2A Court Challenge

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Which Amendment is most pertinent?

Sorry if this runs long, but I'm not sure how to say this quickly.

I just started law school, and one of my classes is an overview of the Bill of Rights. We've already covered 2A, which was unsatisfying, because of a view that the last important legal case before the Supreme Court was Miller v US, upon which basis the case in this thread is challenging. Regardless of my personal feelings about RKBA, the wording of the 2A is NOT unequivocably clear, unfortunately.

But the other major impediment seems to be the 14th A, which amends the Constitution, in part, to guarantee the rights of citizens in individual states to the protections guaranteed in the BOR:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

And this Amendment has been applied to every Amendment in the BOR, EXCEPT the 2A.
The 2A is pointedly excluded because (as I understand it) it's purpose was intend to protect the rights of States FROM the national government, and no one has, since the passage of 14A, challenged the Court to interpret 2A as specifically an INDIVIDUAL right, although the the 5th Circuit opinion in Emerson v US rules just such a thing.

So, for the purposes of establishing a concrete RKBA, is a challenge to Miller v US going to be enough? Doesn't there need to be a challenge to the non-application of 14A to 2A? Or has this been tried, and already failed?

Finally, can a challenge to the laws be based not on an Amendment per se, but upon the whole of the Constitution itself? In the Preamble, among the purposes for the creation of the Constitution is, "...insure domestic Tranquility, provide for the common defense, promote the general welfare..." If we take into account rulings that state that the police cannot be held liable for the non-protection of the citizenry (sorry, I can't cite the cases), and no other provisions for the general Welfare or domestic Tranquility are spelled out, then don't the rights to "life, liberty and the pursuit of happiness" then place the responsibility of those protections back onto the citizens themselves? Or are these covered by Amendments 9 and 10? Is there any part of the Constitution, or other legal documents of the US, that states a right to self-preservation, and, if so, can a legal challenge be made on that basis?


Any Constitutional Law experts who can clarify this for me, please do.
 
The_Antibubba, the issues you pointed out are exactly why a Second Amendment challenge for personal rights will never work.

First, let me say I am neither a lawyer nor a constitutional law expert. I’m just a person that has a tremendous amount of study on this subject.

Before we get into the Second Amendment, let clear up some other things first. The 14th Amendment is irrelevant in reference to the Bill of Rights. That is because the Bill of Rights is neither privilege nor immunity. In fact, neither is it law. As your law dictionary will tell you, a bill of rights is simply an enumeration of rights; an FYI to an authority reminding it of that over which it has no power.

Our rights simply exist. In U S v. CRUIKSHANK, The Supreme Court clearly explained the relationships between rights and the governments’ obligations:

First, the 14th Amendment doesn’t add anything to the protections we already have.

The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing [92 U.S. 542, 555] to the rights which one citizen has under the Constitution against another.
That previous clause being, of course, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.â€

Second, Our rights are to be protected by the States.
Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there.
Third, only when the State fails to protect our rights, will the federal government act.

The only obligation resting upon the United States is to see that the States do not deny the right.

U S v. CRUIKSHANK, 92 U.S. 542 (1875)
Before the creation of the 14th Amendment, the federal government had already defended the rights of individuals against infringement by the states. Clearly, this amendment was not needed to extend the protections of our rights against infringement by the state. So, forget about the 14th. It’s not relevant.

Now, lets talk about the Second. You are absolutely correct as to the reason for the Second’s existence. The country had just fought a war against a government gone bad, and the Anti-Federalist wanted guarantees that this would never happen again. The second amendment is all about defense of state, and nothing more. That is why all the challenges that claim a personal right fail.

However, what is lost upon most people is the fact that there exist another right, which I refer to as the right to possess firearms for personal defense. This right was so ubiquitous, that no one ever considered that it might need explicit protection, but it does exist. In fact, the Second Amendment cannot exist without this right as its base. That is because no group can possess greater rights than the individuals that comprise that group. If the group can possess arms for its defense, then each individual must be able to possess arms for personal defense.

This idea of building one right upon another exists in other places as well. The only reason we have the right to a free press is because we have freedom of expression. The right to express doesn’t mean much without a way to convey that expression. As such, the press is protected in order to protect expression. It is a tenet of law that a right that cannot be exercised is no right at all.

