United States v. Wright , 117 F.3d 1265 ( 1997 )

United States Court of Appeals,
Eleventh Circuit.
No. 95-8397.
UNITED STATES of America, Plaintiff-Appellee,
v.
Donald W. WRIGHT, Defendant-Appellant.
July 24, 1997.
Appeal from the United States District Court for the Northern District of Georgia. (No. 1:94-CR-
274-1-ODE), Orinda D. Evans, Judge.
Before COX, Circuit Judge, and KRAVITCH and CLARK, Senior Circuit Judges.
KRAVITCH, Senior Circuit Judge:
The Second Amendment to the United States Constitution provides: "A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms,
shall not be infringed." In this case, we must decide whether this amendment grants constitutional
protection to an individual whose possession or use of machineguns and pipe bombs is not
reasonably related to an organized state militia. We hold that it does not. We also hold that
Congress had ample authority under the Commerce Clause to prohibit the possession or transfer of
machineguns pursuant to 18 U.S.C. § 922(o). Accordingly, we AFFIRM appellant's convictions.
Because we conclude that the district court erred in applying the Sentencing Guidelines, we
VACATE appellant's sentence and REMAND for resentencing.
I. Background
In June 1994, the Bureau of Alcohol Tobacco and Firearms received information that Donald
Wright was looking for someone to reassemble a .50 caliber machinegun. Subsequently, two
undercover local law enforcement agents were introduced to Wright as individuals capable of
reassembling this gun. At this meeting, Wright produced the disassembled machinegun and told the
agents that, once it was reassembled, he planned to shoot the gun, grease it, and then bury it. Agents
arrested Wright in possession of the disassembled machinegun as he drove away from the meeting.
Upon arrest, Wright consented to a search of his residence during which agents discovered a .223
caliber Olympic Arms model Car-AR automatic assault machinegun and three pipe bombs in a shed
outside his home. Agents also found several other unregistered assault weapons, ammunition, and
assorted documents and videotapes describing threats to United States sovereignty posed by the
"New World Order."
Wright was charged with one count of possessing machineguns in violation of 18 U.S.C. §
922(o) and with one count of possessing unregistered destructive devices in violation of 26 U.S.C.
§ 5861(d). He filed a motion to dismiss the indictment on the grounds that the charging statutes
violated, among other constitutional provisions, the Commerce Clause and the Second Amendment.1
In support of his motion, Wright submitted the seized documents and videotapes to demonstrate that
his weapons possession was motivated by what he perceived to be the danger of the "New World
Order." He also offered the testimony of a firearms expert to establish that the machineguns and
pipe bombs were the type of weapons used by contemporary militias. The district court, adopting
the magistrate judge's report and recommendation, denied his motion.
Wright then pleaded guilty to both counts of the indictment pursuant to a negotiated plea
agreement in which he reserved the right to appeal the denial of his motion to dismiss the indictment
on constitutional grounds. As part of the plea bargain, the government agreed to recommend that
Wright be credited with a downward adjustment for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1. At his sentencing hearing, Wright admitted that he possessed the machineguns
and pipe bombs referred to in the indictment, and explained that he had planned to bury the weapons
for use in case of an invasion. Wright further testified that he belonged to a twenty-member
"military" group that met once a week to exchange information and to conduct training drills, but
declined to identify other members of the group or the location of the group's training exercises.2
He again claimed that his membership in this group and his weapons possession were motivated by
1
In the alternative, Wright requested a jury instruction on his Second Amendment defense.
Because we conclude that Wright can claim no Second Amendment protection, we find no error
in the denial of his request for a jury instruction on this issue.
2
Wright admitted that this military group was not in any way affiliated with the government
of the State of Georgia.
perceived threats to United States sovereignty. Based on this testimony, the district court rejected
Wright's request for, and the government's recommendation of, an offense-level reduction for
acceptance of responsibility, and sentenced him to forty-one months' imprisonment.
On appeal, Wright asserts several challenges to his convictions and sentence. He claims that
18 U.S.C. § 922(o) exceeds Congress's power under the Commerce Clause and contends that §
922(o) and 26 U.S.C. § 5861(d) violate his Second and Ninth Amendment rights. Finally, Wright
argues that the district court improperly penalized him for making these constitutional challenges
by denying him a downward adjustment for acceptance of responsibility.
II. Discussion
A. Commerce Clause
Section 922(o) states:
(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—
(A) a transfer to or by, or possession by or under the authority of, the United States
or any department or agency thereof or a State, or a department, agency, or political
subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun that was lawfully
possessed before the date this subsection takes effect.
18 U.S.C. § 922(o) (1994).3 Section 922(o) thus criminalizes, with limited exceptions, the mere
possession of machineguns that were acquired after May 19, 1986 regardless of whether these guns
traveled in or otherwise affected interstate commerce.
Relying on United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995),
3
"Machinegun" is defined under the statute as:
any weapon which shoots, is designed to shoot, or can be readily stored to shoot,
automatically more than one shot, without manual reloading, by a single function
of the trigger. The term shall also include the frame or receiver of any such
weapon, any part designed and intended solely and exclusively, or combination of
parts designed and intended, for use in converting a weapon into a machinegun,
and any combination of parts from which a machinegun can be assembled if such
parts are in the possession or under the control of a person.
18 U.S.C. § 921(a)(23); 26 U.S.C. § 5845(b).
Wright contends that section 922(o)'s blanket ban of the possession of machineguns violates the
Commerce Clause, U.S. Const., Art. I, § 8, cl. 3.4 In Lopez, the Supreme Court ruled that 18 U.S.C.
