More on the MG Issue
I think EVERYONE associated with this case who knows anything about appellate argument — and I’ve talked to many in that class — agreed that if you cannot come up with a 2nd Amendment test that lets the government do a lot of things with full autos, you lose.
I don’t think it will be a losing issue forever but for now it is.
March 19th, 2008 at 3:23 pm
I’m not big on the MG issue myself. I just want paperwork-free sound suppressors. I want to be able to fire up a lathe, turn out a suppressor, attach it to my rifle, go out and shoot, and have broken no laws in the process. That’d be sweet.
March 19th, 2008 at 3:59 pm
OK, here’s a question I’ve not seen answered anywhere: what now? What’s the rest of the process with the SCOTUS between now and judgment? What happens after that, i.e. in DC etc?
March 19th, 2008 at 4:00 pm
Sullivan act in NY. Chicago ban.
Though I’ve not heard that made official, they could be likely targets.
March 19th, 2008 at 5:18 pm
I hope the next target is Chicago, whose ban is nearly identical to DC’s. That would make Heller II a clean incorporation case, leaving the messier stuff until after that issue is off the table.
March 19th, 2008 at 5:44 pm
I’d like to think that Chicago would just say, “well, our handgun ban is obviously unconstitutional, based on Heller” but I seriously doubt that would happen. I’d also like to see that wretched FOID be tossed as well.
Registration was covered in Haynes circa 1969. Since felons cannot own firearms, they cannot be charged failing to register a firearm they shouldn’t have had in the first place. They would have to incriminate themselves at the time of registration, so Sullivan should not be law NOW.
Once a couple of these cities and states get smacked around district courtrooms, we’ll see a dropoff in these types of laws. Uncle(?) was right wen he said we have to treat these people like bigots, we have to be going at this for what it is: a fight against modern day Jim Crow.
Then we can move to lifting the 1986 importation and manufacture ban.
Oh, and I just found this out recently. Did you know that the NFA originally had a provision for a $1000 stamp on handguns?
March 19th, 2008 at 9:47 pm
I think the best case to be made on suppressors is noise pollution. Work it legislatively, not through litigation.
March 19th, 2008 at 9:51 pm
The NFA was originally intended to be a law banning guns perceived to be used by 1920s era criminals but it quickly devolved into a patchwork mess.
From looking at the NFA, it becomes readily apparent that all of the pre-68 Title II categories other than MGs and silencers are all concealable weapons that could serve as a substitute for pistols. They originally intended to make banning pistols a centerpiece of the legislation but when they realized that an enormous portion of the public owned pistols, they removed the center and left everything else. The result was a silly and illogical law that, as far as I can tell, was almost completely ignored until the 1950s or 60s- remember that the NFA was passed during the great depression when no one could afford a 300 dollar thompson let alone the 200 dollar transfer tax. It wasn’t until WWII that guns actually became affordable to the average person, thanks to advancements in manufacturing (switching to sheet metal stamping in place of forging and milling receivers) and enormous supplies of military surplus weapons and the greater prosperity of the post-war years. And by this time, the law had been on the books for nearly 25 years already.
Basically machine gun ownership was killed in its crib in this country. By the time the economics of the situation favored machine gun ownership, the door had mostly been shut. I think we are lucky that we got as many machine guns into private hands as we did. I also think we are making headway in terms of getting people interested in it again. There are a ton of gun owners that don’t own MGs but want to. I think if we could (even briefly) get rid of 922(o) there would soon be millions of MG owners in this country. Every SOT2 would start cranking them out and registering them and Form 4s would start pouring in around the clock. Even non-SOTs could start filing Form1s if they have access to the equipment to make them. That would be a great option for bushmaster or FN employees.
