[jlbraun]

I've read more than a few people saying this here.

In case you forgot, this case was about HANDGUNS:

Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

The question being ruled on was the right to own a handgun in your own home. I read the transcripts, the justices were trying to trip Gura up and make him broaden the scope of his case to machineguns or an outright NFA challenge - which if he had fallen for it, would have resulted in a collective rights ruling - because machineguns are clearly military weapons.

Secondly, if Gura had fallen for it, entire reams of amicus legal briefs would have been wiped out - because all those briefs were talking about was the question before the Court about handguns. Broadening to machineguns would have left Gura out in no-mans-land without a brief to stand on. Cases are decided on briefs, not on oral arguments.

Thirdly, handguns are the biggest boogeyman to the Bradys - handguns are used in more crimes than rifles or shotguns. Affirming the right to own a handgun absolutely buries the Bradyites, and all they are left with is screeching about rifles and shotguns, which makes them look like lunatics because long guns are so rarely used in crime. Gura did good by confining the case to handguns and other common long arms.

Fourthly, it's obvious to the judges how similar the DC, Chicago, NYC, and 922(o) bans are - and they are aware that all it's going to take is copy-pasting the Heller case to knock those down. They're probably also aware of Gura's intentions to knock down the Chicago ban. They might take a shortcut and incorporate.

So get a grip. The sky ain't falling. I'm looking forward to an ironclad ruling on handguns. That alone will make me happy. Y'all should be too. :D

[buzz_knox]

I read the transcripts, the justices were trying to trip Gura up and make him broaden the scope of his case to machineguns or an outright NFA challenge - which if he had fallen for it, would have resulted in a collective rights ruling - because machineguns are clearly military weapons.

Secondly, if Gura had fallen for it, entire reams of amicus legal briefs would have been wiped out - because all those briefs were talking about was the question before the Court about handguns. Broadening to machineguns would have left Gura out in no-mans-land without a brief to stand on. Cases are decided on briefs, not on oral arguments.


Exactly. He argued the case that was before the Court, not what everyone thought the case was.

Besides, if Heller goes as hoped, it can be combined with Miller .

[LawBot5000]

Because machine guns weren't before the court. Notice that Breyer and the SG were hammering on machine guns because the "scare white people" tactic is all they have left at the moment. Gura just said anything to quickly get them off the subject. It seems sloppy and weak, but it was actually the least bad way of dealing with a hostile appellate judge.

I don't think they will foreclose litigating the 86 ban. I didn't sense a lot of apprehension about machine guns. The 5 justices on our side seemed pretty dismissive of the SG/Breyer's concerns about plastic guns and armored bullets.

[ConstitutionCowboy]

Justice Scalia brought up machine guns. It's on HIS mind, at least.

Woody

[Mike OTDP]

Probably because he wants a Thompson :-)

[divemedic]

When cert was granted, the question was phrased by SCOTUS like this:

Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

The ruling will strike down the law, and the door is open for a lot more cases. Start giving money to the various organizations that will be litigating now- here comes the pro gun counter attack.

Cato (from what I have read) is planning a legal attack on NYC's (Second Circuit) laws next. I would also expect Chicago (7th circuit), possibly Maryland(4th circuit), and 922(o) (Federal Circuit) to face challenges. California would also be a possible target, but being in the Ninth Circuit, it would not be a wise move for anyone.

[Vibe]

Actually all it would take (or should take) is for the "evidence", "not submitted before the court" in Miller - IE that a shotgun with a barrel of less than 18" is of use to the militia (IE Military)- to be submitted before the court. It wasn't presented in Miller only because Miller was a one sided decision, the defendant was not represented (since he was deceased at the time). The "evidence" is readily available, since trenchguns of all types had been used before Miller and fairly widely used even afterwards. Not only in the Military, but also in Law enforcement. Clearly demonstrating their "use to the Militia" and satisfying the Miller test.

[ctdonath]

Some of us just wish he had a more elegant way of disposing of the "this case isn't about MGs" problem than just throwing 'em under a bus.

[USAFNoDAk]

But you have to have someone who is harmed by the law to bring a challenge to the law. Thus, wouldn't you have to find someone who is willing to saw off a shotgun barrel to less than 18 inches in length and attempt to transport it across state lines, in violation of the NFA of 34? Any volunteers?

I do agree that there was ample evidence around that trench guns were used for military duty in WW1. The USSC seemed to use the fact that no one presented that evidence to THEM, as a loophole to avoid having to rule on the case. They probably also knew then, that machine guns were in common military and civilian use at the time. So they were able to skip around having to declare the NFA34 as being unconstitutional.

Now, it seems, some justices are not worried about machine guns being in common use because the NFA34 and the FOPA86 made them too expensive and rare to own. Talk about self fulfilling prophecies.

Still, the Heller case was not about machine guns. We first need to get the USSC on official record claiming that the 2nd A GUARANTEES an individual right to keep and bear arms. What the term "arms" means, will have to be decided at a later date. But certainly, handguns are arms, which are in common use at this time by the military and by civilians. It seems as if it would be hard for the justices to ignore those facts. However, I don't trust them to always act with logic when they are dealing with public policy and public "safety" issues.

[Jamie C.]

The machine guns I've seen and handled are pretty tough... they can take being chucked under a bus for a while.

Seriously... folks need to learn to be more patient, and more focused.


J.C.

[LAR-15]

Not to mention since Miller the standard military arm has changed to one that is a 'machine gun' under Federal law and the law of most states.

[BattleChimp Potemkin]

Well, its cases like this that cause paranoia and fear rampant in our communities, causing folks to either step up letters to government (pro or anti) or stock up on ammunition. I think that this gives folks a bad image (hoard all we can before the "ban" comes b/c our gun community is based on fear, not enthusiasm). That last statement may get folks mad at me (yeah, I know), however, look around at gun shows and what is talked about in gun shops all over. Fear based rhetoric (what if the economy fails, what if the SHTF, what if the price of gold keeps going up, the "evil" chinese are buying all our resources, etc...). Its easy to put a infinite amount of fear into a community that is very prone to it and essentially industries gear towards fueling that paranoia.

+1 Jaimie C
We need to focus and keep writing letters, talking to folks about pro-gun legislation, rather than freting about something the average gun user/owner doesnt need, only want. I would rather have a sensible means to defend myself (handgun or decent rifle) than attempting to throw the dice on something I really dont need (and jeopardizing the entire issue).

[kfranz]

rather than freting about something the average gun user/owner doesnt need, only want. I would rather have a sensible means to defend myself (handgun or decent rifle) than attempting to throw the dice on something I really dont need (and jeopardizing the entire issue).


You have conceded that there is a "need" test. You don't "need" any of the things that you posses. I understand your concern about jeopardizing everything to protect something that few posses. Do NOT let the concept of NEED be what comforts that concern.

[AirForceShooter]

I listened to the whole thing. Frankly I thought all the lawyers were horrible. On both sides.

And the press conference after was a disaster for us. All Heller could say was " an armed society is a polite society". That's it? didn't anybody prep this guy.
The DC types talked like they knew they lost and were looking for an out and that was "restrictions" .

AFS

[Thumper]

The unfortunate thing is that some of those on our side let their emotions cloud their sensibilities sometimes. It looks like Gura played this exactly right.

All we wanted out of this thing (and the best thing we could have gotten) is an Individual ruling and for Heller to win. It looks like we might have exactly that.

Everything else is to be argued at a later date.

I'm disappointed at the lack of sophistication of some of our members.

[TexasRifleman]

And the press conference after was a disaster for us

This will be decided outside of press conferences. We always take a beating in the media anyway no matter who is speaking.

[ArmedBear]

since Miller the standard military arm has changed to one that is a 'machine gun' under Federal law and the law of most states.

Interestingly, Ginsburg, who I really thought was pretty spaced-out and out of touch last term, was most cognizant of this fact, and that the "Miller Test", combined with an individual rights ruling, would all but guarantee that any law-abiding American could buy an M4.

This is a strange wrinkle. This case could end up having the unexpected effect of overturning Miller, which isn't even ostensibly before the court. Or, the justices could even find that we DO have the right to buy a new M4, but that the government can make it difficult (i.e. the NFA somehow fulfills the Militia Clause).

