Machine-gun ban -- test cases

[awkx]

In the oral arguments for Heller, the Supreme Court justices didn't seem eager to strike down the ban on new machine-guns (18 U.S.C. § 922(o)). If we're going to get this thing declared unconstitutional, then we're probably going to need a sequence of carefully designed test cases. Here are my thoughts:

1. Get a gun-friendly state (like Montana) on our side, and argue that new 3-round-burst guns cannot constitutionally be banned by the federal gov't.
   • Full-auto seems to scare people (possibly including the SCOTUS justices) much more than guns that can only fire a small, fixed number of bullets per trigger press.
   • It would clearly be to our advantage if we can get the legislature of a gun-friendly state to adopt a finding-of-facts that civilian ownership of 3-round-burst guns is necessary and proper for a well-regulated citizen militia. This might be politically possible in Montana. In 2005, they seriously considered a bill to exempt guns manufactured and kept within the state's borders from federal regulation (although machineguns are not included); it passed the House by a 73:24 margin, but died in the Senate.
2. If necessary, repeat in a machinegun-neutral state, where ownership of machine-guns is legal but not positively supported by the legislature.
3. Finally, go for full-auto guns.

What do you think? Might it be possible to get new machine-guns (or at least 3-round-burst rifles) unbanned? Any other ideas?

 

[frankie_the_yankee]

Your approach is well thought out. And someday, something like it may actually work.

But that day is a long, long way off, IMO.

In my view, a good near term goal (assuming a good outcome in Heller) would be pushing for 50 state full faith and credit for CHLs. I see that as being about 3000 times more important and more significant to gun owners than lifting the ban on new machine guns (yawn).

Right now in 2008, I see a machinegun campaign as being the "Rev. Wright" of gun politics. You know, taking a stand that has no benefit for your side while alienating 95% of the country and/or making them think that they were right after all, and that we gun owners are just a bunch of nuts.

It's going to be a long, long slog. The next step, post Heller, is incorporation. That itself will take years. After that, carrying outside the home should have some kind of constitutional status, IMO. Achieving that will take more years.

In the meantime, go to Vegas, rent an MP-5, and enjoy.

 

[takhtakaal]

I agree. Slow and easy is the order of the day. Let's see where Heller gets us and then proceed from there. Things didn't get this bad overnight -- face it -- it took years and years of erosion of rights and the passing of inimical laws at the state and federal laws for us to come to this point. Pressure for radical, overnight changes is only going to scare the fence-sitters into the wrong camp.

 

[AnthonyC.]

I know having a 3-round burst gun would be a lot of fun, but I would only want to own one in .22lr, ammo costs are getting to high.....

 

[Gunnerpalace]

Everything except three round burst.

 

[Prince Yamato]

I think your approach is very good. In fact, I'm almost positive if Heller goes our way, that is exactly the route that should be taken. First however, I think we're going to see a fight for equal gun rights and national reciprocity (ie, my CCW is good in California, NYS, wherever).

I think if we can agree that general gun rights (like what people in Texas enjoy) apply to EVERY state and we allow NFA items in EVERY state, then the fight to legalize new machineguns should be that much easier.

 

[Kentak]

What do you think? Might it be possible to get new machine-guns (or at least 3-round-burst rifles) unbanned? Any other ideas?

Not a chance.

IMO, it's much more urgent to focus efforts at preventing a new, more onerous AWB. I suspect nothing in a favorable Heller ruling would rule out a AWB. You're focused on getting pie-in-the-sky when you should be worried about losing the pie that you have now.

K

 

[k_dawg]

Easier things to tackle:

1) elimination of purchase/owernship permits/foid's etc

2) full faith and credit act applied to concealed permits

 

[takhtakaal]

The only way to approach three-round burst is to to approach it from the argument of relative parity with available military weapons, then and now.

We can pretty much discard the notion that a current read on 2A means that we can have all the blackpowder smoothbore squirrel rifles we want. But we're a long, long way from seeing 2A meaning that we can approach anything beyond semiautomatic without some serious reworking of the '34 and '86 laws. Let's not get too "cart before the horse" here -- even if we don't see it in our lifetimes, we have a chance to give it to our children and their children.

 

[green-grizzly]

I think you would want to have as plaintiffs:
1. Members of the active duty military.
2. Members of the National Guard.
3. LEOs.
4. Members of the unorganized militia (males age 16-45?).
5. Firearms manufacturers who want to sell new NFA items.
6. Senior citizens.
7. Women who would otherwise be in the unorganized militia (I don't think the unorganized militia includes women).
8. etc.

