A whack at knocking 922(o)

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DKSuddeth

John Roberts made a statement like this during his confirmation hearing, relating to U.S. v. Lopez (Gun Free School Zones Act case), but I do not think Alito did. I would like to see it if you can find it, though, as that would be very important for us to know . . .
 
SFGATE

Alito began his dissenting opinion by suggesting that the majority was treating the Supreme Court's 1995 ruling as "a constitutional freak'' rather than a recognition that the Constitution "still imposes some meaningful limits on congressional power.''

Congressional findings about gun trafficking in older laws were irrelevant, he argued, to the question of whether possessing a machine gun has any effect on interstate commerce. Whatever role machine guns play in nationwide crime, Alito said, the mere act of possessing one within a state is no more of an interstate, or economic, activity than possessing a gun near a school.

He said the law might be valid if it was limited to machine guns that crossed state lines, or if Congress had included findings about the impact of those weapons on interstate commerce. That suggestion was derided by the court majority, which said Congress was not required to "play Show and Tell with the federal courts'' to validate a law.
Click to expand...

Now, unlike the rest of the court that said congress didn't have to play show and tell, I agree with alito on the point he made that would have required congress to show findings on the impact.
 
Progress? Mostly tangential, and subordinate to other pressing issues.

I need a lawyer to talk to about this - preferably through some kind of THR-type networking. Cold calls are hard with this kind of thing. Initially just need an hour or so to present the core idea, kick around some approaches, come to an understanding and figure out where to go next (and what $$$ that entails).

At the moment, my main puzzlement is that the "shall not be infringed" clause has not been addressed in any formal setting. Commerce clause issues should be instantly null-and-void in light of that. Congress has already declared me a member of the federal militia (involuntarily, being of age, gender & ability), and found that the 2nd Amendment is indeed an individual right (Congressional fact-finding paper, links to which I don't recall at this instant), and recent courts (RIA, IIRC) note that disarming the militia is impractical & preposterous (states cannot disarm that which the feds may call on at any time); that leaves "shall not be infringed" to address. I'm mulling over a precursor case that pares this particular issue down to straight-up bare-essentials (idea still brewing, not ready for open discussion).

Yes, in light of certain recent rulings, my confidence in SCOTUS is limited. McCain-Feingold, Kelo (sp?), Raich, etc. are preposterous conclusions. Nontheless, I find the exercise of creating the case very worthwhile - at worst for my own understanding of the issues, and at best for restoring RKBA.

Yes, I know 922(o) and NFA are different. They are, however, closely related enough that casual discussion allows for implication of one by reference to the other. Sometimes it's just not worth being absolutely clear all the time, lest the forest be lost to the leaves.

Finally, I've heard references & implications regarding other attempts - but find little hard info thereon. Anyone know something useful? I'm sure the NFA community has done more than I'm aware of.

Battery is about to die, and I'm about to doze off. Later...
 
ctdonath - Case law

Since you are in Georgia, you are within the Eleventh Circuit. I would not worry so much about the Supreme Court, because the odds of them ever hearing your case are about as good as winning the lottery. They also just recently (this year) gave direction to the Ninth Circuit to reverse its prior decision holding that home made machine guns cannot be regulated under the Commerce Clause - so there is the answer on the Commerce Clause.

As I said previously, you are within the Eleventh Circuit. On the Second Amendment, here is what the Eleventh Circuit has to say in U.S. v. Wright, 117 F.3d 1265 (11th Cir.1997), a case involving the possession of a post 1986 machine gun (can't get much more on point than that):

The concerns motivating the creation of the Second Amendment convince us that the amendment was intended to protect only the use or possession of weapons that is reasonably related to a militia actively maintained and trained by the states. With this conclusion, we join every other federal court that has been called on to consider the “well regulated militia” requirement of the Second Amendment, several of which have considered and rejected the claim made by Wright in this case that membership in a state's unorganized militia is sufficient to bring gun possession within the protection of the Second Amendment.

. . .
Having concluded that Wright has failed to make this requisite showing, we need not decide here whether the Second Amendment creates an “individual” or a “collective” right. . . . (“Whether the ‘right to bear arms' for militia purposes is ‘individual’ or ‘collective’ in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia.”). Whichever the case, as a criminal defendant, Wright has “standing” to assert a constitutional challenge to the statute he is charged with violating. . . . . Accordingly, not a single court has refused to consider a criminal defendant's Second Amendment challenge on “standing” grounds. . . .

