McFreedom

Professor Reynolds notes another unique American experience: not holding a grudge:

[T]he American experience of reconciliation after one of the world's bloodier and more divisive conflicts is one that perhaps ought to get more attention. It may be that, like so many things American, it is exceptional. But maybe not.

My wife's family is Jewish. There are whole sections of her family tree that never made it out of Eastern Europe during World War II and simply vanished in the Holocaust. Growing up, one of her best friends was a second-generation German whose grandfather had been a German soldier.

Literally, forty year before, this girl's grandfather had been a part of the machiniery that sucessfully executed much of my wife's grandparents' generation. In many other parts of the world, I've thought, that would be grounds for the two of them to try to kill each other. But in America, it's a historical curiosity. Something where, when you learn about it in school, the two of you say "Gee, isn't that funny," not where, when you are raised with bitterness and hatred from your earliest memory, you use it as an excuse to perpetuate violence.

Larry Solum replies to my ideas on Stewart and homegrown marijuana. He provides interesting background on Wickard I was unaware of, arguing that it would make that case inapplicable in a hypothetical medical marijuana case. I do not know the relevant law well enough to argue and certainly defer to his knowledge. Finally, he suggests:

Clearly, the rationale of Wickard, as limited by Morrison and Lopez does apply to the sale of marijuana seeds. It is not so clear that it would extend to gifts of homegrown seeds. But the main point is the power to prohibit the distribution of seeds is not the same as the power to prohibit possession and use. And because the power is not the same, the statutory provisions under which defendants could constitutionally be prosecution (or enjoined) is not the same.

Gene Hoffman suggested this to me separately, in conversation. I think this is a fascinating idea, and not just in this context. Marijuana seeds are small enough (and presumably easy enough to produce) that one could certainly conceive of a "Johnny Potseed" distributing marijuana seeds for free in states which did not outlaw their ownership. Is there some non-commerce clause justification for Federal jurisdiction in this matter? And is there any case-law on the idea that giving things away is, by definition, not commerce?

This brings to mind an intriguing future in which machine guns may be owned by ordinary citizens - if self manufactured - and in which marijuana may be grown by ordinary citizens. Since states would still be free to outlaw these activities (barring any Supreme Court decision applying the 2nd to the states via the 14th, of course), I rather suspect that there would be states in which one could grow marijuana (granted a gift of seeds from a passing stranger), and states in which one could make a machine gun, but very few states in which one could do both.

As interesting as these questions are, it really causes me to wonder about the underpinnings of a lot of technological restrictions. For example, the most notorious of these is the Digital millennium Copyright Act, which states, among other things, "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component or part thereof that...is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title." I've always read this as implying that, if I wanted to create something that cracked DVDs myself, I could, but I couldn't share it with anyone. Is this clause in the DMCA based in the Commerce Clause, or in the grant of copyright control? The law does not clearly state. However, if the above logic about giving away seeds is correct, and the DMCA anti-circumvention provisions are based in Commerce Clause authority, what is to prevent me (other than technical ability) from writing a computer program which cracks Apple's iTunes format and distributing that for free?

Obviously, I'd like the answer to be "nothing," but I suppose only time (and the courts) will tell.

Judge Kozinski recently authored a majority opinion stating that the Federal government doesn't have the power to prohibit the possession of homemade machineguns. The logic being, if you make it yourself, it doesn't effect interstate commerce in machineguns, and therefore Congress lacks the power to regulate it.

In general, I approve of judicial attempts to reign in Congressional overreach under a "Commerce Clause" guise. Most of what Congress regulates today is done under the claim that interstate commerce is so pervasive that almost anything anyone does effects interstate commerce somehow.

This case may be "huge," should it stand further review. But I do not see how this particular case can be used to justify ownership of many homemade (or homegrown) items that are currently prohibited. Larry Solum (who undoubtedly knows more about the law than I) opines:

The implications are staggering. Here is one: Homegrown marijuana would seem directly analogous to homemade machineguns. And in fact, the Ninth Circuit has a homegrown medical marijuana case pending now. Wow!