I think it would be especially potent to point out how pathetically little range time some of the support personnel in the military get before deploying, as well as LEOs. Maybe bring cases with those groups only initially, and then once privately owned machineguns cause people's toes to curl a little less, bring in everybody else with equal protection arguments.

Maybe bring multiple cases in the 2-3 most conservative circuits, starting with the 4th and 5th circuit.

But I really think we should go after incorporation first. Get some of the low hanging fruit first before we scare the hell out of the courts with 922(o).

 

[jcjacobvt]

> First however, I think we're going to see a fight for equal gun rights and >national reciprocity (ie, my CCW is good in California, NYS, wherever).
>
>I think if we can agree that general gun rights (like what people in Texas >enjoy) apply to EVERY state and we allow NFA items in EVERY state, then >the fight to legalize new machineguns should be that much easier.
>

I agree with the above statements, but I want the next step to be that MY rights from the State of Vermont that allow me to have and carry both openly and concealed without any Governmental PAPER apply to every FREE CITIZEN in every STATE of this United States of America.


No National CCW premits, not at all.


Either the 2nd Admendment stands or it does not. We are not asking for permission from each State Government to do something that is a GOD given Right.

 

[Rmeju]

+1 on strict scrutiny and incorporation first.

Those are not only far more important than 922(o) (yeah, I wanna buy a MG, too but...) but IMO, winning the strict scrutiny & incorporation battles will be necessary in order to even fight the 922(o) provision in the courts.

We're not up the stairs yet. Actually, we aren't even up the first step. When we disect the ruling in June, then we can figure out how (or even if) to go on the offensive.

Reid

 

[awkx]

I see the point raised by several people that we should go after lower-hanging fruit first (e.g., incorporation against the states, carrying outside the home, etc.), and I agree with this. However, it might be still be good to be prepared to bring a MG case. We certainly don't want a drug-dealing murderer to be the test case for machine-guns!

 

[Blackbeard]

If you go for too much at once you'll scare off the fence-sitters. We didn't get this much gun control (infringement) overnight -- we won't get rid of it overnight either.

Baby steps!

 

[#shooter]

I think the MG ban is a lost cause for now and it is not a top priority. MGs do not fit in the SD mindset that RKBA groups and orgs have framed the gun debate in the last decade. The public at large is against MGs and the antis can easily present their case to the criminality of the 1920 mobs. The fight is now about SD and related topics like pistols, CCW, castle doctrine, right to carry bans (workplace, parks, colleges, DC, etc). The next fight will be over ammo. As anti logic goes…”the 2nd applies to arms, not ammo the drafters only had round balls”, so HP, JHP, JSP, etc is ok to ban or restrict bla bla bla. If heller goes well then an outright ammo ban will likely not happen, but microstamping and registration will be fair game.

 

[icebones]

hypothetically speaking, if full auto weapons were once again legal to own, with out all the permits and restrictions, they would be sold just as any other gun. that means, a background check, papers to fill out, a valid drivers license, a call to the ATF. i dont think a drug dealer or robber would be up to all that legal stuff. what im trying to say is. the bad guys who we dont want to have machineguns, wont get them, or if they do, it will be the same way they get any other guns they may use. by illegal means...

the main reason we have restrictions on short barrel weapons and full auto weapons is because of the gangsters and mobs of the 1920 and 30's. when alchahol was legalized, the mobsters lost their money and power, and the dried up, but the guns band didnt...

but its like the other guys are saying, lets focus on one thing at a time.

before the machinegun laws are challenged, lets go for suppressors. many countries like finland and sweden, have little or no laws against suppressors and can be purchased over the counter like any other firearm.

hell we should take a few lessons from swizerland. every male is a national guard member untill age 35 (i think, not shure) and is REQUIRED to have his fully automatic SIG550 rifle and at least 50 rounds of ammunition in his home at all times. sounds nice huh? might i also state that the swiss have one of the lowest crime rates in the entire world!!!

this goes back to the old mindset: the more things you make illegal, the more people will commit the crimes. im simply referring to little things, like seatbelt laws for example. not the big stuff, like drugs or homicide...


the best thing we could do for our way of life, is to vote. join the NRA or some other pro-gun orginization, and spread the truth about firearms.

 

[icebones]

by the way...

just how many states, as of 2008 are pro-gun and anti-gun? anyone know.

