Any lawsuits over 1986 machine gun ban?


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Firethorn
February 20, 2006, 12:21 AM
With Alito's confirmation, I was just thinking about the 1986 closing of ATF's machinegun registration list.

Keeping in mind the 9th circuit's decision that it's none of the fed's business when a citizen decides to make one purely intrastate, are there any cases currently working their way through the court system to challange the closing itself? Or the whole system itself?

I'd consider opening one myself, but I'm afraid that I lack the resources, and am not an ideal candidate, being active duty air force. I would consider supporting one, though.

Searching through google I currently get a bunch of brady type sites.

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beerslurpy
February 20, 2006, 12:25 AM
Patience, grasshopper. One more justice.

Firethorn
February 20, 2006, 01:18 AM
Oh, and every time I hear the 'If you want to shoot machine guns join the military' I'll point out that I've been active duty for over six years and haven't shot a machine gun in automatic mode yet. Having an extra function to check doesn't count.

If it was possible, as in paying less than 2k for it, I'd purchase my own M16, along with an M4 style upper. I'll probably do that anyways, but I want to have skill with all functions of my weapon.

As a support troop, though, I'm just not likely to get it from the military.

beerslurpy
February 20, 2006, 01:23 AM
The NRA operates a legal defense fund that routinely supports litigation when there are important legal principles at stake. I imagine they would immediately try to force something up to the supreme court level if they thought it would be heard. Most cases are killed at the circuit court of appeals level and then denied certiorari. Or in Stewart's case, the case gets reversed and remanded on non-2nd amendment grounds.

One more justice will give us 5-6 solid votes for RKBA and that will be the time to start hearing cases.

ElTacoGrande
February 20, 2006, 01:29 AM
One more justice will give us 5-6 solid votes for RKBA and that will be the time to start hearing cases.

To be honest, I have nothing good to say about our current Leader, excep this SCOTUS picks. I hope he gets one or even two more picks in his next few years, and I hope he picks JANICE BROWN for SCOTUS!

Firethorn
February 20, 2006, 01:59 AM
Good point about the legal defense fund. I'm looking at it right now.

I already donate to the NRA-ILA.

Crosshair
February 20, 2006, 03:05 AM
One possible way to beat the 1986 MG ban is if the US military adopts a new weapon of some sort.(P90, SCAR, etc) Since we can't get any legal ones we have a claim that we don't have access to weapons that the militart has. Attempts to do this with the M-16 have failed since you CAN get an M-16, though it is $15000 for one. One can hope that this method or other will work.

/Remember, they had to march for 7 days before the walls of Jericho came down.:D

Firethorn
February 20, 2006, 03:50 AM
One possible way to beat the 1986 MG ban is if the US military adopts a new weapon of some sort.(P90, SCAR, etc) Since we can't get any legal ones we have a claim that we don't have access to weapons that the militart has. Attempts to do this with the M-16 have failed since you CAN get an M-16, though it is $15000 for one. One can hope that this method or other will work.

/Remember, they had to march for 7 days before the walls of Jericho came down.:D

Well, if it's any help one of our magazines had a listing of weapons in the Air Force arsenal for 2005, and it had the P90 in there. Seems it's being used for security in some buildings/locations. :evil:

Makes me wonder if there's a big ring somewhere in a mountain up in Colorado... :D

MGshaggy
February 20, 2006, 09:49 AM
The NFA has been challenged on various grounds, but its stood up over time. I think Raich/Stewart and the commerce clause angle was a dead issue from the start and I doubt another new justice is going to make any more of a difference. Raich was a 6-3 decision with Thomas, Renquist, and O'Connor dissenting. Renquist & O'Connor have been replaced by Roberts & Alito, so even assuming both Roberts and Alito would both vote the same way Renquist & O'Connor did, that still leaves you with a 6-3. Adding one more Justice would only get you to a 5-4, and I still have serious doubts that Roberts would see this issue the same as Renquist and not Scalia (who voted with the majority in Raich). From Rybar we see Alito probably would vote the same way, at least until 3 minutes after the opinion was released when Congress would hastily pass the NFA again, albeit with a jurisdictional element.

