Heller opens this door.
What else do we get?
We get the chance to find the correct case to bring to the justices to roll back Hughes, which will roll back the restrictions on new machine guns.
We get the chance to bring the correct case to roll back GCA ’68 and the importation of surplus weapons
All of these are dependent on how the Supremes rule in Heller, but it will not signify that a total revolution in gun control and gun laws has taken place
Very good post and follow-up comments.
The simple fact is, as others here and elsewhere have posted, that the Supreme Court is highly unlikely to issue a broad ruling. The fact that it granted cert with a very narrow set of questions on which it would rule is a huge hint at this. All of the questions regarding full autos were an attempt to trip up Gura, to get him off message and to give folks like Ginsburg an opportunity to vote with DC.
I personally think that we're going to win on the issue of individual vs. collective right. That is HUGE. That is really the crux of the 2nd Amendment debate, and we're only about 3 months away from winning it. I think that we'll even get 6 votes. Look, we've got Alito, Roberts, Scalia & Thomas for sure. Kennedy, based on the oral arguments, is also in our camp. IMHO, the big surprise will be Granny Ginsburg - she CAN'T vote against an ENUMERATED right being individual, and almost HAS to vote for strict scrutiny...or else a bunch of states are going to pass restrictive abortion laws and base their defense of them on this case AND the fact that the "right" to an abortion isn't an enumerated right. She's been sick and doesn't look well, and I have to believe that she wants to leave the law in such a state as to prevent (or make as difficult as possible) a repeal of Roe v. Wade. If that means that this uber-liberal anti-gunner has to accept guns, she'll do it - because abortion is more important to her than taking our guns.
Once we win on the individual right, that does open the door. First and foremost, this allows individuals to bring cases and not have the lower level courts in gun-hostile districts and circuits toss them for "failure to state a claim."
Regarding Hughes, which is the law I'd most like to see tossed out (short term, anyway), once we win this case we've essentially won that one. How? Because of 2 factors. First, the federal ban is virtually identical in effect to the DC law (i.e. if anyone hasn't registered a subject gun by X date, then they are forever prohibited from registering it-which, of course, prevents even mere ownership). The 2nd factor, the bridge between handguns and full autos, is the Miller case.
As most here know, Miller himself was a moonshiner. He and his partner were caught by "revenuers" with a sawed-off shotgun, which was and is illegal under the '34 NFA unless you have the tax stamp. He didn't, being both a criminal and also not so stupid as to pay a $200 tax to have a $20 shotgun with a short barrel. Long story short, he won his case on the District Court level, and the feds appealed directly to the Supreme Court. Miller was unrepresented (and also dead), and the Court ultimately decided that a short-barreled shotgun was not protected as a militia arm under the 2nd Amendment, since it (and I'm paraphrasing) tend to improve the effectiveness or the efficiency of the militia. Also, it wasn't in common use.
So where does that leave us? If we win in Heller on the individual rights issue and on the unconstitutionality of bans on whole classes of firearms (and I believe we will, given Kennedy's performance), then a plaintiff who has applied for a tax stamp to purchase a post-5/19/1986 full auto (preferably an M16, for reasons I'll state below) can bring a case in the DC District Court (because that's where the BATFE "lives"). Being a ban on a whole class of firearms, the law will immediately be suspect. Coupled with reams of evidence that the M16 was and is both the main infantry longarm of the armed forces, all of the state National Guard units and most state police forces, this will prove that the M16 meets the Miller test. BTW, the reason the "reams of evidence" is important is because in Miller the Court could say that a short barreled shotgun didn't have militia utility only by saying that "...it is not within Judicial Notice...." Reams of evidence ARE Judicial Notice. No weasling out on THIS one.
