A whack at knocking 922(o)


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ctdonath
January 5, 2006, 12:20 AM
Here's an in-progress attempt at summarizing a suit against 922(o) (the post-'86 machinegun ban)
Blanks are "I know it exists, just don't have detail handy".
# references may not line up perfectly due to partial auto-numbering.
Very much a work in progress.

922(o) challenge: a lot of people filling inexpensive suits (2nd Amendment requires BATFE authorize M4 transfers under 922(o)(A)), inducing conflicting rulings, and making SCOTUS address the issue under "equal protection".

(o)(1) Except as provided in paragraph (2), it shall be unlawful
for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to -
(A) a transfer to or by, or possession by or under the
authority of, the United States or any department or agency
thereof or a State, or a department, agency, or political
subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun
that was lawfully possessed before the date this subsection takes
effect.


Plaintiff: [name] [address]

1.WHEREAS plaintiff is age 38, male, able-bodied, and a citizen of the United States of America (resident of Georgia),
2.WHEREAS plaintiff seeks to lawfully take possession of an M4 machine gun, serial number __________,
3.WHEREAS lawfully authorized dealer __________ is willing to sell plaintiff said M4 machine gun indicated in #2, has received payment in full therefor, and is prepared to submit transfer paperwork in accordance with US Code _________,
4.WHEREAS US Code Title 18 Section 922(o)(1) prohibits transfer of said M4 machine gun indicated in #2,
5.WHEREAS the Bureau of Alcohol, Tobacco, Firearms and Explosives (hereafter “ATF”) refuses to approve transfers to citizens of machine guns not complying with US Code Title 18 Section 922(o)(2)(B), and made this refusal common knowledge,
6.WHEREAS denial of requests for transfer of firearms regulated by US Code __________ (hereafter “NFA law”) constitutes an ongoing legal disability due to other transfers questioning the transferee of past denials of transfers, as demonstrated by federal forms ________, and thus constitutes a chilling effect upon submission of transfer request forms which transferee believes will be denied,
7.WHEREAS due to the chilling effect noted in #6, plaintiff cannot be reasonably expected to submit transfer forms until ATF gives general assurance that applications to transfer post-1986 machine guns will not be summarily denied,
8.WHEREAS US Code Title 18 Section 922(o)(2)(A) allows transfer of machine guns under the authority of a department of the United States,
9.WHEREAS the ATF is a department of the United States authorized to approve lawful transfers of machine guns,
10.WHEREAS the 2nd Amendment to the Constitution assures “the right of the people to keep and bear arms shall not be infringed”,
11.WHEREAS US vs. Miller states the 2nd Amendment to the Constitution applies to “[arms of] the kind in common use at the time” (“The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”),
12.WHEREAS the M4 machine gun is commonly known to be a common weapon in the US armed services, with _________ M4s purchased by the US armed services in 2005 alone,
13.WHEREAS the 2nd Amendment to the Constitution specifies its own purpose by stating “a well-regulated militia being necessary to the security of a free state”,
14.WHEREAS the term “well-regulated” at the time of the writing of the Constitution indicated “well equipped” and “well trained” (not necessarily “heavily regulated by government” as is modern common meaning),
15.WHEREAS plaintiff is a member of the US militia per US Code _________, as matching description of plaintiff in #1,
16.WHEREAS US Code _________, as passed lawfully by Congress, compels plaintiff into the militia of the United States,
17.WHEREAS plaintiff seeks to do his part to arm and train himself appropriately as a member of the militia of the United states, and do so at his own cost, time, and burden,
18.WHEREAS plaintiff thus seeks to acquire an M4 machine gun, in consistency with #15, #12, #11, #8, #13, #10, and __________,
19.WHEREAS Congress presumably passes laws in accordance with the Constitution, including the 2nd Amendment thereto,
20.WHEREAS it is reasonable to assume that US Code Title 18 Section 922(o) does not inherently conflict with the 2nd Amendment to the Constitution,
21.WHEREAS it is reasonable to assume that the ATF should not act in a manner inconsistent with US Code Title 18 Section 922(o)(2)(A), the 2nd Amendment of the Constitution, and US Code [militia definition],
22.WHEREAS it is reasonable to conclude refusal by the ATF to approve the lawful transfer of an M4 machine gun to a member of the militia of the United States violates the 2nd Amendment to the Constitution, as doing so prevents said militia member from obtaining common military arms to “keep and bear”,
23.WHEREAS lawfully purchasing arms from lawful manufacturers is inherently vital to the right to “keep and bear arms”, as it is unreasonable to expect militia members to build from scratch their own arms suitable for common military use,
24.WHEREAS violation of the 2nd Amendment to the Constitution by an agency of the United States harms the security of the nation (to wit “a free state”) by denying members of the militia of the United States the right to lawfully obtain, by purchase and transfer with appropriate paperwork and tax payments, common military arms such as the M4 machine gun,
25.PLAINTIFF PLEADS the court find the ATF in violation of the Constitution and laws properly passed by Congress, due to the ATF's categorical refusal to authorize transfer of an M4 machine gun to plaintiff in accordance with [NFA law], US Code Title 18 Section 922(o)(2)(A), and the 2nd Amendment to the Constitution,
26.PLAINTIFF PLEADS the court direct the ATF to approve plaintiff's application to receive transfer of M4 machine gun serial number _________, upon submission of appropriate paperwork and payment of tax, and with ATF acting as the authorizing agency specified in US Code Title 18 Section 922(o)(2)(A),
27.WHEREAS if ATF's refusal to register machine guns manufactured after 1986 is found in compliance with US Code, then US Code Title 18 Section 922(o)(1) itself prohibits lawful members of the militia of the United States, as declared by act of Congress, from owning current arms suitable for militia use,
28.WHEREAS laws contravening a militia member's 2nd Amendment right keep and bear arms, particularly those common in modern military use per US vs. Miller, and that the right to keep and bear arms presumes the right to lawfully obtain said arms from a manufacturer thereof, must then be contrary to the Constitution and are thus invalid per _[unconstitutional laws are invalid]_,
29. PLAINTIFF PLEADS the court overturn US Code Title 18 Section 922(o) as irretrievably contrary to the 2nd Amendment to the Constitution,
30.WHEREAS _[NFA law]_ was instituted by Congress as a taxation mechanism, taxing (among other types of firearms) machine guns,
31.WHEREAS __________ found _[NFA law]_ Constitutional solely because said law operates as revenue-gathering taxation, and specifically not Constitutional as a prohibition,
32.WHEREAS US Code Title 18 Section 922(o) bans ownership of machine guns manufactured after 1986, eliminating the taxation justification of a significant portion of the _[NFA law]_,
33.WHEREAS lacking the taxation justification for the post-1986-manufactured applicability of the [NFA law], [NFA law] exists only as a prohibition which, as noted in _________ (see #31), is not a Constitutional justification and thus is unconstitutional,
34.PLAINTIFF PLEADS that the court overturn [NFA law], at least as relates to taxation of machine guns manufactured after 1986, as no longer having a legitimate claim as a taxation mechanism, and as outright prohibition of transfer of machine guns manufactured after 1986 to lawful citizens and members of the militia of the United States is not authorized to Congress by the Constitution, and is indeed denied to Congress by the 2nd Amendment to the Constitution.



