fast eddie
Member
Bingo. Four justices are conservative, four are liberals and one is a moderate; in my simple mind that makes it a crapshoot. I suspect there is as much politics as scholarship going on in the ivory tower.
Heller Oral Arguments Discussion
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Sam Adams
Member
Kentak, TexasRifleman
I would agree that in a political sense a repeal of the '34 NFA is unlikely.
However, let's look at this thing. Assume for the moment that Heller results in a 2nd Amendment win - meaning that the Court says that the 2nd protects an individual right to own firearms (without being more general than saying handguns are for sure protected). Now someone files a case for the BATFE's failure to issue an NFA tax stamp.
My argument against the '86 FOPA limitation would be that it is virtually identical in effect to the DC handgun ban; since MGs haven't EVER been banned under federal law, and since they are firearms, then they must also be protected against any effective federal ban. I think that this case is a winner.
The challenge to the '34 NFA is a bit more difficult. The other side will claim that it is only "reasonable regulation." I would counter with:
1. If it is a fundamental right, then name some other fundamental right that is even close to as burdened with regulation as ownership of a full auto? That simply cannot be done.
2. I'd specifically go after the reasonableness of the regulation: Simply put, if a person can be trusted with a revolver, semi-auto, pump or lever action gun, then there's no logical or legal reason that they cannot be trusted with a full auto. Similarly, if they couldn't be trusted with those other guns (i.e. children, ex-violent felons, mental incompetents and drug addicts), neither could they be trusted with a full auto. Since virtually everyone accepts (albeit with provisos) the NICS system of verifying the identity and suitability of a prospective firearms owner as being a "reasonable regulation," then why couldn't the exact same system be used to check on prospective full auto owners?
3. Where's the compelling interest in regulating full autos vs. semi-autos? The record since 1934 is that legal full auto owners are far, far more law-abiding than not only the average citizens who can and do own semi-autos by the tens of millions, but also far more law-abiding than even the police. Ironically, the only known case of a legal full-auto owner committing a crime with a full-auto in the 73 years of the NFA's existence is that of an off-duty police officer (wouldn't THAT be a fun thing to bring up in the Oral Argument). Since there was nothing like the NICS system (or any registration or background checking system) back in 1934, it could be easily stated that the reason for the NFA was to institute some kind of NICS-like system of background checks. The purpose was, manifestly, to stop gangsters like Al Capone, Pretty Boy Floyd and Bonnie & Clyde from getting full autos legally - not average citizens. SOOOOO, since we have a NICS system, and since all other gun owners are already checked out with it prior to every purchase (except WRT carry permit holders in some states, and they have their own background checks to go through), WHAT IS THE COMPELLING INTEREST of the fed.gov in maintaining the NFA registry and permitting system? If you have a fundamental right that cannot be infringed without a compelling state interest, then the government must prove its compelling interest and further prove that it is protecting that interest in the manner calculated to least infringe upon the fundamental right in question.
That, IMHO, is how the '34 NFA can be killed. Not legislatively, which will never happen, but in the courts. Of course, it'd help if Stephens and either Ginsburg, Souter or Breyer were ex-Justices, and replaced by people like Roberts & Alito, who know how to read not only the Constitution but also history books.
I would agree that in a political sense a repeal of the '34 NFA is unlikely.
However, let's look at this thing. Assume for the moment that Heller results in a 2nd Amendment win - meaning that the Court says that the 2nd protects an individual right to own firearms (without being more general than saying handguns are for sure protected). Now someone files a case for the BATFE's failure to issue an NFA tax stamp.
My argument against the '86 FOPA limitation would be that it is virtually identical in effect to the DC handgun ban; since MGs haven't EVER been banned under federal law, and since they are firearms, then they must also be protected against any effective federal ban. I think that this case is a winner.
The challenge to the '34 NFA is a bit more difficult. The other side will claim that it is only "reasonable regulation." I would counter with:
1. If it is a fundamental right, then name some other fundamental right that is even close to as burdened with regulation as ownership of a full auto? That simply cannot be done.
2. I'd specifically go after the reasonableness of the regulation: Simply put, if a person can be trusted with a revolver, semi-auto, pump or lever action gun, then there's no logical or legal reason that they cannot be trusted with a full auto. Similarly, if they couldn't be trusted with those other guns (i.e. children, ex-violent felons, mental incompetents and drug addicts), neither could they be trusted with a full auto. Since virtually everyone accepts (albeit with provisos) the NICS system of verifying the identity and suitability of a prospective firearms owner as being a "reasonable regulation," then why couldn't the exact same system be used to check on prospective full auto owners?
