Ninth circuit court homemade Machine gun ruling

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Wait ... so according to the court, the '86 "ban" actually removed the constitutuional basis for the portion of the National Firearms Act dealing with machine guns?
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From what I understand, they're saying that you can't tell people that you can have something if they pay a tax, and then tell them they're not allowed to pay the tax. Which is what the 86 ban does.
 
For those who may not have noticed, Rock Island was a 1991 case, so whatever it is we're allowed to do under that ruling, we've been allowed to do for 13 years now.
 
Foreign Devil,

Yes, that's what the Court said it does. However...

The 1986 law enacted a total ban on new machine guns. So, in theory, it doesn't make any difference that the 1986 law repeals that part of the NFA '34.

Except...

The Ninth Circuit has now carved out an exception to the 1986 law based on the idea that there are limits to just how far the Commerce Clause can reach. In other words, there was no Commerce Clause nexus with the guy's homemade machine gun.

And the result of all this is...

The answer to the question, "Is is legal for me to <fill in the blank with your pet idea to come up with a machine gun>," is, "If you do that, and the gumint finds out about it, you will very likely be tried for criminal violations of both laws. If you're really, really lucky, and have really good attornies, and spend a large fortune defending yourself, you might be able to stay out of prison. But there is also a really high likelihood that the Court will find some way to enforce the intent of those laws, and throw your a** in prison for a very long time."
 
publius,

I don't think that we're allowed to do anything under the RIA case. I think what it did was, when they throw the book at you for making a machine gun, NFA '34 isn't part of that book. But they can (and will) still throw the rest of the book at you.

In other words, I think the government was throwing the book at the defendants in that case, and RIA's lawyers managed to get the counts relating to the NFA '34 dropped. The other counts continued forward.

But, I could be completely wrong about that--that's just my take from what I read at the link, above. Somebody with more knowledge of the details of the rest of that case may want to chime in here.
 
The nifty part is that all court cases that upheld constitutionality of NFA noted that the only reason NFA was constitutional was that it was a tax-collection measure, and emphatically NOT a gun-prohibition measure ... but if if NFA was only constitutional because it was a tax collection measure, then 922(o) is null and void precisely because it is a flat-out ban and not a tax-collection measure.

So, two good things come of this:

1. NFA '34 - at least the machinegun registration & taxing measure - is null-and-void ... and has been for 13 years. Those wanting to transfer pre-'86 MGs can do so freely. Those who paid the $200 MG transfer tax since '86 could sue the feds for a refund, having done so under unlawful duress.

2. 922(o) can easily be overturned by showing high-court cases stating that the only reason NFA was legal was that it was not a ban, which 922(o) is.

Get busy, legal types!
 
M1911Owner,

I agree that there are VERY definite limits on the comerce clause. I mean it 18. 992 it states that if a firearm, part of, or RAW MATERIAL was EVERY in interstate, commerce, or AFFFECTED it. I mean that would seem to go FAR beyond what the commerce clause could encompass, I mean onces something leaves "interstate, or internation commerce" how in God's name is that item still covered under the commerce clause, it is NO long involved in any form of commerce
 
P.S. there is also something else in their that states that NO tax or levy may be placed on exports from a state. I beleive that there are taxes (might not be called that) placed on some items such as guns that moved interstate. (excise tax maybe?) :fire:
 
No. GCA '68 primarily dealt with cutting off mail-order guns and laying the groundwork for the FFL/yellow form stuff.

It also instituted some other heinous stuff such as ammo registration that was later repealed by the '86 FOPA (which was the same law wherein they instituted the MG ban.)
 
So, if according to this court's ruling the constitutionality of the NFA '34 was negated by the amendment in the '86 FOPA, then within the jusrisdiction of that court it ought to be legal to build a machine gun.

Under federal law anyway. I think state law bans full autos in Illinois.
 
publius,

I don't think that we're allowed to do anything under the RIA case. I think what it did was, when they throw the book at you for making a machine gun, NFA '34 isn't part of that book. But they can (and will) still throw the rest of the book at you.
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OK, and if I lived under 9th Circuit jurisdiction, no federal law under Commerce Clause authority can stop me from making a machine gun, but under RIA (different circuit, but maybe applicable?) no federal law under taxing authority can stop me from making a machine gun. Somebody has to stop me from making a machine gun! When I get confused and frustrated by legal issues, I just want to, well, you know... ;)
 
Guys, maybe I cant wrap my head around this, but it seems to me that the RIA case would only repeal the '86 machine gun ban, and not the entire NFA. :confused:
Or maybe its just that MGs after '86 dont fall under the jurisdiction of the NFA? (But only ones made after 1986.)

Is there a lawyer here who can put there opinion of this ruling in plain spoken american, preferably in giant, red, bold text? :p

Also, if someone in one of the other circuits built a home-made machine gun and got taken to court over it, could they reference the 9th Circuit Court's decision as a precedent? How would that affect their chances of a favorable outcome for new machineguns?
 
rageman wrote:

Guys, maybe I cant wrap my head around this, but it seems to me that the RIA case would only repeal the '86 machine gun ban, and not the entire NFA.
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see below

The enactment of 18 U.S.C. § 922(o) in 1986 removed the constitutional legitimacy of registration as an aid to tax collection. This is because the government interprets and enforces § 922(o) to disallow registration, and refuses to collect the tax. Farmer v. Higgins, 907 F.2d 1041, 1042-44 (11th Cir.1990), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991). Thus, § 922(o) undercut the constitutional basis of registration which had been the rule since Sonzinsky.
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The ban enacted in 1986, and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis. It is the duty of the judiciary to declare such laws unconstitutional. Marbury v. Madison, 1 Cranch. 137, 176-77, 2 L.Ed. 60 (1803).
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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.
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I'm no lawyer, but maybe I can boil it down, rageman.

