New Target: Repealing 922 (o)

[LAR-15]

(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.

 

[ctdonath]

I've been mulling that for years.

Approach 1:
Persuade the US Attorney General to opine that the BATFE should allow MG registration "under the authority of the US", as legally most of us are members of the militia and want a MG under the 2nd Amendement, in light of Congress' finding that the 2nd Amendment is an individual right.

Approach 2:
Failing #1, sue for the right to a MG as a 2nd Amendment right due a member of the militia (as most of us explicitly are), Miller having indicated militia-suitable arms are exempt from restriction, and "shall not be infringed".

Focus on obtaining possession of a new M4 - the current standard-issue US military rifle. Avoid M16s as they are technically available (for over 10x "normal" prices), and MGs not plainly part of the standard soldier's armaments (the FN P90 is neat, but hardly standard).

 

[rick_reno]

I've been mulling that for years.

Approach 1:
Persuade the US Attorney General to opine that the BATFE should allow MG registration "under the authority of the US", as legally most of us are members of the militia and want a MG under the 2nd Amendement, in light of Congress' finding that the 2nd Amendment is an individual right.

Approach 2:
Failing #1, sue for the right to a MG as a 2nd Amendment right due a member of the militia (as most of us explicitly are), Miller having indicated militia-suitable arms are exempt from restriction, and "shall not be infringed".

Focus on obtaining possession of a new M4 - the current standard-issue US military rifle. Avoid M16s as they are technically available (for over 10x "normal" prices), and MGs not plainly part of the standard soldier's armaments (the FN P90 is neat, but hardly standard).

#1 - Alberto isn't going to do this. No way, no how.
#2 - risky until the new Supreme Court has some cases under it's belt and we have an idea what their direction is.

 

[beerslurpy]

Approach number 3:
get congress to repeal it!

We have the House votes for this, but no way in hell do we have the Senate votes. There are just too many RINOs in the senate to start pushing back gun control.

The solution is to get active in your state and help turn the bastards out.

Can you beleive that ultra-pro-gun Florida has Bill Nelson as a senator? He is solidly anti-gun and supports pretty much all gun control including the AWB. Hopefully we can put a stop to that next year. And that will be one more vote taken care of.

 

[DeseoUnTaco]

The Emmerson case is the one we're all watching. The SCOTUS is going to hear Emmerson and they have a good chance of ruling in a way that will nuke 922(o). 922(o) is just bull*#$@ and there may be enough justices on SCOTUS to throw it out. Wickard vs. Filburn is looking weak.

I know there are people with signed Form 4s ready to go as soon as the BATF will start accepting them.

Btw if the SCOTUS doesn't hear Emmerson then suddenly MGs are legal in the 9th Circuit (CA, Nevada, Hawaii, etc).

 

[Strings]

ok... I'm an idiot. What's the scoop with Emmerson? Wasn't that one similar to Raich?

 

[Byron Quick]

Btw if the SCOTUS doesn't hear Emmerson then suddenly MGs are legal in the 9th Circuit (CA, Nevada, Hawaii, etc).

How so? And how would overturning 922(o) in the 9th Circuit states overturn the state ban in California?

 

[Flyboy]

Wickard vs. Filburn is looking weak.

Excuse me? Wickard v. Filburn is stronger than ever--go read the Raich verdict.

Hunter Rose: I think you're thinking of Stewart, and I don't recall the Court's disposition on it--I think they denied the appeal and returned it to the 9th Circuit for reconsideration in light of Raich.

 

[DeseoUnTaco]

Excuse me? Wickard v. Filburn is stronger than ever--go read the Raich verdict.

Hunter Rose: I think you're thinking of Stewart, and I don't recall the Court's disposition on it--I think they denied the appeal and returned it to the 9th Circuit for reconsideration in light of Raich.

Yes I'm thinking of Stewart. You're right. I need to look up what's going on with it. It's absolutely parallel to Raich.

I really don't think that Wichard v. Filburn is 100% settled. Yes Raich reaffirmed it but the balance of the court may be changing. Raich was a 5-4 decision I believe.

 

[Kharn]

Raich's balance of power hasnt changed, unless Roberts is better at convincing his fellow Justices than Rehnquest. It was 6-3, Scalia concurring with the liberal five and Thomas, OConner and Rehnquest dissenting.

Kharn

 

[Too Many Choices!?]

Some of you guys are missing the point, I think,

If Congress did not have the power to ban production of MG back in 1934, where did this power come from without a Constitutional Ammendment? MG are the only Firearm(as defined by the ammended 1986FOPA and NFA) that a citizen can not apply with the government to make or register. Congress or the BATF(actually both but that ain't what we're discussin' ) acted outside of it's granted Constitional power's by elinminating a previously legal act without so much as a stroke of the pen from the Executive Branch. It is the BATF's job to enforce the law and not interpret it, if the law is vague, it should be interpreted by the High Court in the least disruptive manner to INDIVIDUAL'S RIGHT'S. Banning the making of a type of firearm is not in Congress' Granted powers without a Constitutional ammendment, why would the AG, have more power in his pen, than in all of Congress and the High Court

Only answer I see would be with the High Court and a non-Felon test case that could actually garner some support from gun enthusiasts, without the criminal stigma(and stench) already attactched to MG and their evil purpose(sigh)...

 

[LAR-15]

We just need the HOP to slip in a repeal on another bill.