The Second Amendment protects a state’s ability. The right is considered satisfied as long as a state has the ability to defend itself. The creation of the National Guard has permanently satisfied this condition. As such, this has created the unfortunate situation where the state now thinks it can deprive citizens of firearms. When this happens, people claim that their Second Amendment right is being violated. This is the crux of the problem. The right being violated is not the Second Amendment, but a yet to be acknowledged right to possess firearms for personal protection. It is the establishment of this right that we should be working on.

BTW, the Miller decision is exactly right.
 
MUST READ THE TEXTUAL ANALYSIS

UNITED STATES OF AMERICA v. TIMOTHY JOE EMERSON
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, SAN ANGELO DIVISION
46 F. Supp. 2d 598
April 7, 1999, Decided


Opinion by SAM R. CUMMINGS

Defendant Timothy Joe Emerson ("Emerson") moves to dismiss the Indictment against him, claiming that the statute he is prosecuted under, 18 U.S.C. § 922(g)(8), is an unconstitutional exercise of congressional power under the Second Amendment to the United States Constitution. For the reasons stated below, the Court GRANTS Emerson's Motion to Dismiss.


Textual Analysis

A textual analysis of the Second Amendment supports an individual right to bear arms. A distinguishing characteristic of the Second Amendment is the inclusion of an opening clause or preamble, which sets out its purpose. No similar clause is found in any other amendment. While states' rights theorists seize upon this first clause to the exclusion of the second, both clauses should be read in pari materia, to give effect and harmonize both clauses, rather than construe them as being mutually exclusive.

The amendment reads "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Within the amendment are two distinct clauses, the first subordinate and the second independent. If the amendment consisted solely of its independent clause, "the right of the people to keep and bear Arms, shall not be infringed," then there would be no question whether the right is individual in nature.

Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized.

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/emerson.html



GO READ THE WHOLE TEXT AT THE LINK ABOVE.
 
...NEED the "RIGHT CASE" BEFORE THE SUPREME CT

I can't remember his name right now...but in Los Angeles, the NRA has an attorney who has been a vigorous champion of 2A rights.

When a couple of other cases were making their way up the chain for possible review by the Supreme Court, he made a strong and brilliant case for the fact that if a weak or bad case comes before the Supreme Court, the damage that could be done as a final pronouncement on our 2A rights could be devastating.

On the other hand, if a case is clearly "on point" -- not about technicalities or manufacture or inport -- but rather based on "personal rights" to own and carry, then that case may be the one we're looking for.

I'd suggest that perhaps a CCW controversy where one state doesn't recognize the CCW permit of another might be just such a case.

Very Respectfully,
CAPTAIN MIKE
 
I'd suggest that perhaps a CCW controversy where one state doesn't recognize the CCW permit of another might be just such a case.
There were several perfect cases here in New York, where simple possession of a gun is banned. Several generally law-abiding citizens defended their lives with unregistered handguns. These cases were perfect because they were as pure as it gets, but as far as I know the NRA never stepped up to the plate.
 
BTW, the Miller decision is exactly right.

In truth, it wasn't. No evidence should have been required as ALL firearms have certain "use to the Militia" whether they arer "of use" to a standing army or not is/was immaterial. Else why were the calamitous (sp? word?) Liberators dropped in to aid the French? But even were the reasonings of the Miller case valid - ALL of the Assault Weapons legislations would be easily overturned as those weapons "of use" to a standing army are defacto "of use" to any militia. In that the "organised" militia was expected to be familiar with the funtion and use of weapons "in common use at the time". This would include full auto and military specialty weapons - in effect wiping out the National Firearms Act altogether.


And your evaluation of the 2nd is a bit backwards. While the first clause hints at the protection of the state, the main clause is clearly a discription of a right of each individual - as are the rest of the BOR. But in the case of the second it is spelled oout that the defense of the State DEPENDS upon the ability of each individual to have the skills and tools required to defend themselves.
 
In truth, it wasn't.

And your evaluation of the 2nd is a bit backwards.
It was. It was, because my evaluation is not backwards. My evaluation is not based on the wording of the Second Amendment. It is based on the dabates the Framers had over the wording of the amendment. From those debates it's clear what it was that the amendment was meant to protect.

Like several other of our fundamental rights, the Second Amendment is part right and part obligation. The right to a trial by jury creates an obligation to serve on a jury. The right to have witnesses compelled to testify creates an obligation to testify when called upon. In the same way, the right to keep and bear arms creates an obligation to fight when called upon. That is why a draft is legal.