§ 922(q), which made it illegal 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," violated the Commerce
Clause. The Court concluded that § 922(q) could not "be sustained under our cases upholding
regulations of activities that arise out of or are connected with a commercial transaction, which
viewed in the aggregate, substantially affects interstate commerce." 514 U.S. at 561, 115 S.Ct. at
1631.
Wright bases his challenge to § 922(o) on its similarities to the section struck down in Lopez.
Wright notes that: (1) neither section has a jurisdictional element requiring a connection between
the gun and interstate commerce; (2) the enactment of both sections was unsupported by legislative
findings connecting them to interstate commerce; and (3) both sections criminalize the mere
possession of guns. Wright further claims that, like section 922(q), section 922(o) is "a criminal
statute that by its terms has nothing to do with "commerce' or any sort of economic enterprise,
however broadly one might define those terms." See Lopez, 514 U.S. at 559-62, 115 S.Ct. at 1630-
31. On these grounds, Wright argues that this case is indistinguishable from Lopez and that, because
there is no evidence that the machineguns he possessed traveled in interstate commerce, the count
of the indictment charging him with a violation of § 922(o) should be dismissed. We review his
Commerce Clause challenge de novo. United States v. Olin Corp., 107 F.3d 1506, 1508 (11th
Cir.1997).
Wright's reliance on the first two similarities between sections 922(o) and 922(q) is
misplaced. We recently rejected the argument that Lopez requires Congress to place a jurisdictional
element in every statute enacted pursuant to the Commerce Clause or to make formal legislative
4
Wright also claims that § 922(o) violates the Tenth Amendment. Because we conclude that
Congress had sufficient authority under the Commerce Clause to enact § 922(o), we need not
address his Tenth Amendment challenge. When Congress acts within its power under the
Commerce Clause, then the "Tenth Amendment expressly disclaims any reservation of that
power to the States." New York v. United States, 505 U.S. 144, 153, 112 S. Ct. 2408, 2417, 120
L. Ed. 2d 120 (1992).
findings connecting the regulated activity to interstate commerce. Olin, 107 F.3d at 1510. In Olin,
we concluded that "although Congress did not include in CERCLA either legislative findings or a
jurisdictional element, the statute remains valid as applied in this case because it regulates a class
of activities that substantially affects interstate commerce." Id.5
We are thus left to determine whether Congress's decision to prohibit in § 922(o) the mere
possession of machineguns is constitutionally permissible.6 Wright argues that the Court's decision
in Lopez to strike down § 922(q)'s prohibition of the mere possession of firearms in school zones
requires the same result in this case. We disagree. Because section 922(o) enacts a total ban on the
possession and transfer of machineguns, while section 922(q) regulated only the possession of
firearms in a limited, discrete geographic sphere, we conclude that this case is easily distinguishable
from Lopez. We further conclude that Congress had sufficient authority under the Commerce Clause
to enact § 922(o).
It is important to note that Lopez did not alter our approach to determining whether a
particular statute falls within the scope of Congress's Commerce Clause authority. Olin, 107 F.3d
5
Section 922(o) was enacted in 1986 as part of the Firearm Owners' Protection Act, Pub.L.
No. 99-308, 100 Stat. 449. The only apparent explanation in the legislative record for the
enactment of § 922(o) was the statement of its sponsor, Representative Hughes: "I do not know
why anyone would object to the banning of machineguns." 132 Cong. Rec. H1750 (daily ed.
April 10, 1986). Several courts have relied on congressional findings issued pursuant to the
enactment of prior gun control legislation, namely the Omnibus Crime Control Act and Safe
Streets Act, Pub.L. No. 90-351, 82 Stat. 197 (1968), in evaluating the constitutionality of §
922(o). See, e.g., United States v. Rybar, 103 F.3d 273, 279 (3d Cir.1996). Because we find
adequate support for the enactment of § 922(o) without reference to any legislative findings, we
need not determine the proper role of such prior findings in conducting Commerce Clause
review. See Olin, 107 F.3d at 1510 n. 6 (suggesting, without deciding, that prior legislative
findings can be used to sustain Commerce Clause challenge); see also Lopez, 514 U.S. at 563-
65, 115 S. Ct. at 1632 (declining to review earlier findings because § 922(q) represented a "sharp
break" with prior firearms legislation) (quoting United States v. Lopez, 2 F.3d 1342, 1366 (5th
Cir.1993)).
6
In United States v. Bass, 404 U.S. 336, 339 n. 4, 92 S. Ct. 515, 518 n. 4, 30 L. Ed. 2d 488
(1971), the Supreme Court left open the question of whether the Commerce Clause granted
Congress the power to punish the "mere possession" of firearms. In that case, the Court
interpreted 18 U.S.C. § 1202(a) to apply only to the possession of firearms "in commerce or
affecting commerce," and thus did not reach the constitutional issue. In contrast, the Court in
Lopez concluded that because § 922(q) contained no ambiguity, it could not be read to contain a
jurisdictional element. 514 U.S. at 561-63, 115 S.Ct. at 1631. We likewise find no ambiguity in
section 922(o), and thus proceed to consider the constitutional question.
at 1509; see also Lopez, 514 U.S. at 567-69, 115 S.Ct. at 1634 (refusing to adopt "additional
expansion" of congressional authority under the Commerce Clause). Rather than undermining its
prior Commerce Clause precedents, the Lopez Court merely established some "outer limits" to
Congress's Commerce Clause authority. See Lopez, 514 U.S. at 555-57, 115 S.Ct. at 1628. When
ruling on a Commerce Clause challenge, we must determine, as always, "whether a rational basis
existed for concluding that a regulated activity sufficiently affected interstate commerce." Id. at 557,
115 S.Ct. at 1629; see also United States v. Kenney, 91 F.3d 884, 886 (7th Cir.1996) ("Our task is
merely to determine whether Congress could have had a rational basis to support the exercise of its
commerce power; and, further, that the regulatory means chosen were "reasonably adapted to the
ends permitted by the Constitution.' ") (quoting Hodel v. Virginia Surface Mining & Reclamation
Ass'n, Inc., 452 U.S. 264, 275, 101 S. Ct. 2352, 2359, 69 L. Ed. 2d 1 (1981)).
