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Old July 2, 2020, 09:58 AM   #1
Tennessee Gentleman
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Legal Question about Heller and Beto

I apologize if this has been covered before but I wanted to ask the legal observers on the board about this.

Joe Biden seems to be leading in the polls right now. If he is elected he has said he would have Beto O'Rourke head up his gun control efforts. Beto, as we know, wishes to confiscate (thru a "buyback") the AR-15 and other so called "assault weapons."

So my question is with the current SCOTUS, and a Dem take over of the Senate, would such a confiscation law pass SCOTUS muster? If such a law passed, would it be delayed until the SCOTUS could rule on it?

Just curious how it would play out legally.

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Old July 2, 2020, 10:22 AM   #2
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It doesn't matter which party is in the white house, or which party controls the Congress. Your question is whether or not a law banning AR-15s and similar scary, military-looking firearms and calling for their confiscation would pass review by the Supreme Court.

The answer is clearly that it would depend on the specifics of the case, because the Supreme Court doesn't just look at new laws and decide whether or not they like them. So that's a variable. And the rest would depend on the make-up of the Supreme Court if/when a case reaches them. Assuming no changes to the personnel, more than likely on a Second Amendment case Chief Justice Roberts would be the swing vote. IMHO, it isn't possible to predict how he would vote. In the most recent session, Roberts has voted contrary to what many Supreme Court watchers expected, siding with the bloc that would almost certainly unite in support of an "assault weapons" ban and confiscation.

In addition to the specifics of the case, it would also depend on how the law was written; in other words, exactly what it says. And, since there is no such law at this time, we don't know exactly (or even approximately) what it says, so trying to speculate on how it would play out legally is really a stretch.

Would the law be delayed until the Supreme Court could rule on it? Again, it depends. It's probable that the law would not be passed with a delay built in for Supreme Court review. Therefore, a delay would have to be ordered by a federal judge, and I don't know if there is a legal mechanism for a federal judge to just put a lw "on ice" pending review by a higher court.

Lastly, remember also that review of any law by the Supreme Court is not automatic. Cases at the circuit court level are first appealed to the District Court level. If a defendant loses at the District Court level, then he/she/they can appeal to the Supreme Court ... but the Supreme Court doesn't have to take any particular case. If you have been watching, in the recent session (in fact, just within the past few weeks) the Supreme Court declined to hear several Second Amendment cases. So there is no assurance that a case involving a hypothetical "assault weapons" ban/confiscation would be heard.

That's a long winded way of suggesting that I don't think your question can be answered. It may be worth discussing, but I'll remind anyone who feels like jumping in that the question was how such a law would play out legally. This discussion area is for Law and Civil Rights, not politics. Before posting your response, I suggest reviewing this:

https://thefiringline.com/forums/sho...d.php?t=313714
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Old July 2, 2020, 10:28 AM   #3
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Quote:
Originally Posted by TG
So my question is with the current SCOTUS, and a Dem take over of the Senate, would such a confiscation law pass SCOTUS muster? If such a law passed, would it be delayed until the SCOTUS could rule on it?
Enacted laws aren't delayed pending approval by the Sup Ct. A law can be enforced on the terms within it, unless a challenging party seeks and obtains a court's order to enjoin operation of that law. This kind of temporary relief from an effect of a law or other action is injunctive relief.

It is possible that a challenger could seek and obtain an injunction against federal confiscation of commonly held arms.

Would confiscation be upheld? The answer is all in how you get to five.

If + is uphold, and - is overturn, my guess is as follows.

Sonia Sotomayor +
Ruth Bader Ginsburg +
Elena Kagan +
Stephen Breyer +
John Roberts
Samuel Alito -
Neil Gorsuch -
Brett Kavanaugh -
Clarence Thomas -

Does Roberts pull a Hardwick/Loving reversal of Heller with some sort of reasoning about the primacy of Congressional discretion, or does he simply apply Heller?

I think the odds are better than even that he would vote to overturn, but I express that with little confidence.

Sotomayor expressed a recognition of the individual right in her confirmation hearing, but has "evolved" since. Thomas and Kavanaugh might join in an opinion that is some form of "What part of "in common use" and "shall not be infringed" don't you people understand?". I expect Alito and Gorsuch simply to apply Heller.
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Old July 2, 2020, 12:41 PM   #4
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I figured this question better in this forum. I am looking at Heller of course and the "in common use" part.

