Any lawsuits over 1986 machine gun ban?

[Firethorn]

With Alito's confirmation, I was just thinking about the 1986 closing of ATF's machinegun registration list.

Keeping in mind the 9th circuit's decision that it's none of the fed's business when a citizen decides to make one purely intrastate, are there any cases currently working their way through the court system to challange the closing itself? Or the whole system itself?

I'd consider opening one myself, but I'm afraid that I lack the resources, and am not an ideal candidate, being active duty air force. I would consider supporting one, though.

Searching through google I currently get a bunch of brady type sites.

 

[beerslurpy]

Patience, grasshopper. One more justice.

 

[Firethorn]

Oh, and every time I hear the 'If you want to shoot machine guns join the military' I'll point out that I've been active duty for over six years and haven't shot a machine gun in automatic mode yet. Having an extra function to check doesn't count.

If it was possible, as in paying less than 2k for it, I'd purchase my own M16, along with an M4 style upper. I'll probably do that anyways, but I want to have skill with all functions of my weapon.

As a support troop, though, I'm just not likely to get it from the military.

 

[beerslurpy]

The NRA operates a legal defense fund that routinely supports litigation when there are important legal principles at stake. I imagine they would immediately try to force something up to the supreme court level if they thought it would be heard. Most cases are killed at the circuit court of appeals level and then denied certiorari. Or in Stewart's case, the case gets reversed and remanded on non-2nd amendment grounds.

One more justice will give us 5-6 solid votes for RKBA and that will be the time to start hearing cases.

 

[ElTacoGrande]

One more justice will give us 5-6 solid votes for RKBA and that will be the time to start hearing cases.

To be honest, I have nothing good to say about our current Leader, excep this SCOTUS picks. I hope he gets one or even two more picks in his next few years, and I hope he picks JANICE BROWN for SCOTUS!

 

[Firethorn]

Good point about the legal defense fund. I'm looking at it right now.

I already donate to the NRA-ILA.

 

[Crosshair]

One possible way to beat the 1986 MG ban is if the US military adopts a new weapon of some sort.(P90, SCAR, etc) Since we can't get any legal ones we have a claim that we don't have access to weapons that the militart has. Attempts to do this with the M-16 have failed since you CAN get an M-16, though it is $15000 for one. One can hope that this method or other will work.

/Remember, they had to march for 7 days before the walls of Jericho came down.

 

[Firethorn]

One possible way to beat the 1986 MG ban is if the US military adopts a new weapon of some sort.(P90, SCAR, etc) Since we can't get any legal ones we have a claim that we don't have access to weapons that the militart has. Attempts to do this with the M-16 have failed since you CAN get an M-16, though it is $15000 for one. One can hope that this method or other will work.

/Remember, they had to march for 7 days before the walls of Jericho came down.

Well, if it's any help one of our magazines had a listing of weapons in the Air Force arsenal for 2005, and it had the P90 in there. Seems it's being used for security in some buildings/locations.

Makes me wonder if there's a big ring somewhere in a mountain up in Colorado...

 

[MGshaggy]

The NFA has been challenged on various grounds, but its stood up over time. I think Raich/Stewart and the commerce clause angle was a dead issue from the start and I doubt another new justice is going to make any more of a difference. Raich was a 6-3 decision with Thomas, Renquist, and O'Connor dissenting. Renquist & O'Connor have been replaced by Roberts & Alito, so even assuming both Roberts and Alito would both vote the same way Renquist & O'Connor did, that still leaves you with a 6-3. Adding one more Justice would only get you to a 5-4, and I still have serious doubts that Roberts would see this issue the same as Renquist and not Scalia (who voted with the majority in Raich). From Rybar we see Alito probably would vote the same way, at least until 3 minutes after the opinion was released when Congress would hastily pass the NFA again, albeit with a jurisdictional element.

 

[Firethorn]

MGshaggy,
I'd consider the nullification of the whole NFA to be an extremely unlikely bonus. Right now I'd be satisfied if the courts simply forced the NFA to reopen the registry.

But yeah, I'll agree that the two judges that were replaced were already some of our better supporters. The likely votes haven't changed at all.

The only way one of the liberal ones would step down now would be if they were forced due to illness or injury resulting in disability.

