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District Court Upholds Ban on Machine Gun Possession:

See U.S. v. Hamblen (M.D. Tenn. Dec. 5):

At the same time it recognized a Second Amendment right for an individual to bear arms, the Heller Court limited the scope of that right within the context of its own opinion:

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 was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

* * *

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. United States v. Miller, 307 U.S. 174 (1939), said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'

Thus, the Heller Court made clear that the Second Amendment right it recognized did not include possession of weapons by certain categories of individuals, or possession of weapons in certain places, or possession of certain types of weapons. The Court specifically discussed the types of weapons that were not protected by the Second Amendment in distinguishing the Miller case:

Read in isolation, Miller's phrase 'part of ordinary military equipment' could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.... We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns....

The conclusion that the Heller Court did not extend Second Amendment protection to machine guns, in particular, is supported by the lower federal courts that have addressed the issue. In United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008), the Eighth Circuit held that the defendant's possession of a machine gun was not protected by the Second Amendment under Heller: "Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use."

In United States v. Gilbert, 286 Fed. Appx. 383, 2008 WL 2740453 (9th Cir. July 15, 2008), the Ninth Circuit approved a jury instruction that an individual does not have a Second Amendment right to possess a machine gun or a short-barreled rifle. The court explained that under Heller, "individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did ..." The Petitioner argues that the limitations placed on the Second Amendment right to bear arms by the majority opinion in Heller can not square with the Court's earlier decision in Miller. Whatever merit there is to that argument, however, this Court is bound by the Heller opinion as written.

Pinkycatcher (mail):
So we can't have machine guns because they are not common because they are banned by the government, they are banned because they are not common, they are not common because they are banned, they are banned because they're not common.... etc?
12.9.2008 12:18pm
greyarcher315 (mail):
While I am not sold on the idea that machine guns should be available to everyone, I do not care for that language. Common use for lawfull purposes is too open to a change in the laws making any type of gun unlawful. Which defeats the purpose of the right.
12.9.2008 12:23pm
SeaDrive:

The court explained that under Heller, “individuals still do not have the right to possess machineguns or short-barreled rifles,...


Perhaps you could elaborate on "right to possess", as compared to "can get a license to possess after a background check, with proof of adequate training, and with the serial number on file."

Here in Connecticut, you have a state constitutional right to bear arms, but to carry a handgun, you have to have evidence of firearms training.
12.9.2008 12:25pm
Sebastian (mail) (www):
It doesn't make much sense logically, pinkycatcher. But I doubt you'll see the federal judiciary willing to embrace machine gun rights. Hell, we'll be lucky if they are willing to go much beyond outright bans being unconstitutional.
12.9.2008 12:27pm
Sebastian (mail) (www):
Common use for lawfull purposes is too open to a change in the laws making any type of gun unlawful. Which defeats the purpose of the right.

Presumably a gun that was already common couldn't be constitutionally restricted. It was a clever way to preserve the status quo on machine guns, without directly addressing the issue. I am skeptical we'll ever see any court invalidate the National Firearms Act.
12.9.2008 12:33pm
constitutionalilst:
I am of the opinion that the people should be able to possess any firearm that can be used by a single soldier, including machine guns, RPGs, etc. As part of the militia (which is separate from the National Guard), citizens should have tools to defend themselves from an oppressive government.
12.9.2008 12:35pm
ForWhatItsWorth:
"....924(a)(2) (Count One), and with possession of certain machine guns that were not registered, in violation of 26
U.S.C. §§ 5841, 5861(d) and 5871...."

Can I say, "what an idiot?" If the guy knows enough to own full-auto weapons, he should know special paperwork is required to possess them.

You CAN easily possess full auto. It is a bit more paperwork and a "tax," but it isn't hard at all. I own several as collectors and I am totally legal. So don't know what this guy's problem is.

Now, as to the question of whether we should have to go through that extra work to possess one, that is a different issue altogether...... but possession, itself, is not.

Class III dealers are a little more rare, but they aren't that hard to locate.
12.9.2008 12:40pm
tjvm:
I think the "common use" rationale is a serious latent problem with the Heller decision. If the government can ban something on the ground that it's not in common use -- even if the REASON it's not in common use is that it's historically been banned -- then it seems to me that the government can ban any new gun technology as it comes along, on the basis that it's never been in common use and is therefore not protected. Indeed, the "common use" rule might even give the government an incentive to do so, because if they don't ban something immediately, and it becomes commonly used, they'll lose their ability to ban it.