Whether or not Congress had a rational basis to conclude that the possession or transfer of
machineguns has a sufficient connection with interstate commerce depends on whether this activity
falls within any of the three categories of activities that Congress has authority to regulate under the
Commerce Clause: (1) the use of channels of interstate commerce; (2) instrumentalities of and
persons or things in interstate commerce; and (3) intrastate activities that substantially affect
interstate commerce. Lopez, 514 U.S. at 557-61, 115 S.Ct. at 1629-30. Since Lopez, several circuits
have concluded that § 922(o) regulates channels of or things in interstate commerce.7
Although § 922(o) most often will regulate channels of and things in interstate commerce,
its reach extends beyond these two categories by criminalizing the possession of guns that have
never been a part of interstate commerce. For example, a machinegun may be created by converting
a non-automatic gun, and machineguns may also be manufactured and sold within a single state.
See Kenney, 91 F.3d at 889. Because § 922(o) has no jurisdictional element, it has the potential to
criminalize the possession of such guns that have never traveled in interstate commerce. We
7
See United States v. Beuckelaere, 91 F.3d 781, 783-85 (6th Cir.1996) (upholding § 922(o) as
a regulation of channels of and things in interstate commerce); United States v. Rambo, 74 F.3d
948, 952 (9th Cir.) (upholding § 922(o) as regulation of channels of interstate commerce), cert.
denied, --- U.S. ----, 117 S. Ct. 72, 136 L. Ed. 2d 32 (1996); United States v. Wilks, 58 F.3d 1518,
1521 (10th Cir.1995) (upholding § 922(o) as regulation of things in interstate commerce).
therefore conclude, in accord with the Third and Seventh Circuits, that § 922(o) cannot be justified
solely as a regulation of channels or things in interstate commerce, but must instead be analyzed
under the third Lopez category as a regulation of activities that substantially affect interstate
commerce. See United States v. Rybar, 103 F.3d 273, 283 (3d Cir.1996); Kenney, 91 F.3d at 889.
Section 922(o) thus can survive Commerce Clause scrutiny only if we find that Congress had
a rational basis to conclude that the conduct regulated by § 922(o) "arise[s] out of or [is] connected
with a commercial transaction, which viewed in the aggregate, substantially affects interstate
commerce." Lopez, 514 U.S. at 561, 115 S. Ct. at 1631. In other words, the statute "must bear more
than a generic relationship several steps removed from interstate commerce, and it must be a
relationship that is apparent, not creatively inferred." Kenney, 91 F.3d at 888.
Examining the class of activities regulated by § 922(o)—the possession or transfer of
machineguns, we find ample constitutional support for the enactment of this statute. Unlike the
statute at issue in Lopez, section 922(o) contains no geographical restriction; it simply bans the
transfer or possession of all machineguns not lawfully possessed in 1986. With this ban, Congress
eliminated completely the lawful demand for machineguns in this country and effectively froze the
number of legal machineguns in private hands at its 1986 level. See Kenney, 91 F.3d at 885. In our
view, the connection between the elimination of the lawful demand for machineguns and the
manufacture, importation, and interstate transfer of these products is obvious and direct.8 We
therefore hold that Congress had a rational basis to determine that a total ban on machineguns would
have a substantial effect on interstate commerce.9 See Rybar, 103 F.3d at 283 ("[Section] 922(o) can
8
The same cannot be said for the prohibition at issue in Lopez. By prohibiting only the
possession of guns within 1,000 feet of a school, Congress could not rationally have expected to
substantially affect the manufacture, importation, and interstate transfer of firearms.
9
We note that every federal circuit to entertain a Commerce Clause challenge to § 922(o),
either before or after Lopez, has upheld the constitutionality of this section. See United States v.
Knutson, 113 F.3d 27 (5th Cir.1997); Rybar, 103 F.3d 273 (3d Cir.1996); Kenney, 91 F.3d 884
(7th Cir.1996); Beuckelaere, 91 F.3d 781 (6th Cir.1996); Rambo, 74 F.3d 948 (9th Cir.), cert.
denied, --- U.S. ----, 117 S. Ct. 72, 136 L. Ed. 2d 32 (1996); Wilks, 58 F.3d 1518 (10th Cir.1995);
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); United States v. Evans, 928 F.2d 858, 862 (9th Cir.1991); see also
United States v. Kirk, 105 F.3d 997 (5th Cir.1997) (en banc) (affirming, by an equally divided
court, district court order upholding § 922(o)). Although the Court in Lopez rejected the
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 guns.").10
The fact that § 922(o) criminalizes some purely intrastate possession of machineguns is of
no constitutional importance. "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, 152, 91 S. Ct. 1357, 1361, 28 L. Ed. 2d 686 (1971)
(citation omitted). The regulation of purely intrastate possession of machineguns "constitutes an
appropriate element of [§ 922(o)'s] broader scheme" to reduce substantially the trade in
machineguns. See Olin, 107 F.3d at 1511. We therefore reject Wright's Commerce Clause
challenge.
B. Second Amendment
Wright also contends that § 922(o) and 26 U.S.C. § 5861(d)11 violate his right to bear arms
under the Second Amendment. As a member of Georgia's unorganized militia,12 Wright claims that
rationale previously used in Evans to sustain § 922(o), see 514 U.S. at 563-65, 115 S. Ct. at 1632,
we place no weight on that discussion because we base our ruling on a wholly different rationale
than used by the Ninth Circuit in that case. (In Evans, the Ninth Circuit concluded that the rise
in insurance costs caused by deaths attributable to firearms provided a sufficient nexus with
interstate commerce to support § 922(o). 928 F.2d at 862.)
10
Because we find that Congress was justified in its decision to regulate activities affecting
the trade of machineguns, we need not decide whether § 922(o) can also be sustained by
referring to the machinegun's special utility in the narcotics trade. See United States v. Kirk, 105
F.3d 997 (Opinion of Higginbotham, J.); cf. Perez v. United States, 402 U.S. 146, 154, 91 S. Ct.
1357, 1362, 28 L. Ed. 2d 686 (1971)(discussing the importance of extortionate credit transactions
to organized crime).
11
Section 5861(d) makes it unlawful for any person "to receive or possess a firearm which is
not registered to him in the National Firearms Registration and Transfer Record." 26 U.S.C. §
5861(d)(1989). "Firearm" is defined to include any "destructive device." 26 U.S.C. §
5845(a)(1989).
12
Georgia law provides for the division of the state militia into "the organized militia, the state
reserve list, the state retired list, and the unorganized militia." Ga.Code Ann. § 38-2-3 (1995).
The organized militia is comprised of the Georgia National Guard, the Georgia Naval Militia,
and the State Defense Force, whereas the unorganized militia consists of all able-bodied male
residents of the state between the ages of 17 and 45 who are not serving in any force of the
organized militia and not listed on the state reserve or retired list. Id.
The United States Code similarly divides the militia into two classes: the
organized militia, which consists of the National Guard and the Naval Militia, and the
he has a constitutional right to possess machineguns and pipe bombs because these weapons are used
by contemporary militia fighting forces.13 We review his constitutional claim de novo. United
States v. Unterburger, 97 F.3d 1413, 1415 (11th Cir.1996).
Although this circuit has not yet determined the scope of "the right of the people to keep and
bear Arms" under the Second Amendment,14 the Supreme Court has provided us with important
guidance in interpreting this constitutional provision. In United States v. Miller, 307 U.S. 174, 59
S. Ct. 816, 83 L. Ed. 1206 (1939), the Court considered whether the National Firearms Act of 1934,
26 U.S.C. § 1132, which required the registration of certain firearms, violated the Second
Amendment rights of two individuals indicted for transporting unregistered sawed-off shotguns in
interstate commerce.15 In reversing the district court's order, which dismissed the indictment as
violative of the Second Amendment, the Court stated:
In the absence of any evidence tending to show that possession or use of a "shotgun having
a barrel of less than eighteen inches in length' at this time has some reasonable relationship
to the preservation or efficiency of a well regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an instrument.
307 U.S. at 177, 59 S.Ct. at 818. Because the Court concluded that there was no evidence that the
unorganized militia, which consists of all males between the ages of 17 and 45 who are
not serving in the organized militia. 10 U.S.C. § 311 (1983 & Supp.1997).
13
Wright apparently has abandoned the claim, made before and rejected by the district court,
that his membership in the non-governmental twenty-person "military" group entitles him to
Second Amendment protection.
14
Although we have never explicitly discussed the meaning of the Second Amendment, our
prior cases have suggested a narrow reading of this provision. For example, in Farmer v.
Higgins, 907 F.2d 1041, 1045 (11th Cir.1990), cert. denied, 498 U.S. 1047, 111 S. Ct. 753, 112
L. Ed. 2d 773 (1991), an applicant for a permit to manufacture machineguns argued before this
court that § 922(o)'s complete ban on machineguns violated his Second Amendment rights. See
Brief of Appellee, No. 90-8185, at 45-50. Without discussion, we rejected this argument as
"without merit." 907 F.2d at 1045; see also United States v. Williams, 446 F.2d 486, 487 (5th
Cir.1971) (rejecting, based on United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206
(1939), Second Amendment challenge to 26 U.S.C. § 5861(d)'s registration requirement for
sawed-off shotguns); United States v. Johnson, 441 F.2d 1134, 1136 (5th Cir.1971) (same).
15
Miller is the only case in which the Supreme Court has considered directly a Second
Amendment challenge to a federal firearms statute. In Lewis v. United States, however, the
Court did reject an equal protection challenge to a federal firearm regulation because it
determined that the statute did not "trench upon any constitutionally protected liberties." 445
U.S. 55, 58, 100 S. Ct. 915, 921 n. 4, 63 L. Ed. 2d 198 (1980)(citing Miller, 307 U.S. 174, 59 S. Ct.
816, 83 L. Ed. 1206).
sawed-off shotgun was "any part of the ordinary military equipment or that its use could contribute
to the common defense," the Court held that the statute did not violate the Second Amendment rights
of the defendants. Id.