Thoughts?

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fiveoboy01
January 5, 2006, 12:30 AM
I like it!

I'd think some of those points could be "interpreted" by a whacko activist judge, who wishes them to mean what HE/SHE wants them to mean....

beerslurpy
January 5, 2006, 12:49 AM
While we're at it, getting rid of the CLEO signoff and the 6 month ATF/FBI background search would be great.

Using the same criteria for the class 3 approval process as for shall-issue CCW permits would be ideal. If they dont find anything in their computer search, where else are they going to find evidence that I'm not fit to own class 3 weapons? Its not like they can put me under surveilance without suspicion of wrongdoing, so the search is pretty much limited to public records they already have in their immediate posession.

It sucks that republicans are generally so weak on the gun issue. Theyre often just a less openly hostile version of the democrats.

Crosshair
January 5, 2006, 12:58 AM
Keep us updated on what happens and if donations are needed. This has good potential.:cool:

Hkmp5sd
January 5, 2006, 02:59 AM
It does seem ironic when an American citizen must sue the government in an effort to force the government to accept payment of a tax.

TarpleyG
January 5, 2006, 09:32 AM
Make sure you check for typos and grammar. I caught a couple of errors in just the first sentences.

Greg

beerslurpy
January 5, 2006, 09:59 AM
Wont we simply be denied standing because we havent broken the law in question?

The court has already erected many sturdy defenses against striking down unconstitutional laws. Rememeber that this is the same court that beleives that the phrase "interstate commerce" refers to things and persons participating in activity that is neither commercial nor interstate.

Smurfslayer
January 5, 2006, 10:05 AM
Have you attempted to initiate a transfer and been denied? if not, the court will dismiss. You will need to have been denied adminstratively first. The restoration of rights ruling held that so long as you had an avenue of administrative relief, the courts would not intervene. Even if that avenue of relief was only written words, and not actually done in reality - as the mythical ATF restoration of rights.

Have you consulted a prominent 2A practicing atty.?

20 to me looks insufficient. It should read something like whereas it is reasonable to conclude that 922(o) must be subject to the restrictions imposed on Congress by the 2nd Amendment.

I also think that the firearm to be transferred presents a problem since there are substantially similar firearms available in transferrable status. I believe it is still feasible to have an M16 lower w/ M4 upper, and thus the court would hold there is no disability. If you were attempting to purchase a new, not previously available arm; like a SCAR, P90, etc. you could circumvent this. Remember, the court doesn't care how much it costs...if it's 'available' as transferrable, there is no disability.

Really, the best way to "carrot / stick" this would be to try and secure agreements from distributors to cease sales to law enforcement agencies of machine guns, but continue to sell SBR's and suppressors. Only allowing the .gov to have "transferrables". Or, simply refusing to transfer any MG's to them until the law is changed. It should go on concurrently with your efforts.

ctdonath
January 5, 2006, 04:51 PM
I'd think some of those points could be "interpreted" by a whacko activist judgeUndoubtedly. Please note such points so I can address them.

ctdonath
January 5, 2006, 04:59 PM
[get] rid of the CLEO signoffThe 1934 Group made a serious attempt at that and bombed.

That's outside the scope of this. A core point of the approach here is to initially assume that the laws as written are, in fact, legitimate ... they must fit together into a viable framework. Failing that, identify exactly what, narrowly speaking, is the invalid obstacle ... providing a chain of "if you won't overturn narrow point X, then you must overturn broader point Y."

That NFA arms may be taxed and registered has already been addressed. The core problem is establishing (1) standing of the plaintiff both personally and in equipment sought, (2) prohibition harms the individual and, by extention, the state, and (3) prohibition terminates the taxation justification and thus NFA cannot stand, at least for post-'86 MGs.

ctdonath
January 5, 2006, 05:08 PM
Keep us updated on what happens and if donations are needed.Will do.

This is, at this point, just the consolidation and expression of an idea that's been brewing for a decade, pulling together all the legal arguments against 922(o) into a single to-the-point plea.

FWIW:
- I am not a lawyer, just have been reading a lot of relevant laws for a while.
- Pursuing this would require finding a C3 dealer willing to go thru all the motions.
- I don't know of any lawyers willing to seriously pursue this.
- For now I don't have the grand or so needed to order a new M4 or other suitable arm.
- I definitely don't have the cash for a lawyer on this.

That said, the goal of this approach is to have a low-cost no-lawyer cookbook means for someone to order an M4, file the paperwork, get BATFE denial, and walk into court with a pre-written plea with little more cost than filing fees ... multiplied by enough people doing it to generate numerous conflicting simultanious rulings and thus force higher courts to take the issue, and attract enough attention (i.e., money) to push it thru to final success (or definitive exhaustion of options).

ctdonath
January 5, 2006, 05:09 PM
Make sure you check for typos and grammar.Of course. Get content & semantics right first, then check for lesser issues. This has a long way to go before I worry seriously about typos.

ctdonath
January 5, 2006, 05:22 PM
Wont we simply be denied standing because we havent broken the law in question? Good reminder of what I meant to include: a bunch of points explaining that in order to establish standing in terms of breaking a law (current status quo requirement as you note) would unavoidably require breaking laws which are NOT being challenged in this case. In this narrow case (different in other contexts), I have no quibble with paying a $200 tax or submitting to CLEO signoff or expecting the seller to obey the paperwork requirements etc. - all things which evading would constitute serious crimes.

In fact, the core contention of this plea is that the law DOES allow a citizen to lawfully obtain a post-'86 MG (922(o)(2)(A) allowing it under gov't approval), but that the problem is that the gov't (aka BATFE) refuses to do its obligated part in accepting the obligated tax payment.

My standing fundamentally is: I am, by order of Congress, a militia member; I have, by 2nd Amendment and precident of the Founding Fathers (per Militia Act of 1792), a right & obligation to arm myself suitably; the common military arm of the day is the M4; keeping and bearing arms presumes ability to buy new ones at reasonable prices. Here's my $200 and paperwork - now approve it so I can get "well regulated" in every sense of the phrase.

rabidgoldfish
January 5, 2006, 05:36 PM
As per caselaw, one can not be be charged with violating the NFA on post 86 guns.

The case is US vs. Rock Island Armory

http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/rock_island.txt

http://en.wikipedia.org/wiki/Firearm_case_law

ctdonath
January 5, 2006, 05:41 PM
Have you attempted to initiate a transfer and been denied? I would take that step when I have the plan & paperwork sufficiently worked out, as doing so would be vital to finding a Class III dealer willing to actually stick his neck out to accept payment for an M4, file the paperwork that WILL be denied, and put up with what could be substantial annoyance from the whole process. Likewise for finding a CLEO to sign off the deal. Yes, administrative paths must be exhausted first.

Have you consulted a prominent 2A practicing atty.?No. Having been unable to locate & attract the attention of one in what would have been a major slam-dunk FOPA violation case (have entire confrontation on tape with cop saying "I am the law" hindering transportation where I had EVERYTHING right), and presuming I can't attract enough attention until enough of the case plan is worked out, I am currently operating on the "if you want it done right, do it yourself" approach.

Hopefully a good RKBA atty will pick this up and run with it. For now I'll just finish working out the above document, run it up the flagpole and see if anyone salutes.

