              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT


                             No. 96-10768


UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,


                                versus


STEVEN SCOTT KNUTSON,

                                              Defendant-Appellant.




          Appeal from the United States District Court
               For the Northern District of Texas


                         (          , 1997)


Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:

     In this appeal we must revisit the question whether Congress’s

enactment of 18 U.S.C. § 922(o), criminalizing the transfer or

possession of a machinegun that was not already lawfully possessed

before May 19, 1986, exceeds the limit of its power under the

Commerce Clause.1   Every other circuit that has considered this

issue has upheld § 922(o) as a rational exercise of that power,



      1
         This issue was the subject of our rehearing en banc in
United States v. Kirk, 70 F.3d 791, (5th Cir. 1995), vacated, 78
F.3d 169, aff’d en banc by an equally divided court, 105 F.3d 997
(5th Cir. 1997).
albeit for differing reasons.2        Today, we join those circuits in

affirming the constitutionality of § 922(o).

                                  I
                        FACTS AND PROCEEDINGS

     Appellant Steven Scott Knutson was arrested on July 28, 1995,

and charged with possessing a loaded .45 caliber Spitfire assault

rifle, serial number 3023, a firearm that is classified as a

machinegun for purposes of 26 U.S.C. § 5845(b).3               Knutson did not

possess the machinegun under the authority of the United States

government or of any state governmental department, agency, or

political    subdivision;   neither       did   he   possess   the   machinegun

lawfully prior to the effective date of § 922(o), May 19, 1986.

     Knutson was indicted on one count of unlawful possession of a

machinegun in violation of § 922(o).4            Before entering his guilty

         2
            See United States v. Rybar, 103 F.3d 273 (3d Cir.
1996)(upholding § 922(o) under the third of three possible
categories of activity that Congress may regulate under the
Commerce Clause, as a regulation of activities having a substantial
effect on interstate commerce); United States v. Kenney, 91 F.3d
884 (7th Cir. 1996)(upholding § 922(o) under the third category, as
a regulation of activities having a substantial effect on
interstate commerce); United States v. Beuckelaere, 91 F.3d 781
(6th Cir. 1996)(upholding § 922(o) under all three Lopez
categories);   United   States   v.  Rambo,   74   F.3d   948  (9th
Cir.)(upholding § 922(o) under the first category, as a regulation
of channels of interstate commerce), cert. denied, 117 S.Ct. 72,
136 L.Ed.2d 32 (1996); United States v. Wilks, 58 F.3d 1518 (10th
Cir. 1995)(upholding § 922(o) under the second category, as a
regulation of a thing in interstate commerce).
     3
        A “machinegun” is defined in 26 U.S.C. § 5845(b) as “any
weapon which shoots, is designed to shoot, or can be readily
restored to shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger.” See 18 U.S.C.
§ 921(a)(23).
     4
        Congress passed § 922(o) as part of the Firearms Owners’
Protection Act of 1986, Pub. L. No. 99-308, 100 Stat. 449 (1986),

                                      2
plea, Knutson filed a motion to dismiss the indictment, arguing

that § 922(o) is unconstitutional in light of the Supreme Court’s

decision in United States v. Lopez.5                     After the district court

denied the motion, Knutson entered a conditional guilty plea,

reserving the right to appeal the district court’s ruling.                        This

appeal followed.

     Both    Knutson       and   the     government      filed   summary     appellate

briefs, anticipating that the outcome of our en banc consideration

of this issue in United States v. Kirk would be dispositive for

purposes of the instant appeal.                    Instead, Kirk resulted in an

affirmance      by    an   equally       divided    en   banc    court   and   has   no

precedential         value,6   so   we    must     consider     anew   the   issue   of

§ 922(o)’s constitutionality.

                                            II
                                         ANALYSIS

A.   STANDARD   OF    REVIEW

     In Lopez, the Supreme Court affirmed our conclusion that the



which amended the Gun Control Act of 1968, 18 U.S.C. §§ 921-28.
Section 922(o) provides, in relevant part:
     (o)(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--
                           * * * * * *
     (B)   any lawful transfer or lawful possession of a
     machinegun that was lawfully possessed before the date
     this subsection takes effect.
     5
         514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).
     6
        See Neil v. Biggers, 409 U.S. 188, 192, 93 S.Ct. 375, 34
L.Ed.2d 401 (1972); Henderson v. Fort Worth Indep. Sch. Dist., 584
F.2d 115, 116 (5th Cir. 1978)(en banc), cert. denied, 441 U.S. 906,
99 S.Ct. 1996, 60 L.Ed.2d 375 (1979).

                                            3
Gun Free School Zones Act of 1990, 18 U.S.C. § 922(q),7 was

unconstitutional because it regulated conduct falling outside the

scope of the Commerce Clause.                In doing so, the Court identified an

outer limit to congressional authority under the Commerce Clause;

nevertheless, the Court did not purport to eliminate or erode well-

established Commerce Clause precedents.8                  In particular, the Court

made clear that federal Commerce Clause legislation continues to

merit           a   high   degree   of    judicial    deference,   and   that   courts

considering the constitutionality of such legislation should apply

only “rational basis” review.9                     Accordingly, we must limit our

inquiry to a determination whether Congress could have had a

rational basis to conclude that its enactment of § 922(o) was a

valid exercise of its commerce power.

