Ninth circuit court homemade Machine gun ruling


PDA






jke456
September 20, 2004, 12:54 AM
howdy all

anyone have a good link to the Ninth Circuit ruling on the making your own machine gun.....



thanks

jon

If you enjoyed reading about "Ninth circuit court homemade Machine gun ruling" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!
deej
September 20, 2004, 01:41 AM
http://www.keepandbeararms.com/newsarchives/XcNewsPlus.asp?cmd=view&articleid=2854

http://caselaw.lp.findlaw.com/data2/circs/9th/0210318p.pdf

Apropos of nothing, this was the first result produced by typing "9th circuit court homemade machine gun" into google.

jke456
September 20, 2004, 01:51 AM
Apropos of nothing, this was the first result produced by typing "9th circuit court homemade machine gun" into google.>>


sorry to ask instead of searching but my connection speed is 14000kbs which really sux searching for info

much easier to come ask you all

if this is a nono or a problem I will stop doing it

jon

Bubbles
September 20, 2004, 10:10 AM
Remember that this hasn't played out completely yet. The Feds have until October 9th to decide whether or not to appeal the decision to the USSC.

Zrex
September 20, 2004, 10:20 AM
Bubbles:

Do you think the Feds will appeal, or do you think they are too scared of loosing to try?

Foreign Devil
September 20, 2004, 10:32 AM
Given the Supreme Court's refusal to take 2nd amendment cases(including the case of a home made machine gun a couple years ago) I doubt they would take this one.

SB88LX
September 20, 2004, 05:04 PM
So, if 10-9-04 comes to pass with no appeal, we can start modifying away towards full auto?:D

Foreign Devil
September 20, 2004, 05:20 PM
NFA rules would still apply.

The ruling only affects the 9th district - out west. Some states there prohibit class III - Washington for one, I believe.

SB88LX
September 20, 2004, 06:22 PM
I see, well I was happy for a bit.

PMDW
September 20, 2004, 10:09 PM
Idaho allows MGs, though.

KarlG
September 20, 2004, 11:27 PM
Preface: I am not a legal type, but I can read. Do Iunderstand this ruling correctly?

I read the Opinion on Findlaw to say that one can make their own machine gun(s) and NOT have the Class III rule apply. This is because because home made machine guns are neither interstate nor commerce, which is the Constitutional jurisdiction under which the Gun Control Act of 1968 was written.

SB88LX, I suggest that you read the entire Opinion (if you have not). It discusses making your own machine gun, not just assembling parts or modifying an existing gun. It even has a couple of quotes that were emphasized about "unique design".

Bubbles, Where did the October 9, 2004 date for appeal come from?

AZRickD
September 21, 2004, 03:52 AM
Your state law, if MGs are allowed, would might still require essentially opting into the fed.gov NFA system.

So, homemade MGs or suppressors might be fine, by the fed.gov, but your state.gov might have issues, even if conventional Class III devices are otherwise legal in your state.

Rick

LAK
September 21, 2004, 06:57 AM
OK; so some states have prohibitions on MGs. But none have prohibitions on handguns, nor on semi-auto, pump, bolt or other rifles and shotguns.

If this ruling is taken on principle, it applies to all types of firearms - not just MGs.

Bubbles
September 21, 2004, 07:32 AM
Bubbles, Where did the October 9, 2004 date for appeal come from?

http://www.supremecourtus.gov/docket/04a176.htm

ok so I can't count...

If the USSC takes this case I'm betting that they don't touch the Second Amendment. They could overturn NFA '34 based on the interstate commerce argument, and leave RKBA out of it.

Foreign Devil
September 21, 2004, 09:05 AM
Even if they never mentioned the 2nd amendment but ruled that this use of the ICC is unconstitutional, the effects would be huge.

jpIII
September 21, 2004, 09:37 AM
Even if they never mentioned the 2nd amendment but ruled that this use of the ICC is unconstitutional, the effects would be huge.