Either way, having listened to Gura and now almost done reading the whole transcript start to finish, I think that what he's really doing is trying to defuse the diversion that the SG wants to inject into the case. Gura wants an individual-rights ruling. He's not trying to argue about exactly which guns are protected, since he is arguing on behalf of the most common defensive firearm by far. Furthermore, he recognizes that, whatever he says about machine guns will not matter to the ruling, since the case isn't about machine guns. So, when he says, as an attorney, that something "would be acceptable to us", that means that he's trying to win the case at hand.

Like it or not, this is what he's doing.

[TexasRifleman]

i.e. the NFA somehow fulfills the Militia Clause).

I really think that is the best approach to this, in our lifetimes at least.

No one is going to overturn NFA or anthing remotely close to that.

The target for now should be Hughes.
Get the NFA registry opened up at $200 a pop then worry about the rest later.

It took from 1939 to 2008 for a Second Amendment case to get to the Supremes. They are not going to be lined up one a year after this.

Let our children worry about overturning NFA completely, while they enjoy shooting full autos that we were able to leave them with a tax stamp.

Overturning the Hughes Amendment would be an incredible feat, but one that is doable politcally.
Machine gun ownership is already "legal", getting rid of the May 86 mess is just paperwork.

This whole "all or nothing" doesn't work and that should be getting clear by now, even to the hardest heads among us.

[everallm]

One of the more positive statements which seems to be somewhat ignored is the majority are apparently of the opinion that the original bugbear "Miller" is at best incomplete or flawed and bears little relevance.

Simply getting this kicked into touch potentially opens up a very interesting can of worms.

We are now finally moving to "It's not about the militia !!!!"

[ArmedBear]

Another wrinkle:

When Dellinger says that the 2nd Amendment doesn't protect the hobby of gun collecting, CJ Roberts immediately rebukes that notion in the form of a question: "Why isn't that covered by the provision that you have the right to keep arms?" When Dellinger responds with a dubious explanation, Scalia moves in for the rhetorical kill, and, of all people, Kennedy backs him up.

I see this is somewhat good news. One argument (a quite legitimate one, actually) for opening the full-auto registry is that those who do go through the trouble tend to be squeaky-clean gun collectors in higher income brackets. These guns are never used in crimes, and they're used as toys and curios. Knob Creek is hardly a gathering of criminals.

This thing has more wrinkles than a cheap suit. What's also interesting is to hear justices like Ginsburg turning into the Uber-Originalist and talking about what something meant in the 18th Century. Some legal types think this is the most interesting aspect of all.

[SoCalShooter]

That was the justice, the problem is that this will go partially in our direction and other part will go towards states rights.

[OMGWTFBBQ]

We can't take the whole thing at once, it's not like one day you could buy a machine gun through the mail with a fake name and the next day you had draconian measures such as those in place in D.C., we can't expect to get everything overnight, we have to chip away at all the BS legislation the antis have managed to pass over the past century a case at a time.

[Thumper]

Interestingly, Ginsburg, who I really thought was pretty spaced-out and out of touch last term, was most cognizant of this fact, and that the "Miller Test", combined with an individual rights ruling, would all but guarantee that any law-abiding American could buy an M4.


AB, she was very well aware. That's why she kept bringing it up. She was trying to goad Gura down that path. If he would have strayed, it would have really hurt Heller's chances at a win and especially an Individual ruling.

Gura avoided the trap, but unfortunately some here don't see Ginsberg's actions for what they were.

[Vibe]

AB, she was very well aware. That's why she kept bringing it up. She was trying to goad Gura down that path. If he would have strayed, it would have really hurt Heller's chances at a win and especially an Individual ruling.

Gura avoided the trap, but unfortunately some here don't see Ginsberg's actions for what they were.
Meaning she interprets the Constitution correctly but doesn't like what it's saying?

[PercyShelley]

This thing has more wrinkles than a cheap suit. What's also interesting is to hear justices like Ginsburg turning into the Uber-Originalist and talking about what something meant in the 18th Century. Some legal types think this is the most interesting aspect of all.

Could this be an artifact of how the courts are run? As I understand it, a Supreme Court justice doesn't owe anyone anything, and thus they can be as idealistic when making interpretations as their conscience will allow.

[Thumper]

Meaning she interprets the Constitution correctly but doesn't like what it's saying?

Meaning she was attempting to derail Heller's (Gura's) argument. This case is about handguns. You'd better believe that if (when) we get our Individual ruling and there's another case (Hughes?) concerning select fire weapons, she'll be singing a different tune.

Oral arguments before SCOTUS aren't the place for rhetorical grandstanding. It's a knife fight. If you're trying to win, statements should be pointed at the case at hand. Questions might not be, and are very telling.

The only thing that comes out of this that matters is the ruling and the written majority opinion. Gura correctly fought introducing anything beyond the scope of the case.

[alan]

I think, and I could certainly be wrong, that Mr. Gura’s "rising to te bait", re his comments on machineguns, NOT the subject of this USSC matter, might have been a mistake, however as above noted, that's simply what I think.

More important, and troubling too, could be the following. His reference to "plastic handguns manufactured to escape detection", no such handguns exist, and even POLYMER FRAME GLOCKS, show up quite clearly on "airport metal detectors". Also his reference to the constitutionality of "some gun ownership licensing" is problematic.

Such licensing would obviously bring with it, registration. As a matter of historical fact, and record, gun registration leads to confiscation. Gura lived and worked at one time in California, and California is one such place, where registration of guns led to/facilitated their confiscation. Has he forgotten that? One wonders.

He may have had other things in mind re these statements, see 19 March Pittsburgh Post-Gazette, however I submit that these statements could work to the disadvantage of the pro-gun side, giving ammunition to our enemies.

[Vibe]

Thumper. You're really a politician aren't you? LOL
It was a very simple question. No need to side step it. :D

[Vibe]

Alan
For all the weight these oral arguments carry - particularly on things not specifically applicable to the case - he might have just as well referred to the existence of UFOs with Earl Schibes paint jobs. The MG topic was off subject and exactly relevant to this case, even if the Justice took it there.

[ctdonath]

you have to have someone who is harmed by the law to bring a challenge to the law.
In the case of MGs, it's no different from how Mr. Heller gained "standing": you have to ask permission to get one, which WILL be denied. Find an otherwise willing seller & CLEO, file a BATFE Form 4 to buy an M4 (or a Form 1 to convert an existing AR15), get rejected, file a case on grounds that the rejection is the harm. That's exactly what Mr. Heller did. No criminal activity needed.

[Gunnerpalace]

Find an otherwise willing seller & CLEO, file a BATFE Form 4 to buy an M4

There are tons of people like that I say if Heller goes good see a challenge within the week.

Sweet THR is back!

[Feud]

The only thing that comes out of this that matters is the ruling and the written majority opinion.

Not always, Justice Holmes' dissenting opinions dealing with procedural due process were later used as the legal basis for numerous court rulings that eroded and later overturned Lochner and E. C. Knight.

Certainly we want to chalk up a "W" for this case, but a proper dissenting opinion can be a strong tool to have on one's side.

[Bezoar]

however much we want to say that if Heller vs dc comes out in the favor of everybody owning firearms, wont we still be forced to do the permit and registration crapola?
In theory the NFA can be used as grounds to show that registration is good.. ie "we forced the tommy guns to get registered, and that made the gangsters stop using them" is that just simplifying things a bit much?

[Kharn]

Alan:
Handguns capable of evading detection have been outlawed since ~1984 on the federal level, the law was set to expire in ~2004 and was renewed before that expiration took place.

Kharn

[PaladinX13]

is that just simplifying things a bit much?A little. Justices want to make a holding that affects as little as possible... this is important for the Court to maintain its legitimacy because if it moves out of step with the nation, the other branches will just ignore it or force it through political pressure to bend (see FDR's court packing plan of '37 - where the justices were threatened to get behind the New Deal or see the number of seats to SCOTUS expand from 9 to 15... obviously with all FDR New Deal friendly appointees). If you overturn what the vast majority of jurisdictions have accepted, then there will be cries of "Activist Judges!" and a big political push to see them removed, marginalized, or replaced.

So look at the legal REALITY of gun control TODAY. There are bans. There is registration. There is restriction, regulation, and control. Not in every jurisdiction, of course, but in many if not most. SCOTUS needs to present a holding that affirms the step they want to go in- the affirmation of an individual right and the unconstitutionality of a total ban on handguns- while affirming (if not expressly, implicitly) those measures already in place. This way they make a decisive step without rocking the world and losing relevance and power. Then, as challenges arrive, they can take further steps towards the direction they want to go, incrementally.

