US v. Stewart appeal impossible now?

[voilsb]

Okay, I saw this post linked over at ar15.com, and it got me thinking ...


Now, I'm no Legal Eagle, but IF the information in the post is correct (especially points 2 and 3) ... does that mean that nobody can appeal the 9th District's ruling that the '86 registration ban is unconstitutional?


Here's the information in the post:

Current Info on Stewart Ruling

Posted By: Nevada <[email protected]>
Date: 4/13/04 19:50

Just talked to our local ATF(E) and U.S. Congressman's office about the Stewart Ruling.

Here are the current facts...>>>>> remember, this information/"facts" were provided by government employees. It may be accurate OR it may just be so much BS. Please take it for what it is worth. >>>>> All I am doing is passing along information. >>>>Please don't send me nasty e-mails saying I don't know what I am talking about.

1) ATF(E) is sitting on a boat load of applications. Current estimates put the number at over 20,000!

2) ATF(E) and DOJ did not challenge the Stewart Ruling.

3) The ATF(E) and DOJ only had 90 days to appeal the ruling. That 90 days has already come and gone. That means that the feds have missed their opportunity to take the 9th circus ruling to the supreme court. THE STUART RULING STANDS UN-CHALLENGED. Apparently the decision NOT to challenge the case came directly from Attorney General John Ashcroft.

4) ATF(E) has no idea what they are going to do. Since they are now under the U.S. Justice Dept., they have handed the whole mess off to Attorney General John Ashcroft.

5) AG John Ashcroft is to busy with things like terrorism, Congressional hearings and Homeland Security to give any attention to the Stewart/Forms 1 issue, "at this time".

6) No one is going to do anything until after the November Elections.

7) If someone with enough money wanted to take the ATF/NFA to court they would probably win.

This whole thing may not be a much as a long shot as some of the nay-sayers would lead you to believe. It looks like AG Ashcroft may be quietly stacking the deck in our favor.

NEVER GIVE UP THE FIGHT!

Shoot safe

Nevada

 

[burbanite]

I guess we'll have to wait until someone tests it to see for sure.

 

[ctdonath]

As the case stands:
Convicted felon Stewart is legally able to build his own machineguns from scratch.

Nothing in the case/ruling extends beyond Stewart, who will have a tough time building machineguns while he's in jail for threating a judge.

That both the original felony and the threat conviction are bogus are separate, largely moot, issues.

Extending this ruling will require another felon to say "hey, if Stewart can legally make machineguns so can I", followed by a non-felon saying "if felons can make machineguns, then non-felons can make machineguns", followed by another non-felon saying "if he can build it, I can buy it" - where such cases have high risk of uncooperative judges saying "shut up and serve your time".

 

[voilsb]

Sweet! Thanks for totally not addressing my question whatsoever!

Considering that I asked if anyone knew if the information was correct and, if it were, if my interpretation that nobody can appeal that decision anymore is valid, and you addressed a totally different topic.

I wasn't asking for people's opinions (which is exactly what you posted) about to exactly who the ruling applies. I was asking if the information was correct, and if it is, if it means nobody is allowed to appeal the 9th Court's decision.

If you're not addressing one of those two points, I'd appreciate you start your own thread so as to keep this one on-topic.

 

[Mal H]

A bit touchy about this don't you think, voilsb? Someone could easily have misinterpreted your post. No need to go ballistic, so to speak.

 

[voilsb]

Well, ctdonath's reply wasn't exactly soft-spoken, either, so I was just matching the tone. Besides, my question was pretty clearly stated, so it's kinda hard interpret it as "does that mean we can all register machine guns again?"

As was clearly stated in the original post, I was simply curious if it is no longer possible to appeal the 9th Court's decision.

 

[ctdonath]

Thanks for totally not addressing my question whatsoever! ... you addressed a totally different topic.

As someone who has followed the case from the beginning, and who has corresponded with Stewart, I assure you I did in fact answer your question.

Just because my answer does not fit your predetermined set of possible answers does not mean I did not answer your question.

I wasn't asking for people's opinions (which is exactly what you posted) about to exactly who the ruling applies. I was asking if the information was correct, and if it is, if it means nobody is allowed to appeal the 9th Court's decision.

Who the ruling applies to PRECISELY affects who can appeal it!
The ruling applies to Stewart. He won the case, so he cannot appeal it.
The prosecuting party - the USA gov't - chose to not appeal the case.
Nobody else can appeal this case because nobody else was involved.

