SCOTUS considering Bianchi v Frosh/Duncan v Bonta the turning point for AW/magazine ban?

Fingers crossed. With what going on in the streets now, in reference to Roe, I will not bet the farm on a pro-gun decision.

This bears watching.

LiveLife said:

The advocates called the banned guns “a class of arms typically possessed by law-abiding citizens for lawful purposes,” such as self-defense ..

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From this, it appears that the pro-gun groups are basing their case on verbiage in the Heller decision regarding "common use," etc. Strange as it may seem, other verbiage in the Heller decision may turn out to be their biggest roadblock.

To arrive at the result that we want, the Court may have to overrule the Heller case, at least in part. I've said for years that they need to go back to the 1939 Miller case as the standard: guns are protected that are suitable for military / militia use, not necessarily for civilian use only. "Assault weapons" -- and, indeed, fully automatic weapons -- are eminently suitable for militia use.

This Court seems to have no difficulty overruling established precedent.

AlexanderA said:

guns are protected that are suitable for military / militia use

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Miller specifically determined that the 2A protects firearms that have "some reasonable relationship to the preservation or efficiency of a well regulated militia" which does not include sawed off shotguns apparently. It was also stated and later reaffirmed in the Heller decision that protected firearms had to be in common use at the time and Scalia in Heller specifically referenced the M16 as being a weapon that would be considered unprotected by the 2A as it was a dangerous and unusual weapon. The federal government has subsequently gone on record as admitting that the AR15 is A) not the same thing as an M16 and B) one of the "most popular rifles in America" i.e. in common use at this time.

AlexanderA said:

This bears watching.


From this, it appears that the pro-gun groups are basing their case on verbiage in the Heller decision regarding "common use," etc. Strange as it may seem, other verbiage in the Heller decision may turn out to be their biggest roadblock.

To arrive at the result that we want, the Court may have to overrule the Heller case, at least in part. I've said for years that they need to go back to the 1939 Miller case as the standard: guns are protected that are suitable for military / militia use, not necessarily for civilian use only. "Assault weapons" -- and, indeed, fully automatic weapons -- are eminently suitable for militia use.

This Court seems to have no difficulty overruling established precedent.

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Exactly. Aside from the fact that classifying weapons in that way is goofy, the way they did it in ‘39 makes sense. How ironic the verbiage of the anti’s today is completely opposite to the logic used back then.

“blah!! Blarrrrgh!!! Aaahh. Weapons of war in the hands of civilians!! Aaagh!!!”

silly.

redcon1 said:

The federal government has subsequently gone on record as admitting that the AR15 is A) not the same thing as an M16 and B) one of the "most popular rifles in America" i.e. in common use at this

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Apart from a few minor differences they are the same

redcon1 said:

Miller specifically determined that the 2A protects firearms that have "some reasonable relationship to the preservation or efficiency of a well regulated militia" which does not include sawed off shotguns apparently. It was also stated and later reaffirmed in the Heller decision that protected firearms had to be in common use at the time and Scalia in Heller specifically referenced the M16 as being a weapon that would be considered unprotected by the 2A as it was a dangerous and unusual weapon. The federal government has subsequently gone on record as admitting that the AR15 is A) not the same thing as an M16 and B) one of the "most popular rifles in America" i.e. in common use at this time.

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The holding in the Miller case was that a sawed-off shotgun did not have "some reasonable relationship to the preservation or efficiency of a well regulated militia," and therefore was not protected by the 2nd Amendment. The clear implication -- the converse of that -- was that a gun, such as a belt-fed machine gun, that unarguably did have a relationship to the military, would be protected. (Never mind that (a) sawed-off shotguns were in fact used in the trenches of WW1, and (b) the Court was determined to uphold the NFA regardless of the reasoning required to do so.) Nevertheless, from the language of the Miller decision, it would appear that the full-automatic M16 rifle, as standard in the armed forces, would be protected under the 2nd Amendment. From that it would follow that the NFA itself was unconstitutional. Ironically, the rationale of the Miller case, applied to slightly different facts, would undermine its own result.

Interestingly, Scalia did not overtly overrule the Miller case in his Heller opinion. He just lamely tried to dance around the issue. One gets the impression that both the Heller and the Miller cases are poorly thought out, especially when you put the two of them together. Is the standard "common use," or is it "common use by the military"?

This area cries out for clarification by the current Court. From all indications, they are not hesitant to wade into such situations when it suits their purposes (now that CJ Roberts has been shunted aside). How pro-2A are they, really? We may soon find out.

JohnKSa said:

That very important "minor" issue is that SCOTUS has not held that firearm registration is unconstitutional. The NFA doesn't prohibit possession, it only requires registration.

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And taxation.
An enthusiast might see a parallel with the poll tax, a tax on exercise of a right.

