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One of The First Post-Heller Second Amendment Opinions:

Mullenix v. BATF (E.D.N.C. July 2, 2008):

Plaintiff is a federally-licensed firearms dealer, and alleges that the ATF arbitrarily denied him permission to import a reproduction of a World War II-era German machinegun[, the BD44]....

Title 18, section 925(d) of the United States Code provides that certain types of firearms may be imported into the United States. Among these are firearms "generally recognized as particularly suitable for or readily adaptable to sporting purposes." ... [T]he ATF determined that the BD44 was not importable under section 925(d)(3) because it was not "generally recognized as particularly suitable for or readily adaptable to sporting purposes." Plaintiff challenges the ATF's decision. Plaintiff argues that the ATF's interpretation of section 925(d)(3) is arbitrary and capricious, and seeks damages for lost income resulting from his inability to sell BD44s to prospective military re-enactors....

Plaintiff first argues that "[a]ll bans [on gun ownership] are clear unconstitutional infringements to the right to own and bear arms.... [In Heller,] the Supreme Court rejected the notion that the Second Amendment right is unlimited:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right [to keep and bear arms] was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

In light of Heller, plaintiff's facial challenge to section 925(d) fails.

Alternatively, plaintiff contends that, although Congress has the power to regulate the individual right to keep and bear arms, "regulation" of that right is limited to reasonable time, place, and manner restrictions. According to plaintiff, Congress may not "regulate" his individual right to keep and bear arms by declaring that he may not own certain types of arms, and he may accordingly own almost any type of weapon he chooses (including the BD44) so long as he complies with reasonable time, place, and manner restrictions. See [plaintiff's brief] at 7-8 ("[N]ever does Congress have the right ... to ban the ownership of any defensive arm equivalent or superior to that used by the standing armies of the United States.").

Unfortunately for plaintiff, the Supreme Court rejected this argument in Heller. See Heller at *26 (construing United States v. Miller, 307 U.S. 174 (1939), to hold that "the type of weapon at issue [a sawed-off shotgun] was not eligible for Second Amendment protection"); id. ("Miller stands ... for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons."); id. at *27 (finding it a "startling reading" of Miller to suggest "that the National Firearms Act's restrictions on machineguns ... might be unconstitutional"); id. at *28 ("[T]he right [is] not a right to keep and carry any weapon whatsoever...."). Accordingly, in light of Heller, the court rejects plaintiff's challenge to section 925(d), and rejects plaintiff's claim that the Second Amendment entitles him to possess the BD44 in this case.

Not a surprising result, or likely an important one, but it is one of the first, so I thought I'd note it.

UPDATE: When I posted this, I labeled this the "first" post-Heller Second Amendment opinion -- forgetting that Lexis sometimes has unpublished cases that Westlaw doesn't, and neglecting (for no good reason) the fact that some unpublished cases never make their way to Lexis or Westlaw and a few others take some time to get posted. I've revised the title accordingly, and will blog shortly on at least one earlier post-Heller Second Amendment case. Thanks to commenter ClosetLibertarian for reminding me about this.

Bill Twist:
I'm wondering how this would have been decided if the plaintiff was trying to import a handgun that fall below the restrictions on barrel length? After all, Heller specifically says that owning a firearm for self-defense is protected, and I doubt anyone could argue that a snub-nosed revolver isn't useful for self-defense, even though it wouldn't have a "sporting" use.

As a side note, plaintiff needs to find a manufacturer for those semi-auto StG-44 replicas in the United States so that he doesn't have to contend with the "Sporting Use" test for importation. Perhaps import the critical parts as a kit, but manufacture 51% of the total parts in the US to side-step the ban.
7.7.2008 8:45am
Ric Locke (mail):
I'm going to claim prescience on this one. I predicted it right here in these comments.

The only thing gun owners got in Heller was the declaration that it's an individual right. The decision says that that's so, but it doesn't make any difference, because the bar for "reasonable restriction" is "anything a law- or regulation-making body can come up with" so long as they can manage enough handwaving and BOMFOG to call it "reasonable".

The result is going to be more, and more restrictive, laws and regulations rather than fewer. Registration is clearly "reasonable", because it doesn't take away the right, only restricts it to people who are responsible, right? Same for licensing. Same for EPA and OSHA design regulations. The decision has much more in common with Kelo than anything else.