OK, why the M16? Because there was no such thing as the M4 in 1986. My ideal plaintiff is a squeaky-clean model citizen who happens to own a pre-ban M16, and who is turned down in his application for the tax stamp for an identically-featured post-'86 M16. If you really want a legal wet dream, let's deal with one gun made and registered with BATF on 5/18/86, and one made on 5/20/86 in the same factory, with the same exact features that couldn't be added to the NFA Registry because of its post-ban status. So, here you'll have Mr. Squeaky Clean, who the feds think is fine and dandy to own a pre-ban, but the same guy can't own a virtually identical gun made in the same factory only 2 days later. This defies ANY strict scrutiny argument and, in fact, defies ANY rational reasoning. The Court will, of course, also consider that full autos have NEVER been outlawed, and that some 160,000 are freely transferrable among probably 150 million adults in this country, that the guns aren't in common use ONLY because of the '34 NFA and, of course, the '86 ban, and that the crime rate among registered owners of full autos is miniscule. Further, repealing the '86 ban just puts us where we were 22 years ago - you still have the tax stamp, you still have the background check, LEO signoff (unless you form a trust or corporation), etc. Was the country like Somalia or Iraq before the ban, when anyone with about $700 could get a full auto? No way, and the Court won't buy the horror stories of the antis on this one. I think that we win a repeal of the Hughes act easily in a case like this.
Prediction: we'll be able to buy new full autos, or install new happy switches for existing semi-autos, within 5 years.
My goal: let's get 1 million or 5 million full autos into the hands of the citizenry. When you don't have "blood in the streets" the level of unease about them - and other guns - will subside substantially. Also, the more full autos out there, the less likely that some tyrant-wannabee is going to go for the brass ring (and, after all, isn't that the WHOLE POINT of the 2nd Amendment?). Once there are literally millions of full autos in public hands, I can see an a new law repealing import bans of all types - what would be the point?
I know that!
SCOTUS is trying to define the term ARMS in a way that could prohibit handguns.
Today, I have been trying to explain that the term ARMS can and will include anything from bacteria to atomic weapons, if the citizens of the United States decide to fight.
When the French citizens used a chemical introduced into the fuel tanks of German vehicles during WWII, was that chemical not being used as an arm?
When a briefcase using acid as a trigger was placed under Hitler's table, was that not being used as an arm?
People today seem like they are ASKING PERMISSION FROM THE SCOTUS to protect their own lives.
What is wrong with that statement?
...since it (and I'm paraphrasing) DIDN'T tend to ....
I don't know if this means anything, but maybe the DC Circuit Court isn't where a case like you propose would end up. The BATFE has been moving around. They're now in Chicago, Atlanta, and West Virginia. Form 1s go to Chicago. Form 4s go to Georgia. Forms are processed in West Virginia after the checks cash.
"... So, here you'll have Mr. Squeaky Clean, who the feds think is fine and dandy to own a pre-ban, but the same guy can't own a virtually identical gun made in the same factory only 2 days later. This defies ANY strict scrutiny argument and, in fact, defies ANY rational reasoning."
I like the cut of your jib, sirrah, but I'm also wondering if Kennedy's statement “Miller may be deficient” isn't more ominous than welcoming. He plainly noted a potential for a decoupling of the 'militia' phrase from 'the people' phrase and asked if there were two rights there or just one. He might have it in mind that Miller didn't have recourse to a defense under the Second Amendment because he wasn't in 'the militia', never mind how short or long his shotgun was.
This could end up as a split decision: The people have rights to civilian weapons, the 'militia' has rights to militia weapons like your post-'86 M16.
Anyway, you may be perfectly correct, but I don't think anyone is sure what Kennedy thinks about Miller and what he meant by what he said.
>Prediction: we’ll be able to buy new full autos, or install new happy switches for existing semi-autos, within 5 years.
My goal: let’s get 1 million or 5 million full autos into the hands of the citizenry. When you don’t have “blood in the streets” the level of unease about them - and other guns - will subside substantially. Also, the more full autos out there, the less likely that some tyrant-wannabee is going to go for the brass ring (and, after all, isn’t that the WHOLE POINT of the 2nd Amendment?). Once there are literally millions of full autos in public hands, I can see an a new law repealing import bans of all types - what would be the point?<
When do you suggest that I buy shares in the ammunition manufacturers?