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santacruzstefan
01-03-2011, 5:55 AM
Text of the Miller decision (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html)

So I was reading this, and it got me thinking... as far as members of the militia, or those 17-45 yrs old, why wouldn't owning machine guns, or really any military weapon, be legal? The decision points out that since the Court didn't think the SBS at the center of the case was a common military arm (and thus one which ought to be available to the militia), the NFA was therefore constitutional. I wonder whether a challenge to the NFA could be mounted, in light of what was found in McDonald and Heller, and taking into account the Court's own words in Miller. Although they mentioned in McDonald "reasonable restrictions" or some nonsense like that... what do you think? Maybe I'm just really tired, and I don't know what I'm talking about.

yellowfin
01-03-2011, 6:16 AM
We need a few more good decisions first to clear the way.

NightOwl
01-03-2011, 6:29 AM
Incidentally, there was a thread floating around a few weeks back that indicated (pending further review of pertinant materials) that the "law" that supposedly bans machine guns from the general populace might not have actually passed. http://www.calguns.net/calgunforum/showthread.php?t=364163

Just for your reading pleasure. Enjoy!

cineski
01-03-2011, 7:23 AM
You can get machine guns in free states with a bit of money. It's the bit of money that's the unfortunate part.

cmaynes
01-03-2011, 7:56 AM
You can get machine guns in free states with a bit of money. It's the bit of money that's the unfortunate part.

only if they were manufactured before 1986 and are on the NFA registry....

GaryV
01-03-2011, 8:28 AM
only if they were manufactured before 1986 and are on the NFA registry....

Which is why the "bit" of money is quite a bit.

Patrick-2
01-03-2011, 9:17 AM
Too early to tell. But Heller had words on machine guns, and they were not what you want to hear.

The change to MG and NFA laws will need to come from the legislature.

Librarian
01-03-2011, 1:19 PM
Text of the Miller decision (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html)

So I was reading this, and it got me thinking... as far as members of the militia, or those 17-45 yrs old, why wouldn't owning machine guns, or really any military weapon, be legal? The decision points out that since the Court didn't think the SBS at the center of the case was a common military arm (and thus one which ought to be available to the militia), the NFA was therefore constitutional. I wonder whether a challenge to the NFA could be mounted, in light of what was found in McDonald and Heller, and taking into account the Court's own words in Miller. Although they mentioned in McDonald "reasonable restrictions" or some nonsense like that... what do you think? Maybe I'm just really tired, and I don't know what I'm talking about.

Miller is essentially irrelevant after Heller and McDonald.

That said, the precise language was that the Court could not 'take judicial notice' that SBSs were/are military arms. There was never a trial; there were no facts presented. A court can 'take judicial notice' of things that are indisputable, such as 'the sun rises in the east'. Other facts must be placed in evidence before they can be considered.

mdimeo
01-03-2011, 2:16 PM
why wouldn't owning machine guns, or really any military weapon, be legal? The decision points out that since the Court didn't think the SBS at the center of the case was a common military arm (and thus one which ought to be available to the militia), the NFA was therefore constitutional.

The Heller decision specifically and clearly allowed for the banning of select-fire M16s, by twisting the Miller ruling until it protected only weapons in common use by civilians.

It's a misreading of Miller, but the Court clearly wasn't up for full-autos-for-everyone.

-m@

Nick Justice
01-03-2011, 3:53 PM
Miller is essentially irrelevant after Heller and McDonald.

That said, the precise language was that the Court could not 'take judicial notice' that SBSs were/are military arms. There was never a trial; there were no facts presented. A court can 'take judicial notice' of things that are indisputable, such as 'the sun rises in the east'. Other facts must be placed in evidence before they can be considered.

In 1934, the federal government enacted the National Firearms Act. It placed a $200.00 excise tax on the purchases of all machine guns, short-barreled rifles and shotguns, and silencers. If, after the background check, no reason to deny the purchase was found, the buyer could take possession of the gun, perfectly legal. Because the law was classified as a tax, enforcement of it came under the Treasury Department.

At that time, the various Auto-Ordnance selective fire carbines (the “Tommy Guns”) could be purchased for between $175.00 and $225.00.