Regards,
Ric
7.7.2008 9:11am
Jim at FSU (mail):
He should have attacked the sporting purposes test, not tried to go all the way to unrestricted importation of machine guns.
7.7.2008 9:14am
Originalism Is Useful (mail):
Why would the Second Amendment support an unrestricted right to import machine-guns? Does that make any sense?
7.7.2008 9:16am
ClosetLibertarian (mail):
The date should be July 2nd. I think this makes United States v. Dorosan, 2008 U.S. Dist. LEXIS 49628 there first case by a few days. Checking for others.

[EV: Fixed the date, thanks!]
7.7.2008 9:29am
ClosetLibertarian (mail):
I also found McDonald v. City of Chicago, 2008 U.S. Dist. LEXIS 49247, but don't comprehend the meaning. Seems to be pre-trial motion.
7.7.2008 9:36am
ethan (mail):
Where is the term "sporting" defined?

The StG-44 unmodified can be used in IPSC/USPSA 3-gun matches. IPSC is an internationally recognized sport.
7.7.2008 9:37am
Doc W (mail):
I'm with Jim at FSU. Was the plaintiff standing on a soapbox or trying to win the case?
7.7.2008 9:51am
Kharn (mail):
Jim at FSU:
Thats the gun community for you. Over the 9mo, I've read a large number of comments from people saying they'd submit a Form1 (ATF form you submit before you can make a machine gun) for an M16 the day after the SC ruled on Heller and then sue immediately upon the ATF sending back a denial saying you cant make a machine gun for private purposes after the 1986 ban. Many are unwilling to wait for crawl-walk-run to work its way out, they want to run the Boston Marathon ASAP, and its going to hurt the pro-gun side in the long run.
7.7.2008 9:53am
Houston Lawyer:
I'd like to see the ban on buying machine guns made after 1986 challenged. A 22-year-old M-16 is no less lethal than a brand spanking new one. The ban only works to raise the prices that must be paid for such an item. Is wealth transfer from current owners to future owners a permissable regulation under Heller?
7.7.2008 9:55am
Some Dude (mail):
What will be interesting is how DC's new tack in banning semiautomatic pistols will bear out. Recall that the DC Attorney General Linda Singer has interpreted the Heller decision as allowing DC to continue banning all semi-auto pistols as "machine guns." This is after Scalia made clear that DC was not allowed to ban handguns. It seems DC's plan is to simply ignore Heller and force 10 years of litigation, hoping for more friendly courts in the process to limit the Heller decision.

I've gotta say whether I agreed with a decision or not, I think I would hesitate to choose Ms. Singer's "ignore the Supreme Court and hope it goes away" interpretation.
7.7.2008 9:55am
Mike M. (mail):
The "sporting" purposes test is vulnerable, but there are better ways to attack it. Ditto for DC's ban.

The most obvious being the high-end European target pistols. ATF requires that all self-loading pistols have a safety...which most of the good target pistols add only for sales to the American market. A safety on a pistol designed to be carried to and from the range in a case, loaded at the firing point, and immediately shot makes about as much sense as hips on a snake.

Bring $2,000 worth of pistol with an Olympic competition pedigree into court, and you can win a lot of cases.
7.7.2008 10:04am
glangston (mail):
I remember Alito stated the 86 ban should be struck down.
7.7.2008 10:05am
Farmer (mail):
What Kharn wrote. Moving from Heller to the original "assault rifle" is too great a leap. Baby steps, baby steps. glangston, care to elaborate? I missed that bit. Would you be kind enough to point to where I can read that? Thanks.
7.7.2008 10:32am
wuzzagrunt (mail):

Jim at FSU wrote:

He should have attacked the sporting purposes test, not tried to go all the way to unrestricted importation of machine guns.


The firearm in question is a semi-automatic version of the StG44. I'm not an expert on these weps, but I don't believe the BD44 can be made to fire FA. I don't think the ATF regs say you can't own one, just that you can't import one. That may be a critical difference. I believe people have built BD44s up from imported parts and legally own them. You can buy a US manufactured version of the FAL or the G3, but I don't believe you can import a either rifle.