20 to me looks insufficient. It should read something like whereas it is reasonable to conclude that 922(o) must be subject to the restrictions imposed on Congress by the 2nd Amendment.Good. I'll add that.

I also think that the firearm to be transferred presents a problem since there are substantially similar firearms available in transferrable status.Point understood, and taken as just the way things are. Will add something to the effect that "applicable laws and precident and intent do not indicate any favorable view of the notion that the security of a nation of 300,000,000 souls should in any way rely on a couple thousand quarter-century-old relics". While I would love to take on the case with something uniquely modern like the P90, I'd rather go with what is inarguably the most common/standard military arm of the day, and argue that "make and buy new" is an axiomatic presupposition to "keep and bear".

try and secure agreements from distributors to cease sales to law enforcement agencies of machine gunsTHAT would get their attention - unfortunately it's way out of my scope.

I'm just one common guy who has been unwillingly (insofar as no option was given) been made part of the militia by Congress, which then turned around and said I can't have what a militia member obviously needs and has a legal right to. All I can do is follow the path that Congress laid down, and insist the BATFE has the power & duty to approve following that path.

Someone with connections needs to talk with Gaston Glock, Ronnie Barrett, et al about the "approve transfers or you don't get anything" approach.

MarshallDodge
January 5, 2006, 05:46 PM
I am willing to offer support, both financially and otherwise.

I was just talking to PvtPyle about this the other day. Our thoughts were to get President Bush to offer an amnesty period as he leaves office.
The day after the election on November 14th, 2008 he would turn on the faucet and leave it running for the next guy to worry about.
During that time the manufacturers could build and register quite a few receivers as well as registering anything that is post '86.

rabidgoldfish
January 5, 2006, 05:54 PM
Additionally the following is from Farmer v. Higgins (1990)
We agree with the Bureau that section 922(o) prohibits
the private possession of machine guns not lawfully possessed
before May 19, 1986. "In determining the scope of a statute,
we look first to its language." United States v. Turkette,
452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246
(1981). Section 922(o)(1) explicitly provides that, aside
from two specified exceptions, "it shall be unlawful for any
person to transfer or possess a machinegun." Although
section 922(o)(2)(A)'s possession "under the authority of" a
governmental entity exception is arguably ambiguous, the
district court's interpretation of that exception, which es-
sentially preserves existing law, would render section
922(o)(1)'s "machine gun prohibition" a nullity; the Bureau
would be required to process applications without regard to
section 922(o)(1), and reach the same result as if the
prohibition had never been enacted.

Moreover, if Congress did not intend to change prior law
by prohibiting the private possession of machine guns, then
section 922(o)(2)(B)'s "grandfather" clause (which exempts
from the general prohibition those machine guns lawfully
possessed before May 19, 1986) becomes meaningless. "We may
not assume Congress to have done a 'useless, ineffective, or
absurd thing' [when it enacted legislation]." U.S. Army Engi-
neer Center v. Federal Labor Relations Authority, 762 F.2d
409, 417 (4th Cir.1985) (quoting Consumers Union of United
States, Inc. v. Sawhill, 512 F.2d 1112, 1118
(Temp.Emer.Ct.App.), vacated and concurring and dissenting
opinion adopted in banc, 525 F.2d 1068 (Temp.Emer.Ct.App.
1975)); see also Turkette, 452 U.S. at 580, 101 S.Ct. at 2527.

:banghead:


http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/farmer_v_higgins.txt

case with similar results
http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/us_v_warner.txt

ctdonath
January 5, 2006, 06:05 PM
As per caselaw, one can not be be charged with violating the NFA on post 86 guns.Good reminder.

That case, IIRC, relieved the defendant from being convicted on NFA grounds: if the BATFE refused to accept the tax on the transfer (regardless of legality of transfer (yes, the gov't may require a tax on illegal activity)), then they could not be convicted of not paying the tax. That ends the argument that requiring standing via criminal charges is inapplicable due to having to unavoidably break other laws (to wit NFA) to get at 922(o).

The problem then becomes: either NFA applies, or 922(o) applies - not both. Since BATFE refuses to accept the tax on post-'86 MGs, then NFA evaporates ... but leaves the 922(o) prohibition behind.

I don't want to get in the position of having to outright violate any law to achieve standing. Kinda chills the whole "law-abiding citizen" notion, eh?

Thus I must add points detaling the early NFA challenges wherein a court noted that NFA could stand only because it was a tax, not a prohibition - and since 922(o) is a prohibition, those early arguments apply and 922(o) must be ruled invalid. Now I have to go hunt down that case...

ctdonath
January 5, 2006, 09:26 PM
Farmer v. HigginsGood reference, albeit disturbing. Two tactics against that:

1. The plain intent of law is in fact relevant - hence even more weight to the 2nd Amendment: "shall not be infringed" is pretty friggin' clear, especially when it comes to common weapons of the modern militia. That, plus the clear intent of the definition of the "[unorganized] militia", plus the fact that sometimes Congress does in fact contradict itself and the Constitution trumps.

2. That is a lower court (not SCOTUS) ruling IIRC, so it does not apply to other jurisdictions. Hence the importance of multiple (preferably in the triple or more digits) simultanious filings across the country: some rule one way, others rule different, equal protection must be maintained, higher courts MUST take it and resolve the issue.

Krenn
January 5, 2006, 09:57 PM
wouldn't it be simpler to submit the supreme court decision that weapons in common use by the military may not be restricted from the militia, along with a TOE from an army unit? (United States v. Miller)

then ask for expedited relief against the NFA in its entirety?

is this a personal project, or a group project of some sort? A group project has potential..... but they'd have to agree on the suit in question, and probably pony up enough money to get a few hours of consultation on the final document.

is there a website for this?

ctdonath
January 5, 2006, 10:17 PM
wouldn't it be simpler to submit the supreme court decision that weapons in common use by the military may not be restricted from the militia, along with a TOE from an army unit? (United States v. Miller)That may be the best way to start the grievance, but I want to subsequently cover all wiggle room. SCOTUS is very good at wiggling.

What's a TOE? how do I get one?

then ask for expedited relief against the NFA in its entirety?An early ruling regarding NFA (shortly after it was enacted, post-Miller) concluded that as a tax the NFA law is valid - but noted that it is not viable as a prohibition. As noted in the RIA case, NFA law does not apply to 922(o)-prohibited weapons (at least in the jurisdiction for that ruling). Ergo, NFA is largely irrelevant to my desire for an M4 at this point, but will be addressed to remove the wiggle room (to wit, I'll gladly pay the $200 tax (in this case) if the BATFE will accept it).

is this a personal project, or a group project of some sort?Personal. I've been following NFA law issues for a while. It has been academic while I lived in NY, but now that I'm in GA the path to owning an M4 has only 1 block for me now: 922(o).

I'm posting a thread on it now that the grievance is coming together, and to see what support I can drum up. Much has been discussed about 922(o), but I've seen little done along these lines.

Ultimately it would have to be a group project, as the core of my plan is numerous simultanious filings and force unavoidable higher review by creating an "equal protection" conflict. Too often I've seen huge effort/money put into one case, only to fail on some stupidity and stand as precident for years after. Too many cases rely on one big push up the chain; I'm thinking lots of little pushes cannot be resisted - as such the grievance must be thorough, clear, simple, and inexpensive to file.

is there a website for this?Not now, but if it gathers steam I'll post it at my website (http://www.donath.org).

