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Ninth Circuit's Sensible Response to a D.C. v. Heller Claim:

From yesterday's unpublished U.S. v. Gilbert (some paragraph breaks added):

Keith Gilbert appeals his jury conviction on one count of conspiracy to manufacture unregistered firearms ..., one count of being a felon in possession of a firearm ..., seven counts of possession of a machinegun ..., and two counts of possession of an unregistered firearm ....

At trial, Gilbert admitted to participating in each of the four controlled purchases and testified that he knew the buyer was acting as an informant. Gilbert maintains that he sold the guns to the informant intentionally, to challenge the constitutionality of firearms laws. Gilbert attempted several times to testify, twice successfully, that he believed the Second Amendment gave an individual the right to bear arms. Each time, the court sustained government counsel's objections and instructed the jury to disregard Gilbert's answers.

The court also denied Gilbert's request for an additional jury instruction to the effect that the Second Amendment affords an individual right to possess firearms for personal use. The final jury instructions included, at the government's request, the following instruction:

A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.

... The district court's instructions were particularly appropriate to rebut inferences created by Gilbert's counsel's statements that Gilbert believed the Second Amendment allowed him to possess, sell, and manufacture firearms, Gilbert's stricken statements about his beliefs regarding the Second Amendment, and his statement that he was challenging the constitutionality of the law.

The Supreme Court's recent decision in District of Columbia v. Heller, holding that the Second Amendment protects a limited individual right to possess a firearm -- unconnected with service in a militia -- does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms....

Gilbert also argues that the district court erred by preventing him from testifying as to his understanding and beliefs concerning the Second Amendment.... [T]he charges against Gilbert did not require, as an element of proof, evidence that Gilbert knowingly broke the law, only that he knowingly possessed weapons and knew the characteristics of those weapons. The only elements of proof which required inquiry into Gilbert's mental state were met: the government proved that Gilbert joined the conspiracy knowing its object and intending to accomplish it, and that he knowingly possessed machineguns and a rifle with a barrel less than 16 inches in length.

Thus we conclude that the district court acted well within its discretion to exclude Gilbert's testimony regarding his beliefs about the Second Amendment as inadmissible [as irrelevant]. For the same reason, we conclude that the district court's exclusion of Gilbert's testimony did not violate his right to present a witness in his own defense.

Whatever one might think about what D.C. v. Heller should have said about these issues (and I'm inclined to approve of its conclusions on them), it seems to me the Ninth Circuit read and applied Heller quite correctly.

Brooks Lyman (mail):
Pinch me! The 9th circuit? Correct decision? Maybe there really is a tooth fairy....

As a non-lawyer (and gun owner) I'm a bit unhappy to see these sort of bad cases - felons (or their court-appointed lawyer?) trying to twist the SC's decisions to their benefit when even a quick reading of the laws involved would make the futility plain.

I don't have any general objection to a person's trying every avenue to stay out of prison, but sometimes they (or their lawyers) ought to think before they file.
7.16.2008 8:29pm
zippypinhead:
Clearly a correct decision given Heller's dicta about the presumed continuing validity of felon-in-possession statutes and the majority's reinterpretation of Miller's "common use" test specifically as applied to machineguns. Those statements were so unambiguously clear (if not without grounds for criticism) that even the Ninth Circuit couldn't screw up this one.
7.16.2008 8:44pm
frankcross (mail):
Absolutely, but I still think it is remarkable that Heller offered up so little justification for its position on allowing these gun regulations. And "so little" might be generous. If you're inclined to approve of them, EV, why? I mean, not on policy grounds, but on the originalism that motivated Heller.
7.16.2008 8:46pm
Brett:
I disagree with Eugene. The court correctly applied Heller as far as convicted felons are concerned, but nothing in Heller stands for the proposition that there is no Second Amendment right to own a machine gun or a short-barrelled rifle. At best, the government is left to argue that machine guns and short-barrelled rifles are "particularly dangerous types of firearms" that, under Heller, government may regulate -- but the government saying that these guns are "particularly dangerous" is different from the government showing, under a meaningful standard of review, that these guns are "particularly dangerous".

I grant that the Supreme Court, as presently constituted, would likely uphold the constitutionality of the National Firearms Act. But that doesn't mean it's such a cut-and-dried question that the circuit courts of appeals are entitled to handwave.
7.16.2008 8:47pm
Sebastian (mail) (www):
I agree with Brett, but I fully expect the federal courts to draw the line at a constitutional right to own a machine gun. As a collector, I'm disappointed by that, but I just think that's the way it's going to be.