I'm open to being corrected on any and all points stated above.
7.7.2008 10:41am
peter (mail) (www):

And then there's the BATF's "once a machine gun always a machine gun" rule. For example, I'd love to buy a surplus Stgw-57 from Switzerland; it's arguably the most accurate battle rifle every generally issued. Being a relatively modern rifle (first issued in the '50s), it was issued fully automatic, but even though all of the Swiss surplus has been modified to semi-automatic by the Swiss national armory, BATF forbids their importation because they were initially full-auto.

These rifles are literally no more dangerous than a 30/06 deer rifle available today to any eighteen-year old at WalMart. These rules are arbitrary and capricious, they reach much farther than the regulation of actual "machine guns," and government has a million of them.

yours/
peter.
7.7.2008 10:46am
Vinnie (mail):
What Kharn wrote. Moving from Heller to the original "assault rifle" is too great a leap.


remember the term common use. The AK- 47 is the most common gun in the world.
7.7.2008 10:58am
Cactus Jack:
@ Some Dude

What will be interesting is how DC's new tack in banning semiautomatic pistols will bear out. Recall that the DC Attorney General Linda Singer has interpreted the Heller decision as allowing DC to continue banning all semi-auto pistols as "machine guns." This is after Scalia made clear that DC was not allowed to ban handguns. It seems DC's plan is to simply ignore Heller and force 10 years of litigation, hoping for more friendly courts in the process to limit the Heller decision.

I've gotta say whether I agreed with a decision or not, I think I would hesitate to choose Ms. Singer's "ignore the Supreme Court and hope it goes away" interpretation.

You may want to double check your source. Linda Singer resigned as DC's AG in December 2007. Peter Nickles has been the interim AG since. While it wouldn't suprise me if the DC OAG were to make this argument, I don't see anywhere where Nickles has affirmatively taken this position since Heller.
7.7.2008 11:04am
Tony Tutins (mail):
The Heller decision made it clear that Miller was still good law, and if Miller stands for anything it upheld the NFA.

I agree that pro-gun activists should focus on building up good law, instead of impetuously getting the courts to make bad law. The Chicago home rule de facto handgun ban is next.
7.7.2008 11:09am
Jim at FSU (mail):
I know what a Form 1 is and I don't think that there is anything wrong with importing, making or owning machine guns.

That being said, I don't think the courts are going to back any argument that will result in significant upsets to the law. Just giving us a very limited ruling that there IS an individual right overturned precedent in 9 federal circuits. There is a flood of lawsuits being produced by this, with many more soon to follow.

To put it simply, there are three problems that non-lawyers may have difficulty appreciating:
1) the federal courts have responsibilities other than debating the scope of the 2nd amendment. If you issue a broad opinion that casts doubt over a vast swath of statutes and regulations, the courts will be swamped with challenges. Part of the reason that the supreme court only answers narrow questions of law is that they don't want to create situations like that.
2) courts like to move slowly so they can see the effects of the decision and see how the lower courts handle the new legal rule. If the lower courts flesh it out a bit more and agree on A, B and C while disagreeing on D, the supreme court can ignore A, B and C and focus on D. Bringing only good suits and having people like Gura argue them well ensures that the lower courts will either reach a consensus we like or develop splits that prevent a hostile consensus from forming, as had happened regardng an individual RKBA before Emerson and Heller.
3) Between lifetime appointments and stare decisis, courts tend to lag VERY far behind the rest of society in recognizing cultural shifts.

The point is that the supreme court (and Alan Gura, and the NRA, and myself) recognized that most of society isn't yet comfortable with the idea of widespread public ownership of machine guns. As with concealed carry, the issue must first be snuck in under the radar to permit favorable data to be gathered for the eventual broader easing of restrictions.

What this guy did wrong was argue extremely broad legal principles that, if adopted, would lead directly to disassembling most firearms regulations in this country. The consequences of this cannot easily be predicted, but any significant reshaping of the law is going to have significant ripple effects on the economic and legal rights of market participants, not to mention interfering with government regulators, police investigations and ongoing prosecutions. I think courts generally like to avoid such things.

I think we will eventually get there, but it will take 20 or 30 years to flesh out the issues properly, not 2 or 3 weeks like some idiots seem to think.
7.7.2008 11:22am
Old33 (mail):
FWIW, the E.D.N.C. decision was handed down by Judge James C. Dever, III...an appointee of George W. Bush.
7.7.2008 11:28am
Jim at FSU (mail):
When faced with plaintiffs who suck at law this badly, you really have no choice but to dismiss and hope they don't appeal and make an opportunity for an anti-gun appellate judge. Lol echoes of Silviera v Lockyer.