Based on a brief overview, I would agree with that. The implications of the NFA34 being overturned are enormous!!!:what:

Would this imply that Mg's are legal to make? Or just legal to make in your own state, without going across state lines?

Arn't grease guns pretty easy to make from stratch?:cool:

Jim K
September 21, 2004, 03:00 PM
The principle basis of the NFA is not interstate commerce, but the taxing power of the federal government.

The whole scheme originated in the warped mind of FDR's attorney general, Homer Stille Cummings, famous for the quote, "Show me a man who doesn't want his gun registered and I will show you a man who shouldn't have a gun."

Cummings, a real fanatic who wanted FDR to be a dictator so he could be the "power behind" him, also cooked up the idea of "packing" the Supreme Court. He has been described both as "a brilliant man" and "a lunatic", characteristics not necessarily mutually exclusive.

When he was told that a total ban on guns was unconstitutional as being outside the federal authority (being a state matter), Cummings proposed to use the federal tax power to achieve the same thing. His bill would have required registration of all guns and ammunition, and imposed a prohibitive tax on gun and ammunition transfer. Machineguns would be taxed at $10,000 (multiply by 35 for current dollars), pistols at $5000, rifles at $1000, and shotguns at $200. Centerfire ammo would be taxed at $10 per round, and .22 ammunition and shotgun shells at $5 per round, the equvalent of $175 today.

The taxing scheme would have been, and was intended to be, prohibitive and the equivalent of a total ban on firearms in the nation. What was passed by Congress was essentially today's NFA, with registration and tax on MGs and certain other weapons and devices. For those who believe the Democratic Party's anti-gun stance is recent, there is no doubt that if Congress had passed the bill as introduced, FDR would have signed it with alacrity. FDR, please note, posed as a target shooter and "sportsman" even though he could not walk, a fact that was covered up, with the connivance of the press, for his whole period as president. A famous ad shows him in the prone position on a rifle range, with a Model 1903 Springfield; one can only assume he was physically placed in that pose by others.

So the entire structure of federal gun control laws as we have it today is really a misuse of taxation, even though control of interstate commerce provides a secondary basis.

Jim

armoredman
September 21, 2004, 03:06 PM
I knida missed this one slide-in sideways - did you say if an appeal is not heard by the Supremes, that a ruling by the 9th Jerkit Court in SAN FRANCISCO would state homemade machinguns are LEGAL? The most liberal court in the country? Hmm....Sten kits still around? AZ is under then 9th, and Class 3 is legal here...but this sidesteps the whole NFA34? How do you prove the weapon IS homemade? Where is the legal backing for that? Anyone gotten an attorney's professional opinion yet? Believe me, I remember the cheap Sten kits that even came woth the template for the tube reciever, and that would be very cool!!!!!! Wonder if any are still floating around?

FNFiveSeven
September 21, 2004, 05:36 PM
So let's say you live in Idaho. This month, you were allowed to attach a flash suppressor and telescoping stock to your post ban AR. Next month, you'll be able to make your own auto sear? Nice. Seems to me you could even manufacture them for sale within the state so long as you never crossed state lines...

Justin
September 21, 2004, 05:37 PM
Hey Jim, I'd be real interested to read any info about Homer from the time period. Seems to me info like that should be spread far and wide.

PMDW
September 21, 2004, 05:42 PM
Hmm. May need to move myself back to Idaho. Sure beats Ohio.

Deavis
September 21, 2004, 07:44 PM
Your state law, if MGs are allowed, would might still require essentially opting into the fed.gov NFA system.

It may be legal from a federal standpoint but it is the state laws that are going to get you. If the law says an MG is okay as long as it is approved by the ATF, then what are you going to do? I'm curious to see if the ATF accepts the forms when they are sent in (which you do before construction)

Selfdfenz
September 21, 2004, 11:01 PM
Amazing!!!!

