Court filing argues post-1986 machine gun ban 'defies Constitution'

[JohnC]

Court filing argues post-1986 machine gun ban 'defies Constitution'

Claiming the “ban on the quintessential militia arm of the modern day defies the protections our Constitution guarantees,” the legal team led by attorney Stephen D. Stamboulieh filed a sur-reply February 27 in the case of plaintiff Jay Aubrey Isaac Hollis against Attorney General Eric H. Holder, Jr. and Bureau of Alcohol, Tobacco, Firearms and Explosives Director B. Todd Jones. The additional reply was in response to “defendants’ reply to plaintiff’s response in opposition to defendants’ motion to dismiss, or in the alternative, for summary judgment.”

Hollis, acting individually and as trustee of a revocable living trust, is suing Holder and Jones in their official capacities for administering, executing and enforcing “statutory and regulatory provisions [that] generally act as an unlawful de facto ban on the transfer or possession of a machine gun manufactured after May 19, 1986.”

That Judge Barbara M.G. Lynn of the United States District Court for the Northern District of Texas Dallas Division (the court's Fort Worth Division last month declared the interstate handgun transfer ban unconstitutional) used her discretion and permitted a sur-reply indicates an interest in the plaintiff’s arguments, and if the government can be responsive to them. That she then issued a March 3 order giving the defendants until March 11 to file a sur-sur reply could indicate she has concerns over the lack of substance on government filings submitted to date, and is not even sure if defendants will produce anything more than continued obfuscation and misdirection.

Arguing against the preposterous claim that plaintiff Hollis lacked standing, the sur-reply went on to challenge contentions regarding levels of judicial scrutiny and the government’s interpretation of Heller case applicability, and to expose wholly unsubstantiated arguments for a ban based on non-existent crimes.

Referring to the earlier case of United States v. Miller, the sur-reply explained that “Miller’s phrase 'part of ordinary military equipment' could mean that only those weapons useful in warfare are protected.” Instead, plaintiff observed, Heller actually “expands upon Miller and found that weapons which have personal self-defense value are protected regardless of whether they have military value.”

As for those weapons that do have such military utility, and refuting government claims to the contrary, that only three-round burst firearms are standard issue, plaintiff noted squad automatic weapons are “by definition bearable upon the person, fully automatic and designed to be operable by one person,” and “The U.S. military currently issues a number of fully automatic light machine guns to its ordinary soldiers.”

“[T]he machinegun ban is unconstitutional both facially and as applied to Mr. Hollis,” the sur-reply concluded. How Holder and Jones will reply remains to be seen, but one reality cannot be ignored, at least with any pretense of logical consistency: As Hollis will not overturn current requirements for owning machine guns, but merely remove the ban on more recently-manufactured firearms, it seems inconceivable for the government to contend that it trusts citizens to own machine guns manufactured before May of 1986, but anything functionally-identical made after that is just too dangerous for “civilians” to possess.

http://www.examiner.com/article/court-filing-argues-post-1986-machine-gun-ban-defies-constitution

If you want to help by donating to this legal fight, go here: http://www.gofundme.com/fmxlnk

Discuss.... :up: Edited March 6, 2015 by JohnC

[nightrunner]

I would love it if we could own new manufacture machine guns both US manufacture and imported.

I don't anticipate nor expect them to be removed from NFA status, but at least make them available without an exorbitant price tag. However, those that do own the registered machine guns now have so much invested in them, that they would fight any legislation to make new ones available which would make theirs near worthless.

I know there would be many more tax stamps applied for if they were legal.

[JohnC]

There are a lot of folks who bought these for investment. But overall, from what I've read from most current MG owners, the majority of them would love to have post-86 MG legal to buy again because they could own more/types MG's for less cost. :up:

Then main cost would be feeding them now with current ammo prices. :lol:

[Dolomite_supafly]

I have very high hopes for this but I suspect I will be let down in the end. I don't even care if you still have to register them I would love to be able to take one of my guns and turn it into a machine gun. In a perfect world, but it will never happen, we would see the NFA removed entirely and anyone can buy anything so long as they are allowed to own firearms.

 

Silencers, short barrels, destructive devices and any other weapons should not even be on any registry. They are no more deadly than a regular firearm. Silencers are not silent and unless you are using subsonic ammunition the gun shot isn't even quiet. When I shoot my silencer with supersonic ammunition most people are surprised at how loud it actually is.

 

I know there is a big push to remove silencers from the NFA and if that happens imagine the technological breakthroughs that will happen almost overnight. I know I will probably go broke buying the materials needed to actually try some of my ideas. But if you look at every other country where they are legal the cost of the average silencer is about 1/10 our cost and that is because of all the licensing and fees needed to make a silencer here.

[Johnny Rotten]

I would love it if we could own new manufacture machine guns both US manufacture and imported.

I don't anticipate nor expect them to be removed from NFA status, but at least make them available without an exorbitant price tag. However, those that do own the registered machine guns now have so much invested in them, that they would fight any legislation to make new ones available which would make theirs near worthless.

I know there would be many more tax stamps applied for if they were legal.

