9th Circuit: US v. Stewart (MG ban unconstitutional?)

[boofus]

Some people have. One person on www.sturmgewehr.com got his application rejected because he wasn't in the 9th Circuit.

 

[Wildalaska]

I tried to get a new stock of Form 1s.....I was told that they are being "revised"...

WildinterestinghuhAlaska

 

[gunsmith]

So CA it is still illegal?

We can not go make a class three in the garage?....right?

 

[Brett Bellmore]

Sure you can. If you observe the 11th commandment, and don't get caught. But short of the Supreme court finally deciding to fully uphold the 2nd amendment, AND incorporate it, not legally.

Never confuse "can" and "may".

 

[Kharn]

Brett Bellmore:

Never confuse "can" and "may".

So true...

Wildalaska (and anyone else that might know):
Suppose they're just removing the checkbox to apply to make an MG, thus making it impossible to attempt to pay the tax (as there would be no valid form to make MGs). What legal recourse would we have?

Kharn

 

[Hkmp5sd]

Nope.

We can not go make a class three in the garage?....right?

Stewart was charged with violating the federal law regarding machinegun manufacturing and possession. The 9th Circuit decided that the federal interstate commerce laws did not apply to Stewart's homemade machinegun.

However, it is still a violation of California law to manufacture unregistered homemade machineguns, as it is in most other states.

 

[Brett Bellmore]

Suppose they're just removing the checkbox to apply to make an MG, thus making it impossible to attempt to pay the tax (as there would be no valid form to make MGs). What legal recourse would we have?

Essentially, as I understand it, you'd have to manufacture a machinegun, get caught, get prosecuted, and then you'd be able to raise as a defense during your trial the fact that they wouldn't let you pay the tax. And there IS some precident to the effect that you can't be convicted for not paying a tax if they won't let you pay it.

You'd have to do it in a state which didn't have a state law against manufacturing a machine gun, as otherwise you'd be prosecuted under state law, which the commerce clause ruling doesn't apply to, be rendered a felon, and couldn't own ANY guns.

So the real question is whether there are any states in the 9th circuit which don't have laws against manufacturing/posessing a machinegun. And you'd probably want it to be a state which didn't under state law require machineguns to be registered with the feds, because they might be able to nail you on a state charge of non-registering even if you could prove the feds wouldn't let you register it, since you DID have the option of not manufacturing it in the first place.

My hunch is that they issued this ruling knowing in advance that there was no way for anyone to take advantage of it. It was just a way of tweaking the Supreme court's nose about the REAL implications of it's commerce clause reasoning in the Lopez decision.

 

[Wildalaska]

Alaska!!!

WildletsseewhatshakoesoutAlaska

 

[Foreign Devil]

Do you really need to get caught and challenge your prosecution to take advantage of the ruling? I would think you could get a federal court to issue an injunction ordering them to issue you the tax stamp.

Has anyone bothered writing/calling/asking the ATF to find out?

 

[flatrock]

I'll probably get flamed for this, but I've got some mixed feelings about this one.

I'm happy to see a ruling that goes against the federal goverment continuously widening their reach into things they constitutionally have no right to make laws governing.

On the other hand I am a bit nervous about MG becomming legal for anyone to manufacture and own.

A criminal can do a lot of damage with a machine gun. While I'm not sure laws banning MG ownership by private citizens are constitutional, I'm hesitent to think that some restrictions on their ownership aren't a good idea.

Maybe I've just listened to too many liberal rants and need to think this through more...

 

[Kharn]

Flatrock:
The NFA of 1934 still applies, what is being ruled against is the outright ban of new production of civilian machine guns. MGs will still require a tax stamp and background check, just we'll be able to get ones like it was before 1986.

Kharn

 

[S_O_Laban]

Flatrock: simply put, anyone wanting to convert a gun to select fire can do it easily enough. IOW laws regulating the use and ownership of machineguns are kind of like the Emperors new clothes, of no real value. Anybody that needs a machine gun to commit a crime already has access in spite of all the regulation.

edited for calarity

 

[artherd]

flatrock- I fail to see how a full-auto .223 M-16 is somehow more 'dangerous' than say a 30 round semi-auto .338 WinMag (browning BAR) both with 30 round mags.

They are not death-rays like you see in movies. Infact, FA fire is inaccurate, so you don't hit very much at all. Semi-auto aimed-fire is FAR more effective (and indeed how most armed forces train.)

MGs aren't appriciably more lethal than semis, certinly not inherantly so, and furthermore, all eighteen billion gun and MG laws we had didn't keep the North Hollywood bank robbers from using ('illegal') MGs in their illegal murder/robbery.


This decision is very intresting. To me, it seems to remove both the 'ban on new production' and the 1934 NFA as well, since both were based on the premise of inter-state commerace, and since a home-build MG by virtue of being a firearm at all, is by nature inelligible for commerace of ANY KIND.