I tend to think Heller threatens precious few federal gun laws, but it might impact more than a few state and local gun laws if it's incorporated.
7.16.2008 9:20pm
jim47:
I agree that the District Court's statement to the jury about the meaning of the Second Amendment is correct as both a matter of fact and precedent, but feel compelled to use this opportunity to pine for a time and place in which juries could serve as a more active check on unconstitutional laws by hearing and sometimes taking an invitation to judge both fact and law.
7.16.2008 9:22pm
arbitraryaardvark (mail) (www):
It would seem to me - and I don't know a lot about guns in practice - that a rifle with a barrel under 16 inches would be a handgun. Heller said some things about handguns being protected by the 2nd. Heller of course also mis-represented Miller as having held that sawed off shotguns are unprotected, when that isn't what Miller said. (Heller also says that Miller was convicted; Miller wasn't convicted.) I think Brett has it right.
I am troubled by the not letting D talk to the jury. That may well be how juries work these days, but at least normatively a D should be able to argue justification as an affirmative defense. I don't know what D's prior felonies were; that might affect how I feel about that aspect of the case.
7.16.2008 9:37pm
arbitraryaardvark (mail) (www):
no, i'm wrong. that makes twice today. you'd still need both hands for a gun like that. still, I think Heller included rifles under the second amendment, and there's at least an argument that short rifles are common enough to be the sorts of things included under the second. In fact, D could appeal based on Miller, arguing that the court erred in not holding an evidentiary hearing as to whether a gun like that is of the sort either used by the militia or commonly enough used by the people. How much of Miller survives Heller is somewhat unclear. I wonder, if there's a motion for en banc rehearing, if there would be any interesting dissents if rehearing was denied.
7.16.2008 9:46pm
Kirk:
How much of Miller survives Heller is somewhat unclear.
I think that depends greatly on whether you're talking about what Miller actually held, or about the popular (judicial) misconception of Miller.
7.16.2008 9:50pm
AKD (mail):
Machineguns are not more dangerous the semi-automatic weapons when properly handled. They are only unusual in civilian ownership because of federal laws. Fully automatic or burst-capable firearms are, however, now standard issue in all branches of the US Military and are becoming more and more common in law enforcement everyday. The idea that higher rate of fire = rate of killing is a myth reinforced constantly by Hollywood (the great arbiters of justice and rationality).

16" or shorter-barrelled rifles are not pistols if they have a shoulder stock (and thus are meant to be fired with two hands like any rifle). They are unusual only because they are heavily regulated and more expensive under federal law. However, new manufacture for civilian sales is not prohibited and more and more gun owners are going through the extra expense and hassle of dealing with BATFE to own short-barreled rifles. Why? Because they are better and safer tools of self-defense (yes, safer than, say, a 9mm pistol).

They are not, however, unusual at all in the military. Scalia mentions the M16 in Heller, but the M4, a carbine derivative of the M16, is now the standard small arm of the US Army, Air Force and Navy, and is growing in use in the US Marine Corps. M4s or similar carbines are also rapidly growing in use in law enforcement.

The M4's barrel is 14.5 long and otherwise only substantially differs from the M16 in having a stock of limited adjustable length. These features make the M4 no more deadly than the M16. Technically, it is less powerful than the 20-inch barrelled M16. It is, however, easier to carry and use in a confined space (vehicle or building).
7.16.2008 10:21pm
Jim at FSU (mail):
What is the difference between a barrel with a rifle less than 16 inches and a handgun? The "rifle" has a shoulder stock. This is current federal law. Does the shape of the furniture on a weapon change whether it is constitutionally protected? This seems insane. The difference between the protected weapon in Heller and the "unprotected" short barreled rifle here is as arbitrary and irrational a distinction as I can conceive.

I call bullshit on this decision. They didn't do any actual analysis. Heller doesn't spell out a test you can apply to weapons to determine if they are protected. It said that it was probably ok to ban the carrying of dangerous and unusual weapons and still ok to bar felons and the insane. It said nothing about machine guns per se and certainly nothing about "short barreled rifles."
7.16.2008 10:44pm
Jim at FSU (mail):
I think this guy should go away based on felon in possession which is clearly constitutional under Heller.

But the court needs to either overturn his MG and SBR convictions or lay out a legal rule that permits outlawing them without conflicting with Heller. I think this is a very difficult task because the NFA effectively bans a number of weapons that are IMO clearly protected while restricting others that may not be.

