Will this get overturned?

[Dannix]

No right to bear unregistered machine guns, federal court says
http://www.nraila.org/News/Read/InTheNews.aspx?ID=13244

Just curious if you guys think this will get overturned, post fact.

 

[davec921]

As the law stand right now I dont think the guy has much to stand on.

 

[JohnKSa]

On what basis could it possibly be overturned?

 

[kingpin008]

On what basis could it possibly be overturned?

+1. Seems pretty cut and dried to me.

 

[esquare]

The unregistered part of the equation seems pretty well sealed, but I'm thinking that after Heller, the 86 ban on manufacturing/registration of new NFA machine guns for private use could stand to be challenged. Heller stated that it is unconstitutional to ban an entire class of weapons, and the 86 manufacturing ban has essentially banned them from possession by the average person (the cost becoming prohibitive).

I think full auto seems to be one of the items way down on everyone's list of things to fix, but I think it should be challenged at some point as it effectively puts a ban on most future weapons innovations for the general public, which is not constitutional. Plus, they are very fun to shoot!

 

[wishin]

No right to bear unregistered machine guns.......

It all goes to government's ability to regulate your right to bear arms. Not what the founders intended in my opinion.

 

[Grey54956]

While the court would rule that there is no right to bear unregistered machine guns, the gov't HAS effectively banned an entire class of weapons by locking out the machine gun registry.

If the weapon can't be registered because the gov't won't allow registration, it is effectively banning manufacture or transfer of the device. If gov't wants the device registered, then it needs to allow fair and adequate access to registration. Going back to Miller, it can be shown that full-auto weapons, short barrelled shotguns, and silencers are all common military items, and would be suitable for militia use and should therefore be available to the people. If simple registration is a reasonable and constitutional requirement for such devices, the gov't must allow for such registration.

 

[JohnKSa]

Heller stated that it is unconstitutional to ban an entire class of weapons, and the 86 manufacturing ban has essentially banned them from possession by the average person (the cost becoming prohibitive).

Banning is NOT the same as registration nor is it the same as making something expensive. Heller didn't address registration at all nor any other issues relating to the legal difficulty or expense of legally obtaining the firearm of one's choice.

As of now there are no laws or rulings that I am aware of that could be used to overturn ruling in the case in question or to challenge the current NFA laws.

If the weapon can't be registered because the gov't won't allow registration...

The government will allow registration of guns in that general class, they just have to be existing guns. For it to be a ban they would have to prevent a person from registering (legally owning) ANY gun in the entire general class. That's what Heller said.

As far as I can see this is all just wishful thinking based on attempt to redefine the word "ban" to see if it's possible to get Heller to apply. It doesn't.

 

[RP88]

The government will allow registration of guns in that general class, they just have to be existing guns. For it to be a ban they would have to prevent a person from registering (legally owning) ANY gun in the entire general class. That's what Heller said.

The now overturned DC handgun ban:

The law banned residents from owning handguns, automatic firearms, and high-capacity semi-automatic firearms, as well as prohibited possession of unregistered firearms. Exceptions to the ban were allowed for police officers and guns registered before 1976. The law also required firearms kept in the home to be "unloaded, disassembled, or bound by a trigger lock or similar device"

So with that in mind, a challenge to the '86 amendment actually has something to stand on, since the amendment works just like how DC's ban did.

 

[JohnKSa]

...since the amendment works just like how DC's ban did.

I think you need to look into what the original DC law actually said as it pertained to handguns.

According to the SCOTUS ruling the DC Laws amounted to a "total ban on handguns" and they "prohibited the registration of handguns". Neither of those characterizations could accurately apply to the NFA laws which do not totally ban any group of firearms nor do they prohibit the registration of any total group of firearms.

Furthermore, part of the impetus behind the Heller ruling had to do with the part of the law that required that the "firearms kept in the home to be "unloaded, disassembled, or bound by a trigger lock or similar device"" which has no analog in the NFA laws.

Again, in my opinion, this is all just wishful thinking based on attempt to redefine the word "ban" to see if it's possible to get Heller to apply. It doesn't.

