A whack at knocking 922(o)

[ctdonath]

Thanks, that's a great start. Can pull out the relevant bits via Googling "rifle 5.56mm m4" site:http://www.fas.org/man/dod-101/army/unit/toe/ - now I just have to figure out how to add 'em up for a total quantity.

I'm leaning toward one case wherein all avenues of evading the issue are covered. I don't have time, money, resources, or inclination to go thru this more than once. Only one short sentence stands between me and a new M4.

 

[beerslurpy]

As per caselaw, one can not be be charged with violating the NFA on post 86 guns.

The case is US vs. Rock Island Armory

http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/rock_island.txt

http://en.wikipedia.org/wiki/Firearm_case_law

Wrong. One cannot be charged with violating Title 26 Section 5861. One can still be charged with violating 922(o). 922(o) simply replaces the tax payment requirement and the penalties for failing to register and pay the 200 dollars. Read the actual decision on findlaw, not a summary on wikipedia.

edit: Actually, I just looked at the link from cmu.edu and that has the complete text of the opinion. I suggest you read it.

 

[Strings]

beerslurpy: if I understand correctly, NFA was allowed to stand because it was a tax, not a prohibition. Since 922(o) is an outright restriction, shouldn't it (by the same precedent that allows NFA) be non-viable?

 

[Smurfslayer]

file the paperwork that WILL be denied, and put up with what could be substantial annoyance from the whole process. Likewise for finding a CLEO to sign off the deal.

I applaud your efforts... Bypass the CLEO BS and incorporate. You get past one more hurdle that way. While you're getting a lot of attention here, you will soon find that we gunnies talk a good game, and we're especially good at critiquing the work of others on internet forums, but we don't often follow through. I have direct experience with this. :banghead: Ongoing, in fact.

I also submit to you that likely what ATF will do is not 'deny' your transfer, but simply not respond to your transfer. That avoids a pesky court defeat. What's more, the law (statutory) gives them complete discretion with regard to how much time they take to approve or deny a form. Unfortunately, again, for us, they not actually required to ever "deny" the transfer. They literally may keep re-cycling the form to the bottom of the stack.

"but you can get an old expensive one" argument's stupidity into sharp relief

I don't mean to be insulting, so please don't take it that way. However, the world is divided into 2 groups.

1: Us.
2: Them.

You, are thinking like us. You have to think like them. The court will use any and all means necessary -by rule- to resolve a case without addressing a single constitutional issue. This is a "double edged sword" when you throw a "kitchen sink" case at the court, you give them more avenues out of reviewing the case on the grounds you want them to review it on. You have to look at a few court cases in detail and follow them through. You'll probably notice a pattern develop, or two. one is that more often than not, the government wins. Another is that the court will go to extreme measures to see that the government wins. You must think about your case like a court judge will, not how _we_ think your case should be presented. A judge will dive into the NFA law, have his clerks find transferrable M16 lowers and M4 uppers and report back, he will then issue a dismissal because you are able to procure a non prohibited arm of the same type.

<rant>
besides, the whole platform stinks anyway
</rant>

If you attempt to transfer something which didn't exist pre 5/19/86, you undercut this argument. So do you want the M4 or do you want to challenge the restrictions?

 

[rabidgoldfish]

Wrong. One cannot be charged with violating Title 26 Section 5861. One can still be charged with violating 922(o). 922(o) simply replaces the tax payment requirement and the penalties for failing to register and pay the 200 dollars. Read the actual decision on findlaw, not a summary on wikipedia.

edit: Actually, I just looked at the link from cmu.edu and that has the complete text of the opinion. I suggest you read it.

err .... what?

 

[Krenn]

smurfslayer is almost certainly right. my dream lawsuit is a list of infantry weapons, updated every 40 years, along with the demand that I be allowed to manufacture them.

(M4, M16, M14, M1, Breech-loader, rifled muzzleloader, smoothbore muzzleloader)

wouldn't be hard. most of those should have expired patents, just ask the patent office for the original blueprints and convert to modern machine specs.

it seems the simplest approach. problem is, we'd need a machine shop capable of building them from scratch, or of converting existing parts to spec.

otherwise, it would get thrown out for being moot or not having a credible intent to violate the law.

 

[ctdonath]

Bypass the CLEO BS and incorporate.

Then I lose the standing as a member of the US militia (involuntarily per Congressional decree), as the company would own it, not me.

As noted prior, so long as 922(o) stands, NFA is inapplicable so the case can't be dismissed for lack of filing Form 4 (or whichever it is) and thus the CLEO need is gone. Once 922(o) falls, having hindered a member of the US militia from obtaining normal suitable arms, NFA snaps back into play, and THEN I have to find a cooperative CLEO (doable in GA, and required for GA legal ownership) to get BATFE approval.

 

[ctdonath]

when you throw a "kitchen sink" case at the court, you give them more avenues out of reviewing the case on the grounds you want them to review it on.

The trick then is to arrange the case to express multiple arguments such that if ANY argument holds, I win - requiring them to knock down EVERY argument. It's the "I have to win once, you have to win every time" tactic.

 

[woofe]

Re: Full Auto

:banghead: After the results of the Emmerson case, I think you would have a much better chance of success if such a suit was filed in the Fifth Circut which is Texas and Louisiana.

woofe

 

[ctdonath]

Emerson found that MG laws based on "interstate commerce" do not apply where there is no interstate commerce involved (Emerson built his own MGs from scratch).

What I'm seeking is unquestionably interstate commerce, as I contend that to "keep and bear" an item axiomatically includes being able to buy it from a manufacturer in another state. There are very few people able to privately build guns which would unquestionably satisfy the Miller test (amounting to: if the Army uses it, so can you).

 

[ctdonath]

1: Us.
2: Them.

Another reason to remind Them that there are a whole lot of Us out here. One would-be MG owner can be stomped on as a quirky pest; a great many simultanious "I want my M4" filings would get their attention that the US militia is not ignored lightly.

 

[VorpalSpork]

As per caselaw, one can not be be charged with violating the NFA on post 86 guns.

The case is US vs. Rock Island Armory

http://www.cs.cmu.edu/afs/cs.cmu.edu...ock_island.txt

Wrong. One cannot be charged with violating Title 26 Section 5861. One can still be charged with violating 922(o).

rabidgoldfish is correct, as U.S.C. Title 18 "Crimes And Criminal Procedure" § 922(o) is not part of the National Firearms Act. The NFA is in U.S.C. Title 26 “Internal Revenue Code” Subtitle E, CHAPTER 53

Firearms law is becomming a hobby of mine, this thread makes me want to learn more NFA and 2nd Ammendment case law. It seems plain enough to me that 922(o) clearly infringes on my right to keep and bear arms, which is protected by the second ammendment. I need to work on finding the correct legalese to express that though.

 

[ctdonath]

I need to work on finding the correct legalese to express that though.

You'll find that uncooperative activist judges, and even "moderate" ones, and even "conservative" ones scared to stir the pot, are loathe to support our view and eager to find ANY loophole to slither out of.

The biggest difficulty in attacking 922(o) is that you CAN buy an M16 - albeit over two decades old, cost $15,000, and only a dozen or so for sale in the whole country at any time - so the response may very well be "you can get one; go away" ... or any of a number of other "well, technically, hypothetically, in obscure situations..." responses.

 

[rabidgoldfish]

Find a weapon of new manufacture that was not availiable before 86. My guess would be that you would have better luck choosing something which cannot be obtained now, a P90 for example.

 

[erik the bold]

http://www.fas.org/man/dod-101/army/unit/toe/

not certain how official that is for purposes of court citation, and reading the individual tables makes my head explode...

I'd reccomend filing either seperate suits for each issue, or a single suit clearly differentating between each issue,

Major issue is that in the TOE's listed, the equipment for a rifle company includes M16A1's and M16A2's, not M4's. Maybe someone can dig around to see where they fall into the program.
See: THIS

 

[beerslurpy]

Acts of congress are not law- they create or modify law. Referring to a law by the act that created it is a valid way for laypeople to refer to bodies of legislation created or modified by an act, but it becomes confusing the more modifications are made to that body of law.

The NFA isnt a law that one can violate. The NFA was an act of Congress that added several laws to the US Code. Many of these statutes have been modified or rendered invalid in the past 70 years, so technically his statement is meaningless.

Insofar as we can refer to the regulation of class 3 weapons as "NFA regulations," his statement is misleading. 922(o) is definitely a statute that regulates class 3 weapons and it is definitely something you can be charged with violating.

I completely agree that 922(o) falls squarely outside the bounds of interstate commerce. Unfortuantely, current precendent (Raich) has erased the Lopez and Morrison precedents so we will need another precedent to restore them before 922(o) stands a chance of being overturned.

 

[bp_968]

Simple fix for the whole "can still buy a M16" thing. Request to buy something else that is issued and issued alot. An M249 SAW or M240B. The M249 is made here (so no import law BS) no AWB stands in your way, the only thing left is the 1986 ban. I think the only ones that are transferable are dealer samples (not for sure on that).