Would that it all turn out to be true and in our favor!
S-

publius
September 22, 2004, 07:48 AM
So the entire structure of federal gun control laws as we have it today is really a misuse of taxation, even though control of interstate commerce provides a secondary basis.

Is that the way it is, or is the tax scheme the historical basis for federal authority, while the commerce clause provides the modern basis? The very top line in Kozinski's opinion states that it's about the commerce clause. Why only argue the secondary basis, ignoring the primary?

sawhitt
September 22, 2004, 10:42 AM
I may have to move back to Arizona!

Foreign Devil
September 22, 2004, 10:50 AM
Am I correct that while the 1934 NFA was based on the power of taxation, the 1968 GCA and the 1986 FOPA amendment were based on the interstate commerce power?

FNFiveSeven
September 22, 2004, 12:04 PM
The state laws don't say "if approved by the ATF", they say that the machine gun is legal to possess so long as it's possession is in compliance with all federal laws. Since the federal laws don't apply to homemade machine guns, homemade machine guns are defaulted into "compliance." Federal law will effectively be silent on the issue of homemade machine guns in the 9th district.

meche
September 22, 2004, 01:06 PM
appeals court jurisdictions:
http://www.findlaw.com/10fedgov/judicial/appeals_courts.html
-----------------------------------------------------------------------------------
I just read through the court's paper on this case, and I was wondering;
does this ruling also apply to other homemade NFA items? (suppressors, sbr's, sbs's, dd's, aow's?)
:confused:

It looks like it does to me, even though only machine guns are specifically mentioned, a ruling on the NFA based on interstate commerce has to hit everything, not just mg's.

I hear that basic suppressors are pretty simple to make...

:D


So fed law says that unregistered, home made NFA's are legal, right?


I have looked around for state law on some of this, mainly Arizona/Nevada because I've heard that they have better firearms laws than some of the other 9th circuit states.


Arizona:
http://www.atf.gov/firearms/statelaws/22ndedition/arizona.pdf

NFA items are "prohibited weapons", unless registered with the fed's.
It is illegal to posses/make/transfer a prohibited weapon, unless you are a leo, mil, or allowed to possess the weapon by state or federal law.

That 'or' federal law in there looks important. Because making/owning homemade mg's (and other NFA's?) is permitted by federal law, then it is legal with the state as well.


quotes:
-------------------------------------------------------------
7. "Prohibited weapon" means,...
...
(b) Device that is designed, made or adapted
to muffle the report of a firearm;
(c) Firearm that is capable of shooting more
than one shot automatically, without manual
reloading, by a single function of the trigger; or
(d) Rifle with a barrel length of less than
sixteen inches, or shotgun with a barrel length of
less than eighteen inches, or any firearm that is
made from a rifle or shotgun and that, as
modified, has an overall length of less than
twenty-six inches;
...
B. The items as set forth in subsection A,
paragraph 6, subdivisions (a), (b), (c) and (d) do
not include any firearms or devices that are
registered in the national firearms registry and
transfer records of the United States treasury
department or any firearm that has been classified
as a curio or relic by the United States
treasury department.
...

13-3102. Misconduct involving weapons;
defenses; classification; definitions.
A. A person commits misconduct involving
weapons by knowingly:
...
3. Manufacturing, possessing, transporting,
selling or transferring a prohibited weapon;
...

---------
C. Subsection A, paragraphs 1, 2, 3, 7, 10,
11, 12 and 13 of this section shall not apply to:
...
4. A person specifically licensed, authorized
or permitted pursuant to a statute of this state or
of the United States.
---------
...

--------------------------------------------------------------

Nevada:
http://www.atf.gov/firearms/statelaws/22ndedition/nevada.pdf

Reading through the above pdf. Looks similar to Arizona, except that sbr's and sbs's must be registered with the fed's.
mg's and suppressors are legal if it is legal with the fed's.


--------------------------------------------------------------

IANAL, a lot of you have done more research into this than I have.
I wouldn't be surprised if I am wrong on this stuff.

