This is not meant to provoke an argument or anything. Read and ponder
http://online.wsj.com/article/SB121452412614009067.html?mod=googlenews_wsj
Nice read.
Because gun-rights groups like the NRA have so successfully prevented enactment of unreasonable gun laws, most existing gun regulations falling short of a ban will eventually be upheld. But more extreme or merely symbolic laws that are sometimes proposed – whose aim is to impose an “undue burden” by raising the cost of gun production, ownership and sale – would likely be found unconstitutional.
Damn, this if true could spell the end of the NFA which is simply a tax placed on the ownership of proscribed weapons.
$200 in 1939 adjusted for inflation to today is around $2900 so one could argue the whole undue burden concept.
Also the 1986 ban only served to dry up the market and therefore drive up the prices to unheard of levels which would also fall into this category.
I could see the 1986 ban going away with the right case and right legal team arguing said case.
And then we could possibly revisit the NFA at some point.
I really don’t know what their position is after reading the opinion. Many of their points seem to contradict one another. I guess that is what happens when you’re not a lawyer and read court opinions and briefs.
We therefore read Miller to say
only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns.
Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose.
We also recognize another important limitation on the
right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those
“in common use at the time.” 307 U. S., at 179. We think
that limitation is fairly supported by the historical tradition
of prohibiting the carrying of “dangerous and unusual
weapons.”
It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have limited
the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the
right.
I think that the NFA would pass muster under the “narrowly tailored to achieve a truly important government purpose” test. The reasoning being that SAWs and the like are dangerous weapons not in common usage. I do, however, think a total ban would again be going to far, so the 86 ban might be ready for the scrap heap. I think that even an inflation-adjusted tax on machine-guns would not be viewed as too burdensome. Of course, if the 86 law disappears a real M4 carbine costs $4200 after the $2900 tax, not $15,000 after cobbling up an old M16.
Somebody needs to do this right. I hope Gura or somebody of his caliber will take the 86 ban to the Supreme Court.
Personally, I think short-barreled shotguns, rifles and silencers should all be taken off the NFA (along with AOWs, etc). The only weapons I could see increased security concerns for are real machine guns like SAWS, Miniguns and destructive devices, etc. One flake with a SAW in a mall could turn this 5-4 decision into a 7-2 decision by next year. Don’t think they won’t switch with the wind. Back in the 80s the SC upheld sodomy (essentially, anti-gay) laws, and then turned around and shot them down a few years back. The Court clearly changed its will to suit the times, not the Constitution.
That would be a true test of the ruling, but if it goes the other way…
On battle at a time!! I can personally care less about the $200 tax stamp or the NFA. But I wish Reagan never signed that damned 1986 ban and hope that it gets taken out soon.
Hit this poll: http://blog.washingtonpost.com/dc/2008/06/dc_gun_ban_decision_poll_and_c.html?hpid=topnews
To be honest, it would be much more likely that the part of the law not allowing new MG’s to be registered for non-LE/Mil (i.e. an outright ban on their possession by ordinary citizens) could be challenged and voided, than the entire NFA registration scheme. The tax itself though could conceivably be tossed out also as being too large of an impediment to ownership though that would be less likely IMO.
The 86 ban may be voided, but I think it’s a stretch. The $200 tax will likely remain. In the 1930’s, $200 was an impediment. But anyone attempting to get into the NFA game today can’t cry poverty at a $200 tax when buying $2000 rifles and $1000 suppressors. It’s a lousy thing, but the least of our problems.
If I had my druthers, I’d like to see bans on NFA items lifted in states that do not allow SBR’s, SBS’s, etc. I don’t think anyone will eliminate the NFA system completely. I’d also like to see the 86 and 89 bans also lifted.
But the real focus of our efforts needs to be on the lifting of handgun bans in other places like Chicago, as well as getting AWB bans lifted. Then start working on getting wider CCW, to include national reciprocity.
Above all, we can’t let this lead to complacency. It took decades of dilligence and determination to get where we are. Getting a Justice like Scalia took years of elections and nominations to lower courts. And if one of the 5 should depart and be replaced by a justice nominated by Obama, things can swing the other way in a heartbeat.
It’s time to go on the offensive!
The ruling said machine guns are not protected by the 2A. So it doesn’t matter that the 86 FOPA was a total ban on them. The ruling only prohibits total bans on “common” arms. I wouldn’t get my hopes up. This ruling was a disaster for NFA, IMHO.
I don’t think the entire NFA registration scheme (and '86) could be undone anyways as it probably relies heavily on the Commerce clause. Clearly the national government would have the power to regulate the flow/sale of firearms (MGs or otherwise) across state lines.
My fear is that if the decision goes the wrong way, semi-autos “assault-style” weapons could be defined as MGs (we’ve seen these efforts already by the ATF) and made subject to the “reasonable” restrictions of the NFA.
That’s not to say you could be denied having them outright per yesteday’s ruling. Only that there is ample room for restrictions to be placed on currently available weapons.
Deleted.
I think we are in bad shape considering how the opinion was wrote. Basically the 2nd doesn’t protect any firearm you want; the firearm has to pass many guidelines including being “common.” What “common” means is anyone’s guess.
I’m also not getting how something that has been banned, severely restricted, and almost unavailable because of the first two then falls under the “common” use clause. It seems MGs are in common use by all those who can get such things without restriction. Those who are not allowed, don’t. Using this sort of logic, you could pass a complete confiscation ban on 99% of the firearms one day and defend it the next day in court by saying, “Those firearms banned are not in common use by law abiding civilians.” Which would be totally accurate.
I agree there are grounds in this ruling to overturn the Hughes amendment.
They said that if there is registration/licensing it cannot be capricious or arbitrary and its very arguable it is indeed.
The GCA may still stand because its a ‘tax’, but the registry should be re-opened.
I want an M4 or a G36K
I think that the NFA would stand but I hope the 86 BS goes away… We need to be careful but it needs to be challenged…
It basically outlaws a whole class of common weapons.
Chad
Out of curiousity, Does anything think that this ruling will have any effect on the 6 states who have open carry bans considering they upheld the rtkba?
I never took any government or political classes in college so forgive me if this seems stupid to ask, but alot here know alot more about these subjects than I could hope too learn.
I’m still pondering the ‘dangerous and unusual’ part of the ruling.
Who decides that? I guess in the end it would get litigated.
One flake with a SAW in a mall could turn this 5-4 decision into a 7-2 decision by next year.
True, but so could one flake with one visit to a local hardware store.
The problem as I see it is that they only overturned the law against RKBA in my home and that is not the intent of the wording.
To bear is to carry and that implies that we can carry outside of our homes. If our founders and their revolutionary companions had stayed home with their muskets then freedom from the crown would never have been won.
Hopefully my doubts are unfounded but I am greatly concerned with the narrowness of the ruling. As the WSJ article states “the constitution means what is says.”
Buckaroo
That is because the question that was put to SCOTUS was about keeping a gun in the home. They ruled on the case that was before them. However, now that they have affirmed the individual right, we can judiciously attack other bad statutes…
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Too many people forget that the Revolutionary War actually started in rebellion against gun control. The British were sent to Concord to confiscate the powder and stuff that were stored there.
Chad