The NFA and "standing before the court"

[tntnixon]

As many of you know, you can't just file a law suit over a law that you don't like. You must be an "injured party" in order to have "standing before the court".

With the NFA, I have seen many scenarios spoken of to gain "injured party" status, but they all involved having to go to "club fed" until the court challenge played itself out. However, there is one other way to become an injured party, financial injury. You could actually sue over that little tax stamp on an NFA regulated weapon.

Unfortunately, conservatives have never fully utilized the court system the way liberals do even though we generally have far more financial resources.

[Guest 6.8 AR]

That's interesting. Has it ever been tried?

[JeffL]

1. Fill out an ATF Form 1 to manufacture a new machine gun.

2. Get denied

3. File a lawsuit

4. Profit

[tntnixon]

I can't find a case while doing a cursory search. Maybe someone else can find one, who has better resources.

If, as McDonald and Heller have suggested, the right to keep and bear arms, is indeed an indivdual civil right. Then these fees and taxes are no different than the old "poll tax" under Jim Crow. Harper v. Virginia Board of Elections would be the controlling case for that type of situation.

[tntnixon]

1. Fill out an ATF Form 1 to manufacture a new machine gun.

2. Get denied

3. File a lawsuit

4. Profit

You can't really get money for this type of suit, only "relief". Also, there have been many cases where merely "being denied" didn't get you standing before the court until you actually did the thing and were punished for it.

[Guest 6.8 AR]

That's all I ever thought of them, a tax. Well, and a way to keep us below the government.

I never understood why I should have to register a machine gun. It's a model for registering

all firearms and then banning them. Definitely an infringement.

I'd like to see the BATFE challenged.

[G27]

I can't find a case while doing a cursory search. Maybe someone else can find one, who has better resources.

If, as McDonald and Heller have suggested, the right to keep and bear arms, is indeed an indivdual civil right. Then these fees and taxes are no different than the old "poll tax" under Jim Crow. Harper v. Virginia Board of Elections would be the controlling case for that type of situation.

Sadly, in the Heller and McDonald rulings the court left quite a bit of wiggle room for 'reasonable restrictions'.

I'd love to see some of these regulations (which I believe to be unconstitutional) struck down, but hold out very little hope of it ever happening. That being said, fight the good fight!

[JayC]

1. Fill out an ATF Form 1 to manufacture a new machine gun.

2. Get denied

3. File a lawsuit

4. Profit

+1 - This is the way to get standing... And there is a case you need to read out of IL United States v Rock Island Armory (1991)... Problem is it's only case law in IL, nobody pushed it up to the appeals court or SCOTUS level.

The $200 tax will be very hard to get rid of... You have to prove the tax alone is infringing on your ability to purchase a firearm... The 1986 Act which bans new automatic weapons is an entirely different story since it's a complete ban on said weapons, clearly unconstitutional IMHO.

[Guest 6.8 AR]

The tax is an infringement. The 86 ban is a bigger one.

[tntnixon]

And there is a case you need to read out of IL United States v Rock Island Armory (1991)... Problem is it's only case law in IL, nobody pushed it up to the appeals court or SCOTUS level.

I just read the ruling on this case. The one problem is that it is pre-Heller. Heller has since become the controlling authority and any laws must be examined through it which makes all firearms laws more suspect.

[1gewehr]

This has a lot more to do with MacDonald than Heller. And there is plenty of ammo at lower court levels. Not just US v Rock Island, but also US v Farmer, and others. It has been ruled in several Federal district courts that the '86 MG ban presents a legal contradiction. The Supreme Court has been adamant against taking ANY MG-related cases. An excellent MG case for the Supreme Court would have been US v Hamblen. They declined to hear that one just a few weeks ago.

[Mike.357]

'reasonable restrictions'.

I volunteer to define this.

[tntnixon]

This has a lot more to do with MacDonald than Heller.

Why do you say that? McDonald just re-affirmed Heller and applied it to states and cities. The NFA is a federal law.

[Guest 6.8 AR]

This has a lot more to do with MacDonald than Heller. And there is plenty of ammo at lower court levels. Not just US v Rock Island, but also US v Farmer, and others. It has been ruled in several Federal district courts that the '86 MG ban presents a legal contradiction. The Supreme Court has been adamant against taking ANY MG-related cases. An excellent MG case for the Supreme Court would have been US v Hamblen. They declined to hear that one just a few weeks ago.

Do they have to give a reason to not hear a case? I

think I know the answer to that. It should be apparent

to the SCOTUS that if there is sound reasoning to

overturn a law( constitutionality), it should be heard.

Probably just wishful thinking.

[midtennchip]

I can't find a case while doing a cursory search. Maybe someone else can find one, who has better resources.