Every rule I can formulate that doesn't equate to "government can do what it wants, case closed" is going to result in SBRs, SBSs and AOWs being unrestricted at a bare minimum. The same logic that protects handguns per se protects these because there is really little functional difference between handguns and these other concealable firearms.

As for silencers and machine guns and destructive devices, I think there will be weapons within these categories that aren't protected by the second amendment, but there will be many that are too similar to protected arms to formulate a rational test that permits their restriction. For example, what is the difference between an M16 and an AR15? The full auto one has the additional ability to fire in bursts, which really is functionally not different from a shotgun, another protected weapon. It's legal to own an AR-15 rifle that fires shotgun shells, so why not one that simulates this behavior with a selector switch? How about machine pistols vs regular pistols? What really separates a Glock 18 from a Glock 17?

Anyway, this is the sort of analysis that needs to be performed before appellate courts dispose of cases like this.

My opinion, probably won't be followed, etc, etc.
7.16.2008 10:56pm
Brett Bellmore:

it seems to me the Ninth Circuit read and applied Heller quite correctly.


While, as is SOP, rendering the right to trial by jury a hollow shell, a right to be tried by a jury of "mushrooms".
7.16.2008 10:59pm
chris m (mail) (www):
i think that if, IF the NFA gets challenged successfully, it would be done so under the guise of the "in common use" phrase in Heller...

the argument would be that machine guns were actually in common use before the NFA and subsequent laws took them out of common use... therefore they are items that were intentionally taken out of use by legislative action...

now im not a lawyer or someone that could possibly raise the proper arguments to take it to court... but the right lawyer and a client with deep enough pockets should be able to win on those grounds...

as for the above case, yes that was decided correctly... and i hope the opinion is narrow enough to keep it from being used too much as a precedent...
7.16.2008 11:38pm
Dave Hardy (mail) (www):
Pinch me! The 9th circuit? Correct decision? Maybe there really is a tooth fairy....

To quote a local judge, upon being told that an attorney of, er, marginal skill, had won a big verdict:

"Even a blind hog can find an acorn now and then."
7.17.2008 12:08am
Tony Tutins (mail):

a rifle with a barrel under 16 inches would be a handgun.

This requires delving into the policy behind the NFA. Why have a National Firearms Act to begin with? I believe it was to "limit the firepower" of the gangs who used (relatively) easily concealable Thompson submachine guns and sawed-off shotguns. Both of these could throw a lot of projectiles into the air in a short time. If I'm not mistaken, at the time handguns were chambered to fire handgun cartridges, not the "high-powered" rifle cartridges. (Note for completeness that some .45s could shoot .410 shotgun shells, and pistols as well as rifles could shoot relatively low powered .22 caliber cartridges.)

But, unlike the other two taxable weapons, while a short-barreled rifle was concealable, it couldn't fire more than one round per trigger pull. However, the kinetic energy of the fired bullet was much higher than a handgun bullet.

So, does it make sense to regulate short-barreled rifles under the NFA? If kinetic energy of the bullet is what's really being regulated, what about the Thompson Contender, a pistol with interchangeable barrels, some of which can fire rifle cartridges?
7.17.2008 12:16am
Jim at FSU (mail):
Tony, the NFA originally banned handguns as well, but congress changed it's mind at the last moment because it would create too much political backlash.
7.17.2008 12:19am
Jim at FSU (mail):
Also, short barreled rifles aren't more powerful than handguns.

There are two things that limit power in a weapon:
-pressure
-barrel length
Pressure determines how much force you can apply to the projectile, barrel length determines how long you can apply that force to the projectile. Pressure is limited by metallurgy, ultimately.

The end result is that for a given level of barrel manufacturing technology, the determinant of how fast the bullet goes is how long the barrel is. A short barrel with a rifle cartirdges just make a huge fireball in front of the barrel. Most of the propellant doesn't make the bullet faster, it just makes a bigger bang.

This is borne out many times over history. For example, when the israelis switched to 10.5inch M4 carbines, they quickly discovered that they weapons had almost no stopping power because the bullets had too low a velocity to fragment even at point blank range. Meanwhile, the same weapon with a 20 inch barrel will have enough velocity to fragment at 150-200 yards.
7.17.2008 12:24am
Houston Lawyer:
I see guys at the range with .308 pistols with scopes mounted on them. They claim to use them to hunt deer in the big thicket.

