Machine-gun ban -- test cases

[macadore]

No National CCW premits, not at all.

The Second Amendment prevents the federal government from having an opinion about firearms. Unless I misunderstand your suggestion, it would be as unconstitutional as the machine gun ban. The federal government cannot dictate firearms policy to the states. The fact that they are doing so is what makes national gun control unconstitutional. You will have to change the constitution to allow the feds to have an opinion on national ccw permits. It is easier to change the laws in your state.

As Neal Knox pointed out at the time, the problem with the machine-gun ban is that for the first time in U.S. history, a type of firearm was banned. I strongly disagree with those who say we should not push to repeal the machine-gun ban. If we can get a couple more pro gun Supreme Court Justices appointed, it won’t matter what the Brady Bunch thinks.

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.

Amen.

 

[Deavis]

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.

Not really an important distinction legally, full-auto is full-auto. You are making a legal argument for multiple rounds with one trigger pull, defined as full-auto in every state in the Union. Public opinion might "like" the idea of 3-rd burst but it is hardly a big step from 3-rd burst for a legal case or public opinion poll. Look at how semis are paired with MGs.

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.

You don't need to buy anything, just submit the Form 1 with the LEO sign-off. You aren't allowed to start work until the F1 is approved so save yourself the money, send in the design, and wait for the denial. Better yet, do it as a corp and skip the fingerprints and LEO signoff. Then it only costs you $200 to get denied.

 

[Kentak]

Get all the pro-gun USSC justices you want. You'll never, ever get a majority to say a restriction on MG is unconstitutional. Won't happen.

Most of the gun owners in America don't want to see MGs as unrestricted as non-MGs. It will be a struggle just to prevent a new AWB on semi-autos.

You guys just don't get it.

K

 

[ctdonath]

Yes, we do get it.

The whole point of our enumerated rights is that it doesn't require a majority's approval to exercise them.

"Mine, but not thine"? Fine. Hang together, or hang separately.

There WILL be a push to overturn 922(o) - soon, and frequently. Those who don't want MGs don't understand how many do - and are highly motivated & funded.

We want SCOTUS to make a definitive ruling one way or another, so we can proceed accordingly. The status quo is not acceptable, and sitting around waiting won't achieve any progress.

And FWIW: at this point, we're not looking for "completely unregulated", we're looking for "legal and new" - even if it takes $200, paperwork, and fingerprints. I want my M4, and I'm old enough to know I don't have forever to get it, and may need it sooner.

 

[Kentak]

We want SCOTUS to make a definitive ruling one way or another, so we can proceed accordingly. The status quo is not acceptable, and sitting around waiting won't achieve any progress.

SCOTUS can dodge the issue indefinitely by refusing to hear any related cases, no? I don't envision any *realistic* scenario whereby this court or any court in our lifetimes is going to roll back MG regulation if they do take any cases.

K

 

[alsaqr]

"SCOTUS can dodge the issue indefinitely by refusing to hear any related cases, no? I don't envision any *realistic* scenario whereby this court or any court in our lifetimes is going to roll back MG regulation if they do take any cases."

Two gun control measures will never be repealed or declared unconstitutional. One is the Firearms Act of 1934. The other is the 1968 Gun Control Act.

 

[awkx]

Get all the pro-gun USSC justices you want. You'll never, ever get a majority to say a restriction on MG is unconstitutional. Won't happen.

I'm not sure I agree. Remember that Justice Alito, in his former position on a circuit court of appeals, said in Rybar that the current machine-gun bas is an unconstitutional overreaching of Congress's power to regulate commerce among the several states. I don't think the Court will allow MGs to go completely unregulated, but I think that there *is* a possibility of them striking down a complete ban on new MGs.