 

[lacoochee]

I would say all of the states that are shall issue would be categorized as "pro-gun" so 38 at least.

 

[novaDAK]

hell we should take a few lessons from swizerland. every male is a national guard member untill age 35 (i think, not shure) and is REQUIRED to have his fully automatic SIG550 rifle and at least 50 rounds of ammunition in his home at all times. sounds nice huh? might i also state that the swiss have one of the lowest crime rates in the entire world!!!

Lets not. As good as it sounds, what you don't hear about is all of the "permits to purchase" and ammunition registration, and gun club membership, etc.

But what switzerland does show, is that having easy access to full-auto weapons has not had any affect on crime. In fact, the only incident ever comitted with a full-auto over there was a single suicide of a depressed man alone in his house.

 

[frankie_the_yankee]

I agree with the above statements, but I want the next step to be that MY rights from the State of Vermont that allow me to have and carry both openly and concealed without any Governmental PAPER apply to every FREE CITIZEN in every STATE of this United States of America.

No National CCW premits, not at all.

Either the 2nd Admendment stands or it does not. We are not asking for permission from each State Government to do something that is a GOD given Right.

Uh, what exactly do you mean be "we" kimosabe?

God given or not, don't hold your head under water waiting for that one.

The Court will never issue such a ruling, IMO. Heck, many people are still unsure over whether they will rule for an individual right or a collective right. If by some chance they happen to conclude it is a collective right, though I can't see how, we are screwed for the next hundred years.

IMO, Any ruling from Heller will allow for "reasonable reatrictions" even if we get strict scrutiny. And you can be sure that background checks and licenses to carry will be held to be as constitutional as the right to remain silent. Don't take my word for it. Read the briefs.

You might not like it, but that's about the best that we can reasonably expect. None of the BOR are absolute.

You'd be better off pushing VT into issuing some kind of LTC that other states can extend reciprocity to.

 

[Crosshair]

It would be relatively easy to make a test case. We would need to have several test cases in different jurisdictions. I have thought about two scenarios, one that even "no-money" me would be able to do.

Generally, they all have the same basic starting point. Submit a Form 1/4 for a post-86 machine gun. It will be denied. We then have "injury" allowing a suit to be filed. With "DC vs Heller" they had to find someone who wanted to register a handgun in DC and be denied a permit in order to go forward. Theoretical "injury" simply won't fly.

1. Get a Sten parts kit and submit a Form 1 to make an open-bolt submachine gun. This would be a "cheap" way to get a test case as the Sten parts kits are only about $150 IIRC plus the $200 submitted with the Form 1 in addition to the fingerprints, etc. As an added bonus you only have to worry about the local LEO signoff and don't have to bring an SOT into the mix.

The only problem with this is that the Sten was never issued to US troops so there might be some technicality that I am missing. However this could allow a good volume of plaintiffs and differing opinions in the District Courts, prompting a SCOTUS review.

As an added note, I think that using the "trust" or "corporation" methods to bypass the LEO signoff will cause trouble with the test cases because they bring added legal baggage with no benefit.

2. Get LEO signoff and have a SOT Fill out and submit a Form 4 to sell you a post-86 M4 carbine. This one would probably be the most concrete, but more expensive than the Sten gun route of course, because the M4 is a current standard issue weapon with the US armed forces.

Anything wrong with my thinking?

 

[Jim March]

OK...here's what's got me puzzled.

A careful reading of Miller shows that the decision can be read in FAVOR of full-auto ownership. The lower courts didn't support that but it's clearly there in the "militia nature" of weapons that would be legal. This also cross-references the "arms" definition of State v. Aymette cited in Miller ("arms of common use in the military").

It seems to me the current Supremes actually realized this!

So...in order to go our way on self defense yet NOT support full auto, they have no choice but to completely re-engineer the 2nd Amendment, veering radically from Miller.

Well guess what, folks? There's only one even near-honest way to even talk about the 2nd having being re-engineered. And that's to start talking about the 14th Amendment.

A *powerful* case can be made that the 14th was designed to protect the right to self defense of newly freed blacks. I won't re-hash the whole thing here but trust me, it's damned compelling. The stated purpose was to allow them to protect themselves from criminals, specifically the proto-KKK, and rogue elements of the Southern state governments.

OK.

Assume all that, and we have a surprising problem: the newly freed blacks didn't yet have voting rights. Which means, just like white women, they had no political rights at all, including jury service OR militia service. That didn't kick in until the 15th Amendment a few years later.