Why is that gun OK, but a longer gun with a stock not OK?
7.17.2008 1:59am
Kirk:
Also, short barreled rifles aren't more powerful than handguns.
You simply can't make that as a blanket statement. The 14.5" M-4 is a SBR. You have to get something on the order of the .454 Casull to obtain, in a handgun, the same amount of muzzle energy as the 5.56x45 fired from the M-4, and only a small fraction of the population will be comfortable handing one of those beasts.

The problem with bullet performance is real, of course, but that's just an argument for picking a round designed with your actual barrel length in mind (including both bullet design and the choice of powder.)
7.17.2008 2:08am
Kirk:
Houston Lawyer,

That's a rhetorical question, right?




[ Yeah, so is this... :-) ]
7.17.2008 2:09am
Tom Shipley:

The final jury instructions included, at the government's request, the following instruction:

A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.


Information obtained from the Colt Arms web site:
http://www.colt.com/mil/news.asp

April 2, 2007
Army Position on the M4 Carbine - Soldiers Battlefield Weapon of Choice

The M4 Carbine is the Army's primary individual combat rifle for Infantry, Ranger, and Special Operations forces. ...
The Army has approximately 225,000 M4/M4A1 carbines in the inventory, with more procurement programmed.

[The] Colt M4 Carbine is a versatile weapon... [f]eaturing a 14.5 in. (37 cm) barrel...


Professor Volokh:

As I understand Miller (IANAL), Miller's shotgun with the shortened barrel was deemed to not be "a military weapon" (my quotes). I have not read all of the Heller Decision and thus do not know if rifles with 16 inch barrels are mentioned or not.

How then can the Ninth Circuit or other Federal Court resolve or parse Miller vs Heller vs Gilbert if the "Army's primary individual combat rifle for Infantry, Ranger, and Special Operations forces" has a "14.5 in. (37 cm) barrel"?

Thank you for the opportunity to pose this question.
TS

+ + + + +

a tip of the hat to AKD at 7.16.2008 9:21pm for noting the 14.5 inch length of the barrel of the M4
7.17.2008 2:21am
David Chesler (mail) (www):
I have not been part of the Unorganized Militia of the Commonwealth of Massachusetts for a couple of weeks now, which means I'm old enough to know the difference between "how it ought to be" and "what will get you thrown in jail".

Nevertheless, echoing other comments on Miller, how do you get from "the Second Amendment protects a limited individual right to possess a firearm -- unconnected with service in a militia" -- that is, there is a right to possess a firearm not used by a militia, to there is no right to possess a firearm that is used by a militia?

It feels like a sleight of hand. For decades they've been dangling this little bit from Miller, that if only sawed-off shotguns had been used by the militia (ahem), they would have been protected; now they distract us with a non-militia-firearm right (and for those who can properly read the opinions to find it, a recognition that there is that individual right that had been obvious to some of us for a long time) while jerking away that old right that somehow we never got any use of.
7.17.2008 2:30am
Jim at FSU (mail):
Kirk, you only get that particular result because you are comparing a slow heavy round to a light quick round- because kinetic energy is the square of velocity, you get an apples to oranges comparison.

If you compare rifle caliber pistols to rifle caliber SBRs, you get identical results. If you compare pistol caliber SBRs to pistols, you get identical results.

You can make very powerful pistol/short barrel rounds, but the tradeoff is that you have to load to very high pressures. Those same pressures stretched out over a full length rifle barrel results in much higher velocity, up to a certain point.
7.17.2008 2:46am
Brett Bellmore:

As I understand Miller (IANAL), Miller's shotgun with the shortened barrel was deemed to not be "a military weapon"


Not quite. They simply said that nobody had informed them that it was a military weapon, and sent it back to the lower court to make that factual determination... which never happened, because Miller was dead. It's pretty much agreed that otherwise Miller would have had no trouble proving that short barreled shotguns WERE in military use, in trench warfare.

That's why, IMO, the Court was so nervous about Miller: Theoretically, all you'd have to do under Miller was provide that evidence to a lower court, and the NFA would fall.
7.17.2008 5:56am
PersonFromPorlock:
I'm beginning to think the sum total of Heller will be: "The right to keep and bear arms is an individual right. So?"
7.17.2008 10:01am
Jim at FSU (mail):
I don't think anyone here expected Heller would do anything other than get us into court in places like the 9th circuit. Most of the battle is still ahead of us by years. It's good that we getting such a great demonstration of the narrow scope of Heller before the election.
7.17.2008 10:05am
David Chesler (mail) (www):
They simply said that nobody had informed them that it was a military weapon, and sent it back to the lower court to make that factual determination... which never happened, because Miller was dead.

