2A Court Challenge

[bamawrx]

Gentlemen,

I am doing some homework in preparation for a federal law suit. The purpose of the suit is to challenge the Constitutionality of various gun laws. I need the help of an SOT and pro-2a lawyer. It is preferable that these individuals live in Alabama, but this is not a requirement.

It is my hope that a THR member may fit the above profile, and be willing to explore my case. This will stir the hornets nest, so be prepared for a fight. If the case moves forward, I will be posting updates on this and other sites, plus start a legal defense fund.

I am not currently in trouble, and have broken no laws. This case is being carefully designed to be offensive in nature, and to proactively seek to have our God given rights recognized by our government peaceably.

Regards
Bamawrx

 

[Jim March]

Details?

Mind you, fighting on offense in civil court versus defense in criminal court is a GOOD thing, of the top five or so keys to victory.

But what else are you doing here? Which law are you going to challenge, on what basis?

 

[Graystar]

Details?

Yes, give details. We're not lawyers but we might be able to alert you of some obvious showstoppers without you having to spend money to learn them.

 

[bamawrx]

The Plan

Here is the basic framework of the plan:

File proper paperwork with ATFE requesting authorization to manufacture a selective fire rifle. More specifically, I would propose the conversion of an AR-15 to selective fire. The request will be denied based on existing law such as the 1986 ban.

I have checked with legal counsel, and I can use this denial as a basis for a federal law suit. My only claim will be a constitutional one, as the request is indeed an unlawful one. The limited nature of the claim reduces the possibility of success.

I am persuaded that in order for my plan to have the best chance of success the following will be required:

First. In US vs. Miller the Supreme Court denied the unconstitutionality of the 1934 gun control act based on the dubious distinction that a short barreled shotgun had no use in the militia. Never mind the short barreled shotgun predates the rifled bore in combat. The Court will not be able to make the same claim about an AR-15 for obvious reasons.

Second. The proposed manufacture is a “home made†project which is important due to the US vs. Stewart case in which the 9th ruled that Congress exceeded its power under the interstate commerce clause in regulating home made firearms. I feel this ruling has merit and should stand.

Third. It is important that we get a decent case not based on a felony trial involving an unsavory character. The individual(s) bringing the suit should be model citizens, clean in appearance, clear on history, and able to put forth a positive image to the press. Not to mention the fact that it would help if the person was a male over the age of 16 and fit for service in a militia.

Fourth. I live in a district that will nearly guarantee that my federal judge will hear the case fully with out negative biases. I have also checked this out with a former federal judicial aid and he assured me of such.

My plan is to put together a legal team and pay out of my own pocket to get this started. I am willing to do what is necessary, and I feel that you gentlemen will rally if the case is promising. I want to do this only once and get it right. Now that you have my basic framework, I would appreciate thoughtful insight into my proposal.

For those who are interested the legal process it could look something like this. First make application and get denied. File law suit in federal court making a constitutional challenge to the applicable codes. Win or loose legal battle in lower court. Appeal (either party) to appellate court and most likely have oral arguments if we won. An appellate court would want to hear oral arguments if the lower court ruled code unconstitutional. Win or loose case at appellate level, and appeal to US Supreme Court. The SC most likely won’t hear the case. The SC is overdue to tackle these issues, so I give us a better than normal chance. If I am successful in my district, but don’t get to the SC then the lawsuit would be simple to file in all of the federal district by you guys.

 

[DMF]

The proposed manufacture is a “home made†project which is important due to the US vs. Stewart case in which the 9th ruled that Congress exceeded its power under the interstate commerce clause in regulating home made firearms. I feel this ruling has merit and should stand.

I am not an extremely familiar with that ruling, but I don't think the 9th Circuit ruling allowed for conversion of previously existing firearms, but only the manufacture of complete manufacture of a new firearm. So I think that may be a major flaw with your plan.

Someone please correct me if I misunderstood this ruling, because I haven't taken a great deal of time on it.