$200.00 in 1934 would be equal to about $3,200.00 today.

It was the middle of the Great Depression, and Prohibition. Very few people had any money. Not even police departments, to whom the gun was heavily marketed, wanted to buy them. The police said they weren’t interested, and the U.S. government didn’t want any until the Army adopted it in 1938. The real reason no one bought them was because, even before the NFA tax, the guns were just too expensive.

But, according to legend (and movies), the gangsters and bootleggers of the day bought them. Maybe it was because they were the only ones who had any money, and because the guns were effective tools at eliminating enemies and competitors. The guns were used in a very few high profile, sensationalized crimes.

The tax doubled the price of an already horribly expensive gun. Worse yet, it also placed the same $200 tax on guns that sold for as little as $8.00 (1934), and silencers (that aren’t even guns) that cost even less. In the purest technical sense, the law in fact did not ban anything. But in a practical sense, the law effectively banned all the things it covered. It was the Great Depression. No one could afford the $200.00 tax to begin with, and nobody was going to pay $200.00 in taxes to buy an $8.00 item. Sales of these items dropped to almost zero.

All handguns were originally on the list of things subject to the $200.00 tax, but this part of the bill was deleted after heavy pressure by the NRA.

Contrary to the claim that there was strong support of the bill, there was not. The bill passed the house by simple majority, only one vote.

The attorney general at the time promoted the bill, saying it was not a ban, but only a tax. As an outright ban would have violated the Second Amendment. If the government really did not want to ban anything, why put such a high tax on these things in the first place, knowing that no one had any money? Did the supporters not realize that they were putting these things out of practically everyone’s reach? They did know, and that was their plan.

The case did not uphold any conviction. The lower court sustained a demurrer, which is a legal pleading saying that the alleged illegal conduct of the defendant was not a crime at all, because in this case, the law was unconstitutionally void, being in fact a federal attempt to usurp of the police power of the state. The Supreme Court ruled that there was not enough evidence to sustain the demurrer. The case was remanded back to the district court for further proceedings.

No defense attorney appeared at the Supreme Court hearing on behalf of Miller and Layton. They absconded after been released during appeal, and did not care to hire an attorney to carry on the appeal. As a result, only the government offered any evidence at the hearing. The government wasn’t about to admit that the NFA could be unconstitutional, so they intentionally withheld any and all information that could have been interpreted against their position. Information like: Full auto weapons had been used by the military for decades. Thousands of short-barreled shotguns were used by the US military in the trenches of WW I. The citizen militia is supposed to be as well-armed as the professional army.

The quotation straight from Miller: “In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.”

“Ordinary military equipment” Hmm…

Scott Connors
01-03-2011, 7:40 PM
Too early to tell. But Heller had words on machine guns, and they were not what you want to hear.

The change to MG and NFA laws will need to come from the legislature.

Scalia indicated that some restrictions on MGs were okay, but didn't specify what kind, and he did not come out and specify a total ban. AFAIK restrictions on fundamental rights are to be as lenient as possible, which means that the basic NFA registry requirements will pass muster but the 1986 closure of the registry to civilians just might not.

dustoff31
01-03-2011, 7:55 PM
Text of the Miller decision (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html)

So I was reading this, and it got me thinking... as far as members of the militia, or those 17-45 yrs old, why wouldn't owning machine guns, or really any military weapon, be legal?


... what do you think? Maybe I'm just really tired, and I don't know what I'm talking about.


You would be right except that the militia is under state control unless/until ordered into federal service.

And your state Commander in Chief (The Governor) says none of those goodies for the militia.

Pred@tor
01-03-2011, 10:32 PM
The Heller decision specifically and clearly allowed for the banning of select-fire M16s, by twisting the Miller ruling until it protected only weapons in common use by civilians.

It's a misreading of Miller, but the Court clearly wasn't up for full-autos-for-everyone.

-m@
Common use yeah how can they be common when there's a fixed supply of M16s that have been banned since 1986 and are cost prohibitive so thus aren't commonly used... So stupid and while an AR15 is mildly less deadly... Common use is bull crap... I stated something similar in another thread.

