Post Parker Strategery
So, one of the conversations that occurred at GBR2 was about the Parker/Heller case. There is some fear that the case may not go our way. My opinion, expressed to the NRA reps, was that it will either go our way (which is good) or it will not, in which case giddy up. Talk about getting gun owners active again. That said, let’s assume that the case does go our way and the supreme court asserts an individual right to arms, what then?
Well, I think I’ll fill out an ATF Form 1 APPLICATION TO MAKE AND REGISTER A FIREARM to make a machine gun. I will, of course, not have any parts that warrant constructive possession. Said application will, of course, be denied. Then, I sue. Sounds like a plan except that the form 1 states: UNDER PENALTIES OF PERJURY, I DECLARE that I have examined this application, including accompanying documents, and to the best of my knowledge and belief it is true, accurate and complete and the making and possession of the firearm described above would not constitute a violation of Chapter 44, Title 18, U.S.C., Chapter 53, Title 26, U.S.C., or any provisions of State or local law.
Well, I don’t want to perjure myself. Thoughts?
October 24th, 2007 at 11:03 am
So if we win the case we have to also win in court against every gun law in the country?
October 24th, 2007 at 11:56 am
Well, you won’t have a “case or controversy”, which is a federal jurisdictional requirement, if it does not violate “Chapter 44, Title 18, U.S.C., Chapter 53, Title 26, U.S.C., or any provisions of State or local law”. I recommend you pick your lawyer first and your case second.
October 24th, 2007 at 12:52 pm
Well if we win at SCOTUS, then wouldn’t you believe that decision overides the 86 ban? If so, then no perjury has been commited.
October 24th, 2007 at 12:55 pm
At the Gun Rights Policy Conference, the Parker Lawyers (their names escape me now) & Don Kates, feeling was that the court would likely go our way, BUT it would be a narrow finding, not a broad “anything goes ruling”
So if they are right we will have something to build from, but changes will not be overnight
October 24th, 2007 at 1:54 pm
The May 1986 Hughs amendment prevents the BATFE from putting the firearm on the NFA registry. If it isn’t on the registry, the BATFE considers it contraband.
Fincher was jailed for doing something similar ( filed a form 1, and then built it anyway after it was sent back ).
A pro-gun president could fix this easily … collect the tax, send the form back stamped, as proof of payment, and then simply not add it to the registry. But so far, neither Bush wants to end this insanity.
October 24th, 2007 at 9:31 pm
I wouldn’t attest under penalty of perjury that my proposed action does not violate Chapter 44, Title 18, U.S.C., Chapter 53, Title 26, U.S.C. if my position is that the action in question does violate Chapter 44, Title 18, U.S.C., Chapter 53, Title 26, U.S.C. but Chapter 44, Title 18, U.S.C., Chapter 53, Title 26, U.S.C. is unconstitutional. That’s asking for it. Talk to a lawyer, you’l need one anyway, and there probably is some way to make the case about the constitutionality of Chapter 44, Title 18, U.S.C., Chapter 53, Title 26, U.S.C., and not just the narrow question of whether you did or did not complete the form properly.
October 24th, 2007 at 10:30 pm
Post parker strategy is to start suing the states of NY, NJ, IL, CA, MA and HI, all located in jurisdictions whose support of gun control laws rests on a collective rights interpretation of the 2nd amendment.
The collective rights reading of Miller, once overturned, puts them all back at square one. They will have to find alternative reasoning to uphold gun bans and they will have to address the 14th amendment aspect of the RKBA as well. This will almost certainly produce further circuit splits on the scope of the 2nd amendment.
I think there is more than enough easy victory at the state level to keep us busy without touching the MG issue for now.
October 24th, 2007 at 10:35 pm
I predict that CA’s arbitrary and nonsensical ban on “assault weapons” is likely a juicy target.
Chicago and Morton Grove Illinois’s bans on handguns would be a huge prime target if we win parker.
On purely legal grounds, I think the MG ban could be challenged, but at this point I think too many judges will have a Rybar majority type panic attack. Another reason I’m so grateful Alito replaced OConner last year. I think it would be wise to let any victory we get have time to sink in before going after the MG ban, sporting purposes or any of the other 1960s or 1930s era stuff. It is obviously bad law, but there are so many easier targets at the state level once we win this.