 

[ArmedBear]

To be honest, I have nothing good to say about our current Leader, excep this SCOTUS picks. I hope he gets one or even two more picks in his next few years, and I hope he picks JANICE BROWN for SCOTUS!

Note that the SCOTUS is probably the most important body in DC. Laws are mostly crap, and lawmakers are just the buttholes spewing the crap. The President is just a guy with good hair.

Personally, I'll take a good SCOTUS over anything else in DC.

 

[ctdonath]

Congress would hastily pass the NFA again

The NFA would not go away.

922(o) is what prohibits new machineguns outright.
NFA, as affects machineguns, is still on the books yet inapplicable because you can't be charged with not registering something which the feds refuse to register (as a not-quite-SCOTUS court ruled recently). NFA isn't dead, it's resting.
The instant 922(o) is overturned and post-'86 machineguns allowed, NFA snaps back into place.

NFA is still legal because, as SCOTUS noted long ago, it's not a prohibition, it's a tax.

What Congress might do is promptly raise the $200 transfer tax to match its relatively crushing weight in 1934. $200, absent 922(o), is on the order of a 25% tax on the proper price of, say, a new fair-priced M16. Accounting for inflation, Congress could easily slip a tiny line into a massive budget bill and turn the $200 transfer tax into $20,000 - more on par with the original intent of NFA.

If we overthrow 922(o), then we would soon be faced with revisiting NFA itself with a higher transfer tax - a much harder issue to overcome, as SCOTUS has already ruled NFA valid, albeit harsh.

The moment 922(o) falls, there will be a run on machineguns - not only because of the pent-up demand plus "because I can" purchases, but also in anticipation of President Hillary pushing hard & fast for a hundredfold increase in the transfer tax. Demand will be HUGE.

 

[mp510]

One possible way to beat the 1986 MG ban is if the US military adopts a new weapon of some sort.(P90, SCAR, etc) Since we can't get any legal ones we have a claim that we don't have access to weapons that the militart has. Attempts to do this with the M-16 have failed since you CAN get an M-16, though it is $15000 for one. One can hope that this method or other will work.

/Remember, they had to march for 7 days before the walls of Jericho came down.

Now, to the best of my knowledge, the military has something like 30,000 nuclearweapons Now, I don't believe that those should or ever will be on trhe civilian market.

 

[silliman89]

i think it's more like 5,000 nuclear weapons.

 

[Firethorn]

922(o) is what prohibits new machineguns outright.
NFA, as affects machineguns, is still on the books yet inapplicable because you can't be charged with not registering something which the feds refuse to register (as a not-quite-SCOTUS court ruled recently). NFA isn't dead, it's resting.

So if I can't be charged with possessing a machine gun without paying the tax, because the feds won't accept my tax, does that mean it's legal?

So where can I go purchase one?

What Congress might do is promptly raise the $200 transfer tax to match its relatively crushing weight in 1934. $200, absent 922(o), is on the order of a 25% tax on the proper price of, say, a new fair-priced M16. Accounting for inflation, Congress could easily slip a tiny line into a massive budget bill and turn the $200 transfer tax into $20,000 - more on par with the original intent of NFA.

I'll be very, very fast, I promise. Plus, I don't think they have the votes right now, and I'm sure the NRA will come down on any attempts to raise the tax.

The moment 922(o) falls, there will be a run on machineguns - not only because of the pent-up demand plus "because I can" purchases, but also in anticipation of President Hillary pushing hard & fast for a hundredfold increase in the transfer tax. Demand will be HUGE.

I'm not so sure on this. If anything, in return for the increase in tax, we should be able to cram a number of pro-gun legislation 'poison pills' into it. Such as universal recognition of CCW permits, removal of mufflers from the process, etc...

 

[FeebMaster]

I'm sure the NRA will come down on any attempts to raise the tax.

Sure they will. After all, they fought against it so hard the last time.

 

[Dmack_901]

A $20,000 dollar tax on a <$1000 rifle is clearly a prohibition, and would be quickly found unconsitutional so I wouldn't worry about that. I am worried of the implications if the SCOTUS upheld the 20k tax, as that would be a clear dicision allowing the prohibition of firearms. That would be a heck of a straw on our back.