The law I would envision would be something along the lines for describing the "assault weapon" along the lines of NY or CA and then saying that all who possess must turn them into the gubmint for some monetary compensation. So, an effective ban on that class of firearm, no grandfathering. Like Australia or now New Zealand.

Curious with this court if it would pass muster or be overturned via Heller.

Zukiphile had some good input, which is maybe. I will say though that Roberts has not gone full left recently. He sided with some conservative issues this term too.
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Old July 2, 2020, 12:53 PM   #5
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Roberts seems to have picked up Kennedy’s torch and is carrying it front and center. He was not this fickle when Kennedy was on the court. I believe that Roberts, and Kennedy before him, believes there is virtue in the appearance of an evenly split court. As noble as it maybe sounds, it should at least be considered whether those with less conservative beliefs would display that same virtue if they had the majority. My guess is probably not.

My greatest fear is not appellate court litigation. I see about a .01% chance of either party winning a filibuster proof majority in the senate. My greatest fear is the filibuster dies forever and finally if the democratic party gains control in the senate and the filibuster is what is stopping sweeping gun control. Not saying republicans would not do the same thing if the shoe were on the other foot, they already have and they probably would again.
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Old July 2, 2020, 02:26 PM   #6
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Consider this, despite people believing that its ok to regulate arms "in common use" due to that language being in Heller, its clear that Heller prohibits a complete and out right ban on any specific class of firearm.

They can (and are) restricting arms, short of complete bans, and they will get away with it, until/unless a suitable court rules otherwise.

They cannot ban ARs as such, but they can require "training", special waiting periods, "enhanced" background checks (what ever the hell those are...) and licenses (and fees!), etc., until some court says otherwise.
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Old July 3, 2020, 09:28 AM   #7
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In DC v Heller the Supreme Court said:

United States v. Miller...does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. page 2 [emphasis added]

Further they said:

The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. page 2

"Assault weapons", specifically the AR15, are the most popular type of rifle in the country. There are millions of them in common use for lawful purposes. They are yet another class of "arms" that Americans choose for the lawful purpose of self defense.

Banning them would be unconstitutional.

The promising thing is Robert's explanation for his vote on the recent abortion case was that he wanted to honor stare decisis, the principle that the result in a previous similar case holds.

Roberts also stated: “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike."

This will be a good thing the next time Heller is challenged.
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Old July 3, 2020, 02:03 PM   #8
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As stated, Heller protects the ownership and use of firearms "in common use for lawful purposes", but the context was handguns.

The category of handguns is massive in the firearms world. If one starts at the very top trying to categorize firearms, the first logical division is between long guns and handguns.

So banning the possession and use of handguns (as was the issue in Heller) would be a huge impairment of the rights of gun owners. It basically removes one of the two major classes of firearms and eliminates, or at least severely handicaps all of the intended uses that were the reasons that handguns came into existence. The differences between handguns and a long guns are very significant. There are things you can do with a handgun that simply aren't possible with long guns.

Does banning semi-automatic centerfire rifles with certain characteristics rise to the same level of impairment? Let's see.

Looking at the firearm classes and thinking about how a law might be written to ban "assault weapons", we would start with two major divisions of firearms:

Handguns and long guns.

Long guns could be divided into rifles and shotguns.

Rifles could be sub-divided into centerfire rifles and rimfire rifles.

Centerfire rifles would be subdivided into repeaters, double rifles and single shots.

Centerfire repeating rifles would be split into manual repeaters, semi-automatics and fully automatics.

Semi-automatic centerfire repeating rifles would break into subcategories based on the features that separate "assault rifles" as defined by law (detachable magazines, pistol grips, etc.) and those with only the features that are considered to be benign.

So the class of firearms being banned would be:

Semi-automatic, centerfire, repeating long guns that are rifles with certain features that meet the law's definition of "assault rifle".

Now, there's no debating that category is in common use for lawful purposes, but it's equally obvious that it is a much smaller subdivision of the entire "world" of firearms than the category of "handguns".

What about levels of ownership? Studies indicate that around 3/4 (72%) of gun owners have a handgun. Among gun owners, less than 2/3 (62%) own rifles. So we can already see, before we even start subdividing the rifle category into centerfires, semi-automatics, those with detachable magazines, etc. that there are fewer gun owners with rifles than with handguns. It's pretty obvious that the ownership of "assault weapons" is going to be much smaller than the ownership of rifles--even much smaller than the category of centerfire rifles.

