1994 awb


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snake_plisskin
December 28, 2012, 10:26 PM
Was the 1994 "assault weapons ban" ever challenged and taken to the supreme court to determine if it was constitutional? I've done some searching but I can't find anything about it. If it wasn't ever considered by the supreme court was it mainly because of the sunset clause and people didn't feel the need?

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Jorg Nysgerrig
December 28, 2012, 10:42 PM
The Supreme Court hasn't heard many 2A cases at all. Definitely nothing on the 94 AWB. Getting something to SCOTUS isn't a trivial matter.

snake_plisskin
December 29, 2012, 12:15 AM
Yeah thats what I figured. If the new bill passes it could be quite a while before it makes it to the supreme court (if ever). By then it would be fully enacted for sure.

Gryffydd
December 29, 2012, 07:04 AM
By then it would be fully enacted for sure.

Naturally, as someone would have to be charged and convicted of violating it before even being able to appeal it up through the courts.

snake_plisskin
December 29, 2012, 10:45 AM
Does someone need to be convicted first? Based on what happened with the healthcare law couldn't a lawsuit be brought against the government questioning the constitutionality of it? If I remember correctly a lawsuit was filed by 25 states. Seems like something of that nature could happen here too.

mister_murphy
December 29, 2012, 11:05 AM
Naturally, as someone would have to be charged and convicted of violating it before even being able to appeal it up through the courts.

You dont always have to be charged and convicted to have standing in court. You can be adversly affected in a way that you can prove and then take it into the courts and work your way up.

Hacker15E
December 29, 2012, 11:08 AM
Was the 1994 "assault weapons ban" ever challenged and taken to the supreme court to determine if it was constitutional? I've done some searching but I can't find anything about it. If it wasn't ever considered by the supreme court was it mainly because of the sunset clause and people didn't feel the need?

No, and I believe that there wasn't a significant desire to for fear of what the SCOTUS might rule. Even if you look at some of the cases like Heller, firearms rights folks were nervous to put much effort into getting them in front of the SCOTUS because the ruling might be against firearms rights, and that would then become established caselaw.

Things are different today, given the Heller decision and the current composition of the court.

Hacker15E
December 29, 2012, 11:11 AM
Naturally, as someone would have to be charged and convicted of violating it before even being able to appeal it up through the courts.

Not true at all -- the Constitutionality of the Health Care law was taken to the SCOTUS (National Federation of Independent Business v. Sebelius), and that wasn't a result of someone being "charged and convicted" of anything.

DaisyCutter
December 29, 2012, 11:42 AM
The ban was a minor PITA.

I built a beautiful FAL battle rifle during the ban. I bought TEN 20-round mags for it at $6 a piece. The rounds to fill the mags cost more than the mags did themselves.

Contest the ban legally, don't panic, and adapt.

Hypnogator
December 29, 2012, 11:54 AM
The '94 AWB lived and died before the Supreme Court ruled in Heller that there even was an individual right to keep and bear arms.

In my view, any reinstatement/expansion of the ban would be unconstitutional inasmuch as Miller found a short-barreled shotgun subject to the Nat'l Firearms Act only because it was not recognized to be a weapon useful to the militia/military. In light of Miller, how does one argue that banning a weapon identical to the military issue weapon except for select-fire capability, is not protected under the 2nd Amendment.

The Brown Bess Musket was the "assault weapon" of the late 18th Century, and that's exactly what the Founding Fathers intended the 2nd Amendment to protect. :cool:

Onmilo
December 29, 2012, 12:40 PM
Funny thing is that short barrel shotguns are now found in Military circles as a matter of routine.
Wonder how that would play out if the case was to be reheard...

Librarian
December 29, 2012, 09:15 PM
Funny thing is that short barrel shotguns are now found in Military circles as a matter of routine.
Wonder how that would play out if the case was to be reheard...Since Heller disconnected firearms ownership from militia service, the issue is dead.

However the Miller language is "In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

Since there were no defense briefs submitted, and there was no trial to establish facts, no evidence was presented to the court on use; without briefs, without documentation, courts can use 'judicial notice' to assume obvious things at the level of 'the sun rises in the east in the morning'.

You should download and read THE PECULIAR STORY OF UNITED STATES V. MILLER (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=981831)

BjornF16
December 30, 2012, 10:34 PM
Librarian,

I'm not sure I agree with your assessment of SBS and militia service.

Heller ruling said gun ownership was not dependent upon militia service because there was longstanding common law to support gun ownership.

However, Heller opinion also stated type of weapons that could be owned WERE determined in Miller:

United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

Remember, we are "all" the militia. I'm not a lawyer but it seems to me they are saying we have a right to own anything that is appropriate for the common defense. I think a challenge could be won with the current court. Unfortunately, we have 2 of the conservatives currently sitting on the court that will be reaching 80 years of age in the next 4 years.

Björn

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