Sometimes when people are arguing about the second amendment, you'll hear an opponent of gun rights say, "Fine, we'll give the second amendment its original meaning -- you have the right to keep and bear muskets." It seems to me that Heller creates a similar absurdity by freezing gun rights at early 21st-century technology. Of course, it may be many years before this becomes a real practical problem (i.e., before current firearms are obsolete).
12.9.2008 12:42pm
repeal922o:
Baby steps is needed with regards to NFA. First step is to eliminate the '86 manufacturing ban on "transferable" machine guns. For "regular" folks who live in one of the 30+ states that allow possession of machine guns as long as the Fed. laws are followed, there is a limited "pool" of pre-86 transferable machine guns, some put this number at around 100,000 nationwide. This has caused guns that would cost 300-600 dollars (full auto Mac10, Stens) to cost $3000+.

I think repealing 922(o) would be "good enough" for most people interested in owning machine guns, as that act alone will bring prices down to where more people can afford them, with the $200 NFA transfer tax. The harder part then is to get the rest of the states to repeal/change their machine gun possession laws.

Second step is to eliminate the transfer tax, or reduce it to a level where it is to simply pay for the administration of the NFA registry.
12.9.2008 12:49pm
einhverfr (mail) (www):
Personally, I thought the Heller court adopted a somewhat strange reading of Miller. My own reading of Miller was that one had to provide evidence that ownership of a specific class of weapon bore a reasonable relationship to the militia interest rather than categorically upholding the restrictions.

I also thought that the review of the machine gun ban was the only part of Heller that could reasonably be compared to Roe because there the Heller court thus addressed an issue that was not before it at all (Heller was not seeking to purchase a machine gun).

By my review, Heller may not have been the solid victory that many thought but actually a narrowing of previous articulated rights by past courts.
12.9.2008 12:55pm
ForWhatItsWorth:
tjvm, you have a good point. I think the hoopla over full-auto is, once again, based upon unfounded fear. They are trying to figure out ways to keep them out of our hands.

The thing that kills me is how little knowledge people have of these firearms or any firearm. I possess a few for historical purposes and as a collector. I do shoot them on occasion, out at an official shooting range. They always attract significant attention...... of the curiosity type. The range officers are particularly interested in them.

They are great fun to shoot, no doubt. My HK MP5 was my military standard issue weapon, so it has some historical value for me..... the model, not the actual MP5 I was issued, since that is still in the government inventory, of course. Likewise an M-14 (select fire). Same reasons for wanting to possess one. Would I use either for self defense? Not very likely.

More to the point, if we were to consider the number of legally owned full-auto weapons used in any crime, I believe the number would end up being a goose-egg. In that case, it would seem that they are the safest of all weapons, right? he he he.
12.9.2008 12:57pm
Allan Walstad (mail):
DC defines semi-auto pistols as "machine guns," doesn't it? Any ideas on what's going to happen with that?
12.9.2008 12:57pm
einhverfr (mail) (www):
Personally, I don't think legal precedence should be at all governing where the issue was not decided as a necessary part of the case. I would feel more comfortable with an idea similar to the way collateral estoppel is addressed (i.e. a finding of fact which is extraneous can be relitigated, one which was central to the case cannot, though changes of circumstances may apply).
12.9.2008 12:58pm
einhverfr (mail) (www):
Allan Walstad:

DC defines semi-auto pistols as "machine guns," doesn't it? Any ideas on what's going to happen with that?


I think the DC law and the federal law are separate. I don't think calling something a "machine gun" addresses the opinion of the court in Heller.
12.9.2008 1:06pm
Pippin:
Heller is turning out to be a disaster.
12.9.2008 1:11pm
FWB (mail):
Total BS. So who has the "crystal ball" with whic to determine what is good and what is bad? That bunch of jack-booted thugs who do everything they can to make society their way? Maybe, just maybe, their way is WRONG!

Limitations on one using a weapon to kill another without provocation - ok. limitations on what one likes versus what another dislikes - not ok.

It's alright because in the end each of these judges that makes up lies concerning the Constitution will get theirs. A greater judge will deal with them.

Dominus providebit!
12.9.2008 1:12pm
pintler:

You CAN easily possess full auto. It is a bit more paperwork and a "tax," but it isn't hard at all. I own several as collectors and I am totally legal. So don't know what this guy's problem is.


