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U.S. v. KIRK

No. 94-50472.

105 F.3d 997 (1997)

UNITED STATES of America, Plaintiff-Appellee, v. William Joseph KIRK, Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

February 3, 1997.

Attorney(s) appearing for the Case

Richard L. Durbin, Jr., Asst. U.S. Attorney, Mark Randolph Stelmach, Assistant U.S. Attorney, Office of the United States Attorney, San Antonio, TX, for plaintiff-appellee.

Edwin Gerald Morris, Morris & Florey, Austin, TX, for defendant-appellant.

Keith S. Hampton, Cynthia Lanning Hampton, Austin, TX, for Texas Criminal Defense Lawyers Association, amicus curiae.

Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

PER CURIAM:

By virtue of an equally divided en banc court, the judgment of the district court is AFFIRMED.

ROBERT M. PARKER, Circuit Judge, joined by POLITZ, Chief Judge, and KING, HIGGINBOTHAM, DAVIS, WIENER, STEWART and DENNIS, Circuit Judges, would affirm for the following reasons:

In my view, there was a rational basis for Congress to conclude that post-1986 incidents of manufacture, transfer, and possession of machineguns fall within its power...

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