Not to mention I'm sure you could find something showing the P90 or some other post 86 machine gun being used in special forces, they use everything.

bp

 

[ctdonath]

a P90 for example.

I really want to try to squash the "you can get one" and the "well it's not really common" arguments hard. While you can't get a P90 at all, it's used in such small numbers as to not fulfill the "common" criteria (at best, it's a novelty or narrow special purpose). Similarly, I'm avoiding the M16 per se because a tiny number of old ones are available but miss the point.

I want to go after the GENERAL case. The US military considers the M4 a weapon distinct from the M16, as TOEs list both separately. The M4 is also, with little doubt, the 1st or 2nd most commonly issued weapon to US soldiers (contending with the M16). Most soldiers get M4s over any other weapon; if available, most citizens would get M4s (minor quibbles aside) over any other weapon.

Let's focus on the general case, not get sidetracked by "oh, this narrow case might solve a particular problem better."

 

[MatthewVanitas]

In terms of working within the system, suggest that you delete the word "heavily" from #14. Anything that makes it more likely to categorize you in the "white militia survivalist anti-government" camp will work against you, so I'd avoid even the slightest anti-gov slant any more than the bare minimum necessary.

Interesting idea overall; far odder ideas have worked in this world.

-MV

 

[Nick1911]

Has there been anymore development on this?

 

[LAR-15]

922(o) is an amendment to the GCA of 1968

IT IS NOT PART OF THE NFA!

The import ban on machineguns is.

922(o) is a flat out prohibition on machinegun ownership even if the NFA were repealed tomorrow.

922(o) would still be law.

 

[DKSuddeth]

922(o) is 'constitutional' because it is based on the commerce clause, correct? In fact, aren't ALL federal gun control laws based on the commerce clause?

If that is the case, no gun control law will ever be ruled unconstitutional unless we get 9 totally different justices on the USSC that believe in the limited power of the commerce clause, especially 922(o).

Alito's nickname, machine gun sammy, is a complete misnomer because he has said himself that as long as the statute contains the interstate commerce reference, it would be valid.

We'll be fighting automatic prohibition for another 40 years minimum until the majority of the USSC makeup changes.

 

[LAR-15]

Alito's nickname, machine gun sammy, is a complete misnomer because he has said himself that as long as the statute contains the interstate commerce reference, it would be valid.

Proof?

That would mean intrastate sales and possession would not be Federally regulated.

 

[Malum Prohibitum]

ctdonath

Please don't take this the wrong way, but I think it would be unfair of me not to post this information after reading your proposed course of action. You have two very major problems with your case.

The first is that, being in Georgia, you have no Second Amendment rights outside of membership in an organized militia. There is pretty clear Eleventh Circuit case law on this point. In fact, the only circuit to have found any individual right under the Second Amendment is the Fifth Circuit (Emerson), and the holding is so limited to be of zero value to you in this context (that is, the court found an individual right but declared that the right was not violated by the particular federal statute at issue).

The second is that the Commerce Clause is the source of 922(o). The Supreme Court of the United States just gave some pretty clear guidance last year to the Ninth Circuit on the Commerce Clause issue, and the Ninth Circuit reversed its prior ruling that Congress cannot regulate homemade machine guns as a result of the Supreme Court's direction. Here is a link some more discussion of the Commerce Clause decision.

http://www.georgiapacking.org/forum/viewtopic.php?t=765

I also want to render some admittedly unsolicited advice. Get a lawyer. Even if you have to find a volunteer fresh out of law school related to your third cousin by marriage. It is a bad idea to proceed without one. Just because you think something is self evident does not mean it will be accepted in court, and there are a lot of procedural traps for the unwary.

I should also warn you that this lawsuit you are contemplating is not the first of its kind. The issue of machine guns and the Commerce Clause and the Second Amendment has been litigated many, many times in the federal courts with unsuccessful results.

Again, try if you must, but please go in with your eyes open.

Like this ----->

 

[DKSuddeth]

Proof?

I don't have it immediately available, but I'm pretty sure that he made that statement during his nomination hearings when asked about his dissenting opinion on the 3rd circuit for US v. Rybar. Now, he may have just been saying this to get past the confirmation hearings...who knows.

That would mean intrastate sales and possession would not be Federally regulated.

It would had the USSC not affirmed the 3rd circuit decision that congress does indeed have the authority to regulate intrastate commerce, as in ashcroft v. raich.

This is why I say that no gun control law will ever be ruled unconstitutional by this court while they heavily support the monstrosity of the commerce clause.