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.
All Related Posts (on one page) | Some Related Posts:
- Felons and the Right To Bear Arms:
- Interesting Tenth Circuit Concurring Opinion on the Right To Bear Arms and Felons:
- Pipe Bombs Unprotected by the Second Amendment:...
- One More Early Post-Heller Second Amendment Opinion:
- Another Early Post-Heller Second Amendment Case:
- One of The First Post-Heller Second Amendment Opinions: