Posted on 03/18/2002 1:36:31 PM PST by 45Auto
"Since its passage in 1934, the registration, taxation, and other requirements of the National Firearms Act ("NFA") have been upheld by the courts under the power of Congress to raise revenue. (Footnote 5) However, 18 U.S.C. sec. 922(o), which became effective on May 19, 1986, prohibits possession of machineguns, and thereby repealed or rendered unconstitutional the portions of the National Firearms Act which provided for the raising of revenue from the making, possession, and transfer of machineguns made after such date. As the government conceded at oral argument, the United States refuses to register or accept tax payments for the making or transfer of machineguns made after 1986. (Footnote 6) Thus, sec. 922(o), as applied to machineguns made after May 19, 1986, left the registration and other requirements of the National Firearms Act without any constitutional basis."
Note: The SCOTUS did not take up the Appeal, so it is law only in the District Court where it was heard.
The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.
Examine this reasoning and note the following:
1 - The Cruikshank Court believed that 'bearing arms for a lawful purpose' was a right.
2 - The Cruikshank Court links that Right to the Second Amendment.
3 - The Cruikshank Court elevates the Right to 'bear arms for a lawful purpose' to that of a Fundamental Right by virture of the statements that "[T]his is not a right granted by the Constitution" and "[N]either is it in any manner dependent upon that instrument for its existence." [This is classic fundamental right language that was used by the SCOTUS years later in Griswold. This is SCOTUS recognizing a natural right that exists with or without the Bill of Rights. That's huge.]
Cruikshank is very, very important case for our side...
Had their side been briefed, the Court would have had trouble, since sawed-off shotguns were used to clear trenches in WWI and used in WWII as well.
Exactly. But that didn't stop the nazi's in the California legislature from passing not one but two AW bans that ban the sale of the AR15 both by Model name and by generic appearence. Miller would suggest strongly that the 1994 Federal AW ban is unconstitutional. I don't think the federal ban has been challenged yet.
Miller was dead (shot to death in some sort of gun-fight in a dry creek bed), and his lawyer skipped the hearing.
That's very true, unfortunately. As good as the Emerson decision was in light of the court's dicta about the RKBA, even that court left open the door for more, not less, gun control since it left intact the restraining order provision, something that is clearly unconstitutional. Many other Federal District Appellate Courts, like the infamous 9th Circuit, have never rendered a decision that was postive for the RKBA. In fact, the 9th Circuit has consistently found against the RKBA and it searches high and low for obscure, mostly unrelated case law, in order to justify complete government control of who gets guns. In blatant cases, like the 1992 Fresno Rod and Gun Club v. Van de Kamp (then AG for California) they purposefully misused Cruikshank to uphold the unconstitutional Roberti-Roos AW ban. The 9th Circuit is composed of neo-nazis.
One of the members of the USSC in the Miller case, years later, acknowledged that he had in fact used a "trench sweeper" (a sawed off shotgun) in Europe in WWI. During the Miller trial he was very much aware of the utility of short shotguns, yet never disclosed this to the other members of the court. Go figure.
I still don't know why the length of any "arm" makes one whit of difference, since the Constitution makes no such distinction at all. Arms are Arms are Arms.
IMHO, there was no repeal because the NFA is a revenue raising measure, and as such in and of it'self Constitutional.
There have been other USSC decisons to the effect that revenue laws cannot be promolgated in order to effect social modification.
A $200. tax in order to posses and to even transfer ownership of a 50 dollar weapon could not be seen any other way.
Machine guns could be bought at the time as surplus arms for a mere few dollars, or brought into the country as war souveniers without any cost.
Once Bush gets 2-3 more conservatives on the bench, the NRA should look for and take cases before them to settle this issue once and for all.
Bush isn't going to get a conservative on the bench before 2003, and then only if he gets 60 conservative Republican senators. But, even if Bush could appoint whom he wished, you might be disappointed by the result. Even Robert Bork, in his book Slouching Toward Gomorrah, says that he's bought the collective right interpretation of the Second Amendment, though he believes that people should be armed as a matter of policy. Nearly all of our appellate courts have issued collective right opinions (see the cases cited in the Government's First Brief in the Emerson Case).You might just find that the legal elite, on either side of the aisle, intends to disarm us peasants by any means possible.
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