 

[Prince Yamato]

I don't think "reasonable" (ie, not too expensive) registration will go away or that it could be ruled illegal IF you can still get what you want. IE, Chicago's gun bans may be ruled unconstitutional, but FOID may not be. So, you would probably get concealed carry, and MGs, but you might have a PIA registration, kind of like for driver's licenses at the DMV. In fact, I'm pretty sure if most of these other dumb laws get struck down, that's what the antis will be left with; crappy and stupid regulations. Like, "you need an FOID card or your CCW license". In states with registration, the FOID/CCW would serves as notice that your weapons were legal and not stolen or some garbage like that. Kind of like vehicle registration and driver's licenses. Realistically, a DL doesn't prove that you're a good driver, but we have them non-the-less to prove we went through some arbitrary process that familiarized us with driving.

 

[LAK Supply]

The '86 ban is very similar to the DC ban in that it has a permit process that is only used to deny. There is also a question of whether the US Gov't can refuse a tax.... this would complicate their ability to refuse permits to those who pay the tax.

I agree that NFA and GCA probably are not going away (as much as I would like them to), but the FOPA provision most definitely could be taken down.

 

[icebones]

yes i know swiss have to have permits to buy guns+bad, but it was just a point being made...

 

[Gray Peterson]

Btw, anyone who suggests that concealed carry restrictions and bans will be declared unconstitutional should look at Robertson v. Baldwin, an 1897 Supreme Court case which stated in passing that concealed carry is not protected by the Second Amendment. Open carry is the "bearing arms" that's described in history.

 

[csmkersh]

In one court district, purchase and possession of a machine gun made after May 19 1986 is legal. See U.S. v Rock Island Armory. Now getting the ATF to sign off on the buy is another problem all together. And the SC on the issue---:banghead: No way!
​

 

[ctdonath]

Not true.

The RIA case held that you could not be charged with not registering a weapon for which registration would be invariably refused. In that case, the registration would invariably be refused because purchase and possession of post-'86 machineguns is illegal. You can't get the ATF to sign off because you're not allowed to have one ... and the ATF can't prosecute you for not getting their sign off when they won't sign off because you can't have one.

 

[fletcher]

^^

I just read through a bit of that. Does that mean in in the 7th circuit, you can manufacture a machine gun and cannot be prosecuted by the ATF for not registering it, since their refusal to accept the tax $ is unconstitutional?

 

[ctdonath]

No, IT IS ILLEGAL TO POSESS A MACHINEGUN MADE AFTER 1986. Period.
That is why the ATF does not accept registrations for new MGs.

The RIA case was about trying to punish someone for not registering something with the ATF when the ATF would refuse to register it. The refusal to register it DOES NOT MAKE POSSESSION LEGAL, it just means you can't be punished for not registering something which cannot be registered.

922(o) says you can't have one, period.
Because you can't have one, registration thereof is irrelevant, and other laws requiring registration do not apply because it makes no sense to punish someone for not registering something they can't have and can't get registered.
Even if the ATF accepted regisration of new MGs, and approved your registration of one, it would still be illegal for you to have it - registration status has nothing to do with the fact that law 922(o) says you can't have one, end of story.

 

[jlbraun]

The RIA case was about trying to punish someone for not registering something with the ATF when the ATF would refuse to register it. The refusal to register it DOES NOT MAKE POSSESSION LEGAL, it just means you can't be punished for not registering something which cannot be registered.

Exactly. Quoted for truth.

 

[csmkersh]

What USC Title 18 Sec 922(o) really says

(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to -

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

​

 

[Historic Arms LLC]

Some interesting tid-bits to add....

The FOPA Hughes amendment is interesting in that under section 2(a) if the government [ATF] can if it chooses, process a transfer of a MG made after May 19, 1986 to an individual. It has on rare occasions, primarily for political connected individuals.