Likewise, because Wright has failed to demonstrate any connection to a well regulated militia, we need not consider what showing is required to establish a reasonable relationship between the possession or use of weapons and the preservation or efficiency of such a militia. Finally, we express no opinion as to what governmental interests would be sufficient to justify an infringement on Second Amendment rights in the event such a reasonable relationship is established.


They also denied his Ninth Amendment claim.

The entire case is 17 pages of expanding upon this idea, and it is not the only case in the Eleventh Circuit to so hold.

Prior to this case, the Eleventh Circuit had stated that a Second Amendment challenge to a complete ban on machine guns was "without merit" with no further discussion. The Supreme Court subsequently refused to hear an appeal.

Your case is not exactly some new thing that the courts have never heard before. You ought to know what you are up against.
 
Oops.

Sorry, I did not mean to stop the thread dead in its tracks. :uhoh: I just wanted you to know the law where you live.
 
Don't fuss; the thread has been around a while, and I have a life outside THR.

The references are interesting, and not unexpected. Finding relevant court cases is not easy.

What you quote does not take into account the Congressional finding that the 2nd Amendment IS an individual right, and the court does NOT address federal law making me a militia member (like it or not, organized or not). Making a case partially or completely repeats what has been done before, and my jurisdiction's court has apparently proven themselves unfriendly to plain Constitutional principles - so be it.

Hence my interest in a large number of plantiffs filing independently everywhere: statistically speaking, SOME court(s) WILL hold that 922(o) is unconstitutional, and SCOTUS will have to rule to resolve the equal-protection problem. The case would have to be absolutely clear & complete; I've noticed that similar cases are gratuitously lacking in thoroughness & clarity, and they fail. Also, lots of firmly law-abiding plantiffs should resolve the "lone nut" problem that seduces courts into making an unfriendly ruling on the apparent theory that they just want the guy to go away.

Side note: recent cases also observe that the US militia (unorganized included) cannot be disarmed because that would hinder Congress' ability to call upon it.

We also need to drag courts kicking & screaming to the "shall not be infringed" clause.

Militia member by federal defninition: check.
Arming self for local, state & federal security needs: check.
Individual right as one of "the people": check.
Modern standard military "grunt" weapon, M4: check.
"shall not be infringed": where, oh where, has constitutional justice gone?
 
Ctd, we are wasting our time with this debate. The cases themselves will be ridiculously easy to make once we have the "2nd = fundamental right" ruling from the supremes. Until then, you are going to run up against standing issues every time you try to bring a case. If no fundamental right is being damaged, you cant really claim that you are being harmed by the law in question. Of course, RKBA is a fundamental right, but the supreme court hasnt recognized that, so the inferior courts can pretend it isnt. Until this fundamental problem is rectified, the courtroom is not going to be our salvation. The current case in Washington DC is an awesome 2nd amendment opportunity, but it has yet to run its course.
 
Which Case?

Parker. Go to the Cato Institute web site.

Or, you can look here:

http://www.georgiapacking.org/forum/viewtopic.php?t=344&highlight=parker

Oh, and here:

http://www.georgiapacking.org/forum/viewtopic.php?t=776

The Parker case is the best hope we have had in decades of getting a ruling from the top court declaring the Second Amendment to be an individual right. Even Thurbert Baker, our Democratic Attorney General, signed on to an amicus curiae brief urging the D.C. Circuit Court of Appeals to reverse the D.C. District Court (which held it is a "collective" right). The amicus brief goes even further, insisting that the States have an interest in ensuring that their citizens can carry when visiting D.C.
 
Interesting. Had lost track of the DC cases.

Of note: seems nobody has pointed out to a court that Congress has defined an "unorganized militia", which defines members thereof without any connection to state militias, organized militias, or any other squeamish out. This, plus ample court cases & historical intent, means the member (as defined) is entirely on his own to arm himself, expected to show up self-armed, and 'tis preposterous to expect any limitation upon those arms in need of national defense.

Put another way ... why are most RKBA cases so lame?
 
ctdonath, please forgive me, as I am not intentionally trying to be rude, but I think several court cases have addressed the unorganized militia law.

Try these:

Nordyke v. King, 364 F.3d 1025 (9th Cir. 2004) ("Those of us who are male and able-bodied have almost all been militiamen for most of our lives whether we know it or not, whether we are organized or not, whether our state governments supervised our possession and use of arms or not.") This is in dissent, though.