He should have brought an as applied challenge. Also, the "sporting purposes" language exists in other places in the US Code. There are far less shocking ways to bring a challenge to "sporting purposes" than suing because the ATF won't let you import a machine gun.

Honestly the best thing we could do regarding the 86 machine gun ban would be to challenge the DC "machine gun ban" (that bans most semiautomatic pistols and rifles) as being overly broad because it clearly sweeps up a great variety of protected arms. Establishing the principle that gun control regulations can be void for overbreadth would be a good step in the right direction.
7.7.2008 11:49am
jdege (mail):
I've always believed that the proper point of attack on the "sporting use" provision is on the narrowness of the BATF's interpretation of what is a "sporting use".

Currently, "sporting use" means "suitable for hunting". Hence restrictions on target pistols, etc.

If we could expand "sporting use" to include competitive target shooting, there's practically nothing that would be excluded. You name it, and there's someone out there running a competitive shoot around it.
7.7.2008 11:50am
cboldt (mail):
-- if Miller stands for anything it upheld the NFA. --

.

Oh? Had the District Court found, on remand, that a short barrel double barrel shotgun WAS "any part of the ordinary military equipment," then it would have reinstated its original holding that the NFA was unconstitutional.

.

And the court in the instant case, "See Heller ... (construing United States v. Miller, 307 U.S. 174 (1939), to hold that "the type of weapon at issue [a sawed-off shotgun] was not eligible for Second Amendment protection')" is stating the opposite of what the majority in Heller was saying.

.

What the majority in Heller said was:

The judgment in the [Miller] case upheld against a Second Amendment challenge two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not "for . . . military purposes" but for "nonmilitary use," post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: "In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." 307 U. S., at 178 (emphasis added). "Certainly," the Court continued, "it is not within judicial notice that this weapon is any part of
the ordinary military equipment or that its use could contribute to the common defense."


.

The Heller majority got part of the case wrong - Miller was never convicted. He was indited, and the indictment was dismissed on the ground that the NFA was unconstitutional. Miller WON in the case below, and would have WON again, had he been able to show that a short barrel shotgun is ordinary equipment used by the military.

.

At any rate, in Miller, SCOTUS didn't say the short barrel shotgun was NOT eligible for Second Amendment protection. It said it had no evidence on the point, and it was not within its power of judicial notice to determine that a short barrel shotgun was ordinary equipment used by the military.

.

I think those who mischaracterize the Miller case do so deliberately, and my instinctive reaction is to think of them as intellectually dishonest.
7.7.2008 11:59am
wfw:
Currently, "sporting use" means "suitable for hunting". Hence restrictions on target pistols, etc.

Not so. BATF has considered target pistols, no matter how improbably configured, suitable for "sporting purposes" for years. Hence the proliferation of silly stuff like micrometer sights on pocket pistols, grips with weird lumps on their sides which qualify as "thumbrests," etc., all added by manufacturers or importers to make the guns eligible for import and sale in the US.
7.7.2008 12:18pm
Deep Lurker (mail):

Why would the Second Amendment support an unrestricted right to import machine-guns? Does that make any sense?


Because law-enforcement uses imported machine-guns.

One of the purposes of the militia is to "enforce the laws of the Union," and one of the distinguishing features of a militia (in the Constitutional sense, vs the current use of "militia" for what in the past were called "paramilitary groups" or even "rebel armies") is that militias are limited to weapons that are common and legal for private citizens to own.

And it's dangerous to "the security of a free state" for law-enforcement to go beyond being a militia WRT how well-armed they are. And since law-enforcement needs imported machine-guns (just ask them, come budget time) then the 2nd Amendment supports the right to import those machine-guns for private use as well.

