Post-McDonald: Will the NRA take on the NFA?

[Frank Ettin]

...I don't recall the exact number Alan Gura asked D.C. for in attorney's fees (it is here in the archives somehwere); but I seem to recall it was in the millions....

I seem to recall it was around $3.5 Million. And that strikes me a pretty much what one would expect to bring a significant constitutional issue up to through the Supreme Court.

...I agree that State organizations are the bedrock of the RKBA movement. If you have a lot of strong State organizations, you are going to have a really strong National organization. The key place to stop anti-rights people is early on before they get enmeshed in the system....

And I think we need to recognize that the various state battles will have national significance and warrant national coordination.

Remember that it is well settled Constitutional Law that constitutionally protected rights are subject to limited governmental regulation subject to certain standards. Assuming a favorable result in McDonald, the initial attacks on restrictive state laws will begin to clarify the applicable standard of review and how that standard will apply. Thus the ruling to come out of the initial rounds of litigation will begin to lay the foundation for yet further litigation.

 

[Sebastian the Ibis]

There is a lot of lower-hanging fruit, when it comes to challenging infringements of a fundamental right.

+1

Carrying will be the next major constitutional battle. It is the right to keep and bear arms after all.

I don't see anyone competently attacking the NFA machine gun registry any time in the near future. An NFA challenge requires asking too many questions that can be answered in more favorable circumstances, i.e. level of scrutiny, what weapons are protected etc.

However, I do think that some pro-gun congressman could slide through some legislation, that would discretely open up the registry to anyone who wanted to avail themselves of the opportunity. Easing restrictions for a FFL-SOT would work. There will also be opportunities to create a loophole to ostensibly solve some scandal. During the Somali pirate scare I was hoping that congress would open the registry to ship owners, or licensed captains or something similar.

 

[Gungnir]

Interestingly after reading the first post I did some digging. Hughes (from the '86 FOPA) has had two legal challenges, Farmer v. Higgins and US v Rock Island Armory Inc.

Farmer was a whitewash, and actually I think his legal team should be shot since they were trying to force the BATFE to re-open registration. Even though they initially won at district level it was defeated on appeal at circuit level. Incidentally this only applies to the 11th circuit anyway so Hughes is defacto ratified in the 11th Circuit.

RRA on the other hand took the approach that Hughes by wording eliminated the ability and therefore the constitutional necessity to register "machineguns" since the original intent of the 34 NFA was not to stop ownership of Full Auto firearms but to tax it, and with the NFA being part of the IRS code this was a logical argument. Since owning a FA wasn't illegal per se, it was only illegal to own FA without a tax stamp, the registration was to rule who had paid the tax stamp, and not who owned the firearms (which would be unconstitutional then and now). Surprisingly under the 5th amendment prior to 1968 convicted felons and other prohibited classes didn't need to register their FA firearms.

The court found in RRA favor, and the US initially appealed then withdrew the appeal. Which I find very interesting... I wonder what would have happened if they'd appealed and lost, or won, and RRA continued to challenge, perhaps the BATFE were concerned about this which is why they withdrew.

Now, the 1968 act is interesting since it only allowed FA firearms with a legitimate "sporting" purpose. Which from Miller SBS were not protected under the 2nd because they were not "ordinary military equipment that could contribute to the common defense". Now that's interesting since the '34 act precedent eliminates firearms without legitimate military purpose, and the '68 act explicitly eliminates those without a legitimate sporting purpose. I remember something about laws and asses...

Anyway my personal belief is that Firearm Freedom acts passed, in Montana and Tennessee and being discussed in other states (waves his State flag) are the most likely means to return FA, SBR/SBS without federal interference. Especially as some of the bills include wording that the state will defend anyone prosecuted under federal law, while following state law.

 

[Bubbles]

To answer the OP's question - there is a group of people planning out a challenge to 922(o). Many folks in it were involved in the original Heller case. Bear in mind that Heller (initially Parker) was filed in 2003 and there was ten years of strategizing from top attorneys nationwide that went into that case. Expect similar timeframe for the challenge to 922(o) - other cases have to be won first.