Remember that, in many cases, the 'little bit of paperwork' will have to be preceded by moving to another state. I would be surprised if even 50% of the population lives in a locale where full auto is allowed.
12.9.2008 1:25pm
Houston Lawyer:
Whether or not you can own a machine gun is often up to the whim of the chief law enforcement officer in your community. I don't see how this standard can survive any type of judicial review.
12.9.2008 1:49pm
ForWhatItsWorth:
pintler, you are right. I have never lived in a state that wouldn't allow it, except my time in Hawaii. Since I was active military and living in military housing, it wasn't a problem there, either.

However, your point is well made, at least in terms of population. I think 33 states allow it now. I would refuse to live in any state that didn't. Given the number of crimes committed by those possessing legally owned full-auto firearms, it is ridiculous, if not entirely assinine to deny a law abiding citizen the possession of those.

Ah well...... :)
12.9.2008 1:57pm
Jim at FSU (mail):
Why am I the only person that has noticed that the "dangerous and unusual" language is lifted from an ancient statute controlling the public display of weapons and not their possession?

Or is it that the court is unable to distinguish between private possession and public carrying?
12.9.2008 2:06pm
Gordo:
I don't think any private citizen should be allowed to own a fully automatic machine gun. Any reading of the 2nd amendment to allow a private citizen to be allowed to own a fully automatic machine gun should also allow a private citizen to own a fully-armed nuclear weapon.

And as for anyone who actually "wants" to own a machine gun, I would suggest that you are either a hardened criminal or a crazed gun nut who should go live on a desert island somewhere.
12.9.2008 2:15pm
einhverfr (mail) (www):
Gordo:

I am not entirely sure. If you limit 2A to ordinary military equipment (meaning standard issue, infantry equipment), then a nuclear bomb wouldn't qualify, nor would a nuclear demolition munition. However, an AK47 and an M16 would qualify. A heavy machine gun might or might not.

BTW, I do not own a firearm and have no desire to. However, I have commissioned J Arthur Loose to make a sword for me....

The real question though is whether the danger of criminals legally having access to a larger set of fully military-grade weapons would be in our best interest as a society. Personally I think ownership of fully-auto machine guns might well be protected under 2A using a general plain reading of Miller. However, I think that a compelling interest in avoiding a situation where organized criminals might really make things impossible for law enforcement is worth considering. My own preference would be to provide some legitimate avenues for possession of such weapons, while holding ownership to a higher standard than would be the case for mere handguns.
12.9.2008 2:30pm
pintler:

And as for anyone who actually "wants" to own a machine gun, I would suggest that you are either a hardened criminal or a crazed gun nut who should go live on a desert island somewhere.


Many years ago, a friend owned an H&K MP5, 'just because'. He was an employee of H&K at the time. He went on to serve in the US Army until retirement, then as a deputy sheriff for a time. If he had been exiled to a desert island would you have served in his place?
12.9.2008 2:35pm
einhverfr (mail) (www):
FWIW:

Can I say, "what an idiot?" If the guy knows enough to own full-auto weapons, he should know special paperwork is required to possess them.


Sure, and I think such paperwork is reasonable under the compelling interests the state has in limiting the access criminals have to these weapons. I don't think an outright ban is something I would support though.
12.9.2008 2:37pm
Pippin:
Gordo, were the American colonials "crazed gun nut[s]"?
12.9.2008 2:50pm
ForWhatItsWorth:
Gordo: "....I would suggest that you are either a hardened criminal or a crazed gun nut who should go live on a desert island somewhere....."

I am assuming you read my prior posts and know that I am one of those you are directly insulting. SO exactly how ignorant are you?

I have never committed a crime (other than a traffic ticket), was security-cleared thru the gazoo for the entire 25 years of my military career. So your "suggestion" is insulting, ludicrous and, if I may be so bold, libelous. I'll let a lawyer here determine the latter.

I suspect that you own a vehicle that can go faster than 15 to 25 mph, right? Why do you "need" it? Your desire to own one that can go so fast tells me that you are likely a drunk that can't wait to go out and kill someone with your unnecessarily fast car, right? Your ticket to a desert isle without roads is on its way......

