Supreme Court rejects challenges to silencer laws
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coloradokevin
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I feel like the government 'of the people, by the people, and for the people' isn't behaving that way very often lately. Consider this:
1) Suppressors are registered as a firearm under the National Firearms Act. To legally own one you have to fill out a 4473, other paperwork, pay a $200 punitive tax, and wait maybe 6-13 months for the ATF to get around to giving you permission to have a hearing protection device that is nothing more than a muffler.
2) A United States Circuit Court of Appeals, which was in possession of all of the above knowledge, ruled against the side of freedom on the basis of saying that: "The appeals court then ruled that a suppressor is not a “bearable” weapon protected under the Second Amendment."
So, it's a firearm right up until the court decides it isn't a firearm when someone decides to have one? Or, when they say it isn't "bearable" do they mean to imply that someone can't physically carry this thing around in a presentation similar to a firearm?
Because these items are considered dangerous "arms", if you don't pay your $200 tax and submit to the lengthy registration process you can face many years in federal prison. But, if you argue that this shouldn't be the case the only response you'll receive is that it isn't an "bearable arm" in the first place! That's more than a bit paradoxical.
1) Suppressors are registered as a firearm under the National Firearms Act. To legally own one you have to fill out a 4473, other paperwork, pay a $200 punitive tax, and wait maybe 6-13 months for the ATF to get around to giving you permission to have a hearing protection device that is nothing more than a muffler.
2) A United States Circuit Court of Appeals, which was in possession of all of the above knowledge, ruled against the side of freedom on the basis of saying that: "The appeals court then ruled that a suppressor is not a “bearable” weapon protected under the Second Amendment."
So, it's a firearm right up until the court decides it isn't a firearm when someone decides to have one? Or, when they say it isn't "bearable" do they mean to imply that someone can't physically carry this thing around in a presentation similar to a firearm?
Because these items are considered dangerous "arms", if you don't pay your $200 tax and submit to the lengthy registration process you can face many years in federal prison. But, if you argue that this shouldn't be the case the only response you'll receive is that it isn't an "bearable arm" in the first place! That's more than a bit paradoxical.
Tommygunn
Member
This really doesn't change anything from the way it is now. The individuals at the heart of this case had suppressors that were not legal. That doesn't make them particularly sympathetic. Maybe the ONLY thing wrong they did was possess a NFA device sans the tax stamp, but, still .... they were in the wrong.
I believe suppressors should be taken off the NFA. You should be allowed to buy them the same way as you buy a Colt 1911 or a Glock 19. Many here know there was a law being proposed that would have done this, which likely is D. O. A. now because of the Virginia Beach shooting. Unfortunatly .... criminals breaking laws don't play sympathetically in the public mind, or apparently in SCOTUS.
Yet having standing to get SCOTUS to hear this type of case involves being a .... "test case" oneself. That takes $$$$$ --- and luck. The violators here did not have luck.
I believe suppressors should be taken off the NFA. You should be allowed to buy them the same way as you buy a Colt 1911 or a Glock 19. Many here know there was a law being proposed that would have done this, which likely is D. O. A. now because of the Virginia Beach shooting. Unfortunatly .... criminals breaking laws don't play sympathetically in the public mind, or apparently in SCOTUS.
Yet having standing to get SCOTUS to hear this type of case involves being a .... "test case" oneself. That takes $$$$$ --- and luck. The violators here did not have luck.
Tommygunn
Member
How is a silencer NOT a "bearable arm?????" I've seen them and they seem to be easy enough to pick up and carry.....
Seriously, the thought processes of these legal eagles strains my understanding at times.
herrwalther
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Welcome to the government. Where the only thing they do right, is mess things up.
One cannot read really much of anything about denied cert petitions for a Supreme Court hearing which is what this was. The media makes it sound like it means something but what it means is that at least four justices did not want to hear the case. One is that Heller did not overrule the old Miller precedent which held the NFA as constitutional.
Second, the court is reluctant to overturn regulatory laws which are longstanding where the people's representatives and president have repeatedly chosen not to change the NFA.