I don't know of anyone working on a challenge to the 1934 GCA.

 

[THE DARK KNIGHT]

One of the main things about Heller was the Supreme Court stated that it is unconstitutional to ban an entire class of arms "in common use"

Considering that legal machine guns are now essentially just rich man's $20,000 toys, and a miniscule fraction of a fraction of legal guns in use are machine guns, it's pretty impossible, even with gun-forum mental gymnastics, to argue that machine guns are in common use.

 

[Sebastian the Ibis]

the US initially appealed then withdrew the appeal.

This is why pro-gun litigation is so difficult. The Government does an excellent job picking cases. Unfortunately, there are tons of criminals and blowhards that will give the government the cases that they want to appeal.

 

[Gungnir]

One of the main things about Heller was the Supreme Court stated that it is unconstitutional to ban an entire class of arms "in common use"

Considering that legal machine guns are now essentially just rich man's $20,000 toys, and a miniscule fraction of a fraction of legal guns in use are machine guns, it's pretty impossible, even with gun-forum mental gymnastics, to argue that machine guns are in common use.

I'm up for that challenge...

US Army and Marine Corps they're certainly in common use there, and as shown in Miller they are "ordinary military equipment with a use in common defense".

It also can't really be argued that they're not in common use in the general population anyway, because legislation is in place that makes it difficult for them to be in common use it's a circular argument, of the 200 million estimated guns in the US only 150,000 maximum (all that were registered on May 19th 1986) can be legally owned registered Class III NFA. So saying that 0.075% are full auto isn't a fair comparison, how many would there be if there was not a restricted pool of 150k firearms? It would be pure speculation how many there would be. Add in to that the additional requirements that were still needed prior to Hughes and it's even more speculative, since no one knows how many there would be if the 1934 NFA hadn't been passed.

Just my $0.02

 

[THE DARK KNIGHT]

Yeah, but we all know what "woulda, coulda, shoulda" is worth, honestly. I highly doubt just about anyone in mainstream politics will try to argue that automatic weapons are in common use. It's just not a truthful statement.

 

[Gungnir]

Yeah, but we all know what "woulda, coulda, shoulda" is worth, honestly. I highly doubt just about anyone in mainstream politics will try to argue that automatic weapons are in common use. It's just not a truthful statement.

Oh politics, no, supreme court, sure.

The Woulda, Shoulda, Coulda. Doesn't apply here, or "common use" doesn't.

For instance the argument you're making is that "the weapons aren't in common use, because they are more or less banned, and so they're not in common use". So either "common use" can't be applied, or better yet argue that they would be in common use if not due to the legislation that restricts and prevents ownership.

For instance, if you could walk into a gun store today, and pay $200 more for a M16 over an AR would you do it? How about an AK? Now suppose you could get 200 gun owners to sign sworn affidavits to say yes they would pay $200 more for an M16 then you can show that the restriction is preventing these from being in common use. Which would also help to show that it is an entire class of arms and by the supreme courts words "it is unconstitutional to ban an entire class of arms "in common use"". While you're not showing that it's IN common use, you're showing that if the legislation wasn't there that there would be an intent to make it common use once the restriction was lifted. Or alternatively if the restriction had never existed in the first place then the class would be in common use.

However as I said in my first post, I think this is something that the FFA's will likely wind up dealing with on some level, or not, depending on how the lawsuits all pan out.

 

[General Geoff]

Any such suit appealed to the Supreme Court would likely depend heavily on proving that full autos were in common use before the machine gun registry was closed, and/or before the NFA was passed in 1934. In 1985, I doubt more than 2% of firearms in the country were registered machine guns. In 1933, I honestly have no clue but would presume that they were even rarer then, since machine guns at the time were very expensive (a Thompson submachine gun cost about as much as a new Model T).

But then, if the Supreme Court broadens the category to "in common military use," well then we've struck paydirt, and the NFA will crash & burn like a rear-ended Pinto.

