Post-McDonald: Will the NRA take on the NFA?

Status
Not open for further replies.

essayons21

Member
Joined
Aug 4, 2008
Messages
1,232
Location
Down by the rivah, VA
I've been reading through quite a bit of 2A caselaw recently, and it seems as though it is time that somebody challenge the NFA. The combination of my interpretations of US v Miller and DC v Heller leads me to believe that portions of the NFA are an unconstitutional ban on the individual RKBA.

First, Miller was a farce. The dude was dead, his lawyers never showed up, and the government attorneys lied, or at best omitted facts. The case found that the 2A only protected "ordinary military equipment" that could "contribute to the common defense," i.e. weaponry useful to the militia. The govt alleged that short barreled shotguns were not military weapons, when it was common knowledge that SBS's were procured and used as trench guns by the US Military in WWI.

Combine this with Heller's affirmation of an individual right and hopefully incorportation under McDonald, I don't see how an outright ban on modern select-fire weapons exactly of the type being used today as "ordinary military equipment" could be held constitutional. It would be up to the court to determine if the restrictions on SBRs and SBSs are "reasonable."

I realize that Heller and McDonald are far more important to far more people right now, and I applaud the priorities of Alan Gura and the NRA. If the 2A is incorporated do you think the NRA will shift its attention to the NFA? I am afraid that they will be afraid because of public opinion ("NRA wants to give everyone machine guns"). Unfortunately they seem to be the only organization with the $$ and legal team to put forth 2A cases consistently to the SCOTUS.

What do you think?
 
I doubt it. The only part of the public that would really support such a thing are the people who are really, really into guns. All the anti-gun people would automatically be against it. The gun-neutral and even a large percentage of pro-gun people would simply "not see the need." Before you call such folks traitors to the cause, remember that back before the registry was closed, demand for such weapons was tiny...and that was when prices were comparatively low.
If you pay too much attention to what you read on boards like this one, it starts to seem like everybody would like to have a full auto and there would be this huge groundswell of support. It actually isn't there. The folks who really like guns are the only ones you hear at boards like this one.
Too much expenditure of political capital for a goal that is important to only a minority of gun owners. NRA won't do it.
 
I have a hard time foreseeing the NRA "taking on" anything.

I would hope that the CATO institute and/or SAF's next line of attack would be Carry issues (may issue vs shall issue, open and concealed carry both being illegeal).
 
Hopefully, there will be eventually a credible challange to the ban on the registration of new machine guns. It is obviously unconstitional. I expect there are quite a few other laws to be attacked first. If/when it happens, I hope the NRA is on the forefront.

The entire registration scheme of the NFA? Probably not likely to be challenged. Fortunately, inflation has made the $200 tax relatively affordable to most people...
 
I don't think the entire NFA would be easy to "take on."

What is likely to happen is a series of individual challenges to individual infringements. At some point, the court will have to decide where that line is.

Is a long wait and a $200 tax for an AR with a 14.5" barrel an infringement, when a 16" barrel is readily available? Does the availability of a 16" carbine mean that NFA is not infringing on RKBA because the 16" is a suitable substitute, or does the ready availability of a 16" carbine demonstrate that the NFA is an arbitrary infringement, and a tax, on a fundamental right?

Those are the sorts of challenges that could be mounted in the future. At some point, the Court will have to make the call: what IS an infringement? Note that the cases brought to it thus far have studiously avoided forcing SCOTUS to answer that question.
 
Last edited:
I understand that the NFA or GCA is not going to be overruled. By "take on" I mean to challenge the most egregious parts. To me that is the outright ban on most modern FA guns, and the de facto ban on FA ownership caused by artificially induced price inflation.

The premise of Miller was that his SBS was not a military fireaarm, therefore not protected by the 2A. It seems pretty straightforward to argue that FAs are military firearms, and are protected by the 2A. What is left is to figure out the line between "reasonable restrictions" and "shall not be infringed." I would think that at the very least some of the financial burden would be eased as it really does nothing to protect public safety under a standard of strict scrutiny.
 
Realistically, here is the problem: Now is not the time to challenge the NFA - nor is that time in the forseeable future. Because of this, none of the capable organizations are likely to pursue that angle just yet (especially when there are SO many better ones out there).