The closest thing to "appeal" you can find is for someone else to get themselves convicted for the same thing as Stewart (felon making machineguns) and insist on the same treatment - but in a different jurisdiction, have them come to a different conclusion, and then demand that SCOTUS resolve the difference. ...at which point we have a ruling that felons can make machineguns. THEN you would have to get a non-felon convicted of making machineguns, and get that overturned (likely at the same level Stewart did), then get someone else the same conviction but different ruling in a different jurisdiction, and insist that SCOTUS resolve the difference favorably. THEN you'd have to go thru the same kind of BS to be allowed to sell a machinegun you make. ...and all this assumes that SCOTUS doesn't just say "buzz off" and ignore the issue (as they stand, they sure won't be going straight to an enlightened "of course anyone can make/buy/sell machineguns without interference").

If you're not addressing one of those two points, I'd appreciate you start your own thread so as to keep this one on-topic.

If you're going to start a thread, I'd appreciate you give people the benefit of the doubt, carefully read what they say, and consider that maybe they're answering your question more accurately than the responses you expect and accept.

 

[ctdonath]

ctdonath's reply wasn't exactly soft-spoken

Excuse me? Say what?

 

[BowStreetRunner]

i have read the case and the 3 judge panel held that the Congress cannot prevent someone from making a machine gun for his own use in his own state because it has nothing to do with Congress's commerce power

that holding has nothing to do with Stewart being a felon.....he still went to jail for being a felon and possessing a firearm

NOW - that precedent may or may not be binding in the 9th circuit now, sometimes a circuit has to rule en banc and then it is binding precedent (and i dont know how the 9th cir. works), so i wouldnt recommmend testing this
BSR

 

[BowStreetRunner]

here is the case:
U.S. v. Stewart

 

[voilsb]

Okay, my question was "IF the information in the post is correct (especially points 2 and 3) ... does that mean that nobody can appeal the 9th District's ruling that the '86 registration ban is unconstitutional?"

My question was worded in such a way to allow one of two possible answers: a positive or a negative.

You're response in no way said "Correct, nobody can appeal the decision anymore, as the allowed time for any appeals has expired," nor did it say "Wrong, xyz party can still appeal the decision."

Instead, you went off on how it doesn't apply to anyone whatsoever except Stewart himself and potentially to other convicted felons, and totally ignored the question of whether or not the DOJ (or anyone else) is able to appeal the decision. Since you felt it was necessary to add that information, then it would certainly have helped if you had said *why* and *how* it pertains to or superceeds the question about whether or not the case can be appealed.

However, even though from your more clear posts I gather that you agree that nobody can appeal the case, I still don't see where your first post in this thread addressed the original question. Maybe my browser is broke, but all I see is that you said the decision only allows Stewart to make machine guns and a process for what must happen for it to apply to other people. Nothing about whether or not an appeal is possible.

To summarize:
I asked "Can anyone appeal the Court's decision?"
You answered "Only Stewart is allowed to make machineguns. But he's in jail right now, so he really can't."
I responded "Neat. Now, can anyone appeal the Court's decision?"
You said "I already answered that."

A much better way to go about it would have been:
"Can anyone appeal the Court's decision?"
"No, the quoted post is correct, the DOJ has missed it's window of opportunity should they have wanted to appeal. That still doesn't mean you can make new machine guns, however. Here's why ..."
"Cool, thanks. I hadn't looked at it that way"/"Thanks, but I disagree that it only applies to Stewart"/"Thanks, but here's how I think it could still be used to challenge 922(o) for everybody"


Finally, I apologize for my tone in this thread; I'm just in an argumentative mood for some reason right now, and don't really have a reason for being so.

 

[Foreign Devil]

NOW - that precedent may or may not be binding in the 9th circuit now, sometimes a circuit has to rule en banc and then it is binding precedent (and i dont know how the 9th cir. works), so i wouldnt recommmend testing this

I don't think only en ban decisions are binding precedent.

I guess the best way to see is submit the paperwork to the ATF, and if they try to deny you, try to get an injunction, citing this case as an example.

Midanda case did not have an immediate effect either, it took people actively challenging the law and citing Miranda and Escobedo cases to implement the changes.

 

[Daedalus]

:crossing fingers:

ohpleaseohpleaseohpleaseohpleaseohplease....

 

[BowStreetRunner]

Foreign Devil,
the reason i think that en banc decisions are needed to establish precedent over the whole circuit is something i read about the creation of the 11th circuit from the 5th back in the '80s.....i think at least in the 11th circuit decisions have to be en banc before they are precedent, but that could be just because the 11th circuit also runs on old 5th circuit precedent as well! (so i could be very very wrong-happens a lot)
(ill ask a prof tomorrow if i remember)

an injuction is a good idea!
some courts give you the old cold shoulder though and tell you to go break the law before they let you petition for relief though

there is definitely some precedent to run with in this case, but if you read the dissent in the Stewart case you can see that judges have no problem ruling the other way.........i doubt the SC would take the case EVER but if they did they might actually affirm the decision given their cracking down on the commerce power of congress lately (or maybe im just being optimistic)
BSR