 

[Bartholomew Roberts]

Interestingly after reading the first post I did some digging. Hughes (from the '86 FOPA) has had two legal challenges, Farmer v. Higgins and US v Rock Island Armory Inc.

Farmer was a whitewash, and actually I think his legal team should be shot since they were trying to force the BATFE to re-open registration. Even though they initially won at district level it was defeated on appeal at circuit level. Incidentally this only applies to the 11th circuit anyway so Hughes is defacto ratified in the 11th Circuit.

Farmer v. Higgins was supported by the NRA and the attorney for that case was Stephen Halbrook, who is one of the lead attorneys in the NRA's Chicago cases. This was back when the NRA believed that they would be able to easily remove 922(o) because it was clearly unconstitutional.

The court found in RRA favor, and the US initially appealed then withdrew the appeal. Which I find very interesting... I wonder what would have happened if they'd appealed and lost, or won, and RRA continued to challenge, perhaps the BATFE were concerned about this which is why they withdrew

An attorney named John Dalton who was convicted around the same time actually won a case in the 10th Circuit using the Rock Island Armory argument. However, the other circuit courts pretty much ripped that opinion apart using the reasoning from United States v. O'Mara. That is now precedent in every circuit and even in the 10th Circuit they have adopted that reasoning.

So I wouldn't go betting my freedom on Rock Island just yet.

 

[bushmaster1313]

First question is whether the Government can ban a short barreled shotgun, the weapon at issue in Miller. Note that the IRS is buying 14 inch 870's.

Also, even though I support the RTKBA, I was concerned that the Supreme Court would say that as long as you could keep a loaded operational long gun in your home the DC Ban on handguns was legal. It is hard to say that someone with any one of my three shotguns was being prevented from keeping or bearing arms in his home:



Fortunately, some women find it hard to operate a long gun, necessitating a handgun. Just another good reason that God made women!

 

[sfc_mark]

IMHO, the place to take on the Hughes Amendment is Capitol Hill, from whence it was spawned and where the price of failure is lower.

If you lose in Congress, you only have to retry later. Try it and lose in SCOTUS and it's gained a great deal of legitimacy and is much harder to overturn in the legislative branch.

Of course I am not a lawyer and my legal opinion is not warranted to be worth more than you paid for it.

 

[bushmaster1313]

You are right about Congress being the place to take on Hughes, but you will lose.

Not overwhelming public support for liberalizing machine guns or sawed off shotguns.

 

[Phatty]

Not overwhelming public support for liberalizing machine guns or sawed off shotguns.

Public opinion is where the real battle lies. We'll never get Congress to overturn the machine gun ban, and we'll never get a favorable SC opinion on machineguns unless there is huge change in the public's perception of firearms. Sadly, the public's viewpoint has been almost exclusively shaped by movies, television and the media, and it won't be easy to overcome. For example, 99% of the public sees silencers as a tool used exclusively by criminals and bad guys to kill people without getting caught. That's only natural based on the fact that almost none of the general public has ever actually seen a silencer in person and the only times they have ever seen them used on TV or in the movies they are used by bad guys. But, if silencers can be recast to the public as a safety-device to protect users from hearing loss, maybe some headway could be made on that issue.

 

[Frank Ettin]

...if silencers can be recast to the public as a safety-device to protect users from hearing loss, maybe some headway could be made on that issue.

Then again there are probably more than a few virulent anti-gun folks who would be delighted to see any sort of harm, even going deaf, befall gun owners.

 

[ConstitutionCowboy]

...if silencers can be recast to the public as a safety-device to protect users from hearing loss, maybe some headway could be made on that issue.

Dear Lord, I hope not! They'll end up being mandatory! :banghead:

Woody

 

[ConstitutionCowboy]

Note that Scalia says it would be "startling" to suggest that the NFA's restriction on machineguns is unconstitutional.

Startled though he might have been, he didn't say it was wrong. He also noted that the restrictions on machine guns wasn't challenged. Nothing can be drawn from his comment.

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

Here Scalia and the other four concurring justices are only saying how they read Miller, not that they concur.