For whatever it's worth, this is likely, at least to some extent, by design. Gun banners know that they have to take small bites or they will get slapped down. So attacking just one small category of gun owners at a time is a necessity if one wants to make progress at banning firearms.

Does banning "Semi-automatic, centerfire, repeating long guns that are rifles with certain features that meet the law's definition of 'assault rifle'" fall into the same level of rights impairment as banning one of the two main categorizations of firearms? I think it's clear that it does not.

The question is whether or not SCOTUS believes that it is sufficient impairment to justify striking down the law and I honestly have no idea how to predict that. At least one appellate court has ruled that it is not sufficient impairment and that assault weapons can be banned under Heller.

http://guptawessler.com/wp-content/u...nc-opinion.pdf
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Old July 3, 2020, 05:51 PM   #9
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Quote:
Originally Posted by JohnKSa
Does banning "Semi-automatic, centerfire, repeating long guns that are rifles with certain features that meet the law's definition of 'assault rifle'" fall into the same level of rights impairment as banning one of the two main categorizations of firearms? I think it's clear that it does not.

The question is whether or not SCOTUS believes that it is sufficient impairment to justify striking down the law and I honestly have no idea how to predict that. At least one appellate court has ruled that it is not sufficient impairment and that assault weapons can be banned under Heller.
As Shakespeare wrote in Hamlet, Act 3, Scene 1, "Ay, there's the rub." Much comes down to how closely the legislators... and then the judges... choose to parse the language. Heller does mention something about firearms in common use and, in response to this, at least one legislator has already gone on record as stating that "ownership" doesn't equate to "use." So if you are one of those people who has a safe full of AR-15s, but you regularly only shoot one or two of them, that argument would be that the ones you don't shoot regularly are not "in common use," and so aren't protected.
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Old July 3, 2020, 06:49 PM   #10
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Centerfire repeating rifles would be split into manual repeaters, semi-automatics and fully automatics.

Semi-automatic centerfire repeating rifles would break into subcategories based on the features that separate "assault rifles" as defined by law (detachable magazines, pistol grips, etc.) and those with only the features that are considered to be benign.

So the class of firearms being banned would be:

Semi-automatic, centerfire, repeating long guns that are rifles with certain features that meet the law's definition of "assault rifle".
No, sorry, it doesn't have to go that way, in fact, I think it will be ALL semiauto rifles, without disctinction, including rimfires.

In fact, the first steps have already happened. In 2019 EVERY SEMIAUTOMATIC rifle in Washington state legally became a "semiautomatic assault rifle". Every single one. No distinction was made for rimfires, none for "military features", none for fixed or detachable magazines OR for capacity, or age, or any other factor.

They wised up, and went for the big enchllada, and they GOT it, thanks to public initiative voting and the fact that the 5 counties in the I-5 corridor had enough votes to make it law for the entire state.

They simply used the definition of "using the force of a fired cartridge to reload the action", something common to every single semi auto out there, ever. They didn't bother to try and say only guns with this or that feature, they went for them all.

EVERY semi auto rifle is now, legally, in that state a "semi automatic assault rifle" with new special requirements for training, waiting periods and "enhanced background checks" required. Also included in that law is the medical profession being required to turn over your records to the state so the state can judge if you are allowed to own such an arm. AND, continued supplying of those records so the state can conduct periodic reviews to ensure you continue to be allowed to own a semiautomatic assault rifle.

Some of this has not yet been applied and all of it is being challenged by court cases, but until that is resolved, it is the law.

SO, if, like WA, they don't try to cherry pick what is, and isn't an assault weapon, but just go for all semis (by using a technically accurate broadest definition) then it won't matter if your gun has a box mag, a bayonet lug, or "the shoulder thing that goes up".

All that matters is that as a semi auto, its one of the "evil" class of guns that they think people shouldn't have.

Get enough snowflakes going the right way at the same time, they do make an avalanche...and if you're in its path, its a very bad thing.
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Old July 3, 2020, 08:15 PM   #11
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No, sorry, it doesn't have to go that way, in fact, I think it will be ALL semiauto rifles, without disctinction, including rimfires.
That might actually be good news in a twisted sort of way. The bigger the "bite" a proposed assault weapons ban attempts to take, the better the chance that the rights impairment will qualify as unconstitutional under Heller.
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Old July 3, 2020, 10:55 PM   #12
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Agreed, but they are tricksy folk, who mostly know enough not to try and go for them right away. It's what they want, but its political death to admit to it, on a national level. Look how fast Beto got shoved under the bus and off the national stage after admitting in front of the whole world "Hell yes we're going to take your AR..." etc.

