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A whack at knocking 922(o)

Discussion in 'Legal' started by ctdonath, Jan 5, 2006.

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  1. ctdonath

    ctdonath Member

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    Here's an in-progress attempt at summarizing a suit against 922(o) (the post-'86 machinegun ban)
    Blanks are "I know it exists, just don't have detail handy".
    # references may not line up perfectly due to partial auto-numbering.
    Very much a work in progress.

    Thoughts?
     
  2. fiveoboy01

    fiveoboy01 Member

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    I like it!

    I'd think some of those points could be "interpreted" by a whacko activist judge, who wishes them to mean what HE/SHE wants them to mean....
     
  3. beerslurpy

    beerslurpy member

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    While we're at it, getting rid of the CLEO signoff and the 6 month ATF/FBI background search would be great.

    Using the same criteria for the class 3 approval process as for shall-issue CCW permits would be ideal. If they dont find anything in their computer search, where else are they going to find evidence that I'm not fit to own class 3 weapons? Its not like they can put me under surveilance without suspicion of wrongdoing, so the search is pretty much limited to public records they already have in their immediate posession.

    It sucks that republicans are generally so weak on the gun issue. Theyre often just a less openly hostile version of the democrats.
     
  4. Crosshair

    Crosshair Member

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    Keep us updated on what happens and if donations are needed. This has good potential.:cool:
     
  5. Hkmp5sd

    Hkmp5sd Member

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    Very good!

    It does seem ironic when an American citizen must sue the government in an effort to force the government to accept payment of a tax.
     
  6. TarpleyG

    TarpleyG Member

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    Make sure you check for typos and grammar. I caught a couple of errors in just the first sentences.

    Greg
     
  7. beerslurpy

    beerslurpy member

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    Wont we simply be denied standing because we havent broken the law in question?

    The court has already erected many sturdy defenses against striking down unconstitutional laws. Rememeber that this is the same court that beleives that the phrase "interstate commerce" refers to things and persons participating in activity that is neither commercial nor interstate.
     
  8. Smurfslayer

    Smurfslayer Member

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    not sure

    Have you attempted to initiate a transfer and been denied? if not, the court will dismiss. You will need to have been denied adminstratively first. The restoration of rights ruling held that so long as you had an avenue of administrative relief, the courts would not intervene. Even if that avenue of relief was only written words, and not actually done in reality - as the mythical ATF restoration of rights.

    Have you consulted a prominent 2A practicing atty.?

    20 to me looks insufficient. It should read something like whereas it is reasonable to conclude that 922(o) must be subject to the restrictions imposed on Congress by the 2nd Amendment.

    I also think that the firearm to be transferred presents a problem since there are substantially similar firearms available in transferrable status. I believe it is still feasible to have an M16 lower w/ M4 upper, and thus the court would hold there is no disability. If you were attempting to purchase a new, not previously available arm; like a SCAR, P90, etc. you could circumvent this. Remember, the court doesn't care how much it costs...if it's 'available' as transferrable, there is no disability.

    Really, the best way to "carrot / stick" this would be to try and secure agreements from distributors to cease sales to law enforcement agencies of machine guns, but continue to sell SBR's and suppressors. Only allowing the .gov to have "transferrables". Or, simply refusing to transfer any MG's to them until the law is changed. It should go on concurrently with your efforts.
     
  9. ctdonath

    ctdonath Member

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    Undoubtedly. Please note such points so I can address them.
     
  10. ctdonath

    ctdonath Member

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    The 1934 Group made a serious attempt at that and bombed.

    That's outside the scope of this. A core point of the approach here is to initially assume that the laws as written are, in fact, legitimate ... they must fit together into a viable framework. Failing that, identify exactly what, narrowly speaking, is the invalid obstacle ... providing a chain of "if you won't overturn narrow point X, then you must overturn broader point Y."

    That NFA arms may be taxed and registered has already been addressed. The core problem is establishing (1) standing of the plaintiff both personally and in equipment sought, (2) prohibition harms the individual and, by extention, the state, and (3) prohibition terminates the taxation justification and thus NFA cannot stand, at least for post-'86 MGs.
     
  11. ctdonath

    ctdonath Member

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    Will do.

    This is, at this point, just the consolidation and expression of an idea that's been brewing for a decade, pulling together all the legal arguments against 922(o) into a single to-the-point plea.

    FWIW:
    - I am not a lawyer, just have been reading a lot of relevant laws for a while.
    - Pursuing this would require finding a C3 dealer willing to go thru all the motions.
    - I don't know of any lawyers willing to seriously pursue this.
    - For now I don't have the grand or so needed to order a new M4 or other suitable arm.
    - I definitely don't have the cash for a lawyer on this.