I think 922(o) will eventually be struck down because:
a) it has no locus of interstate commerce, nor any findings to that effect. Basically give it the Lopez/Morrison treatment
b) It cripples the training and equipping of the militia by denying them access to the standard long arm of the US military and similar weapons.
c) it is an overbroad restriction on a fundamental right. It can easily be shown that the federal definition of “machine gun” is a broad class that encompasses weapons that have a legitimate self defense purpose (small arms like the AR-15 rifle and the various machine pistols) in addition to a variety of machine guns that are only capable of dealing out indiscriminate destruction and death, such as the MK19 grenade machine gun, the large caliber electric gatlin guns and the various large bore chainguns that fire explosive rounds. It would be more appropriate to narrowly tailor a ban on machine guns to only ban specific weapons that are only useful for indiscriminate killing and destroying of property, not to weapons that can be used to apply force precisely and selectively in lawful self defense.
March 19th, 2008 at 11:08 pm
Actually, what I meant was that the court case is far from over. So what happens next with Heller? Is there more time in front of the judges? Do they go and ponder it for a few months and then issue a decision? What?
And then if DC loses, what do they do next? New laws? Is the old law suddenly dead and anyone and their dog can rush out to buy a pistol? Do they have an emergency session to enact new legislation? And what if the new stuff sticks it to the 2A? How long till that one gets struck down? Can they keep issuing new unconstitutional laws over and over again? Will they ever be punished should they do that?
March 19th, 2008 at 11:17 pm
hopefully, they will be punished at the ballot box because the NRA et. al. will pour wheelbarrows full of cash into pre-election advertisements highlighting the shenanigans.
Of course, the current crop of legislators was elected and most have been since re elected, so who knows.
That’s why we pray for our country people!
March 20th, 2008 at 12:04 am
Read this hit piece on Slate and think about how it would have been exploited if it had been argued that MG might become less regulated.
March 20th, 2008 at 2:09 am
Jim W, You are still saying that you support the 2nd A, but…
Why do so few people actually seem to GET the 2nd Amendment?
Yep, it is in place to protect the tools that the “People” would need in order to take down a tyrannical government. However, it is in place to act as A) a deterrent and B) the canary in the mineshaft.
The FF obviously believed that to have peace one must prepare for war, thus if the people are armed and prepared for war against the government there is a smaller chance that the government will do unpleasant things to the people. Secondly, ANY tyrannical government will restrict arms as the first order of business. Therefore, when the govt. starts to infringe it is time to replace it.
What I find really sad is that there are multiple comments on this post that state flat out, “let me have the toys I want and you can restrict the rest.” Which is just the battle that we keep having with sport shooters, self defense shooters, hunters, etc… Leave MY guns alone and you can ban those evil nasty _______. It doesn’t work that way …
Never mind, I’m just a lone voice screaming in the wilderness.
If it can be regulated in any manner then it is not a right as regulation is de facto prior constraint, and yes you CAN yell fire in a crowded theater, thoug you will be punished for it just like you would be punished for shooting, stabbing, beating, etc… someone for a reason other than self defense.
March 20th, 2008 at 6:18 am
I’m not trying to completely legalize machine guns, just show that one of the current laws, the one most responsible for the scarcity of machine guns overall, is unconstitutional. Repealing the NFA is something that will only be possible VERY far down the line. Repealing 922(o) and leaving the tax regs on machine guns preserves 99 percent of the enforcement capabilities of the ATF in regards to criminal use of machine guns, but allows the civilian market to flourish again. We can come back to the issue politically in another 10 or 15 years if that change resulted in widespread popularity of machine guns.
March 20th, 2008 at 6:32 am
I don’t think we’re ever going to be getting rid of the background check requirement for buying guns because it is not particularly burdensome and it does serve the compelling interest of keeping felons from acquiring guns legally. However, I think we could prompt reexamination of some of the stupider prohibited classes and we could argue that lifetime bans (ie lack of a rights restoration process at the federal level) is unconstitutional. I know that the ACLU would go apeshit if Florida defunded the program to restore the voting and gun rights of felons, so why should the fedgov play by different rules?
I also think that the 200 dollar NFA transfer tax is facially unconstitutional, just like a 200 dollar tax on abortion, voting or certain forms of political speech would be obviously unconstitutional. The only purpose of the tax was to make ownership of the taxed weapons impossible. If they can’t ban them, they can’t tax them out of existence.
I think eventually title 2 arms will eventually be treated like title 1 arms plus registration.