3. Where's the compelling interest in regulating full autos vs. semi-autos? The record since 1934 is that legal full auto owners are far, far more law-abiding than not only the average citizens who can and do own semi-autos by the tens of millions, but also far more law-abiding than even the police. Ironically, the only known case of a legal full-auto owner committing a crime with a full-auto in the 73 years of the NFA's existence is that of an off-duty police officer (wouldn't THAT be a fun thing to bring up in the Oral Argument). Since there was nothing like the NICS system (or any registration or background checking system) back in 1934, it could be easily stated that the reason for the NFA was to institute some kind of NICS-like system of background checks. The purpose was, manifestly, to stop gangsters like Al Capone, Pretty Boy Floyd and Bonnie & Clyde from getting full autos legally - not average citizens. SOOOOO, since we have a NICS system, and since all other gun owners are already checked out with it prior to every purchase (except WRT carry permit holders in some states, and they have their own background checks to go through), WHAT IS THE COMPELLING INTEREST of the fed.gov in maintaining the NFA registry and permitting system? If you have a fundamental right that cannot be infringed without a compelling state interest, then the government must prove its compelling interest and further prove that it is protecting that interest in the manner calculated to least infringe upon the fundamental right in question.
That, IMHO, is how the '34 NFA can be killed. Not legislatively, which will never happen, but in the courts. Of course, it'd help if Stephens and either Ginsburg, Souter or Breyer were ex-Justices, and replaced by people like Roberts & Alito, who know how to read not only the Constitution but also history books.
Sam Adams
Member
Mike OTDP
Actually, it drives us NON-NFA owners even more up the wall. Otherwise, you are correct. I'm not at all keen on the idea of paying for an registering to exercise a right. But so long as millions of us can and do exercise that right, it ain't going away.
I will, however, want firm, FIRM assurances that the $200 fee (and lesser ones for DD's, etc.) are not going to go up. I'd even be OK with a 10% tax, limited to a certain pretty low dollar amount (so that collectors don't get hosed).
Actually, it drives us NON-NFA owners even more up the wall. Otherwise, you are correct. I'm not at all keen on the idea of paying for an registering to exercise a right. But so long as millions of us can and do exercise that right, it ain't going away.
I will, however, want firm, FIRM assurances that the $200 fee (and lesser ones for DD's, etc.) are not going to go up. I'd even be OK with a 10% tax, limited to a certain pretty low dollar amount (so that collectors don't get hosed).
PaladinX13
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Deavis you're confusing rhetorical arguments with legal arguments which sound great preached to your choir ears, but are of no practical value against a swing vote, much less hardened opposition. When you argue before the Supreme Court, you fight with your arms tied however the Justice who poses the question to you chooses. You don't "win" by making constituents feel good while disrespecting a Supreme Court Justice.
The Justice has spent their time contemplating the issue and no matter how absurd you think their question is- THEY think it's an important and critically thought-out question- and any attorney before the Court would be wise to act as such. Trying to make the asker seem like a fool rhetorically rather than legally is the fastest way to ensure the fence sitters vote against you if only to teach deference to the authority of the Court (such as Souter who is continually concerned about stare decisis and the reputation of the Court).
The Justice has spent their time contemplating the issue and no matter how absurd you think their question is- THEY think it's an important and critically thought-out question- and any attorney before the Court would be wise to act as such. Trying to make the asker seem like a fool rhetorically rather than legally is the fastest way to ensure the fence sitters vote against you if only to teach deference to the authority of the Court (such as Souter who is continually concerned about stare decisis and the reputation of the Court).
I suppose what hacked me off most was Stevens, when he was talking about whether the purpose of the right to keep arms was for self defense, implying that we did not have a right to keep arms for self defense.
I know that the constitution does not give me a right to eat, drink (water) or breath, but I got that right either from God or nature depending on your point of view about how we got on the earth on the first place. Humans certainly had a right also to defend themselves long before the idea of government popped into some thug's mind. I am not saying that anyone is obligated to give me food, water, protection, etc, but that I certainly should not be blocked from peacefully taking care of these needs myself.
A plow is an invention that aids in food acquisition. So too "guns" are relatively modern inventions that aid in self defense, among other uses. Government denying people the right to defend themselves by the most effective means possible is insane.