Early versions of the amendment contained language allowing a conscientious objector to have someone fight in his place. Of course, they soon realized how silly that was. Who in the state will NOT be obligated to fight? There is no one that a conscientious objector could get to fight in his place. The language was dropped.

Goverment passes laws to define and regulate jury duty. It does the same for subpoenas. In the same way, the judiciary recognizes the government's power to define and regulate the right to keep and bear arms.
 
Early versions of the amendment contained language allowing a conscientious objector to have someone fight in his place. Of course, they soon realized how silly that was. Who in the state will NOT be obligated to fight? There is no one that a conscientious objector could get to fight in his place. The language was dropped.

The language and option may have been left out of the amendment, but not the law. Perhaps it should have been, as the number of "alledged" COs continues to rise. Though most are not true COs - just sheep.

Goverment passes laws to define and regulate jury duty. It does the same for subpoenas. In the same way, the judiciary recognizes the government's power to define and regulate the right to keep and bear arms.
The "duty" of jurors is another area where "government" has attempted ot "over regulate". They would have todays jurors believe that "jury nullification" is illegal - when in fact it is the ROOT of the check and ballance of the judiciary. And IF there were ANY attempt at government's providing education and training in the keeping and use of arms, I might come close to agreeing with you. But since that governmental duty was abrogated long ago - the argument simply does not wash. The "Right to Keep and bear arms in defense of self and community" as all our recognised rights do, exists in and of itself, and did so before and independant of the Constitution. Government was "given" no such power to abridge any of them. Though the men and women who comprise the government DO continue to try. And all too often manage to succeed in the effort.
 
What most people seem to miss here is the undeniable fact that the constitution and the amendments are what came from heated debates and the compromises of many different views.
The basic right of ALL American citizens are Life, Liberty, and the pursuit of happiness... To keep and bear arms was honorable and fashionable.
A man wasn't much of a man if he couldn't defend himself.
To allow a Government, be it State or Federal, to deny any of these basic rights is to disrespect the lives of those who have died defending that document.

I'd rather be a criminal for keeping my arms than to be subject to the ensuing loss of all my inalienable rights...
History, my friends, read it and learn.
Jim
 
Hello,
(yes, this is a huge post. sorry about that. I just wrote random stuff in a text file over a couple days as I thought about this)

I've been thinking about the 1986 ban on registration of machine guns (86 ban) for a while. I planned to just lurk around this forum without registering until I could get more involved with RKBA, gun ownership, target shooting, etc., but I saw this thread and had to say something.

I want to post what I've thought about the 86 ban because, hopefully, something that I write might give you an idea that helps the court challenge. I'd hate to see this challenge lose and not have tried to help at all.

I'm just a (naive?) kid that wants to own a machine gun someday... (Something new, not a rusted out 40 year old pos at a 3500% markup.)
Take that into consideration when you read this, many of my ideas/thoughts are probably pretty stupid. All the experience I have is from reading about firearms law on sites like this.

Anyway, just adding ideas can't hurt, right? At least I'll get a quick education on this stuff if I'm really wrong.:D

0)
Before I get going, why has everyone been interpreting previous court cases? If the goal is to repeal the 86 ban, what's the homemade/interstate commerce garbage mean? Especially if the only claim being used is the constitutional one...

"The '86 ban is completely unconstitutional and we demand that it be removed, but we still think that it is important that the select fire AR we ask to make be completely home-made because that Stewart ruling says that the '86 ban only applies to interstate commerce machine guns..."
:confused:
Aren't previous cases supporting this are only a bonus, and not a win/lose thing?

How much does this constitutional law stuff matter if the law takes away from our freedom (we can't do this/that) while preventing no crime and not benefiting society? This is completely contrary to whatever principles most people will claim to have. If they say they want these restrictions even though they will not help anyone, they are practically admitting being power-hungry, wanting to enslave others, etc. I don't know, but it seems like a stupid thing to be caught saying, especially for these politicians. Great way for them to spook the sheep too.

I also think that if you spin the 2A to not uphold the individual right, then you're stating that we don't have a right to free speech/religion/etc. If "the people" really means "the government" in one case, why doesn't it apply in every case?

The constitution alone is the founding document.
Other debates/papers/opinions that the founding fathers had do not matter in this discussion because they have not been written into law like the constitution.
Isn't it "the text of the law" that matters, not the intent?