There's nothing new about this. The other side knew that passing gun control was an incremental battle used to define the American perception of the gun slowly over time. The same holds here for us. You rephrase the 2nd as an individual right as important as Free Speech and expressly stated and protected moreso than, say, privacy/abortion, then American perception changes. Overtime even dissenters can come to terms with such a decision and the court can continue to move. Go to fast, you're out of step and anything you do will be seen as purely political and simply get overturned by the next court that comes along.

Again, there IS registration there ARE bans. While certainly some of SCOTUS want nothing more than to overturn these tomorrow, they know better. They know they have to express a legal rule that is in step with TODAY'S regulations so that their holding is seen as legitimate. Then they can add future holdings to enforce the point and tear down gun control.

To use an example, imagine arguing with a hysterical person who is upset at you even if you did nothing wrong. If you open up by stating the objective truth that you did nothing and that their hysteria is unfounded, you'll likely get stonewalled if not make them more upset. Instead, you first apologize- embracing their world view for the sake of communication- then as they calm down, they come around and see that you did nothing and that they were upset about nothing.

This kind of "apologetics" is exactly what Courts have to do. Retroactively produce a rule that reflects the present reality, then use that rule to shape the future through moderate and continued adjustments. If they rule the way some want them to, it's true that- briefly- as a matter of law registration/bans/etc. would be unconstitutional... but the impact that would have on so many jurisdictions would result in a political move that I guarantee would make that holding short-lived. Slow and steady wins here.

[.cheese.]

Probably because he wants a Thompson :-)

if that were the case, my respect for him just increased a notch

although to be fair, you can still own a Thompson, just semi.

[Master Blaster]

Hey if any of you folks want to send me $25,000. I will buy and attempt to register a machinegun in Delaware.

I will be turned down because even though the Delaware Constitution has the right to keep and bear arms for any legitimate purpose, Delaware doesnt allow anyone to possess or register an NFA weapon as they are outlawed in DE.

[ctdonath]

That brings us back to why Heller happened in DC:
While you certainly could take on Delaware's ban on NFA stuff, the feds won't help because the "right" to NFA stuff has not been established federally. Better that any of you folks want to send me $1500 and I'll try to get a NEW machinegun in Georgia (very NFA friendly), get my BATFE Form 4 denied, and take the issue to federal court on exactly the same grounds Mr. Heller did. Being a purely federal issue then, not complicated by state bans overlapping federal bans/regulations, and based on a very recent SCOTUS case, that should get things cleared up easier at a higher level. THEN when Mr. Levy compels Chicago & Illinois to respect the 2ndA via the 14th, then YOU can follow up with compelling Delaware to respect the 2nd re: machineguns on the same grounds.

That's the theory, anyway. We'll see what happens in June.

[SWMAN]

Master Blaster says:
I will be turned down because even though the Delaware Constitution has the right to keep and bear arms for any legitimate purpose, Delaware doesnt allow anyone to possess or register an NFA weapon as they are outlawed in DE.

The above is what needs to be worked over by the court so reasonable standards won't allow the gun control folks to ban from private citizens a weapon the government allows their police and military forces to have. Though I guess the 2A would have to be incorporated via the 14th A in order to actually give meaning to the 2A in the states.:)

[Vibe]

although to be fair, you can still own a Thompson, just semi.
You can own a full-auto Thomson by "Federal" law. But just try getting a FN P-90.

[strat81]

Fourthly, it's obvious to the judges how similar the DC, Chicago, NYC, and 922(o) bans are -
NYC does not have a ban on handguns. However, NYC may be a model for DC in that NYC has tons of rules, regulations, and red tap. The application is a proctological exam and is not even shall issue (to the best of my knowledge). Applications must be hand-delivered to 1 Police Plaza in downtown Manhattan... a major inconvenience. Ridiculous licensing and application fees, few gun shops, fewer ranges (thanks to zoning)...

NYC is a pantheon of regulation. But no bans. Prohibition by regulation is how they do it.

[DKSuddeth]

however much we want to say that if Heller vs dc comes out in the favor of everybody owning firearms, wont we still be forced to do the permit and registration crapola?
Murdoch v. Pennsylvania?
'no state may charge a license fee or tax for a right that is federally protected.'

I take that to read that unless registration and licensing is totally free, it would not be constitutional....unless the judicial system wants to wait another 70 years to touch a 2nd Amendment case or overturn murdoch

[Bubbles]

Perhaps Alan Gura can explain it better than anyone... from an email...

Thanks for your support.

The solution to 922(o) will have to be political in the end. The fact is,
outside the gun community, the concept of privately owned machine guns is
intolerable to American society and 100% of all federal judges. If I had
suggested in any way -- including, by being evasive and indirect and fudging
the answer -- that machine guns are the next case and this is the path to
dumping 922(o) -- I'd have instantly lost all 9 justices. Even Scalia.
There wasn't any question of that, at all, going in, and it was confirmed in
unmistakable fashion when I stood there a few feet from the justices and
heard and saw how they related to machine guns. It was not just my opinion,
but one uniformly held by ALL the attorneys with whom we bounced ideas off,
some of them exceedingly bright people. Ditto for the people who wanted me
to declare an absolute right, like I'm there to waive some sort of GOA
bumper sticker. That's a good way to lose, too, and look like a moron in
the process.

I didn't make the last 219 years of constitutional law and I am not
responsible for the way that people out there -- and on the court-- feel
about machine guns. Some people in our gun rights community have very....
interesting.... ways of looking at the constitution and the federal courts.
I don't need to pass judgment on it other than to say, it's not the reality
in which we practice law. When we started this over five years ago, the
collective rights theory was the controlling law in 47 out of 50 states.
Hopefully, on next year's MBE, aspiring lawyers will have to bubble in the
individual rights answer to pass the test. I know you and many others out
there can appreciate that difference and I thank you for it, even if we
can't get EVERYTHING that EVERYONE wants. Honestly some people just want to
stay angry. I'm glad you're not among them.

You want to change 922(o)? Take a new person shooting. Work for "climate
change."

Thanks,
Alan

[jlbraun]

^^^ and that's the final word, right there. Thanks for posting that.

[Jamie C.]

Thanks for posting that, Bubbles. People needed to see it.
( I do hope none of the Justices see it, however. :eek: )

Not that I expect it to change some people's minds though... They want it all, and they want it NOW. :rolleyes:



J.C.

[Jamie C.]

Crap.... Double post.

Sorry.

[green-grizzly]

At least one federal judge could tolerate legal machineguns. Justice Alito voted to overturn 922(o) when he was on the court of appeals.

[Ratzinger_p38]

The solution to 922(o) will have to be political in the end.

Guess that means there will never be a solution. Other than the heroic Ron Paul, has anyone ever introduced a bill to loosen or eliminate the MG freeze?

I didn't make the last 219 years of constitutional law and I am not
responsible for the way that people out there -- and on the court-- feel
about machine guns. Some people in our gun rights community have very....
interesting.... ways of looking at the constitution and the federal courts.

What is he stabbing at with this?

[Jamie C.]

What is he stabbing at with this?

That some people have no grip on reality, or understand how things work, and think they should be able to just stomp into court, say whatever's on their mind, and get what they want.



J.C.

[everallm]

Ratzinger,

Last 15+ years have seen a substantive change in the way folks look at firearms and associated rights. There is CCW in the majority of states, the AWB has never been re-instated, we have a positive 2A ruling (potentially) in the offing etc.

These changes occurred because of a combination of societal and political shift.

Society, law and politics are a slow moving avalanche that can be diverted but takes time, effort and money. Yes 922(o) can be rolled back but it will take time and vigilance to ensure no back sliding.

[ilbob]

The solution to 922(o) will have to be political in the end.

Guess that means there will never be a solution. Other than the heroic Ron Paul, has anyone ever introduced a bill to loosen or eliminate the MG freeze?
I don't think it is "never".

But the fact is that there are some things that are not likely to be touched by the courts, simply because they feel they are political in nature, and should thus be dealt with legislatively.

We need to keep up the pressure for a long time and get these things gradually rescinded. Fifty or 100 years from now, we may end up back where we were pre depression era.

[General Geoff]

The slippery slope argument works both ways. If the Heller decision is favourable, look for continued erosion of existing gun laws. :)

[only1asterisk]

Make this thread disappear!

