Re: Getting an M4, or other military weapon.

[Jadecristal]

I have some questions which hopefully, some of the more legally astute here can help me with.

1.) In US v. Miller, my understanding is that the SCOTUS held that military weapons *were* covered under the 2nd. Thus, why can't one simply file suit, have one's lawyer point to US v. Miller as precedent, and request a court order allowing direct purchase of a currently in-use military weapon? Unlike Miller's issue, where it "wasn't within the [knowledge]" of the court that the sawed off shotgun had/has military utility, it should be easy to make sure that the court knows that the M4, M16, M249, etc. are currently in use.

2.) Ignoring #1, as a male between 17 and 45, we would generally agree (and I believe a court would as well) that I fall into the "unorganized militia" under 10 USC §311 (b)(2). As a member of the official, legally recognized militia, why can't one simply file a suit, again have one's lawyer explain to the court that as a member of the militia, one should have the same small arms that the US Army uses (one could even point to US v. Miller again here), and request a court order to require XYZ Arms, Inc. to sell you their current M4/M16/whatever military small arm, and that it be entered into the BATFE (*shudder*) registry as a US Govt. purpose or some such nonsense?

... Question 2 seems less focused to me after reading it, but still, I believe those here will take my meaning, and smack/correct me where appropriate on the phrasing.

Mostly, I'm wanting to know if there's some other legal precedent that I'm not aware of that will make me lose here, or if the courts are misbehaving, or if, perhaps, no one has *tried* such a direct route to getting something done about The State Of Things.

Detailed/cited information is appreciated, where those responding have the time and care enough to do so.

 

[mindpilot]

kool

Good Question...I am eager to hear some information on this also. It could open up some interest for me!!!

 

[mnrivrat]

I guess the first thing that came to my mind here is that on a federal level firearms like the M4 are not illegal for you to own.

There is however a special tax involved - so you may have to deal with the governments right to tax class 3 weapons rather than to forbid their sale.

 

[mindpilot]

ya and in Mn the Taxes here suck!

 

[Hkmp5sd]

The whole purpose for the creation of the NFA was because the government at that time DID believe machineguns and such WERE covered under the 2nd Amendment. The attempt was to tax them as such a rate that the average person could not afford one by using the commerce clause of the Constitution. While the judges in Miller erred in regards to the short barreled shotgun, they did uphold the individual rights of the 2nd Amendment.

Unfortunately, judges today will not touch a straight 2nd Amendment case. The only current one I am aware of is the one in California dealing with homemade machineguns being exempt from federal controls due to not crossing state lines. So the only way to get rid of the '86 MG ban is to repeal the law.

 

[gunsmith]

jade, thank you

for an interesting and intelligent question, I am eager to hear what the smart folks here think of your ideas.
However I am afraid I must agree that scotus seems eager to not look into 2nd amendment cases, probably because they know we would probably be able to prove our case!

 

[Bartholomew Roberts]

1.) In US v. Miller, my understanding is that the SCOTUS held that military weapons *were* covered under the 2nd. Thus, why can't one simply file suit, have one's lawyer point to US v. Miller as precedent, and request a court order allowing direct purchase of a currently in-use military weapon? Unlike Miller's issue, where it "wasn't within the [knowledge]" of the court that the sawed off shotgun had/has military utility, it should be easy to make sure that the court knows that the M4, M16, M249, etc. are currently in use.

Actually, what the Justice McReynolds (writing the majority opinion in Miller) said was "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

The case was remanded to the lower court for them to examine the evidence and make such a determination. However, Miller was already dead by this point and not realizing this case would be the linchpin of Second Amendment politics for the next 70 years, there was never any further examination of the case.

Gun control proponents like to focus on the "possession or use... has some reasonable relationship to the preservation or efficiency of a well-regulated militia" part and suggest that as a result the Second Amendment only protects those who are an active part of a state or national militia.

RKBA advocates often make the same argument you suggested, though I think there might be other approaches to Miller that are pro-2A as well.

Here is the full text of the Miller decision, along with the discussion of militias. It might help give more context for some of the questions you have asked:
http://www.guncite.com/court/fed/sc/307us174.html

I believe both approach #1 and #2 have been tried in the past without success. Lower courts denied the claim and the Supreme Court refused to grant cert (hear the case). Gun control advocates take this as a sign that the Supreme Court favors their approach to the Miller decision, though they ignore that Emerson (favoring an individual right) has also never been further reviewed by the Supreme Court.

Eventually there will be a conflict between circuits that has a practical effect and the Supreme Court will have to step in and finally clarify Miller once and for all. Until that happens though, you are subject to whatever the lower court rulings in your jurisdiction are and none of them have yet held that the 1934 NFA or the 1986 ban are unconstitutional.

 

[Jadecristal]

I guess the first thing that came to my mind here is that on a federal level firearms like the M4 are not illegal for you to own.

There is however a special tax involved - so you may have to deal with the governments right to tax class 3 weapons rather than to forbid their sale.

