If mere possession of a machine gun constitutes interstate commerce, Congress could theoretically regulate nearly anything under the Constitution’s framework. The question has haunted American legal doctrine for decades—and it resurfaces with renewed urgency as Texas Public Policy Foundation and Temple Gun Club prepare to challenge the federal ban on post-1986 machine guns in court.
The 1986 statute prohibiting the transfer or possession of machine guns—except for military use or pre-existing lawful holdings—was enacted without explicit constitutional justification. Rep. William J. Hughes (D-N.J.), the amendment’s sponsor, admitted as much: “I do not know why anyone would object to the banning of machine guns.” Yet Congress never debated whether this power derived from the Commerce Clause or another constitutional provision.
Today, the legal landscape remains fractured. In United States v. Kirk (1997), a federal appeals court split evenly over whether the ban exceeded Congress’ authority under the Commerce Clause. Three months later, in United States v. Knutson, a three-judge panel upheld the law without broader precedent. More recently, Judge Don Willett of the Fifth Circuit questioned the ban’s validity in a nonbinding concurrence, arguing that “mere possession of a firearm” does not fit within any recognized category of interstate commerce—channels, instrumentalities, or activities substantially affecting interstate trade.
The case now centers on whether Congress can criminalize an act that never entered interstate commerce: firearms built by law-abiding members who convert existing guns they already own. If the federal government holds power over such possessions, it could theoretically regulate nearly every aspect of life under the Commerce Clause’s broad interpretation.
As Judge Willett warned, if “regulate commerce” has become a blank check for federal authority, the 10th Amendment—a historical safeguard for states and individuals—has been reduced to an empty promise. The Texas Public Policy Foundation and Temple Gun Club seek clarity: Does Congress still have constitutional limits on regulating actions that never cross state lines?
Laura Beth Latimer is an attorney with the Center for American Future at the Texas Policy Foundation.