1)
Is this challenge aimed just at the 86 ban, or the whole NFA system ('34, '68, '86)?

I've always thought that going one piece at a time may work better.
Attacking the 86 ban first, then hitting the '68, then '34 (throw in other national/local legislation on the way)...

I think there's a pretty good chance that we could win a case against just the 86 ban, but I doubt we'd be able to repeal the whole NFA in a single case anytime soon.

Here's a question for those of you that know how courts work; could a case against the whole NFA system end with a partial victory? Something like some restrictions being removed while the main NFA system remains in place, or are court cases "all or nothing"?

In the rest of my post, I'll assume that the case is only against the 86 ban. I just think it's a more reasonable goal for a starting court case, something winnable that'll give us a good start in overturning some of these other firearms laws.
Just referring to "the 86 ban" is also a lot simpler than talking about all the laws at once.

2)
This stuff is in a "how do you think this would work?" format. It may provoke some extra thoughts and responses, and I won't be attacked as readily by people who didn't read the whole post. I'm not a lawyer!

This also has little to do with constitutional law and previous court challenges because no one seems to have brought this stuff up (I'm kinda worried about that...).

-Consider applying to make a antique styled full-auto too (BAR/Thompson/etc). It may be possible to put a "collector"/obsolete design/"more politically correct weapon" spin on the challenge... This would probably defeat your own militia arguments though, I'm not sure, it may be something to look into though.

-Would it help to charge that the 86 ban is unconstitutionally restricting machine gun ownership to the wealthy by artificially inflating prices and limiting ownership to a small pool of firearms? It is effective as a ban, though it is not explicitly written that way. Maybe bring up the idea of wealthy elites having rights that the commoners don't...
"This law restricts the ownership of a entire class of personal arms to wealthy elites, establishing segregated classes of American citizens under the law" (commoners + elites)

-What about bringing up that there has only been 1 real crime with a legal machine gun since 1934, committed by that police officer?
Perhaps emphasize that the 86 ban takes away the ability/right to own machine guns while having no affect on crime.
Was the 86 ban even intended to reduce crime? How could it be, with only 1 crime (1988, 2 years after the ban) since 1934?
A lot of useful arguments could come from the lack of machine gun crime after 1934...
("the NFA is proven to work fine, but the 86 ban is excessive...", etc.)

-Would it sound good to a judge to only challenge the 86 ban in this court case? You could say all kinds of stuff about how hard it is to actually get a machine gun. Emphasize the 3-6 month waiting period, fingerprinting, FBI background check, etc. This would be useful in showing that machine guns wouldn't really become available to everyone after the 86 ban is removed.
This would destroy the "anyone could walk into a hardware store and leave with a evil machine gun if this law is repealed" emotionalism.

-would it help to emphasize that criminals can easily obtain machine guns illegally? Show how easily a criminal can convert/steal/buy/make/etc?
Maybe some research into the source of the few illegal machine guns used in crimes would turn up some arguments. Something like "the North Hollywood bank robbers just walked across the Mexican border with their guns, look at how effective this law is".

-Can you draw the law enforcement community into this? If you can make a good (and realistic) argument that the 86 ban makes it harder for officers to own machine guns, you'll get a lot of sympathy from the judge. Look for sympathetic officers to join w/"class action" status or something...

-Would suggesting that trustworthy, law abiding citizens should be well armed "in these uncertain times" be a good idea?
Well armed, trained and trustworthy American citizens can only be assets to the community and law enforcement, deterrent against terrorists and such...

-Something to look into, is it easier for the average law abiding citizen to get a legal machine gun or join the police and make arrests? Nothing against police, look at pilots, military, doctors, bus drivers, power plant operators, etc. You might find something out of line somewhere. This might not be a good argument to use in court, it would probably depend on the judge's stance on these things...
"You get a more thorough background check if you try to buy a machine gun than you do if you try to join the police/fbi/cia."
"It's easier and faster to become a cop and gain the authority and power of a badge than it is to purchase a legal machine gun."

-Only a law abiding citizen would even attempt to use the legal system (removal of 86 ban) to make/own a machine gun. Maybe arguing that it only prevents law abiding citizens from owning machine guns (artificial price increases), while Joe criminal can easily make his own or import it with his drugs.

-Useless law that only takes away rights, while not preventing any crime.