If, as McDonald and Heller have suggested, the right to keep and bear arms, is indeed an indivdual civil right. Then these fees and taxes are no different than the old "poll tax" under Jim Crow. Harper v. Virginia Board of Elections would be the controlling case for that type of situation.

That's an interesting theory and might have some chance for success on some level. Maybe when I actually get some free time, I'll review it more closely. However, I think there are two issues that would make this very different than the poll tax issue:

1. the NFA tax does not prevent anyone from exercising their 2nd Amendment rights in full, it only prevents exercising the right in a particular fashion (i.e., a particular type of gun, rather than any gun); and

2. the SCOTUS has taken a tremendous turn in its view of "reasonable restrictions" since the Jim Crow days.

Again, I like the creativity of the argument. The restrictions that were overturned in DC and Chicago amounted to outright bans and (although at least 4 Justices didn't see it this way) were clearly unconstitutional. While I don't like the NFA and the tax that goes with it, the NFA does not amount to an outright ban. So, I think the SCOTUS (and probably including some of the more conservative Justices) would not be quick to overturn it on Constitutional grounds. Even Scalia was quick to say in the Heller opinion that he didn't think the decision would have any bearing on automatic weapons.

[JayC]

The 1986 Amendment is an outright ban for citizen ownership. I can name a number of popular weapons used by police and military groups around the country and world which are currently banned. I think the tax is an unreasonable restriction... but the 86 ban is no different than the DC and Chicago handgun bans... The federal government refuses to register any weapon made after a certain date.... that is exactly what DC was doing with handguns. I think having to agree to allow the government to SEARCH you home or place of business as part of the NFA process is an unreasonable restriction... If SCOTUS will not enforce our god given right to keep and bear arms which is protected under the US Constitution it only leaves us 1 recourse to fix the problem.

That's an interesting theory and might have some chance for success on some level. Maybe when I actually get some free time, I'll review it more closely. However, I think there are two issues that would make this very different than the poll tax issue:

1. the NFA tax does not prevent anyone from exercising their 2nd Amendment rights in full, it only prevents exercising the right in a particular fashion (i.e., a particular type of gun, rather than any gun); and

2. the SCOTUS has taken a tremendous turn in its view of "reasonable restrictions" since the Jim Crow days.

Again, I like the creativity of the argument. The restrictions that were overturned in DC and Chicago amounted to outright bans and (although at least 4 Justices didn't see it this way) were clearly unconstitutional. While I don't like the NFA and the tax that goes with it, the NFA does not amount to an outright ban. So, I think the SCOTUS (and probably including some of the more conservative Justices) would not be quick to overturn it on Constitutional grounds. Even Scalia was quick to say in the Heller opinion that he didn't think the decision would have any bearing on automatic weapons.

[Guest 6.8 AR]

The only thing with the 1986 law, JayC, is that it also could be repealed by a future congress.

It wasn't an amendment. In fact, if the will of congress was there, all of those laws could be

repealed. Just splitting hairs. I agree with you. That's why our votes are so important. It is

sad that we have to rely on SCOTUS to have to "right" the "wrong" that congress imposes.

It can take too long, if ever. But that's why the founders put them there.

The BATFE is one useless infringement and a tool for continuing power grabs. The

problem with changing any law is how the politician decides to continue hanging

on to his power. Some just continue to redefine what a criminal to accomplish his

goal. That's the kind of politician that needs to be expunged from congress.

[JayC]

Sorry I agree Congress could get rid of it... But, keep in mind they couldn't even repeal the AWB for 6 years when the republicans had a solid majority in office.

I should be more careful to state that the 86 ban was part of a separate act which amended the NFA.

The only thing with the 1986 law, JayC, is that it also could be repealed by a future congress.

It wasn't an amendment. In fact, if the will of congress was there, all of those laws could be

repealed. Just splitting hairs. I agree with you. That's why our votes are so important. It is

sad that we have to rely on SCOTUS to have to "right" the "wrong" that congress imposes.

It can take too long, if ever. But that's why the founders put them there.

The BATFE is one useless infringement and a tool for continuing power grabs. The

problem with changing any law is how the politician decides to continue hanging

on to his power. Some just continue to redefine what a criminal to accomplish his

goal. That's the kind of politician that needs to be expunged from congress.

[G27]

The republicans care only a small but more for our civil rights, folks. We'll not see the Hughes Amendment repealed in our lifetime.

It's a very small percentage of people who understand and support true liberty.

[JayC]

The republicans care only a small but more for our civil rights, folks. We'll not see the Hughes Amendment repealed in our lifetime.

It's a very small percentage of people who understand and support true liberty.

I disagree, the way things are headed, they'll either fix it, or it will be fixed. All this stuff the federal government is doing, is going to cause a major rift... I fully expect to see another revolution/civil war in my life time.