Silveira v. Lockyer, 328 F.3d 567 (9th Cir. 2003). Again, dissenting fromthe panel opinion:

"An incidental benefit from reading this contemporaneous implementing statute is that it makes perfectly obvious what “well regulated” meant at the time the Second Amendment was adopted. The panel seems to imagine that a well regulated militia is a people disarmed until the government puts guns in their hands after summoning them to service. But the contemporaneous statute shows that a well regulated militia is just the opposite, a people who have armed themselves at least to minimal national standards, and whom the militia officers inspect to assure that they have not wandered in off the streets without guns. The “regulat[ion]” contemplated*580 was not to disarm people when they were not at militia exercises, but rather to make sure they were armed, with their own guns. This was consistent with the colonial pattern of laws that typically “required colonists to carry weapons.” FN68 Among the acts of the crown seen as oppressions to be prevented from ever happening again were the Militia Acts of 1757 through 1763 authorizing British officials “to seize and remove the arms” of colonial militias when they thought it necessary to the peace of the kingdom. The American Revolution was triggered when General Gage ordered troops to march from Boston to Lexington and Concord to do just that. “[T]he Framers very arguably rejected as basic a Weberian notion as the state's monopoly on legitimate violence···· [T]he Framers weren't late-twentieth-century Americans (much less late-twentieth-century Europeans)····” They were the heirs of two revolutions, the English and the American, with an altogether different worldview.

. . .

Were the modern federal statute to narrow the meaning of “militia” to something like the organized national guard that the panel envisions, then the statutory meaning of the term would differ from the meaning in the Second Amendment, and we would be bound, for Constitutional purposes, by the broader definition established by Miller. It would be as though Congress defined “press” for purposes of issuing press passes to a reserved section of the Capitol building to mean something narrower than “press” for purposes of the “freedom ··· of the press” protected by the First Amendment. The new, narrower statutory meaning would not limit the Constitutional freedom.
We need not parse this problem, though, because Congress has broadened rather than narrowed the term. Today the United States Code still defines the term “militia.” The modern statute, instead of narrowing the militia to an organized body of regularly supervised and trained part time soldiers, broadens the term. The statute specifies that the “militia” consists not only of the “organized” militia, consisting of the National Guard and the Naval Militia, but also an “unorganized militia.” The “unorganized militia” is precisely what the panel says it is not, “an amorphous body of the people as a whole.” Now, instead of being limited to white male citizens between 18 and 45, the militia has (of course) no racial restriction. Non-citizens are now included, provided they have declared an intention to become citizens. The sex restriction is gone and females are included if they are members of the National Guard. People become part of the militia now at age 17 instead of 18. The only narrowing of the statutory scope is that we are no longer required by law to own and furnish guns, ammunition and bayonets. So now the militia consists not only of all white male citizens between 18 and 45, but also all able-bodied non-white males, whether citizens or non-citizens declared for citizenship, between 17 and 45, and all females in the National Guard. Those of us who are male and able-bodied have almost all been militiamen for most of our lives whether we know it or not, whether we were organized or not, whether our state governments supervised our possession and use of arms or not."
(footnotes omitted).
 
This one really sucks

And these:

U.S. v. Lucero, 43 Fed.Appx. 299 (10th Cir. 2002):

"Lucero contends that the Second Amendment confers an individual right on him, as a member of an unorganized militia, to possess a firearm of a type that has a reasonable military use. He relies primarily on United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939).

. . .


At the hearing on the motion to dismiss, an expert testified that machineguns have reasonable military uses and are in fact used by the military.
Lucero's argument is foreclosed by our prior decision in United States v. Haney, 264 F.3d 1161 (10th Cir.2001), cert. denied,536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002). In Haney, we rejected a similar challenge to section 922( o). We held that “a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state's ability to maintain a well-regulated militia.” Id. at 1165; see also United States v. Baer, 235 F.3d 561, 564 (10th Cir.2000) (stating that “the circuits have consistently upheld the constitutionality of federal weapons regulations like section 922(g) absent evidence that they in any way affect the maintenance of a well regulated militia”). We further held in Haney:

As a threshold matter, [a defendant asserting a Second Amendment claim] must show that (1) he is part of a state militia; (2) the militia, and his participation therein, is “well regulated” by the state; (3) machineguns are used by that militia; and (4) his possession of the machinegun was reasonably connected to his militia service.

264 F.3d at 1165. Lucero argues that he is part of an unorganized militia by virtue of 10 U.S.C. § 311, which defines the “militia of the United States” as consisting of “all able-bodied male[ ]” citizens 17 to 45 years old. We emphasized in Haney, however, that a defendant challenging section 922( o) must show that he is “part of the ‘well regulated’ militia, that is, a ‘militia actively maintained and trained by the states.’ ” 264 F.3d at 1166 (quoting United States v. Wright, 117 F.3d 1265, 1272 (11th Cir.1997)); see also United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977) (“To apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy.”). Lucero has made no such showing. Unlike the defendants in Miller and Haney, Lucero has presented evidence that a machinegun has a reasonable military use. Nonetheless, he falls far short of satisfying Haney 's four requirements.


