Kentak, TexasRifleman
The most realistically favorable ruling in this case won't get you 1/10,000 of a step closer to that. Accept reality. That's not going to happen. Ever.
That is simply never going to happen.
What CAN happen however, and in our lifetime, is a repeal of the Hughes Amendment portion of FOPA.
THAT is possible.
I would agree that in a political sense a repeal of the '34 NFA is unlikely.
However, let's look at this thing. Assume for the moment that
Heller results in a 2nd Amendment win - meaning that the Court says that the 2nd protects an individual right to own firearms (without being more general than saying handguns are for sure protected). Now someone files a case for the BATFE's failure to issue an NFA tax stamp.
My argument against the '86 FOPA limitation would be that it is virtually identical in effect to the DC handgun ban; since MGs haven't EVER been banned under federal law, and since they are firearms, then they must also be protected against any effective federal ban. I think that this case is a winner.
The challenge to the '34 NFA is a bit more difficult. The other side will claim that it is only "reasonable regulation." I would counter with:
1. If it is a fundamental right, then name some other fundamental right that is even close to as burdened with regulation as ownership of a full auto? That simply cannot be done.
2. I'd specifically go after the reasonableness of the regulation: Simply put, if a person can be trusted with a revolver, semi-auto, pump or lever action gun, then there's no logical or legal reason that they cannot be trusted with a full auto. Similarly, if they couldn't be trusted with those other guns (i.e. children, ex-violent felons, mental incompetents and drug addicts), neither could they be trusted with a full auto. Since virtually everyone accepts (albeit with provisos) the NICS system of verifying the identity and suitability of a prospective firearms owner as being a "reasonable regulation," then why couldn't the exact same system be used to check on prospective full auto owners?
3. Where's the compelling interest in regulating full autos vs. semi-autos? The record since 1934 is that legal full auto owners are far, far more law-abiding than not only the average citizens who can and do own semi-autos by the tens of millions, but also far more law-abiding than even the police. Ironically, the only known case of a legal full-auto owner committing a crime with a full-auto in the 73 years of the NFA's existence is that of an off-duty police officer (wouldn't THAT be a fun thing to bring up in the Oral Argument). Since there was nothing like the NICS system (or any registration or background checking system) back in 1934, it could be easily stated that the reason for the NFA was to institute some kind of NICS-like system of background checks. The purpose was, manifestly, to stop gangsters like Al Capone, Pretty Boy Floyd and Bonnie & Clyde from getting full autos legally - not average citizens. SOOOOO, since we have a NICS system, and since all other gun owners are already checked out with it prior to every purchase (except WRT carry permit holders in some states, and they have their own background checks to go through), WHAT IS THE COMPELLING INTEREST of the fed.gov in maintaining the NFA registry and permitting system? If you have a fundamental right that cannot be infringed without a compelling state interest, then the government must prove its compelling interest and further prove that it is protecting that interest in the manner calculated to least infringe upon the fundamental right in question.
That, IMHO, is how the '34 NFA can be killed. Not legislatively, which will never happen, but in the courts. Of course, it'd help if Stephens and either Ginsburg, Souter or Breyer were ex-Justices, and replaced by people like Roberts & Alito, who know how to read not only the Constitution but also history books.