Variations on a Theme: The Heller Case

[ExSoldier]

I want to address this case: http://www.dcguncase.com/blog/ The Heller case that's going before the USSC could change the dynamic of the handling of the 2nd Amendment. If they rule against broadly, they could hold it as a "collective right" which will launch the gun control whackos into a frenzy of federal and state level legislation.

If they rule for (again broadly) then it overturns over 20,000 state laws.... BUT ..... this is a biggie: They have to incorporate. Right. If they do rule in favor and DO incorporate, the gun control groups might as well disband.

They could of course rule in the narrow sense and simply say that the DC gun law is unconstitutional and leave the rest of it out. But I think that would only delay a definitive ruling on the issue since a flurry of cases on point would simply flood the system until a ruling is reached.

I've seen some very interesting law journal articles suddenly looking in depth at the Second Amendment. They're shocked ... SHOCKED to state that the
2nd might actually mean exactly what the NRA has been saying all these years! I know that at least 38 states have sent amicus briefs in support. A few of the left states have done the same on the other side. There are more than a few gun right groups organizing efforts to cull examples of lawful use of force incidents by citizens against "evil-doers" nationwide which will also be presented to the court as evidence. The LOTT studies showed that there are over 2 million defensive uses of firearms each year. The vast majority don't make the police blotters or "breaking news" because no shots are fired. Display is enough to drive off the attacker. That's been the case with me more than once in my life.

Think of the impact. If the 2nd Amendment refers to a citizen militia bearing their own arms for defense of country AND self and a militia is a form of INFANTRY then the real question is what type of arms MUST such a militia be comprised of? Miller in 1939 ruled that a sawed off shotgun wasn't suitable for a militia. But how about an AR-15? How about an M-4 (select fire) or a belt fed machine gun? Mortars? Tanks? Artillery?

I got into such an argument on Free Republic (http://www.freerepublic.com) about this issue. I maintained that the right would cover any and all firearms that could be handled and carried by a lone infantryman and had fairly pinpoint precision. That would cover a lot of weapons. All the way past the current Squad Automatic Weapon (SAW) of today's infantry past the M60 machine gun that my guys carried. They were capable of accurate fire out to about 300 meters. Beyond that say out to about 800 meters they gave a circular "beaten zone" that was perhaps 5 meters in diameter. Thus I ruled that vehicle based weapons platforms such as motorized artillery or mortars or TANKS would be out of bounds.

THEN somebody brought up that part of the Constitution that regards the issuing of Letters of Marque, basically legalizing the creation of private navies or armies that would extend the reach of the US government via the private sector. That was the basis for the Privateers from the era of Sir Francis Drake and I'll bet it's the basis by which companies like BLACKWATER exist currently. Imagine Bill Gates with his own private aircraft carrier? Naaaaw there are limits even to HIS access to capital. Still, it's an interesting premise to explore.

 

[jlbraun]

I've long maintained that the 2nd describes a separation between arms and ordnance.

It nicely short circuits any antis whining about Bubba owning a nuclear weapon, while still allowing me to buy that PKM I've been wanting.

 

[lacoochee]

I largely agree with you but:

Miller in 1939 ruled that a sawed off shotgun wasn't suitable for a militia

-- This wasn't the ruling, they remanded the case back to the Circuit Court stating that no evidence was produced showing a military purpose for sawed off shotguns (they were of course used by the military as trench guns but because the plaintiff had died, the case died with him) and SCOTUS skated.

Thus I ruled that vehicle based weapons platforms such as motorized artillery or mortars or TANKS would be out of bounds.

-- I would argue this one as well, it was not uncommon in that period for merchant ships to carry cannon for defense and for use as aggressors when they had attained letters of marque from the government. Hell for that matter you could argue that light cavalry using lance and pistol was the equivalent of mechanized infantry. So vehicle based weapons were certainly well within the bounds of a militia as it was then understood, any ruling based on historical fact would have to include mortars, anti-tank weapons, grenades, automatic weapons otherwise the citizenry would be at a severe disadvantage if faced with even the weakest of military forces.

Anyway digressing, nice post.

 

[86thecat]

If it is decided as a collective right wouldn't the Militia Act of 1792 bestow that right back to the individuals named as members of the unorganized militia? If SCOTUS decides the 2ndA only protects the Nat'l Guard will the next step be legal action to enforce our rights under the Militia Act?

 

[Roccobro]

Reading this thread just warms my heart. I'm going to dream a whole bunch for now because we know us peasant usually don't get much enjoyment form laws now days.