 

[DMF]

Sorry to pee in your cornflakes, but I looked it up and it appears US v. Stewart could not be used to support the idea of converting an already existing firearm. http://caselaw.lp.findlaw.com/data2/circs/9th/0210318p.pdf

In discussing the Commerce Clause challenge to the conviction:
"Stewart’s case reveals the limits of Rambo’s logic. Contrary
to Rambo’s assumption that an unlawful transfer must
precede unlawful possession, Stewart did not acquire his
machineguns from someone else: He fabricated them himself.
The government has never contested Stewart’s claim that the
machineguns were entirely homemade, and the evidence supports
his claim. . . .

. . . Some components of Stewart’s machineguns had
crossed state lines, but these components did not add up to a
gun. Not even close."

However, you are talking about converting an already existing firearm, which has most likely already crossed state lines, and therefore would fall under the commerce clause.

Granted there is much more to this case, but I think it's likely that the conversion of an already existing functioning AR-15 is substantially different than what Stewart did.

Again, I'm not a lawyer, but I'd hate to see waste a lot of money on a project that is very likely to fail.

 

[Jim March]

No, actually, this is pretty good stuff here. I've seen WAY worse in terms of legal theories and proposed steps.

If it flops, you don't get jailed . Nice bonus.

I think the Stewart case will be citable precedent. Not *binding* - wrong circuit, and ain't quite the same situation although it's close enough that it'll be read.

Right. Next question is to find a local lawyer. I'm in California, I know a bunch out here but none with the resources to fight a case out there.

Suggestion: unless somebody around here has some pointers, what you need to do is hook up with your state's RKBA orgs, or if you're near a state border the neigboring state org, and see if they know anybody local.

A warning though: most "gun rights lawyers" come out of the field of criminal defense. You need somebody well-versed in constitutional law; best source is somebody that does employment discrimination stuff on the side or as a main thing.

What else...I assume you've read the State vs. Aymette case that Miller cites to? Tennessee Supreme Court 1840 - defines "militia weapon". READ THAT CASE TOP TO BOTTOM if you haven't already.

Keep us informed as to progress.

 

[Graystar]

Unfortunately, there seems to be logical and legal problems with your proposal.

First, unless there exist some other system I am unaware of, the only “authorization†you can apply for is a license to “engage in the business of…manufacturing...firearmsâ€

http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/44/sections/section_923.html

So your first problem is that by applying for a license you have implied commerce. It’s kinda hard to follow that up with the “homemade/personal use†argument. The second problem is that the law in question is simply a prohibition to engage in business. To find that it violates our rights you’d have to explain how we have a right to engage in the business of producing firearms, and how such right should not be subject to regulation. Such a task is not legally viable.

Subsection o of sec 922 is the section of law that you are really targeting. That is the law that relates to Stewart. That section is a simple prohibition to possess a machine gun. But here there are also problems. The Stewart ruling has nothing to do with rights. Invalidating the statute, and thus eliminating the Fed’s ability to prevent you from making a machinegun, doesn’t eliminate the state’s ability to do the same. There’s also the issue that others have mentioned, in that you are proposing to convert an existing weapon. That falls outside of the Stewart ruling.

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=922
(gotta scroll down to find subsection o)

Finally, your view on Miller is incorrect. The Court’s procedure clearly indicates a view that the law defines the weapons of the militia. The excerpts from various militia acts, that are a part of the Miller ruling, describe the weapon that a militiaman should bear. These acts all called for long guns...not short guns. *That* is why there was no evidence of short guns being weapons of the militia. So it does not matter if an AR-15 has a long barrel...all that matters is whether the state law says you can have one for militia purposes. And it doesn’t matter what regular troops use. It has long been held that militiamen are not regular troops.

That basically leaves you in the same position as others, such as Silveira, where you’re trying to assert an unaccepted interpretation of a right. In order to assert a 2nd Amendment right, you first have to change the justice system’s current view of the 2nd. I see nothing in your plan that works on that part. To simply say, “I have a right†when the system has held that you don’t, gets you nothing but a booting right out of court.

Personally, I have doubts about this course of action.

 

[Matthew Courtney]

I believe it was US v Emerson where SCOTUS held that once a firearm is in the possession of its end user, it is no longer subject to regulation under the commerce besause it no longer is in interstate commerce.

 

[Graystar]

The US v. Emerson case of a few years ago never made it to the Supreme Court. Is there some other Emerson case?