 

[divemedic]

Actually, I will be interested to see how the courts handle this. The Miller decision said that a short barrel shotgun had no militia use, so it was not covered by the 2A.

Now this decision is convicting a man for possession of M-16 rifles. (which is the issue weapon of the militia) I want to see how the courts resolve this. Will they overturn Miller? On what grounds?

Keller said that a person does not need to be in militia service to have the RKBA under the 2A.
Miller (kind of) states that a weapon must have militia use to be eligible for the 2A.

Logically, this means that a citizen may own whatever weapons the militia has, even if unconnected to militia service.

Not only that, but 922(o) has many parallels to the DC handgun ban. The NFA requires a person to register all machine guns, but prohibits a person from being able to do so if the machine gun is made after 1986. Since guns, like all gadgets, break over time, this will inevitably result in an eventual ban on all machine guns.

 

[JohnKSa]

The Miller decision said that a short barrel shotgun had no militia use, so it was not covered by the 2A.

Miller's been around for over 70 years. There's no reason to assume it's suddenly going to be the end of NFA or the 1986 ban.

Logically, this means that a citizen may own whatever weapons the militia has, even if unconnected to militia service.

Ditto. Miller is nothing new. The idea that a court case from before WWII is somehow now going to eliminate a 24 year old law doesn't make sense.

Since guns, like all gadgets, break over time, this will inevitably result in an eventual ban on all machine guns.

A legal owner of a machinegun can legally repair it. The fact that he chooses not to or can't afford it doesn't have any bearing on the law. If it ever gets to the point that there are none left then, at that point, someone might be able to mount a challenge under Heller. But remember that part of the rationale behind Miller (and therefore Heller) is that they apply to arms "in common use at the time".

It's going to be hard to base a challenge involving machineguns on rulings applying to arms "in common use at the time".

 

[Ryder]

Depends on how "class" is defined.

Scientifically speaking there are 8 biological classification's of living things in the following hierarchal order:

Life
Domain
Kingdom
Phylum
Class
Order
Family
Genus
Species


Now match those up to something like the following (no particular order):

Manufactured Object (guns, cars, drills, lathes, etc)
Weapons (firearms, knives, nun-chucks, axe, etc)
Type (pistols, rifles, shotguns, etc)
Manufacturer (Ruger, Remington, Glock, etc)
Action (Semi-auto, auto, manual loading, etc)
Composition (steel, plastic, ceramic, etc)
Effective Lethality (caliber, range, energy, barrel length, sighting system, etc)

You see the problem. It is possible (being the double talking lawyers that they are) they will simply not file automatic weapons into a "class".

We know for sure that they've assigned handguns as a class. That means rifles, and shotguns are also a likely a class. They were viewing class morphologically, by outward appearance rather than action type. Since there can be full-auto rifles, shotguns, and pistols it makes logical sense (to me) that automatics are not a class unto themselves but something other. Even though the government has in fact defined them to be a separate class by law :banghead:

 

[Blakenzy]

The government will allow registration of guns in that general class, they just have to be existing guns. For it to be a ban they would have to prevent a person from registering (legally owning) ANY gun in the entire general class. That's what Heller said.

The Government accepts registration of guns in that general class, so long as they have already been registered previously. "you can register it, only if it's already registered" :banghead:

I am sorry, but you are in denial. The Hughes Amendment is a defacto BAN on all automatic weapons made after or otherwise not registered prior to 1986. The Government will NO LONGER accept the legal ownership of new firearms in that general class, effectively banning from Citizens any new technology developed after that date.

Think: You cannot own a repeating firearm made after or not registered prior to 1886.

100 years from now, Full Auto will be synonimous with Museum Piece.

It IS a BAN on the class of firearm most pertinent to "militia use", whatever you construe from that.

 

[Cosmoline]

Just because a ban grandfathers in preexisting items (beer, firearms, or whatever) does not stop it from being a ban. You don't have to run out of alcohol before you challenge prohibition.