Bhobbs
01-03-2011, 11:23 PM
You would be right except that the militia is under state control unless/until ordered into federal service.

And your state Commander in Chief (The Governor) says none of those goodies for the militia.

Actually no. US law creates two militias. One that is organized and commanded by the government and another that is unregulated that is made up of all able males age 17-45.

NightOwl
01-04-2011, 1:24 AM
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed, unless those infringements are reasonable.

press1280
01-04-2011, 3:17 AM
Heller/McDonald has adopted a common-use test, which applied to MGs leads to circular logic. They're not in common use because they're highly restricted(through the NFA tax/registry as well as outright banned in certain states), but then they're highly restricted BECAUSE they're not in common use. My guess is that perhaps the first (legitimate) challenge could be against one of those states with a total ban. Not a challenge on the NFA, just someone who's already got a MG registered who then moves to a MG ban state and wants to move it with them.

nicki
01-04-2011, 4:04 AM
We got a 5-4 ruling on both Heller/MacDonald. If either had been a "machinegun case", it would have been a 4 to 5 ruling.

The problem is Justice Kennedy, he is very uncomfortable with full autos.

Alan Gura(winning attorney for both Heller/MacDonald) feels that at this time a full auto case would lose.

Like it or not, public opinion does sway the courts.

Public opinion is majorly against civilian ownership of full autos. Never mind the fact that owners of full autos are the most law abiding citizens in the country.

It is possible that the registry could be reopened which is the most likely outcome.

It is possible we could have 6 more years of Obama. That means he will probably replace at least 2 more justices.

If one of the five conservative jusitces dies, we are screwed.

Nicki

AJAX22
01-04-2011, 5:11 AM
There may be another way around MG's based in a combination of the us v rock island, us v Dalton, and the drexell case.

The NRA's case that they brought (farmer v higgens) may actually provide the crucial piece.

Ive spent the last 36 hours reading scotus opinion and there may be a NON 2a case for repealing the 86 Hughes amendment on taxation grounds, which would ultimately negate the common use argument (if the registry was re opened how many machine guns would you buy?)

santacruzstefan
01-04-2011, 6:27 AM
See, if the registry were reopened, that would at least be a start. All the "presample" and "postsample" nonsense is stupid, a MG is a MG. And as we know, the NFA really only impacts lawful gun owners, so reopening the registry and allowing new guns isn't going to cause any harm. I wonder how many legally-owned MGs were used in crimes in the past decade? Shoot, I wonder how many illegal MGs were used in crimes? Can't be more than a couple. Then again, try convincing the frightened, cowering public of that :rolleyes:

There may be another way around MG's based in a combination of the us v rock island, us v Dalton, and the drexell case.

The NRA's case that they brought (farmer v higgens) may actually provide the crucial piece.

Ive spent the last 36 hours reading scotus opinion and there may be a NON 2a case for repealing the 86 Hughes amendment on taxation grounds, which would ultimately negate the common use argument (if the registry was re opened how many machine guns would you buy?)

I don't recall the exact the case, but I'm wondering about how in the mid-60's, the tax acts relating to drugs like marijuana were thrown out by the Court as unconstitutional, before the Controlled Substances Act was passed shortly after. Though I forget why they were tossed out, perhaps the same reason could be applied here?
edit: heres the case (http://en.wikipedia.org/wiki/Leary_v._United_States)... don't think it would help, as no new NFA items can be registered, now that the amnesty period has passed.

AJAX22
01-04-2011, 7:00 AM
Leary v u.s. was settled on 5th amendment grounds because of procedural issues... (although it is an interesting read)

Pred@tor
01-04-2011, 3:17 PM
There may be another way around MG's based in a combination of the us v rock island, us v Dalton, and the drexell case.

The NRA's case that they brought (farmer v higgens) may actually provide the crucial piece.

Ive spent the last 36 hours reading scotus opinion and there may be a NON 2a case for repealing the 86 Hughes amendment on taxation grounds, which would ultimately negate the common use argument (if the registry was re opened how many machine guns would you buy?)