    That said, the goal of this approach is to have a low-cost no-lawyer cookbook means for someone to order an M4, file the paperwork, get BATFE denial, and walk into court with a pre-written plea with little more cost than filing fees ... multiplied by enough people doing it to generate numerous conflicting simultanious rulings and thus force higher courts to take the issue, and attract enough attention (i.e., money) to push it thru to final success (or definitive exhaustion of options).
     
  12. ctdonath

    ctdonath Member

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    Of course. Get content & semantics right first, then check for lesser issues. This has a long way to go before I worry seriously about typos.
     
  13. ctdonath

    ctdonath Member

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    Good reminder of what I meant to include: a bunch of points explaining that in order to establish standing in terms of breaking a law (current status quo requirement as you note) would unavoidably require breaking laws which are NOT being challenged in this case. In this narrow case (different in other contexts), I have no quibble with paying a $200 tax or submitting to CLEO signoff or expecting the seller to obey the paperwork requirements etc. - all things which evading would constitute serious crimes.

    In fact, the core contention of this plea is that the law DOES allow a citizen to lawfully obtain a post-'86 MG (922(o)(2)(A) allowing it under gov't approval), but that the problem is that the gov't (aka BATFE) refuses to do its obligated part in accepting the obligated tax payment.

    My standing fundamentally is: I am, by order of Congress, a militia member; I have, by 2nd Amendment and precident of the Founding Fathers (per Militia Act of 1792), a right & obligation to arm myself suitably; the common military arm of the day is the M4; keeping and bearing arms presumes ability to buy new ones at reasonable prices. Here's my $200 and paperwork - now approve it so I can get "well regulated" in every sense of the phrase.
     
  14. rabidgoldfish

    rabidgoldfish Member

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  15. ctdonath

    ctdonath Member

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    I would take that step when I have the plan & paperwork sufficiently worked out, as doing so would be vital to finding a Class III dealer willing to actually stick his neck out to accept payment for an M4, file the paperwork that WILL be denied, and put up with what could be substantial annoyance from the whole process. Likewise for finding a CLEO to sign off the deal. Yes, administrative paths must be exhausted first.

    No. Having been unable to locate & attract the attention of one in what would have been a major slam-dunk FOPA violation case (have entire confrontation on tape with cop saying "I am the law" hindering transportation where I had EVERYTHING right), and presuming I can't attract enough attention until enough of the case plan is worked out, I am currently operating on the "if you want it done right, do it yourself" approach.

    Hopefully a good RKBA atty will pick this up and run with it. For now I'll just finish working out the above document, run it up the flagpole and see if anyone salutes.

    Good. I'll add that.

    Point understood, and taken as just the way things are. Will add something to the effect that "applicable laws and precident and intent do not indicate any favorable view of the notion that the security of a nation of 300,000,000 souls should in any way rely on a couple thousand quarter-century-old relics". While I would love to take on the case with something uniquely modern like the P90, I'd rather go with what is inarguably the most common/standard military arm of the day, and argue that "make and buy new" is an axiomatic presupposition to "keep and bear".

    THAT would get their attention - unfortunately it's way out of my scope.

    I'm just one common guy who has been unwillingly (insofar as no option was given) been made part of the militia by Congress, which then turned around and said I can't have what a militia member obviously needs and has a legal right to. All I can do is follow the path that Congress laid down, and insist the BATFE has the power & duty to approve following that path.

    Someone with connections needs to talk with Gaston Glock, Ronnie Barrett, et al about the "approve transfers or you don't get anything" approach.
     
  16. MarshallDodge

    MarshallDodge Member

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    I am willing to offer support, both financially and otherwise.

    I was just talking to PvtPyle about this the other day. Our thoughts were to get President Bush to offer an amnesty period as he leaves office.
    The day after the election on November 14th, 2008 he would turn on the faucet and leave it running for the next guy to worry about.
    During that time the manufacturers could build and register quite a few receivers as well as registering anything that is post '86.
     
  17. rabidgoldfish

    rabidgoldfish Member

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    Additionally the following is from Farmer v. Higgins (1990)
    :banghead:


    http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/farmer_v_higgins.txt

    case with similar results
    http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/us_v_warner.txt
     
  18. ctdonath

    ctdonath Member

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    Good reminder.

    That case, IIRC, relieved the defendant from being convicted on NFA grounds: if the BATFE refused to accept the tax on the transfer (regardless of legality of transfer (yes, the gov't may require a tax on illegal activity)), then they could not be convicted of not paying the tax. That ends the argument that requiring standing via criminal charges is inapplicable due to having to unavoidably break other laws (to wit NFA) to get at 922(o).