Now, in certain local areas they can get away with it. Places where a major urban area dominates the state's politics.

First step is to get everyone (not a gun person) thinking all semis are the same and all are bad. Even some gun owners who don't have and aren't interest in ARs, and such give some support, until they find out that their Sears Ted Williams .22 semi is an assault rifle under the new law.

Our side is handicapped in the fight by the fact that we tell the truth. They aren't under any such restriction, self imposed or otherwise.
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Old July 4, 2020, 02:13 AM   #13
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Our side is handicapped in the fight by the fact that we tell the truth. They aren't under any such restriction, self imposed or otherwise.
Got that right. Okay not 100% all the time but it's so lopsided it might as well be.

Does anybody think that the anti-gun folk could use the argument that an assault weapons ban must be "legal" because we already HAD an AWB and it wasn't found to be unconstitutional? I know the previous AWB was not challenged but I'm not a lawyer so I really don't know if the previous AWB sets ANY kind of a precedent.
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Old July 4, 2020, 07:07 AM   #14
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The precedent the previous AWB sets is that it was in effect for ten years and it didn't reduce "gun crime," which was what it was promised to do. The fact that it was totally ineffectual was the reason it was allowed to sunset.

Of course, the anti-gunners' response will be that it didn't work because it didn't ban enough guns, so they will use that as an argument for a more inclusive version this time around (as in Washington state). The fact that long guns are rarely used in crimes will be glossed over.
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Old July 4, 2020, 08:28 AM   #15
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Quote:
Originally Posted by DaleA
Does anybody think that the anti-gun folk could use the argument that an assault weapons ban must be "legal" because we already HAD an AWB and it wasn't found to be unconstitutional? I know the previous AWB was not challenged but I'm not a lawyer so I really don't know if the previous AWB sets ANY kind of a precedent.
It's an argument, but not a great one, and it isn't a precedent in the sense that people generally use the term in the context of case authority.

It is an argument that there is some kind of custom and practice in the exercise of federal authority that it can use that authority to limit possession of some sorts of weapons. The NFA currently imposes burdens, costs and regulations on the possession of some arms, though not those in common use. (Yes, whether they are not in common use because of the NFA is a good question.) The problem with that argument is that the reach of federal authority is the matter at issue, and citing prior custom and practice that may also have been unconstitutional isn't indicative of whether those prohibitions should have been allowed. This is especially so with respect to the 2d Am. and the individual right because the Court hadn't yet declared the right to be individual during the restrictions of the AWB.

Usually when we discuss precedent in this context, we mean a case that was litigated to a conclusion. Even then, the existence of a precedent in which a law or even a kind of law was upheld doesn't bind the Sup Ct to follow that precedent.
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Old July 4, 2020, 02:46 PM   #16
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According to Biden's web site:https://joebiden.com/gunsafety/ We AR-15 owners will be given two choices, let the gubmint "buy" them "back" or register them under NFA rules.
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Old July 4, 2020, 03:32 PM   #17
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The precedent the previous AWB sets is that it was in effect for ten years and it didn't reduce "gun crime," which was what it was promised to do. The fact that it was totally ineffectual was the reason it was allowed to sunset.
Small point of order, here...

The AWB wasn't "allowed" to sunset. The sunset provision was built into the law, and could not be avoided or stopped. What failed (because the law failed to do what was promised) was a vote to "re-authorize" the law.

If you want to look at a "precedent" from the 94 AWB, there is one, its "we tried this for 10 years and it DID NOT WORK!!"
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Old July 4, 2020, 04:49 PM   #18
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The AWB wasn't "allowed" to sunset. The sunset provision was built into the law, and could not be avoided or stopped.
If there had been votes and support from the executive branch, there would have been nothing preventing it from being reinstituted via the normal process of passing a bill into law.

The sunset was built in, but there was nothing preventing Congress from passing it again as if it were a new bill and then having the president sign it.

