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Heller and States' rights?

Discussion in 'Legal' started by ol' scratch, Jul 10, 2009.

  1. ol' scratch

    ol' scratch Well-Known Member

    I have been reading about the latest push to try and side step the 2nd amendment. Apparently, some claim the Feds and the 2nd amendment don't pertain to the states. So my question is- If the 2nd amendment is only for the Federal government, couldn't some states push to overturn the Federal ban on fully automatic firearms? I know if it was found that the 2nd amendment doesn't pertain to states, some states would outright ban firearms. But wouldn't other states push to repeal the Federal ban on automatics? Many states already have the right to bear arms in their state constitutions.
  2. Birdmang

    Birdmang Well-Known Member

    The federal ban on automatic weapons is legal through the commerce clause, so no probably not.
  3. mr.scott

    mr.scott Well-Known Member

    Birdmang - It's only legal though the commerce clause because the weapons are\ were built in one state and if transfered to another state fall under the clause.
    Montana and I believe Alaska have enacted laws on their state level essentially saying that weapons made in that state for sale in that state and that aren't going to be transfered out of state are exempt from federal laws.
    So an AR15 made in Montana could be legally made SBR/ full auto /burst fire if it was manufactured and sold in that state.
  4. Birdmang

    Birdmang Well-Known Member

    Yes, I know. That is how they get at things through the commerce clause, congress' power to regulate interstate commerce...same way that they got at the civil rights issues and jim crow laws in the sixties...connecting it to interstate commerce.

    With regards to the AR15 in Montana, the AR15 would have to be completely made from parts that were made from Montana, they couldn't come from any other state, because they it would be interstate commerce and fall under the ban. It would be pretty hard to do and be expensive without cutting corners, and I'm sure people would be waiting for a mistake.

    MT GUNNY Well-Known Member

    MR .Scott; QUOTE: So an AR15 made in Montana could be legally made SBR/ full auto /burst fire if it was manufactured and sold in that state

    SBR yes, Auto and Burst NO. HB246 Specifically states in the text of the bill:

    Section 5. Exceptions. [Section 4] does not apply to:
    (1) a firearm that cannot be carried and used by one person;
    (2) a firearm that has a bore diameter greater than 1 1/2 inches and that uses smokeless powder, not
    black powder, as a propellant;
    (3) ammunition with a projectile that explodes using an explosion of chemical energy after the projectile
    leaves the firearm; or
    (4) a firearm that discharges two or more projectiles with one activation of the trigger or other firing
  6. Phatty

    Phatty Well-Known Member

    The Commerce Clause is the basis for Congress's authority to enact the NFA legislation. However, the Commerce Clause power does not trump any of the restrictions in the Bill of Rights. For example, if Congress passed legislation outlawing any books sold in interstate commerce that criticized President Obama, that law would be unconstitutional.

    For purposes of the OP's original question, the commerce clause is completely irrelevant as it has nothing to do with whether any particular law violates the 2A.

    To ol' scratch, the answer to your question is "yes," any person could file a lawsuit seeking to declare the federal machine gun ban unconstitutional under the 2A. All federal laws are subject to the 2A so any of those federal laws can be challenged as unconstitutional for violating the 2A. Now, whether or not you would succeed is a whole 'nother question.

    I suspect that there is a plan to challenge the machine gun ban in the wake of the Heller opinion, but I think the pro-gun lobby is looking at challenging some of the lower-hanging fruit first (such as outright bans of handguns in the home) before moving on to more difficult challenges.
  7. cbrgator

    cbrgator Well-Known Member

    True, anybody can file that lawsuit. But without standing, no federal court would ever hear the case.
  8. Birdmang

    Birdmang Well-Known Member

    Standing wouldn't be that hard to get but it still might not be heard.

    And you would probably be in a lot of trouble considering what you had to do to get standing if/when you lose.
  9. Phatty

    Phatty Well-Known Member

    No, Congress used the 14th Amendment as the basis to handle those issues, specifically this:
    nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
    and this:
    The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
  10. Birdmang

    Birdmang Well-Known Member

    The commerce clause was used in a lot of key Supreme Court cases for ways of regulating and getting rid of discrimination in businesses of the south during the civil rights movement.
  11. Phatty

    Phatty Well-Known Member

    You seem to be grossly underestimating how easy it would be to obtain standing in such a case.
    The first option (which I don't recommend) is to get arrested while possessing a machinegun. When you get charged under the federal statute for possession of a machinegun, assert that the law is unconstitutional. There's a hell of a lot of risk with that approach, so don't do that.