 

[Matthew Courtney]

My mistake, I was refering to US v Lopez. Sorry about that.

 

[whistlepig]

The excerpts from various militia acts, that are a part of the Miller ruling, describe the weapon that a militiaman should bear. These acts all called for long guns...not short guns

Except that Miller summarizes:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

In 1939, the court would certainly have been aware of the evolution of arms since the colonial period. The ruling also references a 1649 MA militia law:

According to the usage of the times, the infantry of Massachusetts consisted of pikemen and musketeers. The law, as enacted in 1649 and thereafter, provided that each of the former should be armed with a pike, corselet, head-piece, sword, and knapsack.

It seems clear the the court recognized the possibility for a broad scope in militia weapons. It's just that defense didn't present evidence for inclusion of a short-barreled shotgun.

The "common use at the time" phrase seems to open the door for a defense based on evidence that a particular weapon is suitable for militia use. Use of a military-pattern then seems, on it's face, to fit the definition.

The Court’s procedure clearly indicates a view that the law defines the weapons of the militia.

I hadn't heard it put that way before. This brings the further question of how many, if any, states currently define what constitutes a militia weapon. In particular, bamawrx's home state.

 

[DMF]

As has already been pointed out Emerson never went up to the Supreme Court. Again, I think your interpretation of Lopez is incorrect. Again not a case I am intimately familiar with but it conflicts with other established precedent. Based on that interpretation as soon as child porn, cocaine, etc. were with the end user then the commerce clause would no longer apply and therefore federal law prohibiting trafficking in those materials would not apply. That is wholly incorrect based on two centuries of case law.

 

[Jim March]

The Miller court relied on an 1840 TN case (Aymette) to define the term "militia weapon". That definition is, boiled down, "weapons capable of being used in civilized warfare".

The AR15, M16 and M4 all qualify. Ditto M14, FAL, AKs, etc. It doesn't say WE need to be the ones so using them. Any gun used by a civilized nation's military qualifies. And yes, there's a number of at least halfway respectable nations still using the AK...heck, Israel's Galil is an AK variant...

I'm more concerned about the issue of BATFE not giving "personal use conversion permits". I know very little about full-auto rules under the NFA as practiced now...somebody go PM John Ross on this thread, he'll know.

 

[Treylis]

If it flops, you don't get jailed . Nice bonus.

Yeah, I realized that immediately too. Indeed, not bad.

 

[Matthew Courtney]

As has already been pointed out Emerson never went up to the Supreme Court. Again, I think your interpretation of Lopez is incorrect. Again not a case I am intimately familiar with but it conflicts with other established precedent. Based on that interpretation as soon as child porn, cocaine, etc. were with the end user then the commerce clause would no longer apply and therefore federal law prohibiting trafficking in those materials would not apply. That is wholly incorrect based on two centuries of case law.

Lopez struck down The Federal Firearms Free School Zones Act, reasoning that a firearm in the hands of the end user is no longer in or affecting interstate commerce and thus, no longer subject to regulation by Congress under the commerce clause.

Your comparison to materials that have illegally traveled in interstate commerce is not on point because neither the firearm in Lopez or the hypothetical AR-15 to be modified ever illegally traveled in interstate commerce.

 

[boofus]

If the piece are you trying to register is just a bolt or a sear then that part will be counted by the ATF as the 'firearm'. Those small pieces can conceivably be completely homemade.

The rest of the gun can't be counted towards 'interstate commerce' because they don't add up to a working weapon without the sear or bolt. You may have to 'marry' the sear/bolt to a particular receiver.

Components don't count, or it'd sorta be like saying building a house in Texas is interstate commerce because the lumber came from Canada, the trucker that shipped the lumber drank a coke from Pittsburg, and the tires on the rig that hauled the wood to Home Depot came from Oregon, the screws and nails came from New York, etc...

 

[cordex]

Components don't count, or it'd sorta be like saying building a house in Texas is interstate commerce because the lumber came from Canada, the trucker that shipped the lumber drank a coke from Pittsburg, and the tires on the rig that hauled the wood to Home Depot came from Oregon, the screws and nails came from New York, etc...

Which is, unfortunately, how the ICC has been used.