That said, I expect the Supremes will ultimately find a way to uphold the NFA and the ban on new full autos.

 

[divemedic]

It's going to be hard to base a challenge involving machineguns on rulings applying to arms "in common use at the time".

The M16 IS in common use. There are over 1 million of them assigned to the militia.

Miller's been around for over 70 years. There's no reason to assume it's suddenly going to be the end of NFA or the 1986 ban. Ditto. Miller is nothing new. The idea that a court case from before WWII is somehow now going to eliminate a 24 year old law doesn't make sense.

Just because Miller has not yet been used to overturn the machine gun ban doesn't mean that it never will be. When Brown v Board of Education eliminated segregation in 1954, it overturned segregation laws going all the way back to Plessy v Ferguson from 1896. That is a reversal of 58 years of racial segregation.

It is not unprecedented to see the SCOTUS overturn decades of legal decisions.

 

[RP88]

I think you need to look into what the original DC law actually said as it pertained to handguns.

I was speaking directly on the ban on new machine guns i.e. the Hughes amendment that makes it impossible to buy new machine guns. That part of the NFA is easy to challenge under Heller, since THAT part of it essentially works like the DC ban did. But, as you said, it'll take a long time to take down the actual NFA itself - if possible.

 

[Frank Ettin]

One thing is for sure, and the opinions of the folks on this board is not sufficient to get the Hughes Amendment tossed out. As appealing as some of the arguments advanced here might be, they really don't mean anything unless SCOTUS buys one of more of them.

So, if anyone has an extra couple of million dollars lying around, perhaps he'd like to pursue this in the courts.

My own sense is that dumping the Hughes Amendment is wishful thinking. A lot may depend on what level of scrutiny the courts adopt for the review of regulations under the 2nd Amendment. But even assume the standard is strict scrutiny, I'm not inclined to bet against the government making a case that limiting access to fully automatic firearms serves a compelling interest.

 

[JohnKSa]

Without addressing each objection individually, here are the problems.

Heller applies to a VERY general class of firearms, handguns. If one follows that reasoning then there could be 2 general classes (handguns and long guns) or one might even stretch it to 3 general classes (handguns, rifles and shotguns).

One MIGHT even be able to get an agreeable court to define further classes but now we're really stretching things.

ASSUMING (and that's a big assumption) that it would be possible to get machineguns declared to be one general class, in and of itself, then one would have the FIRST step in place to use Heller to defend the ownership/possession of them.

The idea that it would be possible to get "new machineguns" or "machineguns made since 1986" to be declared as "a general class of firearms" in the same sense that handguns are a "general class of firearms" is just plain nonsense. It's going to be hard enough to get ALL machineguns declared as "a general class of firearms". Ryder is, unfortunately, spot on.

Ok, that's the FIRST step.

Now the second step. Heller and Miller both defend firearms "in common use at the time". Miller is specifically talking about military firearms in common use at the time, but as pointed out, Miller was in place when the 1986 law was passed. The idea that it's going to now be our salvation is pretty far fetched.

Heller, on the other hand, is specifically talking about civilian firearms (specifically civilian self-defense firearms) in common use at the time and it's going to be a very hard sell to stretch that to machineguns. It would be hard to think of a type of firearm that's used less commonly for self-defense at this time.

Just because Miller has not yet been used to overturn the machine gun ban doesn't mean that it never will be. When Brown v Board of Education eliminated segregation in 1954, it overturned segregation laws going all the way back to Plessy v Ferguson from 1896. That is a reversal of 58 years of racial segregation.

It is not unprecedented to see the SCOTUS overturn decades of legal decisions.

Using a new decision to overturn old laws is exactly the reverse of what you're talking about when you imply that Miller (1939) could be used to overturn the 1986 law. What you're talking about is using a 71 year old SCOTUS decision to overturn legislation passed half a century later. Find me an example of something like that and you may have something.