---------------------------------------------------------------
I wrote this before seeing the above post on state legality.
I just continued to put my thoughts and some links to other laws out here.

publius
September 23, 2004, 08:03 AM
Am I correct that while the 1934 NFA was based on the power of taxation, the 1968 GCA and the 1986 FOPA amendment were based on the interstate commerce power?



This was my understanding as well. The explanation offered is that the Constitution grew between the 30s and the 60s.

From reading The Federalist Papers, my impression is that the interstate commerce clause was put there to establish an American free trade zone, not an American federal regulatory district.

publius
September 23, 2004, 08:19 AM
Am I correct that while the 1934 NFA was based on the power of taxation, the 1968 GCA and the 1986 FOPA amendment were based on the interstate commerce power?



That was my understanding as well. Back in the 30s, the commerce clause was there to establish an American free trade area, but the power to tax could be stretched into the power to regulate.

By the 60s, the commerce clause had grown to the point where it established an American federal regulatory district. The key decision along the way was Wickard v. Filmore or something like that.

Turkish
September 24, 2004, 01:45 PM
Ok, couple things I need clarification on. Would this make it legal to convert an existing weapon to full auto, or only let you manufacture you're own new firearm? And if you the latter is true, would that mean it is legal to make a DIAS and put it in an AR-15 since the ATF considers it a machine gun even if it isn't installed? Or would the DIAS just count as a regular part like the M16 fire control trigger parts.

Ultima-Ratio
September 24, 2004, 02:39 PM
For more confusion do a search on U.S. vs Rock Island Armory, the govt LOST since RIA used the tax issue mentioned. That is that the BATF is a taxing agency!

publius
September 24, 2004, 03:16 PM
http://www.constitution.org/2ll/court/fed/us_v_rock_island.htm

Scottmkiv
September 24, 2004, 05:44 PM
So what was the end result of the Rock Island Armory case? It seems like it says the NFA is dead with regards to machine guns. How come that isn't the case?

publius
September 24, 2004, 10:06 PM
Well, the 9th Circuit says a homegrown machine gun for personal use isn't interstate commerce. Wickard still says pretty much anything is interstate commerce, except maybe walking too near to a school with a gun. Rock Island says that if you're going to tax something, you have to actually tax it, not prohibit it or make up a whole bunch of extra rules which have nothing to do with the collection of the tax.

I say we kill all the lawyers, using machine guns.

Deavis
September 24, 2004, 10:39 PM
I say we kill all the lawyers, using machine guns.

WHOA! THE HIGH ROAD... Lawyers are like cops, everyone hates them until they need them There are good and bad, convert the good ones to our cause and forget about the rest! :)

Wildalaska
September 25, 2004, 12:48 AM
I say we kill all the lawyers, using machine guns.

Im a lawyer...want my address? Ya got the guts? :fire:

WildcomeandgetmeAlaska

publius
September 25, 2004, 06:25 AM
Relax, folks. Just a very old joke.

Besides, I don't have to go way up north where bananas don't grow to kill lawyers. I could start with my parents and my oldest brother and my oldest friend and the close friend who performed my wedding and...well, you get the idea.

Foreign Devil
September 25, 2004, 09:46 AM
"Kill all the lawyers" was quite obviously a joke.

Rock Island says that if you're going to tax something, you have to actually tax it, not prohibit it or make up a whole bunch of extra rules which have nothing to do with the collection of the tax.

If that interpretation of the case is correct, I would think that it means the ATF must now accept new machine gun registrations.

tulsamal
September 25, 2004, 10:52 AM
"Kill all the lawyers" was quite obviously a joke.

Not to mention a Shakespeare quote!

