"Gura tossed machineguns under the bus! What is he, a lawyer for the Bradys?!?"

[jlbraun]

SCOTUS will not take it. The machine gun issue has been addressed in US v. Stewart (2003)

And Stewart was a felon. Of course no Court is going to rule that felons should have machineguns! Get a client that's upstanding, a good citizen, etc., get him to file a Form 4 for a Colt M4 along with 200 other people, then see what you get.

To date, almost all of the gun cases that have gone close to SCOTUS are about violent felons breaking firearms laws. No matter what, the SCOTUS is not going to rule on the pro-gun side with a plaintiff like that. Gonzales v. Raich was a commerce clause case, so if the SC is going to use that, go the route of getting a law passed in Montana (they've tried) as spelling out that machineguns may be manufactured and sold within Montana free from 922(o) as long as they never leave the state. That creates a clear SCOTUS case.

 

[strat81]

What would be a nice intermediate step between re-opening the registry and where we are now? It sounds like gura is saying that it's too big a step, and that it plays too much into propoganda that we want machineguns everywhere.

It sounds like it ought to be something legislative, and preferably something small-sounding, but substantial. An end to "sporting use" distinctions, perhaps?

I'd say NFA items like SBRs, SBSs, and suppressors would be the intermediate step.

 

[green-grizzly]

Stewart was principally a commerce clause case. The little bit of the opinion that addressed the 2nd amendment was based purely on the 'collective right' theory, which I think we are all assuming is about to get tossed.

 

[jlbraun]

The little bit of the opinion that addressed the 2nd amendment was based purely on the collective rights theory.

Right. And if Heller comes down on the "yes, you have an individual right to a gun", then that part of Stewart is up for reconsideration.

 

[DKSuddeth]

And Stewart was a felon. Of course no Court is going to rule that felons should have machineguns! Get a client that's upstanding, a good citizen, etc., get him to file a Form 4 for a Colt M4 along with 200 other people, then see what you get.

you didn't read the 9th circuit opinion then.
Yes, stewart was a felon and thus was convicted of being a felon in possession, etc.,however, the 9th circuit specifically found that a homemade machine gun had no effect on interstate commerce and thus could not come under 922(o). Can you imagine it? Machine guns being manufactured by civilians and possessed by civilians? Well, the supreme court couldn't, which is exactly why the remanded and instructed the raich decision on the 9th. To ensure that no new machine guns, homemade or not, enter in to the inventory pool of america. now, read the raich decision, especially scalia's concurrence. This will be how the SCOTUS circumvents their decision in heller.

 

[jlbraun]

DKSuddeth, the reference to Raich will be up for reconsideration if Heller declares an individual right. Raich's language around 922(o) is contingent on collective rights.

 

[green-grizzly]

Raich IIRC was a dope case.

922(o) may be interstate commerce, but you can't regulate interstate commerce to eliminate a fundamental right. For instance, the Congress could not pass a law making it illegal print newspapers in interstate commerce critical of the government. The commerce clause issue and the second amendment issue are separate, and the court of appeals opinion decided it that way.

 

[Vibe]

And Miller was decided (or adjourned) due to a "Lack of presented evidence" - Evidence which of course could have been readily found and presented had there been a live defendant or representation to do so. If we are going to have SCOTUS "revisit" a decision after Heller, why not start there?

 

[DKSuddeth]

jlbraun, raich, or more appropriately stewart, will not be up for reconsideration because as was said before, it dealt with interstate commerce clause. What people are not getting is the thought patterns assumed by the justices at that time on how congress can utilize unimpeded power to implement public policy.....like machine gun possession. Scalias interpretation of the 'necessary and proper clause' should be horrifying to alot of people.

http://straylight.law.cornell.edu/supct/html/03-1454.ZC.html

 

[green-grizzly]

I'd agree that Raich will not be up for reconsideration on interstate commerce grounds. But the Supreme Court of course did not consider 922(o) in Raich because it was not a gun case. It was a dope case. Likewise, when they vacated Stewart and sent it back, they were doing so on commerce clause grounds. They did not consider the second argument issue. Because, at the time, it was a non issue.

