Sawed off shotguns now legal?


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Fisherman_48768
October 11, 2007, 09:49 PM
When the Supreme Court ruled in 1939 that Miller couldn't own a sawed off shotgun because the government attorney said the military didn't use them therefore Miller as a member of the 'militia' couldn't own and possess one either.
Well things have changed, the court ruling didn't change, the 2nd Amendment didn't change the technology and application needs changed. The US Military is now issuing Remington 870MCS sawed off shotguns (10" bbls and pistol grip stock).
So my question is since the Gov't lawyer said that the military didn't use sawed off shotguns as the prosecutions argument against them. Therefore, the 'milita'(you and I) didn't get to use them either but now that same Gov't is issuing sawed off shotguns with short stocks is the SC ruling now void?

The Miller v US case was decided soley on the sawed off shotgun issue and the military usage of them.

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AntiqueCollector
October 11, 2007, 10:01 PM
The government lied then to the courts, they used short barreled shotguns in WWI.

Kimber1911_06238
October 11, 2007, 10:09 PM
the gov't lied? I'M SHOCKED!!! Don't count on that changing anything

Fisherman_48768
October 11, 2007, 10:12 PM
I know that, you know that but apparently none of the Justices at the time had served in the military. Now we have their ruling to live with and the gov't issuing sawed off shotguns to military members. What does this do to the militia clause? I personally could care less about owning one but the argument presented by the gov't has hamstrung gun owners long enough because it was based on a lie.

Hkmp5sd
October 11, 2007, 10:12 PM
Chop off your 870 to 10 inches, take a picture, mail it to ATF and ask them. :)

sig226
October 11, 2007, 10:13 PM
The US military had issued them long before the stupid NFA and the Miller case. The Miller case did not say that Miller could not have a sawed off shotgun (Short Barreled Shotgun.) It said, "In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

Miller was convicted at trial and his lawyer appealed on the grounds that the National Firearms Act violated the second amendment of the United States Constitution. The appellate court agreed with Miller. The court didn't hear arguments. It tossed the conviction and the N.F.A. along with it

The Supreme Court didn't say much of anything in the Miller case. What they did say was this, "With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they [p179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion."

Thus, the Miller case actually says that the National Guard IS NOT THE MILITIA and that the second amendment does not apply to the National Guard.

Then the justices reversed the appellate court and remanded the case for further hearing. To remand a case is to send it back to a lower court so the lower court can gather more information. But courts will not hear cases where there is no issue to decide. So the Supreme Court can't say that the N.F.A. is unconstitutional, but we want the lower court to listen to oral arguments to give us more information. The lower court would refuse to do it as it would be a waste of time. So the Supreme Court has to reverse it, then they can force the lower court to reexamine the case and demonstrate the grounds for the lower court ruling.

Notice that the Supreme Court decision does not say that a sawed off chotgun has no military use. It says, "In the abscene of any evidence . . ." Therein lies the rub. The court invited Miller to show evidence that the N.F.A. violated the second amendment because a short barreled shotgun was a weapon used by the military. But Miller was dead, and no further hearings were held.

The Supreme Court cowed to Franklin Roosevelt, who had threatened to add more justices to the court in order to pack the court and get his own way. They evaded revoking an enumerated right in the constitution, issuing instead a piece of garbage ruling that is misinterpreted every day.

Of course the sawed off shotgun is part of the ordinary military equipment. The National Firearms Act specifically exempted the army and the police (paramilitary organizations) from the ban on them. The N.F.A. is illogical on its face, but no one ever got to argue the point before the court after the court enforced the bill of rights on the states.

Bartholomew Roberts
October 11, 2007, 10:18 PM
First, the government didn't say that shotguns had no military/militia use.

Miller had filed a demurrer motion to dismiss his charges under the Second Amendment. The judge (a longtime supporter of gun control) agreed and said the 1934 NFA violated the Second Amendment. Under the procedural rules at the time, the issue went directly to the Supreme Court. There was no evidence of any kind because the motion had been filed prior to trial and a demurrer motion did not require any evidentiary hearing.