Ok, I'll bite on this one. IF the government would allow me to just 1.) Buy the M4, and 2.) Pay the $200 transfer tax from Bushmaster et al, I might just take it and deal with the hassle. The problem is that while all the stuff is there for their "taxation" scheme, they refuse to accept my $200 tax payment and issue a tax stamp (a change courtesy of the so-called "Firearm Owners Protection Act (FOPA) of 1986). As a side note, for those without background on this, FOPA-1986 is what causes the price for an M16-platform-based weapon to be $10-15K - you can get them, they just had to be originally "registered," or have the transfer tax paid on them and transferred to a "civilian" before the effective date of that Act. Without that stamp, under current (illegal, IMNSHO) federal law, I'll get to visit club fed for free.

Sound complicated? :banghead: That's because it is...

 

[Jadecristal]

I believe both approach #1 and #2 have been tried in the past without success. Lower courts denied the claim and the Supreme Court refused to grant cert (hear the case). Gun control advocates take this as a sign that the Supreme Court favors their approach to the Miller decision, though they ignore that Emerson (favoring an individual right) has also never been further reviewed by the Supreme Court.

Do you have any cites for these, or does someone have access to Lexis Nexus that can do some poking?

 

[Bartholomew Roberts]

Do you have any cites for these, or does someone have access to Lexis Nexus that can do some poking?

You can find many of the cases by reading the Federal court decisions archived here:
http://www.guncite.com/2ndlawlib.html

 

[jpIII]

The case was remanded to the lower court for them to examine the evidence and make such a determination. However, Miller was already dead by this point and not realizing this case would be the linchpin of Second Amendment politics for the next 70 years, there was never any further examination of the case.

That's pretty correct. There was another criminal involved with Jack Miller (Frank Layton). Although Miller was indeed murdered before the case came before the Supreme Court, Layton was alive and well.

The district court did meet again. Here is some of it....
They didn't concern themselves with the miller portion or the 2A, but did deal with Layton.

PROBATION DOCUMENT

[The following document was filed January 29, 1944, by T.E.
Darnell, Deputy Clerk, for Truss Russell, Clerk.]

PROBATION SYSTEM, U.S. COURTS
IN AND FOR THE
DISTRICT COURT of the UNITED STATES
FOR THE WESTERN DISTRICT OF ARKANSAS

Probation File #1034

THE UNITED STATES vs FRANK LAYTON
Division Fort Smith
Docket No. C- 3917

1. COMES NOW Jesse A. Bell, U. S. PROBATION OFFICER OF
THE COURT presenting an official report upon the conduct and
attitude of probationer Frank Layton.

2. PRAYING THAT THE COURT WILL modify the order
heretofore made in this case and set aside the probation of
the said Frank Layton.

3. RESPECTFULLY RELATING THAT THE PROBATIONER Frank
Layton was placed on probation by the Honorable Heartsill
Ragon sitting in the court at Fort Smith, on the 8th day of
January, 1940 who fixed the period of probation supervision at
Five Years, and imposed the general terms and conditions of
probation theretofore adopted by the court and also imposed
special conditions and terms as follows:

None.

4. RESPECTFULLY PRESENTING PETITION FOR ACTION OF COURT
FOR CAUSE AS FOLLOWS:

That the case of the said Frank Layton was transferred to
the supervision of Mr. J. R. Small, Chief Probation Officer
for the Northern District of Oklahoma, at Tulsa, on January 8,
1940. A report from the said Probation Officer reflects that
the said Frank Layton has complied with all the conditions of
his probation and has made a good adjustment. Your petitioner
respectfully represents that he is entitled to be discharged
from further supervision.


Respectfully,
{signed} Jesse A. Bell
U.S. Probation Officer
Place Fort Smith, Arkansas
Date January 29, 1944


ORDER OF THE COURT

Considered and ordered this 29 day of January 1944 and
ordered filed and made a part of the records in the above
case.

{signed} Jms. (?) E. Miller

U. S. District Judge

 

[ArmedBear]

What is interesting is that, since then, short-barrelled 12 Ga 870 receivers (Masterkey) and 14" AR-platform carbines (M4), have indeed become general issue military weapons.

 

[jpIII]

What is interesting is that, since then, short-barrelled 12 Ga 870 receivers (Masterkey) and 14" AR-platform carbines (M4), have indeed become general issue military weapons.

Heck the dough boys of WWI used shotguns in the trenches. (Although, I believe theirs were 20" to accomodate a bayo)

 

[Lone_Gunman]

I guess the first thing that came to my mind here is that on a federal level firearms like the M4 are not illegal for you to own.

I do not think that statement is correct. I thought that the 1986 machine gun ban would have made the M4 (which was produced after 1986) illegal for citizens to even possess.

Don't all legal machine guns have to have been made prior to 1986?

 

[Hkmp5sd]

Don't all legal machine guns have to have been made prior to 1986?