Again, you can not use the commerce clause to eliminate a fundamental right. At the time Raich and Stewart were decided, the 2nd amendment was not recognized as an individual right. That is about to change.

Before Heller, Congress could have passed a law banning pistols. That still would have undoubtedly been a regulation of interstate commerce. Congress could not pass a law banning newsmagazines critical of the government. That is interstate commerce too, but the press is protected by the first amendment. Heller will change things so that Congress can not pass a law banning pistols (hopefully). If the second amendment covers machineguns as well, then 922(o) is unconstititional, regardless of the effects on interstate commerce.

There were two separate issues in Stewart. First, is the manufacture of a machinegun interstate commmerce? Second, is a machinegun protected by the second amendment? Only the commerce issue was presented in Raich. The Supreme Court has never considered the second issue.

 

[alan]

ctdonath wrote:

you have to have someone who is harmed by the law to bring a challenge to the law.

In the case of MGs, it's no different from how Mr. Heller gained "standing": you have to ask permission to get one, which WILL be denied. Find an otherwise willing seller & CLEO, file a BATFE Form 4 to buy an M4 (or a Form 1 to convert an existing AR15), get rejected, file a case on grounds that the rejection is the harm. That's exactly what Mr. Heller did. No criminal activity needed.
-------------------------------

Sounds about right to me, and if I may, I think that the following is interesting re Parker v D.C. later Heller v D.C., most recently D.C. v Heller.

If Ms. Parker and others in the original suit, where there was a ridiculous finding of "lack of standing" had simply applied for a permit or license, which obviously would have been denied, that being beside the point, their suit would not have been dismissed as a result of their "lacking standing".
Mr. Heller applied for a permit or license under the D.C. law, his application was denied, D.C. STUPIDITY, therefore he could show "injury" or "impact", his standing being demonstrated.

 

[jlbraun]

Mr. Heller applied for a permit or license under the D.C. law, his application was denied, D.C. STUPIDITY, therefore he could show "injury" or "impact", his standing being demonstrated.

I wonder if the strategy for the BATFE will be to simply sit on all Form 4s that are submitted for non-transferable NFA weapons? No denial = no standing.

 

[Kharn]

jlbraun:
They sat on all the Form1s from the 9th Circuit until the SCOTUS sent Stewart back to the Circuit Court with a "rewrite after reading Raich", and then mailed the denials, so that is an option.

Or, they could just shred the forms and return your check/MO without comment.

Kharn

 

[jlbraun]

jlbraun:
They sat on all the Form1s from the 9th Circuit until the SCOTUS sent Stewart back to the Circuit Court with a "rewrite after reading Raich", and then mailed the denials, so that is an option.

Or, they could just shred the forms and return your check/MO without comment.

Hunh. Were these Form 1s for making machineguns, suppressors, SBSs, SBRs, what? I would be interested in the particulars, via PM if you want.

 

[LawBot5000]

This case isn't about machine guns. We are just trying to get an individual right out of them. If we succeed in this, we win. If we try to grab for MGs we lose. Personally I think there are half a dozen major lawsuits between now and a successful MG challenge.

Unless someone does something stupid I personally predict the following:
-the supreme court will go 7-2 for an individual right independent of militia service
-the court will either say nothing or go plurality on the scope of the right
-the might say something suggestive about incorporation, but not likely


-next someone will challenge the chicago/morton grove handgun bans which are identical to the DC ban only they are municipal laws. Incorporation time. I predict we win here as well. Overwhelming evidence that 14th amendment was intended to protect the RKBA for freedmen and republicans against racist southern legislatures.

Then either
-next challenge is to the complete de jure ban on carry in IL, then to the various discretionary issue jurisdictions if we win (which we should unless Ginsburg forgets what "bear" means).
-then against the various may-issue states
OR
-next challenge is to CA AWB and includes the incorporation question with the AWB question.
OR (and this one is potentially huge)
-challenge is to the Washington DC machine gun ban as overbroad. Washington DC defines "machine gun" as any weapon that can semiautomatically or automatically fire 12 rounds without reloading.