Third, the Supreme Court is apparently addressing the Second Amendment and firearms regulation in NY State Pistol and Rifle Assoc. v. NYC next term. If that decision deals with the level of scrutiny that must be applied, then a whole lot of firearms regulations may be challenged if the Supreme Court goes with either strict scrutiny or heightened scrutiny (intermediate).
Fourth, there are probably four solid conservatives on the court, maybe three solid on the 2A, and Roberts has become the swing justice now instead of Justice Kennedy. No liberal justice will probably side with those challenging the NFA. So, it would not be a good thing if those supporting firearms laws lost in a precedent setting case because CJ Roberts felt his need to side with liberals to keep the status quo.
A justice that cares about changing substantive law really does not want to push a cert petition to be granted unless it has a good chance of success at the merits stage (getting five votes) or a justice simply does not care about that area of the law.
Second, the court is reluctant to overturn regulatory laws which are longstanding where the people's representatives and president have repeatedly chosen not to change the NFA.
Third, the Supreme Court is apparently addressing the Second Amendment and firearms regulation in NY State Pistol and Rifle Assoc. v. NYC next term. If that decision deals with the level of scrutiny that must be applied, then a whole lot of firearms regulations may be challenged if the Supreme Court goes with either strict scrutiny or heightened scrutiny (intermediate).
Fourth, there are probably four solid conservatives on the court, maybe three solid on the 2A, and Roberts has become the swing justice now instead of Justice Kennedy. No liberal justice will probably side with those challenging the NFA. So, it would not be a good thing if those supporting firearms laws lost in a precedent setting case because CJ Roberts felt his need to side with liberals to keep the status quo.
A justice that cares about changing substantive law really does not want to push a cert petition to be granted unless it has a good chance of success at the merits stage (getting five votes) or a justice simply does not care about that area of the law.
The Evangelist Cowboy
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I thought the addition of two new conservative justices would be a boon for gun rights.... Guess not.
Gtscotty
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Apparently the administration filed a brief in opposition to the petition for writ of certiorari on the Cox case. Doesn't look good for the expansion of gun rights, specifically suppressor and SBR rights, if this is the tracking they're taking.
https://www.supremecourt.gov/DocketPDF/18/18-7451/98234/20190501162918266_18-7451 Cox - FINAL.pdf
https://www.supremecourt.gov/DocketPDF/18/18-7451/98234/20190501162918266_18-7451 Cox - FINAL.pdf
P5 Guy
Member
The Donald is selling a bulk of his supporters down the river. Typical NYC moderate.
Seems to me Trump does NOT want a 2nd term.
Seems to me Trump does NOT want a 2nd term.
BSA1
member
This is just a classic case of Federal law crushing State law.
The defendants claimed they were following Kansas State Law which was in conflict with Federal Law. As the case demonstrates the Federal Government will go to any length necessary to suppress State laws that are in conflict with them.
I have been rereading Miller case. This case is so flawed that it makes your blood boil.
The defendants claimed they were following Kansas State Law which was in conflict with Federal Law. As the case demonstrates the Federal Government will go to any length necessary to suppress State laws that are in conflict with them.
I have been rereading Miller case. This case is so flawed that it makes your blood boil.
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Justice Gorsuch replaced Scalia who wrote Heller and MacDonald. We believe that he might be 2A friendly from some dissents on cert denial. Justice Kavanaugh, whose 2A bonifides are yet to be seen, replaced Justice Kennedy who was not so much a pro-gun guy but a quasi-libertarian who disliked absolutes like DC's and Chicago's total gun bans. Nevertheless, Justice Roberts is probably the stumbling block as he dislikes sweeping opinions and prefers narrow decisions. Justices Alito and Thomas are two of the more stalwart 2A supporters on the current SCOTUS.
Folks looking to the Courts to save us or to extend 2A rights are looking the wrong place. Part of the issue is that since Carolene Products, the focus of judicial review has primarily been to strike down state and local laws that affect matters of identity--race, ethnic origin, etc., not economic or criminal laws. In Carolene Products, the footnote 4 provides that "review of statutes directed at particular religious . . . or national . . . or racial minorities . . . : whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." The backlash against substantive judicial process such as the Court used in Lochner (which struck down minimum wage and worker protection laws in NY), has more or less meant that the Court uses the presumptively constitutional framework for most constitutional challenges of laws that doe not deal with questions of race and identity. The Court also uses judicial review far more on state and local laws than it ever did on federal laws.