The Court stated that it was "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

Miller died before the trial was remanded to the lower court and so no evidence was ever offered. However, you might want to look at two Supreme Court cases: U.S. v. Staples and Thompson Center Fire Contender, before you go cutting any shotgun barrels.

Shweboner
October 11, 2007, 10:23 PM
Chop off your 870 to 10 inches, take a picture, mail it to ATF and ask them.

Make sure the return address is written clearly:neener:

Hypnogator
October 11, 2007, 11:45 PM
The government lied then to the courts, they used short barreled shotguns in WWI.

Mmm, welllllll.... Depends on your definition of "short barreled." WWI trench guns had 20" bbls, which would be perfectly legal under the NFA.

Hkmp5sd
October 12, 2007, 12:51 AM
The Court stated that it was "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."


Does this decision not then mean that any weapon (such at the M16 rifle) that does have a relationship with a well regulated militia, is protected by the Second Amendment?

Ieyasu
October 12, 2007, 01:45 AM
Thus, the Miller case actually says that the National Guard IS NOT THE MILITIA and that the second amendment does not apply to the National Guard.
Huh? Where does it say that in Miller? (Rhetorical question)

Actually, the Supreme Court in MARYLAND v. U.S. (1965) held, "The National Guard is the modern Militia reserved to the States by Art. I. 8, cl. 15, 16, of the Constitution.")

In 1990, Perpich v. Department of Defense, 496 U.S. 334 (1990), the Court explains that when in the service of the states, National Guardsmen function as militia. Once a member of a State Guard unit is ordered into active military service of the United States, that person is no longer under the command of, or serving, a State Guard unit (until they are relieved from federal service), but is now a member of the army.

AZRickD
October 12, 2007, 02:09 AM
Does this decision not then mean that any weapon (such at the M16 rifle) that does have a relationship with a well regulated militia, is protected by the Second Amendment?
Yes, as well as pistols, Liberator handguns and toothpicks.That is why lower federal appeals courts freaked out in 1942.

Look up "US v Tot" and "Cases v US" both 1942 decisions.

http://www.guncite.com/court/fed/

Rick

MisterPX
October 12, 2007, 03:07 AM
The problem is, that Miller didn't show up to challenge the courts. If he would have, things, NFA, would be presumably different today.

frankie_the_yankee
October 12, 2007, 03:45 AM
Military issued short barrelled shotguns, M16's, etc. mean absolutely nothing to gun owners today. A SCOTUS ruling doesn't change its meaning because someone wishes it would. The only thing that will change the meaning of the Miller ruling is A NEW RULING that supercedes all or part of it.

And anyone holding their breath waiting for the NFA to be overturned is gonna suffocate and die. It ain't gonna happen. SCOTUS will rule very narrowly on the Heller case. The 2A will be ruled to be an individual right, as we all believe it to be. But that right will be subject to "reasonable" regulation, which many of us consider unconstitutional.

Many think that any regulation constitutes an "infringement". They are wrong. That's simply not the way the law or the constitution work. All of the rights in the BOR are subject to some restrictions. The 2A will be no different.

The thing to watch for in Heller is whether the Court rules that any gun control law must pass a test of "strict scrutiny". This means that the law should be written as narrowly as possible, and that the government needs to show a clear relationship between the law and the stated goal. IOW, if the law cannot be shown to reduce crime, for instance, it would fail the test. This would be good for us, because as we all know, there is almost no evidence that gun restrictions reduce crime.

This would open the door for challanges to many existing restrictions, especially restrictive carry permit policies as exist in some states.

There are other standards that the Court could apply that are less demanding than strict scrutiny, but IANAL and I do not know what they all are. But strict scrutiny is the standard frequently applied to laws that would restrict elements of the BOR, so we have a chance that SCOTUS would apply that standard in this case.

One likely result will be a narrow ruling that allows for states to determine policies towards carrying handguns, (for now) but affirms the right to own them. I expect that state FOID cards and even registration requirements will be left intact. As long as the state/local law doesn't ban ownership, SCOTUS is going to leave it alone for the time being.

