Is the DC ban on Post 76 handguns legally identical to the Fed ban on post 86 MG's

[PLRinmypocket]

I have not seen the similarity mentioned but it seems to me that the way the DC ban on post 1976 (I think) pistols is worded is nearly identical to the way the federal ban on post 1986 Machine guns is worded. Basically anything before that date is legal to own, but anything after that date is banned.

IMO this would mean that if the DC pistol ban is overturned, even if some regulations of pistols are allowed, the Fed ban would also not past 2nd ammendment muster and have to be overturned as well.

Of course the standard NFA regulations regarding $200 tax stamp and background check, and sign-off could still stand.


Does this argument have any legal merit?

 

[ctdonath]

I have not seen the similarity mentioned

Oh, it's been mentioned. Dig around a little.

Yes, the two are very similar. The similarity has gotten a LOT of discussion (read anything about "Heller" and you'll probably run into it). Seems it's the single most controversial point in the current attempt to overturn DC's ban: whatever principle is used to void that law can be applied to the post-'86 MG ban, and most likely will.
This is scaring the willies out of anyone who doesn't want MGs legalized (even though legalization would still require $200+paperwork).

Expectation is that the moment the Supreme Court announces its verdict in the DC ban case (aka "Heller"), a whole lotta people will be filing $200+paperwork for MGs, and taking the resulting application denials to court on the same grounds as Heller.

Unfortunately, this argument is freaking out a lot of people on every side of the issue. Many on our side are insisting "don't go there", not realizing that a whole lotta people are gonna go there in July.

 

[tube_ee]

Crucial Difference...

The DC law stipulated that if YOU did not own your legally-registered handgun prior to 1976, you can never legally own any handgun.

922(o) says that, unless THE GUN was manufactured prior to some date in 1986, that gun can never be legally owned.

Under 922(o), any gun legally registered before the cut-off date can be transferred to another owner, assuming that that transfer complies with the NFA. Under DC's law, if you legally own a handgun, because you owned it before 1976, you cannot legally transfer it to anyone else.

In other words, the DC law is about YOU, and 922(o) is about THE GUN. They are similar, true, but there is a fundamental difference between them. That difference is far larger than the typical differences that put lawyers behind the wheels of Mercedes.

It's not a matter of cut-and-paste, folks.

--Shannon

 

[Quiet]

IMO this would mean that if the DC pistol ban is overturned, even if some regulations of pistols are allowed, the Fed ban would also not past 2nd ammendment muster and have to be overturned as well.

After hearing the oral arguements for the DC v Heller case, not sure how much of a help the case will be for MG ownership.

Since, lawyers on both sides of the case pretty much threw MG ownership under the bus. :banghead:

 

[Dallas239]

I think it really depends on how the majority reasons out the rulling in Heller. They may allow DC to open the registry, they may find the whole thing unconstitutional. And they may base their opinion on the type of gun that is being regulated, the nature of the regulation, or the purpose for which the plaintiff intends to use the gun, or even the purpose for which the gun is suited. I expect that there will be quite a few concurring opinions, discussing all of the above (and some stuff I haven't thought of) which will lead to no clear test for lower courts to apply. In other words, I think we should expect a decision that will pave the way for a hundred more years of litigation.

 

[Ridgeway]

after listening to the oral arguments, it seems to me that even a ruling in favor of heller won't do anything for 922(o)

@ least the impression i got from kennedy was that he would consider the de facto ban reasonable, i don't see the votes to overturn it even under a balancing/reasonableness test

 

[mec]

the machinegun thing seems to be a major concern for Ginsberg and the DOJ dude said it would be hard to exclude MGs because they are the current favorite among military/militia arms.

 

[Crosshair]

I'm thinking about going there. I know I can get CLEO signoff and the SOT I use will most likely go along with it. If not, I can always go the Form 1 route.

 

[Monkeyleg]

While 922(o) did not prohibit the possession of MG's, it effectively banned possession for most people by limiting the availability of legal MG's to a small, finite number and increasing the cost more than tenfold.

Since some of the justices were questioning whether the District had a compelling interest in banning handguns, and looked at the effect of the ban in terms of numbers, couldn't that same argument be made for MG's? Since the number of crimes committed with legal MG's has stayed at 1, does the federal government have a compelling interest in prohibiting further manufacture?

Opinions from legal types are much appreciated.

 

[LAR-15]

Prior to 1986 no NFA registered full autos were used in a crime as far as anyone can tell.

Even the BATFE testified machine guns weren't that big of deal.

There was basically no crime reason behind 922(o)

 

[LAR-15]

Second when the NFA was passed it was stated in the Congressional Record by the Roosevelt Administration that they wanted to ban machine guns outright but could not due to the Second Amendment. Hence the tax and register scheme of the NFA.

With skyrocketing machine gun prices and a decreasing pool of legal weapons, 922(o) would be mighty hard to defend now than in 1987.