That brief gap in time could be crucial.

If the bearing of arms gets de-coupled from militia service, then in theory they could ban full-auto. What they could NOT ban would be handgun, shotgun and common rifles, and if they really go this route, CCW becomes inevitable.

A few of the pro-RKBA amicus briefs talked about the 14A linkage. For that matter, liberal Yale law professor Akhil Reed Amar's research on this stuff is well read and was cited in some of the briefs, including that of Gura.

In other words, this could get pretty damned interesting. IF the Supreme Court jumps all over the 14A as a "savior" from the full-auto problem, we juuuuuust might get incorporation against the states in this decision...because that's absolutely inherent in this 14A-centric view of the RKBA.

Akhil Reed Amar put it bluntly: the NRA should change it's "poster child" from a minuteman with a musket to a Carolina Freeman with some un-named gun.

What Amar didn't understand was the state of firearms development in 1868 (passage of the 14th). Leverguns were common, as were concealable revolvers ranging from Colt pocket .31s and the like to chopped-down 36 and 44cal wheelguns as the Mormon security forces were fond of.

Now, I don't know if they'll go this route. But it's the only halfway honest method of protecting personal defense while hosing full-auto, pardon the pun...

 

[ctdonath]

The "common guns only" argument can't stand. It can't even start. NOTHING is "common" that WASN'T "common" earlier (except rocks & clubs); no progress can be made without allowing something new (which will most likely be demeaned as "too dangerous" - which is the whole point of having one), which thru free market economics results in it going from rare/nonexistent to common. Leverguns and wheelguns were uncommon at one point, then they were introduced and free exercise of RKBA made them common. Considering there is practically no difference between an AR15 and an M16 save about $1 in parts and slightly different machining, there's no reason for machineguns to be uncommon save for the ban thereon: a large/majority fraction of the "common" AR15 would be select-fire if not for the ban thereon. Undo 922(o), and assuredly machineguns would become "common".

RKBA cannot be completely de-linked from militia service, because the 2nd Amendment plainly couples it. The coupling may not be strict/exclusive, but it cannot be completely excluded (to the point of prohibition) either. That should be the answer to argumentative questions about the introductory clause: people have RKBA, including any and all militia arms - without which we cannot have a truly effective ("well-regulated") militia.

I don't see how DC's handgun ban can be tossed without tossing 922(o) as well. SCOTUS can't disallow categorical bans while allowing categorical bans. The "common" criteria is absurd as technology moves all tools from "nonexistent" to "uncommon" to "common" to "obsolete". The "too dangerous" criteria is absurd as, save a few dramatic anecdotes and too many movies, machineguns have a demonstrable history of NOT being "too dangerous" in society; besides, the whole point of weapons is to have a more dangerous one than your enemy! And as noted, the 14th Amendment was demonstrably put in place PRECISELY so that all citizens could suitably arm themselves against assailants - and if your attacker has full-auto, you probably want it too.

Viewing the oral arguments as they should be viewed - hypothetical devil's-advocate rhetoric - we may very well be in for a dramatic restoration of 2nd Amendment rights. Maybe not the petty paperwork, which could be argued doesn't really infringe, but overturning all categorical bans ("well-[equipped] militia" ... "shall not be infringed"), enactment of national CCW ("full faith and credit"), and RKBA at all levels ("supreme law" ... 14th Amendment). Anything else requires too much twisting & breaking of plain Constitutional wording. No matter what part you want, and what you're willing to throw under the bus to get it, this one is for ALL the marbles.

 

[Bill2e]

the main reason we have restrictions on short barrel weapons and full auto weapons is because of the gangsters and mobs of the 1920 and 30's. when alchahol was legalized, the mobsters lost their money and power, and the dried up, but the guns band didnt...

ICEBONES, your point is very interesting.


The Gov banned alchol which opened up a criminal element to import booze.

They made money & had power

The criminals bought guns to protect there illegal business.

The Gov, then removed the ban on Booze & replaced it with gun laws to keep the ATF working.

Very interesting cause and effect.

 

[Ragnar Danneskjold]

I think a better and less volatile issue should be barrel length laws. Make the other side prove why a 15" barrel is more deadly that a 16".

I also think National CCW is a terrible idea. I would rather that the 2A affirm that the idea of a CCW permit is unconstitutional. What we DON'T need is more sweeping Federal laws even if they seem like they are good for us at first.