I thought it would be cool for someone to walk up and start choking Stevens insisting he not resist, demanding to see where the Constitution grants him the right to self defense.
I know that the constitution does not give me a right to eat, drink (water) or breath, but I got that right either from God or nature depending on your point of view about how we got on the earth on the first place. Humans certainly had a right also to defend themselves long before the idea of government popped into some thug's mind. I am not saying that anyone is obligated to give me food, water, protection, etc, but that I certainly should not be blocked from peacefully taking care of these needs myself.
A plow is an invention that aids in food acquisition. So too "guns" are relatively modern inventions that aid in self defense, among other uses. Government denying people the right to defend themselves by the most effective means possible is insane.
I thought it would be cool for someone to walk up and start choking Stevens insisting he not resist, demanding to see where the Constitution grants him the right to self defense.
gbran
Member
The Brady bunch has a less than exuberant statement on their homepage.
http://www.handguncontrol.org/
http://www.handguncontrol.org/
Sam Adams
Member
Bartholomew Roberts
Breyer said:
You said:
Beggin' your pardon, but Breyer did mention "...either killed or wounded...." That makes the 80K-100K figure far more realistic. Of course, the anti-gun freaks have been throwing around 30K for many years now, referring solely to deaths in which a firearm is a part (legal or illegal, justified or not) - and now they go and start talking oranges to the prior apples.
Breyer is a statist ass, but he was technically correct here.
Breyer said:
You said:
Beggin' your pardon, but Breyer did mention "...either killed or wounded...." That makes the 80K-100K figure far more realistic. Of course, the anti-gun freaks have been throwing around 30K for many years now, referring solely to deaths in which a firearm is a part (legal or illegal, justified or not) - and now they go and start talking oranges to the prior apples.
Breyer is a statist ass, but he was technically correct here.
Sam Adams
Member
Gego
You know, him being 87 and all, it wouldn't have taken long for such an action to swing 1 vote away from the DC side of this case.
You know, him being 87 and all, it wouldn't have taken long for such an action to swing 1 vote away from the DC side of this case.
The Wiry Irishman
Member
jeff-10
Member
Its looking like the good guys will win one.
http://apnews.myway.com/article/20080318/D8VG2PR00.html
http://apnews.myway.com/article/20080318/D8VG2PR00.html
well... I doubt we will knock things all the way back to pre '34 in terms of restrictions on gun rights, but I do believe we will have made on heck of a great start.
I also feel that the Supreme court ruling will set the kind of precedent that will allow a successful future challenge all the way to a place when Adams will be very happy.
Brady bunch will be drinking heavily and not in a happy way tonight.
I also feel that the Supreme court ruling will set the kind of precedent that will allow a successful future challenge all the way to a place when Adams will be very happy.
Brady bunch will be drinking heavily and not in a happy way tonight.
Dan from MI
Member
I caught about 1/2 of the arguments.
One thing that we need to remember is this. Attorneys have one loyalty above others. The client. Gura's job isn't to get rid of the NFA law. It's to get rid of the DC law.
Also keep in mind that all the briefs were read by the judges already.
I think most of all though that the court already made its decision. I expect 5-4, maybe 6-3 in our favor a narrow victory.
One thing that we need to remember is this. Attorneys have one loyalty above others. The client. Gura's job isn't to get rid of the NFA law. It's to get rid of the DC law.
Also keep in mind that all the briefs were read by the judges already.
I think most of all though that the court already made its decision. I expect 5-4, maybe 6-3 in our favor a narrow victory.
M1911Owner
Member
Assuming a favorable ruling, I think the big question is just how broad or narrow the ruling will be. I'm sure we won't see a broad ruling that clearly states that all military arms are protected by the 2nd. But, will we see a broad ruling that clearly spells out the .gov can regulate arms this way, and that way, and this other way? Or will we see a very narrowly-focused ruling that simply states that the DC handgun band does in fact violated the 2nd, but leaves completely open the question of what else the 2nd does or does not allow?
This is almost for sure the outcome. If you listen carefully you will notice Heller's lawyer on several occasions saying something like "... these laws are unconstitutional no mater what level of scrutiny is applied..." He did this because he was trying to limit the scope of the ruling so the the justices would have fewer things to consider. That is he was trying to take the level of scrutiny question off the table. He did this so he could increase his chances of wining the case for his client.