3)
I've read somewhere that there are about 120,000 legal civilian machine guns in the US. If a "10-20 dollar donation for every machine gun you own" campaign got distributed fairly well, you might be able to raise a lot of money. (Of course, a couple owners are probably just greedy sob's, and will attempt to protect their investments by fighting against the court challenge).

A "10 dollars for every EBR you own" campaign might work out too...
I can't see why a EBR owner wouldn't want to shoot a full auto once in his/her lifetime, or get the select fire upgrade.
The select fire upgrade doesn't seem like a bad idea if the $200 tax, LEO permission, background checks and registration get repealed. (I still think small steps would work out better, hit the 86 first, then 68...). I bet a lot of shooters would apply for the select fire upgrade if it became legal, even with the tax and registration.

Would Dillon or any big reloading companies donate? Ammo manufacturers? Ammo distributors? I'm sure they'd all love to see more civilian machine guns, it would be great for their businesses.

4)
Would it be possible to get a large group of police to support the court case? I remember that a major police group somewhere, something like a "Fraternal Order of Police" opposed the ballistic fingerprinting schemes.
If you could get a large police organization or two to publicly announce support for the repeal of the 86 ban, it would be really tough for the anti's to win.

It would be even better if a pro-RKBA police organization would throw in and join the court case, some sort of "class action"(?) thing...
The help of a couple local officers/sheriffs could be a big help, either by talking to the judges or by joining the case.
Maybe you could find a couple high-ranking officers in the military to help too.

Personally, I don't know if it would be possible to get the help of large police groups like this, but I don't see any reason why you can't.
It would probably be a problem for any organization to donate money or legal support, but even having the leaders write letters to the judges and large newspapers would help a lot. We could buy stamps/paper/pens for them if they need it.

I imagine that a press release from a police organization could snowball pretty well. Just something like a couple letters and telephone calls of "We, the <police org name> support the effort to repeal the 86 ban..."

I'm sure that some people here at THR have pretty good political/police/military connections that could help.

Look around for police (and other) organizations that might help the case.

Still, I'm just a naive kid... Wouldn't happen, right?

-Don't arouse any anti-RKBA police groups though... Need to somehow make sure that a group would help out or remain neutral before you ask them to publicly support something...


5)
Can the anti's screw the court case somehow? Donating to the opposition lawyers when you're in court? How's that work?
Somehow cutting off anti interference before the case starts would be a good idea.

6)
Everyone here at THR should be trying to help out!
Heck, a "legally carried guns confiscated" post has gotten more attention, even when it was resolved in our favor. We need to get people's attention on "going offensive"...
Don't bash bamawrx for a "incorrect" interpretation of a court case. Offer suggestions, ideas and help if you're able. The worst that will happen is that he (and his lawyers) will reject the idea.

Even if you don't want a machine gun, repealing some laws would slow the advance of AWB-2 (the complete semi-auto ban), right?

7)
Would it be best to make this case a huge public issue, or run it in "stealth mode"?

It'll definitely educate a lot of the fence sitters if it's public.
"I thought machine-guns just became legal with this sunset. Why did these guys start this court challenge?"


------------------------

I'll admit, I got pretty excited when I saw this thread, the 86 ban and AWB currently bother me a lot. A court challenge like this also seems to be the most realistic way to remove gun control laws.
I'm aware that the challenge probably won't make any progress, but I really hope it does.

I'd guess that the best way to make progress would be to pull in a big police organization, even just by having them announce that they support/appreciate the movement to repeal the 86 ban.



Whatever happens, good luck with the challenge. I wish I could really contribute somehow. Unfortunately, I won't be able to for a while.:(
 
Before I get going, why has everyone been interpreting previous court cases?
Previous cases set precedence. If you ask a question that was asked before, you should get the same answer that was given before. That insures that everyone is treated equally.

How much does this constitutional law stuff matter if the law takes away from our freedom
The problem is that not everyone sees it as taking away our freedom. So you have to go to court to convince a judge that your freedom is being taken away.

I also think that if you spin the 2A to not uphold the individual right, then you're stating that we don't have a right to free speech/religion/etc.
Each right protects something different. The question of how the Second Amendment will be ultimately interpreted will not affect how other rights are interpreted.

Unfortunately I don’t see any of your ideas working to restore individual firearm rights.
 
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.

