Freedom is at hand!

http://caselaw.lp.findlaw.com/data2/circs/9th/0210318p.pdf


From the text:

"[9] Finally, Stewart argues that the Second Amendment
guarantees him the right to possess machineguns, as well as
the right to possess firearms generally despite his former felony
conviction—as charged in count one of Stewart’s indictment.
We have held that the Second Amendment “was not
adopted in order to afford rights to individuals with respect to
private gun ownership or possession.” Silveira v. Lockyer,
312 F.3d 1052, 1087 (9th Cir. 2002). Thus, there is no Second
Amendment limitation on “legislation regulating or prohibiting
the possession or use of firearms.” Id. Stewart’s Second
Amendment argument must therefore fail. We reverse Stewart’s
conviction for machinegun possession under section
922(o) as an unlawful extension of Congress’s commerce
power and affirm his conviction for possession of firearms by
a felon."

So they couldn't reverse their 2A ruling, but they still kicked the law out!
Kozinsky is THE MAN!:D

That's fine, but it ignores that overreaching use of the ICC (to the point where someone has standing to sue) implies there is some sort of right that was infringed. Whether that right exists under the 9th or the 2nd Amendment is rather unimportant. The only thing left to consider is whether the right is incorporated under the 14th. If so, state laws fail also.

Can you please explain to me what this ruling does for me, the american gun owner?

United States v. Rambo, I'm guessing he won.

Okay, assuming that this stands, or is actually appealed by the .gov to the SCOTUS, so that this decision is good nation wide, and not just in the Arizona circuit, how many states that allow Class III make NFA approval and paperwork required as part of their state laws?

I also noticed that the majority opinion Judge also takes a slight swipe at the ATF when he notes that the defendant was never charged for the cause of the initial investigation: the 80% completed single shot Maddi-Griffin .50BMG rifle recievers, but was instead charged with NFA violations, and felon in posession of firearms violations...

He sort of quielty accused the ATF of going on a "fishing expidition"... :D

So this is definitely significant, but far from the NFA slam-dunk you seem to think it is MicroBalorg. Don't get me wrong, I certainly wish it was too. :)

The other thing is that the ATF can still arrest and charge people, confiscate everything etc. you simply now can challenge the arrest in court and get off if you can afford thousands, perhaps millions in legal fees, under this decision but only after they've already ruined your life, stomped your cat, beat your pregnant wife into miscarrying, and burning down your house.

I can only imagine the scrambling state legislatures are going to attempt if this does get upheld that personal intra-state machinegun manufacture is not federaly regulated.

This could also conceivably apply to the portion of sec 922(v?) that is the '94 AW ban, that someone who puts a pistol grip, flash hider, folding stock, or bayo lug on a post-ban rifle in-state with no intent to sell it or carry it out of state also does not come under federal authority. But again, it will have to be applied outside the circuit, or go to SCOTUS if any other circuits are found in conflict with this decision.

The other thing is that the ATF can still arrest and charge people,
confiscate everything etc.

Uhm, explain please?:confused:

It does appear that 922(o) is dead:

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

Why not?

It's only dead if the MG is homemade, and as in Stewarts case doesn't affect interstate commerce in legal transferrable machine guns. This 922(o) is the law that shut off new machinegun registration in 1986 apparently. If it's ruled that it is unconstitutional for homemade weapons, the ATF will have to accept registration/taxes on newly homemade weapons. They won't be able to charge you with ???? if they have to accept registrations... The problem is does it really apply to everyone (assuming it is upheld and becomes law of the land)?

Someone on another board I saw mentioned that one thing unique to Stewart's case is that he was a felon. They mention him making his own machinegun doesn't affect interstate commerce on the supply and demand side because he was never going to sell it (affecting supply side) and he could not have bought one legally himself (demand side). That is only one small part of the ruling, but where the heck does that leave the rest of us who could legally buy a transferrable if we had several thousand bucks sitting around? Would it be affecting interstate commerce if I made a homemade since I could have bought a transferrable one? I'm not sure they couldn't rule that even though you weren't going to sell your homemade, you were affecting the demand for MGs by making your own... Beats me, the more I read into it I'm not sure this ruling does a damn thing for anyone even if it gets upheld. Sure looks promising on the surface. I'm becoming convinced it will be overturned in this en banc thing, the rest of the 9th won't stand for this ruling IMO...