Gregg

armoredman
September 25, 2004, 11:10 AM
In this case, I think a lawyer might be a good thing, so we can have actual legal opinion, to back us when we run into Johnny Law who never heard of this! Anyone here a practicing attorney, who can render an official opinion? At least for your state?
Found Sten kits for $40 at Interordnance, minus magazines.....:cool:

BryanP
September 25, 2004, 11:50 AM
Hey Jim, I'd be real interested to read any info about Homer from the time period. Seems to me info like that should be spread far and wide.

What he said. References? Book titles / isbn? This sounds like an interesting read.

M1911Owner
September 25, 2004, 12:27 PM
Foreign Devil, I think you need to go back to the link and read the case over again. It said that the 1986 act, and the government's subsequent refusal to accept payment of the $200 transfer tax, have in fact repealed the portion of the NFA '34 requiring registration and payment of the tax. So there is no need to register them, because the law is repealed.

However, I note that the Court dismissed counts 1 (a) and (b), and counts 2 and 3. That suggests that there was at least a count 1 (c) remaining, and possibly counts 3, 4,... I suspect that they were still nailed for violations of the 1986 gun control act.

What's the sum total effect of all of this? Well, I'm not a lawyer, so I don't know. But, as a non-legal opinion, it appears that the RIA case voided the machine gun registration and transfer tax provisions of the NFA '34, and the Ninth Circuit case further ruled that there can be situations involving homemade machine guns that are outside the reach of the Commerce Clause theory on which the 1986 act is based.

The Ninth Circuit case involved a machine gun that, as I understand it, was almost completely machined from scratch, and followed a unique design of its maker. The question of where the line is at which the Court would hold that the Commerce Clause theory starts to take effect is unanswered. If one were curious about where exactly that line is, he could, say, make his own auto sear, and see if the Court decides to send him to prison. I don't recommend that course of action.

I also note that the RIA case wasn't in the Ninth Circuit, so these rulings don't necessarily overlap--if one were to build a machine gun within the Ninth Circuit, you still might be in trouble under the NFA '34.

publius
September 25, 2004, 07:32 PM
The question of where the line is at which the Court would hold that the Commerce Clause theory starts to take effect is unanswered.

Someplace between growing your own wheat and walking near a school with a gun, I'd guess.

Dead
September 25, 2004, 08:06 PM
If that is what the court wrote, then NFA is dead! Is it not?

"In sum, since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts 1(a) and (b), 2, and 3 of the superseding indictment are

DISMISSED."

rageman
September 25, 2004, 08:58 PM
In sum, since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts 1(a) and (b), 2, and 3 of the superseding indictment are DISMISSED.
As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts 1(a) and (b), 2, and 3 of the superseding indictment are DISMISSED.
As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act,
applied to machineguns made and possessed after May 19, 1986
after May 19, 1986
Hopefully. God, I would love to go into business selling new mfg. machineguns. :)

Dead
September 25, 2004, 09:01 PM
that is what is says, now if I can just get my local CLEO to sign off on the paper work :)

That shouldnt be a problem as I live in NJ. :rolleyes:

PMDW
September 25, 2004, 09:32 PM
Ok, someone help me out here. To make it simple for people like me who can't understand what's going on...

If ______ happens, we'll be able to ______?

Chances of _______ happening, or has it already happened?

Foreign Devil
September 25, 2004, 11:52 PM
As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional.

Wait ... so according to the court, the '86 "ban" actually removed the constitutuional basis for the portion of the National Firearms Act dealing with machine guns?

Coronach
September 25, 2004, 11:56 PM
If ______ happens, we'll be able to ______?If hell freezing over happens, we'll be able to make our own machine guns.

Coropessimistnach :D

PMDW
September 26, 2004, 12:06 AM
Wait ... so according to the court, the '86 "ban" actually removed the constitutuional basis for the portion of the National Firearms Act dealing with machine guns?

From what I understand, they're saying that you can't tell people that you can have something if they pay a tax, and then tell them they're not allowed to pay the tax. Which is what the 86 ban does.

publius
September 26, 2004, 03:18 AM
For those who may not have noticed, Rock Island was a 1991 case, so whatever it is we're allowed to do under that ruling, we've been allowed to do for 13 years now.