Greetings sir. I have read this board often however I registered here simply so I could reply to the thread. Plus I figured why not. Plenty of good topics here.

Anyway your idea is very similar to mine I came up with a couple months ago.

Let me know what you (or anyone else thinks).

1. File a form 1 to make a new machine gun. Person filing form 1 MUST reside in either TX, LA, or MS.

2. BATF will reject and send back the appropriate "screw you" notice.

3. File suit in 5th District Court challenging BATF's rejection based on the 5th Circuit of Appeals ruling that the 2nd amendment of the U.S. Constitution specifically applies to individual citizens. The reasoning for the challenge is that although the Feds are entitled to raise revenue in the form of taxes (ie: NFA), they can not turn around and ban one of those methods of revenue generation. Further reasoning is that the word "machinegun" is specifically defined in 26 USC 5645 as being a firearm. (actual link here: http://www4.law.cornell.edu/cgi-bin...e/26/5845.html#muscat_highlighter_first_match)

4. Based on current definitions of a "machinegun" being a firearm and the 5th's previous ruling in the U.S. v Silveria case (I believe that was the one) that the 2nd amendment applies to all citizens, thus any gun control law infringes upon the 2nd amendment, therefore making such a law unconstitutional.

This is different from your approach because Alabama is NOT in the 5th district. So if you use this method your filer MUST reside in either of the 3 states I mentioned previously.

I was informed that Kent Lomont (www.klomont.com) out of Idaho tried something in an effort to repeal the entire NFA, however I could already see from his case that it was doomed. You're not going to repeal the entire NFA in one fell swoop...not now anyway. We have to whittle away slowly at offending pieces of garbage laws. This example looks to get rid of the 1986 machine gun ban. If successful, we can concentrate on other things, like the 1968 GCA.

One step at a time folks. Thoughts?
 
3. File suit in 5th District Court challenging BATF's rejection based on the 5th Circuit of Appeals ruling that the 2nd amendment of the U.S. Constitution specifically applies to individual citizens.
The 5th Circuit?? The same court that said the 2nd is an individual right, then immediately ruled that the government could infringe it? To me that sounds like a guaranteed loss.
 
Please point out the specific case where this ruling was made.
It's the same ruling that you're referring to, US v. Emerson.

If floors me how willing everyone is to remain ignorant of the final ruling in that case. Emerson LOST! The court ruled that his right can be regulated by the government.
 
Thanks for that info Graystar.

I guess you're right, my ideas were centered more around the idea of a individual court challenge through other means than proving the second is a individual right...

Since nothing matters if they say that the 2nd is not a individual right, that's the only issue to focus on?
Just a personal opinion, but it seems like too much of a "all or nothing" approach to me, too risky, "eggs in one basket" stuff.



What do you think about this site?
http://www.guncite.com/gc2ndpur.html

Some quotes, no idea if they are correct.
http://www.freerepublic.com/forum/a37460c15384f.htm
http://sonsoffreedom.us/1st_amendment_rights.htm

I don't know, but there seems to be a lot of quotes from the founding fathers that support the idea of the 2nd ammendment protecting a individual right.

Does it matter much if they were concerned about states forming armies the day they wrote the 2nd Ammendment?
The founding fathers all support the individual RKBA in their writings and other discussions, the 2nd does say "the people" and a literal reading, using either modern or historic terms/definitions, will support the individual RKBA...

I'd still say that trying to get some police officers or organizations to join/support would help a lot. They may not have much to do with the individual/collective right issue, but they always seem to be regarded with more respect than the average citizen. Is this a reasonable idea?


Maybe THR'ers that know judges in the 11th circuit should try to drag them to the range in the coming months...
Not illegal, is it? I can't imagine a law saying that judges can not own firearms...


edit:
just thought of this after I logged out, adding it as edit instead of posting again...

What about bringing in the state constitutions? Most of them support the individual RKBA if I remember right.
Something like 40 of the 50 states have a "2nd Ammendment" of their own?
I'd need to go and look these up, I don't remember much about them.
 
Since nothing matters if they say that the 2nd is not a individual right, that's the only issue to focus on?
That is absolutely correct. And yes, it is an all-or-nothing issue, just as it’s been with every threat we've faced, in the unending battle to keep our rights.