Krenn
January 5, 2006, 10:26 PM
table of organization and equipment. give me a minute and I'll see if i can google one... pretty much any army or national guard unit's would do, prefferrably infantry speciality....

not CERTAIN where to find one, but if google fails, I'm sure that the THR vets can tell us where to file the Freedom if Information Request.

ctdonath
January 5, 2006, 10:34 PM
Good. I know I need one - as official as can be - to establish beyond any doubt that an M4 satisfies Miller. I want to differentiate between the M16 and M4 to minimize any response of "you can still get an M16, so what if it's >20 years old and costs $15,000"; the M4 is recognized by the US military as a firearm discernably different from the M16, and is not available to non-active-personel (save, at most, a miniscule number so small as to actually help bring the "but you can get an old expensive one" argument's stupidity into sharp relief).

Krenn
January 5, 2006, 10:36 PM
http://www.fas.org/man/dod-101/army/unit/toe/

not certain how official that is for purposes of court citation, and reading the individual tables makes my head explode...

I'd reccomend filing either seperate suits for each issue, or a single suit clearly differentating between each issue,

Krenn
January 5, 2006, 10:43 PM
http://www.army.mil/fact_files_site/in_crew.html

this looks easier to understand.... the trick appears to be going into the google advanded options and limiting your search to .mil domains.

I'll be in and out, don't expect sudden assistance.

ctdonath
January 5, 2006, 10:46 PM
Thanks, that's a great start. Can pull out the relevant bits via Googling "rifle 5.56mm m4" site:http://www.fas.org/man/dod-101/army/unit/toe/ (http://www.google.com/search?hl=en&lr=&safe=off&q=%22rifle+5.56mm+m4%22+site%3Ahttp%3A%2F%2Fwww.fas.org%2Fman%2Fdod-101%2Farmy%2Funit%2Ftoe%2F&btnG=Search) - now I just have to figure out how to add 'em up for a total quantity.

I'm leaning toward one case wherein all avenues of evading the issue are covered. I don't have time, money, resources, or inclination to go thru this more than once. Only one short sentence stands between me and a new M4.

beerslurpy
January 5, 2006, 10:48 PM
As per caselaw, one can not be be charged with violating the NFA on post 86 guns.

The case is US vs. Rock Island Armory

http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/rock_island.txt

http://en.wikipedia.org/wiki/Firearm_case_law

Wrong. One cannot be charged with violating Title 26 Section 5861. One can still be charged with violating 922(o). 922(o) simply replaces the tax payment requirement and the penalties for failing to register and pay the 200 dollars. Read the actual decision on findlaw, not a summary on wikipedia.

edit: Actually, I just looked at the link from cmu.edu and that has the complete text of the opinion. I suggest you read it.

Strings
January 5, 2006, 11:44 PM
beerslurpy: if I understand correctly, NFA was allowed to stand because it was a tax, not a prohibition. Since 922(o) is an outright restriction, shouldn't it (by the same precedent that allows NFA) be non-viable?

Smurfslayer
January 6, 2006, 12:02 AM
file the paperwork that WILL be denied, and put up with what could be substantial annoyance from the whole process. Likewise for finding a CLEO to sign off the deal.

I applaud your efforts... Bypass the CLEO BS and incorporate. You get past one more hurdle that way. While you're getting a lot of attention here, you will soon find that we gunnies talk a good game, and we're especially good at critiquing the work of others on internet forums, but we don't often follow through. I have direct experience with this. :banghead: Ongoing, in fact.

I also submit to you that likely what ATF will do is not 'deny' your transfer, but simply not respond to your transfer. That avoids a pesky court defeat. What's more, the law (statutory) gives them complete discretion with regard to how much time they take to approve or deny a form. Unfortunately, again, for us, they not actually required to ever "deny" the transfer. They literally may keep re-cycling the form to the bottom of the stack. :scrutiny:


"but you can get an old expensive one" argument's stupidity into sharp relief

I don't mean to be insulting, so please don't take it that way. However, the world is divided into 2 groups.

1: Us.
2: Them.

You, are thinking like us. You have to think like them. The court will use any and all means necessary -by rule- to resolve a case without addressing a single constitutional issue. This is a "double edged sword" when you throw a "kitchen sink" case at the court, you give them more avenues out of reviewing the case on the grounds you want them to review it on. You have to look at a few court cases in detail and follow them through. You'll probably notice a pattern develop, or two. one is that more often than not, the government wins. Another is that the court will go to extreme measures to see that the government wins. You must think about your case like a court judge will, not how _we_ think your case should be presented. A judge will dive into the NFA law, have his clerks find transferrable M16 lowers and M4 uppers and report back, he will then issue a dismissal because you are able to procure a non prohibited arm of the same type.

<rant>
besides, the whole platform stinks anyway :neener:
</rant>

If you attempt to transfer something which didn't exist pre 5/19/86, you undercut this argument. So do you want the M4 or do you want to challenge the restrictions?

rabidgoldfish
January 6, 2006, 12:32 AM
Wrong. One cannot be charged with violating Title 26 Section 5861. One can still be charged with violating 922(o). 922(o) simply replaces the tax payment requirement and the penalties for failing to register and pay the 200 dollars. Read the actual decision on findlaw, not a summary on wikipedia.

edit: Actually, I just looked at the link from cmu.edu and that has the complete text of the opinion. I suggest you read it.


err .... what?

Krenn
January 6, 2006, 07:02 AM
smurfslayer is almost certainly right. my dream lawsuit is a list of infantry weapons, updated every 40 years, along with the demand that I be allowed to manufacture them.

(M4, M16, M14, M1, Breech-loader, rifled muzzleloader, smoothbore muzzleloader)

wouldn't be hard. most of those should have expired patents, just ask the patent office for the original blueprints and convert to modern machine specs.

it seems the simplest approach. problem is, we'd need a machine shop capable of building them from scratch, or of converting existing parts to spec.

otherwise, it would get thrown out for being moot or not having a credible intent to violate the law.

ctdonath
January 6, 2006, 02:41 PM
Bypass the CLEO BS and incorporate.Then I lose the standing as a member of the US militia (involuntarily per Congressional decree), as the company would own it, not me.

As noted prior, so long as 922(o) stands, NFA is inapplicable so the case can't be dismissed for lack of filing Form 4 (or whichever it is) and thus the CLEO need is gone. Once 922(o) falls, having hindered a member of the US militia from obtaining normal suitable arms, NFA snaps back into play, and THEN I have to find a cooperative CLEO (doable in GA, and required for GA legal ownership) to get BATFE approval.

ctdonath
January 6, 2006, 02:43 PM
when you throw a "kitchen sink" case at the court, you give them more avenues out of reviewing the case on the grounds you want them to review it on.The trick then is to arrange the case to express multiple arguments such that if ANY argument holds, I win - requiring them to knock down EVERY argument. It's the "I have to win once, you have to win every time" tactic.

woofe
January 6, 2006, 03:04 PM
:banghead: After the results of the Emmerson case, I think you would have a much better chance of success if such a suit was filed in the Fifth Circut which is Texas and Louisiana.

woofe

ctdonath
January 6, 2006, 04:39 PM
Emerson found that MG laws based on "interstate commerce" do not apply where there is no interstate commerce involved (Emerson built his own MGs from scratch).