M1911Owner
September 26, 2004, 03:23 AM
Foreign Devil,

Yes, that's what the Court said it does. However...

The 1986 law enacted a total ban on new machine guns. So, in theory, it doesn't make any difference that the 1986 law repeals that part of the NFA '34.

Except...

The Ninth Circuit has now carved out an exception to the 1986 law based on the idea that there are limits to just how far the Commerce Clause can reach. In other words, there was no Commerce Clause nexus with the guy's homemade machine gun.

And the result of all this is...

The answer to the question, "Is is legal for me to <fill in the blank with your pet idea to come up with a machine gun>," is, "If you do that, and the gumint finds out about it, you will very likely be tried for criminal violations of both laws. If you're really, really lucky, and have really good attornies, and spend a large fortune defending yourself, you might be able to stay out of prison. But there is also a really high likelihood that the Court will find some way to enforce the intent of those laws, and throw your a** in prison for a very long time."

M1911Owner
September 26, 2004, 03:35 AM
publius,

I don't think that we're allowed to do anything under the RIA case. I think what it did was, when they throw the book at you for making a machine gun, NFA '34 isn't part of that book. But they can (and will) still throw the rest of the book at you.

In other words, I think the government was throwing the book at the defendants in that case, and RIA's lawyers managed to get the counts relating to the NFA '34 dropped. The other counts continued forward.

But, I could be completely wrong about that--that's just my take from what I read at the link, above. Somebody with more knowledge of the details of the rest of that case may want to chime in here.

ctdonath
September 26, 2004, 12:15 PM
The nifty part is that all court cases that upheld constitutionality of NFA noted that the only reason NFA was constitutional was that it was a tax-collection measure, and emphatically NOT a gun-prohibition measure ... but if if NFA was only constitutional because it was a tax collection measure, then 922(o) is null and void precisely because it is a flat-out ban and not a tax-collection measure.

So, two good things come of this:

1. NFA '34 - at least the machinegun registration & taxing measure - is null-and-void ... and has been for 13 years. Those wanting to transfer pre-'86 MGs can do so freely. Those who paid the $200 MG transfer tax since '86 could sue the feds for a refund, having done so under unlawful duress.

2. 922(o) can easily be overturned by showing high-court cases stating that the only reason NFA was legal was that it was not a ban, which 922(o) is.

Get busy, legal types!

Foreign Devil
September 26, 2004, 01:33 PM
Are machine guns regulated under other federal laws, like the 68 GCA?

Dead
September 26, 2004, 01:50 PM
M1911Owner,

I agree that there are VERY definite limits on the comerce clause. I mean it 18. 992 it states that if a firearm, part of, or RAW MATERIAL was EVERY in interstate, commerce, or AFFFECTED it. I mean that would seem to go FAR beyond what the commerce clause could encompass, I mean onces something leaves "interstate, or internation commerce" how in God's name is that item still covered under the commerce clause, it is NO long involved in any form of commerce

Dead
September 26, 2004, 01:52 PM
P.S. there is also something else in their that states that NO tax or levy may be placed on exports from a state. I beleive that there are taxes (might not be called that) placed on some items such as guns that moved interstate. (excise tax maybe?) :fire:

Justin
September 26, 2004, 01:55 PM
No. GCA '68 primarily dealt with cutting off mail-order guns and laying the groundwork for the FFL/yellow form stuff.

It also instituted some other heinous stuff such as ammo registration that was later repealed by the '86 FOPA (which was the same law wherein they instituted the MG ban.)

Foreign Devil
September 26, 2004, 04:14 PM
So, if according to this court's ruling the constitutionality of the NFA '34 was negated by the amendment in the '86 FOPA, then within the jusrisdiction of that court it ought to be legal to build a machine gun.