What is the history that nobody else was able to get a lower court to make that determination? (If only the VC archives went back that far, I'd look for the post-Miller roundup entries. Clayton Cramer or Dave Kopel have probably well explained somewhere when people realized what NFA allowed them to do, and when other people began to push back. What are the origins of the modern gun banning and gun rights movements?)
7.17.2008 10:18am
Jim at FSU (mail):
Depends how modern you mean. It came in waves separated by a few decades. Seminal periods are:
-1934 after prohibition was repealed and the revenuers were given a new law to enforce. This gave us the NFA which restricted all concealable arms minus handguns, machine guns and suppressors.
-within a year of Miller, US v Cases rejects the reasoning of Miller because it would protect handguns and other guns the court doesn't like. Determines that Miller can't be adopted literally because it would lead to results that would frighten them.
-for 60 years, courts follow the lead of Cases and treat Miller as if it stood for collective rights proposition without analysis. This is VERY similar to what courts are doing now with Heller. They're squinting really hard to avoid seeing the text of Heller and then arbitrarily saying it leads to the policy decision they want.
-1968, rioting negroes (MLK got shot, rage ensued), whining domestic manufacturers (milsurps and cheap EU handguns were undercutting inflated domestic prices) and anti-gun forces (who wanted whatever they could get) converge to create FFL system and other restrictions on RKBA. New concepts of "destructive device", "sporting purposes", "federal firearms licensee" (dealer/manufacturer) implemented. ATF harassment of dealers and law abiding gun owners continues for the next 18 years until the FOPA reform is passed.
-sometime between 68 and 72, various NRA members begin to contemplate turning NRA into political organization instead of conservation group. They succeed in 72 (or was it 73) and modern NRA is born.
-gun control push continues at the state level throughout 70s and 80s but is largely beaten back by NRA and allies. This leads to state level preemption of handgun bans.
-gun control becomes a popular federal political meme in 1990s. Many rural democrats go along with cities to pass additional federal restrictions. This ends poorly for them.
-2000+, gun control increasingly becomes political albatross, we begin winning in courts
7.17.2008 10:57am
BlackX (mail):
I'm disappointed. The "Sensible Response" sounds a bit like Brady's "Sensible Gun Laws". (In the 2A context, the term "sensible" has been coopted by Brady &Co. and any attempt to repatriate it shouldn't be in the same direction.) I can understand the non-felon position, even if I don't necessarily agree with it completely. (For instance, why should a non-violent felon forego the right to adequately defend themselves once they're served their time?) But, foregoing the sidetrack, every law-abiding U.S. citizen should have the right to keep and bear anything a grunt commonly carries. To me, this sounds like the beginning of the whittling away of some of the positive possibilities that Heller opened up.
7.17.2008 10:59am
Duncan Frissell (mail):
Whatever one might think about what D.C. v. Heller should have said about these issues (and I'm inclined to approve of its conclusions on them)

Where does this anti-liberty stance on your part come from, Eugene?

Certainly persons in the US in the 18th century believed that they could possess any weapons they could afford. There weren't a lot of distinctions made between "military" and "civilian" weapons.

Felons could possess as well.

And what is the value of this sort of regulation when we will soon be able to "print" weapons and propellants of any kind at need and recycle them after use.

Wouldn't it make more sense to adjust the regulatory framework so we could learn to deal with an unlimited weapons environment before we find ourselves thrust into one by desktop fab stations and such?
7.17.2008 11:06am
NickM (mail) (www):
The district court did not say there is no right to possess a SBS/SBR. Its jury instruction said that there is no right to possess an unregistered SBS/SBR. The Ninth Circuit's decision went beyond that, saying there is no right to possess a SBS/SBR. While I think affiramce was correct, I don't agree that this is a proper reading of Heller.
Registration requirements are not necessarily infringements, especially if they are not onerous or futile (i.e., not disguised attempts to ban). In fact, they can be attempts to further the purpose of maintaining the unorganized militia - if a state wished to call people into service, it would certainly help to know who could bring what with them. In modern practice, they are often thought of as a prelude to confiscation or as backdoor prohibitions, but historical practice in the U.S. was not always so.
I think the Ninth's opinion is too broad in an unfortunate way, and I'm very glad it's unpublished.

Nick
7.17.2008 11:16am
Paul Milligan (mail):
"At trial, Gilbert admitted to participating in each of the four controlled purchases and testified that he knew the buyer was acting as an informant. Gilbert maintains that he sold the guns to the informant intentionally, to challenge the constitutionality of firearms laws."