I own them because I WANT to own them, just like you own a fast car because you want to. Quite frankly, I can guarantee that you are more likely to kill someone while you are driving in a drunken stupor that I am to ever commit any crime with those full-auto arms. NEED isn't the issue.... FREEDOM is the issue..... If need were the issue, the first thing I would do is get most vehicles off the road.... you DO NOT need a vehicle, take a bus. YOur car isn't a right, it is a privilege.... My firearms ownership is a RIGHT. Huge difference, bucko!
12.9.2008 3:24pm
David W. Hess (mail):
Sebastian: I am skeptical we'll ever see any court invalidate the National Firearms Act.
As applied to machineguns alleged to be possessed after May 19, 1986, prosecutions may no longer proceed under 26 U.S.C. § 5861. This is because the National Firearms Act is part of the Internal Revenue Code, and its provisions — including registration of machineguns possessed after May 19, 1986 — are valid only to the extent they aid in the collection of tax revenue. Since BATF would not register and accept tax payments for any machinegun after May 19, 1986, registration of machineguns made and possessed after that date no longer serves any revenue purpose, and such registration requirements are invalid. Since 18 U.S.C. § 922(o) is interpreted to ban registration and taxation of machineguns under the National Firearms Act, § 922(o) effectively repeals such registration and taxation provisions. Congress has no enumerated power to require registration of firearms. However, since registration of firearms may assist in the collection of revenue, Congress passed the National Firearms Act in 1934 pursuant to its power to tax. Section 922(o) destroys the constitutional basis of registration.

. . .

In sum, since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts 1(a) and (b), 2, and 3 of the superseding indictment are DISMISSED

United States v. Rock Island Armory (1991)
12.9.2008 3:36pm
ForWhatItsWorth:
einhverfr,

I agree. The paperwork and background check is warranted for full-auto firearms, sawed-off shotguns, silencers and other devices of that ilk. Needless to say, I don't have any concern about passing said background check(s).

I think that it would be nice that it be done once and that the inevitable wait could be shortened on follow-on sales. That would be nice.

I really don't mind since my fingerprints are on file with the FBI and others due to the clearance(s) I had to possess while in the military, anyway. I can understand some who might be concerned about abuses that could happen due to that, but serving my country was more important to me than my privacy, apparently.

Again, all anyone has to do is look at the crime stats to determine the likelihood of full-auto weapons being used in the commission of any crime. A big fat goose-egg awaits the searcher. :) :)
12.9.2008 3:39pm
MCM (mail):
ForWhatItsWorth:

[url=http://www.cnn.com/US/9702/28/shootout.update/]You're wrong.[/url] Perhaps you should be more cautious in calling people ignorant.
12.9.2008 3:56pm
MCM (mail):
Arghghghg.

[url="http://www.cnn.com/US/9702/28/shootout.update/"]You're wrong.[/url]

There we go.
12.9.2008 3:56pm
MCM (mail):
12.9.2008 3:57pm
ForWhatItsWorth:
MCM: I clearly stated "legally owned" in an earlier post (I didn't repeat it in my last post on the subject). I am well aware of this incident and those weapons WERE NOT legally owned or possessed by the offenders.

So the "ignorant" comment stands..... tho not at you. It wasn't intended for you.

Also, in the article, they refer to "...They fired armor-piercing bullets at anything that moved..." NO, they weren't armor piercing rounds, they were full metal jacket which is a standard round type in the military and for some target shooting because they don't expand and maintain their shape unless they hit something that is very hard. They won't pierce "armor." Shoot them at a tank and they bounce off. Tanks are armored.

Now the fact that the rounds could pierce body armor is no surprise. Your rifle rounds (308, if I remember correctly) will easily pierce body armor as will virtually any centerfire rifle cartridge. The exception to this is some of the very heavy body armor used by the military..... the kevlar vests are and were only designed for pistol rounds.

I know that is a bit more than you mentioned, but I thought I would address some of the other inaccuracies in the article.
12.9.2008 4:07pm
ForWhatItsWorth:
MCM: I had no trouble with the link you put up...... not sure why you were having issue with it.
12.9.2008 4:09pm
MCM (mail):
Good points about the ammo. But I was mostly concerned about this comment you made:

"Again, all anyone has to do is look at the crime stats to determine the likelihood of full-auto weapons being used in the commission of any crime. A big fat goose-egg awaits the searcher."

That comment seems to be talking about all full-auto weapons. I looked for your comment earlier to makes clear you were talking about "legally owned" automatic weapons and assume you are talking about this:

"Given the number of crimes committed by those possessing legally owned full-auto firearms, it is ridiculous, if not entirely assinine to deny a law abiding citizen the possession of those."

