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October 11, 2014, 07:12 PM | #1 |
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Post 86 Machine guns may become possible. NOLO
Attorney appears to be challenging 922(o) Hughes.
Crowd funding link: http://www.gofundme.com/fmxlnk Explanation of challenge: http://www.examiner.com/article/attorney-seeks-to-overturn-federal-machine-gun-ban-on-constitutional-grounds http://www.ar15.com/forums/t_1_5/162...4.html&page=88 |
October 11, 2014, 07:38 PM | #2 |
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Rotsa ruck.
Jim |
October 11, 2014, 07:48 PM | #3 |
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pretty cool to see how much $$ was racked up in a few days. looks like a fun case.
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October 11, 2014, 08:40 PM | #4 |
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I've said it before, but here goes.
There may come a time to challenge the Hughes Amendment and/or the NFA. That time is not now. It's only been six years since we got the Supreme Court to (barely) acknowledge that the 2A protects individual firearms ownership. In recent years, they've been presented with a pressing issue in regards to carry, and they've declined to get involved. What makes us think they're going to hear a case like this? Worse yet, what if they do, and they decide against us? Our chances of a future challenge wither away. The lower courts have an easy cop out by ruling that machine guns are outside the purview of "common use" or declare them "dangerous or unusual?" We can't expect much better at the Supreme Court. Machine guns are the rhetorical third rail, and they're easy to demonize. This is not the time to be pushing the envelope.
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October 11, 2014, 09:11 PM | #5 | |
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October 11, 2014, 10:18 PM | #6 | |
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My hunch is machine guns would be very common if not for that act, but using that as an argument to repeal the act seems moot at this point since technically they still are available if you can afford it. That and the current political environment with registering "assault" rifles I agree the time to challenge that is not now.
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October 11, 2014, 10:26 PM | #7 | |
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October 12, 2014, 01:08 AM | #8 | |
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When Attorney General Cummings originally pitched the NFA to Congress, it would have also taxed handguns at $1 each. While the NRA didn't blanch much at the tax on machine guns and silencers (which were also pricey and uncommon at the time), the tax on handguns was deemed to be overreach and was deleted from the bill.
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October 12, 2014, 02:36 AM | #9 | |||||||
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The argument that an NFA Trust can somehow be outside the Hughes Amendment turns on a certain definition in the Internal Revenue Code (Title 26 of the USC), specifically 26 USC 7701. However --
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October 12, 2014, 12:33 PM | #10 |
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While I applaud the effort, and wish them well, I don't see a good outcome as likely.
Likely #1: bringing the issue into the public eye could generate a media fueled backlash ultimately resulting in INCREASED restrictions. Particularly likely increase in the original $200 tax, to adjust for inflation. Likely #2: End result, like the income tax. Although correct that it was never properly legally adopted, court rules it doesn't matter, we continue to keep doing what we are doing now. Least likely #3: We win enough that the register is reopened, all other rules remain in place. All in all, at this time, I think we risk losing more than we would gain.
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October 12, 2014, 01:28 PM | #11 |
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Funny, something else just happened in nfa that may she'd some light on this.
First, the national firearms act is a tax law. Second, it would appear that the Hughes amendment is a criminal law. If that in fact is the case, it won't happen. Why? Because while the national firearms act does indeed recognize a trust like a person, criminal law does not. The precedent is the gun control act of 1968, which specifically does not recognize a trust as a person. This is why just recently, it was decided that whomever picks up an nfa item that has been registered to a trust must go through a background check. |
October 15, 2014, 10:16 AM | #12 |
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I think you have forgotten in 1934 even the military didn't commonly use a machine gun.
where as today it is the standard issue type weapon. that is where common use comes from, not people in general commonly use. sawed off shot guns/ sbs got knocked out specifically because it wasn't commonly used by the military. I forget the case name but it was specfically called out that way. today the argument machine guns are not commonly used cannot be an argument. |
October 15, 2014, 10:21 AM | #13 | |
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Short-barreled shotguns were in common military use in WWI as trench guns, and they were used by guards in POW camps.