[jlbraun]

Make this thread disappear!

Why?

It's not like other people aren't going to mount a 922(o) challenge the minute an individual rights ruling is handed down. I personally have heard of or read of at least a dozen people that are going to file to register a NIB fullauto milspec M4 the very day Heller is ruled on.

[Travis Morgan]

Due to dates of manufacture, I'm pretty sure an M-4 would not be possible. Or am I misinformed?

[General Geoff]

^^Under current regulation. That's the point.

[jlbraun]

Due to dates of manufacture, I'm pretty sure an M-4 would not be possible. Or am I misinformed?

That's the point. An individual rights Heller decision means that outright bans on registration of new individual weapons after a certain date are unconstitutional. Guess what 922(o) is? Yup. A ban on registering new individual weapons after a certain date. Heller filed to register a pistol, and was denied. Therefore, he had standing.

All we need to drop 922(o) then is a coalition of men between the ages of 17 and 45 not in the military (unorganized militia enrollees under USC 10.311) in NFA-friendly Circuit Court districts to file to buy new in box M4s and get denied. Instant standing.

[brighamr]

Personally, I think attempting to register a NIB M4 the day Heller is decided, might keep the momentum going. However, the people that do this need to do it in very NFA friendly states, and have a large cash reserve for the legal fees.


On the flip side, if we get a W on Heller, then someone in CA tries to register NFA, we can kiss all this good momentum goodbye.

[Igloodude]

All we need to drop 922(o) then is a coalition of people nationwide to file to buy new in box M4s and get denied. Instant standing.

Turning it into a sort of class action suit against the feds? Truly, the mind boggles. :evil:

[jlbraun]

However, the people that do this need to do it in very NFA friendly states, and have a large cash reserve for the legal fees.

Edited. Thanks.

[General Geoff]

So who lives in Montana, wants an M4, and has a lot of disposable income? :D

[jlbraun]

Montana is in the 9th Circuit, which includes California. :barf:. I think one would have more luck in the 10th Federal Circuit Court, which is CO, NM, WY, UT, OK, and KS. The 8th would be good as well.

http://www.uscourts.gov/courtlinks/

[lacoochee]

Actually, I think since you are suing the Federal Government you can do it in DC in the DC Federal Circuit Court. This is why SCOTUS picked up the case this time had they left the ruling in place, the next day the lawsuits would have been rolling in against Federal restrictions. (The decision was that much in our favor, it was a home run.) Outside of the DC Federal Circuit Court the 5th Circuit Court would be our best bet as they have already ruled that the second mandment is an individual right.

[DKSuddeth]

sooner or later, there is going to have to be an understanding amongst us that we will not see a removal of 922(o) in our lifetime. Despite the concrete legal fact that a simple copy and paste from heller to a suit involving MGs would should make it so, it will not happen. This is not negativity, not admitting defeat, etc. it's about the political reality that machine guns being available by a judicial decree would result in an almost immediate call for a constitutional convention to amend the 2nd with specific wording to ensure that machine guns would not be available for civilians.

[lacoochee]

sooner or later, there is going to have to be an understanding amongst us that we will not see a removal of 922(o) in our lifetime. Despite the concrete legal fact that a simple copy and paste from heller to a suit involving MGs would should make it so, it will not happen.

I disagree, you are being negative, I am quite certain there was a guy with the same take concerning CCW in Florida during the 80's, it took multiple attempts to get that to happen as well. I actually think that of all of our goals that it is the easiest to get done, machine guns are not banned at the Federal level nor are they banned in most States. Hey just saying, we will see in the next few years or so I am sure. Regardless, I am quite happy with the status quo, if everything remained exaclty as they are today, I will consider that victory enough.

[Jamie C.]

sooner or later, there is going to have to be an understanding amongst us that we will not see a removal of 922(o) in our lifetime.

Hey I never thought I'd live long enough to see the Supreme Court hear a 2A case, much less expect them to rule favorably on it.

Now I've not only seen the first part, but it's also looking like I may see that last bit in a matter of a few months.

The point here is that "never" is a long damn time, and that with a little patients almost anything is possible.

Let's see what happens in the next year or so at least, before anyone goes the "never, ain't gonna happen, just not possible" route.



J.C.

[Travis Morgan]

I think y'all are misunderstanding me about dates of manufacture. I was speaking about class III's. I'll try to get around to looking it up.

[jlbraun]

sooner or later, there is going to have to be an understanding amongst us that we will not see a removal of 922(o) in our lifetime.

...or a repeal of the AWB.

...or shall-issue CCW coming to the supermajority of US states.

...or...or...or...

Blind fatalism isn't a strategy. There will never be an "acceptance" that 922(o) isn't going away. Never.

:fire:

[green-grizzly]

I'm in the 10th circuit and have been thinking about this. I think you would want as plaintiffs a couple members of the national guard, a couple LEOs, a couple people in the unorganized militia, some girls (not in the unorganized militia), a couple people who already own NFA items, etc. Of course we will have to see what the Heller decision says.

I think the 5th circuit would also be a great candidate. I'm really kind of shocked there has not been any significant follow-up litigation there since Emerson.

There is a lot to think about, but I do not think we should just let things stew. Conservatives tend to let landmark rulings in their favor atrophy because they never pursue follow-up litigation. The leftist interest groups always keep working at it, even in circuits where they know they are going to lose to create circuit splits. We should follow their lead.

But I think incorporation ought to come before targeting 922(o). We should not let the courts know how far we really want to take this before gathering the low hanging fruit.

[Vibe]

I think y'all are misunderstanding me about dates of manufacture. I was speaking about class III's. I'll try to get around to looking it up.
No Travis, most everyone is aware that you are referencing the outright ban on civilian ownership of post 1986 MGs. What they are trying to tell you is that, that is exactly WHY the purchase of such an arm should be attempted. Because it will be denied. The denial is what gives the case "Standing" or legal reason for being. So in order to challenge a law you first have to be affected by it, or denied a freedom.

[Librarian]

Blind fatalism isn't a strategy. There will never be an "acceptance" that 922(o) isn't going away. Never.Well, OK.

So, do you agree with Gura that the solution has to be political? I do.

If that's so, what set of legislative districts will vote to support candidates who vow to work on repealing 922(o)? We need 51 Senate seats and 218 Representatives.

Support for machine gun ownership is a minority position in this country. I think it's OK; I don't see why anybody should actually care whether other people have slings or mortars, so long as crimes committed with them are prosecuted and punished as appropriate.

But we have to sell that to about a hundred million voters.

[Vibe]

But we have to sell that to about a hundred million voters.
Make that a hundred million ignorant voters. Whose ignorance has been encouraged in order to foment the fear required to maintain the control over their choices. We're fighting decades of brainwashing in that route. Probably in any route.

[jlbraun]

So, do you agree with Gura that the solution has to be political? I do.

No, I do not. As I said, Congress will not touch this.

The path forward is to file dozens of Form 4s on NIB machineguns, and sue once you are denied. SCOTUS will take it.

[DKSuddeth]

The path forward is to file dozens of Form 4s on NIB machineguns, and sue once you are denied. SCOTUS will take it.
SCOTUS will not take it. The machine gun issue has been addressed in US v. Stewart (2003)

On November 13, 2003, the Ninth Circuit Court of Appeals issued an opinion vacating Stewart's conviction for violating 18 U.S.C. § 922o, but affirmed his convictions for being a felon in possession of a firearm. Using the Morrison test, the Ninth Circuit ruled 18 U.S.C. § 922o did not have a substantial effect on interstate commerce and was unconstitutional as applied. In its opinion the circuit court wrote:

"...a homemade machine gun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred—and there is none here—its relationship to interstate commerce is greatly attenuated."
"...section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce."
"...there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machine gun business. More likely, section 922(o) was intended to keep machine guns out of the hands of criminals—an admirable goal, but not a commercial one."

Supreme Court
After the Ninth Circuit's ruling, the United States Department of Justice then requested and received a stay while it appealed the case to the Supreme Court of the United States. Upon granting certiorari, the Supreme Court vacated the Ninth Circuit's ruling and remanded the case back to the court for further consideration in light of its recent ruling in Gonzales v. Raich, 545 U.S. ____ (2005).

[PercyShelley]

What would be a nice intermediate step between re-opening the registry and where we are now? It sounds like gura is saying that it's too big a step, and that it plays too much into propoganda that we want machineguns everywhere.

