Appeal from the United States District Court for the District of Alaska H. Russel Holland, Senior District Judge, Presiding D.C. No.3:10-cr-00115- HRH-1
The opinion of the court was delivered by: M. Smith, Circuit Judge:
Argued and Submitted June 26, 2012-Anchorage, Alaska
Before: Alfred T. Goodwin, William A. Fletcher, and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
Defendant-Appellant Matthew Wayne Henry appeals his conviction for illegal possession of a homemade machine gun, under 18 U.S.C. § 922(o). He contends that he has a Second Amendment right to possess a homemade machine gun in his home. We reject this argument because machine guns are "dangerous and unusual weapons" that are unprotected by the Second Amendment. Dist. of Columbia v. Heller, 554 U.S. 570, 627 (2008). Henry also argues that Congress did not have the power to enact § 922(o)'s prohibition against possessing machine guns pursuant to the powers delegated to Congress in the Commerce Clause. That argument fails because we already have held that the Commerce Clause authorizes § 922(o)'s machine gun possession ban. United States v. Stewart, 451 F.3d 1071, 1078 (9th Cir. 2006). Accordingly, we affirm Henry's conviction.
FACTUAL AND PROCEDURAL BACKGROUND
On October 30, 2009, the Anchorage Police Department dispatched officers to a home after receiving reports of gunfire. Officers found numerous shell casings in the area. The Anchorage police executed a search warrant of the residence, seeking evidence of firearms and ammunition. Officers seized a loaded .308-caliber assault rifle and an empty magazine found under Henry's bed. On October 31, 2009, Henry was arraigned in state court for discharging firearms while intoxicated. On December 7, 2009, the case was dismissed because the state declined to prosecute.
After Henry's release, the Anchorage police received an anonymous tip that Henry had converted the .308-caliber rifle into a machine gun prior to its seizure. The Bureau of Alcohol, Tobacco, and Firearms (ATF) examined the rifle and determined that it had indeed been converted into a machine gun. The ATF obtained a federal search warrant, and, on June 14, 2010, discovered at Henry's residence twenty guns, gun parts, firearms conversion instructions, and a machine gun auto-sear, which converts rifles to automatic weapons.
On November 17, 2010, the grand jury indicted Henry on two counts: (1) knowingly and unlawfully possessing a machine gun, in violation of 18 U.S.C. §§ 922(o)(1)*fn1 and 924(a)(2), and (2) knowingly and unlawfully possessing an auto-sear, a part used to convert a weapon into a machine gun, in violation of 18 U.S.C. §§ 922(o)(1) and 924(a)(2). Henry moved to dismiss the two counts, arguing that, as applied to him, § 922(o) violates his Second Amendment right to keep and bear arms, and is not authorized under the Commerce Clause. The district court denied Henry's motion to dismiss, concluding that there is no Second Amendment right to possess a homemade machine gun in one's home, and that Congress had the power to enact § 922(o) using the powers delegated to it under the Commerce Clause.
After the district court denied Henry's motion, the case proceeded to trial. Henry testified that a firearm the government offered into evidence belonged to him. Henry further testified that he acquired all of the necessary parts to build a rifle from a variety of sources, and eventually built such a firearm. Although he denied at trial that he was trying to make a machine gun, he concedes on appeal that the rifle as converted by him was a homemade machine gun.
The jury found Henry guilty on count 1, and not guilty on count 2. The district court sentenced Henry to twenty-four months' imprisonment, and ordered his machine gun to be forfeited pursuant to 18 U.S.C. ...