Under federal law anyway. I think state law bans full autos in Illinois.

publius
September 26, 2004, 04:29 PM
publius,

I don't think that we're allowed to do anything under the RIA case. I think what it did was, when they throw the book at you for making a machine gun, NFA '34 isn't part of that book. But they can (and will) still throw the rest of the book at you.

OK, and if I lived under 9th Circuit jurisdiction, no federal law under Commerce Clause authority can stop me from making a machine gun, but under RIA (different circuit, but maybe applicable?) no federal law under taxing authority can stop me from making a machine gun. Somebody has to stop me from making a machine gun! When I get confused and frustrated by legal issues, I just want to, well, you know... ;)

rageman
September 26, 2004, 09:19 PM
Guys, maybe I cant wrap my head around this, but it seems to me that the RIA case would only repeal the '86 machine gun ban, and not the entire NFA. :confused:
Or maybe its just that MGs after '86 dont fall under the jurisdiction of the NFA? (But only ones made after 1986.)

Is there a lawyer here who can put there opinion of this ruling in plain spoken american, preferably in giant, red, bold text? :p

Also, if someone in one of the other circuits built a home-made machine gun and got taken to court over it, could they reference the 9th Circuit Court's decision as a precedent? How would that affect their chances of a favorable outcome for new machineguns?

Foreign Devil
September 27, 2004, 05:24 PM
rageman wrote:

Guys, maybe I cant wrap my head around this, but it seems to me that the RIA case would only repeal the '86 machine gun ban, and not the entire NFA.

see below

The enactment of 18 U.S.C. § 922(o) in 1986 removed the constitutional legitimacy of registration as an aid to tax collection. This is because the government interprets and enforces § 922(o) to disallow registration, and refuses to collect the tax. Farmer v. Higgins, 907 F.2d 1041, 1042-44 (11th Cir.1990), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991). Thus, § 922(o) undercut the constitutional basis of registration which had been the rule since Sonzinsky.

The ban enacted in 1986, and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis. It is the duty of the judiciary to declare such laws unconstitutional. Marbury v. Madison, 1 Cranch. 137, 176-77, 2 L.Ed. 60 (1803).

As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional.

publius
September 27, 2004, 08:36 PM
I'm no lawyer, but maybe I can boil it down, rageman.

They'll use taxing authority or commerce regulating authority or just the brazen assertion of authority to try to keep a lead hose out of your hands.

Hope that was helpful. ;)

RevDisk
September 29, 2004, 03:43 PM
Why do I have the feeling that hell will freeze over before the Congress and the BATFE lets NFA get tossed out?

ctdonath
September 29, 2004, 08:19 PM
That's why we can't rely on Congress to restore RKBA. There's no way anywhere close to a majority that would vote to legalize machineguns.

Courts are it. SCOTUS overturns 922(o), GCA '68, NFA '34, and incorporates 2nd Amendment to the states - or there really isn't any other route.

jke456
September 29, 2004, 09:48 PM
Under federal law anyway. I think state law bans full autos in Illinois.


now I'm no scholar (probaly even spelled it wrong)

but I have a question

my understanding

the 14 admendment basically forbids states from making laws that go against the Constitution

why does it seem to me that the 14A does not apply to the 2A?

or am I totally off base here?

oh btw
little ol' me came on here awhile back to get a link on this machine gun ruling and the thread is still going
kinda blows my mind. I wasn't trying to generate discussion on it just wanted a simple link:D


jon

publius
September 30, 2004, 08:40 AM
jon,

Your thread is interesting.

The answer to your question involves something called incorporation. What it amounts to is, some amendments get some respect, but the 2nd is the Rodney Dangerfield of amendments, and gets none. If I were a lawyer, or remembered the Denver open carry case from a couple years back, I could explain it better. Maybe if I made it bold and red? ;)

ctdonath
September 30, 2004, 09:45 PM
The problem with incorporating the 2nd to the states via the 14th is that SCOTUS has not formally acknowledged the 2nd as an actual right; they have never stated "Joe Gunowner has the right to X under the 2nd Amendment, and his state of residence must acknowledge and respect that right under the 14th Amendment."