(Now I'll accept your argument that the 2nd doesn't protect the right to machine-guns if you credibly take a hard-nosed position against cops having them. When you call for cops caught with full-auto weapons to be taken down to Gitmo as unlawful combatants, then I'll listen to your argument that the 2nd doesn't cover those full-auto weapons.)
7.7.2008 1:18pm
PersonFromPorlock:
cboldt:

Agreed. If Miller is still good law (or as good as it ever was) them an assault rifle would seem to be in the class of constitutionally-protected weapons. It seems to me that the court in Mullenix got it exactly wrong.
7.7.2008 2:06pm
Robert Naess (mail) (www):
Unfortunately "sporting purposes" in the GCA '68 applies to import only and has no bearing on domestic firearm's laws. There is no way to challenge it on 2nd Amendment grounds that I can think of.
7.7.2008 2:09pm
limaxray:
I just want to make the point that this has nothing to do with machine guns. The BD44 is a semi-automatic only version of the MP44 (aka Stg44); it's receiver (the part that legally defines a firearm) is designed to only fire in a semi-automatic fashion and prohibits the installation of fully-automatic parts. In order to make a BD44 operate like an MP44, it would require significant machining and thus is not considered a MG by the ATF.

The problem here is the ATF prohibits the importation of 'non-sporting' weapons, and they cast the decree that the BD44 is not a 'sporting' weapon. Furthermore, the ATF has decided to also prohibit the importation of certain parts for these weapons (ie barrels) making it nearly impossible to manufacture US made replicas of many foreign firearms.

I agree the mistake this guy made was going at this case full-bore. I think he would have had a better chance at going after the ATF based on the constitutionality of the 'sporting' test alone. Given Heller, I don't see banning weapons based on how 'sporting' they are could possibly be constitutional, but I agree this case is probably a few years too soon.
7.7.2008 2:12pm
Some Dude (mail):
D'oh. Looks like I've been caught. Yup, Linda Singer left with the changeover. Don't know why I didn't think of it, my mistake.

Interim DC Attorney General Peter Nickles' statement at the press conference in response to Heller was:

"This is not open season with handguns. We are going to strictly regulate the registration of handguns. And there will be no authorization of automatics or semiautomatics."

From the Post: Link to the Article

DC's position is that though the Supreme Court held they were not allowed to ban handguns, they will rely on the constitutionality of DC Code § 7-2501.01(10)(B), which defines every semi-automatic weapon capable of accepting a magazine that holds more than 12 rounds as a prohibited "machine gun." Since every semi-auto pistol I can think of can accept a 12+ round magazine, and since something like 75% of handguns are semi-auto, DC will effectively continue to ban 75% of the weapons the Supreme Court just told DC it could not ban.
7.7.2008 2:35pm
Robert Lutton:
If the majority REALLY had principles they would have declared a positive right to bear machine guns (and mortars I suppose). You can't have much of a militia without automatic weapons...
7.7.2008 3:42pm
Tony Tutins (mail):
I think those who mischaracterize the Miller case do so deliberately, and my instinctive reaction is to think of them as intellectually dishonest.


Heller would have been the perfect opportunity for Scalia to characterize the Miller case properly, and yet he didn't. Is Scalia intellectually dishonest?

The NFA went up to the Supreme Court and survived a challenge, however weak or nonexistent it was. Knocking it down after 70 years will require more than a handwave.
7.7.2008 4:28pm
Tony Tutins (mail):
Emphasis on the "sporting purposes" test makes this case sounds a lot like Gilbert Equipment Co. v. Higgins, 709 F. Supp. 1071, 1090 (S.D. Ala. 1989), which was affirmed by the 11th Circuit without an opinion.
7.7.2008 4:35pm
Dan Hamilton:
To attack the NFA you attack it just as the Poll Tax was attacked. They are the same. A tax on a basic right. If the NFA is Constitutional then the Congress can raise the NFA tax to $1 Mil and define all firearms as destructive devices. This would be Constitutional. Since that is absurd. The NFA cannot be Constitutional.

They could still require registration but what is the purpose of the NFA. It was put in as a TAX. (They lied, it was gun control).

That is how you attack the NFA.
7.7.2008 6:02pm
cboldt (mail):
-- Heller would have been the perfect opportunity for Scalia to characterize the Miller case properly, and yet he didn't. Is Scalia intellectually dishonest? --

.

That's my instinctive reaction, yes. The Miller procedural posture, ruling, and basis for ruling aren't buried in some obscure and esoteric expression. The case is direct and short.

.

That the posture was a direct appeal on dismissal of an indictment, on grounds "that section 11 of the [NFA] Act violates the Second Amendment," is in the first paragraph of the Opinion. And then, in the third paragraph, "we cannot say" as to how a short barrel shotgun fares in light of the Second Amendment.

.