Suuuuure he did. He intentionally committed Federal felonies that could get him 40 years or whatever in prison without parole, KNOWING that he was ABSOLUTELY GOING TO BE CAUGHT AND CHARGED, ZERO 'hope of getting away with it' that usually drives criminals, in order to 'challenge a law'.

Uh huh.
7.17.2008 11:25am
Eli Rabett (www):
What if the felony was possessing a handgun?
7.17.2008 12:30pm
Realist Liberal:
arbitraryaardvark~

I am troubled by the not letting D talk to the jury. That may well be how juries work these days, but at least normatively a D should be able to argue justification as an affirmative defense.

The problem with that argument is that the crime of being a felon in possession is a strict liability crime and it is nearly impossible to make an affirmative defense for a SL crime unless the statute itself authorizes it. For example, in CA a felon can possess a gun if (1) he is taking it to the police, (2) he is going directly to the police AND (3) he notified the police station ahead of time that he was on his way to give them a firearm he found. Justification defenses have all been codified either in case law or statute and courts seem to have decided that they will not accept any more absent extremely unusual circumstances.
7.17.2008 12:45pm
AKD:
In other news, DC denied Dick Heller's post-Heller attempt to register a 7-shot semi-auto pistol:


WASHINGTON (WUSA) — District residents can start registering their guns today. But at least one very high profile application was already rejected.

Dick Heller is the man who brought the lawsuit against the District's 32-year-old ban on handguns. He was among the first in line Thursday morning to apply for a handgun permit.

But when he tried to register his semi-automatic weapon, he says he was rejected. He says his gun has seven bullet clip. Heller says the City Council legislation allows weapons with fewer than eleven bullets in the clip. A spokesman for the DC Police says the gun was a bottom-loading weapon, and according to their interpretation, all bottom-loading guns are outlawed because they are grouped with machine guns.

Besides obtaining paperwork to buy new handguns, residents also can register firearms they've had illegally under a 180-day amnesty period.

Though residents will be allowed to begin applying for handgun permits, city officials have said the entire process could take weeks or months.

WUSA9.com
7.17.2008 1:20pm
AKD:
Oh, and my guess is he tried to register a Colt 1911, i.e. standard sidearm of the US military from 1911 to 1985.
7.17.2008 1:25pm
AmadorLuLu (mail):
"limited right" is not the way I would describe the Heller rule.
7.17.2008 1:38pm
PersonFromPorlock:

A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun.

If this is true, then by extension isn't it also true that under the First Amendment a person does not have a right to political speech? The First no more says "political" than the Second says "machine gun."
7.17.2008 1:40pm
Ryan Waxx (mail):
Pinch me! The 9th circuit? Correct decision? Maybe there really is a tooth fairy....


Why be suprised? The "correct descision" was in the direction of keeping the scope of the RKBA narrow. This is approximately as suprising as finding out a Obama-appointed justice supports Roe.

Given what issues were at stake in the case, the only way it could have been more anti-gun would be to totally ignore Heller, or to declare additional restrictions on the RKBA that were not relevant to the case.

This case doesn't have anything to reveal as to weather the cereal circuit is still full of fruits, nuts and flakes.
7.17.2008 1:42pm
zippypinhead:
In other news, DC denied Dick Heller's post-Heller attempt to register a 7-shot semi-auto pistol
Good for Dick Heller! I have a pretty strong hunch that Alan Gura will be filing Heller v. D.C. (II) before the close of business today, challenging the District's prohibition on detachable-magazine semi-automatic firearms as violating the Second Amendment right laid out in the Supreme Court's Heller case (henceforth to be known as "Heller I").

I know of no knowledgable commentator other than Helmke and some of the D.C. city officials he advised on how to draft their new ordinance who believe that banning self-loading pistols such as an M1911 meets the Heller/Miller "common use" test. According to BATF statistics, as of 2006 73% of handgun sales in the U.S. are semi-autos.

My fearless prediction: the U.S. District Judge who gets Heller II will fairly quickly issue a preliminary injunction prohibiting enforcement of D.C.'s "machinegun" ban insofar as it prohibits registration of semi-automatic pistols. This will be followed by a final injunction that the D.C. Circuit will affirm, and the Supreme Court will deny certiorari. And then District officials will come up with an entirely new scheme to violate the Second Amendment. Mark my words...
7.17.2008 1:44pm
zippypinhead:
In response to some of the comments decrying the NFA:

There's a major wrinkle in attacking the National Firearms Act's regulatory scheme: It actually bans nothing. Rather, machineguns and short-barrelled shotguns/rifles are subject to registration requirements and a $200 tax fee. In Heller, the Supreme Court signaled that firearms registration may well pass Constitutional muster. Since the NFA technically bans nothing, I doubt challenges to that particular statute will be successful.