The fact that the Miller Court did not examine the possession or use of the sawed-off
shotguns in that case in no way suggests, as appellant contends, that individual possession of a
military-type weapon is protected by the Constitution irrespective of whether the possession or use
of that weapon is reasonably related to a "well regulated militia." Without any evidence that the
sawed-off shotgun at issue in that case could have been used as a weapon by a well regulated militia
group to provide for the common defense, there was no need for the Court to determine if the actual
possession or use of the weapons bore a reasonable relationship to a well regulated militia. As the
Eighth Circuit concluded in United States v. Hale, "[i]t is not sufficient to prove that the weapon in
question was susceptible to military use.... Rather, the claimant must prove that his or her
possession of the weapon was reasonably related to a well regulated militia." 978 F.2d 1016, 1020
(8th Cir.1992); see also Rybar, 103 F.3d at 286; United States v. Warin, 530 F.2d 103, 106 (6th
Cir.), cert. denied, 426 U.S. 948, 96 S. Ct. 3168, 49 L. Ed. 2d 1185 (1976).
Therefore, in order to claim Second Amendment protection, Wright must demonstrate a
reasonable relationship between his possession of the machineguns and pipe bombs and "the
preservation or efficiency of a well regulated militia." Wright claims that he has satisfied this test
because his weapons possession is reasonably related to his membership in Georgia's unorganized
militia, which he asserts is "well regulated" within the meaning of the Second Amendment.
Because the sawed-off shotguns in Miller were not susceptible to use in any militia, the
Court did not need to determine explicitly what constituted a "well regulated militia." A careful
reading of Miller, however, strongly suggests that only militias actively maintained and trained by
the states can satisfy the "well regulated militia" requirement of the Second Amendment. As the
Miller Court emphasized, the "obvious purpose" of the Second Amendment was to "render possible
the effectiveness of" the governmental militia described in the Militia Clauses of the Constitution.16
16
U.S. Const. art. I, § 8, cls. 15 & 16.
Miller, 307 U.S. at 178, 59 S.Ct. at 818. Thus, the Second Amendment "must be interpreted and
applied with that end in view." Id.
At the time of ratification, and as remains the case today, the militia was defined broadly and
was understood to include "all males physically capable of acting in concert for the common
defense." Miller, 307 U.S. at 177, 59 S. Ct. at 818. But because the Constitution protects only the
possession or use of guns reasonably related to a "well regulated militia," membership in this broad
segment of the population is constitutionally insignificant. In determining the scope of Second
Amendment protection, the Miller Court did not rely on the commonly understood and
wide-reaching definition of the militia, but rather turned to early militia laws of New York,
Massachusetts, and Virginia, which provided for the training, maintenance, and equipping of these
states' respective militias. Id. 307 U.S. at 177-78, 59 S. Ct. at 818-19. We find the Miller Court's
reliance on these statutory provisions regulating "the organization and government of the Militia,"
id. at 181, 59 S.Ct. at 819, to be significant. In our view, it indicates that the Miller Court
understood the Second Amendment to protect only the possession or use of weapons that is
reasonably related to a militia actively maintained and trained by the states.
Moreover, after examining the text and history of the Second Amendment, we conclude that
this reading of Miller is consistent with the motivating purposes of the drafters of the Second
Amendment. The amendment describes a "well regulated militia" as "being necessary to the security
of a free State." The fact that the drafters qualified "well regulated militia" by reference to state
security suggests to us that they intended this term to refer only to governmental militias that are
actively maintained and used for the common defense. We find substantial support for this textual
reading in the history of the drafting and ratification of the Constitution and the Bill of Rights.
The Militia Clauses in Article I authorized Congress to organize, arm, and discipline the
militia, but reserved to the states the authority to train the militia and appoint its officers. U.S.
Const. art. I, § 8, cl. 16. This dual grant of authority reflected the tension between two competing
concerns at the Constitutional Convention: the widespread distrust of a national standing army
versus the danger of relying on inadequately trained soldiers as the primary means of providing for
the common defense. See Perpich v. Department of Defense, 496 U.S. 334, 338-39, 110 S. Ct. 2418,
2422-23, 110 L. Ed. 2d 312 (1990). Despite significant debate as to whether the federal or state
governments would control the militia, after the Constitutional Convention there remained
uncertainty as to whether the authority to arm and to discipline the militia was exclusively federal.
See Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century:
Have You Seen Your Militia Lately?, 15 U. Dayton L.Rev. 5, 23-24 (1989).
The Second Amendment was inserted into the Bill of Rights to protect the role of the states
in maintaining and arming the militia. It was designed to protect the state militias from federal
legislation enacted to undermine the role of state militias. See Hale, 978 F.2d at 1019 ("The Second
Amendment prevented federal laws that would infringe upon the possession of arms by individuals
and thus render the state militias impotent."). By guarding against congressional intrusion into the
states' authority to maintain their respective militias and by protecting the ability of the militias to
equip themselves, the amendment provided an important safeguard against congressional efforts to
increase the need for or justification of a national standing army. See Ehrman & Henigan, supra,
at 28 (noting fear that "by neglecting the militia, Congress would have an excuse to raise that great
evil, a large standing army"); Laurence H. Tribe, American Constitutional Law, § 5-2, at 299 n. 6
(2d ed. 1988) ("[T]he central concern of the second amendment's framers was to prevent such
federal interference with state militia as would permit the establishment of a standing national army
and the consequent destruction of local autonomy.").
The concerns motivating the creation of the Second Amendment convince us that the
amendment was intended to protect only the use or possession of weapons that is reasonably related
to a militia actively maintained and trained by the states. With this conclusion, we join every other
federal court that has been called on to consider the "well regulated militia" requirement of the
Second Amendment,17 several of which have considered and rejected the claim made by Wright in
this case that membership in a state's unorganized militia is sufficient to bring gun possession within
17
Not a single federal court since Miller has held that an individual has demonstrated a
sufficient relationship between weapons possession or use and a "well regulated militia" so as to
trigger Second Amendment protection.
the protection of the Second Amendment. See Rybar, 103 F.3d at 286; Hale, 978 F.2d at 1020;
United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S. Ct.
1493, 55 L. Ed. 2d 521 (1978); Warin, 530 F.2d at 106.
Faced with this overwhelming body of contrary authority, Wright nevertheless maintains that
Georgia's unorganized militia is sufficiently well regulated to trigger constitutional protection. He
notes that under Georgia law the Governor has the authority to prescribe and to establish regulations
governing the unorganized militia. See generally Ga.Code Ann. §§ 38-2-70 through 38-2-73 (1995).
Wright also refers to statutes that allow, under certain circumstances, "the Governor [to] call for and
accept from the unorganized militia as many volunteers as are required for service in the organized
militia." Ga.Code Ann. §§ 38-2-5, 38-2-72 (1995).
In our view, these statutes fall far short of rendering the Georgia unorganized militia "well
regulated" for the purposes of the Second Amendment. The possibility that in responding to a future
crisis state authorities might seek the aid of members of the unorganized militia does not speak to
the militia's current state of regulation. Wright has not directed us to any Georgia statutes governing
the actual, as opposed to potential, organization, training, and equipping of the members of the
unorganized militia. Cf. Ga.Code Ann. 38-2-277(a) (1995) (prohibiting any "body of men other than
the organized militia" or an authorized organization of the police or armed forces to "associate
themselves together as a military unit or parade or demonstrate in public with firearms"). We
therefore do not hesitate to conclude that the substantial segment of the population comprising the
unorganized militia is not well regulated as that term was intended by the drafters of the Second
Amendment.
Because Wright has presented no evidence to demonstrate any connection, let alone a
"reasonable relationship," between his possession of the machineguns and pipe bombs and the
preservation or efficiency of a militia actively trained and maintained by the State of Georgia, his
weapons possession is entitled to no constitutional protection.18 Therefore, we conclude in this case
18
Having concluded that Wright has failed to make this requisite showing, we need not decide
here whether the Second Amendment creates an "individual" or a "collective" right. See Hale,
978 F.2d at 1020 ("Whether the "right to bear arms" for militia purposes is "individual" or
that neither § 922(o)'s blanket ban of machinegun possession nor the registration requirements of
§ 5861(d) infringe on any constitutionally protected liberties.19
C. Ninth Amendment
Wright also argues, without any supporting case law, that the criminalization of his
possession of machineguns and pipe bombs violates his right to privacy and an unenumerated
"natural" right to self-defense inherent in the Ninth Amendment. We are not persuaded by this
contention, and refuse to establish a new constitutional right to possess weapons under this
amendment. Accord United States v. Broussard, 80 F.3d 1025, 1041 (5th Cir.), cert. denied, --- U.S.
----, 117 S. Ct. 264, 136 L. Ed. 2d 189 (1996); Quilici v. Village of Morton Grove, 695 F.2d 261, 271
(7th Cir.1982), cert. denied, 464 U.S. 863, 104 S. Ct. 194, 78 L. Ed. 2d 170 (1983); Warin, 530 F.2d
at 108.
D. Acceptance of Responsibility
Finally, Wright challenges the district court's refusal to grant him an offense-level
adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, which provides that a
"collective" in nature is irrelevant where, as here, the individual's possession of arms is not
related to the preservation or efficiency of a militia."). Whichever the case, as a criminal
defendant, Wright has "standing" to assert a constitutional challenge to the statute he is charged
with violating. See Morgan v. Commonwealth of Virginia, 328 U.S. 373, 375, 66 S. Ct. 1050,
1053, 90 L. Ed. 1317 (1946). Accordingly, not a single court has refused to consider a criminal
defendant's Second Amendment challenge on "standing" grounds. Compare Hickman v. Block,
81 F.3d 98, 101-02 (9th Cir.) (dismissing, due to lack of standing, civil challenge to firearms
regulation), cert. denied, --- U.S. ----, 117 S. Ct. 276, 136 L. Ed. 2d 199 (1996).
Likewise, because Wright has failed to demonstrate any connection to a well
regulated militia, we need not consider what showing is required to establish a reasonable
relationship between the possession or use of weapons and the preservation or efficiency
of such a militia. Finally, we express no opinion as to what governmental interests would
be sufficient to justify an infringement on Second Amendment rights in the event such a
reasonable relationship is established. See Warin, 530 F.2d at 107 ("Even where the
Second Amendment is applicable, it does not constitute an absolute barrier to the
congressional regulation of firearms.").
19
We note that § 922(o), by its own terms, does not apply with respect to "a transfer to or by,
or possession by or under the authority of, the United States or any department or agency thereof
or a State, or a department, agency, or political subdivision thereof." 18 U.S.C. § 922(o)(2)(A).
With this exemption, it appears Congress has avoided any potential conflict with the Second
Amendment. See United States v. Farrell, 69 F.3d 891, 894 (8th Cir.1995), cert. denied, --- U.S.
----, 116 S. Ct. 1283, 134 L. Ed. 2d 228 (1996).
"defendant [that] clearly demonstrates acceptance of responsibility for his offense" is entitled to a
downward adjustment. See also United States v. Calhoon, 97 F.3d 518, 531 (11th Cir.1996) (noting
that defendant has burden to prove acceptance of responsibility). Because the acceptance of
responsibility determination is generally fact-based and because the district court is in "a unique
position" to evaluate the appropriate factual considerations, the ruling of the sentencing judge "is
entitled to great deference on review." U.S.S.G. § 3E1.1. comment. (n. 5); Calhoon, 97 F.3d at 531
(district court's determination of acceptance of responsibility is reviewed for clear error).
Nonetheless, when examining an acceptance of responsibility determination, we review, as always,
the district court's application of the Sentencing Guidelines de novo. See United States v. Purchess,
107 F.3d 1261, 1265-66 (7th Cir.1997); United States v. Diaz, 26 F.3d 1533, 1544 (11th Cir.1994),
cert. denied, 513 U.S. 1134, 115 S. Ct. 952, 130 L. Ed. 2d 895 (1995).
We recently reiterated that the acceptance of responsibility determination is a "multi-faceted
concept" that depends on such factors as "the offender's recognition of the wrongdoing of his
conduct, his remorse for the harmful consequences of the conduct, and his willingness to turn away
from the conduct in the future." United States v. Calhoon, 97 F.3d 518, 531 (11th Cir.1996)
(quotation and citation omitted); see also U.S.S.G. § 3E1.1 comment. (n. 1) (district court should
consider, among other factors, whether the defendant has truthfully admitted the conduct comprising
the offenses, truthfully admitted or did not falsely deny any relevant conduct, and voluntarily
terminated criminal conduct). The fact that a defendant has pleaded guilty and has truthfully
admitted the conduct comprising the offense of conviction does not entitle him to a downward
adjustment "as a matter of right." U.S.S.G. § 3E1.1 comment. (n. 3); see also Calhoon, 97 F.3d at
531. Although a guilty plea, when combined with an admission of criminal conduct, "will constitute
significant evidence of acceptance of responsibility," this evidence may be outweighed by "conduct
of the defendant that is inconsistent with such acceptance of responsibility." U.S.S.G. § 3E1.1
comment. (n. 3).
Despite the multi-faceted nature of the inquiry and the wide latitude afforded sentencing
courts under this section, there are limits to what a district court can consider as evidence
inconsistent with acceptance of responsibility. An otherwise deserving defendant cannot be denied
a reduction under § 3E1.1 solely because he asserts a challenge to his conviction that is unrelated
to factual guilt, such as a constitutional challenge to the statute or a challenge to the applicability
of the statute to his conduct. See Purchess, 107 F.3d at 1267 (concluding that "district court should
not deny the reduction for acceptance of responsibility because the defendant challenges a legal
conclusion drawn from the facts the defendant admits"); United States v. Fells, 78 F.3d 168, 172
(5th Cir.) (holding that district court erred in denying reduction for defendant who "freely admitted
all the facts but challenged their legal interpretation"), cert. denied, --- U.S. ----, 117 S. Ct. 134, 136
L. Ed. 2d 82 (1996); United States v. Broussard, 987 F.2d 215, 224 (5th Cir.1993) (holding that
district court erred in denying acceptance of responsibility adjustment when defendant admitted
ownership of guns found in home and went to trial only to argue that statute did not apply to
uncontested facts), overruled on other grounds by J.E.B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419,
128 L. Ed. 2d 89 (1994); U.S.S.G. § 3E1.1 comment. (n. 3) (stating that defendant who does not
plead guilty may nevertheless clearly demonstrate acceptance of responsibility if he goes to trial in
order "to make a constitutional challenge to a statute or a challenge to the applicability of a statute
to his conduct").
In this case, Wright immediately admitted upon arrest that he possessed the machineguns,
led the agents to the location of these weapons, and consented to the search of his residence that
resulted in the discovery of an additional machinegun and the three pipe bombs. After filing a
motion to dismiss the indictment on constitutional grounds, Wright timely pled guilty to the offenses
charged. Wright thus truthfully admitted the conduct comprising the offenses of conviction—at the
time of his arrest, when he pleaded guilty, and at the time of sentencing. He also cooperated with
law enforcement authorities and assured the district court that he had not possessed any weapons
since his arrest. It is readily apparent from these facts that Wright has presented "significant
evidence" of acceptance of responsibility. See U.S.S.G. § 3E1.1 comment. (nn. 1 & 3).
The only remaining question is whether the district court relied on permissible considerations
in concluding that this evidence was "outweighed by conduct of the defendant that is inconsistent
with such acceptance of responsibility." See U.S.S.G. § 3E1.1 comment. (n. 3). After listening to
Wright testify at the sentencing hearing, the district court stated:
This is a hard issue. I think within Mr. Wright's own frame of reference, he is sincere in a
lot of the things that he said, but I just do not think Mr. Wright believes that he was a
member of a militia whose mission was to protect the citizens of the State of Georgia against
threats from the outside. I think Mr. Wright believes that he was a member of a group that
was prepared to respond to whatever they perceived to be a threat or a problem. I'm not
convinced by his testimony that they believed that they were carrying out the law as opposed
to being ready to resist it. So, I will overrule the defendant's objection on the point regarding
acceptance of responsibility.