    The second, better option is to file a lawsuit with the following allegation:
    Plaintiff wishes to purchase a new, fully automatic M-16 rifle for the defense of his home and for his own recreational purposes. Plaintiff's home state does not prohibit the possession of such a rifle. However, Plaintiff is unable to purchase said rifle due to federal law which prevents him from purchasing or possessing said rifle. But for the federal law, Plaintiff would purchase and possess a M-16 rifle.

    Bam! You now have standing. Honestly, any time you are challenging a law which restricts you from doing something, it is incredibly easy to obtain standing just by saying you want to do it but the law won't let you.
  12. Phatty

    Phatty Well-Known Member

    You are right, with respect to private businesses. I was thrown off by your "jim crow laws" which implied that you were talking about state and local laws, rather than the actions of private individuals or businesses.
  13. gbw

    gbw Well-Known Member

    Would that do it? It may be a small point, but there is no 'Article III injury'. He would have to actually be denied (the 'injury') the ability to purchase and posess such a weapon under some statute - I'm not sure how that would work.

    In Heller, all of the other plaintiffs were denied standing and dismissed by the lower courts because they did not suffer such injury. Heller wound up as the only one left because he was the only guy who actually applied for a permit to posses his pistol, which was denied under the DC ban.

    BTW, I'm hoping that incorporation comes through via the equal protection clause - seems our best hope, provided Heller stands up over time.
    Last edited: Jul 10, 2009
  14. Phatty

    Phatty Well-Known Member

    There is your key difference to the machine gun ban. There is no permitting system for me to apply to purchase a new machine gun. In other words, if the government sets out a process for you to do something, then you should probably work your way through that process and be denied what you want before suing, unless you can show that the process presents an undue hardship.

    Even if there were a permit process, you could still obtain standing without going through the permitting process if you allege that the process is itself unconstitutional.

    So, for example, a state law requiring a minor woman to obtain parental consent prior to getting an abortion may be challenged by a minor who wants to get an abortion but does not want to have to get her parents' consent. Suppose that the law contains an exemption to the consent requirement where the minor can petition some public official to waive the consent requirement. The minor can argue that the exemption process is itself an undue burden on her right to abortion, and she doesn't have to get shot down by the public official in order to have standing.

    Trust me, standing is definitely not the roadblock when it comes to challenging the machine gun ban. The almost insurmountable challenge would be convincing the judge that the ban violates the 2nd Amendment.
  15. Birdmang

    Birdmang Well-Known Member

    Oops, sorry about that Phatty!

    Edit: And I hope what you meant by this

    Was referring to Chicago, Morton Grove, and a few others in the area, because they need to go!
  16. Phatty

    Phatty Well-Known Member

    Yep, that's what I was referring to.

    The pro-gun rights lobby is just taking a page from the progessives' play book. If you try to get too much change too fast, you'll fail miserably. The sad reality is that judges and the general public are not ready to swallow a decision that strikes down a machine gun ban.

    If progressives tried to get a ban on gay marriage struck down in 1965, they would have been laughed out of court. However, after 40+ years of making slow progress in recognizing more and more rights, the public and the judiciary are becoming more susceptible to accepting such a challenge.
  17. Quiet

    Quiet Well-Known Member

    This year...

    The 9th Circuit Court of Appeals ruled that the Second Amendment is incorporated.
    So, the Heller rulling does apply to Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

    The 2nd Circuit Court of Appeals and 7th Circuit Court of Appeals ruled that the Second Amendment is not incorporated.
    So, the Heller ruling does not apply to Connecticut, New York, Vermont, Indiana, Illinios and Wisconsin.

    With the split in the Circuit Courts, this issue will be heading to SCOTUS.
  18. cbrgator

    cbrgator Well-Known Member

    I am not sure if you are a lawyer, but standing is not as easy to get as you say. The key part of standing is that your injury or imminent injury is UNIQUE. In the hypothetical you provided (ignoring the getting arrested one), the person who wants it for self-defense does not have a UNIQUE injury, all Americans are victims to that law. The abortion girl would have an injury unique to her situation because she is pregnant and most of society is not. Her injury is thus unique.

    To have standing to challenge the machine gun ban, you'd have to show why it harms YOU PERSONALLY more than everyone else (or at least a vast majority of people).
  19. The RKBA is a right of the individual. If I decide I want a machine gun, I am being uniquely injured if denied. Me being denied doesn't effect anyone else.

  20. As the Commerce Clause is in its current usurped-power state and the Second Amendment considered notwithstanding. Otherwise, no.


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