Firethorn
February 20, 2006, 01:41 PM
MGshaggy,
I'd consider the nullification of the whole NFA to be an extremely unlikely bonus. Right now I'd be satisfied if the courts simply forced the NFA to reopen the registry.

But yeah, I'll agree that the two judges that were replaced were already some of our better supporters. The likely votes haven't changed at all.

The only way one of the liberal ones would step down now would be if they were forced due to illness or injury resulting in disability.

ArmedBear
February 20, 2006, 02:02 PM
To be honest, I have nothing good to say about our current Leader, excep this SCOTUS picks. I hope he gets one or even two more picks in his next few years, and I hope he picks JANICE BROWN for SCOTUS!

Note that the SCOTUS is probably the most important body in DC. Laws are mostly crap, and lawmakers are just the buttholes spewing the crap. The President is just a guy with good hair.

Personally, I'll take a good SCOTUS over anything else in DC.

ctdonath
February 20, 2006, 02:31 PM
Congress would hastily pass the NFA againThe NFA would not go away.

922(o) is what prohibits new machineguns outright.
NFA, as affects machineguns, is still on the books yet inapplicable because you can't be charged with not registering something which the feds refuse to register (as a not-quite-SCOTUS court ruled recently). NFA isn't dead, it's resting.
The instant 922(o) is overturned and post-'86 machineguns allowed, NFA snaps back into place.

NFA is still legal because, as SCOTUS noted long ago, it's not a prohibition, it's a tax.

What Congress might do is promptly raise the $200 transfer tax to match its relatively crushing weight in 1934. $200, absent 922(o), is on the order of a 25% tax on the proper price of, say, a new fair-priced M16. Accounting for inflation, Congress could easily slip a tiny line into a massive budget bill and turn the $200 transfer tax into $20,000 - more on par with the original intent of NFA.

If we overthrow 922(o), then we would soon be faced with revisiting NFA itself with a higher transfer tax - a much harder issue to overcome, as SCOTUS has already ruled NFA valid, albeit harsh.

The moment 922(o) falls, there will be a run on machineguns - not only because of the pent-up demand plus "because I can" purchases, but also in anticipation of President Hillary pushing hard & fast for a hundredfold increase in the transfer tax. Demand will be HUGE.

mp510
February 20, 2006, 03:31 PM
One possible way to beat the 1986 MG ban is if the US military adopts a new weapon of some sort.(P90, SCAR, etc) Since we can't get any legal ones we have a claim that we don't have access to weapons that the militart has. Attempts to do this with the M-16 have failed since you CAN get an M-16, though it is $15000 for one. One can hope that this method or other will work.

/Remember, they had to march for 7 days before the walls of Jericho came down.:D

Now, to the best of my knowledge, the military has something like 30,000 nuclearweapons Now, I don't believe that those should or ever will be on trhe civilian market.

silliman89
February 20, 2006, 03:50 PM
i think it's more like 5,000 nuclear weapons.

Firethorn
February 20, 2006, 04:23 PM
922(o) is what prohibits new machineguns outright.
NFA, as affects machineguns, is still on the books yet inapplicable because you can't be charged with not registering something which the feds refuse to register (as a not-quite-SCOTUS court ruled recently). NFA isn't dead, it's resting.

So if I can't be charged with possessing a machine gun without paying the tax, because the feds won't accept my tax, does that mean it's legal?

So where can I go purchase one?

What Congress might do is promptly raise the $200 transfer tax to match its relatively crushing weight in 1934. $200, absent 922(o), is on the order of a 25% tax on the proper price of, say, a new fair-priced M16. Accounting for inflation, Congress could easily slip a tiny line into a massive budget bill and turn the $200 transfer tax into $20,000 - more on par with the original intent of NFA.

I'll be very, very fast, I promise. Plus, I don't think they have the votes right now, and I'm sure the NRA will come down on any attempts to raise the tax.

The moment 922(o) falls, there will be a run on machineguns - not only because of the pent-up demand plus "because I can" purchases, but also in anticipation of President Hillary pushing hard & fast for a hundredfold increase in the transfer tax. Demand will be HUGE.