It sounds like it ought to be something legislative, and preferably something small-sounding, but substantial. An end to "sporting use" distinctions, perhaps?

[jlbraun]

SCOTUS will not take it. The machine gun issue has been addressed in US v. Stewart (2003)

And Stewart was a felon. Of course no Court is going to rule that felons should have machineguns! Get a client that's upstanding, a good citizen, etc., get him to file a Form 4 for a Colt M4 along with 200 other people, then see what you get.

To date, almost all of the gun cases that have gone close to SCOTUS are about violent felons breaking firearms laws. No matter what, the SCOTUS is not going to rule on the pro-gun side with a plaintiff like that. Gonzales v. Raich was a commerce clause case, so if the SC is going to use that, go the route of getting a law passed in Montana (they've tried) as spelling out that machineguns may be manufactured and sold within Montana free from 922(o) as long as they never leave the state. That creates a clear SCOTUS case.

[strat81]

What would be a nice intermediate step between re-opening the registry and where we are now? It sounds like gura is saying that it's too big a step, and that it plays too much into propoganda that we want machineguns everywhere.

It sounds like it ought to be something legislative, and preferably something small-sounding, but substantial. An end to "sporting use" distinctions, perhaps?
I'd say NFA items like SBRs, SBSs, and suppressors would be the intermediate step.

[green-grizzly]

Stewart was principally a commerce clause case. The little bit of the opinion that addressed the 2nd amendment was based purely on the 'collective right' theory, which I think we are all assuming is about to get tossed.

[jlbraun]

The little bit of the opinion that addressed the 2nd amendment was based purely on the collective rights theory.

Right. And if Heller comes down on the "yes, you have an individual right to a gun", then that part of Stewart is up for reconsideration.

[DKSuddeth]

And Stewart was a felon. Of course no Court is going to rule that felons should have machineguns! Get a client that's upstanding, a good citizen, etc., get him to file a Form 4 for a Colt M4 along with 200 other people, then see what you get.
you didn't read the 9th circuit opinion then.
Yes, stewart was a felon and thus was convicted of being a felon in possession, etc.,however, the 9th circuit specifically found that a homemade machine gun had no effect on interstate commerce and thus could not come under 922(o). Can you imagine it? Machine guns being manufactured by civilians and possessed by civilians? Well, the supreme court couldn't, which is exactly why the remanded and instructed the raich decision on the 9th. To ensure that no new machine guns, homemade or not, enter in to the inventory pool of america. now, read the raich decision, especially scalia's concurrence. This will be how the SCOTUS circumvents their decision in heller.

[jlbraun]

DKSuddeth, the reference to Raich will be up for reconsideration if Heller declares an individual right. Raich's language around 922(o) is contingent on collective rights.

[green-grizzly]

Raich IIRC was a dope case.

922(o) may be interstate commerce, but you can't regulate interstate commerce to eliminate a fundamental right. For instance, the Congress could not pass a law making it illegal print newspapers in interstate commerce critical of the government. The commerce clause issue and the second amendment issue are separate, and the court of appeals opinion decided it that way.

[Vibe]

And Miller was decided (or adjourned) due to a "Lack of presented evidence" - Evidence which of course could have been readily found and presented had there been a live defendant or representation to do so. If we are going to have SCOTUS "revisit" a decision after Heller, why not start there?

[DKSuddeth]

jlbraun, raich, or more appropriately stewart, will not be up for reconsideration because as was said before, it dealt with interstate commerce clause. What people are not getting is the thought patterns assumed by the justices at that time on how congress can utilize unimpeded power to implement public policy.....like machine gun possession. Scalias interpretation of the 'necessary and proper clause' should be horrifying to alot of people.

http://straylight.law.cornell.edu/supct/html/03-1454.ZC.html

[green-grizzly]

I'd agree that Raich will not be up for reconsideration on interstate commerce grounds. But the Supreme Court of course did not consider 922(o) in Raich because it was not a gun case. It was a dope case. Likewise, when they vacated Stewart and sent it back, they were doing so on commerce clause grounds. They did not consider the second argument issue. Because, at the time, it was a non issue.

Again, you can not use the commerce clause to eliminate a fundamental right. At the time Raich and Stewart were decided, the 2nd amendment was not recognized as an individual right. That is about to change.

Before Heller, Congress could have passed a law banning pistols. That still would have undoubtedly been a regulation of interstate commerce. Congress could not pass a law banning newsmagazines critical of the government. That is interstate commerce too, but the press is protected by the first amendment. Heller will change things so that Congress can not pass a law banning pistols (hopefully). If the second amendment covers machineguns as well, then 922(o) is unconstititional, regardless of the effects on interstate commerce.

There were two separate issues in Stewart. First, is the manufacture of a machinegun interstate commmerce? Second, is a machinegun protected by the second amendment? Only the commerce issue was presented in Raich. The Supreme Court has never considered the second issue.

[alan]

ctdonath wrote:

you have to have someone who is harmed by the law to bring a challenge to the law.

In the case of MGs, it's no different from how Mr. Heller gained "standing": you have to ask permission to get one, which WILL be denied. Find an otherwise willing seller & CLEO, file a BATFE Form 4 to buy an M4 (or a Form 1 to convert an existing AR15), get rejected, file a case on grounds that the rejection is the harm. That's exactly what Mr. Heller did. No criminal activity needed.
-------------------------------

Sounds about right to me, and if I may, I think that the following is interesting re Parker v D.C. later Heller v D.C., most recently D.C. v Heller.

If Ms. Parker and others in the original suit, where there was a ridiculous finding of "lack of standing" had simply applied for a permit or license, which obviously would have been denied, that being beside the point, their suit would not have been dismissed as a result of their "lacking standing".
Mr. Heller applied for a permit or license under the D.C. law, his application was denied, D.C. STUPIDITY, therefore he could show "injury" or "impact", his standing being demonstrated.

[jlbraun]

Mr. Heller applied for a permit or license under the D.C. law, his application was denied, D.C. STUPIDITY, therefore he could show "injury" or "impact", his standing being demonstrated.

I wonder if the strategy for the BATFE will be to simply sit on all Form 4s that are submitted for non-transferable NFA weapons? No denial = no standing.

[Kharn]

jlbraun:
They sat on all the Form1s from the 9th Circuit until the SCOTUS sent Stewart back to the Circuit Court with a "rewrite after reading Raich", and then mailed the denials, so that is an option.

Or, they could just shred the forms and return your check/MO without comment.

Kharn

[jlbraun]

jlbraun:
They sat on all the Form1s from the 9th Circuit until the SCOTUS sent Stewart back to the Circuit Court with a "rewrite after reading Raich", and then mailed the denials, so that is an option.

Or, they could just shred the forms and return your check/MO without comment.

Hunh. Were these Form 1s for making machineguns, suppressors, SBSs, SBRs, what? I would be interested in the particulars, via PM if you want.

[LawBot5000]

This case isn't about machine guns. We are just trying to get an individual right out of them. If we succeed in this, we win. If we try to grab for MGs we lose. Personally I think there are half a dozen major lawsuits between now and a successful MG challenge.

Unless someone does something stupid I personally predict the following:
-the supreme court will go 7-2 for an individual right independent of militia service
-the court will either say nothing or go plurality on the scope of the right
-the might say something suggestive about incorporation, but not likely


-next someone will challenge the chicago/morton grove handgun bans which are identical to the DC ban only they are municipal laws. Incorporation time. I predict we win here as well. Overwhelming evidence that 14th amendment was intended to protect the RKBA for freedmen and republicans against racist southern legislatures.

Then either
-next challenge is to the complete de jure ban on carry in IL, then to the various discretionary issue jurisdictions if we win (which we should unless Ginsburg forgets what "bear" means).
-then against the various may-issue states
OR
-next challenge is to CA AWB and includes the incorporation question with the AWB question.
OR (and this one is potentially huge)
-challenge is to the Washington DC machine gun ban as overbroad. Washington DC defines "machine gun" as any weapon that can semiautomatically or automatically fire 12 rounds without reloading.

Then finally after all this, maybe start going after 922(o).

Or we could go after 922(o) right away on commerce clause grounds.

[TexasRifleman]

Or we could go after 922(o) right away on commerce clause grounds.

IANAL and all that but this seems to have real meat in it.

The thing is that in all this Gura nor anyone else mentioned the fact that machine guns are already legal at the Federal level.

