Challenging the Hughes Amendment
While I agree with the sentiment, it’s a little too soon, I think, to start thinking anyone will overturn a machine gun ban.
6 Responses to “Challenging the Hughes Amendment”
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March 23rd, 2015 at 5:42 pm
If you want to follow both cases here are the documents. http://iris.personaltelco.net/~ry/nolo/
March 23rd, 2015 at 6:04 pm
I like to hope that it will be easier to overturn the ban on newly manufactured fully-automatic firearms than the restrictive rules involved in actually acquiring an existing one. But yeah, this one is risky.
March 23rd, 2015 at 7:23 pm
Thing is it would be far easier to defend if it was a blanket ban. You can put together a rationale for a blanket ban that passes the “rational basis” rubber stamp. The arbitrary nature of the date makes it extremely hard to defend even under rational basis.
March 23rd, 2015 at 7:58 pm
Aero, it’s a rock and a hard place here.
If you call it a blanket ban, you run afoul of Heller that says basically you can’t ban stuff. If you call it a “rational basis restriction” then you are stuck trying to explain how the arbitrary date makes any rational sense, AND how the arbitrary date isn’t really a ban in slow motion.
The problem is that logic isn’t going to rule the day here. We’re going to have 4 justices who would vote to ban George Washington’s pocketknife and call it rational, and they only have to flip one of ours with scare tactics about weapons of war and prohibition-era gang violence and so on and so forth.
This SHOULD be an easy win for our side.
But they only have to scare one justice out of five.
March 24th, 2015 at 8:35 am
TriggerFinger, I think what ultimately plays in our favor is that this isn’t a challenge to the NFA itself. All the myriad of NFA restrictions, the intense background check, fingerprints, CLEO signoff, etc etc all still remain in place if Hughes goes away.
March 24th, 2015 at 4:25 pm
Scalia made clear that “dangerous and unusual” firearms do not fall under the protective guise of the Second Amendment. They are somewhere outside the core, and probably farther than knives or stun guns. It is assumed by nearly all that machine guns fall into that prospective regulatory hole.
So the 2A Two-Step is an easy move for just about any judge: identify the firearms outside the “core” of the Second Amendment; then use Rational Basis cross-dressed as Intermediate Scrutiny to wish it all away.
This is a bad case to argue right now. A loss will affect more than machine guns, because the ruling will be used in all cases where a “dangerous and unusual” defense is used by the government. This applies to AR-15/”AW” bans in several states. The logic of “dangerous and unusual” will travel downstream into non-NFA firearms. It will be harder to unfuck in the future.
Add in the fact his is a long-standing Federal Law and this is a loser. It has no chance of success.