What I'm seeking is unquestionably interstate commerce, as I contend that to "keep and bear" an item axiomatically includes being able to buy it from a manufacturer in another state. There are very few people able to privately build guns which would unquestionably satisfy the Miller test (amounting to: if the Army uses it, so can you).

ctdonath
January 6, 2006, 04:42 PM
1: Us.
2: Them.Another reason to remind Them that there are a whole lot of Us out here. One would-be MG owner can be stomped on as a quirky pest; a great many simultanious "I want my M4" filings would get their attention that the US militia is not ignored lightly.

VorpalSpork
January 6, 2006, 04:44 PM
As per caselaw, one can not be be charged with violating the NFA on post 86 guns.

The case is US vs. Rock Island Armory

http://www.cs.cmu.edu/afs/cs.cmu.edu...ock_island.txt

Wrong. One cannot be charged with violating Title 26 Section 5861. One can still be charged with violating 922(o).

rabidgoldfish is correct, as U.S.C. Title 18 "Crimes And Criminal Procedure" (http://www4.law.cornell.edu/uscode/html/uscode18) &#167; 922(o) (http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000922----000-.html#o) is not part of the National Firearms Act. The NFA is in U.S.C. Title 26 “Internal Revenue Code” (http://www4.law.cornell.edu/uscode/html/uscode26/usc_sup_01_26.html) Subtitle E, CHAPTER 53 (http://www4.law.cornell.edu/uscode/html/uscode26/usc_sup_01_26_10_E_20_53.html)

Firearms law is becomming a hobby of mine, this thread makes me want to learn more NFA and 2nd Ammendment case law. It seems plain enough to me that 922(o) clearly infringes on my right to keep and bear arms, which is protected by the second ammendment. I need to work on finding the correct legalese to express that though.

ctdonath
January 6, 2006, 04:59 PM
I need to work on finding the correct legalese to express that though.You'll find that uncooperative activist judges, and even "moderate" ones, and even "conservative" ones scared to stir the pot, are loathe to support our view and eager to find ANY loophole to slither out of.

The biggest difficulty in attacking 922(o) is that you CAN buy an M16 - albeit over two decades old, cost $15,000, and only a dozen or so for sale in the whole country at any time - so the response may very well be "you can get one; go away" ... or any of a number of other "well, technically, hypothetically, in obscure situations..." responses.

rabidgoldfish
January 6, 2006, 05:32 PM
Find a weapon of new manufacture that was not availiable before 86. My guess would be that you would have better luck choosing something which cannot be obtained now, a P90 for example.

erik the bold
January 6, 2006, 06:11 PM
http://www.fas.org/man/dod-101/army/unit/toe/

not certain how official that is for purposes of court citation, and reading the individual tables makes my head explode...

I'd reccomend filing either seperate suits for each issue, or a single suit clearly differentating between each issue,

Major issue is that in the TOE's listed, the equipment for a rifle company includes M16A1's and M16A2's, not M4's. Maybe someone can dig around to see where they fall into the program.
See: THIS (http://www.fas.org/man/dod-101/army/unit/toe/07017L000.htm)

beerslurpy
January 6, 2006, 09:28 PM
Acts of congress are not law- they create or modify law. Referring to a law by the act that created it is a valid way for laypeople to refer to bodies of legislation created or modified by an act, but it becomes confusing the more modifications are made to that body of law.

The NFA isnt a law that one can violate. The NFA was an act of Congress that added several laws to the US Code. Many of these statutes have been modified or rendered invalid in the past 70 years, so technically his statement is meaningless.

Insofar as we can refer to the regulation of class 3 weapons as "NFA regulations," his statement is misleading. 922(o) is definitely a statute that regulates class 3 weapons and it is definitely something you can be charged with violating.

I completely agree that 922(o) falls squarely outside the bounds of interstate commerce. Unfortuantely, current precendent (Raich) has erased the Lopez and Morrison precedents so we will need another precedent to restore them before 922(o) stands a chance of being overturned.

bp_968
January 6, 2006, 11:14 PM
Simple fix for the whole "can still buy a M16" thing. Request to buy something else that is issued and issued alot. An M249 SAW or M240B. The M249 is made here (so no import law BS) no AWB stands in your way, the only thing left is the 1986 ban. I think the only ones that are transferable are dealer samples (not for sure on that).

Not to mention I'm sure you could find something showing the P90 or some other post 86 machine gun being used in special forces, they use everything.

bp

ctdonath
January 7, 2006, 12:46 AM
a P90 for example.I really want to try to squash the "you can get one" and the "well it's not really common" arguments hard. While you can't get a P90 at all, it's used in such small numbers as to not fulfill the "common" criteria (at best, it's a novelty or narrow special purpose). Similarly, I'm avoiding the M16 per se because a tiny number of old ones are available but miss the point.

I want to go after the GENERAL case. The US military considers the M4 a weapon distinct from the M16, as TOEs list both separately. The M4 is also, with little doubt, the 1st or 2nd most commonly issued weapon to US soldiers (contending with the M16). Most soldiers get M4s over any other weapon; if available, most citizens would get M4s (minor quibbles aside) over any other weapon.

Let's focus on the general case, not get sidetracked by "oh, this narrow case might solve a particular problem better."

MatthewVanitas
January 7, 2006, 12:53 AM
In terms of working within the system, suggest that you delete the word "heavily" from #14. Anything that makes it more likely to categorize you in the "white militia survivalist anti-government" camp will work against you, so I'd avoid even the slightest anti-gov slant any more than the bare minimum necessary.

Interesting idea overall; far odder ideas have worked in this world.

-MV

Nick1911
July 5, 2006, 11:07 AM
Has there been anymore development on this?

LAR-15
July 5, 2006, 12:44 PM
922(o) is an amendment to the GCA of 1968

IT IS NOT PART OF THE NFA!

The import ban on machineguns is.

922(o) is a flat out prohibition on machinegun ownership even if the NFA were repealed tomorrow.

922(o) would still be law.

DKSuddeth
July 5, 2006, 01:19 PM
922(o) is 'constitutional' because it is based on the commerce clause, correct? In fact, aren't ALL federal gun control laws based on the commerce clause?

If that is the case, no gun control law will ever be ruled unconstitutional unless we get 9 totally different justices on the USSC that believe in the limited power of the commerce clause, especially 922(o).

Alito's nickname, machine gun sammy, is a complete misnomer because he has said himself that as long as the statute contains the interstate commerce reference, it would be valid.

We'll be fighting automatic prohibition for another 40 years minimum until the majority of the USSC makeup changes.

LAR-15
July 5, 2006, 01:24 PM
Alito's nickname, machine gun sammy, is a complete misnomer because he has said himself that as long as the statute contains the interstate commerce reference, it would be valid.


Proof?

That would mean intrastate sales and possession would not be Federally regulated.

Malum Prohibitum
July 5, 2006, 02:14 PM
Please don't take this the wrong way, but I think it would be unfair of me not to post this information after reading your proposed course of action. You have two very major problems with your case.