I'm pretty sure the ATF allows for the manufacture or modification of a weapon by the end user. I'm not sure whether they actually send rejection letters based on the 1986 FOPA amendment or just ignore you.

The chances of this working seem rather slim to me, but I like the idea quite a bit.

 

[7.62FullMetalJacket]

Keep us informed. This will take years. But nobody does time............


unless we lose

 

[Daedalus]

I am subscribing to this thread. Keep us posted and I hope you go through with this and hope you make the "moon shot" of firearms cases. I will happily contribute what money I can spare to the legal defense fund if this gets off the ground.

 

[Kharn]

You might want to explore the possibility of starting with a 0% AR15 forging (available from www.dsarms.com for $24+shipping, it will need some time in a machine shop, but its basic highschool level stuff). That should get you around interstate commerce, as the part the ATF defines as 'the firearm' wasnt a firearm when it traveled in interstate commerce.

Kharn

 

[Graystar]

The Miller court relied on an 1840 TN case (Aymette) to define the term "militia weapon". That definition is, boiled down, "weapons capable of being used in civilized warfare".

They did no such thing. There is no such term defined or referenced in neither the Miller ruling nor the Aymette ruling. The Supreme Court used the cite in support of their plainly-state conclusion; that a weapon must have "...some reasonable relationship to the preservation or efficiency of a well regulated militia..." if its keeping and bearing is to be protected by the 2nd Amendment. Nowhere does the court explicitly define how this “reasonable relationship†is established. All we can do is infer how this “reasonable relationship†is to be established by reviewing the Court’s procedure. This procedure is clearly demonstrated by the fact that the Court felt it necessary to included excerpts, from various militia acts, describing the weapon that the militiaman was expected to bear. Since the Court didn’t use any other reference, one can infer that the Court’s view was that law defines the weapon, and nothing else.

Of course, this can all change with the next ruling that is made.

 

[bamawrx]

Gentlemen,

It looks to me we have a very good start in formulating “The Planâ€. I checked with a SOT and he assured me that the ATF would reject and send back my request and not ignore me. That was a major concern of mine.

I have formulated this proposal based on the requirement that this process not require any law breaking.

The interstate commerce claim is a bonus one if we were to be successful. Ultimately the complete restoration of rights is our goal. I still think we have a good case under US vs. Stewart. I reread it and it seems that one should be able to manufacture a drop in auto sear or something of the sort. Or at least modify or completely create a new selective fire receiver. Kharn suggested starting from a forging in the original filings, which is a good idea.

Jim March hit the nail on the head. We need a great constitutional lawyer. Basically, the constitutional claim is our only claim. We will win or loose on that point alone.

The question of what forms need to be file is a very good one. We need the input of an SOT to clarify this point. I believe it will be a Form 1 or a “Stewart†Form 1. Anybody personally know an SOT in Alabama that would help?

Please ask around and make contacts with knowledgeable people in your circles and post the results.

 

[Graystar]

It looks to me we have a very good start in formulating “The Planâ€.

I don’t think you have a very good start at all. I’m not sure what you are planning. Are you thinking of writing a letter that simply asks for permission to make the parts? A rejection from the ATF to such a letter won’t help establish anything. The fact that a government agency simply informed you that what you intend is illegal, doesn’t constitute actual harm or controversy. That’s like me walking up to a cop in New York City and asking if I can have a gun, and then raising an action simply because he said “noâ€. That doesn’t mean a thing.

However, there is some precedent for challenging prohibitive statues when criminal penalties will be imposed if a person acts. Such statues have been found to be proper subjects of actions seeking declaratory and injunctive relief. Just bring an action in federal court seeking a declaratory and injunctive ruling against the laws you feel violate your freedoms.

But no matter what you do, don’t expect a court to accept your interpretation without being able to back it up with a solid argument. Without a fresh new argument as to how these laws are violating your rights, you will be wasting your time.

 

[bamawrx]

Greystar,

True, but the first step of the plan involves forming justiciability. It is important to show standing, rightness, controversy, etc even though there are no administrative options by which I can seek relief. You may find the step unnecessary, but I think the ultimate success of such a case can only be helped by accomplishing these things first.