     As the result in Lopez demonstrates, however, deference is not

acquiescence; this court has the obligation to review the facts and

circumstances of each case and determine the constitutionality of

each statute brought before us for review.                  The question for us to

decide today is whether Congress could rationally conclude that

§   922(o)            effectively        regulates    interstate    trafficking     in


        7
        18 U.S.C. § 922(q). Section 922(q) made it unlawful “for
any individual knowingly to possess a firearm at a place that the
individual knows, or has reasonable cause to believe, is a school
zone.”
            8
         See Lopez, 115 S.Ct. at 1634 (“Admittedly, some of our
prior cases have taken long steps down that road, giving great
deference to congressional action. The broad language in these
opinions has suggested the possibility of additional expansion, but
we decline here to proceed any further.”).
     9
                Id. at 1629.

                                               4
machineguns    or   otherwise       regulates      conduct   that     substantially

affects interstate commerce.

B.   BACKGROUND:    THE   LOPEZ DECISION

     The Lopez Court described three categories of activity that

Congress may regulate under the Commerce Clause:                    (1) the use of

the channels of interstate commerce; (2) “the instrumentalities of

interstate commerce, even though the threat may come only from

intrastate     activities”;        and     (3)     activities    which    have    “a

substantial    relation       to   interstate       commerce    ...    i.e.,   those

activities that substantially affect interstate commerce.”10

     As the first two categories did not apply to § 922(q), the

Lopez Court analyzed that statute under the third category to

determine whether “a rational basis existed for concluding that

[the]     regulated       activity       sufficiently      affected      interstate

commerce.”11    The Court ultimately concluded that § 922(q) failed

to satisfy the third category.                   First, the Court noted that

“possession of a gun in a local school zone is in no sense an

economic    activity       that    might,       through   repetition     elsewhere,

substantially affect any sort of interstate commerce.”12                  Moreover,

Congress failed to include congressional findings that might have

enabled the Court “to evaluate the legislative judgment that the

activity in question substantially affected interstate commerce.”13

     10
           Id. at 1629-30.
     11
           Id. at 1629.
     12
           Id. at 1634.
     13
           Id. at 1632.

                                            5
Thus, absent congressional findings to demonstrate a rational basis

when none was “visible to the naked eye,”14 the Court held that the

statute was unconstitutional.

C.    SECTION 922(O)

      In contrast to § 922(q), much of the conduct covered by

§ 922(o) fits comfortably within Constitutional bounds under either

of   the        first   two   Lopez   categories,    as   the   vast   majority   of

machinegun         possessions        constitute    the   culminating     step    in

interstate commercial transactions.15 ”As such, § 922(o) represents

Congressional regulation of an item bound up with interstate

attributes and thus differs in substantial respect from legislation

concerning possession of a firearm within a purely local school

zone.”16

      We are not unmindful that the statute is worded in terms broad

enough to support a conviction -- at least theoretically, if not

practically -- in rare yet conceivable instances of purely non-

      14
            Id. at 1632.
           15
           The interstate flow of machineguns “not only has a
substantial effect on interstate commerce; it is interstate
commerce.” United States v. Hunter, 843 F.Supp. 235, 249 (E.D.
Mich. 1994). Moreover, as § 922(o) prohibits the possession or
transfer only of machineguns not lawfully possessed prior to May
19, 1996,    it is clear that Congress’s intent was focused on
prohibiting the introduction into the stream of interstate commerce
machineguns manufactured, imported, or otherwise illegally
obtained, after the effective date of the Act. See Wilks, 58 F.3d
at 1522(quoting United States v. Hunter, 843 F.Supp. 235, 249 (E.D.
Mich. 1994))(“Although not explicitly stated in the language of the
statute itself, it is evident that Congress prohibited the transfer
and possession of most post-1986 machineguns not merely to ban
these firearms, but rather, to control their interstate movement by
proscribing transfer or possession.”).
      16
            Wilks, 58 F.3d at 1521.

                                            6
commercial intrastate possession.                In fact, those who believe

§ 920(o) is unconstitutional focus their attention exclusively on

such instances of “mere” possession.                  Even crediting that some

machineguns may be “homemade” and are therefore not the object of

a commercial transaction, it would be myopic to view possession in

a vacuum.17    Rather than wallow in that debate, however, we choose

the path of least resistance and go directly to the third Lopez

category to determine whether all transfers and possessions of

machineguns,     including         those       that    might   conceivably   be

characterized as exclusively intrastate or noncommercial, could

substantially affect interstate commerce.                We conclude that they

could indeed.