Not only made, but registered with ATF prior to May, 1986.

There is a truck load of mint WWII Thompson submachineguns sitting in an armory in Russia that are off limits to us thanks to the '68 GCA (not sporting) and '86 FOPA (not already registered).

 

[Lone_Gunman]

So there is no way a mere civilian could legally own an M4, correct?

 

[Hkmp5sd]

Correct. But you could purchase a registered M16 and convert it into the M4 configuration if you wanted. That's what I did with my M16A1, with the exception it is full auto instead of "burst fire "

 

[ElTacoGrande]

All fully transferable (not dealer samples or otherwise restricted) MGs must have been in the registry before May 86. As the situation currently stands, that's final and there's no loop hole.

This has been discussed many times before. Bottom line: Someone with about a million dollars to blow on legal services could attack the ban in several possible ways, with some chance of success. This would involve suing the BATF and either getting a court to order them to accept the fees and register the gun, or else getting an order that they aren't allowed to enforce the ban somehow. I don't know exactly how it would happen because I'm not a lawyer. In these threads someone will inevitably make some joking comment about how you're going to go to jail if you try this. This is incorrect; the thing to do is to go through all the legal challenges and get all the paperwork accepted (if the challenges are successful) BEFORE actually making the MG. That way the whole thing is handled within the civil system and the BATF / DoJ is the defendant.

The only thing stopping me from doing this is that I don't have $1mil sitting around that I could spend on it.

 

[jpIII]

ElTacoGrande,

You've hit the nail on the head.... couldn't have said it clearer than that.

 

[NickEllis]

Unfortunately, judges today will not touch a straight 2nd Amendment case. The only current one I am aware of is the one in California dealing with homemade machineguns being exempt from federal controls due to not crossing state lines. So the only way to get rid of the '86 MG ban is to repeal the law.

Does anyone have a bit more information on this case, or can you point me to a previous thread on the issue? Is this currently pending, and does it only apply to 9th Circuit district? From what I could find this ruling was made in 2003, so why don't more people act on this? If someone in a different circuit DID get busted, couldn't they always appeal to contradiction between circuits?

 

[jpIII]

SCOTUS remanded the case back to the 9th for reconsideration in light of the Raich case (medical marijuana)....

The case was United States v. Stewart 348 F.3d 1132 (9th Cir. 2003). (google it)

It was quite a fluke that Stewart seemed to get a batch of conservative judges. When it is reheard in the 9th, it is likely to be reversed.

so why don't more people act on this?

because it's still in limbo. 9th circuit is remanded, so it's not good law yet.

If someone in a different circuit DID get busted, couldn't they always appeal to contradiction between circuits?

It's already happened in reference to the 2A. 5th circuit says it is an individual right 9th says it's not.... SCOTUS doesn't seem to want to touch it with a 10 ft pole.

Either way, when SCOTUS does finally touch one... it's gonna be an ugly political fight. As a political junky myself, I can't wait!

 

[Bartholomew Roberts]

If someone in a different circuit DID get busted, couldn't they always appeal to contradiction between circuits?

It isn't enough that there is a contradiction between circuits, there must also be a practical difference in the outcome as a result of the contradiction. Right now there is no conflict because whether you apply the 5th circuit's Second Amendment or the 9th circuit's, you still get the same outcome in most cases.

 

[IZinterrogator]

I asked a similar question on TFL a while back. M4 has a 14.5" barrel, the XM8 has a 12.5" barrel in its normal configuration. So my thought was that the length requirement should be reduced to 14" or better yet, 12". The problem seems to be that no one wants to be the test case. So, when I win the lottery, I'll take it up with SCOTUS.

 

[ctdonath]

The problem is federal code 922(o), prohibiting private possession of machineguns.

A case can be made that one explicit exemption would permit the BATFE to allow the transfer - but they could counter that they don't have to.

Methinks more progress could be made by a lot of people filling inexpensive suits (2nd Amendment requires BATFE authorize M4 transfers under 922(o)(A)), inducing conflicting rulings, and making SCOTUS address the issue under "equal protection".

 

[NorthernExtreme]

Getting the NRA, GOA, CCRKBA, etc... all together (they have the millions of dollars needed) to address this seems to be the answer. We all belong to these organizations for them to fight for our 2nd Amendment Rights don't they.

One would suppose that if these organizations were true to their word, they would be willing to join forces to end the debate once and for all. The fact that they haven't tells me it's more about money and power (Lobby, Government) than about doing what we expect. The Pro 2nd Amendment people in this country contribute millions of dollars every year to these organizations, but even when a clear cut issue like U.S v Miller stares them inthe face, they are unwilling to act. I suggest we demand fron all the pro-2nd Amendment groups that they end this whole silly argument once and for all. If I do have the Right (and I believe it's obvious that I do) I demand it , If I don't, I sure could use the money I send to the NRA, GOA, CCRKPA, ... for better uses.

Just my .02, Regards,