On the other hand, the Hughes Amendment to the 1986 FOPA, 18 U.S.C. §922(o), does explicitly prohibit registration and private ownership of machineguns manufactured after 1986. This statute has some similarities to the D.C. handgun ban that the Court struck down. Thus, if one wishes to challenge machinegun restrictions under Federal law, it would be more fruitful to go after the Hughes Amendment.
7.17.2008 1:50pm
limaxray:

There's a major wrinkle in attacking the National Firearms Act's regulatory scheme: It actually bans nothing. Rather, machineguns and short-barrelled shotguns/rifles are subject to registration requirements and a $200 tax fee. In Heller, the Supreme Court signaled that firearms registration may well pass Constitutional muster. Since the NFA technically bans nothing, I doubt challenges to that particular statute will be successful.


But if a SBRs or MGs are in fact protected by the Second Amendment, charging a $200, or even a $0.25 tax to register them would be unconstitutional. This would be equivalent to a poll tax requiring you to pay a fee to register to vote or speech tax requiring you to register your controversial thoughts and pay a fee before you could utter an opinion. Clearly not constitutional.

Furthermore, the original purpose of the $200 tax was to significantly limit who could own such weapons. Remember, in 1934 that was some serious change. Some have even suggested a concern over this tax being raised again to unaffordable levels as a way the thwart the advancement of the RKBA. Depending how post-Heller litigation goes, I would not be surprised if congress (or the BATFE, god help us) tried to do such a thing.

Regardless, even without the tax, the registration process is a feat of significant magnitude, making such weapons out of the reach of all but the most determined. It is designed this way for the very purpose of minimizing the number of people who own such weapons.
7.17.2008 2:21pm
Johnnie (mail) (www):
The court was wrong on the machineguns. Federal law allows for the lawful ownership of machineguns. Ownership does require having the firearm registered as having paid the $200 transfer tax. They are commonly called Class III weapons. Funny that the court realized that short barreled rifles are legal but restricted. I noticed the same igornance in the Heller decision that seem to believe that Americans can and do legally own machineguns. There are hundreds of thousands of them out there and legal too.
7.17.2008 2:22pm
Jim at FSU (mail):
They're called Title II firearms. The guys who sell them are called Class 3 Special Occupational Taxpayers or SOT3.

During oral arguments, the justices pointed out that machine guns weren't currently banned.

Furthermore, Scalia didn't say that "laws banning machine guns" were presumptively OK, he said that "laws forbidding the carrying of dangerous or unusual weapons" were ok.
7.17.2008 2:32pm
Bruce Hayden (mail) (www):
When did the definition of a machine gun start including semiautomatic handguns? I think the District looks a bit silly here redefining the term to encompass the majority of handguns, esp. in view of Heller.

Essentially, what they are doing is saying that Heller appears to allow regulation of machine guns, so they will call semiautomatic handguns machine guns in order to regulate them.

I have no doubt though that the Supreme Court meant this definition: 26 USC 5845(b):
The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
7.17.2008 2:44pm
zippypinhead:
In other news, DC denied Dick Heller's post-Heller attempt to register a 7-shot semi-auto pistol

Actually, it looks like the WUSA9 website may have gotten some facts wrong. According to the Washington Post, Dick Heller was, indeed, turned away at registration. But the reason was that he did not physically bring the handgun he wanted to register -- submitting the actual firearm to MPD is required for ballistics testing. He declined to bring the firearm on the advice of counsel, who was concerned that the law permitting transport of a firearm for this reason wasn't clear. Upon being assured he would not be arrested, Heller said he would return later with a handgun to register.

The wrinkle: Dick Heller owns at least two handguns (which are legally stored in Maryland). One is a revolver, the other is a .45 semi-automatic (from other press reports, probably an M1911?). D.C. officials apparently have suggested that the M1911 is defined as an illegal "machinegun" under local law and
[Deputy Chief] Newsham said if anyone shows up to register a semi-automatic pistol that fits the city's definition of a machine gun, police will confiscate the illegal gun but will not immediately arrest the owner. He said police reserve the right to investigate and eventually charge such an owner with violating the machine-gun ban.
So even showing up to try to register a semi-automatic pistol will put you at risk of eventually being charged with a crime. What a wonderful city...
7.17.2008 2:46pm
Dan Hamilton:

Registration requirements are not necessarily infringements....In modern practice, they are often thought of as a prelude to confiscation or as backdoor prohibitions, but historical practice in the U.S. was not always so.