But a good individual rights ruling in Heller could set the stage for more challanges to more laws at a later time. Perhaps restrictive policies for issuing carry permits may be shown to fail the test. (Johnathan Lott's work could be key here.)

shield20
October 12, 2007, 08:37 AM
My take based on the wording of the ruling is that if Miller had been caught with a BAR instead of a SOS, M16s, M4 etc would be indeed be legal, as that part of the NFA would have been deemed unconstitutional.

geekWithA.45
October 12, 2007, 09:26 AM
Rest assured that at ~some~ point, after the individual nature of the right of arms is affirmed, it will be a legal strategy to bring into judicial notice the fact that the military issues short barreled rifles, shotguns, automatic weapons, grenade launchers, and grenades, indeed, what Tenche Cox referred to as " every other terrible implement of the soldier".

The reason that point isn't being pushed is that it doesn't make sense to do it with something as basic as the individual nature of the right in legal limbo.

As much fun as it would be to see the antigunners soil themselves on the topic, the thing is that lots of our society who currently aren't aligned with the forces of organized gun bigotry would soil themselves too, and find themselves in sympathy with our enemies.

Not a smart play @ this stage of the game, no.

TexasRifleman
October 12, 2007, 09:34 AM
The problem is, that Miller didn't show up to challenge the courts

Yea that whole being dead thing really messes up an evening huh? :)

Beatnik
October 12, 2007, 10:01 AM
So....
I thought that sawed-off shotguns, like automatic rifles, are legal, but require the tax stamp.

I thought there was a bigger problem - Congress didn't have any right to ban them, so they didn't ban them, they just made the bureaucracy incredibly difficult to deal with.

frankie_the_yankee
October 12, 2007, 10:03 AM
GeekwithA.45 writes: Rest assured that at ~some~ point, after the individual nature of the right of arms is affirmed, it will be a legal strategy to bring into judicial notice the fact that the military issues short barreled rifles, shotguns, automatic weapons, grenade launchers, and grenades, indeed, what Tenche Cox referred to as " every other terrible implement of the soldier".

Possibly. But I do not think that effort will get anywhere.

GeekwithA.45 wtires: As much fun as it would be to see the antigunners soil themselves on the topic, the thing is that lots of our society who currently aren't aligned with the forces of organized gun bigotry would soil themselves too, and find themselves in sympathy with our enemies.

Stare decisis will come into play here. I would say it is a certainty that this or any future Court would regard the status of the NFA as "settled law". Overturning it would create huge disruptions in the gun laws at every level of government.

It would be as if the Court suddenly ruled that the government had no right to issue paper money, and that gold and silver specie were the only acceptable forms of legal tender.

They ain't gonna do it.

Furthermore, NFA weapons are not banned. You can own silencers, short-barreled weapons, machine guns, etc. as long as you pass the background check and pay the transfer tax. It will be very easy for the Court to determine that these restrictions are "narrowly tailored", "reasonable", and meet the requirements of "strict scrutiny".

For my own part, I would be happy to see mandatory "full faith and credit" applied to CHL's. But even that modest step will be a long hard slog.

Ieyasu
October 12, 2007, 11:05 AM
Look up "US v Tot" and "Cases v US" both 1942 decisions.
I remember first reading US v Tot and being struck by the irony of the date.

Sam Adams
October 12, 2007, 11:27 AM
Furthermore, NFA weapons are not banned. You can own silencers, short-barreled weapons, machine guns, etc. as long as you pass the background check and pay the transfer tax. It will be very easy for the Court to determine that these restrictions are "narrowly tailored", "reasonable", and meet the requirements of "strict scrutiny".

Excuse me, but you cannot own ANY machine gun manufacturered after May 19, 1986 (Title 18, Section 922(o)). It doesn't matter if you pass the background check, pay the tax and get the permission of the Chief LEO in your area. This ban is identical in form to the DC handgun ban, wherein DC residents are prohibited from owning any handgun not registered before the effective date of DC's law during 1976...which ban was ruled to be in violation of the 2nd Amendment by the DC Circuit Court earlier this year (US v Parker). Of course, this case is on appeal to the USSC, and we'll likely see within a month or so if the Court will grant Cert. or not.

