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View Full Version : MGs, Heller and the Chicago 14th amend. case


CCWFacts
08-03-2008, 11:18 PM
I just now read the plaintiff's motion for summary judgment. By a quirk that may be very nice for us, Chicago's law says that once a firearm's registration lapses, that firearm becomes eternally unregisterable. In the motion,

But the non-registerability penalty is not merely a Second Amend. violation. The penalty violates the Equal Protection Clause as well, because the would-be registratnt is fuly capable of registering an identical firearm - just not the particular firearm whose registration has lapsed or failed for some reason. The non-registerability penalty thus creates two classes of identical firearms: one which can be possessed, and one which cannot, and the only distinction between the two is that an item falling in the latter category was once subject to a registration failure.

It seems like there's an obvious parallel to the non-registerability of MGs made post-May, which are identical to MGs which were registered. If someone has a registered M16, why can't I register a gun which is in every way identical, save for the failure of it to be registered?

PanzerAce
08-04-2008, 12:06 AM
Seems like this would also apply (more immediately) to the AW laws in this state, especially since LEOs still can reg

CCWFacts
08-04-2008, 12:52 AM
Seems like this would also apply (more immediately) to the AW laws in this state, especially since LEOs still can reg

That too. I personally have a registered AR-15 AW. What if it is destroyed and I want to replace it? It's a model that is currently available, so I could buy one that is identical in everything but serial number. Why shouldn't I? What's sacred about one serial number vs. another serial number?

If this logic succeeds it will be great.

bwiese
08-04-2008, 1:01 AM
I personally have a registered AR-15 AW. What if it is destroyed and I want to replace it? It's a model that is currently available, so I could buy one that is identical in everything but serial number. Why shouldn't I? What's sacred about one serial number vs. another serial number?

It seems that DOJ has allowed folks with reg'd AWs to have "re-man" receivers to replace destroyed ones. [I believe this has required the S/N to be the same which requires the mfg to receive the dud receiver, de-list it in their ATF books, and build a new one with same S/N. It is unclear if DOJ has ever let someone replace a destroyed reg'd AW with another functionally equivalent one with different serial number or different make/model.]

CCWFacts
08-04-2008, 1:11 AM
It seems that DOJ has allowed folks with reg'd AWs to have "re-man" receivers to replace destroyed ones. [I believe this has required the S/N to be the same which requires the mfg to receive the dud receiver, de-list it in their ATF books, and build a new one with same S/N. It is unclear if DOJ has ever let someone replace a destroyed reg'd AW with another functionally equivalent one with different serial number or different make/model.]

Interesting. In contrast, I don't think the BATF has any similar option for MG owners. Or at least, if they do, I've never heard of anyone using it, and I have seen some shot-out receivers that should be replaced.

glockman19
08-04-2008, 6:36 AM
How would this effect the "Approved List"? Since LEO can buy Off-List guns, shouldn't we also be able to?

Hkfanatic
08-04-2008, 7:22 AM
It seems that DOJ has allowed folks with reg'd AWs to have "re-man" receivers to replace destroyed ones. [I believe this has required the S/N to be the same which requires the mfg to receive the dud receiver, de-list it in their ATF books, and build a new one with same S/N. It is unclear if DOJ has ever let someone replace a destroyed reg'd AW with another functionally equivalent one with different serial number or different make/model.]

some personal experience reguarding the issue

i bought a Hesse HK91 receiver and registered it before the 2000 ban, now anyone who knows the hesse guns knows that they are the most horrific pieces of crap ever manufactured. well its so out of spec that i never built it you cant even slide a butstock on it. so i gave the DOJ a call up and asked if i could have it replaced with a newer correct PTR91 receiver on the grounds of repair, basicly destroy my junk hesse and have the PTR reged to me.

long answer short i got a big HELL NO!!! deal with you piece of crap receiver. now it may have been because PRT is not the origonal manuf. but where does that leave people????? companys do go out of buissness.

the only thing i can think of doing but havent consulted the correct people as to legalitys is cut the mag well off of my Hesse gun with the serial and Mfg. markings and remove the mag well off of the PRT and graft it on. the only issue i see is the PRT serial is on top of the weapon not on the mag well. so as understand it i would have to remove both the serial and the manuf. markings as one piece so as not to fall under the "cannot be alterd obliterated etc..." law but that would ruin the receiver im trying to use.

any ideas???