I'm not so sure on this. If anything, in return for the increase in tax, we should be able to cram a number of pro-gun legislation 'poison pills' into it. Such as universal recognition of CCW permits, removal of mufflers from the process, etc...

FeebMaster
February 20, 2006, 04:59 PM
I'm sure the NRA will come down on any attempts to raise the tax.

Sure they will. After all, they fought against it so hard the last time.

Dmack_901
February 20, 2006, 05:20 PM
A $20,000 dollar tax on a <$1000 rifle is clearly a prohibition, and would be quickly found unconsitutional so I wouldn't worry about that. I am worried of the implications if the SCOTUS upheld the 20k tax, as that would be a clear dicision allowing the prohibition of firearms. That would be a heck of a straw on our back.

mp510
February 20, 2006, 05:29 PM
They are still are able to make short barrel shotguns, short barrel rifles, silencers, and other non-machine gun NFA items. The tax on those is still $200.

MGshaggy
February 20, 2006, 05:57 PM
I think youy completely missed my point.

The NFA and 922(o) exist concurrently. There is nothing inapplicable, unenforceable, or 'resting' about the NFA; 922(o) just adds another layer to the NFA which prohibits new registrations of MG for the civilian market. What I was saying in my prior post is that even IF 922(o) was to be struck down on commerce clause grounds (which is highly unlikely anytime soon), it wouldn't take Congress long to rewrite and pass 922(o) in its entirety with a jurisdictional element in anticipation of any such concerns as Alito had in Rybar.

However, if (and thats a monumental "if") 922(o) was ever struck down on commerce clause grounds you would need at least a few weeks or months lapse in 922(o) to get anything approved. Its still 2-3 months to get a form 1 through. I highly doubt it would take congress long to add enough of a jurisdictional element to 922(o) to save it, and the paperwork lag time at the NFA Branch would be plenty to prevent any registrations. Its been a while since I reviewed Haynes, but as I recall while the pre-68 NFA, unconstitutionally criminalized non-registration by a possessor, the GCA 1968 remedied that well enough by changing the regulatory scheme to require registration prior to any act of making or possession, and criminalizing possession of an unregistered weapon, so even if 922(o) went down, you still couldn't make anything new without first registering it.

FeebMaster
February 20, 2006, 06:07 PM
A $20,000 dollar tax on a <$1000 rifle is clearly a prohibition, and would be quickly found unconsitutional so I wouldn't worry about that. I am worried of the implications if the SCOTUS upheld the 20k tax, as that would be a clear dicision allowing the prohibition of firearms. That would be a heck of a straw on our back.

Right. After all, it was found unconstitutional so quickly last time.

YellowLab
February 20, 2006, 07:08 PM
There are actaully two cases that upheld post 86 MG ownership in spite of 922(o).

One was down south and another out west.


We can only hope for another amnesty.. that is the only REAL legal recourse.

Laws NEVER, EVER go away.

MGshaggy
February 20, 2006, 07:39 PM
There are actaully two cases that upheld post 86 MG ownership in spite of 922(o).

One was down south and another out west.


We can only hope for another amnesty.. that is the only REAL legal recourse.

Laws NEVER, EVER go away.

While I agree with the sentiment that another amnesty is the best we can realistically hope for, I don't know of any cases holding 922(o) invalid or unconstitutional. There are cases like Staples where the prosecution wasn't able, or neglected to prove certain elements of the crime, but thats a far cry from holding 922(o) invalid or unconstitutional.

ctdonath
February 20, 2006, 08:08 PM
So if I can't be charged with possessing a machine gun without paying the tax, because the feds won't accept my tax, does that mean it's legal?No.

NFA provides a legal (taxed) way to own a machinegun - pay your $200 tax + paperwork.
922(o) bans post-'86 machineguns outright.

Upshot is you can't be charged with owning a MG without paying the tax precisely because you can't legally own one period.