However, because I suspect that there will still be a large number of gun owners who do not find the "Not right now/higher priority targets" answer to their liking, I expect to see NFA challenges from less-capable, poorly-resourced organizations. Less capable, poorly resourced organizations tackling a task that the bigger organizations don't think is feasible yet usually equals bad precedent - which will just make it that much harder for the next organization, which in turn leads to another premature case - rinse, wash, repeat.

At some point an organization is going to have to get out in front of that cycle and tackle some NFA issues before a lot of bad precedent is established; however, I don't really see the NRA as being that organization. The culture and decision-making process there is just too risk averse. Not to mention that taking on the NFA is not a very appetizing prospect for the NRA - unless they win a sweeping victory in an area where noone thinks a sweeping victory is possible, any shortcomings in the decision (or worse, an outright loss) will just be used to paint the NRA as anti-NFA, compromising, etc.
 
There has to be a significant number of people who actively want a change or, failing that, a few well-funded people who want it. I just don't think there is a widespread sentiment for relaxing full-auto restrictions, despite how it seems on gun boards. A lot of your full-auto collectors, though, have serious coin. If they threw their money behind a challenge, you might see some action. Wheher or not they'd be successful is another question.
 
Bartholomew Roberts is right.

Remember: while you may lament being unable to buy a reasonably-priced select-fire AR, there are plenty of states where you can't buy a standard semiautomatic AR, or you can be committing a felony if you replace your muzzle brake with an A2 flash suppressor. There are also places where you cannot buy a magazine that holds more than ten rounds, despite over-15-round magazines being supplied with common modern pistols.

There is a lot of lower-hanging fruit, when it comes to challenging infringements of a fundamental right.
 
Currently, there aren't five votes on the Supreme Court for machine guns. A challenge right now would be pointless. Maybe in the future . . .
 
Less capable, poorly resourced organizations tackling a task that the bigger organizations don't think is feasible yet usually equals bad precedent - which will just make it that much harder for the next organization, which in turn leads to another premature case - rinse, wash, repeat.

I recall this was the attitude initially taken by the NRA in Parker/Heller. They do great work, but sometimes their legal planning team makes mistakes.

The NRA is laying down great precedent to expand gun rights in this country. However, I believe that most of the remaining issues that affect most of the gun owners in this country need to be resolved at the State level. Recent years have seen a rise of great state pro-2A groups like VCDL and PAFOA, that have gotten far more legislation passed that actually effects the daily lives of gun owners. The role of the National Rifle Association should be to tackle national issues. They are doing a great job, and hopefully once the 2A is incorporated most meaningful work that remains will be in the State Legislatures and Courts.

What remains? Federal anti-2A laws such as the NFA and GCA.

I also don't see why this isn't the right time. SCOTUS is as pro-2A and libertarian as we will most likely see in the forseeable future, gun-ownership is on the rise, CCW is on the rise, the public's attitude toward the 2A as an individual right is better than ever, and we just came off the tail-end of a scary black-rifle buying craze.

If not now, then when?
 
I would say, in regards to the NFA, specifically the de-facto ban on full auto ownership, a supreme court case is not the way to go.

The ban on full autos was snuck into a PRO-GUN congressional law.

It can be snuck back out in future legislation if the senators and congressmen are sympathetic to the RKBA.
 
ArmedBear,

Remember, the Heller opinion specifically mentioned reasonable restrictions at the state level as being ok. What they took exception to was outright bans. It would be futile to try to expand upon such a recent precedent at the Federal level.

Like it or not, that's how Federalism works. If the majority of a state wants a silly firearms law, as long as its not an outright or de facto ban, its kosher. If you live in that state, you can either become active in changing the law, or you can move.

If we get a favorable opinion in Parker, I don't really see what other serious 2A challenges remain that at the national level other than the NFA , GCA, and import ban.
 