 

I for one wouldn't fight, if I can get post sample MG's for $1k sign me up.. 

 

There are a lot of folks who bought these for investment. But overall, from what I've read from most current MG owners, the majority of them would love to have post-86 MG legal to buy again because they could own more/types MG's for less cost. :up:

Then main cost would be feeding them now with current ammo prices. :lol:

 

you betcha..

 

Typical M16 range visit for me and my son  

30-30rd mags.........wolf

Shrike Belt-fed upper

LC M855/56 or 193 linked up

1-200 rd saw box

6-100rd nutsacks

[JohnC]

I for one wouldn't fight, if I can get post sample MG's for $1k sign me up.. 
 
 
you betcha..
 
Typical M16 range visit for me and my son  
30-30rd mags.........wolf
Shrike Belt-fed upper
LC M855/56 or 193 linked up
1-200 rd saw box
6-100rd nutsacks

I'll have to come see that belt fed soon. Looks BA from the video you posted a while back!

How long does a barrel last typically with that ROF?

Using hammer forged MG barrels? Brand?

[JohnC]

Took me like a half hour to find this video of the belt fed. :lol:

https://www.youtube.com/watch?v=cadAIX2pANY

[eapking]

This will get fought to the SCOTUS, if they decide to hear it.

[nightrunner]

I have very high hopes for this but I suspect I will be let down in the end. I don't even care if you still have to register them I would love to be able to take one of my guns and turn it into a machine gun. In a perfect world, but it will never happen, we would see the NFA removed entirely and anyone can buy anything so long as they are allowed to own firearms.

Silencers, short barrels, destructive devices and any other weapons should not even be on any registry. They are no more deadly than a regular firearm. Silencers are not silent and unless you are using subsonic ammunition the gun shot isn't even quiet. When I shoot my silencer with supersonic ammunition most people are surprised at how loud it actually is.

I know there is a big push to remove silencers from the NFA and if that happens imagine the technological breakthroughs that will happen almost overnight. I know I will probably go broke buying the materials needed to actually try some of my ideas. But if you look at every other country where they are legal the cost of the average silencer is about 1/10 our cost and that is because of all the licensing and fees needed to make a silencer here.

My thoughts exactly. Short barrel shotguns, short barrel rifles, and suppressors should not be on the registry. Short barrel shotguns and rifles were used in the early days of cartridge fired weapons because they were more powerful than any handgun cartridge available at the time and concealable. But now we have things like the S&W 500 and 460, .45/70 revolvers, ar and ak pistols, etc. that are more powerful than a lot of rifles.

There is no reason to not have current manufacture machine guns available to the general public provided you have a tax stamp. Heck, they are federally registered, isn't that what they want anyways?

Destructive devices I am not too familiar with.

[Johnny Rotten]

I'll have to come see that belt fed soon. Looks BA from the video you posted a while back!

How long does a barrel last typically with that ROF?

Using hammer forged MG barrels? Brand?

850+/- unsupressed, 1100+ suppressed, I don't like it suppressed the ROF is too high, I fear something will break.

I'm pretty sure they're HF barrels,  I have a 12.5" and 16" both are quick change made by Ares defense..

 

Took me like a half hour to find this video of the belt fed. :lol:

https://www.youtube.com/watch?v=cadAIX2pANY

My first trip out was a total disaster nothing worked right, that video was from my second trip out, I didn't know what to expect that's why the video started off slow...,BTW that's and excellent example of $90 bucks worth of ammo down the pipe..

[raildog]

This would make my day. As a guy who would like to have a full-auto but could never bring my self to spend the money that it would take right now

[No_0ne]

The 1986 date has always been completely arbitrary, I would imagine any decent lawyer could make a very good argument against the capriciousness of the decision to not issue stamps for  MG's manufactured after that date.  As for repealing the NFA provisions, I would also think that's a much tougher sale to the courts, as it's essentially a tax, and SCOTUS has ruled repeatedly in many cases that taxes imposed by the Federal government are, with few exceptions, allowed under the Constitution ...

[ProfEngr]

The 1986 date has always been completely arbitrary, I would imagine any decent lawyer could make a very good argument against the capriciousness of the decision to not issue stamps for MG's manufactured after that date. As for repealing the NFA provisions, I would also think that's a much tougher sale to the courts, as it's essentially a tax, and SCOTUS has ruled repeatedly in many cases that taxes imposed by the Federal government are, with few exceptions, allowed under the Constitution ...

Ok fine, (no pun intended) leave the stupid "tax" on the posession if you have to. Just kill the blasted 4-6mon (longer if not a trust) lead time on the stupid stamp.

[CommsNBombs]

I think this is a good thing.

 

Most off-the-street Joe Public's don't really understand the NFA, if they know anything about it. Trying to push to remove the NFA as a whole will scare many people into thinking everyone can go out and buy SMAW-Ds and M240Bs and run amok with them.

 

Targeting individuals parts of it like the 1986 MG Ban or Silencers would be a good way to start.

 

This might actually catch some ground, especially with all the pissed off gun-owners (myself included) that are still riled up from the "Penetrator" ammo ban. 