If the Court lets the ruling stand by not granting Cert., or if it takes the case and affirms the ruling, then the BAN on post '86 full autos will be illegal...all someone will need to do is bring a case against the BATFE after having been denied on their Form 4. The real beauty of the Heller case being in the DC Circuit is that one party to any potential case "lives" in DC - the federal government. Any citizen from any state can bring such a suit. I think it'd be wonderful if someone from the 5th Circuit (the only one besides the DC Circuit that ever said that the 2nd Amendment protects an individual right) and someone from the 9th Circuit (which vehemently denies any individual 2nd Amendment rights) both brought a case. Hell, get one person from every Circuit to bring the case, then have them join together when they don't get the results they want.

geekWithA.45
October 12, 2007, 11:49 AM
Furthermore, NFA weapons are not banned. You can own silencers, short-barreled weapons, machine guns, etc. as long as you pass the background check and pay the transfer tax. It will be very easy for the Court to determine that these restrictions are "narrowly tailored", "reasonable", and meet the requirements of "strict scrutiny".

The court may determine that, but such a determination would fly in the face of any reasonable understanding of the word "infringed", and also fly in the face of the principle that you may -not- tax the instrumentality of a fundamental right.

As to the overall point, that the court would probably -not- engage in a wide ranging, tumultous all at once ruling, that is quite right. Like brown vs board of ed, this fight will be won in a sequence that will drag on for years.

Smurfslayer
October 12, 2007, 12:33 PM
One the arguments put forth in this long fight has been that if the the city is legally allowed to ban a specific class of "arms" (handguns), then nothing prevents them from banning and entire class of arms ( firearms )... or swords, flails, pikes, daggers - you name it. That leads to an impossible legal outcome.

The supreme court would have to address this specific point for there to be even a glimmer of hope that the post 86 restrictions treaded on prohibited (by the Constitution) ground. The result of the DC case is what is important NOW. Concentrate on that.

IMO, the net result of any ruling overturning the '86 ban will be obfuscation by BATF since NFA would not have been overturned. They will send their storm troopers to Congress and demand they repass the restrictions, while at the same time freezing all Forms 1-4 processing until the new and improved law were passed.

littlegator
October 12, 2007, 12:38 PM
I guess it's time for me to scrounge up some dough and get that Benelli M4 with collapsible stock and shortened barrel then?

frankie_the_yankee
October 12, 2007, 01:29 PM
The court may determine that, but such a determination would fly in the face of any reasonable understanding of the word "infringed", and also fly in the face of the principle that you may -not- tax the instrumentality of a fundamental right.

Stare decisis. It doesn't matter what is a "reasonable understanding of the word infringed". The Court is not going to declare paper money illegal no matter WHAT the constitution says, and they are not going to overturn the NFA.

And different people can honestly disagree on what "infringed" means. I know of people who think that ANY regulation amounts to an infringement and hence, is unconstitutional. I myself believe that requiring a license to carry concealed is NOT an infringement, so long as the license is "shall issue" to any law-abiding adult. I have no problem with criminals and lunatics being ineligible to carry concealed, or even to own guns.

But as always, what matters is not my opinion or yours, but the opinions of the nine justices that make up the SCOTUS.

Excuse me, but you cannot own ANY machine gun manufacturered after May 19, 1986 (Title 18, Section 922(o)). It doesn't matter if you pass the background check, pay the tax and get the permission of the Chief LEO in your area. This ban is identical in form to the DC handgun ban, wherein DC residents are prohibited from owning any handgun not registered before the effective date of DC's law during 1976...which ban was ruled to be in violation of the 2nd Amendment by the DC Circuit Court earlier this year (US v Parker). Of course, this case is on appeal to the USSC, and we'll likely see within a month or so if the Court will grant Cert. or not.