WokMaster1
08-04-2008, 8:52 AM
some personal experience reguarding the issue

i bought a Hesse HK91 receiver and registered it before the 2000 ban, now anyone who knows the hesse guns knows that they are the most horrific pieces of crap ever manufactured. well its so out of spec that i never built it you cant even slide a butstock on it. so i gave the DOJ a call up and asked if i could have it replaced with a newer correct PTR91 receiver on the grounds of repair, basicly destroy my junk hesse and have the PTR reged to me.

long answer short i got a big HELL NO!!! deal with you piece of crap receiver. now it may have been because PRT is not the origonal manuf. but where does that leave people????? companys do go out of buissness.

the only thing i can think of doing but havent consulted the correct people as to legalitys is cut the mag well off of my Hesse gun with the serial and Mfg. markings and remove the mag well off of the PRT and graft it on. the only issue i see is the PRT serial is on top of the weapon not on the mag well. so as understand it i would have to remove both the serial and the manuf. markings as one piece so as not to fall under the "cannot be alterd obliterated etc..." law but that would ruin the receiver im trying to use.

any ideas???

That is based on one or two agents' answer. Does anyone know what the law says about it? Let's put it up & break it down/intepret it to the letter of the law.

hoffmang
08-04-2008, 10:05 AM
The rule of thumb as I understand it for CA AWs has bee that if the manufacturer can return you a receiver with the same manufacturer and serial number, you are set. One might think about taking the out of spec lower to an 07 FFL who could repair it.

On the legal arguments, yes - some of these arguments are going to have more relevance over time. Post incorporation equal protection becomes a very big club to use. However, one has to be careful. Simply challenging the AW laws as an equal protection violation between citizens and LEO's in their personal capacity would likely just lead to the LEO exemption being struck. There are other equal protection issues however that make the AW laws unconstitutional post incorporation.

-Gene

bigstick61
08-04-2008, 5:28 PM
With machineguns, the court in Heller actually did not state that machineguns may be prohibited or highly regulated, etc., but that the carry of weapons considered especially dangerous (a term left undefined or without example; I would assume explosives and the like) or unusual (for whatever reason, i.e. the population does not own many of those kinds of weapons and it is not something particularly popular), an M-16 (full auto) being given as an example of unusual, can be regulated or prohibted. It does not apply this to ownership, possession, lawful usage, etc.

I think this unintentionally leaves a door open to attack the machinegun registration ban, and possibly the NFA in a broader sense, as it restricts ownership and possession, and not the carrying (which is regulated by the States, except in the territories and Federal districts). Only to the extent that the NFA and amendments to it (like the GCA) involves taxation and the interstate commerce in firearms (like it originally was) would such laws be upheld, if I am reading Heller correctly, or if a court agrees with such an argument, should it be made. The purpose of the NFA, of course, was taxation, which is why when caught with an unregistered weapon, one formerly could pay the tax and register it on the spot and avoid seizure and possible jail time. The GCA is an amendment to this, and seems to deal more with the interstate/international commerce aspect, although it goes beyond this.

Of course, if the case in the OP is won by our side, then it leaves yet another angle to attack it. I long for the day when machineguns can be purchased in every State without much difficulty, if any. I think the possibility of that is greater now than it has been for a long time.

CCWFacts
08-04-2008, 8:16 PM
Let me just talk about this for a minute, since it is something I am very familiar with. A few years ago my registered Bushmaster AR had a kaboom, and the lower receiver was damaged. I contacted the DOJ and got them to agree in writing to allow me to surrender my old receiver, and have bushmaster manufacture me a new AR with a NEW serial number. Took about 3 weeks for the whole process. At the end of the day, Bushmaster manufactured my lower with a "variance" serial number, that is, a receiver designed to replace another. When I went and DROS'd the new lower, I didn't even have to wait the 10 day waiting period, IIRC. Cost me a few hundred bucks in shipping since I insisted on having it shipped both ways overnight via a courier. As an added bonus, my new lower was even nicer than my old one when it was new, no slop between the upper and lower receivers anymore! I was sent a new Assault weapon registration confirmation letter, with the old information gone and the new information (serial number) in its place.

Wow, Blackrazor, that's cool to know! I had no idea. An AW without even needing to wait for DROS!

I have two Bushmaster AR-15s, and I'm super-careful with them because I had thought that they were non-replaceable, but now that I know, I'll shoot them as much as I can, maybe try out some higher-power uppers (a 50 bmg), etc. I'm pretty sure Bushmaster will be in business and making AR-15s for decades so I won't have to worry about battering it to death.

mrjones98
08-05-2008, 7:29 AM
With machineguns, the court in Heller actually did not state that machineguns may be prohibited or highly regulated, etc., but that the carry of weapons considered especially dangerous (a term left undefined or without example; I would assume explosives and the like) or unusual (for whatever reason, i.e. the population does not own many of those kinds of weapons and it is not something particularly popular), an M-16 (full auto) being given as an example of unusual, can be regulated or prohibted. It does not apply this to ownership, possession, lawful usage, etc.


I believe it was "dangerous AND unusual."

bigstick61
08-05-2008, 1:24 PM
Same difference. Basically he's mentioning two categories of weapons whose carry can be prohibited or regulated. He never says anything about ownership or possession, or lawful usage other than carrying in public, being something which can be regulated more than anything else, or prohibited outright.