(R3:23). We read these remarks to indicate that the district court denied Wright a downward
adjustment because it did not believe that his constitutional challenge was meritorious. The district
court apparently (and correctly) understood the Second Amendment to protect only the possession
and use of firearms that is reasonably related to an official state militia. The district court further
concluded that an official militia must be designed to protect the citizens of Georgia from outside
threats and to carry out the law of Georgia, and that Wright had made no showing that he belonged
to such a group.
The district court made no findings that the defendant testified untruthfully about his militia
involvement. Rather, the district court stated that "I do not see the evidence that Mr. Wright's group
was really viewing itself as a group that was going to be available to enforce the law and protect the
citizens." (R3:24) (emphasis added). At the beginning of the sentencing hearing, before listening
to Wright's testimony, the district court stated:
I think what really bothers me in this case is that Mr. Wright has put forward through
counsel an assertion that he believed he was entitled to possess all of these weapons, and
apparently the pipe bombs as well because he thought he was a member of a militia, and,
therefore, he thought he was constitutionally able to have these things. And that assertion
that he is making through counsel to me is not credible, and that's what bothers me.... It
appears to me that what has happened is counsel has identified some of the publications that
seem to be consistent with the idea of defending one's countrymen, and you [counsel] have
attempted to assert an argument building on his possession of those items.
(R3:5-6) (emphasis added).
Based on this record, we cannot conclude that the district court denied Wright a downward
adjustment because of a consideration of permissible factors such as his dishonesty, lack of remorse,
or insincerity. Rather, it appears to us that the district court denied the downward adjustment
because it did not believe the legal argument defendant's counsel was making based on facts that
defendant had truthfully admitted. Because the asserted legal argument did not relate to Wright's
factual guilt, we conclude that the district court erred in using it as a basis for denying Wright a
downward adjustment for acceptance of responsibility.20 We therefore remand the case to the
district court for a reconsideration of this issue.
III. Conclusion
Accordingly, we AFFIRM appellant's convictions, VACATE his sentence, and REMAND
for resentencing.
COX, Circuit Judge, specially concurring in part and dissenting in part.
I join those parts of the court's opinion that reject Wright's Commerce Clause and Ninth
Amendment challenges. I do not join that part of the court's opinion that addresses Wright's Second
Amendment challenge, but I concur in the result on the Second Amendment issue.
I dissent from the holding that the district court erred in denying Wright an adjustment for
acceptance of responsibility. As the court recognizes, in determining whether a defendant is entitled
to an acceptance of responsibility adjustment, a district court may properly consider "the offender's
recognition of the wrongfulness of his conduct, his remorse for the harmful consequences of that
conduct, and his willingness to turn away from that conduct in the future." United States v.
Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989). The district court premised its denial of an
adjustment on a factual finding that Wright did not recognize that his conduct was wrong and was
not sincerely remorseful. The court said:
I think within Mr. Wright's own frame of reference, he is sincere in a lot of the things that
he said, but I just do not think Mr. Wright believes that he was a member of a militia whose
mission was to protect the citizens of the state of Georgia against threats from outside. I
think Mr. Wright believes that he was a member of a group that was prepared to respond to
whatever they perceived to be a threat or a problem. I'm not convinced by his testimony that
20
We recognize that in some instances a legal or constitutional challenge will be so frivolous
as to justify a denial of an acceptance of responsibility adjustment. Based on the paucity of
Eleventh Circuit case law on the Second Amendment and the substantial body of academic
writings supporting Wright's position, see Randy E. Barnett and Don B. Kates, Under Fire: The
New Consensus on the Second Amendment, 45 Emory L.J. 1141 (1996)(discussing academic
debate), we cannot conclude that Wright's challenge to § 922(o) and § 5861(d) presents such a
case.
they believed that they were carrying out the law as opposed to being ready to resist it.
(R.3 at 23.) An individual's subjective intent or belief is not relevant to the merits of a Second
Amendment challenge. Consequently, the district court's comments are properly read as findings
that at the time of sentencing Wright did not think that his conduct was wrong and was not
remorseful. Since these findings are entitled to great deference, I would affirm the district court's
denial of an adjustment for acceptance of responsibility. See United States v. Hromada, 49 F.3d
685, 689 (11th Cir.1995) ("A district court occupies the unique position to evaluate whether a
defendant has accepted responsibility for his acts; its determination is entitled to great deference
on appeal.").
Moreover, even taking as true the court's conclusion that Wright was denied a reduction
"because [the district court] did not believe that his constitutional challenge was meritorious," ante,
at 2530, there was no error. I disagree with the holding that "[a]n otherwise deserving defendant
cannot be denied a reduction under § 3E1.1 solely because he asserts a challenge to his conviction
that is unrelated to factual guilt, such as a constitutional challenge to the statute...." Ante, at 2529.
Our case law allows a district court to deny a defendant a reduction under § 3E1.1 based on conduct
inconsistent with acceptance of responsibility, even when that conduct includes the assertion of a
constitutional right. See United States v. Henry, 883 F.2d 1010, 1011 (11th Cir.1989) (holding that
denial of § 3E1.1 reduction is not "impermissible punishment" for exercising Fifth or Sixth
Amendment rights). See also United States v. McDonald, 935 F.2d 1212, 1222 (11th Cir.1991)
(rejecting defendant's contention that § 3E1.1 "infringe[s] on his right to appeal because he was
unable to express acceptance of responsibility for his deeds at the sentencing hearing while he
anticipated bringing this appeal."); United States v. Jones, 934 F.2d 1199, 1200 (11th Cir.1991)
("[T]he court's consideration, at sentencing, of the defendants' denial of culpability at trial does not
impermissibly punish the defendant for exercising his constitutional right to stand trial.").