Then finally after all this, maybe start going after 922(o).

Or we could go after 922(o) right away on commerce clause grounds.

 

[TexasRifleman]

Or we could go after 922(o) right away on commerce clause grounds.

IANAL and all that but this seems to have real meat in it.

The thing is that in all this Gura nor anyone else mentioned the fact that machine guns are already legal at the Federal level.

All Hughes did was artificially drive the price up and the commerce down.

Seems like it would be a reasonable fight, just Stewart was such a bad place to have the fight.

Maybe some of you legal types can explain that more in depth. Isn't it just restraint of an already legal trade?

 

[yokel]

Would it be safe to assume that Mr. Gura will be recusing himself from any possible involvement in any future M249 SAW litigation?

Where did the cliché "thrown under the bus" originate from?

 

[TexasRifleman]

Found a reference as far back as 1984. In print anyway....

[1984 David Remnick @ New Jersey Washington Post (Sept. 7) “Pensive, With Orange Hair Cyndi Lauper & Her Tunes on Tour ”: In the rock ’n’ roll business, you are either on the bus or under it. Playing “Feelings” with Eddie and the Condos in a buffet bar in Butte is under the bus. Peter Frampton is under the bus. God willing, so are the Bee Gees.]

As far as "thrown under the bus" I find the earliest in print:

1991Erin Emery @ Fort Morgan Gazette Telegraph (Colorado Springs, Colorado) (Dec. 12) “Hood talks without thinking, friends testify at murder trial” p. B1: Dees said he talked to Hood after he bonded out of the El Paso County Criminal Justice Center on Sept. 26, 1990, and warned him “that he was being thrown under the bus by Jennifer Reali.” But he said Hood believed Reali “was going to tell the truth.”

By the way, having your company pay for Lexis Nexis is a wonderful thing

 

[madmike]

All we need to drop 922(o) then is a coalition of men between the ages of 17 and 45 not in the military (unorganized militia enrollees under USC 10.311) in NFA-friendly Circuit Court districts to file to buy new in box M4s and get denied. Instant standing.

Not at all. A large number of RESERVISTS filing would help the case.

I get 40 rounds a year to practice with, all semi, at paper targets.

That does not relate to the techniques we use in combat.

I should be able to have a full auto M4 to maintain my proficiency for combat.

As a patriotic American, I will do so at my own expense.

 

[alan]

As part of his response during USSC Oral Arguments, Mr. Gura offered that "gun ower licensing might stand constitutional examination", hope I got it, his wording, correct.

I find this "interesting" given the following.

1. Mr. Gura practiced law in California, representing the state.
2. Gun owner licensing would, I should think, include registration.
3. Convicted felons, among some others, are precluded in existing federal law from possession, purchase, use and transport of firearms, would be ineligible for licensing.
4. In Haynes v U.S., 1968 I believe, the USSC ruled that Haynes, a proscribed person (convicted felon), in possession of an unregistered firearm could not be prosecuted, as compulsory registration would have violated his 5th Amendment right to avoid self incrimination. An otherwise law abiding citizen could be, and likely would be prosecuted, such is the sick, sad state of the law.
5. Finally, gun registration leads to confiscation is an often heard shiboleth, which happens to describe exactly what has happened in some parts of this country, California included. Could it be that Mr. Gura was unaware of this small point, or might it be that he was unconcerned with/about it?

 

[PaladinX13]

Any law on the books is presumed constitutional until challenged. To say licensing would not stand constitutional examination would be to challenge those laws already on the books. That was not Gura's challenge and in no way would benefit his case by taking it up.

He did not say licensing DOES stand constitutional examination, only that it MIGHT. He's doing his best to address the Justice's question without getting drawn into an irrelevant challenge. If you want him to argue licensing, then go sue over licensing and hire him, that wasn't his job to fight a meaningless battle. Scalia might have high-fived him and you might've cheered, but it would have never made its way into the holding which had nothing to do with licensing at all.