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October 15, 2014, 10:27 AM | #14 |
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Maybe they could compromise and just give us the 3-round burst mode. I'd be happy with that.
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October 15, 2014, 11:16 AM | #15 | |
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October 15, 2014, 11:25 AM | #16 | |
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And "in common use" is not a shoo-in. See District of Columbia v. Heller, 554 U.S. 570 (2008), at 626 (emphasis added):
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October 15, 2014, 12:21 PM | #17 |
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I totally agree now is not the time for this.
But it seems to me the strongest basis for repealing the Hughes amendment is the first clause of the Constitution, not the relatively recent "common–use test. I actually think Heller was somewhat ambiguous on the subject of "M-16s and the like", although it called a reading of the Miller decision that deemed machine guns protected "alarming". Anything that constitutes a bearable arm, that's not dangerous AND unusual, it would seem to me, would warrant protection vis-à-vie the anti tyranny purpose that has been noted and acknowledged in several federal courts. At first glance, a machine gun might seem obviously dangerous AND unusual. But stood alongside the capabilities of the US government or potential foreign threats, not so much. Along the continuum of bearable arms, no medium caliber select fire weapon touches what the government has available to them. Even though, as justice Scalia wrote, modern tanks and bombers may create a disconnect between the anti-tyranny purpose and the self-defense purpose of the Second Amendment., that fact cannot change the interpretation of the right. At this point, we have an outright ban on new, select fire weapons, which may be the greatest vulnerability of the Hughes amendment. Eventually. Last edited by maestro pistolero; October 15, 2014 at 12:30 PM. |
October 15, 2014, 01:22 PM | #18 |
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I think the other issue is, commerce vs control.
nfa was orginally a commerce control of machine guns and other weapons vs regulation against it. and while I do believe the general population feels why shouldn't we regulate, I think that with the door cracked open, if the court will hear it, that should be the argument again. it isn't a popular/population vote then, but rather is it constitutional. and while they might be against it, based on the heller vs dc, they have shown at least this bunch tries to look at it constitutionally vs just their "feelings" . might not be a great shot, but probably the best in my life time. |
October 15, 2014, 01:34 PM | #19 |
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I think under the doctrine of dangerous and unusual, we could potentially end up with a case where we find an M4 commando to be protected but not a Mk19 grenade launcher or ma deuce. How would they legally meet that definition and where would the line be? I'm not sure.
I think a case could be made for opening up the machine gun registry while keeping them NFA items while removing suppressors and SBR/SBS from NFA restrictions. Even if we still had to pay a tax and do a background check for a silencer, I think a case could be made that restricting them so heavily is illegal considering their many safety benefits and common use in countries where they're legal. Plus, the huge (almost absurdly large) growth in NFA applications has got to mean something to the court
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October 15, 2014, 01:37 PM | #20 | |
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There is a wide continuum between "one shot per trigger pull" and "empty your mag or drum or ammo box in one trigger pull". I think most would agree that a handheld 2 or 3-round burst fire-capable weapon at a reasonable price would be very attractive and would sell extremely well. |
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October 15, 2014, 04:47 PM | #21 | |||
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October 15, 2014, 05:32 PM | #22 | |
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October 15, 2014, 08:42 PM | #23 | |
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I really, really, really don't think we can win this right now.
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October 16, 2014, 12:13 AM | #24 |
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No, I'm not sure we could hold the courts to the standard of "in common use by citizens for self-defense" that they defined in Heller. They could always skirt the issue if they wanted.
What I AM certain of is that we can't hold them to the standard of "in common use by the military" since neither Heller nor McDonald states that common use by the military is a criteria for determining that a weapon can't be banned from civilian ownership.
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October 16, 2014, 05:06 AM | #25 | |
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