I don't think it is intellectually honest to recapitulate that as "Miller was convicted" and "[the Miller Court ruled that] the type of weapon at issue was not eligible for Second Amendment protection."
7.7.2008 6:07pm
cboldt (mail):
-- The NFA went up to the Supreme Court and survived a challenge, however weak or nonexistent it was. Knocking it down after 70 years will require more than a handwave. --

.

It was nonexistent. All SCOTUS did was rule that in order to sustain striking down of the NFA on Second Amendment grounds, the lower court had to find that a short barrel shotgun "is any part of the ordinary military equipment or that its use could contribute to the common defense."

.

Although I do agree that after 70 years of misconstruction, and the irrational fear of firearms that seems to have swept over what used to be "a free people," your knocking it down may require with more than a handwave may be a pipe dream too. I don't expect the Courts to ever construe Miller honestly, or to admit the subjects to freely own personal firearms of equivalent power as their rulers and masters. Those days are gone forever.
7.7.2008 6:19pm
Steve2:
As long as this guy was using language that's generally associated with the 1st Amendment, ("time, place, &manner restrictions"), you'd think he'd have tried to attack the "sporting purpose" ban by saying a reproduction of a historic weapon has SLAPS value...
7.7.2008 6:37pm
FWB (mail):
Joseph Story, Book III, Pages 746-7, Paragraphs 1889-90

"§ 1889. The next amendment is: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."


§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.2 And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.1"

I don't see any sporting purposes in Story's work.
7.7.2008 6:52pm
Letalis Maximus, Esq. (mail):
I disagree with Mr. Volokh about the importance of this case, at least at this junction. The so-called "sporting purposes test" is incredibly important to 2A activists because, as others have pointed out, for all practical purposes it limits importation to hunting firearms. Period. Yeah sure, there are some very specialized target firearms that make it in, but not many. If, as Heller teaches us, the Second Amendment is about more than hunting, then the sporting purposes test should fall.

That being said, the factual mistakes in the Scalia and Stevens opinions in Heller, and also in the Kennedy opinion in the Baby Rape Death Penalty case, are positively scandalous. These Justices, and their big brained Ivy League Law School Grad Clerks, are supposed to be better than that. Way better. The breathtaking part of it is that in all three cases, these were factual mistakes upon which at least part of the opinions were based.

Breathtaking. And certainly worthy of being corrected, with a strong possibility of a whole new decision.
7.7.2008 7:42pm
juris_imprudent (mail):
Is Scalia intellectually dishonest?

Considering his screwing the Miller pooch - dishonest, or just too lazy to get the story straight. In Raich, absolutely dishonest [intellectually].
7.7.2008 10:50pm
JimT 76 (mail):
Let's not forget that Miller proceeded strictly on the government's brief and oral arguement. Noone even sent a brief, much less showed up to arguements, on Miller's behalf.

What are the chances one could argue that Miller should hold no value a precedent because of it?

A criminal whose lawyer doesn't show up for court would be granted a new trial for ineffective council...why shouldn't a fundemental right get the same treatment, even if the mistake was 70 years old?
7.8.2008 5:15pm
CDR D (mail):
It's just my opinion, but I think the most important words in *Miller* are, "...we cannot say...", and, "The cause will be remanded for further proceedings."
7.8.2008 5:40pm
Bruce1776 (mail):
Could Miller, itself, be used to challenge the 1986 prohibition on the private possession of new fully-automatic weapons, say, a newly manufactured M-16, on the grounds that the M-16 bears a "reasonable relationship to the preservation or efficiency of a well regulated militia"? Indeed, the M-16 IS our nation's officially adopted service rifle. The implicatiuon in Miller is that if an arm DID bear a "reasonable relationship to the preservation or efficiency of a well regulated militia", then it could not be prohibited.

Therefore, a suitable person (not a convicted felon) could sue the BATFE to issue a license and registration under the NFA for a newly manufactured M-16 (or any other fully-automatic militarily suitable small arm). If the court were to compel issuance of said license and registration under NFA, it would turn the NFA into a kind of "shall-issue" law for fully-automatics. In a sense it would be using Miller to uphold the original NFA for a second time, but incorporating the shall-issue aspect.

Such a decision would not be a radical decision, nor cause any radical change in law. It would simply nullify a single provision of a law enacted relatively recently, in 1986.
7.9.2008 5:27am