Nick



Nick in what USA have you been living?

California and New York at the very least have used registration then confiscation. It goes back to what started the Revolutionary War. Confiscation AWAYS follows registration. That is the purpose of the Registration. Since felons don't have to register their guns, what other purpose could it have?

NFA is unconstitutional because it is taxing a right and you can't do that. Because if you could then you could place ALL firearms under NFA and then place a tax of $100K on each weapon. What was the stated purpose of the NFA? Revenue! Not gun control. The gun controlers couldn't tell the truth even back then.

Since the NFA is directly effecting MILITIA weapons. Again it should be knocked down. The judges will not do it because they HATE the idea of an armed people. They had to do Heller as an individual right or they would have looked really stupid and could of caused MAJOR problems. But actually support the 2ed? NEVER.
7.17.2008 3:22pm
Justin (mail):
"some paragraph breaks added"

Somebody misses his clerkship days on the 9th Circuit. :)
7.17.2008 3:30pm
Kirk:
Jim,

Awesome summary. I would only add the minor nit that the pre-72 NRA wasn't just about "conservation", marksmanship has always been in import focus of the organization.
7.17.2008 3:33pm
Railroad Gin:
If, in spite of the Supreme Court's decision, Heller still can't register a 7-round weapon, then I think the 9th Circuit is on pretty solid ground with respect to full-autos and felons-in-possession laws. I'm not saying I like it, but the ruling seems correct.

I'm curious about what the next step would be here. Challenging the registration requirement or the limitation on ammo capaicity. I'd think the latter would be a little easier to challenge but that's just a guess.
7.17.2008 3:37pm
PersonFromPorlock:
Bruce Hayden:

Essentially, what they are doing is saying that Heller appears to allow regulation of machine guns, so they will call semiautomatic handguns machine guns in order to regulate them.

It's the Humpty Dumpty school of law:

'When I use a word,' Humpty Dumpty said, in a rather scornful tone,' it means just what I choose it to mean, neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master - that's all.'


AKA legal positivism.
7.17.2008 3:42pm
AKD:
zippypinhead,

Yes, I saw that after posting as well. Thanks for clarifying. Heller was told that he could legally transport the gun into DC for registration (and it would seem to me that such transportation would only be legal under the time-limited amnesty provisions), but was also told that if the gun was a "machinegun," they would confiscate it and potentially charge him with a crime. So for all intensive purposes, his attempt at registration has been denied.

As an interesting aside, I can think of only two semi-auto handguns that would be legal under DC's new scheme, both around 100-years-old:

The Steyr-Hahn pistol:

http://www.a-human-right.com/styer1912-3.jpg

And the Mauser C96 in semi-auto only form (which is, interestingly, banned in California as an assuault weapon because the magazine is forward of the trigger guard):

http://www.a-human-right.com/c96-5.jpg
7.17.2008 6:12pm
PersonFromPorlock:
AKD:

There was also an earlier Steyr, quite distinct from the Steyr-Hahn, that was charger-loaded.
7.17.2008 10:29pm
NickM (mail) (www):
Dan, apparently you've never heard of the Militia Census of 1806. Back then, it was mandatory that members of the militia provide their own arms when called into service. Are you really suggesting that President Thomas Jefferson was a gun-grabber?

As for the taxation of a right, any purchased product of the press is taxable. Voting was even taxable until there was a specific constitutional amendment to prohibit that.

Nick
7.17.2008 10:34pm
Kingsley Browne (mail):
I'm guessing that the Court will not buy the "registration is just a prelude to confiscation" rationale. I would expect it to say that because under Heller confiscation would be unconstitutional, registration could not lead to confiscation.
7.18.2008 11:15am
PubliusFL:
Kingsley Browne: I'm guessing that the Court will not buy the "registration is just a prelude to confiscation" rationale. I would expect it to say that because under Heller confiscation would be unconstitutional, registration could not lead to confiscation.

Because, of course, the Bill of Rights in general and the Second Amendment in particular are based on the premise that the government would never try to do something unconstitutional. Heavens, no!
7.18.2008 5:46pm