That didn't happen because it wasn't feasible (there wasn't sufficient support in Congress)--not because there was some provision in the bill that prevented it.
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Old July 4, 2020, 05:38 PM   #19
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Originally Posted by JohnKSa
Quote:
The AWB wasn't "allowed" to sunset. The sunset provision was built into the law, and could not be avoided or stopped.
If there had been votes and support from the executive branch, there would have been nothing preventing it from being reinstituted via the normal process of passing a bill into law.

The sunset was built in, but there was nothing preventing Congress from passing it again as if it were a new bill and then having the president sign it.

That didn't happen because it wasn't feasible (there wasn't sufficient support in Congress)--not because there was some provision in the bill that prevented it.
As JohnKSa explained, that's what "allowed to sunset" means. The law had a sunset provision, but the Congress could have reenacted it to take effect immediately upon expiration of the original version. They didn't do so, ergo they allowed it to sunset.
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Old July 4, 2020, 10:21 PM   #20
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The joys of English...

We're talking about the same thing, just using slightly different words.

You say "allowed to sunset" I say "failed to re-instate/re-authorize"

Where I see a difference is that "allowed to sunset" implies there was a choice. There was not, the sunset was built it, it was going to happen. Where they had a choice was to vote to renew the act.

I realize it is perfectly valid in English either way, and its common to say "failure to do X allowed Y to happen"

I just think saying "allowed to sunset" doesn't properly describe a required portion of the law. It does describe the result of Congress failing to re-authorize the act. I find those to be different, though related items.
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Old July 5, 2020, 07:59 AM   #21
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Prohibition was also law, a constitutional amendment, in fact. It went away, too, by another amendment.

It's interesting to note that prohibition significantly contributed to organized crime, much of the reason NFA34 came about.

"Do-gooder's" unintended consequences.
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Old July 5, 2020, 09:33 AM   #22
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Prohibition was also law, a constitutional amendment, in fact. It went away, too, by another amendment.
Constitutional amendments are a special case. An amendment to the Constitution IS the Constitution. Not even the Supreme Court can rule that a provision is the Constitution is unconstitutional.
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Old July 5, 2020, 10:53 AM   #23
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Understand. My point was just because something was law does not mean that it has to be law in the future, special case or not. Other laws have been allowed to expire (sunset) or actually repealed.

If nothing else, this is an interesting conversation.
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Old July 5, 2020, 11:07 AM   #24
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So now my next question is whether the proposed Biden policy would withstand Heller and SCOTUS scrutiny? I have it here for ease of reading:

Quote:
Ban the manufacture and sale of assault weapons and high-capacity magazines. Federal law prevents hunters from hunting migratory game birds with more than three shells in their shotgun. That means our federal law does more to protect ducks than children. It’s wrong. Joe Biden will enact legislation to once again ban assault weapons. This time, the bans will be designed based on lessons learned from the 1994 bans. For example, the ban on assault weapons will be designed to prevent manufacturers from circumventing the law by making minor changes that don’t limit the weapon’s lethality. While working to pass this legislation, Biden will also use his executive authority to ban the importation of assault weapons.
Regulate possession of existing assault weapons under the National Firearms Act. Currently, the National Firearms Act requires individuals possessing machine-guns, silencers, and short-barreled rifles to undergo a background check and register those weapons with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Due to these requirements, such weapons are rarely used in crimes. As president, Biden will pursue legislation to regulate possession of existing assault weapons under the National Firearms Act.
Buy back the assault weapons and high-capacity magazines already in our communities. Biden will also institute a program to buy back weapons of war currently on our streets. This will give individuals who now possess assault weapons or high-capacity magazines two options: sell the weapons to the government, or register them under the National Firearms Act.
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Old July 5, 2020, 12:47 PM   #25
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From post #12
Quote:
Our side is handicapped in the fight by the fact that we tell the truth. They aren't under any such restriction, self imposed or otherwise.
And examples comes up so easily (I bolded some parts for emphasis):
Quote:
Federal law prevents hunters from hunting migratory game birds with more than three shells in their shotgun. That means our federal law does more to protect ducks than children.
Quote:
Biden will also institute a program to buy back weapons of war currently on our streets.
(alliteration is SO effective!!!)

As a side note in Minnesota the big push for the last couple years has been universal background checks and red-flag gun confiscation laws. In one of the UBC plans if you ever sold a gun you'd be responsible, under law, to have the paperwork for who you sold it to at hand forever and ever. Our state rep pushing the bill saw nothing onerous about this at all. A rep fighting the bill asked how many couples in Minnesota did he think could produce their marriage licenses at will.
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