The minimal favorable ruling for our side is that it is an individual right and since the law was way over the top SCOTUS does not have to consider the level of scrutiny question and the law is invalid (IE. it would fail even a rational basis test). This would leave the level of scrutiny question for a later ruling. This kind of ruling is fairly likely.
The next step up is that they do rule on the level of scrutiny and if things go our way decide it is to be strict scrutiny. This is the most that we can expect from this case and anyone expecting more has not been paying any attention to what has been posted here and other places about how these things work. If we get more than this you should be dancing in the streets (Oh also make sure you are not dreaming!).
Deavis
Member
The other thing that bothers me is the lack of public speaking ability for anyone who stepped up in front of the reporters after the case. No matter what your opinion of Fenty or his cronies, they did a good job of speaking with solid (albiet illogical) talking points and confidence. Gura and Heller were both uninspiring, when asked about Fenty's statement of more guns leading to more crimes Heller responded, "An armed society is a polite society!"
What the HELL is that? A perfect opportunity to speak out with serious facts and easy talking points and he flubs it. Prove the mayor is a liar, rattle of some statistics, turn the question back on them, or anything remotely resembling a statement that would convince the public of your position. For people on the fence who aren't into the 2A, which of them in their right mind wants to associate with a guy who thinks more guns is going to make people more polite? That is a bumper sticker for a gun show, not a point to make to the nation on CSPAN about gun control laws. He did a little better on the follow-up but it makes me want to scream out loud.
Who coached these people? Why is it everytime someone is interviewed for guns they end up looking like a kid who has never given a speech before in their life or a total kook?
It isn't that people on the pro-gun side are stupid but one of our weakest areas is in presentation. We are so arrogant in our beliefs being right that we forget not everyone sees it that way. A little positive spin, some confidnce, and some flourish would go a long way towards getting people on board. "An armed society is polite!" is not the way to spin their case at all. You don't have to Obama a speech but for crying out loud, a little practice wouldn't hurt.
What the HELL is that? A perfect opportunity to speak out with serious facts and easy talking points and he flubs it. Prove the mayor is a liar, rattle of some statistics, turn the question back on them, or anything remotely resembling a statement that would convince the public of your position. For people on the fence who aren't into the 2A, which of them in their right mind wants to associate with a guy who thinks more guns is going to make people more polite? That is a bumper sticker for a gun show, not a point to make to the nation on CSPAN about gun control laws. He did a little better on the follow-up but it makes me want to scream out loud.
Who coached these people? Why is it everytime someone is interviewed for guns they end up looking like a kid who has never given a speech before in their life or a total kook?
It isn't that people on the pro-gun side are stupid but one of our weakest areas is in presentation. We are so arrogant in our beliefs being right that we forget not everyone sees it that way. A little positive spin, some confidnce, and some flourish would go a long way towards getting people on board. "An armed society is polite!" is not the way to spin their case at all. You don't have to Obama a speech but for crying out loud, a little practice wouldn't hurt.
phoglund
Member
I have to say my favorite exchange was this:
Wineoceros
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Oh, for Pete's sake. The guy isn't a lawyer or an orator. He's a security guard and average Joe. The vast majority of people wouldn't have done any better in that spot.
This would be the best that we could possibly hope for. This implies that we end up with an individual right, strict scrutiny and a bunch of dicta. But I don't expect we will see much in the way of dicta since the majority writing the opinion will consist of conservative justices and they tend to not write much dicta. But who knows maybe they will feel compelled to give additional guidance to the lower courts since beyond this ruling the lower courts will have little else to go on.
Bartholomew Roberts
Member
Sam Adams said:
Yes, you are right. Sloppy reading on my part.
kd7nqb
Member
I would like to say that I hope the Brady campaign hires the same attorneys presenting the case as their general council.
I managed to catch the spin from the three networks' evening news programs and what struck me was the common theme of worry about "what this may mean for the nation's gun laws". No mention about what the outcome may mean for our constitutional rights. I also heard the familiar "blood in the streets" thrown in just for good measure. Shocking.
swifteagle
Member
For anyone who missed the Cspan feed of the oral arguments they do plan to re-broadcast this evening @ 8pm ET I believe. I also have links to the real audio stream of the oral arguments as well as to the transcript & the .mp3 version here:
http://dustinsgunblog.blogspot.com/2008/03/todays-dc-vs-heller-case.html
http://dustinsgunblog.blogspot.com/2008/03/todays-dc-vs-heller-case.html
Big45
member
watching the replay right now, man I'm glad to be alive for this.
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