The last head-on RKBA case before SCOTUS was Miller, which fizzled because the defendant never showed up. Since then, SCOTUS has either ruled an RKBA case based on other issues (taxation, search/seizure, etc.) or rejected cases without comment.

Justice Thomas has indicated SCOTUS would take a pure RKBA case if someone could get a case there without it being colored by other issues.

publius
September 30, 2004, 10:00 PM
translation: Rodney Dangerfield will be invited to the Queen's Ball when he seems appropriate.

jke456
September 30, 2004, 11:33 PM
hmmmm

ok then

what kind of case would be nessecary to get to scotus?

me an Illinoisian caught with a otherwise legal machine gun (otherwise than state law} would that do it?

not that its gonna happen but how could we get a case to scotus for them to either reject or take up and decide rkba?

Im pretty sure if they follow the constitution then 20000+ laws would be null and void

but would they have the guts to do that?

and who would have the guts to risk their freedom to find out?

till it happens some of us in states like mine are pretty screwed in our rkba

why cant scotus take it up in another way such as the nra taking it before them.....ie why does someone have to risk all to get a definite ruling on what the constitution says and means??

thinking about it just @i##es me off

I would really like ta own a fully auto but will never get the chance here

Iknow I know ....... move

but I've set my roots here and have worked 20+ yrs to build up what I have and dont really wish to start from scratch

Illinois sux on their gun laws....but otherwise I love the area I'm in
great people, great hunting, and pretty descent weather


:banghead: :banghead: :banghead:


jon

publius
October 1, 2004, 06:50 AM
why cant scotus take it up in another way such as the nra taking it before them.....ie why does someone have to risk all to get a definite ruling on what the constitution says and means??

That one is called "standing" and it's a close relative of "incorporation" in a way, though it does make more sense. Suppose that any interest group could mount a legal challenge to any law they didn't like, possibly tying it up in court for years. That would probably happen quite a bit, as you can imagine. Now suppose that in the midst of all that, you have an actual case, in which actual damages were suffered, but you can't get to court because every court is busy arguing abstractions for interest groups. They might also get busy taking bribes from interest groups, you never know. Our system keeps all that sort of activity in the legislature. That's where abstractions are argued and votes are bought, uh, I mean decided.

The problem with Rodney's standing is that a right must be violated in order to get standing to go to court. But how violated? I can't say on THR, but if I could, it would be an unpleasant image. Basically, if you've got a right that gets no respect, that nobody really wants to admit can be violated because it gets so little respect, it's really hard to point to a violation which is deemed satisfactory to attain standing.

I say to heck with standing. Let's sit on all the lawyers. ;)

Brett Bellmore
October 1, 2004, 07:27 AM
The other problem with bringing challenges, is that you've essentially got to have the cooperation of the Justice Department to do it. All they really have to do, after all, if the Supreme court looks like they might take a challenge, is drop the charges. And, WHAM!, the case instantly becomes moot, and the Supreme court drops it like a hot potato.

I don't much like the ACLU, but that's why the charge that they're always defending scumbags is so off-base. You want to challenge a bad law, you're always stuck defending scumbags, because the "nice" defendents get let off the hook somehow, to deny opponents of the law good challenge cases.

Another problem, of course, is that they've got so many laws these days, that if they want to nail you on something, they WILL be able to. So the minister's son who's a Scout troop leader manufactures a machine gun in his garage, and they'll put him away for not paying sales tax when he buys things online...

publius
October 3, 2004, 08:17 AM
You want to challenge a bad law, you're always stuck defending scumbags, because the "nice" defendents get let off the hook somehow

Which would explain why Bush v. Gore made it to the Supreme Court but US v. Rodney Burpgunner will not...

If you enjoyed reading about "Ninth circuit court homemade Machine gun ruling" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!