A very informative piece I'll cut and paste the p[ravallant section and leave the link for your discussion
Intrastate Possession
The Gun Control Act includes several provisions that criminalize possession of a firearm. For instance, 18 U.S.C. Ā§922(o) makes it unlawful for any person to āpossess a machinegunā and 18 U.S.C. Ā§922(g) makes it unlawful for certain categories of persons to āpossess in or affecting commerce, any firearm or ammunition,ā50 As demonstrated above, however, whether Congress actually has authority to regulate āmere possessionā of firearms has been questioned by the courts.51 In particular, courts have confronted the issue of whether these provisions as applied to intrastate possession are a proper exercise of Congressās power under the Commerce Clause. Analysis regarding the validity of these federal possession provisions has varied slightly, given the development of the Supreme Courtās jurisprudence on the Commerce Clause. Possession Without a Jurisdictional Hook Prior to and post-Lopez, federal courts generally upheld Ā§922(o) as a valid exercise of Congressās commerce power, despite the absence of jurisdictional language requiring that the machinegun travel in or substantially affect interstate commerce.52 However, once Lopez was decided, at least
one federal court of appeals held Ā§922(o) to be unconstitutional as applied to a defendant who was convicted of possessing machineguns that had been home assembled through parts kits. In United States v. Stewart (Stewart I), the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) held that there were limits in applying Ā§922(o).53 The court rejected the argument that the statute was constitutional under either of the first two categories in Lopez, even though some of the parts of the machineguns had, at some point, moved in interstate commerce.54 It also found that the defendantās simple possession of homemade machineguns did not substantially affect interstate commerce as recognized by Lopez. In particular, the Ninth Circuit determined that possession of a machinegun is not, without more, economic in nature and that nothing in the legislative history indicates that the regulation itself has an economic purpose.55 Therefore, the court held that, as applied to the defendantās possession of homemade machineguns, Ā§922(o) was an unlawful extension of Congressās commerce power. Stewart I, however, was decided prior to the Supreme Courtās decision in Gonzales v. Raich. Upon remand, the Ninth Circuit in Stewart II held that Ā§922(o) can be constitutionally applied to the defendantās possession of homemade machineguns in light of the Supreme Courtās analysis in Raich. 56 The statute at issue, as well as the actions and claims of the defendant, were ānearly identicalā to the claims and statute at issue in Raich, where the Court rejected the argument that the federal provision criminalizing possession of marijuana could not be applied to the intrastate possession of medical marijuana. As discussed supra, the Court in Raich reaffirmed its prior holdings that Congress may regulate āpurely intrastate activity that is not itself ācommercialā ... if it concludes that failure to regulate that activity would undercut the regulation of the interstate market in that commodity.ā57 Under this reasoning, the defendant in Raich was not successful in his attempt to carve out a class of intrastate activities as beyond the reach of Congressās commerce power. Relying on this analysis, the Ninth Circuit in Stewart II concluded that, like the regulation on possessing drugs in the Controlled Substances Act, the machinegun possession ban fits within a larger scheme for the regulation of interstate commerce of firearms.58 The courtās new focus under the substantially affects doctrine post-Raich was ānot [the defendant] and his homemade machine guns, but all homemade machineguns manufactured intrastate. Moreover, [the court] does not require the government to prove that those activities actually affected interstate commerce; we merely inquire whether Congress had a rational basis for so concluding.ā59 Thus, under this lens, machineguns, whether they are homemade or commercially made, are fungible commodities like marijuana,60 and Congress had a rational basis for concluding that āin the aggregate, possession of homemade machineguns could substantially affect interstate commerce in machineguns.ā61 The analysis in Raich, followed by the Ninth Circuit in Stewart II, has been relied upon by other courts in evaluating state legislation that purports to exempt from federal law the intrastate manufacture and sale of firearms, firearms accessories, and ammunition. This type of law is known as a Firearms Freedom Act.62 The United States District Court for the District of Montana, echoing the concerns in Raich and Stewart II, declared that āMontanaās attempt to... excise a discrete local activity from the comprehensive regulatory framework provided by federal firearms laws cannot stand.ā63 In upholding the validity of the National Firearms Act and Gun Control Act as applied to the intrastate manufacture and sale of firearms and firearms accessories, the district court stated that Congress had a rational basis, without the need to have particularized findings, to conclude that failure to regulate intrastate manufacture and sale of firearms would leave a āgaping holeā in the federal scheme regulating firearms.64