There are two big reasons I think this case is not applicable to homegrown marijuana (medical or otherwise), and they come from Judge Kozinski's decision. One of the main prior cases this case has to work around is Wickard v. Filburn (1942), in which it was held that Congress had the power to restrict private ownership of wheat, even wheat which was grown on one's own land, as part of regulating interstate trade in wheat. While I'm not familiar with the original case, this decision (Stewart) makes no challenge to Wickard, and instead goes to great lengths to explain why this case is different:

[B]y crafting his own guns and working out of his own home, Stewart functioned outside the commercial gun market. His activities obviously did not increase machinegun demand. Nor can we say that Stewart's homemade machineguns reduced overall demand. Unlike wheat, for example, which is a staple commodity that Filburn would probably have had to buy, had he not grown it himself, there is no reason to think Stewart would ever have bought a machinegun from a commercial source, had he been precluded by law from building one himself.

Given a hypothetical homegrown marijuana case (especially a medical one), I don't think a plausible argument could be made that a hypothetical defendant wouldn't have simply purchased some marijuana rather than growing it. Marijuana seems a lot more clearly analogous to the Wickard wheat case than machinegun manufacture does.

Second, this case certainly recognizes Congress' ability to regulate commerce in specific items, and to prevent the transfer of specific items. The majority opinion here states, though, that in this case, the items which were transferred (raw materials and gun parts) were legal, while the items which were illegal were not transferred:

In United States v. Rambo, 74 F.3d 948 (9th Cir. 1996), we held that section 922(o) was "a regulation of the use of the channels of interstate commerce" because "there can be 'no unlawful possession under section 922(o) without an unlawful transfer...'" Rambo thus held section 922(o) was a valid exercise of the commerce power because a transfer or sale must have preceded the criminalized possession.

Stewart's case reveals the limits of Rambo's logic. Contrary to Rambo's assumption that an unlawful transfer must precede unlawful possession, Stewart did not acquire his machineguns from someone else: He fabricated them himself....

The difficult question is where to draw the line between a regulated object and the matter from which that object was created.

I would argue that, unlike a machinegun, it is in fact easy to draw bright lines around homegrown marijuana distinguishing the legal from the illegal. Unlike a machinegun, which is made from metal which has very generic uses (or even from semi-automatic gun parts which have substantial noninfringing use), marijuana is made from seeds which do not have substantial, noninfringing use. Congress, by the logic of the new Stewart case, may prohibit the transfer of marijuana seeds on Interstate Commerce grounds. Until biotech advances such that you can make your own seeds at home, it will be reasonable to presume that some illegal transfer must be at the base of any marijuana possession.

Finally, I don't think this case is as broad-reaching as might at first be hoped. When I'd first heard of it, my thought was, "Wow! There are a lot of guns out there which are relatively easy to convert to a machinegun; I wonder if you can simply buy one of those, do the conversion, and have it be legal under federal law?" Stewart implies no:

Some components of Stewart's machineguns had crossed state lines, but these components did not add up to a gun. Not even close. Even more than in McCoy, many additional parts and tools, as well as expertise and industry, were needed to create functioning machineguns. This is quite different than if Stewart had ordered a disassembled gun and simply put the parts together, the way one might assemble a chair from IKEA. These machineguns were a unique type of firearm, with legal parts mixed and matched from various origins; they required more than a simple turn of a screwdriver or a hit of a hammer to become machineguns. We therefore cannot say that the machineguns themselves in any recognizable form traveled in interstate commerce.

What I take away from this is that purchasing an easy-to-modify rifle simply to turn it into a machinegun with the "simple turn of a screwdriver" probably still is regulatable by Congress (although there are obvious difficulties in the practical enforcement of this doctrine). It has caused me to think, however: Will laws like this cause a new rise in the American "jack of all trades?" For example, the Digital millennium Copyright Act (DMCA) outlaws the transfer of technological items which will circumvent copyright protection. But it doesn't outlaw the manufacture of ownership of them. This case does the same for machineguns. Will some people learn computer programming and metalworking who otherwise would not have, because they want the objects in question?

Found this amusing bit in Best of the Web Today. Still no anchor links, there, but the story in question is "The 'Reagans' Revolution," which is in turn quoting Terry Teachout on how CBS' cancellation of its Regan miniseries is indicitive of larger trends:

The new media [have an] impact on Big Media in two ways. The first is the megaphone effect I spoke about a moment ago. The second, which is of at least equal importance, is that they compete with Big Media. If you're reading these words, you're not watching CBS, or anybody else, nor are you sitting in a movie theater or reading a print magazine. . . .

What's so amusing about that? I was reading it on my mobile phone, sitting in a movie theater waiting for Matrix Revolutions to start...