This comes from a case where a machinegun was illegally transferred and the perpetrators got caught ... and the BATFE pressed charges not on possessing an illegal post-'86 machinegun, but instead pressed charges on having not paid the $200 tax. SCOTUS (or next court down) said they can't be penalized for paying a tax that the tax collector (BATFE) wouldn't (because of 922(o)) collect.

ctdonath
February 20, 2006, 08:11 PM
A $20,000 dollar tax on a <$1000 rifle is clearly a prohibition, and would be quickly found unconsitutional so I wouldn't worry about that.Too late. In 1934, the tax/price proportions were about the same. It was a $200 tax on a (then) something like $5 gun. And yes, SCOTUS found that entirely Constitutional.

ctdonath
February 20, 2006, 08:18 PM
I don't know of any cases holding 922(o) invalid or unconstitutional.In extremely limited cases. One was Stewart, wherein a felon (thus completely unable to participate in interstate MG commerce) made (rather well) a MG from scratch; that case has since been remanded back to the 9th Circuit so that theory is on hold. The other I don't recall (but do recall reading it), but had something to do (again) with making a MG from scratch with no interstate commerce; nobody who understands the case is ready to step forward waving that flag.

Upshot of the two is: they were applied to extrememly narrow cases, and any attempt to apply them to normal upstanding citizens making/buying MGs will have :fire: :evil: :fire: unleashed on them.

ctdonath
February 20, 2006, 08:23 PM
We can only hope for another amnesty.. that is the only REAL legal recourse.There is the strong possibility of another amnesty, as BATFE has stated in court that the NFA registry is grossly, perhaps even criminally, erronious.

Unfortunately, an amnesty will do few any good. It will NOT let you register any post-'86 guns, period. Would-be registrants would have to convince the BATFE (the ones who screwed up the registry in the first place, sometimes wilfully) that the gun in question was in fact made pre-'86 - and that, most likely, by showing something to reasonably indicate the gun was in fact registered at one point (say, the BATFE authorization paperwork WITH cancelled NFA stamp, which oddly has no counterpart in the archives). A future NFA amnesty does NOT mean you can suddenly get & register an M4 or P90 (or any other guns which plainly are post-'86).

ctdonath
February 20, 2006, 08:28 PM
There is nothing inapplicable, unenforceable, or 'resting' about the NFA; 922(o) just adds another layer to the NFA which prohibits new registrations of MG for the civilian market.The Rock River Arms case held that NFA did not apply where 922(o) applied, to wit: you can't be convicted of not paying the NFA transfer tax on a machinegun which 922(o) prevents the BATFE from collecting the tax on. You can't get in trouble for not paying a tax the tax collector won't collect; however, that does not lessen the fact that you can't have post-'86 MGs.

Langenator
February 20, 2006, 10:37 PM
What case was it that stated that upheld the $200 NFA tax on automatic weapons? U.S. v. Miller applied specifically to short barreled shotguns, resting on the fairly flimsy reasoning that an SBS had no purpose in the maintenance of a militia.

Given current military armaments, this obviously wouldn't apply to either automatic or select fire weapons (M2, M240 family, M16/M4) or short barrelled rifles (M4-14.5" barrel). However, the courts have consistently and persistently misread Miller to read that placing a tax on something, whose possession is a right protected by the Second Amendment, is not an 'infringement,' and thus the NFA is OK.

Now, if you want to take on the '86 ban on the basis that the US military has something that civilians have no way of buying, SOCOM has just adopted the SCAR-L and -H. Navy SEALS also use the Mk-46 and Mk-48 machineguns, which to the best of my knowledge have never been available on the civilian market.

However, given the court's reluctance of the last couple of decades to issue broad, sweeping rulings, such a ruling would just make those specifc models legal, and Congress would close the registry again after FN had sold about a dozen of each.

beerslurpy
February 21, 2006, 12:29 AM
Too late. In 1934, the tax/price proportions were about the same. It was a $200 tax on a (then) something like $5 gun. And yes, SCOTUS found that entirely Constitutional.
You again. The supreme court never found the NFA constitutional. It dodged on an as-applied challenge to the NFA but didnt decide one way or the other.

Anyway, I think the current congress is pro-gun enough that revisiting the MG tax wouldnt happen.

publius
February 21, 2006, 07:09 AM
The supreme court never found the NFA constitutional.