 

[mp510]

They are still are able to make short barrel shotguns, short barrel rifles, silencers, and other non-machine gun NFA items. The tax on those is still $200.

 

[MGshaggy]

ctdonath

I think youy completely missed my point.

The NFA and 922(o) exist concurrently. There is nothing inapplicable, unenforceable, or 'resting' about the NFA; 922(o) just adds another layer to the NFA which prohibits new registrations of MG for the civilian market. What I was saying in my prior post is that even IF 922(o) was to be struck down on commerce clause grounds (which is highly unlikely anytime soon), it wouldn't take Congress long to rewrite and pass 922(o) in its entirety with a jurisdictional element in anticipation of any such concerns as Alito had in Rybar.

However, if (and thats a monumental "if") 922(o) was ever struck down on commerce clause grounds you would need at least a few weeks or months lapse in 922(o) to get anything approved. Its still 2-3 months to get a form 1 through. I highly doubt it would take congress long to add enough of a jurisdictional element to 922(o) to save it, and the paperwork lag time at the NFA Branch would be plenty to prevent any registrations. Its been a while since I reviewed Haynes, but as I recall while the pre-68 NFA, unconstitutionally criminalized non-registration by a possessor, the GCA 1968 remedied that well enough by changing the regulatory scheme to require registration prior to any act of making or possession, and criminalizing possession of an unregistered weapon, so even if 922(o) went down, you still couldn't make anything new without first registering it.

 

[FeebMaster]

A $20,000 dollar tax on a <$1000 rifle is clearly a prohibition, and would be quickly found unconsitutional so I wouldn't worry about that. I am worried of the implications if the SCOTUS upheld the 20k tax, as that would be a clear dicision allowing the prohibition of firearms. That would be a heck of a straw on our back.

Right. After all, it was found unconstitutional so quickly last time.

 

[YellowLab]

There are actaully two cases that upheld post 86 MG ownership in spite of 922(o).

One was down south and another out west.


We can only hope for another amnesty.. that is the only REAL legal recourse.

Laws NEVER, EVER go away.

 

[MGshaggy]

There are actaully two cases that upheld post 86 MG ownership in spite of 922(o).

One was down south and another out west.


We can only hope for another amnesty.. that is the only REAL legal recourse.

Laws NEVER, EVER go away.

While I agree with the sentiment that another amnesty is the best we can realistically hope for, I don't know of any cases holding 922(o) invalid or unconstitutional. There are cases like Staples where the prosecution wasn't able, or neglected to prove certain elements of the crime, but thats a far cry from holding 922(o) invalid or unconstitutional.

 

[ctdonath]

So if I can't be charged with possessing a machine gun without paying the tax, because the feds won't accept my tax, does that mean it's legal?

No.

NFA provides a legal (taxed) way to own a machinegun - pay your $200 tax + paperwork.
922(o) bans post-'86 machineguns outright.

Upshot is you can't be charged with owning a MG without paying the tax precisely because you can't legally own one period.

This comes from a case where a machinegun was illegally transferred and the perpetrators got caught ... and the BATFE pressed charges not on possessing an illegal post-'86 machinegun, but instead pressed charges on having not paid the $200 tax. SCOTUS (or next court down) said they can't be penalized for paying a tax that the tax collector (BATFE) wouldn't (because of 922(o)) collect.

 

[ctdonath]

A $20,000 dollar tax on a <$1000 rifle is clearly a prohibition, and would be quickly found unconsitutional so I wouldn't worry about that.

Too late. In 1934, the tax/price proportions were about the same. It was a $200 tax on a (then) something like $5 gun. And yes, SCOTUS found that entirely Constitutional.

 

[ctdonath]

I don't know of any cases holding 922(o) invalid or unconstitutional.

In extremely limited cases. One was Stewart, wherein a felon (thus completely unable to participate in interstate MG commerce) made (rather well) a MG from scratch; that case has since been remanded back to the 9th Circuit so that theory is on hold. The other I don't recall (but do recall reading it), but had something to do (again) with making a MG from scratch with no interstate commerce; nobody who understands the case is ready to step forward waving that flag.

Upshot of the two is: they were applied to extrememly narrow cases, and any attempt to apply them to normal upstanding citizens making/buying MGs will have unleashed on them.