Which still doesn't make the first comment refer only to legally owned full-auto firearms. The fact is some criminals do use full-auto weapons in crimes, and the more full-auto weapons that are on the market, the more criminals will use them.
12.9.2008 4:17pm
ForWhatItsWorth:
MCM:

Well, ok, for future reference, I always refer to legal ownership and possession in those types of statements. So when you and I are trading posts, you know where I am coming from specifically on that issue.

Even still, you will find darned few crimes committed WITH full-auto weapons. The reason being the sentences handed down for their use. If I am not mistaken, I believe the mandatory sentence for possessing a full-auto or sawed off weapon in the commission of any crime is "supposed" to be 20 years. I could be mistaken, though. I am not too concerned about the exact numbers because I don't break the law. I suspect you don't either. :) :)

Theft of full-auto firearms is pretty difficult, too, I would suspect. All of the individuals I know store them in safes that are real in every sense of that word. Mine weigh in, empty, at 900 lbs each. Again, all (and I do mean all) of the full-auto owners I know do this. We don't want those weapons stolen and abused anymore than anyone else would...... maybe even less since we know what they can and cannot do...... and the cost, of course.

Even if full-auto firearms were more readily available, I don't think you would see them abused. The reason being they aren't by any stretch "cheap" and the people who really would want them are people like me.... mainly collectors. Like I said, I have no issue whatsoever with the process as it was for full-auto, sawed off, silencers, etc ...... background checks (w/fingerprints) and us paying the bill for that activity. No issue at all. I'd like to see it done once and then have a card for any further procurements, but that would just be a nice thing.

The person I am having the issue with is Gordo, in case that wasn't entirely clear. While you and I fail to agree, I haven't found you to be all that insulting.... even when you are being very passionate...... I have got to watch it, tho.... don't want to get bounced, even if I am dealing with a "gordo." :) :)
12.9.2008 4:58pm
Dilan Esper (mail) (www):
OK, folks, this argument is why the Heller / NRA "preamble" analysis is completely wrong.

In saying this, I am not saying that the right to bear arms is collective. It isn't, and that part of Heller is right.

But the way you get to a plausible right to bear arms is precisely by tying it to what sorts of weapons members of the militia would customarily keep and bear.

Now, that doesn't ANSWER the question about machine guns-- but at least it gives you a frame of analysis TO answer it. Otherwise, it's going to devolve into "machine guns are dangerous" "no they aren't" just like this thread has.

In other words, if members of a well regulated militia historically and ordinarily keep and bear machine guns, then you have an individual right to own one. If they don't, then you don't. And that's why the Second Amendment extends to ordinary handguns but doesn't extend to nuclear weapons (even if they can be theoretically borne as sidearms, like the "Davy Crockett").

Scalia and the NRA don't like that position because they don't want to permit gun regulations that would be appropriate regulations of the militia. But that's their ideological problem, the Second Amendment permits gun regulations that further the goals of having a disciplined, trained, regulated militia and prohibits those that don't.
12.9.2008 5:25pm
Pinkycatcher (mail):
So the Dilan, wouldn't militias have machine guns? I mean, if the old militia was turned into the national guard, they get machine guns. So wouldn't the militia now be based basically on the national guard level of armament?
12.9.2008 5:52pm
ForWhatItsWorth:
pinkycatcher,

Yes, given that argument, they would. To add some weight to the argument, the CMP program is a perfect example of this if Dilan would like to use it :) :)

Handing "civilians" older military firearms, such as the military stocks of workable M1 Garands (semi autos in this case) so that they can participate in military marksmanship programs is a case in point. That is exactly what CMP is all about.
12.9.2008 6:11pm
ForWhatItsWorth:
pinkycatcher..... to add one more thing with regard to CMP, the military provides Lake City Ammo (official) for use in the competitions used for civilian marksmanship honing (leg matches with military people on the firing line, too, in most cases)

It is a great program for civilians who are interested and who want to have some serious fun, too.
12.9.2008 6:14pm
Pinkycatcher (mail):
O I agree with the idea that a milita-related weapon (of which a machine gun is) should be allowed, but just militia-related weapons? I can see the argument and I don't disagree, it probably is more truthful than mine, and my inclusion of non-militia related weapons, of which there aren't too many, would probably be taken over by the states. So generally I agree with that intrepretation. It just sounded like Dilan was opposed to machine guns.
12.9.2008 8:49pm
Mike M. (mail):
I think that a stronger argument would be that full-auto weapons are now in general use by police departments. Any arm suitable for police use is certainly suitable for ownership by the general public.