They'll use taxing authority or commerce regulating authority or just the brazen assertion of authority to try to keep a lead hose out of your hands.

Hope that was helpful. ;)
 
That's why we can't rely on Congress to restore RKBA. There's no way anywhere close to a majority that would vote to legalize machineguns.

Courts are it. SCOTUS overturns 922(o), GCA '68, NFA '34, and incorporates 2nd Amendment to the states - or there really isn't any other route.
 
Under federal law anyway. I think state law bans full autos in Illinois.
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now I'm no scholar (probaly even spelled it wrong)

but I have a question

my understanding

the 14 admendment basically forbids states from making laws that go against the Constitution

why does it seem to me that the 14A does not apply to the 2A?

or am I totally off base here?

oh btw
little ol' me came on here awhile back to get a link on this machine gun ruling and the thread is still going
kinda blows my mind. I wasn't trying to generate discussion on it just wanted a simple link:D


jon
 
jon,

Your thread is interesting.

The answer to your question involves something called incorporation. What it amounts to is, some amendments get some respect, but the 2nd is the Rodney Dangerfield of amendments, and gets none. If I were a lawyer, or remembered the Denver open carry case from a couple years back, I could explain it better. Maybe if I made it bold and red? ;)
 
The problem with incorporating the 2nd to the states via the 14th is that SCOTUS has not formally acknowledged the 2nd as an actual right; they have never stated "Joe Gunowner has the right to X under the 2nd Amendment, and his state of residence must acknowledge and respect that right under the 14th Amendment."

The last head-on RKBA case before SCOTUS was Miller, which fizzled because the defendant never showed up. Since then, SCOTUS has either ruled an RKBA case based on other issues (taxation, search/seizure, etc.) or rejected cases without comment.

Justice Thomas has indicated SCOTUS would take a pure RKBA case if someone could get a case there without it being colored by other issues.
 
hmmmm

ok then

what kind of case would be nessecary to get to scotus?

me an Illinoisian caught with a otherwise legal machine gun (otherwise than state law} would that do it?

not that its gonna happen but how could we get a case to scotus for them to either reject or take up and decide rkba?

Im pretty sure if they follow the constitution then 20000+ laws would be null and void

but would they have the guts to do that?

and who would have the guts to risk their freedom to find out?

till it happens some of us in states like mine are pretty screwed in our rkba

why cant scotus take it up in another way such as the nra taking it before them.....ie why does someone have to risk all to get a definite ruling on what the constitution says and means??

thinking about it just @i##es me off

I would really like ta own a fully auto but will never get the chance here

Iknow I know ....... move

but I've set my roots here and have worked 20+ yrs to build up what I have and dont really wish to start from scratch

Illinois sux on their gun laws....but otherwise I love the area I'm in
great people, great hunting, and pretty descent weather


:banghead: :banghead: :banghead:


jon
 
why cant scotus take it up in another way such as the nra taking it before them.....ie why does someone have to risk all to get a definite ruling on what the constitution says and means??
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That one is called "standing" and it's a close relative of "incorporation" in a way, though it does make more sense. Suppose that any interest group could mount a legal challenge to any law they didn't like, possibly tying it up in court for years. That would probably happen quite a bit, as you can imagine. Now suppose that in the midst of all that, you have an actual case, in which actual damages were suffered, but you can't get to court because every court is busy arguing abstractions for interest groups. They might also get busy taking bribes from interest groups, you never know. Our system keeps all that sort of activity in the legislature. That's where abstractions are argued and votes are bought, uh, I mean decided.

The problem with Rodney's standing is that a right must be violated in order to get standing to go to court. But how violated? I can't say on THR, but if I could, it would be an unpleasant image. Basically, if you've got a right that gets no respect, that nobody really wants to admit can be violated because it gets so little respect, it's really hard to point to a violation which is deemed satisfactory to attain standing.

I say to heck with standing. Let's sit on all the lawyers. ;)
 
The other problem with bringing challenges, is that you've essentially got to have the cooperation of the Justice Department to do it. All they really have to do, after all, if the Supreme court looks like they might take a challenge, is drop the charges. And, WHAM!, the case instantly becomes moot, and the Supreme court drops it like a hot potato.

I don't much like the ACLU, but that's why the charge that they're always defending scumbags is so off-base. You want to challenge a bad law, you're always stuck defending scumbags, because the "nice" defendents get let off the hook somehow, to deny opponents of the law good challenge cases.

Another problem, of course, is that they've got so many laws these days, that if they want to nail you on something, they WILL be able to. So the minister's son who's a Scout troop leader manufactures a machine gun in his garage, and they'll put him away for not paying sales tax when he buys things online...
 
You want to challenge a bad law, you're always stuck defending scumbags, because the "nice" defendents get let off the hook somehow
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Which would explain why Bush v. Gore made it to the Supreme Court but US v. Rodney Burpgunner will not...
 
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