D.   SUBSTANTIAL EFFECT   ON   INTERSTATE COMMERCE

     It is obvious “to the naked eye” that the transfer and

possession of machineguns has a substantial effect on interstate

commerce.     For example, in Rybar, the Third Circuit held that

§ 922(o) “can be sustained because it targets the possession of

machine guns as a demand-side measure to lessen the stimulus that

prospective acquisition would have on the commerce in machine




      17
         See, e.g., Kirk, 70 F.3d at 796 (“In this context, the
limited ban on possession of machineguns must be seen as a
necessary and proper measure meant to allow law enforcement to
detect illegal transfers where the banned commodity has come to
rest: in the receiver’s possession. In effect, the ban on such
possession is an attempt to control the interstate market for
machineguns by creating criminal liability for those who would
constitute the demand-side of the market, i.e., those who would
facilitate illegal transfer out of the desire to acquire mere
possession.”).

                                           7
guns.”18    In Kenney, the Seventh Circuit held that “there is a

rational basis     to   regulate   the   local    conduct    of    machine   gun

possession, including possession resulting from home manufacture,

to effectuate § 922(o)’s purpose of freezing the number of legally

possessed machine guns at 1986 levels, an effect that is closely

entwined with interstate commerce.”19 Finally, Judge Higginbotham’s

en banc opinion in Kirk, explaining why he would uphold the

constitutionality of § 922(o), presented a forceful collection of

evidence to “support a legislative judgment that the possession of

machine guns interferes with federal drug enforcement.”20

      We need not delve into theoretical considerations, however, as

we   discern   convincing     evidence   of   a    substantial      effect    on

interstate commerce in the extensive legislative histories that

accompanied each prior incarnation of what has been a durable line

of   federal   machinegun     regulations.        We   cannot     ignore   those

congressional findings:        Even though they were not explicitly

reiterated in support of § 922(o), they clearly subsist in the

cumulative memory of Congress. The Lopez Court refused to consider

§ 922(q) in light of the legislative history from earlier firearms

legislation, for, in contrast to the statute presently under

review, § 922(q) “represent[ed] a sharp break with the longstanding

pattern of federal firearms legislation.”21            Section 922(o), on the

      18
           103 F.3d at 283.
      19
           91 F.3d at 889.
      20
           Kirk, 105 F.3d at 1000.
      21
           Lopez, 115 S.Ct. at 1632.

                                     8
other     hand,   is   but   the   latest    manifestation    of   the   federal

government’s longstanding record of regulating machineguns.                   The

Seventh Circuit offered a succinct review of that tradition in its

opinion in Kenney:

     Congress has closely regulated machine guns pursuant to
     its taxation power since the National Firearms Act of
     1934, which subjected machine guns, unlike ordinary
     firearms, to federal registration and a transfer tax.
     Hardy, 17 Cumb. L. Rev. at 593. The Act was the first
     major federal attempt at firearms regulation, and it
     expressly targeted machine guns, a modern weapon whose
     unusual destructive power was of great appeal to
     interstate organized crime.     Id.   In considering the
     bills that became the Gun Control Act of 1968, Congress
     found that federal control over firearms licensing for
     dealers, even for intrastate activity, was necessary to
     address the serious problems associated with interstate
     trafficking in firearms generally. S.Rep. No. 1097, 90th
     Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2112,
     2114, 2168. In light of these findings and enactments,
     the 1986 addition of § 922(o) was not novel but
     incremental, merely preventing further growth in the
     number of machine guns in private hands as an exercise of
     the historic federal interest in the regulation of
     machine guns.     As such, and quite unlike § 922(q),
     deference   to   Congress’s   accumulated   institutional
     expertise is appropriate.22

     Congress did not alter or repudiate any of its prior findings

when it enacted § 922(o) under the Firearm Owner’s Protection Act

(FOPA).     In fact, Congress specifically noted that one of the aims

of the FOPA was “to strengthen the Gun Control Act of 1968 to

enhance the ability of law enforcement to fight violent crime and

narcotics trafficking.”23          Thus, when we read § 922(o) in pari

materiae    with   its   legislative        pedigree,   we   see   clearly   that


     22
           Kenney, 91 F.3d at 890-91.
    23
        H.R.Rep. No. 495, 99th Cong., 2d Sess. 1 (1986), reprinted
in 1986 U.S.C.C.A.N. 1327, 1327.

                                        9
Congress views “the availability of machineguns, violent crime, and

narcotics trafficking”24 as parts of one larger problem.         Even if

we were to disagree with that assessment, we cannot say that

Congress could not have had a rational basis for its conclusion.

                                  III
                              CONCLUSION

     We hold that Congress could have had a rational basis for

concluding that § 922(o) regulates conduct that has a substantial

effect   on   interstate   commerce,   and   that   §   922(o)   is   not

unconstitutional.     Therefore, we need not consider whether the

statute would be constitutional under either of the other two Lopez

categories.      As   such,   Knutson’s    conviction   for   unlawfully

possessing a machinegun in violation of § 922(o) is

AFFIRMED.




    24
       Beuckelaere, 91 F.3d at 785 (quoting United States v. Hale,
978 F.2d 1016 (8th Cir. 1992), cert. denied, 507 U.S. 997, 113
S.Ct. 1614, 123 L.Ed.2d 174 (1993)).

                                  10