Justin

 

[Aguila Blanca]

I got into such an argument on Free Republic (http://www.freerepublic.com) about this issue. I maintained that the right would cover any and all firearms that could be handled and carried by a lone infantryman and had fairly pinpoint precision. That would cover a lot of weapons. All the way past the current Squad Automatic Weapon (SAW) of today's infantry past the M60 machine gun that my guys carried. They were capable of accurate fire out to about 300 meters. Beyond that say out to about 800 meters they gave a circular "beaten zone" that was perhaps 5 meters in diameter. Thus I ruled that vehicle based weapons platforms such as motorized artillery or mortars or TANKS would be out of bounds.

You are aware, are you not, that in many of the colonial militias the guy who got to play Colonel was the wealthy guy who owned the cannon. Why assume the RKBA is limited to those arms that can be carried by an individual infantryman?

 

[Deavis]

If they rule for (again broadly) then it overturns over 20,000 state laws

The USSC wrote the question they will consider carefully. It will take many years after a positive tuling (which I hope s reached) to bring back the correct environment for gun owners. Until then, we should remember what the scope this case covers and be realistic in our expectations. Challenges to the NFA and 20,000 other gun laws are a ways out. If only more gun owners were like Gura and less like the JPFO

 

[frankie_the_yankee]

Let's stay in the real world. SCOTUS isn't going to overturn the NFA or anything like it. That question is not before them and they will not go there.

SAWs, tactical nukes, tanks, etc. will remain off limits to private ownership forever, and it's a good thing too. That's all we need is for Al Qaeda operatives to infiltrate thorugh our open borders, buy tactical nukes in gun stores, (or vending machines) and start lighting them off.

This thread might "warm one's heart", but let's make sure it doesn't warm it to 10,000,000 degrees F.

My predictions:

SCOTUS will rule that the 2A is an individual right.

They will render portions of DC's gun laws (the gun bans) unconstitutional.

They will not rule owner licensing or gun registration to be unconstitutional in DC or anywhere else. (Not this time anyway.)

They will not incorporate the 2A at the present time because there is no need for them to do so in the case before them.

Their ruling will apply to pistols, rifles, and shotguns. The NFA will be completely unaffected.

Their ruling will allow for all sorts of "reasonable" regulations regarding the purchase and possession of guns, and the time, place, and manner in which they may be legally carried.

Subsequent lawsuits will use this ruling as a precedent to invalidate local rules in Chicago, NYC, and a few other places. These cases may achieve the milestone of incorporation.

Over time, "shall issue" laws may reach the few states that are currently "holdouts" as a result of incorporation.

Background checks and other reasonable regulations will be unaffected.

There is a chance that their ruling might invalidate or limit current rules in effect in national parks, Army Corps of Engineers property, and some other federal property. Incorporation is not necessary to do this because the properties are directly under federal control.

 

[hvengel]

SCOTUS will rule that the 2A is an individual right.

I agree.

They will render portions of DC's gun laws (the gun bans) unconstitutional.

I also agree.

They will not rule owner licensing or gun registration to be unconstitutional in DC or anywhere else. (Not this time anyway.)

Because this question is not before the court and neither side has asked the court to rule on this issue.

They will not incorporate the 2A at the present time because there is no need for them to do so in the case before them.

Again this question is not before the court so they can not and will not rule on it.

Their ruling will apply to pistols, rifles, and shotguns. The NFA will be completely unaffected.

Again the NFA question is not before the court so they will not rule on it.

Their ruling will allow for all sorts of "reasonable" regulations regarding the purchase and possession of guns, and the time, place, and manner in which they may be legally carried.

They may rule the "reasonable" regulation is permissible but the only question relating to restrictions and their reasonableness before the court are restrictions that amount to complete bans. So this will be the only type of restrictions that will be ruled on this time. All others will still be an open unanswered question until such time that each specific issue it litigated.

This court will do it's best to keep the ruling as narrow as possible. First this is one of the things that the more conservative judges on the court try to do in every case they hear and second the anti members of the SC will want to do this so as to limit it's usefulness to our side as much as possible. So expect a very narrow ruling that leaves (almost) every question of law related to gun rights unanswered beyond the specific issues in this case.

 

[OhioPaints]

I do not see a downside to the issue. At best, the SC affirms that the Second Amendment gives us the right to arms.

At worst, they rule it is a collective right, which is exactly the way Congress and a number of legislatures have been writing laws.

We don't know if they will pull a rabbit of a hat, but the momentum seems to be in our favor.