[QUOTEThe holding in the Miller case was that a sawed-off shotgun did not have "some reasonable relationship to the preservation or efficiency of a well regulated militia," and therefore was not protected by the 2nd Amendment.][/QUOTE]

Not quite right. Below is the actual wording from Miller:

"5
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. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158."

As Miller had died, and his attorneys decided not to respond to SCOTUS, NO EVIDENCE was provided that a short barreled shotgun was used by the military EVEN THO they had been used in the trenches in WWI.

JohnKSa said:

I don't know if that's been tried.

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From memory, there was a case challenging the "tax stamp" restriction on marijuana, and the Court of the time argued that Congress had the power to levy taxes , and had done so via legislation which was signed into law by a president. And that made it legit.
Now, the business of never issuing the stamp, and denying any budget for enforcement for legally obeying the law was not addressed.

The important change we have now is that Heller, for all its foibles, has given us a notion of Strict Scrutiny for 2A jurisprudence.

AlexanderA said:

One gets the impression that both the Heller and the Miller cases are poorly thought out

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I get the impression that the US government, as we have come to know it, isn't about to treat machine guns like ordinary weapons under any circumstances. They are not going to be persuaded. I'd be happy to see the HPA passed but they took a knee on that too. I think there's an argument to be made for equipping law abiding US citizens with post-86 machine guns but, like I said, this government won't be persuaded.

CapnMac said:

From memory, there was a case challenging the "tax stamp" restriction on marijuana, and the Court of the time argued that Congress had the power to levy taxes , and had done so via legislation which was signed into law by a president. And that made it legit.

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But you do not have a constitutionally recognized right to smoke dope.

stillquietvoice said:

Apart from a few minor differences they are the same

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According to the ATF's recent definition of a framer and receiver final rule letter, the M16 was designed for the military and the AR15 was designed for civilian markets. According to the BATFE, the two firearms are distinctly different and I take them at their word that that is the case.

JohnKSa said:

That very important "minor" issue is that SCOTUS has not held that firearm registration is unconstitutional. The NFA doesn't prohibit possession, it only requires registration.

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OK then, let them just declare that the Hughes Amendment is unconstitutional, and reopen the registry. And declare that registration is a "ministerial" (routine) act, without long administrative delays.

JohnKSa said:

Why would the Hughes Amendment be unconstitutional? Hughes doesn't prevent registration or ownership of machineguns, it just limits the overall number in the registry to around 630,000--the number that were registered when the law went into effect.

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It's because of the way section 922(o) is structured:
It starts out as a flat prohibition, and then goes on to two carve-outs, one of which is a grandfather clause. The Court has to consider the general prohibition first. The grandfather clause doesn't act to "save" it, if it's constitutionally flawed in the first place.

"Assault weapon" bans are conceptually the same as machine gun bans. The same arguments apply to both. If the Court is going to rule that "assault weapon" bans are unconstitutional, for consistency it practically has to do the same for machine gun bans. As we discussed earlier, the test in Miller (which was not overruled by Heller) is not "common use in civil society" but rather "common use in the military." "Weapons of war" (as the antigunners are fond of calling them) are precisely what are protected by the 2nd Amendment.

Anyway, with the passage of time, the grandfather clause will apply only to antiques. (Already, all the transferable grandfathered guns will be classified as "curios and relics" by the year 2036 -- only 14 years away.) Not to mention the constant attrition in the number of eligible guns.

LiveLife said:

Justices will vote on May 19 and requires at least 4 votes

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36 years to the day of the passing of the “Firearms Owners Protection Act”, that closed the registry on transferable machineguns.

The problem with passing legislation about assault weapons is that lawmakers still haven't clearly or better said accurately, defined what an assault weapon is. I believe they'll get around to it shortly after they figure out what a woman and a man are.

JohnKSa said:

In this case, when you look at all of it there is no prohibition.

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In terms, it's a prohibition, and then an exception. How can you come to any other conclusion after reading the actual law that I quoted?

In 1934, the NFA was meant to be a de facto prohibition, since the tax roughly doubled the price of the gun (typically, a Thompson) which was unaffordable for most people anyway. The NFA was structured the way it was in order to pass constitutional muster. (They could not have gotten away with an outright prohibition.) The Hughes Amendment completely undermined this sham excuse. We now have an outright prohibition, which should be struck down.

Now, there's always been controversy about Hughes.
It was meant to be a "Poison Pill" and prevent enactment.
It was very deliberately amended to the process at quite literally "the last hour."
And there was a great deal of furor at the time that time to vote on amendments had expired when the vote was taken.

Of course, it's incredibly difficult to hold Congress to account for not following their own rules, especially 18 Congresses ago.

“A right delayed is a right denied.”