The first is that, being in Georgia, you have no Second Amendment rights outside of membership in an organized militia. There is pretty clear Eleventh Circuit case law on this point. In fact, the only circuit to have found any individual right under the Second Amendment is the Fifth Circuit (Emerson), and the holding is so limited to be of zero value to you in this context (that is, the court found an individual right but declared that the right was not violated by the particular federal statute at issue).

The second is that the Commerce Clause is the source of 922(o). The Supreme Court of the United States just gave some pretty clear guidance last year to the Ninth Circuit on the Commerce Clause issue, and the Ninth Circuit reversed its prior ruling that Congress cannot regulate homemade machine guns as a result of the Supreme Court's direction. Here is a link some more discussion of the Commerce Clause decision.

http://www.georgiapacking.org/forum/viewtopic.php?t=765

I also want to render some admittedly unsolicited advice. Get a lawyer. Even if you have to find a volunteer fresh out of law school related to your third cousin by marriage. It is a bad idea to proceed without one. Just because you think something is self evident does not mean it will be accepted in court, and there are a lot of procedural traps for the unwary.

I should also warn you that this lawsuit you are contemplating is not the first of its kind. The issue of machine guns and the Commerce Clause and the Second Amendment has been litigated many, many times in the federal courts with unsuccessful results.

Again, try if you must, but please go in with your eyes open.

Like this -----> :what:

DKSuddeth
July 5, 2006, 02:23 PM
Proof?
I don't have it immediately available, but I'm pretty sure that he made that statement during his nomination hearings when asked about his dissenting opinion on the 3rd circuit for US v. Rybar. Now, he may have just been saying this to get past the confirmation hearings...who knows.

That would mean intrastate sales and possession would not be Federally regulated.

It would had the USSC not affirmed the 3rd circuit decision that congress does indeed have the authority to regulate intrastate commerce, as in ashcroft v. raich.

This is why I say that no gun control law will ever be ruled unconstitutional by this court while they heavily support the monstrosity of the commerce clause.

Malum Prohibitum
July 5, 2006, 02:28 PM
John Roberts made a statement like this during his confirmation hearing, relating to U.S. v. Lopez (Gun Free School Zones Act case), but I do not think Alito did. I would like to see it if you can find it, though, as that would be very important for us to know . . .

DKSuddeth
July 5, 2006, 03:18 PM
SFGATE (http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/11/02/MNG0DFHNR71.DTL)

Alito began his dissenting opinion by suggesting that the majority was treating the Supreme Court's 1995 ruling as "a constitutional freak'' rather than a recognition that the Constitution "still imposes some meaningful limits on congressional power.''

Congressional findings about gun trafficking in older laws were irrelevant, he argued, to the question of whether possessing a machine gun has any effect on interstate commerce. Whatever role machine guns play in nationwide crime, Alito said, the mere act of possessing one within a state is no more of an interstate, or economic, activity than possessing a gun near a school.

He said the law might be valid if it was limited to machine guns that crossed state lines, or if Congress had included findings about the impact of those weapons on interstate commerce. That suggestion was derided by the court majority, which said Congress was not required to "play Show and Tell with the federal courts'' to validate a law.


Now, unlike the rest of the court that said congress didn't have to play show and tell, I agree with alito on the point he made that would have required congress to show findings on the impact.

ctdonath
July 5, 2006, 11:47 PM
Progress? Mostly tangential, and subordinate to other pressing issues.

I need a lawyer to talk to about this - preferably through some kind of THR-type networking. Cold calls are hard with this kind of thing. Initially just need an hour or so to present the core idea, kick around some approaches, come to an understanding and figure out where to go next (and what $$$ that entails).

At the moment, my main puzzlement is that the "shall not be infringed" clause has not been addressed in any formal setting. Commerce clause issues should be instantly null-and-void in light of that. Congress has already declared me a member of the federal militia (involuntarily, being of age, gender & ability), and found that the 2nd Amendment is indeed an individual right (Congressional fact-finding paper, links to which I don't recall at this instant), and recent courts (RIA, IIRC) note that disarming the militia is impractical & preposterous (states cannot disarm that which the feds may call on at any time); that leaves "shall not be infringed" to address. I'm mulling over a precursor case that pares this particular issue down to straight-up bare-essentials (idea still brewing, not ready for open discussion).

Yes, in light of certain recent rulings, my confidence in SCOTUS is limited. McCain-Feingold, Kelo (sp?), Raich, etc. are preposterous conclusions. Nontheless, I find the exercise of creating the case very worthwhile - at worst for my own understanding of the issues, and at best for restoring RKBA.

Yes, I know 922(o) and NFA are different. They are, however, closely related enough that casual discussion allows for implication of one by reference to the other. Sometimes it's just not worth being absolutely clear all the time, lest the forest be lost to the leaves.

Finally, I've heard references & implications regarding other attempts - but find little hard info thereon. Anyone know something useful? I'm sure the NFA community has done more than I'm aware of.

Battery is about to die, and I'm about to doze off. Later...

kludge
July 6, 2006, 09:19 AM
(Congressional fact-finding paper, links to which I don't recall at this instant)

Here are two:

http://www.constitution.org/mil/rkba1982.htm
http://www.usdoj.gov/olc/secondamendment2.htm#2a

And onemore link for good measure (regarding interstate commerce clause):

http://www.originalintent.org/edu/chapter44.php

Malum Prohibitum
July 6, 2006, 10:44 AM
Since you are in Georgia, you are within the Eleventh Circuit. I would not worry so much about the Supreme Court, because the odds of them ever hearing your case are about as good as winning the lottery. They also just recently (this year) gave direction to the Ninth Circuit to reverse its prior decision holding that home made machine guns cannot be regulated under the Commerce Clause - so there is the answer on the Commerce Clause.

As I said previously, you are within the Eleventh Circuit. On the Second Amendment, here is what the Eleventh Circuit has to say in U.S. v. Wright, 117 F.3d 1265 (11th Cir.1997), a case involving the possession of a post 1986 machine gun (can't get much more on point than that):

The concerns motivating the creation of the Second Amendment convince us that the amendment was intended to protect only the use or possession of weapons that is reasonably related to a militia actively maintained and trained by the states. With this conclusion, we join every other federal court that has been called on to consider the “well regulated militia” requirement of the Second Amendment, several of which have considered and rejected the claim made by Wright in this case that membership in a state's unorganized militia is sufficient to bring gun possession within the protection of the Second Amendment.

. . .
Having concluded that Wright has failed to make this requisite showing, we need not decide here whether the Second Amendment creates an “individual” or a “collective” right. . . . (“Whether the ‘right to bear arms' for militia purposes is ‘individual’ or ‘collective’ in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia.”). Whichever the case, as a criminal defendant, Wright has “standing” to assert a constitutional challenge to the statute he is charged with violating. . . . . Accordingly, not a single court has refused to consider a criminal defendant's Second Amendment challenge on “standing” grounds. . . .

Likewise, because Wright has failed to demonstrate any connection to a well regulated militia, we need not consider what showing is required to establish a reasonable relationship between the possession or use of weapons and the preservation or efficiency of such a militia. Finally, we express no opinion as to what governmental interests would be sufficient to justify an infringement on Second Amendment rights in the event such a reasonable relationship is established.


They also denied his Ninth Amendment claim.

