I think Judge Kozinski just made a contribution to the 2nd Am debate.
The question in _Silveira_ was/is: did Congress, in adopting the Second Amendment, waive the power to prohibit firearms possession by individuals? (leaving aside incorporation for the moment)
And the answer in _Stewart_ is: Congress was never delegated a power to prohibit firearms possession by individuals.
But remember, Stewart presents prettty unusual facts, and Kozinski was alert to them. The key problem is Wicker v. Filburn or whatever. Court upholds New Deal limits on crop production, as applied to a farmer whose crop he either ate or fed to livestock, all on his own land, never sold it, let alone in interstate commerce. Reasoning: his actions taken alone don't affect commerce, but the totality of similar actions by similar farmers can affect markets (using own crops, they don't have to buy) sufficiently to justify congressional control.
Kozinski doesn't (as most judges would) mechanically apply Wicker to say "if there is any hypothetical in which his local action might affect commerce, that's enough." Instead he points out Stewart's actions weren't commercial in nature at all. Since the 1986 ban, there *is* no machinegun for private individual industry to be affected. And if there were, he as a convicted felon couldn't partipate in it anyway. So even 10,000 people in his position, making their own MGs, couldn't affect any interstate commerce.
The 9th Cir. now holds that Congress was never delegated a power to regulate firearms ownership, while paradoxically denying that the 2nd Amendment impeded a Congressional power to regulate firearms ownership.
Not necessarily a paradox. Some stuff Congress just had no power to do, so no need to ask whether the BoR took the power away. Some have pointed out that the very expansive view of federal power puts pressure on the BoR which it was never meant to hold. For a government of limited powers, 8-10 amendments were enough. Look at the BoRs of most states, created with the assumption they would have general powers, and you'll see far more guarantees with lots more detail.
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