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Old October 5, 2010, 11:48 PM   #1
General Tso 419
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GCA of 1968 - sporting purpose

Has the "sporting purpose" test which barred imports of military surplus rifles, ever been challenged in court and if not, why not?
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Old October 6, 2010, 02:40 PM   #2
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It hasn't been because until 2008 there effectively wasn't a 2nd Amendment except barely on paper. We're too far behind on case win-loss record at this very moment, but give it a couple of years and we might have the requisite precedence for it. We need to build up a few wins first that give us a skeletal outline to pull together the right legal argument to take down the GCA.
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Old October 7, 2010, 07:29 AM   #3
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OK, let's get this one going. Does the second admendment give us the right to buy guns through the mail or to buy third-hand foreign surplus guns?
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Old October 7, 2010, 10:13 AM   #4
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I'll help get it going too.

IMHO the "sporting purposes" test, whether for milsurp rifles or cheap small-caliber blowback handguns, is a legal non-sequitur that should not withstand any level of serious constitutional scrutiny. The 2A protects arms, not sporting goods. The only thing that either ban has done is create a vigorous domestic industry to supply the American public with semi-auto military-style rifles and inexpensive small-caliber blowback handguns. Since these types of arms are readily available for legal purchase and have been sold in huge numbers, it would be nearly impossible to convincingly argue that a compelling government or public interest is served by banning the imported versions.

However, IMHO the availability of equivalent domestic guns ironically makes this ban unlikely to be seriously contested. It's like the firearms version of the infamous "chicken tax" tariff on imported pickup trucks: it's stupid, ultimately illegal, and has long outlived its original stated purpose, but it's created a healthy domestic industry that would probably fight any potential changes to protect themselves, and foreign manufacturers wishing to circumvent it have simply set up shop in the USA. There's a similarity between a Nissan Titan and a S&W-built PPK/S or a CIA "AKlone" assembled in the USA from Romanian milsurp parts.
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Old October 7, 2010, 12:07 PM   #5
Brian Pfleuger
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Quote:
Originally Posted by BlueTrain
Does the second admendment give us the right to buy guns through the mail or to buy third-hand foreign surplus guns?
I don't believe the 2nd can be made to have even the loosest suggestion as to the acquisition method.

"Keep" unquestionably implies that there must be a method of acquiring. You can not "keep" or "bear" that which you can not acquire.

There is no rationale basis for restricting the method or place of acquisition so long as other applicable laws are followed, such as processing through an FFL.
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Old October 7, 2010, 12:48 PM   #6
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It sure would be nice if those things were made in the United States, wouldn't it?
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Old October 7, 2010, 03:11 PM   #7
Brian Pfleuger
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Quote:
Originally Posted by BlueTrain
It sure would be nice if those things were made in the United States, wouldn't it?
It would be nice but what should that have to do with being able to purchase them?
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Old October 7, 2010, 06:59 PM   #8
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Understand the import restrictions were not about keeping guns from the hands of US citizens. They were entirely about trade protectionism. US gunmakers at the time supported the import restictions. They weren't all that happy with the rest of the GCA 68, but they liked the import sections, because it was good for their business.

We've been over this before other places, but the simple truth is that the 2nd Amendment does not prevent the govt from deciding what may be imported and sold in the USA. You do not have a constitutional right to a cheap Chinese AK, surplus Mauser or Walther PPK.

The high court only found the DC ban unconstitutional because it banned a whole class of firearms, namely handguns. The Heller vs DC ruling did include language allowing restrictions, just not an outright prohibition.

The truth is, no matter how much we might wish otherwise, as long as you can buy some kind of gun in the US, to "keep and bear", our constitutional rights are not being violated. We look at any restriction as "infringed", but the current law sees it differently.
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Old October 7, 2010, 08:17 PM   #9
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Quote:
Originally Posted by 44 AMP
the simple truth is that the 2nd Amendment does not prevent the govt from deciding what may be imported and sold in the USA. You do not have a constitutional right to a cheap Chinese AK, surplus Mauser or Walther PPK.

I understand that I don't have a "right" to them. What I'm saying is that there's no logical reason for a ban. I can buy german, korean, japanese, canadian and mexican cars. I can buy korean, italian, chinese, mexican, etc. motorcycles. There's absolutely no logical reason why firearms should be any different.

I also understand that there's no logic to gun laws in general. Just like I can own (25) ten round magazines but I can't own one 12 round magazine. I can own a mini-14 in stock form but it becomes evil if it has a pistol grip.

I'm just sayin' what should be.
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Old October 8, 2010, 05:52 AM   #10
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You are correct in that there is no logic that guns should be different from those other products. But it is logical that something should be done about imports, more correctly speaking, something should be done about our trade deficit. But it doesn't make a good sound bite, as we say these days. Must be why you never hear anyone talking about it. We talk things to death that make no difference at all to the strength of the country or the economic well being of most of the people.

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Old October 8, 2010, 10:31 AM   #11
Brian Pfleuger
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Quote:
Originally Posted by BlueTrain
But it is logical that something should be done about imports, more correctly speaking, something should be done about our trade deficit.
That's true, but unlimited imports of foreign made firearms would not be amount to a blip for our trade deficit.
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Old October 8, 2010, 10:38 AM   #12
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The sole reason the government is able to get away with endlessly regulating just because it can is the court decision of US v. Carolene Products. This ruinous court decision made it so that regulations are justifiable because they supposedly have the prerogative to try to do whatever makes sense to them at the time so long as it MIGHT serve a purpose.
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Old October 8, 2010, 11:46 AM   #13
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Quote:
This ruinous court decision made it so that regulations are justifiable because they supposedly have the prerogative to try to do whatever makes sense to them at the time so long as it MIGHT serve a purpose.
We call that "rational basis," something that Heller took off the table for the 2nd Amendment. It's also worth mentioning that the government made part of their case in Carolene by claiming their interests served a "public health" issue, something that's been used to argue in favor of gun bans in the past.

That said, the "sporting purposes" clause is a tough nut to crack. As others have said, it's tied up in protectionism and market issues. Perhaps once we've built a sturdy body of 2nd Amendment caselaw in other areas, this issue could be broached.

But I don't see this as a front-burner issue at the moment. FWIW, the ATF does seem to have relaxed quite a bit on it.
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Old October 23, 2010, 05:36 PM   #14
BTR
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Yes, the ban was challenged. The challenge lost.

http://volokh.com/posts/1215395769.shtml

The importer tried to make the case too broad, and picked an excessively un PC gun, rather than something like a snubnosed revolver.
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