The NFA and "standing before the court"

[Guest 1010011010]

Lets take a look at the DC handgun ban, they had a registration program just like the NFA does for fully automatic weapons.

The difference, and while it is irrlevant in practice will probably be very relevant in court, is that DC had a handgun registry while the NFA is a tax registry. The fact on the ground that makes owning an unregistered machinegun a firearm issue rather than a tax issue is often a topic of state law.

Though it occurs to me the effectiveness of the above argument previously depended on the ambiguity about whether the states had the authority to infringe the right to keep and bear arms. Since it has been made clear that the states do not have this authority, it might be interesting to see how it works this time around.

As for the analogy to a poll tax, what if you only had a poll tax to vote in certain kinds of elections? You could still vote in other elections, so this should be entirely constitutional, right? Or if you just banned certain types of books... those with more than 10 chapters or containing more than five "scary" words from a list, perhaps? And if you wanted to read books on the approved list (sorry, that's paperback, the list only includes the hardcover edition) a comprehensive (and expensive, offered every third Tuesday of months containing the letter "R") class, test, and practical examination on libel, slander and plagiarism would be required before you could submit an application to have your reading permit considered for approval.

All of these would be "reasonable restrictions" on those Rights, right?

[1gewehr]

Why do you say that? McDonald just re-affirmed Heller and applied it to states and cities. The NFA is a federal law.

McDonald did a LOT more than just reaffirm Heller. Two main points came from McDonald:

1) The 2nd amendment was incorporated as an individual right under the 14th Amendment. That means that any state, local, or Federal law which infringes upon that right is subject to 'strict scrutiny' in court. 'Strict scrutiny' means that there must be an overwhelmingly compelling reason for the infringement. Now, the 2nd amendment must be treated as strongly as the 1st and 4th Amendments

2) Justice Thomas' startling separate concurrence has put the legal community on notice that the Supreme Court has at least one justice who believes that ALL of the Bill of Rights should be incorporated and apply to the States. This threatens to overturn Slaughter House and other of SCOTUS' less intelligent decisions which have set precedence.

Breyer's opposing opinion is poorly written and would not pass muster for a first-year law student. It uses convoluted and irrational arguments to attempt to say that although the 2nd is an individual right, it is different from every other individual right and thus should not be protected as an individual right. and yes, it really IS that screwy of an opinion!

The Supreme Court is under no obligation to hear ANY cases. But they have said that they try to hear cases where lower courts are in disagreement or the law is not clear.

[JayC]

I'd suggest reading the Rock Island Armory case from 1991... It basically says since the Federal government is no longer collecting the tax, the law no longer serves a function and therefore is unconstitutional under the law.

We need to push and keep pushing until all these silly laws have gone the way of jim crow laws in the 60's.

The difference, and while it is irrlevant in practice will probably be very relevant in court, is that DC had a handgun registry while the NFA is a tax registry. The fact on the ground that makes owning an unregistered machinegun a firearm issue rather than a tax issue is often a topic of state law.

Though it occurs to me the effectiveness of the above argument previously depended on the ambiguity about whether the states had the authority to infringe the right to keep and bear arms. Since it has been made clear that the states do not have this authority, it might be interesting to see how it works this time around.

As for the analogy to a poll tax, what if you only had a poll tax to vote in certain kinds of elections? You could still vote in other elections, so this should be entirely constitutional, right? Or if you just banned certain types of books... those with more than 10 chapters or containing more than five "scary" words from a list, perhaps? And if you wanted to read books on the approved list (sorry, that's paperback, the list only includes the hardcover edition) a comprehensive (and expensive, offered every third Tuesday of months containing the letter "R") class, test, and practical examination on libel, slander and plagiarism would be required before you could submit an application to have your reading permit considered for approval.

All of these would be "reasonable restrictions" on those Rights, right?

[midtennchip]

I'm stating that the 1986 amendment to the NFA which prohibits the registration of all new full-automatic firearms is a defacto ban on said firearms, and is no different than similair bans on handguns in DC and Chicago (And let me be clear I'm not saying either of those cases touch on fully automatic weapons, only that the logic behind lifting those bans should result in the NFA ban being ruled unconstitutional).

Lets take a look at the DC handgun ban, they had a registration program just like the NFA does for fully automatic weapons. They refused to register any new handguns, just like the NFA does for fully automatic weapons. If you fail to register a handgun you face criminal sanctions, just like the NFA and fully automatic firearms.

Yeah, those two laws aren't alike at all

Well, where does the NFA apply to "any lawful firearm" like the DC law? Second, the SCOTUS has been heavily persuaded by the "in common use" theory when looking at particular classes of firearms (like "handguns"). Again, I don't disagree that some of these cases SHOULD have a bearing on the NFA. I am saying they WON'T have a bearing because the laws in question are easily distinquishable by the courts.

[midtennchip]

I'd suggest reading the Rock Island Armory case from 1991... It basically says since the Federal government is no longer collecting the tax, the law no longer serves a function and therefore is unconstitutional under the law.