Under current ATF interpretation 922(o) under US v. Leary would never get past SCOTUS scrutiny, if they chose to look at a case. [As the NFA was set up as a Tax law]

In Georgia, state law defines a machine gun as a firearm that can fire more than six shoots with a single pull of the trigger. I researched this extensively, what I found as the basis for the law was really humorous. I guess way back when during the early cartridge era it was discovered that a Colt Peacemaker [single action sixshooter w/firing pin on hammer] can be loaded with ammo that was made with thin primers. The firing pin pierces the primer, gas pressure blows the hammer backwards. Just like fanning the hammer it keeps firing until empty. It must have been common knowledge at the time and Georgia legislature did not want it considered illegal. [Later superseded by NFA/GCA].

The real proof that could be found useful is the testimony of ATF post Waco.

In David Hardy's book "This is not an Assault", ATF testified that they were not armed with Machineguns, as their MP-5's would only shoot 2 shots per function of the trigger (still more than once). The book is very good source of various info. I have never heard of a 2 shot burst before or since for an MP-5, but it could be done. I have often wondered if they meant a 3 shot burst...who knows.

With great respect to Ctdonath, While you are right in that ATF views as you described "IT IS ILLEGAL TO POSESS A MACHINEGUN MADE AFTER 1986. Period. That is why the ATF does not accept registrations for new MGs." It can, has, and will most likely still happen quietly when the government is forced to "under the authority of, the United States" approve such transfers.

I do NOT see the current case even going towards 922(o) other than maybe defining some individual rights, to set the stage for future litigation, barring Congressional participation in the situation.

I see relief coming in an "amnesty" far sooner. There are several reasons for one that have been discussed endlessly here and elsewhere. Bottom line in order to use the NFRTR [registery] as a Federal Law enforcement tool, a future correctional amnesty is eminent, and actually mandated by Congress according to the GCA in order to maintain the NFRTR. Without one soon, ATF is fast approaching the inability to enforce certain portions of the NFA/GCA in Federal Court.

Always remember:

If your Grand Daddy's double barrel fire both barrels with one trigger pull...It's considered a Machinegun currently.

If your Colt Single action pierces primers and chain fires all six with one trigger pull...It's considered a Machinegun currently.

But....

Your man portable flame thrower is not considered a firearm, has no Federal restrictions and currently even minors can purchase them (no age restrictions), and no bothersome paperwork needs to be completed?

Len Savage

 

[ctdonath]

I'll concede there are exceptions to my "... Period." comment. For the purpose of the sub-issue at hand, my comments suffice, as the core of the law is an absolute prohibition, with slim exceptions granted only via high connections and quiet whispers - to wit: if yer discussing it here, yer not in the club.

Does make me wonder about the viability of filing a FOIA for post-'86 MG registrations (names & serial numbers redacted). THAT could be interesting...

 

[Gunnerpalace]

It would be supposedly an ATF agent said an anti gun legislater has one.

 

[csmkersh]

Slightly off thread.

I had a Colt Woodsman that would go full auto when it was dirty. A new hammer and sear would fix the problem.

Also has a Colt 1960 go "machine gun" once. It was poorly capped with grease and fired all 5 cylinders at once. Yes, it was a 6 shot, but habit was to load 5 and place hammer on an empty chamber.

Last "amnesty" I remember was in the mid-1960s.
​

 

[Kharn]

Historic Arms LLC:

In David Hardy's book "This is not an Assault", ATF testified that they were not armed with Machineguns, as their MP-5's would only shoot 2 shots per function of the trigger (still more than once). The book is very good source of various info. I have never heard of a 2 shot burst before or since for an MP-5, but it could be done. I have often wondered if they meant a 3 shot burst...who knows.

They're available:
Gunbroker auction for factory 2rd trigger pack

Kharn

 

[Elza]

awkx: We certainly don't want a drug-dealing murderer to be the test case for machine-guns!

Then again, we might. The way things are today only the rights of criminals are sacred. The law abiding citizens don’t count for squat.

 

[Gunnerpalace]

If T.I.(the rapper dude) is somehow able to overrule 922o I proclaim right here on THR that I will buy his album and every future release.

 

[ctdonath]

The "rapper dude's" news story.