This case wasn't about over turning every gun law one could think is unjust or to tout tautologies about gun ownership... it was just about an individual right and a total ban of handguns. Once that's settled, you work from the most draconian and narrow laws backwards. If you live in a "free" state, it'll be a long time before you see any immediate practical or relevant effect of any of these rulings. If you live in cities like NYC or states like NJ, then this is a major step in the right direction.

Any argument he made would have to be in light of the present legal reality which acknowledges all laws on the books as presumed constitutional. That's why the DC case was so useful because it is extremely narrow. The wider the scope the harder the win without precedent... and Gura was standing on a 70 year vacuum with the last touchstone being a case neither he nor the Justices thought much of. I dunno, the Monday morning quarterbacking of lawyering I'm seeing makes me feel like I watching Million Mom Marchers give consultations on home-defense gun choice. Everyone is entitled to their opinions and feelings, of course, but lawyering is a little more technical than just making rhetorical observations.

 

[legaleagle_45]

Think about this aspect....

If you tie the level of arms protected by the 2nd to closely to usefullness in the militia, you undercut the primary argument for incorporation...

The secondary test suggested by Gura of "in common use" establish a connection to an underlying purpose of the fundamental right of self defense, which is much more susceptable to a selective incorporation argument.

Gura, IMHO, is laying the groundwork for the success of future 2nd amend cases

 

[madmike]

Several cases that tried to overturn all gun control were tossed without hearing.

First we define it as a right, THEN we point out that registration accomplishes nothing and violates that right.

However, consider you can be required to get a license for a protest, but not to write newspaper articles.

CCW licenses will pass constitutional muster. A license to own a gun probably will not, _AFTER_ Heller is won.

And if the court says it is an individual right, the whole "registration leads to confiscation" paradigm shifts.

THAT's when you attack the idea of "registering" something that's a legal right to possess, under privacy issues trumping any allegations of "civic interest."

Roe vs Wade failed as soon as the anti-abortionists agreed that abortions were acceptable before a certain point. They couldn't "prove" where life began.

The "Equal Rights Amendment" failed to get ratified, as soon as the frothing feminazis started gloating in the press that it would mean government benefits just for being female, and automatic hiring preference, etc. The public turned on the idea.

We should be PREPARED to challenge 1986, 1968, 1934, NYC, Shicago, etc. We should not announce those battles are fought or even joined yet.

And to do that, we need to fight this battle on ground of our own choosing, with all the intel, artillery and money we can throw at it.

That ground is, "A handgun ban violates 2A."

If SCOTUS concurs, the next argument might be, "Licensing and registering handguns puts an unfair financial burden on that right."

But you can't do the second UNTIL you have determined the first.

 

[ozwyn]

I think Madmike has a good grip on this issue.

Frankly, any major supreme court win is incredibly good news for gun rights in general. If not taking on full auto directly this time is the price to pay to get our foot in the door, so be it. When we win Heller, we guarentee a next time. (not If, when)

 

[Jamie C.]

You folks still having a conniption fit over machine guns should probably go read this:

D.C. v. Heller Eyewitness Report -- Analysis 1

"Don’t worry, as some people are, about machine guns and how quickly Mr. Gura “wrote them off.” 1 - They’re not at issue in this case, so it’s immaterial in context. 2 - You don’t want or need to push a court too far, so just stay on point, concede a pointless point, it’s moot. Get Mr. Heller the rights he seeks restored. 3 - Mr. Gura’s remarks are not the deal maker, the Justices’ are. Some of them were just fishing for something to grouse about. It’s fine to tell them, “Sure,” and get back to the business at hand.

The machine gun issue is also particularly sticky because, as the Court pointed out, it is standard issue for soldiers and so very neatly meets a definition of arms the public should have as related to potential militia service and readiness. Way too big and convoluted to go into in Heller, and simply not needed, yet.

It seems to me that the machine-gun issue will be easy for the Court to sidestep because they’re not technically banned, they’re taxed. The main controls are under Title 26, the tax code, not under Title 18, the criminal code, and again, neither matter in examining the D.C. ordinance. "




J.C.