Uhm, explain please?

It does appear that 922(o) is dead:

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

Why not?

Because when the ATF comes to your house on the tip that you have unregistered machine guns they're still going to arrest you and turn your life upside down on the (probably correct) belief that while the law is now on your side, that they'll break you before you can spend the time and money to appeals court to get it overturned.

Telling the ATF tactical team that the 9th circuit ruled that 922(o) was overturned will make no practical difference in what's going to happen to me. It will still take tons of time, lawyers, money, plus the confiscation of at minimum my guns, if not my house in the duration, before I can "reach up through the legal system" and get that ruling applied to my situation. And if I'm so lucky as to win, I won't be compensated for my losses in the intervening years. And getting my lost wages, house, guns etc. back will each take separate lawsuits and even more years of my time.

Also, for right now, this case is only effective in the southwestern U.S. for the 9th circuit court. If I were to be convicted under an NFA violation of the same nature here in Wisconsin under my circuit court, I would likely still sit in prision for a long, long, long time, and bankrupt my wife and family before my circuit court and the 9th get reconciled by the U.S. Supreme Court and there is no garantee (despite the constitution) that they'd rule in my, or the 9th circuit's favor.

There are several well-documented instances of FFL's, gun businesses, and private individuals being dragged endlessly through the courts with the aid of anti-gun/ATF-friendly fed prosecutors even though the poor people are "in the right" because the ATF and the .fedgov have a limitless base of tax money with wich to bury me in paper, motions, and appeals, whereas I do not.

The ATF is also savvy enough to never charge, much less investigate any rich gun owner who might have the legal resources to fight them, lest he win and make more precedent law for the rest of us.

Don't get me wrong Micro, I want what you want, (and I suspect you'd like to emigrate to a U.S.A. with no NFA '34, GCA '68, or AWB '94 :D ) and I've spent some significant ammount of my own time and money, donating, volunteering, calling, and letter writing for "the cause" too. It's just that in current practical reality, this court decision would mean if I made an MG in my basment from scratch, never took it out of my home state of Wisconsin, and still got caught, I might be freed in five years, bankrupt without so much as a "sorry" from .fedgov, and no criminal record, as opposed to freed in ten years, still bankrupt, but with a felony record.

This is certainly a good decision, and I won't deny it isn't another welcome crack of light in the wall of illegal and unconstitutional gun laws we have here in the U.S., but other courts, prosecutors, jails, and the ATF won't just drop and stop putting people away immediately like the robots in sci-fi movies do when the main computer is destroyed.

The ATF is also savvy enough to never charge, much less investigate any rich gun owner who might have the legal resources to fight them, lest he win and make more precedent law for the rest of us.

I wish some gun owner with deep pockets and some cajones would take on the ATF in such a lawsuit.

whereas I do not.

But in a case like that it would be fairly easy to represent yourself IMHO.

But in a case like that it would be fairly easy to represent yourself IMHO.

I will take that statment as a testament to the eternal optimisim and undefetable attitude of the young. :D (i.e. a good thing to be admired)

However it's practicality in the real world is questionable. The judge and the prosecutor will not help you out if if you've got the right legal argument, but didn't file the right brief, pleading, filings etc. etc.

If you simply walk into court and say, "Not guilty your honor because of that 922(o) ruling on interstate commerce by the 9th circuit court, and I made that STEN from scratch and never took it outside of Wisconsin!" I'd be dead meat. To actually make that claim alone would take months of time, paid expert witnesses for my side to prove that the gun was my own handwork to counter the ATF's gunsmith who will probably lie etc. etc.

Getting to that point, even if it worked, would take mountains of paperwork, and perhaps years of my life. I'd still probably do some prision time, and still be broke, (assuming it worked)

The point is that even if your represent yourself, and you "win", you're still screwed for several years of your life. This ruling is merely the potential seed of a change nationwide. It will have to go through several more legal steps and courts to get there. Any one of them who could twist some meaning around and reverse the decision. And as Mark Tyson said there's some things in the judgment that are so narrowly applied to only the defendant in that case, we may not be able to use it as a cite or a defense for anyone else anyway.

paid expert witnesses for my side to prove that the gun was my own handwork to counter the ATF's gunsmith who will probably lie etc. etc.


1)The burden of proof is on them, and they have to prove it without reasonable doubt.

2)The receiver is the gun. Simply record it's manufacture with one/2/more 3-hour videotapes. Make backup copies. Expensive, but you will win.

Disclaimer: The author of this is not a lawyer. He is, however, an armourer.:D

The thing is, all federal gun control is based on the interstate commerce clause, isn't it? If this were upheld in the USSC it could be huge! But as others have said, it could easily be reversed too. Let's study the decision and see what we can glean from the logic of the judges involved. That will come in handy in future arguments.

MicroBalorg, you seem to have all the angles covered.

All I have to say is "you first"...


:D

The point was made on AR15.com that you don't have to get arrested to test this, you can submit a Form 1 and a $200 tax to the ATF with the intent of creating/registering a new MG along with a copy of this ruling. When they turn you down you can sue and force the issue. They return your $200 if they reject you, you stand to lose nothing...

I am not getting my hopes up, but the idea is so intriguing.

I think someone should try it - maybe we could start a legal fund for them. I'd chip in. We have to go on the offensive when we get an opportunity like this.

So anything that can be grandfathered like a machine guns or 30 round clips is unconstitutional under the commerce clause? Only a all out ban can "stop" homemade machine guns?

30 round clips

Prepare yourself for thousands of angry PM's explaining the differences between a magazine and a clip.

Seriously, we don't know whether this will go beyond the circumstances of the particular case. The law in question affects only registration of new machine guns.

No pms but I do know the differences between a magazine and a clip. A magazine holds 10 rounds on a strip that you put in the sks or m1 and a clip holes the rounds to be chambered.:D

uh oh:D

UH OH is right. Shall we start a memorial fund for him? :D

TC
TFL Survivor

Any updates on this?

If a felon can make a MG because he isn't affecting the supply and demand, couldn't we make them if we limited ourselves to designs that have no transferable examples? (I'm thinking like P90, MP7, Robarm M96, etc.) If we cannot legally buy one then we aren't doing anything that falls under ICC right?

Someone in the 9th circuit states ought to attempt to get a tax stamp for a full auto from the ATF. To be on the safe side:

Don't do it by modifying a receiver that was shipped between states

Don't sell it

Given the court's language, it sounds as if it would be OK to use tools and materials that were shipped interstate. Maybe you could even use an out of state receiver, but just to be safe you probably shouldn't.

Anyway just applying for the stamp doesn't mean you have to even have to manufacture a weapon. Just do the NFA paperwork and if it's rejected you can cite this case in a legal claim.

All state laws apply of course - I think that rules out Washington state, for one.

isnt judge kozinsky the one who wrote the scathing dissent is silviera v lockyer when it was at the 9th circ?
anyways...........
this is important everyone because more federal gun laws have been struck down in the past 10 years by the commerce clause and separation of powers than the 2nd amendment ever has
BSR

Is there a federal law that makes it illegal to make your own gun (of any type - semi, single shot, lever, pump, etc.)? If you make one, do you have to go transfer it from yourself to yourself through a local gun dealer so you can get it 4473 registered?

Is there a federal law that makes it illegal to make your own gun (of any type - semi, single shot, lever, pump, etc.)? If you make one, do you have to go transfer it from yourself to yourself through a local gun dealer so you can get it 4473 registered?


No, as long as you aren't going to sell it, you're good to go, state law providing.

-z