III. Conclusion


We therefore hold that 18 U.S.C. § 922( o) is constitutional as applied in this case, and we AFFIRM the appellant's conviction.
We DENY the United States' motion, filed June 24, 2002, to modify the argument in its answer brief regarding the scope of the Second Amendment. All other motions are DENIED.

LUCERO, Circuit Judge, concurring.
I concur in the result reached by the majority opinion, and would affirm. Even were we to accept the proposition that the defendant has an individual right under the Second Amendment “to keep and bear Arms” in order to serve in “[a] well regulated Militia” subject to call by a “free State,” I am not persuaded that the semi-automatic and fully automatic “machineguns” which defendant sold to federal agents, and which have been outlawed by federal legislation, are the type of arms subject to Second Amendment protection. For that reason I would affirm the judgment of the district court.
I would grant the government's motion to modify its answer brief regarding the scope of the Second Amendment and allow the parties to supplementally brief this issue.
 
In United States v. Rybar, 103 F.3d 273, 286 (3d Cir.1996), the Third Circuit held that Rybar's membership in the general, unorganized militia established by 10 U.S.C. § 311(a) did not cause his possession of a machine gun to be so connected with militia activity that the Second Amendment applied. This is the case from which (now) Justice Alito dissented, but his dissent was not on Second Amendment grounds.
 
In United States v. Hale, 978 F.2d 1016 (8th Cir.1992), the Eighth Circuit found it unnecessary to commit to either the states' rights or the sophisticated collective rights model of the Second Amendment. The court proclaimed that “[c]onsidering this history, we cannot conclude that the Second Amendment protects the individual possession of military weapons.” Id. at 1019. Yet, the court went on to consider whether the defendant's actual possession of machine guns was “reasonably related to the preservation of a well regulated militia.” Id. at 1020. Like the Third Circuit in Rybar, the Eighth Circuit held that membership in an unorganized militia did not satisfy the reasonable relationship test. The court felt that unless the reasonable relationship test was satisfied, it was “irrelevant” whether the Second Amendment was collective or individual in nature. Id.
 
. . . even assuming Defendant could overcome this substantial evidentiary obstacle, he still would confront the additional burden of establishing his membership in a “well regulated Militia” of the sort contemplated by the Second Amendment. Although Defendant points to his position in the private “Michigan Militia Corps Wolverines,” the courts have uniformly held that Second Amendment protection does not extend to such private or “unorganized” militias. U.S. v. Bournes, 105 F.Supp.2d 736 (E.D.Mich. 2000).
 
Thank you. Those are helpful. Locating relevant court cases is much harder than finding relevant laws.

Pardon my delay while I read this stuff...
 
I've read these excerpts and was wondering whether it's possible to create an exception to 922(o) by creating township or county militias armed with NFA weapons, where one is a member of the local militia with regular but infrequent calls to drill or muster. That might create a "well-regulated militia" because it would be under the auspices of the local government, however loosely.

Could this work in such a place as Wyoming, with its libertarian leanings?
 
In fact, the core contention of this plea is that the law DOES allow a citizen to lawfully obtain a post-'86 MG (922(o)(2)(A) allowing it under gov't approval), but that the problem is that the gov't (aka BATFE) refuses to do its obligated part in accepting the obligated tax payment.
Click to expand...
Sorry, but you've completely misread/misunderstood this portion of the law. That section merely exempts purchases/transfers of machine guns by government agencies. It does not allow for the BATF to to approve transfers to non-government persons or agencies. That was the intent of the legislature, to prevent post 1986 machine guns from entering the private marketplace, but to allow new guns to be purchased by the government.
 
[/QUOTE]Sorry, but you've completely misread/misunderstood this portion of the law. That section merely exempts purchases/transfers of machine guns by government agencies. It does not allow for the BATF to to approve transfers to non-government persons or agencies. That was the intent of the legislature, to prevent post 1986 machine guns from entering the private marketplace, but to allow new guns to be purchased by the government.[/QUOTE]

Um, no:

(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
Click to expand...
If the sheriff authorizes you to own a machine gun(CLEO sign off?), then you're allowed. You just have to find a state that will pass a law that allows such authroization, and then sue that you followed the law, and so you can't be denied.
 
I don't know if it would work that way, but that is certainly how overseas sales are legal - they are "under the authority of" the United States government.

;)
 
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