I'd register two of my rifles to become title two weapons and use my company (LLC) to acquire these weapons.

dustoff31
01-04-2011, 6:24 PM
Actually no. US law creates two militias. One that is organized and commanded by the government and another that is unregulated that is made up of all able males age 17-45.

I believe the word you are looking for is unorganized, not unregulated.

The organized militia being the National Guard, State Defense Forces, etc.

The unorganized militia being all able bodied males 17-45, and certain other others. The unorganized militia is still subject to government control.

If you have a section of the US code, or any other offical document that says people are free to form their own private armies and do whatever they want, I'd certainly be interesting in seeing it.

Pred@tor
01-04-2011, 6:52 PM
I believe the word you are looking for is unorganized, not unregulated.

The organized militia being the National Guard, State Defense Forces, etc.

The unorganized militia being all able bodied males 17-45, and certain other others. The unorganized militia is still subject to government control.

If you have a section of the US code, or any other offical document that says people are free to form their own private armies and do whatever they want, I'd certainly be interesting in seeing it.

http://en.wikipedia.org/wiki/Militia_Act_of_1903

What about the Dick Act I haven't read too much into but its worth looking into

dustoff31
01-04-2011, 7:03 PM
http://en.wikipedia.org/wiki/Militia_Act_of_1903

What about the Dick Act I haven't read too much into but its worth looking into

One of the worst pieces of legislation ever, IMHO. The Dick act was however aptly named because that's pretty much what happened to the traditional militia system we had known since the Rev. War. It got the dick.

Essentially the states sold, literally, the majority of their sovernity over their state forces to the fed gov't.

Even still, unless ordered into federal service, the state governor is the commander in chief of the state militia, both organized and unorganized.

mrdd
01-05-2011, 2:34 AM
Even still, unless ordered into federal service, the state governor is the commander in chief of the state militia, both organized and unorganized.

Do you have a reference for the unorganized militia being under state control?

Title 32 USC (National Guard organizing statutes) does not mention the unorganized militia. Title 10 USC which defines the militia of the United States and the classes thereof does not mention federal or state control.

dustoff31
01-05-2011, 7:51 AM
Do you have a reference for the unorganized militia being under state control?

First off, remember that the unorganized militia is unorganized. That is to say that it doesn't exist, as an entity, until such time as it is called forth. Otherwise it's just a list of people who can be drafted, if necessary.

But to your question more precisely, it is covered under state statutes. In the case of CA, it is the Military and Veterans Code. As you can see, it's pretty clear that the militia is under state control until called into federal service.

(I've omitted some sections below that were not germane to your question of composition and control.)


http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=mvc&codebody=&hits=20

MILITARY AND VETERANS CODE


120. The militia of the State shall consist of the National Guard,
State Military Reserve and the Naval Militia--which constitute the
active militia--and the unorganized militia.

121. The unorganized militia consists of all persons liable to
service in the militia, but not members of the National Guard, the
State Military Reserve, or the Naval Militia.

123. Whenever the Governor deems it necessary, he or she may order
an enrollment to be made by officers designated by the Governor, of
all persons liable to service in the militia. The enrollment shall
include any information that the Governor may require. Three copies
thereof shall be made: one copy shall be filed in the office of the
clerk of the county in which the enrollment is made, and two copies
in the office of the Adjutant General.

124. Enrollment shall be made upon such notice and in such manner
as the Governor may direct. Every person required by such notice to
enroll who fails or refuses so to do is guilty of a misdemeanor.

128. The unorganized militia may be called for active duty in case
of war, rebellion, insurrection, invasion, tumult, riot, breach of
the peace, public calamity or catastrophe, or other emergency, or
imminent danger thereof, or may be called forth for service under the
Constitution and laws of the United States. Whenever it is necessary
to call out any portion of the unorganized militia, the Governor may
call for and accept as many volunteers as are required for such
service, under regulations provided by this division.

129. Every member of the militia who is ordered out, or who
volunteers or is drafted under the provisions of this division and
who does not appear at the time and place designated by the Governor,
or under his authority, within twenty-four hours from such time, and
who does not produce a sworn certificate of physical disability from
a physician in good standing, is a deserter and shall be dealt with
as prescribed in the Articles of War of the United States, or by this
division.