I wish this would happen, but the NRA has to tow a fine line. If they fight too hard for gun rights then the perceived threat is not as great, and they lose donations. If they keep the threat level just about right they bring in the highest amount of money, while occasionally fighting off a gun law or two. Just as the NRA did not want the Supreme Court to hear the Heller case, they have used the same tactics as long as I can remember.
 
essayons21 said:
I recall this was the attitude initially taken by the NRA in Parker/Heller. They do great work, but sometimes their legal planning team makes mistakes....
Remember that the NRA's initial reluctance in Parker was driven by concerns over the composition of the Court at that time. We were playing for all the marbles, and a decision not clearly finding the 2nd Amendment to be an individual right would have been a disaster for us.

When the composition of the Court improved from our perspective, the NRA signed on.
 
Remember, the Heller opinion specifically mentioned reasonable restrictions at the state level as being ok.

I read it. Did you?

To the extent that the opinion mentioned anything all that specific, it could be read to say, "The NFA, as it exists, is constitutional." What it did not say was what restrictions would constitute "infringement" short of an outright ban.

Like it or not, that's how Federalism works.

In whose imaginary world?

Can your state restrict speech however it wants, as long as it doesn't completely ban speech? What about religion?

Why not? Because that's not how Federalism works. The Confederacy lost the war, the Reconstruction happened a century and a half ago, and the 14th Amendment is part of the Constitution.
 
Last edited:
I cannot understand the clamor for charging into NFA until various other RKBA issues are addressed first so there's an "equal plane" nationwide. Let's get handguns and AW issues sorted out on a national basis first - why worry about full-autos when folks in CA can't have pistol grips on their rifles and people in NYC have difficulty even getting a handgun? That way we 'float all boats' nationally first.

Fighting for full NFA removal is proably un-bright method of attack. Folks in or close to the fight understand politics and how 'machine guns' scare not only the antis but even the Zumbos (and Justice Kennedy).

And taking down 922(r) 'sporting purposes' clause - esp the way it harms the replacement parts market etc - can be a priority, especially if it affects repair of Heller-protected guns.

Various parts of the NFA are attackable in due time. It may also make sense, perhaps,to attack various state-level copies of NFA restrictions and have them be preempted by Fed law first, then attack the Fed laws later.

SBR isses are likely attackable first once incorporation is settled, 2nd Am. is law of the land, etc. SBR restrictions are probably the least offensive and can be seen as arbitrary and capricious on firerarms that are not "dangerous and unusual" (note the word 'and' which was not used casually!)

If a pistol version of a rifle is legal, why the hell does it matter 16" vs 14.5" vs 11" barrel length?

SBS issues are similar to SBR, but the pejorative "sawed off shotgun" context has politically ugly overtones. Nevertheless 16" min bbl length for rifles but 18" for shotguns sounds awfully capricious, doesn't it? It's also interesting on the handwaving btwn 12Ga AOW vs SBS issue - that's awfully artificial.

MG stuff should be the last to be attacked. Just killing the May 1986 cutoff would be a big step.



Bill Wiese
San Jose CA
 
To the extent that the opinion mentioned anything all that specific, it could be read to say, "The NFA, as it exists, is constitutional." What it did not say was what restrictions would constitute "infringement" short of an outright ban.

Not sure I follow your logic. Scalia specifically mentioned several restrictions... concealed carry, mentally ill, felons. It also mentioned Miller, with a proper interpretation. No mention of the NFA, except as it related to Miller.

Anyone that could read Heller to say that the NFA is constitutional... well calling that a broad interpretation would be generous.
 
See Held:2.

Note that I wrote "to the extent...it could be read...". Obviously, that would be generous. That's my point. But a prohibition on firearms ownership by the mentally ill, for example, has nothing to do with state restrictions on firearms ownership generally.

Now, about what "Federalism" means since the ratification of the 14th Amendment, perhaps you can offer a shred of legal support for your apparent position?

You can't win a battle if you don't understand what you're fighting against, and what weapons you have at your disposal.
 
Last edited:
No mention of the NFA, except as it related to Miller.

Anyone that could read Heller to say that the NFA is constitutional... well calling that a broad interpretation would be generous.

Here's the portion of Heller that dealt with the NFA and machineguns:
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.
Note that Scalia says it would be "startling" to suggest that the NFA's restriction on machineguns is unconstitutional.
 