[Dolomite_supafly]

In this day and age an NFA background check should not be instant. The background for NFA transfers is no more in depth than a standard check. It isn't like they are doing a credit check or even local checks, just a criminal history check at the federal level to make sure you are not a felon. The reason it takes so long is because there is a line, not because the checks take so much longer.

Or at a minimum make a frequent flyer program for those who transfer more than once a year.

Or for trusts make it instant because you cannot do a background on an entity like a trust or business.

And as far as the $200 stamp cost for any NFA it is discriminating against those with a reduced incomes. Anyone, regardless of their financial status, should be able to own the best weapon to protect themselves without the additional costs associated with anything NFA. And by limiting availability they have increased the cost of machine guns to a point only the super rich can afford them, again denying the average person the ability to use a machine gun for self defense if they feel that is the best weapon to use.

[CommsNBombs]

Reducing the NFA tax to a flat $5 would be nice.

Hell, even if it was $100 more people would go for Title II weapons

[ProfEngr]

They'd lose too much $. Never happen. Right now they're raking in a good $1.2mil/week on stamps.

[Johnny Rotten]

Yeah and their giving away 1.2 billion in food stamps.

[CommsNBombs]

Im sure the Fed can afford to take a hit on a $200 flat tax.

Hell, before I left NYC they were giving away iPhone 4s with unlimited plans, vehicles, 3 bedroom units and food stamps to "low income families."

Its a damn ancient and UNCONSTITUTIONAL piece of legistlation written into a tax law to mitigate the attempts of law abiding citizens such as ourselves to overturn it.

SCOTUS and the ATF are lying to themselves if they think theyre stopping crime...SBR/SBS regs are so ridiculous.

You can go to VA or PA and make a straw purchase for some gangbanger in NYC who will just cut off more than half of the barrel and grind off the serial numbers and merk some other idiot...BUT GOD FORBID I "shoulder" my AR pistol, I'll get the Long Law Schlong.

[ProfEngr]

Don't disagree with you there.

Only thing is they will spend scads of $ on social programs if it'll buy votes for them. If they can screw people like us, they'll gladly do that as well. How "they" spend or covet our tax $ is tied fairly tight to their left-wing agendas. Otherwise you could never make sense of it.

[Dolomite_supafly]

They'd lose too much $. Never happen. Right now they're raking in a good $1.2mil/week on stamps.

 

Where are you getting your numbers?

 

There is no way they are approving 2,000 stamps a week. And that is assuming every stamp is $200 and not counting the $5 transfers.

[Oh Shoot]

Where are you getting your numbers?

 

There is no way they are approving 2,000 stamps a week. And that is assuming every stamp is $200 and not counting the $5 transfers.

 

Even if they were, 2,000 of them would be $400K, not $1.2M.

 

- OS

[ProfEngr]

I saw numbers posted around the 6k range for a week not too long ago. Even if it's not all $200 stamps or they have a slower week, thats still a big chunk of revenue for just stamping a signature on a piece of paper.

Jughead, you sent me the email with the stats but I can't locate it right now. Think you can dig it up? I might have lumped form 3s in my number with 4s. Edited March 8, 2015 by ProfEngr

[Oh Shoot]

I saw numbers posted around the 6k range for a week not too long ago. Even if it's not all $200 stamps or they have a slower week, thats still a big chunk of revenue for just stamping a signature on a piece of paper.

Jughead, you sent me the email with the stats but I can't locate it right now. Think you can dig it up? I might have lumped form 3s in my number with 4s.

 

Okay, here are some facts --  ATF's own published numbers: Most recent, 2012.

 

https://www.atf.gov/statistics/index.html

 

NFA forms processed, 137,649 or over 2600 per week.

 

Also, look at huge increase in last few years, so it's obviously significantly more currently.

 

Both me and Dolo way off. But also not in even the neighborhood of the ballpark of $1.2 million/week, either, even if it has grown to 3,000-3500 per month.

 

2012  137,649
2011  105,373
2010  91,949
2009  86,753
2008  72,808
2007  66,560
2006  57,783
2005  41,579

 

Not sure I get this part, though:

 

Number of NFA firearms Processed by Fiscal Year: 1,112,041. That must include military and LE I guess?

 

- OS

Edited March 8, 2015 by Oh Shoot

[Dolomite_supafly]

 

 

Number of NFA firearms Processed by Fiscal Year: 1,112,041. That must include military and LE I guess?

 

- OS

That likely includes registering newly made items as well as their transfer from manufacturers to dealers then to individuals. So a single item would be "processed" three, or more, times. And LE needs to go through the transfer process as well.

 

Individual officers need to go through the NFA process just like a normal person unless it is on department letterhead and if that is the case the officer cannot keep it if he leaves the department. I know of a lot of officers who think they can make their person guns SBRs or machine guns because they are LE and get to keep it like that after they leave or transfer to another department. I warn them doing so is in violation of federal law but they think they are exempt because they are LE. I know the Glock stocks are a really hot ticket for LE but as we know they are against the law unless the Glock is registered as an SBR.