 

[TexasRifleman]

Miller does tend to indicate that it would work, but if you will read all the SCOTUS stuff lately, one hot point of debate is something called "Stare Decisis" or "stand by which is decided".

Miers for example has indicated her belief in that idea, some justices do not.

What that means is that the court sitting now is free to ignore everything in Miller if they want, that the precedent doesn't make a law. Only justices that believe in Stare Decisis can be counted on to use Miller as a guide, and there just are not enough of them on the court now.

 

[Too Many Choices!?]

Are there even any bills in Committee or whatever to attatch one to?????

Which politician is going to sing his own "swan song", by signing and sponsoring this attatched,"MG Ban repeal bill"????....While you contemplate that, I won't hold my breath waiting for a politi-con to commit a public self-execution and thusly become,"One of Them",(which is actually one of us, the commoners) overnight. The High Court Justicesare insulated,for better or worse,from the beck and call of the commoner, which is why it will be up to them.I will start a penny jar, just in case some unlucky shmoe gets "drafted" by the government to test my theory. While your way is much more preferable, mine is more realistic...

TMC

 

[LAR-15]

Ron Paul?

 

[DeseoUnTaco]

Ron Paul?

I would love it if someone would attach this to some must-pass bills. Let's open the dialog and reframe the debate on this issue.

LAR-15, what ever happened with that bill that was going to allow amnesty for a certain limited set of war trophies? It had a ton of co-sponsors. Did it pass or did it stall?

 

[ctdonath]

Another approach:

Make up a package of everything someone needs to file suit demanding the right to purchase a new M4 (unquestionably current grunt-level militia weapon, unavailable per 922(o)). Rather than having one focused expensive case whereby we have to hope for the right random selection of judges, hand it out for anyone to file. Have 100+ people in 50 states separately file simultaniously.

The point is to
- show this is not a unique fluke case, but something that LOTS of citizens are taking very seriously and personally
- force lots of rulings
- conflicting rulings = failure of equal protection
- failure of equal protection = right to appeal
- with enough jurisdictional conflicts, the appeal MUST reach SCOTUS.

I doubt one "correct" case can make it and save RKBA. There's just too many chances for a biased judge to rule unfavorably with no real recourse.

Filing hundreds of "I want my M4" cases is simple, cheap, straightforward, and forces opportunities to appeal.

 

[Kharn]

ctdonath:
I believe that approach has been tried on the individual, but not the group level. IIRC, the court's reply was along the lines of "The weapon is still available for purchase, its not our fault it costs too much for you to afford."

Of course, the court didnt consider the fact that there's only ~250,000 weapons on the NFA registery with ~125,000 of them being MGs, so less than 1% of the (by-statute) members of the militia could legally own an M4 (assuming all MGs in the registery were M16 lowers). :banghead:

Kharn

 

[Strings]

Ummm... Kahrn? Might be a good idea to follow through with the idea, and use the court to explain the scarcity. Longshot? Sure... then again, it might make a difference...

 

[Kharn]

Ummm... Kahrn? Might be a good idea to follow through with the idea, and use the court to explain the scarcity. Longshot? Sure... then again, it might make a difference...

True, that could be a plan of attack, but most judges probably wouldnt want to overturn a case when the circumstances are exactly the same.

Kharn

 

[jpIII]

Miller does tend to indicate that it would work, but if you will read all the SCOTUS stuff lately, one hot point of debate is something called "Stare Decisis" or "stand by which is decided".

Miers for example has indicated her belief in that idea, some justices do not.

What that means is that the court sitting now is free to ignore everything in Miller if they want, that the precedent doesn't make a law. Only justices that believe in Stare Decisis can be counted on to use Miller as a guide, and there just are not enough of them on the court now.

Actually, the US v Miller decision allows enough wiggle room, even with strict stare decisis. They didn't accept the governments position of the collective right. Only that they had no evidence presented by the defense that a short double barrel shotgun had any use by militia.

The reason they found that no evidence was presented is quite simple. No one on the defense showed up! Miller nor his lawyer (nor the other defendant) were present. The only items SCOTUS had to use for their decision was the lower courts (very) sparse opinion and the governments brief (and oral arguments).
Miller (a native america) was actually murdered before the case was decided. (miller was murdered most likely from unrelated causes, as he wasn't the most upstanding citizen)

If anyone is interested in more sources of information, PM me. I've done some research on the case, and it is quite interesting.

The 2A is one that has had very limited light from SCOTUS, and IMHO is quite ripe for review with a good court.

 

[DeseoUnTaco]

There are two themes that run through a lot of these cases that are pretty sad: First, the defendants have a lot of problems. They are criminals. No one has much sympathy for them. Second, they often have horrible legal help. In the recent Stewart case, Stewart was both a criminal (convicted of trying to arrange a hit on a judge) and also he had a public defender taking his case. Of course he's going to lose! It's amazing it went that far.

Someday, when I have sold my company for millions of dollars, I'm going to invest several million of them in hiring the best constitutional law team I can put together in the US and we'll take a solid case to fight some of these issues. We'll be smart and do it in a strategic way, with a plan that we'll win a series of smaller victories rather than trying to lose in glory kind of thing. That's the only good way to solve this problem.

 

[Strings]

>I'm going to invest several million of them in hiring the best constitutional law team I can put together in the US and we'll take a solid case to fight some of these issues.<

That's one of my "win the lotto" dreams...