Ken

 

[Jim March]

If I may point out: there HAVE been times when the Supremes ruled very broadly, deliberately, on a narrow issue brought before them.

The most expansive I know of personally is Dred Scott (1856). At issue was laws in Northern states that made it illegal to be an escaped Southern slave (and hence liable to be shipped back). The court didn't just support the anti-slave measure. They went WAY further, proving that the US had always been a racist nation and therefore, racist laws were OK. It was a morally horrendous but legally correct decision (go read it before disagreeing with me on that last).

I know there's other examples out there...

 

[Harve Curry]

Infringed
How will the Supreme Court deal with that word?

 

[Brett Bellmore]

t was a morally horrendous but legally correct decision (go read it before disagreeing with me on that last).

I've read it, though some time ago. IMO, there's no way to square their "negroes aren't people" stance, with the actual legal history, the fact that there had been free negroes and enslaved whites. The Constitution didn't distinguish between black and white, it distinguished between free and unfree, and clearly referred to slaves as people. So I'd characterize the decision as morally horrendous, AND going considerably beyond what could be justified as legally correct.

The Constitution was a mixed bag on slavery, not nearly as nasty as the slave owners would prefer, not nearly as positive as the abolitionists would have liked. And much to the annoyance of racists, color blind. The Court stripped out everything that was offensive to the slave owners, and I believe they knew what they were doing.

And even so, couldn't help admitting that if they'd acknowledged the black man's personhood, he'd have a constitutional right to be armed.

Infringed
How will the Supreme Court deal with that word?

I expect they'll studiously ignore the fact that it doesn't mean "utterly abolish", and conclude that anything short of utterly abolishing the right doesn't constitute an infringement. Look, the Supreme court is NOT in the business of flatly telling Congress that they can't do things. They haven't been in that business since the 1930's. Look at the 1st amendment's "Congress shall make no law", and their ruling on the McCain/Feingold campaign censorship act. Does that look like no law to YOU?

If the Court reads the 2nd amendment as strictly as they read anything in the Constitution, if they apply the strictest scrutiny they apply to anything, they're going to give a thumbs up to quite a bit of gun control. Because they don't regard the Constitution as binding law, just as a list of strong suggestions, which can be ignored any time Congress or the President can gin up a plausible excuse.

 

[frankie_the_yankee]

Infringed
How will the Supreme Court deal with that word?

I expect they'll studiously ignore the fact that it doesn't mean "utterly abolish", and conclude that anything short of utterly abolishing the right doesn't constitute an infringement. Look, the Supreme court is NOT in the business of flatly telling Congress that they can't do things. They haven't been in that business since the 1930's. Look at the 1st amendment's "Congress shall make no law", and their ruling on the McCain/Feingold campaign censorship act. Does that look like no law to YOU?

If the Court reads the 2nd amendment as strictly as they read anything in the Constitution, if they apply the strictest scrutiny they apply to anything, they're going to give a thumbs up to quite a bit of gun control. Because they don't regard the Constitution as binding law, just as a list of strong suggestions, which can be ignored any time Congress or the President can gin up a plausible excuse.

While it hurts to read it, I think you are exactly right on the above.

 

[divemedic]

The statement that SAWs and tanks will be illegal forever is false. They aren't illegal now. The state of the NFA now is ripe for a challenge, if this case goes the way I think it will. However, that will be a case for a different day, as that issue is not now under consideration.

 

[Harve Curry]

It could be that INFRINGED will make the justices ill. It is a good word, short and to the point. Hard to argue that. It's defintion has not changed in over 200 years, unlike so many other words.

Double tap became to shoot twice .
Harvest is replacing shoot or kill.
Gay does'nt mean happy anymore.
Kids came home from school and I learned that that's pimping now means something great or neat.
But infringed means exactly that, and that's good for us.

 

[frankie_the_yankee]

The statement that SAWs and tanks will be illegal forever is false. They aren't illegal now.

Talk to me when you can buy them from vending machines.

The state of the NFA now is ripe for a challenge, if this case goes the way I think it will.

IMO, there is ZERO chance that the NFA will be challenged as a result of this case or of any other case. The constituency to do so is so tiny that it might as well be non-existent. The constitutional basis for such a challenge is also nearly non-existent.

And stare decisis comes into play here. The NFA represents what is commonly referred to as "settled law". No foreseeable Court is suddenly going to rule that the government has no power to tax and register machine guns, let alone tanks and other crew served weapons.

Let's try to keep it in the real world.