Combine this with Heller's affirmation of an individual right and hopefully incorportation under McDonald, I don't see how an outright ban on modern select-fire weapons exactly of the type being used today as "ordinary military equipment" could be held constitutional. It would be up to the court to determine if the restrictions on SBRs and SBSs are "reasonable."

Don't forget that the Court in DC v. Heller also held that the gun law in DC amounted to an outright ban of a complete class of weapons. For all intents and purposes, the restriction on new machine guns is an outright ban as well.

Remember that it is well settled Constitutional Law that constitutionally protected rights are subject to limited governmental regulation subject to certain standards.

That can be debated with a strict reading of DC v. Heller. Here is my canned response:

In DC v. Heller. at 54, Scalia wrote:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

This excerpt contains "purpose" which the Second Amendment does not protect. It is also pertinent to note that it doesn't make much difference whether the right secured by the Second Amendment should be unlimited or not. The Founding Fathers secured the right as if it is unlimited. I, for one, believe it is unlimited as did the Founding Fathers. How else could We the People grant unlimited power to the Union to defend us if we didn't have that unlimited power ourselves?

Further along at 54 and 55, Scalia wrote:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

(Note the footnote #26 which we'll get to in a minute.) Scalia did not say all the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms are sacrosanct or are "reasonable restrictions". He wrote that they didn't do a complete analysis of the scope of the Second Amendment and could not say those "restrictions" were in doubt without a complete analysis. He left it wide open for a future analysis to make such a definitive call. All he said was that such a call wasn't made in this deliberation(DC v. Heller).

Now I'll address Footnote 26 in which Scalia wrote:

26 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

What can we glean from this? That his list of restrictions was incomplete? Yes, but more important is the inclusion of the phrase "presumptively lawful". The opinion of the Court is only PRESUMING these regulatory measures("reasonable restrictions") are constitutional. That's twice Scalia made that point. This is the Court passing the buck on to the next case to come along that would address the issue of the constitutionality of all of these presumptively - for the time being - lawful regulatory measures.

There is a reason the issue of these presumptively lawful regulatory measures was not addressed. My guess would be to secure a fifth concurrence, and I would further guess that the fifth concurrence would be that of Justice Kennedy.

It can be said of Justice Antonin Scalia that he artfully crafted the majority opinion in DC v. Heller and secured the fact that the Second Amendment protects a right of the individual, and made it clear that this is just the beginning of the denouement.

There is no lock on "reasonable restrictions" in DC v. Heller​

Does this say it's time to take on the NFA? Possibly. But it will be time to take on the Hughes amendment soon after we get a win in McDonald. Once again, the Hughes amendment amounts to a ban on an entire class of arms and needs to be challenged while Heller is hot! A win in McDonald will be the second blow on the banning of an entire class of weapons. Once we get that done, it'll be time to start cutting the lumber for the NFA's coffin. My next donation to the NRA will be a saw(the wood cutting kind), a hammer(the carpenter kind), and a box of nails.

I'm hopeful.

Woody

 

[Bartholomew Roberts]

Does this say it's time to take on the NFA? Possibly. But it will be time to take on the Hughes amendment soon after we get a win in McDonald.

You have a LONG list of cases that will need to come after McDonald. Remember that the reason Gura has been successful, is that like the civil rights cases before him, he picks a very specific issue and focuses like a laser on that issue. Once he gets the Court to rule in his favor on that narrow issue, he uses that ruling to move to the next specific issue.

So keeping this extremely successful strategy in mind and thinking of the legal issues, you think it goes something like this?

1. Establish that the Second Amendment is an individual right that prevents banning handguns in your own home.
2. Establish that the Second Amendment is applied to the states by the 14th Amendment
3. Establish that the Second Amendment protects machineguns and overturn the NFA

Does it seem like there might be a few steps missing there?

 

[General Geoff]

I think a crucial step between 2 and 3, Bartholomew, would be establishing that the Second Amendment protects autoloading long guns of all types, regardless of cosmetic accessories (thus striking down state "assault weapons" bans). However, this may have an unintentional (but beneficial) side effect of overturning parts of the NFA which regulate short barreled rifles and shotguns.