Finally, I'm not saying that the 1986 ban isn't a ban. I'm saying it's not a ban in the same sense as the DC ban was a ban. And therefore Heller won't apply in the same way. A total ban on an entire general class of firearms (i.e. handguns) isn't the same as a ban on new firearms in a particular subclass (fully automatic repeaters).

 

[Grey54956]

Frankly, they could just open up the registry and collect tax revenue. I am sure there would be some money to be had... They could use it to pay for health care...

 

[General Geoff]

A former commander in the Tennessee State Guard has lost an appeal to overturn his conviction for trying to provide his soldiers with homemade machine guns for possible use in defending the state. On Wednesday, a federal appeals court in Cincinnati threw the case out of court. “Whatever the individual right to keep and bear arms might entail, it does not authorize an unlicensed individual to possess unregistered machine guns for personal use,” said the three-judge panel of the Sixth US Circuit Court of Appeals.

This court does not seem to understand the concept behind rights. The Constitution does not authorize the federal government to regulate machine guns at all.


edit; to be nitpicky.. this court's decision depends on the assumption that registration of machine guns is constitutional, and on the assumption that an individual must somehow be licensed to own a machine gun. Neither assumption is true, the court should have been way more diligent in their research. These judges are a disgrace to the American Justice System.

 

[RP88]

ASSUMING (and that's a big assumption) that it would be possible to get machineguns declared to be one general class, in and of itself, then one would have the FIRST step in place to use Heller to defend the ownership/possession of them.

Considering that they are legally defined as and treated differently than the rest of the general firearms classes, it could be safe to assume that fully automatic weapons are their own class legally.

 

[JohnKSa]

...it could be safe to assume that fully automatic weapons are their own class legally.

That's not enough. You'd have to get them to agree that NEW (manufactured since 1986) machineguns are their own class. And not just a legal class of firearms but also a general class of firearms in the same basic way that "handguns" is a general class of firearms.

 

[divemedic]

That's not enough. You'd have to get them to agree that NEW (manufactured since 1986) machineguns are their own class. And not just a legal class of firearms but also a general class of firearms in the same basic way that "handguns" is a general class of firearms.

So by your logic, a law that prohibits the possession of all handguns manufactured after March 2010 would be constitutional?

Miller can be cited as authority- it happens every day. The court in Heller cited old cases, such as United States v. Cruikshank (1875), Presser v. Illinois (1886), and United States v. Miller (1939). Just because a decision is old does not mean that it cannot be used as a basis for a decision.

The DC ban was passed in 1976. It was struck down in 2008. Using Miller as authority. That ban was 10 years older than the one we are looking at here.

"So it is OK to ban books, as long as you allow people to own magazines?" the closing of the registry in '86 is analogous to DC's closing of the pistol registry in '76. Effectively a ban, just with a time delay.

Shoot, the Chicago gun case is attempting to overturn Presser v Illinois as we speak.

 

[JohnKSa]

So by your logic, a law that prohibits the possession of all handguns manufactured after March 2010 would be constitutional?

By MY logic? Hardly. This isn't about what I believe. It's not about what you believe either.

It's about what SCOTUS believes and all we have to go on is their rulings.

Based on my understanding of what Heller says and on how Miller has been interpreted and applied over the last 70+ years, yes, I think it would probably "fly".

Miller can be cited as authority- it happens every day.

I believe that's exactly my point. It's cited as an authority "every day" for the last seven decades and yet no one has been able to use it to overturn the 1986 law.

The DC ban was passed in 1976. It was struck down in 2008. Using Miller as authority.

Using some aspects of Miller. It's hardly accurate to say that Miller was the authority used to strike down the DC ban.

...the closing of the registry in '86 is analogous to DC's closing of the pistol registry in '76. Effectively a ban, just with a time delay.

I'm just telling you what Heller says.

When the machinegun ban amounts to "a total ban" on machineguns and when the government "prohibits the registration" of all machineguns AND when someone can get SCOTUS to agree that "machineguns made after 1986" is general class of firearms analogous to "handguns" then Heller will apply.

Until then it doesn't apply as far as I can see. And Miller, as it was interpreted and used in Heller, doesn't apply either.