 

[PTK]

frankie_the_yankee said

there is ZERO chance that the NFA will be challenged as a result of this case or of any other case.

If the SCOTUS affirms the 2nd to be a right of the people and thusly overthrows the ban on functional firearms in DC, I will be filing a Form 1 to make a new machinegun, I will be denied, and I will bring it to court.

Since we're keeping it to the real world, and all.

 

[frankie_the_yankee]

If the SCOTUS affirms the 2nd to be a right of the people and thusly overthrows the ban on functional firearms in DC, I will be filing a Form 1 to make a new machinegun, I will be denied, and I will bring it to court.

Since we're keeping it to the real world, and all.

You surely can bring it to court. But I have a few questions.

Why a machinegun? Why not a tank?

Why not simply try to buy a new MP-5? That sounds easier than making a gun yourself.

Also, trying to buy one would not necessarily require a challenge to the NFA. A much easier path, and one with a greater probability of success IMO, would be to challenge the FOPA of 1986 that closed the machinegun registry.

Have you been admitted to practice before the Supreme Court?

Will you be acting as you own attorney or will you be retaining counsel?

If you lose at some lower court level, what makes you think the SCOTUS will take the case?

Also, why do you automatically assume you would be denied? It's not illegal to manufacture machineguns. After all, someone has to do it. The military and police have to get them from somewhere, right? So if you want to start such a business, I would think that as long as you get the correct licenses you would be good to go.

Be sure to keep us posted on how far you get.

 

[Roccobro]

Also, why do you automatically assume you would be denied? It's not illegal to manufacture machineguns. After all, someone has to do it. The military and police have to get them from somewhere, right? So if you want to start such a business, I would think that as long as you get the correct licenses you would be good to go.

I don't think he meant "getting a license to make machine guns", I think he meant "a brand spankin' new machine gun for me to own but isn't in the pre-86 pool."

Justin

 

[frankie_the_yankee]

I don't think he meant "getting a license to make machine guns", I think he meant "a brand spankin' new machine gun for me to own."

Maybe. But look at his original statement.

If the SCOTUS affirms the 2nd to be a right of the people and thusly overthrows the ban on functional firearms in DC, I will be filing a Form 1 to make a new machinegun, I will be denied, and I will bring it to court.

I do not know what a "Form 1" is. But he says he would be doing it, "....to make a new machinegun".

To me, that sounds like he was intending to manufacture one.

Now I've never been inclined to get into the machinegun business. But I think if I wanted to I would simply gather up the needed investment capital, hire a lawyer to guide me through the process of getting any required federal, state, and/or local government approvals and/or licenses, and I'd be good to go.

I certainly wouldn't expect to be "denied".

 

[Roccobro]

I will be filing a Form 1 to make a new machinegun...

If you want to manufacture NFA items to sell, you need to acquire a manufacturing FFL (07) and a manufacturing SOT (02).

If you intend to make NFA items (not mgs) for yourself, you need to file the form 1 and pay the making tax on each item.

Here is a section of the ATF FAQ.
N. MACHINEGUNS - NATIONAL FIREARMS ACT (NFA)
(N1) May an unlicensed person make a machine gun? [Back]
Generally, no. However, if documentation can be provided, along with the Application to Make a Machinegun, which establishes that the weapon is being made for distribution to a Federal or State agency, an individual may be permitted to make the machine gun.
[18 U.S.C. 922(o)(2), 27 CFR 479.105(e)]

"Making a MG" can mean dropping in a non registered F/A trigger pack into a host S/A weapon, literally "making' your own MG from pipes and parts (sten kits come to mind), or obtaining a brand new MG from a known MG manufacturer.

Form 1's are generally used to register a suppressor or make an SBR. You can NOT make a post May '86 MG for personal use without being an SOT (Special Operation Tax). SOT's can NOT keep samples for their own collection after the expiration of their license. Remember- just because somebody *may* have done it in history, doesn't mean it was legal and one will get away with it today. And SOT fees are in the thousands per year.

Oh, and it's always possible I could be completely wrong.

Justin

 

[PTK]

frankie_the_yankee

Your most recent posts have revealed a few things to me. One, you simply do not know the areas of law you're arguing about. Two, you like to argue for the sake of arguing.

For example, I can buy a fully functional tank, MINUS the machinegun(s) (922(o) prevents this). I cannot buy or build a nuclear bomb. It's not the NFA that prevents a nuclear bomb from being built/purchased, it's a variety of other laws, much like how SAMs like the Stinger are illegal. Repealing the NFA entirely would not change that, nor would it make tanks available "in vending machines".