Personally, I agree with the view adopted in Rock Island Armory. But, from a legal perspective, that is only a U.S. District Court case and has no precedent value. The 10th Circuit has adopted the same view, so there is precedent in the 10th Circuit. But the 4th Circuit has specifically rejected that view. Finally, the SCOTUS has taken a similar view (on different facts) to that adopted by the 4th Circuit in Minor v. U.S., 396 U.S. 87 (1969).

[JayC]

Well, where does the NFA apply to "any lawful firearm" like the DC law? Second, the SCOTUS has been heavily persuaded by the "in common use" theory when looking at particular classes of firearms (like "handguns"). Again, I don't disagree that some of these cases SHOULD have a bearing on the NFA. I am saying they WON'T have a bearing because the laws in question are easily distinquishable by the courts.

DC's ban only applied to handguns, it was still legal to register rifles, and shotguns. (Lets leave the trigger lock mess out of the equation since we're talking about bans here).

Fully automatic rifles are in common use today, every solider in our military is issued one. The Miller ruling is still running around out there, and SCOTUS hasn't heard a case yet that would nullify that as case law. (I'll point out that Miller is referenced as precedent in the Heller opinion).

More importantly, fully automatic weapons were in common use by law-abiding citizens before the NFA, the unreasonably high tax (100%+ in some cases) and the difficult process to obtain one combined with many states banning the weapons, is the reason they're no longer in common use today (although the I'd argue that there are still pretty common today).

I understand what you're saying, but at the end of the day SCOTUS doesn't grant me my rights, my creator does, and the right to have access to weapons which give me the best chance to protect myself, and help defend liberty from the enemies of freedom. It's a clear violation of that god given right to ask me to pay $20,000+ for a thirty year old firearm when I could go out and buy a new one tomorrow for $2,000 if it wasn't for a ban on purchasing those weapons. Weapons which our own government has deemed are the best small arms weapons available for our own troops, aren't available to me as a law abiding citizen.

I'm not hopeful that any of us alive today will ever see the freedom that our great-grandparents enjoyed. I can only hope I'm wrong.

[redfsr]

please delete.

Edited July 4, 2010 by redfsr
waited too long to reply to specific post.

[midtennchip]

DC's ban only applied to handguns, it was still legal to register rifles, and shotguns. (Lets leave the trigger lock mess out of the equation since we're talking about bans here).

The DC law (not just the ban part) was struck down. That law affected "any lawful firearm" and, accordingly, makes the NFA and the DC law very different. The SCOTUS did not strike down just part of it, so you have to look at the entire DC law to understand the precedent value of Heller.

I understand what you're saying, but at the end of the day SCOTUS doesn't grant me my rights, my creator does, and the right to have access to weapons which give me the best chance to protect myself, and help defend liberty from the enemies of freedom. It's a clear violation of that god given right to ask me to pay $20,000+ for a thirty year old firearm when I could go out and buy a new one tomorrow for $2,000 if it wasn't for a ban on purchasing those weapons. Weapons which our own government has deemed are the best small arms weapons available for our own troops, aren't available to me as a law abiding citizen.

I'm not hopeful that any of us alive today will ever see the freedom that our great-grandparents enjoyed. I can only hope I'm wrong.

I'll agree with you here. Your original statement was equating the NFA to the DC law. While parts of the DC law were similar (although I continue to make the distinction between "all handguns" and specific types -- ie: full auto -- of guns), the additional provisions (such as the requirement to keep unloaded, gun locks, etc.) of the DC law make any case brought to strike down the NFA very different than Heller. I can't imagine a judge anywhere that would not see those differences. Not saying the NFA couldn't be overturned, it's just not going to be overturned using Heller in the manner you described early on.

PS: Evidently, I can't figure out how to quote multiple parts of a post.

Edited July 4, 2010 by midtennchip

[DaveTN]

Heller and McDonald have come and gone. And as predicted it is still a crime for a citizen of the state of Tennessee to carry a loaded gun. Fix that before you move on to something you have absolutely no chance of winning.

Just a thought….

<O:p</O:p

[Guest 1010011010]

McDonald has a couple of passages hammering the point that, as a right fundamental to our system of ordered liberty, the facts of a gun law's impact on crime is no basis for restricting the right to keep and bear arms. In effect, the Legislature cannot legitimately claim the power to regulate the wearing of arms with a view to prevent crime. Your or my right to keep and bear arms shall not be infringed on the basis that someone else might commit a crime while exercising those same rights.

We'll see, though.

[JayC]

Heller and McDonald have come and gone. And as predicted it is still a crime for a citizen of the state of Tennessee to carry a loaded gun. Fix that before you move on to something you have absolutely no chance of winning.

Just a thought….

<o></o>

Lets see what happens after Palmer v DC.... I don't think anybody was saying McDonald was going to touch on carry at all... it's going to be a follow on case.