The entire case is 17 pages of expanding upon this idea, and it is not the only case in the Eleventh Circuit to so hold.

Prior to this case, the Eleventh Circuit had stated that a Second Amendment challenge to a complete ban on machine guns was "without merit" with no further discussion. The Supreme Court subsequently refused to hear an appeal.

Your case is not exactly some new thing that the courts have never heard before. You ought to know what you are up against.

Malum Prohibitum
July 6, 2006, 11:15 AM
My oblique reference to the Commerce Clause issue already being detemined is the subject of discussion already within this forum. http://www.thehighroad.org/showthread.php?t=208239

Malum Prohibitum
July 7, 2006, 10:45 AM
Sorry, I did not mean to stop the thread dead in its tracks. :uhoh: I just wanted you to know the law where you live.

ctdonath
July 7, 2006, 07:54 PM
Don't fuss; the thread has been around a while, and I have a life outside THR.

The references are interesting, and not unexpected. Finding relevant court cases is not easy.

What you quote does not take into account the Congressional finding that the 2nd Amendment IS an individual right, and the court does NOT address federal law making me a militia member (like it or not, organized or not). Making a case partially or completely repeats what has been done before, and my jurisdiction's court has apparently proven themselves unfriendly to plain Constitutional principles - so be it.

Hence my interest in a large number of plantiffs filing independently everywhere: statistically speaking, SOME court(s) WILL hold that 922(o) is unconstitutional, and SCOTUS will have to rule to resolve the equal-protection problem. The case would have to be absolutely clear & complete; I've noticed that similar cases are gratuitously lacking in thoroughness & clarity, and they fail. Also, lots of firmly law-abiding plantiffs should resolve the "lone nut" problem that seduces courts into making an unfriendly ruling on the apparent theory that they just want the guy to go away.

Side note: recent cases also observe that the US militia (unorganized included) cannot be disarmed because that would hinder Congress' ability to call upon it.

We also need to drag courts kicking & screaming to the "shall not be infringed" clause.

Militia member by federal defninition: check.
Arming self for local, state & federal security needs: check.
Individual right as one of "the people": check.
Modern standard military "grunt" weapon, M4: check.
"shall not be infringed": where, oh where, has constitutional justice gone?

beerslurpy
July 7, 2006, 09:25 PM
Ctd, we are wasting our time with this debate. The cases themselves will be ridiculously easy to make once we have the "2nd = fundamental right" ruling from the supremes. Until then, you are going to run up against standing issues every time you try to bring a case. If no fundamental right is being damaged, you cant really claim that you are being harmed by the law in question. Of course, RKBA is a fundamental right, but the supreme court hasnt recognized that, so the inferior courts can pretend it isnt. Until this fundamental problem is rectified, the courtroom is not going to be our salvation. The current case in Washington DC is an awesome 2nd amendment opportunity, but it has yet to run its course.

ctdonath
July 8, 2006, 08:51 AM
What case?

Malum Prohibitum
July 10, 2006, 10:21 AM
Parker. Go to the Cato Institute web site.

Or, you can look here:

http://www.georgiapacking.org/forum/viewtopic.php?t=344&highlight=parker

Oh, and here:

http://www.georgiapacking.org/forum/viewtopic.php?t=776

The Parker case is the best hope we have had in decades of getting a ruling from the top court declaring the Second Amendment to be an individual right. Even Thurbert Baker, our Democratic Attorney General, signed on to an amicus curiae brief urging the D.C. Circuit Court of Appeals to reverse the D.C. District Court (which held it is a "collective" right). The amicus brief goes even further, insisting that the States have an interest in ensuring that their citizens can carry when visiting D.C.

ctdonath
July 11, 2006, 12:41 PM
Interesting. Had lost track of the DC cases.

Of note: seems nobody has pointed out to a court that Congress has defined an "unorganized militia", which defines members thereof without any connection to state militias, organized militias, or any other squeamish out. This, plus ample court cases & historical intent, means the member (as defined) is entirely on his own to arm himself, expected to show up self-armed, and 'tis preposterous to expect any limitation upon those arms in need of national defense.

Put another way ... why are most RKBA cases so lame?

Malum Prohibitum
July 11, 2006, 06:26 PM
ctdonath, please forgive me, as I am not intentionally trying to be rude, but I think several court cases have addressed the unorganized militia law.

Try these:

Nordyke v. King, 364 F.3d 1025 (9th Cir. 2004) ("Those of us who are male and able-bodied have almost all been militiamen for most of our lives whether we know it or not, whether we are organized or not, whether our state governments supervised our possession and use of arms or not.") This is in dissent, though.

Silveira v. Lockyer, 328 F.3d 567 (9th Cir. 2003). Again, dissenting fromthe panel opinion:

"An incidental benefit from reading this contemporaneous implementing statute is that it makes perfectly obvious what “well regulated” meant at the time the Second Amendment was adopted. The panel seems to imagine that a well regulated militia is a people disarmed until the government puts guns in their hands after summoning them to service. But the contemporaneous statute shows that a well regulated militia is just the opposite, a people who have armed themselves at least to minimal national standards, and whom the militia officers inspect to assure that they have not wandered in off the streets without guns. The “regulat[ion]” contemplated*580 was not to disarm people when they were not at militia exercises, but rather to make sure they were armed, with their own guns. This was consistent with the colonial pattern of laws that typically “required colonists to carry weapons.” FN68 Among the acts of the crown seen as oppressions to be prevented from ever happening again were the Militia Acts of 1757 through 1763 authorizing British officials “to seize and remove the arms” of colonial militias when they thought it necessary to the peace of the kingdom. The American Revolution was triggered when General Gage ordered troops to march from Boston to Lexington and Concord to do just that. “[T]he Framers very arguably rejected as basic a Weberian notion as the state's monopoly on legitimate violence···· [T]he Framers weren't late-twentieth-century Americans (much less late-twentieth-century Europeans)····” They were the heirs of two revolutions, the English and the American, with an altogether different worldview.

. . .

Were the modern federal statute to narrow the meaning of “militia” to something like the organized national guard that the panel envisions, then the statutory meaning of the term would differ from the meaning in the Second Amendment, and we would be bound, for Constitutional purposes, by the broader definition established by Miller. It would be as though Congress defined “press” for purposes of issuing press passes to a reserved section of the Capitol building to mean something narrower than “press” for purposes of the “freedom ··· of the press” protected by the First Amendment. The new, narrower statutory meaning would not limit the Constitutional freedom.
We need not parse this problem, though, because Congress has broadened rather than narrowed the term. Today the United States Code still defines the term “militia.” The modern statute, instead of narrowing the militia to an organized body of regularly supervised and trained part time soldiers, broadens the term. The statute specifies that the “militia” consists not only of the “organized” militia, consisting of the National Guard and the Naval Militia, but also an “unorganized militia.” The “unorganized militia” is precisely what the panel says it is not, “an amorphous body of the people as a whole.” Now, instead of being limited to white male citizens between 18 and 45, the militia has (of course) no racial restriction. Non-citizens are now included, provided they have declared an intention to become citizens. The sex restriction is gone and females are included if they are members of the National Guard. People become part of the militia now at age 17 instead of 18. The only narrowing of the statutory scope is that we are no longer required by law to own and furnish guns, ammunition and bayonets. So now the militia consists not only of all white male citizens between 18 and 45, but also all able-bodied non-white males, whether citizens or non-citizens declared for citizenship, between 17 and 45, and all females in the National Guard. Those of us who are male and able-bodied have almost all been militiamen for most of our lives whether we know it or not, whether we were organized or not, whether our state governments supervised our possession and use of arms or not."
(footnotes omitted).