Tanks are, and will be, expensive. If one has the money, you can buy a tank right now.

Machineguns are not expensive, speaking in terms of comparison to other small arms. A fixed pool (922(o) again) has stagnated the supply while demand has risen in recent years. The result is that the belt-fed machinegun to go on a tank can very well cost more to a civilian than the tank, main gun, and 25 rounds for the main gun.

A STEN gun can be made for literally less than a Hi-Point carbine. They currently sell for $4,000-$6,500. This would be the part of the law that I'm going to challenge - the manufacture of new machineguns for civilians.

Now that's out of the way, I'm done in this thread.

 

[ilbob]

IMO, there is ZERO chance that the NFA will be challenged as a result of this case or of any other case. The constituency to do so is so tiny that it might as well be non-existent. The constitutional basis for such a challenge is also nearly non-existent.

Unless someone makes a good argument that MGs are arms as in "the right to keep and bear arms".

And stare decisis comes into play here. The NFA represents what is commonly referred to as "settled law". No foreseeable Court is suddenly going to rule that the government has no power to tax and register machine guns, let alone tanks and other crew served weapons.

The real thing that is interesting about the DC case is that it is very close to the 1986 ban on new MGs being registered. While neither law actually flat out bans any firearms, both come pretty close.

AFAIK there is no ban or tax on the private ownership of tanks at all. The weapons systems may be hard to come by or effectively banned, but tanks themselves are not.

 

[frankie_the_yankee]

frankie_the_yankee

Your most recent posts have revealed a few things to me. One, you simply do not know the areas of law you're arguing about. Two, you like to argue for the sake of arguing.

If you weren't so bent on insulting me, you may have realized that I simply don't bother with irrelevencies. And I have little sympathy for crazy ideas.

For example, I can buy a fully functional tank, MINUS the machinegun(s) (922(o) prevents this).

Without its machineguns and howitzer, a tank is just a big up-armored off road vehicle. Of course anyone can buy a de-milled tank if they have the money and a place to put it. How long did it take you to come up with that?

The context here is how the Heller case might affect peoples' ability to keep and bear arms, and in particular, certain types of arms. I guess you missed that minor point.

I cannot buy or build a nuclear bomb. It's not the NFA that prevents a nuclear bomb from being built/purchased, it's a variety of other laws, much like how SAMs like the Stinger are illegal.

Who cares? You can't buy them. And no matter what happens in the Heller case, you won't be able to.

Repealing the NFA entirely would not change that, nor would it make tanks available "in vending machines".

De-milled tanks could be sold in vending machines right now if someone wanted to build a big enough machine and fill it with de-milled tanks. Who cares?

Tanks are, and will be, expensive. If one has the money, you can buy a tank right now.

A de-milled tank? Sure. But as I said, who cares?

Some people seem to think that if and when The Court overturns the DC handgun ban, they will be able to go out and buy fully-functional M1 Abrahms tanks complete with howitzer, machineguns, and everything. Some believe that the 2A gives them the right to do so, and that the only reason they can't do it now is because that right is being "infringed".

Others have the niave idea that a Heller "win" will instantly and automatically overturn every gun law in the country that they (in their own minds) believe to be an infringement of the 2A (which is every gun law in the country).

Are you one of them? If so, you're in for a big letdown.

Machineguns are not expensive, speaking in terms of comparison to other small arms. A fixed pool (922(o) again) has stagnated the supply while demand has risen in recent years. The result is that the belt-fed machinegun to go on a tank can very well cost more to a civilian than the tank, main gun, and 25 rounds for the main gun.

No kidding. This is news?

A STEN gun can be made for literally less than a Hi-Point carbine. They currently sell for $4,000-$6,500. This would be the part of the law that I'm going to challenge - the manufacture of new machineguns for civilians.

Like I said, go fo it. Let us know how far you get. My prediction: Nowhere.

BTW, I notice that you left a lot of unanswered questions on the table. Let me repeat some of them to remind you.

Will you be acting as you own attorney or will you be retaining counsel?

Have you been admitted to practice before the Supreme Court?

If you lose at some lower court level, what makes you think the SCOTUS will take the case?

You might consider scouting around for a new domicile for when your case really heats up. I'd suggest something with very small windows located way up on top of a big pointy rock somewhere.

And after your last couple of posts, you might think about getting an IR thermal imaging night vision system. Scan the bushes and woods around your house once in a while, You'd be amazed at what you might see. (I'm not kidding. )