 

[ConstitutionCowboy]

You have a LONG list of cases that will need to come after McDonald. Remember that the reason Gura has been successful, is that like the civil rights cases before him, he picks a very specific issue and focuses like a laser on that issue. Once he gets the Court to rule in his favor on that narrow issue, he uses that ruling to move to the next specific issue.

So keeping this extremely successful strategy in mind and thinking of the legal issues, you think it goes something like this?

1. Establish that the Second Amendment is an individual right that prevents banning handguns in your own home.
2. Establish that the Second Amendment is applied to the states by the 14th Amendment
3. Establish that the Second Amendment protects machineguns and overturn the NFA

Does it seem like there might be a few steps missing there?

Bart, if you will re-read my post, you'll see that I said it is time to take on the Hughes amendment, not the NFA just yet. The NFA is not effectively an outright ban on a class of weapons vis-a-vis machine guns whereas the Hughes amendment to the FOPA is. The Hughes amendment is no less a ban on a class of weapons than the gun laws challenged in Chicago and DC.

Step by step and inch by inch we'll eventually make it to the NFA. That will be a battle beyond belief since it'll mean wiping out the job of everyone who works for the "F" in the "BATFE". We've got the NICS to take on even before that which will mean finding a way to deal with violent criminals and lunatics that are allowed to roam the streets supposedly hobbled by GCA of '68; and again, the loss of all those nice FBI jobs for those who work for the NICS. Then the GCA itself, etc. etc. etc.

That doesn't mean that if the right case comes along to challenge the NFA that it shouldn't be challenged.

Woody

 

[Mike OTDP]

NFA-34 in general is not likely to be overturned. Section 922(o), the ban on new manufacture of MGs, I consider vulnerable. And I think the time is rapidly approaching for making an attempt to remove suppressors...but that is a legislative matter, not a court affair.

 

[TexasRifleman]

NFA-34 in general is not likely to be overturned. Section 922(o), the ban on new manufacture of MGs, I consider vulnerable.

I tend to agree with this, and I think it's where most of the focus should be.

Worry about Hughes first. Then, when the ownership numbers get up in the ridiculously high range you go after the rest of it.

 

[Bartholomew Roberts]

Bart, if you will re-read my post, you'll see that I said it is time to take on the Hughes amendment, not the NFA just yet.

OK, so do you think "3. Overturn Hughes Amendment" is a viable step #3? Do you see any other steps that might be desirable prior to that? Any guidance from the Court about how they feel on certain issues that you could get without risking bad precedent here?

Yes, but more important is the inclusion of the phrase "presumptively lawful". The opinion of the Court is only PRESUMING these regulatory measures("reasonable restrictions") are constitutional.

Yes; but considering that the majority opinion (and a narrow majority at that) went out of its way to make those presumptions about subjects that weren't even at issue in the case... well, that is a big clue.

 

[StarDust1]

I don't think the entire NFA would be easy to "take on."

What is likely to happen is a series of individual challenges to individual infringements. At some point, the court will have to decide where that line is.

Is a long wait and a $200 tax for an AR with a 14.5" barrel an infringement, when a 16" barrel is readily available? Does the availability of a 16" carbine mean that NFA is not infringing on RKBA because the 16" is a suitable substitute, or does the ready availability of a 16" carbine demonstrate that the NFA is an arbitrary infringement, and a tax, on a fundamental right?

Those are the sorts of challenges that could be mounted in the future. At some point, the Court will have to make the call: what IS an infringement? Note that the cases brought to it thus far have studiously avoided forcing SCOTUS to answer that question.

I find it personally egregious that local, state, & federal LEA & LEO are allowed to(in violation of the intent of the 2nd)own guns that they are then allowed to deny myself and others to possess!
There is absolutely no ambiguity, or implied privilege within the 2nd Amendment, even the hardline committed leftists now acknolwedge that the 2nd is, and always has been unambiguous, yet here we are, discussing our hopes(one way or the other)that some third party will intervene on our behalf!