All Hughes did was artificially drive the price up and the commerce down.

Seems like it would be a reasonable fight, just Stewart was such a bad place to have the fight.

Maybe some of you legal types can explain that more in depth. Isn't it just restraint of an already legal trade?

[yokel]

Would it be safe to assume that Mr. Gura will be recusing himself from any possible involvement in any future M249 SAW litigation?

Where did the cliché "thrown under the bus" originate from?

[TexasRifleman]

Found a reference as far back as 1984. In print anyway....

[1984 David Remnick @ New Jersey Washington Post (Sept. 7) “Pensive, With Orange Hair Cyndi Lauper & Her Tunes on Tour ”: In the rock ’n’ roll business, you are either on the bus or under it. Playing “Feelings” with Eddie and the Condos in a buffet bar in Butte is under the bus. Peter Frampton is under the bus. God willing, so are the Bee Gees.]

As far as "thrown under the bus" I find the earliest in print:

1991Erin Emery @ Fort Morgan Gazette Telegraph (Colorado Springs, Colorado) (Dec. 12) “Hood talks without thinking, friends testify at murder trial” p. B1: Dees said he talked to Hood after he bonded out of the El Paso County Criminal Justice Center on Sept. 26, 1990, and warned him “that he was being thrown under the bus by Jennifer Reali.” But he said Hood believed Reali “was going to tell the truth.”

By the way, having your company pay for Lexis Nexis is a wonderful thing :)

[madmike]

All we need to drop 922(o) then is a coalition of men between the ages of 17 and 45 not in the military (unorganized militia enrollees under USC 10.311) in NFA-friendly Circuit Court districts to file to buy new in box M4s and get denied. Instant standing.

Not at all. A large number of RESERVISTS filing would help the case.

I get 40 rounds a year to practice with, all semi, at paper targets.

That does not relate to the techniques we use in combat.

I should be able to have a full auto M4 to maintain my proficiency for combat.

As a patriotic American, I will do so at my own expense.:D

[alan]

As part of his response during USSC Oral Arguments, Mr. Gura offered that "gun ower licensing might stand constitutional examination", hope I got it, his wording, correct.

I find this "interesting" given the following.

1. Mr. Gura practiced law in California, representing the state.
2. Gun owner licensing would, I should think, include registration.
3. Convicted felons, among some others, are precluded in existing federal law from possession, purchase, use and transport of firearms, would be ineligible for licensing.
4. In Haynes v U.S., 1968 I believe, the USSC ruled that Haynes, a proscribed person (convicted felon), in possession of an unregistered firearm could not be prosecuted, as compulsory registration would have violated his 5th Amendment right to avoid self incrimination. An otherwise law abiding citizen could be, and likely would be prosecuted, such is the sick, sad state of the law.
5. Finally, gun registration leads to confiscation is an often heard shiboleth, which happens to describe exactly what has happened in some parts of this country, California included. Could it be that Mr. Gura was unaware of this small point, or might it be that he was unconcerned with/about it?

[PaladinX13]

Any law on the books is presumed constitutional until challenged. To say licensing would not stand constitutional examination would be to challenge those laws already on the books. That was not Gura's challenge and in no way would benefit his case by taking it up.

He did not say licensing DOES stand constitutional examination, only that it MIGHT. He's doing his best to address the Justice's question without getting drawn into an irrelevant challenge. If you want him to argue licensing, then go sue over licensing and hire him, that wasn't his job to fight a meaningless battle. Scalia might have high-fived him and you might've cheered, but it would have never made its way into the holding which had nothing to do with licensing at all.

This case wasn't about over turning every gun law one could think is unjust or to tout tautologies about gun ownership... it was just about an individual right and a total ban of handguns. Once that's settled, you work from the most draconian and narrow laws backwards. If you live in a "free" state, it'll be a long time before you see any immediate practical or relevant effect of any of these rulings. If you live in cities like NYC or states like NJ, then this is a major step in the right direction.

Any argument he made would have to be in light of the present legal reality which acknowledges all laws on the books as presumed constitutional. That's why the DC case was so useful because it is extremely narrow. The wider the scope the harder the win without precedent... and Gura was standing on a 70 year vacuum with the last touchstone being a case neither he nor the Justices thought much of. I dunno, the Monday morning quarterbacking of lawyering I'm seeing makes me feel like I watching Million Mom Marchers give consultations on home-defense gun choice. Everyone is entitled to their opinions and feelings, of course, but lawyering is a little more technical than just making rhetorical observations.

[legaleagle_45]

Think about this aspect....

If you tie the level of arms protected by the 2nd to closely to usefullness in the militia, you undercut the primary argument for incorporation...

The secondary test suggested by Gura of "in common use" establish a connection to an underlying purpose of the fundamental right of self defense, which is much more susceptable to a selective incorporation argument.

Gura, IMHO, is laying the groundwork for the success of future 2nd amend cases

[madmike]

Several cases that tried to overturn all gun control were tossed without hearing.

First we define it as a right, THEN we point out that registration accomplishes nothing and violates that right.

However, consider you can be required to get a license for a protest, but not to write newspaper articles.

CCW licenses will pass constitutional muster. A license to own a gun probably will not, _AFTER_ Heller is won.

And if the court says it is an individual right, the whole "registration leads to confiscation" paradigm shifts.

THAT's when you attack the idea of "registering" something that's a legal right to possess, under privacy issues trumping any allegations of "civic interest."

Roe vs Wade failed as soon as the anti-abortionists agreed that abortions were acceptable before a certain point. They couldn't "prove" where life began.

The "Equal Rights Amendment" failed to get ratified, as soon as the frothing feminazis started gloating in the press that it would mean government benefits just for being female, and automatic hiring preference, etc. The public turned on the idea.

We should be PREPARED to challenge 1986, 1968, 1934, NYC, Shicago, etc. We should not announce those battles are fought or even joined yet.

And to do that, we need to fight this battle on ground of our own choosing, with all the intel, artillery and money we can throw at it.

That ground is, "A handgun ban violates 2A."

If SCOTUS concurs, the next argument might be, "Licensing and registering handguns puts an unfair financial burden on that right."

But you can't do the second UNTIL you have determined the first.

[ozwyn]

I think Madmike has a good grip on this issue.

Frankly, any major supreme court win is incredibly good news for gun rights in general. If not taking on full auto directly this time is the price to pay to get our foot in the door, so be it. When we win Heller, we guarentee a next time. (not If, when)

[Jamie C.]

You folks still having a conniption fit over machine guns should probably go read this:

D.C. v. Heller Eyewitness Report -- Analysis 1 (http://pagenine.typepad.com/page_nine/2008/03/dc-v-heller-e-2.html)

"Don’t worry, as some people are, about machine guns and how quickly Mr. Gura “wrote them off.” 1 - They’re not at issue in this case, so it’s immaterial in context. 2 - You don’t want or need to push a court too far, so just stay on point, concede a pointless point, it’s moot. Get Mr. Heller the rights he seeks restored. 3 - Mr. Gura’s remarks are not the deal maker, the Justices’ are. Some of them were just fishing for something to grouse about. It’s fine to tell them, “Sure,” and get back to the business at hand.

The machine gun issue is also particularly sticky because, as the Court pointed out, it is standard issue for soldiers and so very neatly meets a definition of arms the public should have as related to potential militia service and readiness. Way too big and convoluted to go into in Heller, and simply not needed, yet.

It seems to me that the machine-gun issue will be easy for the Court to sidestep because they’re not technically banned, they’re taxed. The main controls are under Title 26, the tax code, not under Title 18, the criminal code, and again, neither matter in examining the D.C. ordinance. "




J.C.

[Prince Yamato]

Well, if this case goes our way, ONE of you should try to get a new M4 and get this straightened out... because Prince Yamato wants a new AK-47 with a happy switch! :D

[Jamie C.]

Well, if this case goes our way, ONE of you should try to get a new M4 and get this straightened out... because Prince Yamato wants a new AK-47 with a happy switch!

So you think everybody has a right to a "happy switch"? :eek: :D :evil:


J.C.

[TexasRifleman]

So you think everybody has a right to a "happy switch"?

Life Liberty and the Pursuit of Happiness remember?