    The problem then becomes: either NFA applies, or 922(o) applies - not both. Since BATFE refuses to accept the tax on post-'86 MGs, then NFA evaporates ... but leaves the 922(o) prohibition behind.

    I don't want to get in the position of having to outright violate any law to achieve standing. Kinda chills the whole "law-abiding citizen" notion, eh?

    Thus I must add points detaling the early NFA challenges wherein a court noted that NFA could stand only because it was a tax, not a prohibition - and since 922(o) is a prohibition, those early arguments apply and 922(o) must be ruled invalid. Now I have to go hunt down that case...
     
  19. ctdonath

    ctdonath Member

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    Good reference, albeit disturbing. Two tactics against that:

    1. The plain intent of law is in fact relevant - hence even more weight to the 2nd Amendment: "shall not be infringed" is pretty friggin' clear, especially when it comes to common weapons of the modern militia. That, plus the clear intent of the definition of the "[unorganized] militia", plus the fact that sometimes Congress does in fact contradict itself and the Constitution trumps.

    2. That is a lower court (not SCOTUS) ruling IIRC, so it does not apply to other jurisdictions. Hence the importance of multiple (preferably in the triple or more digits) simultanious filings across the country: some rule one way, others rule different, equal protection must be maintained, higher courts MUST take it and resolve the issue.
     
  20. Krenn

    Krenn Member

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    wouldn't it be simpler to submit the supreme court decision that weapons in common use by the military may not be restricted from the militia, along with a TOE from an army unit? (United States v. Miller)

    then ask for expedited relief against the NFA in its entirety?

    is this a personal project, or a group project of some sort? A group project has potential..... but they'd have to agree on the suit in question, and probably pony up enough money to get a few hours of consultation on the final document.

    is there a website for this?
     
  21. ctdonath

    ctdonath Member

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    That may be the best way to start the grievance, but I want to subsequently cover all wiggle room. SCOTUS is very good at wiggling.

    What's a TOE? how do I get one?

    An early ruling regarding NFA (shortly after it was enacted, post-Miller) concluded that as a tax the NFA law is valid - but noted that it is not viable as a prohibition. As noted in the RIA case, NFA law does not apply to 922(o)-prohibited weapons (at least in the jurisdiction for that ruling). Ergo, NFA is largely irrelevant to my desire for an M4 at this point, but will be addressed to remove the wiggle room (to wit, I'll gladly pay the $200 tax (in this case) if the BATFE will accept it).

    Personal. I've been following NFA law issues for a while. It has been academic while I lived in NY, but now that I'm in GA the path to owning an M4 has only 1 block for me now: 922(o).

    I'm posting a thread on it now that the grievance is coming together, and to see what support I can drum up. Much has been discussed about 922(o), but I've seen little done along these lines.

    Ultimately it would have to be a group project, as the core of my plan is numerous simultanious filings and force unavoidable higher review by creating an "equal protection" conflict. Too often I've seen huge effort/money put into one case, only to fail on some stupidity and stand as precident for years after. Too many cases rely on one big push up the chain; I'm thinking lots of little pushes cannot be resisted - as such the grievance must be thorough, clear, simple, and inexpensive to file.

    Not now, but if it gathers steam I'll post it at my website.
     
  22. Krenn

    Krenn Member

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    table of organization and equipment. give me a minute and I'll see if i can google one... pretty much any army or national guard unit's would do, prefferrably infantry speciality....

    not CERTAIN where to find one, but if google fails, I'm sure that the THR vets can tell us where to file the Freedom if Information Request.
     
  23. ctdonath

    ctdonath Member

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    Good. I know I need one - as official as can be - to establish beyond any doubt that an M4 satisfies Miller. I want to differentiate between the M16 and M4 to minimize any response of "you can still get an M16, so what if it's >20 years old and costs $15,000"; the M4 is recognized by the US military as a firearm discernably different from the M16, and is not available to non-active-personel (save, at most, a miniscule number so small as to actually help bring the "but you can get an old expensive one" argument's stupidity into sharp relief).
     
  24. Krenn

    Krenn Member

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    http://www.fas.org/man/dod-101/army/unit/toe/

    not certain how official that is for purposes of court citation, and reading the individual tables makes my head explode...

    I'd reccomend filing either seperate suits for each issue, or a single suit clearly differentating between each issue,
     
  25. Krenn

    Krenn Member

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    http://www.army.mil/fact_files_site/in_crew.html

    this looks easier to understand.... the trick appears to be going into the google advanded options and limiting your search to .mil domains.

    I'll be in and out, don't expect sudden assistance.
     
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