What do you think about this site?
Not much. The problem is not that the Founding Fathers didn’t believe in a right to possess firearms by individuals. They did. The problem is that such right is not the actual right being protected by the Second Amendment. Just before the Revolutionary War broke out, King George III tried to empty the armories to deprive us of our ability to fight. It is because of this act that we have a Second Amendment. It guarantees our ability to fight as a people. In fact, most of the amendments are directly related to grievances against the King.

If you felt that some government action was preventing you from expressing yourself, would you claim that your right to a free press was being violated? Or would you claim your freedom of expression was being violated? The two rights are so closely related that they form a symbiotic relationship. However, there is no question that they are two distinct rights that protect different concepts. But if you claim your right to a free press was being violated, when in fact it was your right to free expression that was being violated, then you would lose in court. Your free expression might very well have been violated, and you might very well had won in court *if* you had presented the case with the proper right, but it is not the court’s job to fix your legal errors.

This is exactly the situation we have today. We have two rights...the right to keep and bear arms, and the right to possess firearms for personal protection. When the government violates our right to possess firearms for personal protection, people are claiming that our right to keep and bear arms is being violated. This is the same legal mistake as in the example above. So the court says that you are wrong...that your second amendment right hasn’t been violated, and the court is correct. The case simply presented the wrong right.

This is why I say that we need to work on establishing the existence of a separate right to possess firearms for personal protection, which is completely independent of the Second Amendment. I believe that there is enough legal precedence to establish one. However it seems like everyone would rather hopelessly cling to the Second Amendment. That’s why we keep losing in court.
 
From the ruling...
It may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need, and the right to compel it.
The court didn’t say it the same way that I said it...but the concept is the same. The court can only address what was raised in the complaint. If the Second Amendment wasn’t raised as an issue then they don’t discuss it. However, it is clear that they followed the concept I described.
 
9 A

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Just because it isn't explicitly spelled out in the Constitution doesn't mean you do not have certain rights.

We can debate forever whether 2A refers to States rights v Individual, or Militia v RKBA. But do I have a right to life? Do I have a right to protect my life? These are Rights so fundamental that the Constitution doesn't address them. The founders used the word "militia" because they understood that the men coming in already possessed their own weapons. Ownership was fundamental, and nearly universal. Nobody mentioned individual use of weapons and ownership because it was taken for granted.

Everyone agrees that Murder is wrong, right? But is it wrong because the State has erected laws and penalties against it, or because it is inherently wrong?

Is the right to protect myself and my family a Fundamental right, even if it is not spelled out in an Amendment? Most people would say "Yes". What is happening in Britain now is because no such fundamental right exists; self-defense in England, even against deadly force, is being punished. So it is here, in some places, because there is no Federal recognition of the right to protect oneself.

This narrow challenge of the NFA might succeed, but that does not mean it will greatly advance the RKBA. I propose that a serious challenge be studied on Ninth Amendment grounds. Since legal precedent has established that the Police are not responsible for an individual's safety, and no other body or institution has been given that power, then there is clearly a void in my ability to protect my life.

Thoughts?
 
Ownership was fundamental, and nearly universal. Nobody mentioned individual use of weapons and ownership because it was taken for granted.
YES YES YES! That’s exactly it!

I propose that a serious challenge be studied on Ninth Amendment grounds.
I can’t believe it! Someone else that finally sees the problem and solution clearly! I’m not alone anymore!

That’s what I’ve been saying here for a while. We have lost that which was once taken for granted. We must reestablish the existence of this right. I believe there is a good case to be made that this right does indeed exist, and that restrictions on this right have not been serving a compelling state interest. But everyone here wants to be part of the militia and cling on to the Second Amendment like the captain of a sinking ship. I just don’t understand it.
 
The right to bear arms is mentioned in various places in the historical record as being distinct from militia duties.

The republican party platform of 1856 mentioned it sort of in an off hand way, I was surprised to learn. One of their chief complaints was that this right, among many others had been denied to the people of the territory of Kansas("Bloody Kansas" and all that). Didn't mention the militia - actually the territory wasn't even a state at the time, and the militia hadn't been disarmed in any case. Kind of puts paid to the "state's rights" claim.

It was mentioned in the congressional debates over the 14th amendment. It was also mentioned in a debate over a law disarming former confederate soldiers(can't remember the name at the moment). Someone told me it was mentioned in debates over the passage of the Freedman's Bureau but I don't know how true that is.

But I think these days people see guns as sort of an interest more than anything else or at most they see them as tools for personal self defense.
 
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