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dantodd
11-06-2009, 1:14 AM
Once Sykes takes down CLEO discretion in CCW issuance how long can CLEO discretion survive in NFA permit issuance?

MP301
11-06-2009, 1:19 AM
Probably...thats an animal of a different breed.

ke6guj
11-06-2009, 1:53 AM
its not CLEO discretion that is the problem, but is CADOJ discretion in issuing Dangerous Weapons Permits.

bwiese
11-06-2009, 3:36 AM
You could argue that the DOJ, as representing the AG, is indeed "CLEO" for CA.

Alison tries to say no, it's the 58 DAs. But, as she's proved several times before, sometimes she DOES wanna play the Chief when she wants things her way.

B Strong
11-06-2009, 5:47 AM
Once Sykes takes down CLEO discretion in CCW issuance how long can CLEO discretion survive in NFA permit issuance?

There was a suit filed by the "1934 Group" over this exact issue.

CLEO's are required to sign off on NFA forms, but in certain jurisdictions throughout states where NFA possession is legal, certain CLEO's will not sign off, period.

The suit failed.

I believe that absent an excellent case, the NFA will withstand incorporation, Heller, etc.

What I'd like to see happen, and I believe that there may be a chance, is the repeal of the Hughes amendment to the FOPA - the restriction on the manufacture of transferable MG's.

dantodd
11-06-2009, 7:52 AM
What I'd like to see happen, and I believe that there may be a chance, is the repeal of the Hughes amendment to the FOPA - the restriction on the manufacture of transferable MG's.

I would almost bet that NFA would be easier to kill that FOPA. Think about it. NFA is a direct taxation of the tools needed to carry out a constitutionally protected right. FOPA is a direct prohibition on an activity. Do you think that SCOTUS will look more favorably on a taxation restriction (NFA) or on a "dangerous and unusual" claim (FOPA?)

To me it would seem a slam dunk between those two.



The real question is if non-MG NFA weapons are considered "dangerous and unusual" so that the states could argue a compelling interest in restricting their possession. If they are then there would have to be very specific guidelines for permit refusal in order to avoid an "equal protection" action.

stag1500
11-06-2009, 4:47 PM
So if NFA is struck down, does that mean the Hughes Amendment in FOPA becomes obsolete?

ke6guj
11-06-2009, 5:35 PM
who knows? Hard to judge the results of a potental ruling about how the NFA might get struck down, and how far that decision may extent.

dantodd
11-06-2009, 9:46 PM
So if NFA is struck down, does that mean the Hughes Amendment in FOPA becomes obsolete?

I don't believe so. A prohibition and taxation are very different. Prohibition would be equally restrictive while taxation is directly punitive to those who are attempting to exercise a right.

FOPA and other restrictions that target manufacture rather than possession might be deemed unconstitutional because the fact that possession of a pre-existing machine gun is not considered dangerous and unusual therefore you can't say that a newly manufactured machine gun is necessarily dangerous and unusual. (if an M-16 made in 1980 is not dangerous and unusual, what makes and M-16 made in 1990 dangerous and unusual?) It is certainly an interesting argument but it might cause existing MGs to be legislated dangerous and unusual rather than the result we want.

NFA, on the other hand, does nothing to directly prohibit any weapons, it taxes those weapons. There is plenty of case law that says you cannot tax a constitutional right. From poll taxes to ink and newsprint taxes you can't tax someone's actual exercise of tax the tools which are required to do so. This is one of the issues CCW permit fees may run up against if they are deemed excessive.

bigstick61
11-06-2009, 9:49 PM
My understanding was that the FFA, GCA, and FOPA were all amendments to the NFA, so if the NFA is repealed, all amendments to it effectively are.

dantodd
11-06-2009, 9:58 PM
My understanding was that the FFA, GCA, and FOPA were all amendments to the NFA, so if the NFA is repealed, all amendments to it effectively are.

That is possible. I should have been more specific in referring to the tax stamp portion of the law.

hoffmang
11-06-2009, 10:31 PM
CLEO is irrelevant as you'd still be violating California law. More importantly, there are only two categories of NFA weapons that are arguably protected by the common use/not dangerous and unusual prong of Heller.

All that said, CA is not the first place to challenge those two prongs of NFA. Two other prongs remain outside of the scope of the 2A as currently interpreted and should be ignored until later...

-Gene

wildhawker
11-06-2009, 11:52 PM
This thread is incomplete without a reference to anal sex and strange women.

B Strong
11-07-2009, 7:36 AM
I would almost bet that NFA would be easier to kill that FOPA. Think about it. NFA is a direct taxation of the tools needed to carry out a constitutionally protected right. FOPA is a direct prohibition on an activity. Do you think that SCOTUS will look more favorably on a taxation restriction (NFA) or on a "dangerous and unusual" claim (FOPA?)

To me it would seem a slam dunk between those two.



The real question is if non-MG NFA weapons are considered "dangerous and unusual" so that the states could argue a compelling interest in restricting their possession. If they are then there would have to be very specific guidelines for permit refusal in order to avoid an "equal protection" action.

Yes - trying to educate the SCOTUS and the population at large that MG's are an absolute protected class of firearms is going to be a tough sell.

The manufacturing ban in FOPA could be attacked from more than one angle, and in eliminating that restriction, US made MG's would once again become affordable.

Kharn
11-07-2009, 8:40 AM
The CLEO signature originally was the background and local legality check for the ATF, they did not know enough about the laws in every county in the country, nor could they run a decent background check before computers, so they passed the buck onto the local CLEO.

Now, you could argue that the intent of the signature is no longer required, as the ATF sends your prints to the FBI (along with NICS being available) and they are the ones that publish an annual tome (now a CD, used to be a good paperweight) of all state laws regarding firearms.

Heller pretty much trashed the possibility of 2A protection for SBSs and MGs as dangerous & unusual, SBRs and suppressors may have a chance at being protected given how other nations treat them without problems (Canada does not restrict barrel length from the factory, suppressors are easy to buy in England, etc). Once a court declares a 16" AR15 is protected, someone can show up with a 14.5" and ask the court why it is not also protected.

Peter W Bush
02-04-2010, 9:52 PM
This thread is incomplete without a reference to anal sex and strange women.

youre a sick man :D

ya ya, I know. Gene is the sicko that said it haha

Sobriquet
02-04-2010, 10:00 PM
All that said, CA is not the first place to challenge those two prongs of NFA. Two other prongs remain outside of the scope of the 2A as currently interpreted and should be ignored until later...

-Gene

+1. Discretion is the better part of valor.