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Ban on Machine Guns Upheld

Seen at Volokh’s.

Fincher case also cited: 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.

20 Responses to “Ban on Machine Guns Upheld”

  1. Robb Allen Says:

    Unfortunately, the logic is circular. Machine gun ownership is generally prohibited (limited supply + insanely complex “licensing”) therefor the number of machine guns in use is small.

    Because the numbers of machine guns in use are small, they should be prohibited.

  2. SayUncle Says:

    yes. i predicted a such.

  3. Robb Allen Says:

    Before I get called a traitorous-prag who’d sell out his mother’s rights for cheap ammo (that all depends on the amount of discount I could get), I don’t agree with the $200 tax, fingerprinting, and permission begging that goes along with purchasing a machine gun.

    However, in the interest of efficiency and the fact I cannot for the life of me see how to get it all repealed in one stroke, I’m perfectly OK with pushing the boundaries of removing the stupid ’86 restriction. If we are permitted by our masters to own a machine gun, there’s nothing that being built on Jan. 16th, 1987 that’s going to change the way we use them. Unless they have better mind controlling materials choose from now.

    Of course, I’m willing to bet many Class III owners would fight us tooth and nail to keep the post-86 ban in place because it secures their ‘investments’.

  4. Sailorcurt Says:

    I’m not overly concerned about the machine gun restrictions. I would love to own an M-2 carbine or M-14, but I’ve resigned myself to the fact that the majority of citizens are afraid of them.

    What bothers me is that OUR side supported the “in common use” verbiage. IIRC it was our side that suggested it. That can be used to restrict ownership of pretty much any new technology into the future and has been enshrined in Supreme Court precedent. We will be VERY hard pressed to get that overturned whether incrementally or not.

    I was soundly scolded for saying that I thought the avenue used by the Heller team regarding that point was going to prove to be disastrous…I think we haven’t even seen the beginning of the pain that this precedent is going to cause.

    In a nutshell, arms technology available to the civilian population was forever frozen in time at 2008 levels. Any future technology that the authoritarians among us don’t want to see used against them will be deemed “not in common use” and any chance we ever had of having the restrictions on machine guns relaxed went right out the window.

    I still laud Mr. Gura, Mr. Levy et al for their efforts and their success, but I continue to believe that that one aspect of the case was a tactical blunder of inestimable proportions.

  5. SayUncle Says:

    Curt, I don’t know that that was our side’s language.

  6. chris Says:

    first step to getting the NFA defeated is to challenge the CLEO signoff as a violation of equal protection and a arbitrary and capricious process.

  7. illspirit Says:

    In a nutshell, arms technology available to the civilian population was forever frozen in time at 2008 levels.

    Or frozen at a 2008 manufacture date. In theory, all they would need is to insert some Sense of Congress verbiage into a bill stating that things which haven’t been made yet aren’t in “common use.”

    Yes, we could challenge that, but they could drag it out for years with counter-claims that there are “enough” guns out there for everyone who wants one and that limiting the supply is a “compelling government interest.” If they can delay the process long enough with remands, retrials, and such, they might have time to change the makeup of SCOTUS.

  8. Sailorcurt Says:

    I’ll have to do some research to be sure, but I believe that it was Mr. Levy who first began using that argument to fend off the Solicitor General’s contention that a finding for Heller would result in the overturning of the Machine Gun restrictions.

    I’m not blessed with a perfect memory so I could be wrong, but that’s the memory I have of the sequence of events.

  9. Gunstar1 Says:

    I think Curt is correct that it was our side in Heller that suggested it.

    Heller decision did not overturn a machine gun ban nor did his lawyers even try to… nor did they even want to come close to looking like it.

    Any case that says Heller now means someone is allowed own a machine gun is wrong because Heller did not say it. It in fact said it does not do anything to it.

    So you are in an uphill battle in that the success of Heller means nothing to machine guns (Heller says so).

    While Heller does seem to mean new guns can be heavily regulated before they become popular, no one has yet to argue up to the Supreme Court that a machine gun which has been regulated to a point of almost inexistance means that regulation can continue to exist simply because it reduced the numbers now availible.

    Using Heller as a direct appeal will not work. The best you could do is to show that the law was created because they were popular and if not for the law they would probably still be popular.

  10. Tom Says:

    “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.”

    Page 53 of the ruling. http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf

    Thank you Heller, thank you gov for not doing your job and screwing us with all kinds of the typical shenanigans in the Miller case.

  11. Tom Says:

    WTF? That was my pissed off draft that I trashed. Oh well, I’ll take a machine gun over a sbs.

    Here’s page 52 (page 55 of the pdf)

    We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. 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 think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

  12. Sebastian Says:

    I don’t think you have to overrule Heller to either get at the machine gun issue, or get at a prohibition on some new technology out of the gate. There are ways around it, you just need to have a federal judiciary that wants to get creative in protecting the right. Heller was an important first step, but it needs to be built upon. That was precisely the reason we really didn’t want Obama in the White House, no matter how much he doesn’t go after gun owners overtly. He will still put people on the court who will pretend Heller doesn’t mean anything.

  13. andy Says:

    Robb, while all that stuff is an inconvenience at best, aren’t you at least concerned about giving up your fourth amendment rights?

  14. jed Says:

    Rob Allen> Of course, I’m willing to bet many
    Class III owners would fight us tooth and nail
    to keep the post-86 ban in place because it
    secures their ‘investments’.

    I think this has already happened. Granted my
    memory is a bit faded, as it was at least a
    couple of years ago. But it might have been
    NFAOA who
    took a protectionist stance. If I had my blog
    online, I’d search for it, because I’m pretty
    sure I posted about it.

  15. joe uhl Says:

    Since very little crimes has been commited with a legal class 3 weapon,the govermant has nothing to fear from the owners of these weapons.

  16. Robb Allen Says:

    Andy, yes I am. Like I said though, it’s not something we’re going to be able to overturn all in one swoop. So I say we attack the parts that we can get the vast majority of citizens to agree on (what’s the difference between an 86 and 87 model machine gun?) then use that as leverage down the road when more people are comfortable with it.

    I don’t like it, but I’m not a big fan of gravity either. Unfortunately, both are stark realities that cannot be changed simply because I feel their wrong.

  17. Tom Says:

    As I said at SIH, go after pistols with 2nd grip or stocks being listed as AOWs. SBRs. The pre/post distinction is a good avenue too. With talk about universal healthcare go after suppressors on medical grounds (users hearing, money) as well as noise pollution (pseudo-environmental) and you have the added benefit of Obama’s statements about “lawful gun owners” and “respecting the second amendment”

    Of course, all that rests on actually doing any of it. Being the types most here are I’ll leave it up to you to pisk the “perfect” person and case to put forward.

    I also have to ask a question. You see to be quit concerned about nominations to the courts. If that were actually the case why aren’t these cases already in the system trying to beat the leftists in the race against time?

  18. Tom Says:

    As I said at SIH, go after pistols with 2nd grip or stocks being listed as AOWs. SBRs. The pre/post distinction is a good avenue too. With talk about universal healthcare go after suppressors on medical grounds (users hearing, money) as well as noise pollution (pseudo-environmental) and you have the added benefit of Obama’s statements about “lawful gun owners” and “respecting the second amendment”

    Of course, all that rests on actually doing any of it. Being the types most here are I’ll leave it up to you to pisk the “perfect” person and case to put forward.

    I also have to ask a question. You see to be quite concerned about nominations to the courts. If that were actually the case why aren’t these cases already in the system trying to beat the leftists in the race against time?

  19. SayUncle Says:

    some states (TN & SC, iirc) have had success in the courts the pistol as AOW thing overturned.

  20. Tom Says:

    was that a state law? cites? I haven’t heard/seen that anywhere else.