[midtennchip]

The 1986 Amendment is an outright ban for citizen ownership. I can name a number of popular weapons used by police and military groups around the country and world which are currently banned. I think the tax is an unreasonable restriction... but the 86 ban is no different than the DC and Chicago handgun bans... The federal government refuses to register any weapon made after a certain date.... that is exactly what DC was doing with handguns.

The 1986 amendment is not the type of ban that Heller struck down. The NFA does not ban handguns, or rifles, or shotguns. It does control certain types of handguns, rifles, and shotguns, but it doesn't ban them. If you want to equate, for example, "full auto rifles" with "all handguns," I just don't see a court buying that argument. Secondly, the majority opinion in Heller also had a big problem with DC's "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense . . ." Heller at 64 (Emphasis added). The NFA doesn't apply to "any lawful firearm," so I don't see how one can equate the NFA to the DC ban.

Do I think full auto weapons, suppressors, and the like OUGHT to be available without all the redtape? Yes, I do. I just don't see the NFA as haven't the same outright ban effect that the DC ban had.

[JayC]

As much as I don't like it, I suspect we're stuck with the $200 stamp for NFA items... As much as the tax is a clear violation of our god given rights and clearly protected by the Constitution, I suspect SCOTUS will uphold the tax no matter what.

I'm stating that the 1986 amendment to the NFA which prohibits the registration of all new full-automatic firearms is a defacto ban on said firearms, and is no different than similair bans on handguns in DC and Chicago (And let me be clear I'm not saying either of those cases touch on fully automatic weapons, only that the logic behind lifting those bans should result in the NFA ban being ruled unconstitutional).

Lets take a look at the DC handgun ban, they had a registration program just like the NFA does for fully automatic weapons. They refused to register any new handguns, just like the NFA does for fully automatic weapons. If you fail to register a handgun you face criminal sanctions, just like the NFA and fully automatic firearms.

Yeah, those two laws aren't alike at all

If you can't ban one type of firearm, you should not be able to ban another type of firearm. We already seriously regulate fully automatic weapons via the NFA, very few (I believe 0 or 1) crimes have been committed in the last 40 years from said weapons, so crime prevention is not applicable here.

Also, lets look at upcoming cases... Heller has re-filed suit against DC, because they refuse to register a semi-automatic handgun, they'll register a revolver, but no bottom loading magazine fed firearm. Everybody knows that is going to get ruled unconstitutional they're just fighting a delaying tactic at this point.

Then we have Palmer v DC where we're going to find out if carrying of a weapon is protected by the Constitution... I suspect this case will be heard by SCOTUS sometime in 2012.

I agree that Heller does not limit regulation of firearms (which is the part of the ruling which makes no sense to me as a layperson), but regulation does not equal an outright ban.

The 1986 change to the NFA is a ban on the registration of new fully automatic firearms, it's fundamentally no different than the handgun bans in DC and Chicago, and therefore is unconstitutional. I'll also say that US v Rock Island Armory tends to support this thought process (even without direction from SCOTUS via Heller than the 2nd amendment is an individual right).

I know there are a lot of people with a vested interest in the firearms community to keep the 1986 ban in place... A lot of people have paid 20-30k for a firearm that would be worth $2k the day after the 86 ban goes away. I feel bad for those folks, but I don't feel bad enough to give up my god given rights to own and carry arms which I feel protect myself the best.

The 1986 amendment is not the type of ban that Heller struck down. The NFA does not ban handguns, or rifles, or shotguns. It does control certain types of handguns, rifles, and shotguns, but it doesn't ban them. If you want to equate, for example, "full auto rifles" with "all handguns," I just don't see a court buying that argument. Secondly, the majority opinion in Heller also had a big problem with DC's "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense . . ." Heller at 64 (Emphasis added). The NFA doesn't apply to "any lawful firearm," so I don't see how one can equate the NFA to the DC ban.

Do I think full auto weapons, suppressors, and the like OUGHT to be available without all the redtape? Yes, I do. I just don't see the NFA as haven't the same outright ban effect that the DC ban had.

[dlm37015]

I would think it would have to go back to the 1933 law or when ever it was would it not

[tntnixon]

I would think it would have to go back to the 1933 law or when ever it was would it not

I don't see that happening, at least from the court. Heller did not abandon Miller. Heller merely expanded on Miller and limited the interpretation of it (Miller was being used to allow any and all firearms laws to go unchecked by the courts).

[JayC]

I don't see that happening, at least from the court. Heller did not abandon Miller. Heller merely expanded on Miller and limited the interpretation of it (Miller was being used to allow any and all firearms laws to go unchecked by the courts).

That is not the way I read Miller... I read Miller to say that since nobody proved the saw-off shotgun had a purpose for Militia use if therefore is not protected under the second amendment. That ruling seems to indicate that weapons which are in common use for the militia/military would seem to be protected, maybe even from the NFA altogether.