Thus, the question on most firearms regulation because of precedent like Miller, is that they are presumptively constitutional, (the 1939 Miller case involved a reversal of the district court's decision that the NFA was unconstitutional for example.) Justices also dislike disturbing old precedents and laws, particularly when it clips the powers of the federal government.
Using the prior decisions of Miller and Heller as precedents, the district court held that A) the NFA was constitutional exercise of Congressional taxing power and B) that a silencer is not a bearable arm under the 2A as it is not in common use. Heller's use of Miller's language of common use is to blame. Currently there is no conflict among appellate courts nor district courts on the legality of the NFA and thus it is regarded as settled law. Generally, as seen in NFIB v. Sebelius, the congressional power to tax is almost plenary (unreviewable by the court). As the NFA was passed using Congressional Taxing powers rather than commerce powers, the Kansas law was not considered as a challenge to congressional taxing power but rather commerce clause regulation.
If you read the US govt's filing to deny cert, it is for two reasons. 1) the idea that someone can rely on a state law that is contrary to federal law to avoid federal prosecution, and 2) there is no current disagreement among the courts. Generally speaking it is the duty of the solicitor general to defend the constitutionality of federal statutes as otherwise, abandonment of that principle would mean that every law could be potentially overturned by courts when an administration did not like some old laws. This was an old problem when the law was whatever the king said and thus when a king died, those laws were in question anew. Thus, the idea of a rule of law is that unless exigent or extraordinary circumstances exist, laws should be defended in court whether or not a current government agrees with them. Note that no justice felt strongly enough about this denial of cert to file a dissent. This means that the constitutionality of the NFA is current regarded as settled by most court members if not all. Thus, you do not want such a court to potentially extend federal powers to regulate firearms under the NFA.
The petitioner Kettler, had some interesting arguments in his cert petition on the use of the taxing power in the NFA but as this would require a significant new ruling by the court overriding Supreme Court precedent on the extent of congressional taxing power. Petitioner Shane Cox asked the court to allow the Kansas state law to be raised as a defense to his convictions of making an unregistered short barrel rifle, several suppressors, etc. He also tried to raise the 2A as a defense claiming by asking the Court to basically overrule Miller and its use in Heller. However, Cox did not persuade the appellate court to overrule Supreme Court precedent in Miller and Heller regarding in common use provisions.
The petitioners in this case (the defendants in the criminal case) were simply stupid in doing acts that they knew or reasonably should have known were illegal under federal law (making a suppressor and selling it for one and buying this suppressor by the other.) We also see claims that because other people in Kansas allegedly were equally ignorant of the law, that it should be able to be a defense.
Generally speaking, ignorance of the law is not a viable defense. They claimed as a defense that a Kansas law passed made their conduct legal and they claimed they were misled by state authorities that passed the Kansas law and raised a "defense of entrapment by estoppel". However, the long settled doctrine is that only if the defendants relied on a person enforcing the law (in this case the NFA) could this defense be employed. Thus, if they had relied on the ATF to issue a decision that the Kansas law superceded the federal NFA law, they could employ this defense. The district court allowed the defendants to raise the state law as a mitigating issue in the case but not as to whether or not they should be held guilty.
Folks, if you want things like suppressors, automatic or select fire firearms, or short barrelled rifles to be legal without the folderol of the NFA or felons to regain firearm rights, regardless of whether you personally believe that the 2A protects these things, currently most of the public does not. Currently, the federal courts, legislature, or even the executive demonstrate little agreement with that position. Thus, expecting the courts to rule for such things is like spitting into the wind.
Instead, one--take advantage that most suppressors go for about the same amount as a new quality firearm. Consider instead of buying the new hot "firearm" in the gun mags and forums to buy a suppressor legally under the NFA. Ditto for a SBR. Undermine the law by establishing new facts on the ground. Activists in states have gradually reduced the number of states that ban suppressors to about eight states the hard way by persuading legislators and governors in these states that the benefits outweigh potential illegal uses.