 

[Gunnerpalace]

LAR-15, you are right, do you remember in the original hearings for the NFA they wanted to make handguns NFA articles and put a 5000.00 tax on them? I think that dirty little secret needs to get out more.

 

[Zundfolge]

Prior to 1986 no NFA registered full autos were used in a crime as far as anyone can tell.

source

Crime with Legally Owned Machine Guns

In 1995 there were over 240,000 machine guns registered with the BATF. (Zawitz, Marianne,Bureau of Justice Statistics, Guns Used in Crime [PDF].) About half are owned by civilians and the other half by police departments and other governmental agencies (Gary Kleck, Targeting Guns: Firearms and Their Control, Walter de Gruyter, Inc., New York, 1997.)

Since 1934, there appear to have been at least two homicides committed with legally owned automatic weapons. One was a murder committed by a law enforcement officer (as opposed to a civilian). On September 15th, 1988, a 13-year veteran of the Dayton, Ohio police department, Patrolman Roger Waller, then 32, used his fully automatic MAC-11 .380 caliber submachine gun to kill a police informant, 52-year-old Lawrence Hileman. Patrolman Waller pleaded guilty in 1990, and he and an accomplice were sentenced to 18 years in prison. The 1986 'ban' on sales of new machine guns does not apply to purchases by law enforcement or government agencies.
---
Thanks to the staff of the Columbus, Ohio Public Library for the details of the Waller case.

Source: talk.politics.guns FAQ, part 2.

The other homicide, possibly involving a legally owned machine gun, occurred on September 14, 1992, also in Ohio (source).

In Targeting Guns, Kleck cites the director of BATF testifying before Congress that he knew of less than ten crimes that were committed with legally owned machine guns (no time period was specified). Kleck says these crimes could have been nothing more than violations of gun regulations such as failure to notify BATF after moving a registered gun between states.

 

[TexasRifleman]

While 922(o) did not prohibit the possession of MG's, it effectively banned possession for most people by limiting the availability of legal MG's to a small, finite number and increasing the cost more than tenfold.

This is why I see the whole thing as a restraint of trade/interstate commerce issue more than a gun issue.

Machineguns are legal. The available inventory is artificially controlled, favoring one class of purchaser over another.

Racist, classist, restraint of an otherwise legal trade, and frankly bad for the US Government because of the loss of revenue from the $200 tax stamps.

Hell I'd contribute 5,000-6,000 dollars just in NFA taxes if I could add things to the registry.

Doesn't really seem to be about guns to me, seems to be about an unfair restriction on a legal trade.

 

[OMGWTFBBQ]

Many on our side are insisting "don't go there".

Who? All I'll insisting on is that they leave it for another day. Heller is about handguns, not machine guns.

Machine guns come later . How about a Calico M100 with "da switch"?

 

[LAR-15]

Don't forget a judge made in unconstitutional to be required to register a post 1986 machine gun under the NFA.

If you are found in possession of say a machine gun made in 1995 you cannot be prosecuted for violating the NFA.

 

[Hkmp5sd]

If you are found in possession of say a machine gun made in 1995 you cannot be prosecuted for violating the NFA.

Care to actually test that theory in real life?

IIRC, it was a homemade, from scratch, machinegun (thus not regulated by interstate commerce) and the ruling was in a single district.

Besides, most states that allow machineguns have the law worded that only machineguns legally registered under federal laws are legal in the state.

 

[Crunker1337]

Wouldn't the militia argument actually be good for allowing machineguns, because they are after all widely used in militias (or they would be if we could just get them)?

 

[k_dawg]

To paraphrase a comment from the oral arguement:

"Would a ban on all new books be reasonable since you allow a total of 250 books in all of the USA?"

 

[LAR-15]

HKmp,

You are charged with violating 922(o) (in the GCA) not the NFA.

I can't find the court case right now.

 

[LAR-15]

Here ya go:

# United States v. Rock Island Armory (1991) [23] - United States District Court ruling one cannot be prosecuted for 1934 National Firearms Act violations for machineguns produced after 1986:

"...since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional."

 

[Hkmp5sd]

So how come no one is selling post 86 machineguns if 922(o) has been ruled unconstitutional?

 

[Jaenak]

Handguns tend to fall under a little bit different of a category than Machine Guns do. Besides, the Feds have to draw a line in the chronological sand because they can't just ban them all. They have to grandfather in the ones that are already here.

 

[LAR-15]

It hasn't been ruled unconstitutional

 

[Dead]

LAR,

can you please expand on that comment? From the previous post it would seem that it is either a) no longer enforcable, or b) unconstitutional.

That is for the Internal Revenue Code 53, and NFA. I guess that leaves GCA 68 alive? Seeing how the above reference makes 2 of the 3 ineffective, what would need to be done to include the final strike to get 922(o) gone?