https://fas.org/sgp/crs/misc/R43033.pdf
Intrastate Possession
The Gun Control Act includes several provisions that criminalize possession of a firearm. For instance, 18 U.S.C. Ā§922(o) makes it unlawful for any person to āpossess a machinegunā and 18 U.S.C. Ā§922(g) makes it unlawful for certain categories of persons to āpossess in or affecting commerce, any firearm or ammunition,ā50 As demonstrated above, however, whether Congress actually has authority to regulate āmere possessionā of firearms has been questioned by the courts.51 In particular, courts have confronted the issue of whether these provisions as applied to intrastate possession are a proper exercise of Congressās power under the Commerce Clause. Analysis regarding the validity of these federal possession provisions has varied slightly, given the development of the Supreme Courtās jurisprudence on the Commerce Clause. Possession Without a Jurisdictional Hook Prior to and post-Lopez, federal courts generally upheld Ā§922(o) as a valid exercise of Congressās commerce power, despite the absence of jurisdictional language requiring that the machinegun travel in or substantially affect interstate commerce.52 However, once Lopez was decided, at least
one federal court of appeals held Ā§922(o) to be unconstitutional as applied to a defendant who was convicted of possessing machineguns that had been home assembled through parts kits. In United States v. Stewart (Stewart I), the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) held that there were limits in applying Ā§922(o).53 The court rejected the argument that the statute was constitutional under either of the first two categories in Lopez, even though some of the parts of the machineguns had, at some point, moved in interstate commerce.54 It also found that the defendantās simple possession of homemade machineguns did not substantially affect interstate commerce as recognized by Lopez. In particular, the Ninth Circuit determined that possession of a machinegun is not, without more, economic in nature and that nothing in the legislative history indicates that the regulation itself has an economic purpose.55 Therefore, the court held that, as applied to the defendantās possession of homemade machineguns, Ā§922(o) was an unlawful extension of Congressās commerce power. Stewart I, however, was decided prior to the Supreme Courtās decision in Gonzales v. Raich. Upon remand, the Ninth Circuit in Stewart II held that Ā§922(o) can be constitutionally applied to the defendantās possession of homemade machineguns in light of the Supreme Courtās analysis in Raich. 56 The statute at issue, as well as the actions and claims of the defendant, were ānearly identicalā to the claims and statute at issue in Raich, where the Court rejected the argument that the federal provision criminalizing possession of marijuana could not be applied to the intrastate possession of medical marijuana. As discussed supra, the Court in Raich reaffirmed its prior holdings that Congress may regulate āpurely intrastate activity that is not itself ācommercialā ... if it concludes that failure to regulate that activity would undercut the regulation of the interstate market in that commodity.ā57 Under this reasoning, the defendant in Raich was not successful in his attempt to carve out a class of intrastate activities as beyond the reach of Congressās commerce power. Relying on this analysis, the Ninth Circuit in Stewart II concluded that, like the regulation on possessing drugs in the Controlled Substances Act, the machinegun possession ban fits within a larger scheme for the regulation of interstate commerce of firearms.58 The courtās new focus under the substantially affects doctrine post-Raich was ānot [the defendant] and his homemade machine guns, but all homemade machineguns manufactured intrastate. Moreover, [the court] does not require the government to prove that those activities actually affected interstate commerce; we merely inquire whether Congress had a rational basis for so concluding.ā59 Thus, under this lens, machineguns, whether they are homemade or commercially made, are fungible commodities like marijuana,60 and Congress had a rational basis for concluding that āin the aggregate, possession of homemade machineguns could substantially affect interstate commerce in machineguns.ā61 The analysis in Raich, followed by the Ninth Circuit in Stewart II, has been relied upon by other courts in evaluating state legislation that purports to exempt from federal law the intrastate manufacture and sale of firearms, firearms accessories, and ammunition. This type of law is known as a Firearms Freedom Act.62 The United States District Court for the District of Montana, echoing the concerns in Raich and Stewart II, declared that āMontanaās attempt to... excise a discrete local activity from the comprehensive regulatory framework provided by federal firearms laws cannot stand.ā63 In upholding the validity of the National Firearms Act and Gun Control Act as applied to the intrastate manufacture and sale of firearms and firearms accessories, the district court stated that Congress had a rational basis, without the need to have particularized findings, to conclude that failure to regulate intrastate manufacture and sale of firearms would leave a āgaping holeā in the federal scheme regulating firearms.64
https://fas.org/sgp/crs/misc/R43033.pdf