He does not define dangerous, but he does define unusual, to a degree, and he lumps machineguns into that category, or at least implies it by using one as an example of the category.

tiki
08-05-2008, 1:40 PM
I believe it was "dangerous AND unusual."

Same difference.

Definitely not. There is a huge difference between the two. "Dangerous and unusual" is very different than "dangerous or unusual". "And" requires both conditions to be met. If you don't believe that, then substutue the word "or" in for the word "and" where the assault weapon characteristics are defined in California law.

The word "unusual" may have been mentioned when talking about machine guns, but I believe that can be argued against in court.
There is nothing unusual about an M-16 other than it is made more difficult to come by and more expensive than an AR-15 because of laws that violate the 2nd Amendment.

There is arguably no difference between an AR-15 and an M-16 other than the one piece that makes the M-16 full auto. That piece, a $3.00 piece of metal, costs $16,000 because of the GCA. The M-16 is no more dangerous than the AR-15. Dangerous and unusual is going to cover stuff like RPGs and LAW's, not common, ordinary infantry firearms like an M-16, which, if it wasn't for the GCA, would be just as common and affordable as the AR-15.

The GCA has also closed the door on importation and manufacture, which has contributed to the lower number of those types of firearms.

Edit: Regulated maybe, prohibited, no.

bigstick61
08-05-2008, 1:48 PM
I definitely can see the case for machineguns being unusual only because of government action and infringement. It's really the main reason why they are not very common, otherwise alot more people would be buying them, especially rifles for which a semi-auto version is made.

And in any case, the ownership of dangerous and unusual weapons, cannot be prohibited or regulated beyond what is the case for other weapons, based on the ruling. I'm not sure if Scalia wrote it that way intentionally or not.

CCWFacts
08-05-2008, 2:27 PM
I definitely can see the case for machineguns being unusual only because of government action and infringement. It's really the main reason why they are not very common, otherwise alot more people would be buying them, especially rifles for which a semi-auto version is made.

Right, someone making the case would look at stuff like this:


The US gov't supplies MGs to civilians in other countries
Prior to the regulation being challenged (the NFA), MGs were not unusual
Hard to argue that MGs are exceptionally dangerous. Is an M4 more dangerous than an AR-15? The AR-15 has one-round burst and the M4 has three-round burst. Do those two extra rounds make it exceptionally dangerous?
These weapons are technically almost identical to widely-available guns
In wide use by civilian law enforcement, civilian firearms instructors, recreational shooters, competitors, Hollywood, and even some civilian security guards perhaps
Someone should do a 100% audit of every gun the CMP has ever supplied. If they have ever supplied an MG in their 60 year (?) history...

tiki
08-05-2008, 3:45 PM
Hard to argue that MGs are exceptionally dangerous. Is an M4 more dangerous than an AR-15? The AR-15 has one-round burst and the M4 has three-round burst. Do those two extra rounds make it exceptionally dangerous?


I believe that the contrary was proven. I saw on the Discover Channel or a simmilar channel that they placed some balloons in a field, I think 30 of them or somewhere around there. They had someone fire an automatic firearm at the 30 balloons and then the semi automatic one.

The end result was that more balloons were hit with the semi auto firearm than the auto one. Now, i'm sure someone will argue that the auto one is more dangerous because the bullets were more dispersed and out of control, but, I believe the most dangerous one would be the one that hits the most targets.

CCWFacts
08-05-2008, 3:56 PM
I believe that the contrary was proven. I saw on the Discover Channel or a simmilar channel that they placed some balloons in a field, I think 30 of them or somewhere around there. They had someone fire an automatic firearm at the 30 balloons and then the semi automatic one.

The end result was that more balloons were hit with the semi auto firearm than the auto one.

That's what I would expect. I would expect that most people, with an M16, would get the first shot in, and then fire 3 to 6 more shots that would all go high, and repeat. Therefore there would be about 1 in 5 aimed shots, 4 in 5 wild, high shots. In contrast the person with the semi- would make all aimed shots, and get more hits in less time. I've heard (is it true?) that most soldiers are using their M4s in semi-auto more often, for this reason. Clearly they put a burst-limiter on them because soldiers were emptying their mags with shots that went wild and then ending up with empty rifles.

I guess one of the advantages of the P90 is that the rifle doesn't "climb" and jump around the way an M16 does, so it can get more aimed shots in a burst.

Now, i'm sure someone will argue that the auto one is more dangerous because the bullets were more dispersed and out of control,

Well, then I would say, why are shotguns legal at all? They disperse 9 to 12 shots in a pattern that expands and which can't be controlled by the shooter. Beyond 50 yards, the pattern is bigger than a human or animal target.

swhatb
08-05-2008, 9:36 PM
interesting...