Yes, they did.

SONZINSKY V. UNITED STATES , 300 U.S. 506 (1937) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=300&invol=506)

The question for decision is whether section 2 of the National Firearms Act of June 26, 1934, c. 757, 48 Stat. 1236, 26 U.S.C. 1132- 1132q (26 U.S.C.A. 1132-1132q), which imposes a $200 annual license tax on dealers in firearms, is a constitutional exercise of the legislative power of Congress.
...

Here the annual tax of $200 is productive of some revenue. We are not free to speculate as to the motives which moved Congress to impose it, or as to the extent to which it may operate to restrict the activities taxed. As it is not attended by an offensive regulation, and since it operates as a tax, it is within the national taxing power.

MGshaggy
February 21, 2006, 10:12 AM
The Rock River Arms case held that NFA did not apply where 922(o) applied, to wit: you can't be convicted of not paying the NFA transfer tax on a machinegun which 922(o) prevents the BATFE from collecting the tax on. You can't get in trouble for not paying a tax the tax collector won't collect; however, that does not lessen the fact that you can't have post-'86 MGs.

First off, an apology. I completely missed your point yesterday. Sorry about that. For some reason I went off on a tangent about the constitutionality of the registration requirements vis-a-vis the 5th Amendment. I don't know what I was thinking...maybe thinking about all the bases upon which the NFA has been challenged threw me off track.

Anyhow...

Its clear to me now you were referring to the Rock Island case about their M60s. Rock Island, while definitely holding that one could not be prosecuted for possesion of an unregistered MG under the NFA when 922(O) prevented payment of the necessary tax, was impliedly overruled by US v. Ross in the 7th Circuit (which hears appeals from the District Court of Illinois in which Rock Island was decided), following the same logic of the 4th Circuit in US v. Jones. The following, originally from Jones, was quoted in the Ross opinion to explain:

"In the absence of some affirmative showing of an intention to
repeal, the only permissible justification for repeal by im-
plication is when the earlier and later statutes are
irreconcilable." . . . [T]he two statutes are not
irreconcilable because, despite Jones' assertions to the
contrary, Jones can comply with both acts. While he may not
be able to register newly-made machine guns in which he deals,
neither act requires him to deal in such guns. Simply put,
Jones can comply with both acts by refusing to deal in newly-
made machine guns.... What Jones is really complaining about
is that the amendment to the Gun Control Act effectively
tendered possession o certain guns automatic violations of
both the Gun Control Act and the National Firearms Act. Yet
there is nothing either inconsistent or unconstitutionally
unfair about Congress' decision to do so. And, faced with two
equally applicable penal statutes, there is nothing wrong with
the government's decision to prosecute under one and not the
other, so long as it does not discriminate against any class
of defendants.

coat4gun
February 21, 2006, 10:47 AM
The word is clear to me.... precident is bull... the Feds have no authority to make any law that Infringes on My Right to Keep and Bear anything I consider an Arm... since I am the Person with the Right being Infringed... machine guns included.

lets not get caught up in the heat of the argument. All of these Federal laws are totally unconstitutional and therefore should be deemed invalid. This is the decision that needs to be made by SCOTUS. It is the only decision that is the Truth. All other decisions are half truths... and therefore are part lie.

Unrealistic... maybe, but I can dream, can't I...

Autolycus
February 22, 2006, 03:20 AM
The word is clear to me.... precident is bull... the Feds have no authority to make any law that Infringes on My Right to Keep and Bear anything I consider an Arm... since I am the Person with the Right being Infringed... machine guns included.

lets not get caught up in the heat of the argument. All of these Federal laws are totally unconstitutional and therefore should be deemed invalid. This is the decision that needs to be made by SCOTUS. It is the only decision that is the Truth. All other decisions are half truths... and therefore are part lie.

Unrealistic... maybe, but I can dream, can't I...


Thats pretty much the way I feel. We all know that the $200 tax was meant to prevent people from owning such weapons. We all know what the motive was behind all of this BS gun control legislation. Lets not forget the spirit of the law.

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