1) There is a big difference between guns registered before a certain date and guns manufactured before a certain date. The situations are not identical.

2) I am pretty confident that the Court will grant cert.

3) I would have preferred to wait until Stevens or Ginsberg retired before bringing this case to SCOTUS, but I think our chances are pretty good for a favorable ruling even with the current Court.

4) It is possible that the ban on post-1986 full autos may be lifted as a result of some future lawsuit. But trust me when I tell you that the NFA is here to stay. Settled law.

Fosbery
October 12, 2007, 01:47 PM
Don't some states ban NFA weapons entirely, which would be in breach of the 2A assuming the individual rights thing comes through? Vermont, for instance, bans silencers (ok, nobody really wants to screw with Vermont because they'be probably got the best gun laws but I bet Maryland has banned machineguns or something).

frankie_the_yankee
October 12, 2007, 01:52 PM
Don't some states ban NFA weapons entirely, which would be in breach of the 2A assuming the individual rights thing comes through? Vermont, for instance, bans silencers (ok, nobody really wants to screw with Vermont because they'be probably got the best gun laws but I bet Maryland has banned machineguns or something).

Yes, some do. And it is possible that those bans may not survive some future lawsuit IMO.

rino451
October 12, 2007, 02:45 PM
It's important to note that it has often been left to the states to decide for some time now. That's why Heller is important - there is no "state" in DC which forces the court to make a determination for the entire country (@ the federal level) with regard to the interpretation of the 2A.

I could be wrong, tho...

ilbob
October 12, 2007, 02:46 PM
The Court is not going to declare paper money illegal no matter WHAT the constitution says, and they are not going to overturn the NFA.
Despite what some people think, the constitution never forbade the federal government from issuing paper money. It does prohibit individual states from making anything other than gold or silver as legal tender, but presumably the federal government under its power to coin money and regulate the value thereof, could do so.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts;

frankie_the_yankee
October 12, 2007, 02:50 PM
My example may have been off target a little (though I "borrowed" it from Bork who used it in one of his books), but I still say that the Court is not gonna overturn the NFA. Settled law.

ilbob
October 12, 2007, 03:07 PM
My example may have been off target a little (though I "borrowed" it from Bork who used it in one of his books), but I still say that the Court is not gonna overturn the NFA. Settled law.
Actually, in many respects, the NFA is not so much settled law as it is law that the courts are afraid to touch. For the most part they have avoided direct rulings on NFA cases on 2A grounds, which is certainly where the best case is.

People point to things like the Dred Scott decision as cases where bad precedents get tossed out, but few people remember that the Dred Scott decision was overturned by a constitutional amaendment, and not just a court changing its mind.

Courts make mistakes now and then (read the Roe v. Wade decision if you want a good example of just plain wrong legal thinking) and even then are not inclined to correct their mistakes. I think the feeling is that it is inherently unfair to change the law once people start to depend on it.

The courts give a lot of deference to government at all levels, and are loath to overturn a law unless they are absolutely forced to. Thats why you see the tortured logic that comes with some of the worst decisions.

There are some good reasons behind this. Suppose you decided that private property could not be taken and given to another private party. What do you do with the thousands of cases where this has happened over the years? You can't go back and tear down the shopping centers or whatever else was already built, so the courts almost had to come up with some kind of justification.

And in fact, the 5th amendment does not actually prohibit the taking of private property and turning it over to another private entity. Read it quite carefully.

Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

geekWithA.45
October 12, 2007, 03:25 PM
Frankie T. Yankee:

I'm actually agreeing with you that the NFA will stand for the foreseeable future, due to state decisis.

I don't know that it will stand for all time, however.

I am noting that the basis for its eventual downfall exists, and is being reinforced in our current era.

But as always, what matters is not my opinion or yours, but the opinions of the nine justices that make up the SCOTUS.

That's true, but only to the limited degree that their stewardship of it meets with our overall approval. Ultimately, it's -OUR- Constitution, not theirs, and if they go too far afield, we may find it necessary to take it back.

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