In a similar way, work to raise the issue with Congress critters as ultimately they hold the fate of the NFA and whether or not it can be changed. To do this, figure out what arguments work for your particular Congress critter or primary candidate. On suppressors, most of them will be quite ignorant on the subject and most of their knowledge will come from movies and tv. Simply demonstrating that these things are not noiseless on high powered rifles might sway some along with the Hearing Protection Act testimony and evidence. Be ready for the terrorism and criminal use question and why it is needed in concrete terms.
Thus, the question on most firearms regulation because of precedent like Miller, is that they are presumptively constitutional, (the 1939 Miller case involved a reversal of the district court's decision that the NFA was unconstitutional for example.) Justices also dislike disturbing old precedents and laws, particularly when it clips the powers of the federal government.
Using the prior decisions of Miller and Heller as precedents, the district court held that A) the NFA was constitutional exercise of Congressional taxing power and B) that a silencer is not a bearable arm under the 2A as it is not in common use. Heller's use of Miller's language of common use is to blame. Currently there is no conflict among appellate courts nor district courts on the legality of the NFA and thus it is regarded as settled law. Generally, as seen in NFIB v. Sebelius, the congressional power to tax is almost plenary (unreviewable by the court). As the NFA was passed using Congressional Taxing powers rather than commerce powers, the Kansas law was not considered as a challenge to congressional taxing power but rather commerce clause regulation.
If you read the US govt's filing to deny cert, it is for two reasons. 1) the idea that someone can rely on a state law that is contrary to federal law to avoid federal prosecution, and 2) there is no current disagreement among the courts. Generally speaking it is the duty of the solicitor general to defend the constitutionality of federal statutes as otherwise, abandonment of that principle would mean that every law could be potentially overturned by courts when an administration did not like some old laws. This was an old problem when the law was whatever the king said and thus when a king died, those laws were in question anew. Thus, the idea of a rule of law is that unless exigent or extraordinary circumstances exist, laws should be defended in court whether or not a current government agrees with them. Note that no justice felt strongly enough about this denial of cert to file a dissent. This means that the constitutionality of the NFA is current regarded as settled by most court members if not all. Thus, you do not want such a court to potentially extend federal powers to regulate firearms under the NFA.
The petitioner Kettler, had some interesting arguments in his cert petition on the use of the taxing power in the NFA but as this would require a significant new ruling by the court overriding Supreme Court precedent on the extent of congressional taxing power. Petitioner Shane Cox asked the court to allow the Kansas state law to be raised as a defense to his convictions of making an unregistered short barrel rifle, several suppressors, etc. He also tried to raise the 2A as a defense claiming by asking the Court to basically overrule Miller and its use in Heller. However, Cox did not persuade the appellate court to overrule Supreme Court precedent in Miller and Heller regarding in common use provisions.
The petitioners in this case (the defendants in the criminal case) were simply stupid in doing acts that they knew or reasonably should have known were illegal under federal law (making a suppressor and selling it for one and buying this suppressor by the other.) We also see claims that because other people in Kansas allegedly were equally ignorant of the law, that it should be able to be a defense.
Generally speaking, ignorance of the law is not a viable defense. They claimed as a defense that a Kansas law passed made their conduct legal and they claimed they were misled by state authorities that passed the Kansas law and raised a "defense of entrapment by estoppel". However, the long settled doctrine is that only if the defendants relied on a person enforcing the law (in this case the NFA) could this defense be employed. Thus, if they had relied on the ATF to issue a decision that the Kansas law superceded the federal NFA law, they could employ this defense. The district court allowed the defendants to raise the state law as a mitigating issue in the case but not as to whether or not they should be held guilty.
Folks, if you want things like suppressors, automatic or select fire firearms, or short barrelled rifles to be legal without the folderol of the NFA or felons to regain firearm rights, regardless of whether you personally believe that the 2A protects these things, currently most of the public does not. Currently, the federal courts, legislature, or even the executive demonstrate little agreement with that position. Thus, expecting the courts to rule for such things is like spitting into the wind.
