do
not rise to the statements in BellSouth I. In  BellSouth I, the
statement singled out specific bad acts by the  party, indicating the
possibility that the speaker had found  fault with the baby-Bell.
Here, the mere mention of appel- lants' guns in the House Report and
their names in the floor  debates do not so much suggest an intent to
punish as  represent mere recitals of the content of the Act itself.
This  is far from the unmistakable evidence of punitive intent 
required by the Supreme Court in Selective Serv. Sys. See  468 U.S. at


Therefore, since the prohibition effectuated by the Act  neither falls
within the historical meaning of punishment, nor  exhibits a purely
punitive purpose, nor manifests a congres- sional intent to punish
appellants, it does not constitute an  unconstitutional Bill of
Attainder.11




__________

n 11 Finally, appellants argue that the BellSouth cases and the  Nixon
test should be inapposite here because the statute at issue  imposes a
criminal penalty whereas the statutes in BellSouth,  Nixon and
previous Bill of Attainder cases did not. See Appellants'  Reply Br.,
at 19-20. However, appellants are unable to point to  any authority
nor give a rational justification for this distinction.  Rather,
appellants argue that since the Act imposes a criminal  penalty, it
automatically satisfies the punishment requirement of a  bill of
attainder. Yet nowhere in Nixon or the cases subsequent to 


III. Conclusion


We hold that section 110102 of the Violent Crime Control  and Law
Enforcement Act of 1994 is within Congress' Com- merce Clause power
and does not constitute an unconstitu- tional Bill of Attainder. The
district court's decision granting  the government's motion for
summary judgment is therefore


Affirmed.




__________

n it is there indication that the Nixon test doesn't apply to a statute
 that imposes criminal penalties. Furthermore, appellants' argu- ment
is disproved by United States v. Brown, 381 U.S. 437 (1965),  which
also involved a statute imposing a criminal penalty. See id.  at 438.
In Brown, the Court applied the same factors as Nixon  when it
inquired into the question of punishment by first consider- ing the
historical gloss on the meaning of punishment, and next  determining
whether the purpose of the Act was punitive or non- punitive. See id.
at 458-59. The Court's analysis in Brown demon- strates that the
factors used in the Nixon test for punishment  under the Bill of
Attainder Clause apply with equal force to both  civil and criminal
statutes. Indeed, the mere fact that Nixon cites  Brown as determining
whether punitive or nonpunitive objectives  underlie a law is strong
evidence that the Nixon Court did not  believe that a different test
applied to a statute which imposed a  criminal penalty, as was the
case in Brown. See 433 U.S. at 475-76  n.40.