Malum Prohibitum
July 11, 2006, 06:31 PM
And these:

U.S. v. Lucero, 43 Fed.Appx. 299 (10th Cir. 2002):

"Lucero contends that the Second Amendment confers an individual right on him, as a member of an unorganized militia, to possess a firearm of a type that has a reasonable military use. He relies primarily on United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939).

. . .


At the hearing on the motion to dismiss, an expert testified that machineguns have reasonable military uses and are in fact used by the military.
Lucero's argument is foreclosed by our prior decision in United States v. Haney, 264 F.3d 1161 (10th Cir.2001), cert. denied,536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002). In Haney, we rejected a similar challenge to section 922( o). We held that “a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state's ability to maintain a well-regulated militia.” Id. at 1165; see also United States v. Baer, 235 F.3d 561, 564 (10th Cir.2000) (stating that “the circuits have consistently upheld the constitutionality of federal weapons regulations like section 922(g) absent evidence that they in any way affect the maintenance of a well regulated militia”). We further held in Haney:

As a threshold matter, [a defendant asserting a Second Amendment claim] must show that (1) he is part of a state militia; (2) the militia, and his participation therein, is “well regulated” by the state; (3) machineguns are used by that militia; and (4) his possession of the machinegun was reasonably connected to his militia service.

264 F.3d at 1165. Lucero argues that he is part of an unorganized militia by virtue of 10 U.S.C. § 311, which defines the “militia of the United States” as consisting of “all able-bodied male[ ]” citizens 17 to 45 years old. We emphasized in Haney, however, that a defendant challenging section 922( o) must show that he is “part of the ‘well regulated’ militia, that is, a ‘militia actively maintained and trained by the states.’ ” 264 F.3d at 1166 (quoting United States v. Wright, 117 F.3d 1265, 1272 (11th Cir.1997)); see also United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977) (“To apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy.”). Lucero has made no such showing. Unlike the defendants in Miller and Haney, Lucero has presented evidence that a machinegun has a reasonable military use. Nonetheless, he falls far short of satisfying Haney 's four requirements.


III. Conclusion


We therefore hold that 18 U.S.C. § 922( o) is constitutional as applied in this case, and we AFFIRM the appellant's conviction.
We DENY the United States' motion, filed June 24, 2002, to modify the argument in its answer brief regarding the scope of the Second Amendment. All other motions are DENIED.

LUCERO, Circuit Judge, concurring.
I concur in the result reached by the majority opinion, and would affirm. Even were we to accept the proposition that the defendant has an individual right under the Second Amendment “to keep and bear Arms” in order to serve in “[a] well regulated Militia” subject to call by a “free State,” I am not persuaded that the semi-automatic and fully automatic “machineguns” which defendant sold to federal agents, and which have been outlawed by federal legislation, are the type of arms subject to Second Amendment protection. For that reason I would affirm the judgment of the district court.
I would grant the government's motion to modify its answer brief regarding the scope of the Second Amendment and allow the parties to supplementally brief this issue.

Malum Prohibitum
July 11, 2006, 06:34 PM
In United States v. Rybar, 103 F.3d 273, 286 (3d Cir.1996), the Third Circuit held that Rybar's membership in the general, unorganized militia established by 10 U.S.C. § 311(a) did not cause his possession of a machine gun to be so connected with militia activity that the Second Amendment applied. This is the case from which (now) Justice Alito dissented, but his dissent was not on Second Amendment grounds.

Malum Prohibitum
July 11, 2006, 06:35 PM
In United States v. Hale, 978 F.2d 1016 (8th Cir.1992), the Eighth Circuit found it unnecessary to commit to either the states' rights or the sophisticated collective rights model of the Second Amendment. The court proclaimed that “[c]onsidering this history, we cannot conclude that the Second Amendment protects the individual possession of military weapons.” Id. at 1019. Yet, the court went on to consider whether the defendant's actual possession of machine guns was “reasonably related to the preservation of a well regulated militia.” Id. at 1020. Like the Third Circuit in Rybar, the Eighth Circuit held that membership in an unorganized militia did not satisfy the reasonable relationship test. The court felt that unless the reasonable relationship test was satisfied, it was “irrelevant” whether the Second Amendment was collective or individual in nature. Id.

Malum Prohibitum
July 11, 2006, 07:04 PM
. . . even assuming Defendant could overcome this substantial evidentiary obstacle, he still would confront the additional burden of establishing his membership in a “well regulated Militia” of the sort contemplated by the Second Amendment. Although Defendant points to his position in the private “Michigan Militia Corps Wolverines,” the courts have uniformly held that Second Amendment protection does not extend to such private or “unorganized” militias. U.S. v. Bournes, 105 F.Supp.2d 736 (E.D.Mich. 2000).

ctdonath
July 11, 2006, 08:34 PM
Thank you. Those are helpful. Locating relevant court cases is much harder than finding relevant laws.

Pardon my delay while I read this stuff...

jlbraun
July 11, 2006, 09:38 PM
I've read these excerpts and was wondering whether it's possible to create an exception to 922(o) by creating township or county militias armed with NFA weapons, where one is a member of the local militia with regular but infrequent calls to drill or muster. That might create a "well-regulated militia" because it would be under the auspices of the local government, however loosely.

Could this work in such a place as Wyoming, with its libertarian leanings?

SOT
July 12, 2006, 03:59 AM
In fact, the core contention of this plea is that the law DOES allow a citizen to lawfully obtain a post-'86 MG (922(o)(2)(A) allowing it under gov't approval), but that the problem is that the gov't (aka BATFE) refuses to do its obligated part in accepting the obligated tax payment.
Sorry, but you've completely misread/misunderstood this portion of the law. That section merely exempts purchases/transfers of machine guns by government agencies. It does not allow for the BATF to to approve transfers to non-government persons or agencies. That was the intent of the legislature, to prevent post 1986 machine guns from entering the private marketplace, but to allow new guns to be purchased by the government.

Gifted
July 12, 2006, 04:40 PM
[/QUOTE]Sorry, but you've completely misread/misunderstood this portion of the law. That section merely exempts purchases/transfers of machine guns by government agencies. It does not allow for the BATF to to approve transfers to non-government persons or agencies. That was the intent of the legislature, to prevent post 1986 machine guns from entering the private marketplace, but to allow new guns to be purchased by the government.[/QUOTE]

Um, no:

(A) a transfer to or by, or possession by or under the
authority of, the United States or any department or agency
thereof or a State, or a department, agency, or political
subdivision thereof If the sheriff authorizes you to own a machine gun(CLEO sign off?), then you're allowed. You just have to find a state that will pass a law that allows such authroization, and then sue that you followed the law, and so you can't be denied.

Malum Prohibitum
July 12, 2006, 04:46 PM
I don't know if it would work that way, but that is certainly how overseas sales are legal - they are "under the authority of" the United States government.

;)

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