Instead, one--take advantage that most suppressors go for about the same amount as a new quality firearm. Consider instead of buying the new hot "firearm" in the gun mags and forums to buy a suppressor legally under the NFA. Ditto for a SBR. Undermine the law by establishing new facts on the ground. Activists in states have gradually reduced the number of states that ban suppressors to about eight states the hard way by persuading legislators and governors in these states that the benefits outweigh potential illegal uses.
In a similar way, work to raise the issue with Congress critters as ultimately they hold the fate of the NFA and whether or not it can be changed. To do this, figure out what arguments work for your particular Congress critter or primary candidate. On suppressors, most of them will be quite ignorant on the subject and most of their knowledge will come from movies and tv. Simply demonstrating that these things are not noiseless on high powered rifles might sway some along with the Hearing Protection Act testimony and evidence. Be ready for the terrorism and criminal use question and why it is needed in concrete terms.
The great strength of the "common use" test advanced by Scalia in Heller is that it should be reasonably good against significant incursions into ownership rights more substantively restrictive than those in place nationally at the time of Heller... and the corresponding weakness is that it doesn't really offer much of a lever for rolling back national restrictions that are long-established. Whatever the NFA (for instance) made rare in U.S. civilian hands is not in "common use," and therefore unlikely to become protected.
P5 Guy
Member
Seems like some are using the 'Loud pipes save lives' for the VA shooting to stop sound suppression on firearms?
This one is on my long list of responses when I hear someone who is anti-gun (or at least pro-gun-control) say "I just wish guns in America were regulated like cars."
Oh, really, I say? So you would prefer this setup?
- No age limits (upper or lower) for ownership of guns or use on private land.
- Public use/carry of guns legal at 16 or 17 in most states (and 15 or 16 if accompanied by a parent).
- Carrying a gun into a legally-prohibited area generates a civil citation (like a parking ticket) with a $50 or $100 fine.
- If you accidentally shoot someone, as long as you don't flee the scene and weren't drunk, there is very, very, very little chance you will be criminally charged. You'll get a civil ticket.
- If you rack up enough of those kinds of tickets, you may eventually lose your right to carry a gun in public... for a year or so. But not at home.
- Felons can walk directly from their parole officer's meeting into a gun store and buy whatever they like. Same with people released from involuntary commitment or losing a mental competence hearing. No background checks ever, because there's nothing that even could be in one's background that would make ownership of a gun illegal.
- Suppressors are mandatory for any guns that might be used in public.
- The only real power limits will be based on the weight of the firearm (like GVW), not on caliber or capacity (horsepower or range without refueling).
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Yet we have cities and states that are openly violating Federal Law, and under the previous administration were encouraged to do so, and nothing is being done.
CapnMac
Member
That one irks me as well.
Typically, though, from how many advance this with little or no understanding of how rare obedience is to automobile laws.
We have to carry uninsured/under-insured insurance despite the fact that insurance is required.
Driving without a license is illegal; but the numbers doing so are frightening. Ditto suspended.
The number of people who barely bother to follow the registration laws are also frightening.
Then, there's the whole raft of behavioral items--like wanton reckless endangerment, unsafe lane changing, failing to signal, failing to maintain interval or safe speed, driving without lights on, or with missing lights; unsafe vehicles. Red lightrunning (to also include right turns without stopping--or looking).
Just tonight, driving home, some driver must have felt the signal was taking too long, so they turned left. On the red light. From the middle lane.
I would rather see the court deny cert on a case with bad facts, than have cert granted for a case with lousy facts such as the Abramski case, which does more harm than good. CNN may package it as a defeat, but we know what choir they are preaching to.
P5 Guy
Member
I can modify my car too, as long as I take it to the track on a trailer. Can I modify my firearm as long as I take it to a firing range?
See above, the deal for the last eighty years of jurisprudence that the judiciary is there to protect "insular and discrete minorities who cannot win in politics". Thus, protection of individuals based on their demographics rather than actions.
You can as long as you do not violate the NFA on things like select fire, short barrelled rifles/shotguns, caliber, and other restrictions.
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