(All right I did not read all the posts before spouting off but…)

The passage from Heller quoted by Phatty in post #22 above tells us what the current 5 Justice Group who joined in on Heller is likely to rule on the NFA and machine guns in particular. They view militia arms as being different from military arms. Firearms in common use today that can/are used for traditional legal purposes are what people bring with them when reporting for militia duty, and these types of arms are protected by the second amendment. The militia is not armed the same way as the military. Artillery is an extremely useful military arm but is not suitable for any lawful civilian use (except noise making on the 4th of July) so it is not an arm protected by the 2cd. Likewise machine guns are extremely useful in the military but not for traditionally legal civilian uses (despite what some here may say about self defense from biker gangs, meth smoking illegal aliens, zombies, etc.)

I’m not saying I agree with the above, just that I’m guessing this is the way the Supremes are going to build on Miller and Heller in the future. Also just because an arm is not protected by the 2cd does not mean law have to be passed banning them, only that Congress and the State could pass such laws.
 
The gun-neutral and even a large percentage of pro-gun people would simply "not see the need." Before you call such folks traitors to the cause, remember that back before the registry was closed, demand for such weapons was tiny...and that was when prices were comparatively low.


And there would be the inevitable opposition from collectors/investors who have a sizable chunk of money tied up in their 'hobby'.

Even though overturning either the NFA (at least the full-auto part), or the 86 ban would enable them to expand their collection even more, it would come at a huge financial loss.
 
I recall this was the attitude initially taken by the NRA in Parker/Heller.

First of all, the legal time behind Parker/Heller is anything but small time. Gura, Levy and Neilly are all extremely capable lawyers in an extremely competitive field. Levy already had a PhD in business and had a tremendously successful career in the even more competitive field of financial information. He was successful enough there that he was independently wealthy and capable of financing Parker/Heller out of his own pocket. On top of that, as Chairman of the CATO Institute, he had significant access to policy advice and punditry. I don't recall the exact number Alan Gura asked D.C. for in attorney's fees (it is here in the archives somehwere); but I seem to recall it was in the millions.

However, there are two important things to take away here:
1. These guys are an aberration when it comes to non-organization Second Amendment litigants.

There are not a lot of litigants out there who have the deep pockets to go from pre-trial planning prior to District Court all the way to the Supreme Court without relying on outside funding. Even putting aside the funding issue (or the more complex issue of finding a single funding source so you don't get "strategy by committee"), there aren't a lot of legal teams that are as good as the one in Parker/Heller.

2. Even these guys show zero interest in attacking the NFA right now - and they are the maverick, risk-taking group.

However, this shows exactly what I was saying about other people bringing challenges. There are a lot of people out there who might see themselves as the next Gura/Heller; but few of them have put the time or thought into this that the Heller team did.

However, I believe that most of the remaining issues that affect most of the gun owners in this country need to be resolved at the State level.

I agree that State organizations are the bedrock of the RKBA movement. If you have a lot of strong State organizations, you are going to have a really strong National organization. The key place to stop anti-rights people is early on before they get enmeshed in the system.

I also don't see why this isn't the right time. SCOTUS is as pro-2A and libertarian as we will most likely see in the forseeable future, gun-ownership is on the rise, CCW is on the rise, the public's attitude toward the 2A as an individual right is better than ever, and we just came off the tail-end of a scary black-rifle buying craze.

If not now, then when?

When someone can make a plausible case that there are five votes on SCOTUS that will support whatever NFA reform you want to make - because right now, machineguns are a dead issue at SCOTUS. That will be a losing case, just in case the 5-4 vote on whether or not the Second even protects an individual right didn't make that real clear.

In pushing an unpopular view, even a legally correct one, you need to the guide the courts through each step of the reasoning process, starting in the areas where you have the most agreement and working backwards. We have only taken the first step in that process and are still waiting to see the results of the second.

Like it or not, that's how Federalism works. If the majority of a state wants a silly firearms law, as long as its not an outright or de facto ban, its kosher.

That is not Federalism. Federalism is not a license for states to infringe upon the basic, fundamental rights of their citizens.
 
Status
Not open for further replies.
Back
Top