[ctdonath]

we will not see a removal of 922(o) in our lifetime
We certainly won't if we don't TRY.

the supreme court couldn't, which is exactly why the remanded and instructed the raich decision on the 9th.
The problem with Stewart and Raich is that SCOTUS laid down the principle that if an activity so much as reduces commercial demand in an illegal market then "interstate commerce" applies.

Don't get wrapped up in finding "cute" ways to take on 922(o) et al. That's why we haven't gotten very far: the cases were to cute, criminal, and/or convoluted.

Approach 922(o) with the 2ndA, straight up: If the 2ndA protects an old (>45yo) man defending his bedroom, then it most certainly protects those who Congress has declared part of the militia, not otherwise provided with arms, who seek to obtain that which any soldier is commonly expected to use in combat.

The only obstacle is that The Powers That Be view MGs as a "third rail".

[rbernie]

So you think everybody has a right to a "happy switch"? Of course, silly. If I can trust you to have a firearm, you should be able to have a firearm of your own choosing. If I can't trust you to have a firearm, I would expect that you should probably not be walking about as a Free Man.

[Jamie C.]

Y'all do know I was just teasing P.Y. about the term "happy Switch", right? :scrutiny:

I mean, I can only imagine the legal briefs that would be written arguing that particular item. :p ;)



J.C.

[madmike]

I have a belt fed Browning with a crank activator. At current ammo prices, a one minute burst of happiness would cost about $115:eek::(

When the time comes, that will be pointed out in amicus--that street punks can't afford to use the Happy Switch.

Incidentally, I want my fire control switch to read :(:):evil:

[Soybomb]

What is he stabbing at with this?
It means baby steps. We can all sit here and talk about how you should be able to order a machine gun from sears and how we should be able to be as well armed as any individual soldier but in the process of restoring our rights we need to keep in check with society. Our concealed carry laws show the progress we've made but we still have to go slow and steady to not spook the herd. We have a long way to go to convince people that machine guns aren't necessarily what the movies and brady group have been teaching them to think they are. You wouldn't try to go from a no carry state to vermont style carry and you can't expect to go from a dc ban on any useful weapon in the home to machine guns for anyone.

[XD_fan]

It seemed to me like the whole MG discussion was all rhetorical. Gura just kinda popo'ed the whole thing, sure, fine, status quo, etc. Not much else he could really do. The case is not about anything other than Hellyer not being able to buy a hand gun in DC. Period. Gura did an excellant job on that point.

It certainly appears on the surface the Court was on board with the 2A as an individual right. It would seem to follow that if they give Hellyer his pistol they also have to declare the 2A an individual right in their decision.

If Hellyer does come out with a individual right ruling the next steps are to take on Chicago or some similar ban at the local level. Along with an effort at the state level, CA or NY AWB would be good candidates. New civilian MGs are going to be a goal for the future.

[OMGWTFBBQ]

we will not see a removal of 922(o) in our lifetimeI think an overturn of 922(o) would be quite easy(comparatively speaking). It's basically a registration scheme like the D.C. gun ban, right? I mean it isn't as if we're talking about repealing the NFA or anything, all we would be going for is allowing people who can pass the extensive background check conducted by the feds and who pay the tax to own a current manufacture machine gun. Nothing more. They'll still be as heavily regulated as they are now with regards to acquiring one, they'll just be cheaper.

A .22lr belt fed machine gun (http://www.youtube.com/watch?v=rPWhLTPnQVc) would be a pretty cool toy :D. Unfortunately FA m16s are little out of my price range right now :(.

[madmike]

A hundred years ago you could buy or carry anything. Fifty years ago you could buy anything with some hoops and fees. Thirty years ago it was pretty hard to buy or carry anything. Twelve years ago it was reasonably easy to carry, but very hard to buy. It's now generally easy to carry, but annoying to buy and there are less places to buy from.

"Never" is a long time.

And I must confess...there are a LOT of things and people I'd gladly toss under the bus to get SCOTUS to recognize 2A as a right.

To get it incorporated, I'd possibly toss OLEG under the bus;) I'm sure he'd understand.:P

[Dallas239]

It also should be kept in mind that like every other attorney walking into any other court, Gura has a client who's interests he is sworn to protect. While we would all like to believe that he was in there arguing just for us, he was arguing for Dick Heller (and us a bit). If he had to throw MGs under the bus to get a win for his client, then that's what he'd do. But I don't think that's what he did.

The oral arguments were very interesting, and you don't get the impact from just reading the transcripts. I highly recommend that anyone interested in this actually listen to the recordings.

[icebones]

ahh... i give you my fellow riflemen, ---the finest examples of corruption...

ted kennedy
hillary clinton
the brady center
all the other antigun admins.

they feel the proverbial noose tightening on them, and they are getting desperate. more and more americans are becoming gun owners, and more and more people are seeing them for what they truly are...

[Vibe]

The nest greatest spectacle to watch is the reaction of the presidential candidates in June when the SCOTUS returns in our favor. Apoplectic fit anyone?

[Kentak]

Gura has it right. MGs are dead. There is no political will or constituency of any import to change that. Make the American body politic believe that it is "all or nothing," and you will get nothing.

Flame me all you want. Engage in whatever philosophical/historical/idealistic debate you want. I'm all for that. It won't make a difference in the real world.

K

[yokel]

Rather than preparing for what our enemies are preparing for us, some look to gestures of appeasement and prevarication. I've about had it. No mas. The problem is you, not us — you, you, you….

[TexasRifleman]

Gura has it right. MGs are dead.

Uhhh, that's #1 not what he said and #2 not his decision in any case.

[legaleagle_45]

Uhhh, that's #1 not what he said

True, but if you read the oral argument carefully, that is what Scalia said.

#2 not his decision in any case.

But it will be Scalia's as well as the other members of SCOTUS. If I read their views via the oral argument properly, there are not 5 votes to extend the 2nd to MGs.

[TexasRifleman]

If I read their views via the oral argument properly, there are not 5 votes to extend the 2nd to MGs.

The Second is already extended to MGs, everyone keeps leaving that one out.

You can buy and sell MGs all you would like under the current NFA.

MGs are not under discussion as being legal, they already are from a Federal standpoint, why does everyone keep forgetting that?

Trying to overturn NFA is the wrong approach. The first approach is to get Hughes overturned as illegal restraint OF AN ALREADY LEGAL TRADE.

It's an artificial price barrier, that's all Hughes is.

MGs are legal, pay your $200 and buy one. The problem is the 1986 restrictions, and that's an entirely different argument.

That one needs to go first, then worry about NFA as a whole.

[everallm]

Actually for a number of states MG's are wholly illegal, NJ for example.

Here we need the 2A to be incorporated or with apropriate verbiage so we can challenge that plus asinine restriction such as adjustable stocks and 15+ round magazines are eeeeeevil.

[JohnBT]

"What is he, a lawyer for the Bradys?!?"

I'm chuckling a bit.

At first the wails were directed at the NRA for not fully supporting the folks pursuing this case.

Now the wails are directed at the lawyer for the folks pursuing this case.

I'm surprised there aren't threads being posted saying it's the NRA's fault for not stopping this guy. ;)

John

[TexasRifleman]

I'm surprised there aren't threads being posted saying it's the NRA's fault for not stopping this guy.

Give it a couple of weeks, GOA will be out with that one.

[publius]

At first the wails were directed at the NRA for not fully supporting the folks pursuing this case.
That's a bit of an understatement of what actually happened. The NRA attempted to take over the case by merging it with the Seegars case, which would not have worked out well, and the NRA also supported legislation which would have scuttled the Heller case by rendering it moot. If that's "not fully supporting" the case, what would "opposing" it look like?

[publius]

Incidentally, I want my fire control switch to read :(:):evil:

Hmmm... To avoid confusion and acquire the degree of perfection which would entitle us to the character of a well-regulated militia, I guess we should all get on board with this.

[publius]

To the thread topic, I would point out that Gura could have done what SG Clement did in his oral argument:
JUSTICE SCALIA: But that opinion also, it didn't use the militia prologue to say it's only the kind of weapons that would be useful in militia, and that are commonly -- commonly held today. Is there any Federal exclusion of weapons that applies to weapons that are commonly held today? I don't know what you're worried about. Machine guns, what else? Armored bullets, what else?

GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult -- I don't want to foreclose the possibility of the Government, Federal Government making the argument some day -- but I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is.