October 25th, 2007 at 12:51 am
Challenging Cali’s “assault” weapons ban on the heels of a favorable Parker or Heller decision would be an excellent way to snatch defeat from the jaws of victory. Let’s save that case until it is established that (1) there is a Second Amendment, and (2) it applies to the states. If the only issue is whether or not a ban on ugly guns constitutes a reasonable restriction on the individual right to bear arms, it will probably be struck down, but not unanimously. If some judges can uphold under that theory, while others uphold on the theory that the Second Amendment doesn’t mean anything, and others still hold that it doesn’t apply to the states, there’s a very high chance that these three minorities will add up to at least 5.
October 25th, 2007 at 12:59 am
In the part where you describe the gun you’re requesting permission to assemble, could you put something like ‘I plan to assemble X,Y,Z into a W, in violation of violation of Chapter 44, Title 18, U.S.C.’
They can’t really charge you with perjury when you specifically decalre it in the document, can they?
October 25th, 2007 at 1:09 am
I really expect us not to be the beneficiaries of a ruling favorable to us in anything resembling substantial constuctive support for either the 2nd amendment nor for gunowners nationwide.
If the court grants cert, which I suspect they may not,I expect the ruling to be so narrowly defined and worded as to be only applicable in a very restrictive legal strait jacket and applying only in DC with a whole slew of intimated or outright specified “reasonable restrictions”.
The court has had a good record in ruling properly on questions of law and constitutionality when the litigants represented on level of government or another. However, they do not have a good record of proper rulings when the power of government is at stake as opposed to the rights of citizens.
Terry stops, searches not supported by evidence sufficient to obtain a warrant, and just a ton of like questions that invariably find for state power, no matter how egregious the overreach by the authorities. Don’t forget these are basically the same people that gave us Kelo v. New London.
I sincerely hope I am wrong and that the court grants cert then finds in a sweeping decision in favor of Heller in such a manner as to be applicable to all fifty states and negating all the illegal gun law restrictions (infringements) on the books. But that ain’t the way to bet.
October 25th, 2007 at 8:10 am
We have another hint available to us from the SCOTUS Blog that just came out yesterday.
October 25th, 2007 at 1:33 pm
Cross that clause out and initial it.
October 25th, 2007 at 2:45 pm
My
wild-ass-guessprediction is that it will be granted, it will be ruled, and the city ban will be disallowed.As above, I think it will be very narrowly interpreted so as to not allow any broad changes in laws. So narrow, in fact, that handgun bans will not be effected. This isn’t just a SWAG – note the behavior of the DC City lawyers who shifted and left off the long-gun references to their challenge / appeal.
(I ANAL so I don’t know all of the exact terms.)
As for what to do next – I wholeheartedly agree that we should continue pressing matters. Strike while the iron is hot, so-to-speak. But consider that this case isn’t just a few months old. He planned this a long, long, long time ago. Back when he lived in DC, btw.
As to what we should do – well, I would go after the handgun before the machine gun. I think giving a noogie to the mayors of the liberal cities will remind them that they are bound by the US Constitution, not their petty, narrow desires for control. I am not really in favor of machine guns in general as they can be a non-discriminatory weapon. That said, I am not opposed to them being legal with a relatively easy to get permit. I *certainly* think the ATF should be scaled back in their fascist doctrines they wield with impunity now-a-days.
However, if it were my money, I would be pushing for the reciprocal agreement with CPL / CCW permits in all states. To me, this is a clear violation of the Commerce Clause of the US Constitution. IMO, that clause was put there specifically for this purpose — contracts and agreements recognized within one state *must* be recognized by all others. period. As above, this would knock those tin-pot governors and assemblies into acknowledging that they are part of a bigger populace.
Mind you, I would take more of a commerce / contract / permit position on all of these tacts rather than a ‘gun rights’ tact (as much as possible).
But most importantly, we need to move forward. Even if we each go in our own direction, we should act together where possible. A multi-pronged front is much tougher to defeat – and will appear much stronger to observers – than a single avenue. (Consider that for a moment. How would the public react to three stories about gun law challenges reaching the Supreme Court? I bet many would think; “This must be a hugely popular movement! I should support it!” It would be worth trying, meh thinks.)
(I really should write in my own blog more often….)