Problem with not getting cert for parker


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LawBot5000
March 21, 2007, 02:55 PM
I previously have said that we could meaningfully challenge 922(o) in the DC circuit, even if cert wasnt granted. I think, upon further reflection, that I was incorrect.

922(o) is a criminal statute barring all possession of machine guns, not a tax statute as its predecessor was. Even if one could successfully challenge 922(o) in the DC Circuit and get an approved Form 1 and make the machine gun, possessing it outside the jurisdiction of the DC circuit would still be illegal. I dont think having paid the tax is a defense against prosecution under 922(o)- in fact every jursidction I am aware of has said that 922(o) extinguishes the NFA tax on machine guns.

Of course, machine guns would be legal in washington DC, making the circuit split all the more obvious, but that wouldnt really help us here in the other 11 circuits.

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Sam Adams
March 21, 2007, 05:57 PM
Even if one could successfully challenge 922(o) in the DC Circuit and get an approved Form 1 and make the machine gun, possessing it outside the jurisdiction of the DC circuit would still be illegal.

Wouldn't you then have a case/controversy that your right under the 2nd Amendment was in danger of being violated, on pain of criminal sanctions? Or does someone actually have to be charged to bring it to court?

922(o) is a criminal statute barring all possession of machine guns

Doesn't this mirror the DC gun ban, except that it is federal law instead of DC law? Wouldn't the same issues apply (just to a different level of government), thereby forcing the same result? [BTW, since the only objection in the dissent was that the 2nd Amendment doesn't apply to DC, since it isn't a state, doesn't apply to the Feds - the BOR was, of course, initially drafted to apply specifically to the Feds.

LawBot5000
March 21, 2007, 07:03 PM
That's the problem. If it doesnt get to the supreme court, there is nothing to make the 10 antigun circuits revisit their 2nd amendment jurisprudence. Your defense that 18 USC 922(o) violated the 2nd amendment wouldnt hold up in the 9th circuit because the 9th circuit doesnt beleive that the 2nd amendment guarantees an individual right.

And yeah, 922(o) mirrors the DC handgun ban, except that the DC ban is only in force in the DC Metro area. 922(o) is in force in all 11 main circuits including the 5th. Winning Parker in the DC Circuit gives us the ability to possibly upset 922(o), but someone arrested for having a post-86 machine gun in Florida would still have to argue uphill against 11th circuit anti-gun jurisprudence. We want Parker on the books in all 11 circuits, and that requires that it be challenged and upheld in the supreme court. That way, each circuit not currently suscribing to the individual rights model gets brought into line.

And then there is the ugly possibility of us getting cert and losing which would put us back to square one again (but with angrier gun voters hopefully). I would hope the supreme court doesnt get a question this easy wrong, but we only have 4 solid pro-gun votes at the moment and the supreme court has a long history of badly botching the obvious ones. The more likely solution is a win in the suprme court, but a very narrow nigh-meaningless one.

Sam Adams
March 26, 2007, 01:20 PM
Then wouldn't the solution (i.e. getting to the Supreme Court) be to have someone in the 5th Circuit send in a Form 1 to the BATFE for a post-'86 gun, and get refused? It'd seem to be a simple matter, with no risk of imprisonment - but a harm (not being able to exercise a Constitutionally-protected right on pain of imprisonment) that would rise to the level of a case or controversy.

LawBot5000
March 26, 2007, 02:36 PM
Emerson doesnt really command overturning 922(o) as strongly as Parker. It recognizes an individual right but doenst provide an example of what sort of law might constitute an infringement.

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