This would not kill the background check requirements of the National Firearms Act, but section 922(o) would be dead as a doornail. Which I would consider a reasonable and acceptable result.
12.9.2008 9:16pm
Kevin5874:
Last I heard, the number of murders in the US in the past 70 years committed with legally owned machine guns is two. One of those was apparently by a police officer who moonlighted as an enforcer for a drug dealer using his department issued machine gun.

http://www.guncite.com/gun_control_gcfullau.html
12.10.2008 1:55am
Railroad Gin:
If there's any argument for banning machine guns it would have to be along the lines that their dangerous nature creates a compelling governmental interest that outweighs the general RKBA. The common use argument is blatantly circular. By this logic, if the government had banned the Catholic Church in 1890, that would still be permissible under the First Amendment because the Catholic Church is not common.

The real question is whether a ban on machine guns, a church, etc. was constitutional in the first place. Scalia seems to be saying that something that was originally unconstitutional becomes OK the longer it stands. Practicality may justify this thinking when it comes to federalism or separation of powers but its on its weakest footing when it comes to the Bill of Rights.

Scalia's reasoning is so transparantly poor on this point that I have to wonder if he went out of his way to give a ridiculously weak justification for upholding full-auto bans. He knows that politically Heller couldn't move so fast as to strike down the NFA. So he upheld it in dicta, but on grounds that a later court could easily refute when the political atmosphere was more favorable.
12.10.2008 1:48pm
Dilan Esper (mail) (www):
To be clear, I don't know enough about what militias carry to know whether and what automatic weapons are protected by the Second Amendment. But the gun rights community does, and can presumably make that argument.

My point is that by looking at the preamble (which a lot of gun rights supporters recoil from, if I can use a bad pun), you get an idea of what's permitted and what isn't. And then you have a framework in which to evaluate machine gun cases, rather than simply the tired argument about whether or not they are dangerous.
12.10.2008 2:40pm
aporitic (mail):
So, here's a slightly off-topic comment/question:

Suppose a private citizen wished to buy a new machine gun from an overseas manufacturer. She's willing to go through all the necessary paperwork, background checks, etc. She's willing to pay all fees and transfer taxes associated with the transaction, and to have the transaction handled by the appropriately-licensed importers and dealers. And yet she cannot do it because the Firearms Owners Protection Act of 1986 act prohibits her from 1) importing the weapon in the first place (it's not already in the registry and she's not a class III dealer importing it as a "dealer sample"), and 2) registering the thing under NFA.

Would Heller enable her to challenge these provisions? She lives in a high-crime area. The make, model, caliber, etc. of the weapon she seeks to import and register are all identical to arms possesed by her local police department. If the police need machine guns for self-defense, might not a private citizen reasonably feel that same need? Given that Heller has recognized that she has an individual right to own firearms for self defense, does that then mean that the federal rules listed above unreasonably interfere with her 2A rights?

Now, suppose you set up the same scenario, but instead of seeking to import a machine gun, she seeks to import an older pocket pistol from a dealer in Europe. The particular pistol, a .25 caliber "Baby Browning," has been banned from import under the 1968 Gun Control Act because BATF has ruled that it does not have a "sporting purpose." She intends to posses it within her own home for self-defense purposes. How likely is it that she could successfully challenge the import restriction under Heller?

Both of these hypotheticals avoid questions of incorporation as the law infringing on the right to self defense is federal.

Any thoughts?
12.10.2008 4:03pm
mbirch (mail):
The first line of this post states:

"At the same time it recognized a Second Amendment right for an individual to bear arms, the Heller Court limited the scope of that right within the context of its own opinion:"

I disagree that Heller limited the scope of the entirety of the 2nd ammendment individual right to bear arms to only the uses recognized in Heller.

What Heller said was that its decision did not change the current prohibitions outside of the area of home defense firearms, such as machine guns, concealed carry, etc.

Heller didn't say those prohibitions were valid, they said we aren't invalidating them. Big difference.

This decision seems to say that they are bound by the inferred (I'll say nonexistent) prohibition against machine guns in Heller supercedes the militia arms are protected view in Miller.

Its abominable that no judge is willing to do a proper analysis of Miller.
12.11.2008 3:01pm

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Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.