In a similar fashion, Gura could have made some offhand comment that our side does not want to foreclose the possibility that, if such an argument ever came up, we might want to argue that the standard issue weapon of the NG is actually a militia-appropriate weapon. THEN he could have gone on and pandered to the modern interpretation that the second amendment is all about hunting and concealed weapons permits, and has nothing to do with the fact that we might one day need citizen-soldiers.

Of course, Gura has no power to foreclose that possibility, and he might have scared a skittish Justice with such a remark.

[Kentak]

TexasRifleman--

I guess you didn't read post #43.

I repeat: Gura has it right. MGs are dead. (My opinion)

K

[madmike]

JohnBT said:

Now the wails are directed at the lawyer for the folks pursuing this case.

John, look at some of the other threads, wherein it's pointed out that Heller wants the right to buy and register his pistol.


There's a quote that's approximately:

"Who's this "Second Amendment Foundation" that supports registration? I believe I'd have to look very carefully at a "Second Amendment Foundation" that supports registration.:scrutiny:"

Apparently completely missing the point that ownership with registration, while sucky, is INFINITELY better than a ban.

One step at a time in court.

Of course, in the legislative arena, my position is that I'm allowed to own nukes.

I'm willing to "Compromise" and only take artillery, of course.:D

[kurtmax]

I think Gura did a good job. He argued well about the case at hand. The rest of the questioning was pointless and he brushed it off pretty well. His 'throwing machine guns under the bus' won't be dug up in future cases. This case is about handguns... period.

Of course, in the legislative arena, my position is that I'm allowed to own nukes.

I personally wouldn't want to own a nuke. It's not like I could take it to the range or anything :P I wouldn't be too worried if people were allowed to own nukes though. I mean with the high cost I don't see Bill Gates terrorizing the world with his personal nuke.

[Jamie C.]

I don't see Bill Gates terrorizing the world with his personal nuke.

He already is. It's called Windows.



J.C.

[madmike]

They demand a ban and "settle" for a "waiting period" as a "compromise."

We should demand nukes and "settle" for universal reciprocity of CCW as a "compromise."

Then we demand nukes again, and "settle" for re-opening the Registry as a "compromise."

Demand nukes and "settle" for legal silencers as a "compromise."

[Ergosphere]

The Second is already extended to MGs, everyone keeps leaving that one out.

You can buy and sell MGs all you would like under the current NFA.

While MGs are legal provided one complies with the NFA and 922(o), that doesn't mean they will be protected by the 2nd amendment, even if SCOTUS decides it is an individual right. The scope of the 2nd amendment will be decided by the court, though it's not clear if this will be done in the Heller decision.

Several people here seem to misunderstand what Gura wrote: "The solution to 922(o) will have to be political in the end." This Court is not going to strike down 922(o), ever. This is obvious from Kennedy's comment that Miller is defective.

[Vibe]

Another reason Miller was "deficient" (I don't think the term defective was used), is that Miller was a one sided decision with little, if any, proper representation on Millers side. And was decided upon, what the court termed as a "lack of evidence presented".

[alan]

madmike writes, referencing the tactics of our enemies, the anti gunners, whom I despise:

They demand a ban and "settle" for a "waiting period" as a "compromise."

We should demand nukes and "settle" for universal reciprocity of CCW as a "compromise."

Then we demand nukes again, and "settle" for re-opening the Registry as a "compromise."

Demand nukes and "settle" for legal silencers as a "compromise."
----------------------

Might it be that the anti's have been playing a smarter game that we have?

[madmike]

I think we've done a poor job in the PR department. Partly because they can always hold up a bloody shirt, wet their pants and scream, "A gun did this!!!!!!!"

It's easier to get people to hate than love.

Which is why I'm very vocal about owning guns, using them, carrying them. I realize a lot of shooters are worried about public perception. At the same time, if guns are something you keep hidden and locked away and don't talk about, it creates or exacerbates the kind of fearful mystique that leads to things like Australia's storage requirement--gun, bolt and ammo stored separately in safes that are bolted to the foundation.

We should carry openly more where legal, and talk about it widely, but casually.

One of the best answers I've found to "Why do you carry a gun?" is "Same reason I have a fire extinguisher in my car and carry field dressings. Disasters happen."

It comes across as casual, thoughtful and rational.

In the political spectrum, many groups seem to assume that gun control legislation is inevitable, and then work to make it as "pleasant" as possible. I feel that should be the last resort.

Brady has also managed to create such meaningless but media-popular terms as the "Uzi Triangle" and "Ring of Fire."

Who uses these "Common" terms? Why, they do.

I'm trying to come up with a more media friendly term than to call them "paranoid nanny-staters." Unfortunately, the most accurate term I can find is a bit obscure for most readers: "Animists."

Personally, I think there needs to be class action suits against the Brady Bunch after every mass shooting in a jurisdiction they supported legislation in.

"These people died because Sarah Brady disarmed them and made moral self-defense impossible. Sarah Brady supports the rights of criminals and rapists to attack innocent people undeterred."

Screw the statistics and argument over details. Just lay blame where it exists, briefly, loudly and often. We should not be on the defensive with crap about "if you look at other jurisdictions, etc, etc." It's true, but defensive. "No, the blame for this tragedy lies on those who conspire with murderers to keep victims helpless."

Compare the two quotes:
"The NRA likes criminals and wants to keep them armed."

Er...why? What motivation?

"The Brady Bunch are paranoid and consistently push to make victims more helpless in the face of murder and rape."

Ah, they do so because they're PARANOID. They FEAR GUNS. No reasonable person fears guns, only a PARANOID.

But if we don't say the latter, there's no dispute to the former. Even educated people will repeat cool-sounding soundbites without rationally deconstructing them.

EXAMPLE: I once heard a college chemistry professor friend repeat a quote from a paper about a guy who produced ricin poison. "It's like having your own nuke in your garage."

Well, no, TC. A NUKE could be detonated in my garage and take out part of the city. RICIN has to be DISTRIBUTED through food or injection. Ricin, as toxic as it is, is NOTHING LIKE having your own nuke.

We need more pics of little girls with big grins shooting particolored target rifles. See? They're having wholesome, supervised fun, and this EVIL, UGLY OLD HAG HATES THEM BECAUSE SHE IS PARANOID.

I already wrote to Gov Blagojevich and the President of VA Tech and (politely) accused them of conspiracy to commit murder. Quite a few others did, too. When it comes down to 10-20,000 people responding to these attacks and placing blame where it lies, people will finally start to believe it.

Hmm...I should probably write to the AGs of both states and ask when these criminal charges will be forthcoming.:) Certainly we shouldn't allow conspirators to premeditated mass murder to go unchallenged.

[ilbob]

I'm in the 10th circuit and have been thinking about this. I think you would want as plaintiffs a couple members of the national guard, a couple LEOs, a couple people in the unorganized militia, some girls (not in the unorganized militia), a couple people who already own NFA items, etc. Of course we will have to see what the Heller decision says
Why would LEOs and national guardsmen matter in the mix at all? They are already provided with whatever firearms their employer selects for them. There is no right involved with their possesion or use of firearms.

[Soybomb]

It comes across as casual, thoughtful and rational.

I already wrote to Gov Blagojevich and the President of VA Tech and (politely) accused them of conspiracy to commit murder.
I think you're right on track about thoughtful and rational arguments winning minds but those letters to me seem to be a deviation from what you're wanting.

[ctdonath]

They are already provided with whatever firearms their employer selects for them.
That's exactly the situation Mr. Heller is in: his employer selects & provides arms for his job, but he cannot keep & bear the exact same thing outside that job.

A National Guardsman can only have the M16 assigned to him, and must return it to the armory at the end of his shift. He cannot buy one for himself and keep it at home.

[madmike]

And a National Guard M16 is US PROPERTY, not state property, and under Art 1, Sec 10, Para III, cannot be loaded without consent of Congress or the President.

The Guard is not a "State militia." When it's recalled as a "state militia" with Fed approval, weapons are PROHIBITED, except for MPs.

My inquiries were polite enough. "Seeing as your law/policy enabled and assisted this felony murder, don't you think you should surrender yourself to authorities for a lawful trial to determine the level of your culpability?"

[madmike]

ilbob: My point in adding Guardsmen is that since an AWB would mean we could ONLY practice with our duty weapons, rarely and with little ammo, it would adversely affect our ability to retain our skillset.

Same as if you prohibited me from going to a gym or using exercise equipment and said, "Oh, you can do that one weekend a month."

[alan]

madmike:

re your #134, well said sir.