140. The Governor of the State, by virtue of his office, is the
Commander in Chief of the Militia of the State.

142. The Governor may order the active militia or any portion
thereof to perform military duty of every description, including
necessary administrative duties, and to participate in small arms
gunnery competitions in this State or in any other state or territory
or the District of Columbia, or in any fort, camp, or reservation of
the United States. He may also authorize the performance of military
duty or participation in small arms or gunnery competitions by any
part of the active militia anywhere without the State or without the
United States. Cruise duty ordered for the Naval Militia may be
required to be performed on United States vessels.

143. Whenever the Governor is satisfied that rebellion,
insurrection, tumult or riot exists in any part of the state or that
the execution of civil or criminal process has been forcibly resisted
by bodies of persons, or that any conspiracy or combination exists
to resist by force the execution of process, or that the officers of
any county or city are unable or have failed for any reason to
enforce the laws, the Governor may, by proclamation, declare any part
of the State of California or the county or city or any portion
thereof to be in a state of insurrection, and he or she may thereupon
order into the service of the state any number and description of
the active militia, or unorganized militia, as he or she deems
necessary, to serve for a term and under the command of any officer
as he or she directs.

144. The Governor may at any time revoke a proclamation of
insurrection or declare that it shall terminate at a time or in the
manner that he or she directs.

146. The Governor may call into active service any portion of the
active militia as may be necessary, and if the number available be
insufficient, the Governor may call into active service any portion
of the unorganized militia as may be necessary, in any of the
following events:
(a) In case of war, insurrection, rebellion, invasion, tumult,
riot, breach of the peace, public calamity or catastrophe, including,
but not limited to, catastrophic fires, or other emergency, or
imminent danger thereof, or resistance to the laws of this state or
the United States.
(b) Upon call or requisition of the President of the United
States.
(c) Upon call of any United States marshal in California, or upon
call of any officer of the United States Army commanding an army,
army area, or military administrative or tactical command including
generally the State of California, or upon call of any officer of the
United States Air Force commanding an air force, air defense force,
air defense command or air command including generally the State of
California.
(d) Upon call of the chief executive officer of any city or city
and county, or of any justice of the Supreme Court, or of any judge
of the superior court, or of any sheriff, setting forth that there is
an unlawful or riotous assembly with intent to commit a felony, or
to offer violence to person or property, or to resist the laws of the
State of California or the United States or that there has occurred
a public calamity or catastrophe requiring aid to the civil
authorities.
(e) Upon call of the sheriff setting forth that the civil power of
the county is not sufficient to enable the sheriff to execute
process delivered to him or her.

147. In case of insurrection, invasion, war, rebellion, tumult,
riot, breach of the peace, public calamity or catastrophe, or
imminent danger thereof, or in the event of emergency in which all or
any part of the militia is actively engaged in service upon order of
the Governor, the Governor may suspend any and all provisions of
this division or other laws of the State which require advertisement
for bids for purchases of supplies or employment of services.

148. The Governor may make rules and regulations in conformity with
this code which shall conform as nearly as practicable to those
governing the United States Army, United States Air Force and United
States Navy. Such rules and regulations shall have the same force and
effect as the provisions of this code.



Also important to the discussion is this section of Title 10. (See what I mean about the Dick Act?)

TITLE 32 > CHAPTER 1 > § 109

Prev | Next § 109. Maintenance of other troops

(a) In time of peace, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may maintain no troops other than those of its National Guard and defense forces authorized by subsection (c).

(b) Nothing in this title limits the right of a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands to use its National Guard or its defense forces authorized by subsection (c) within its borders in time of peace, or prevents it from organizing and maintaining police or constabulary.

(c) In addition to its National Guard, if any, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces.

mrdd
01-05-2011, 11:28 AM
First off, remember that the unorganized militia is unorganized. That is to say that it doesn't exist, as an entity, until such time as it is called forth. Otherwise it's just a list of people who can be drafted, if necessary.

But to your question more precisely, it is covered under state statutes. In the case of CA, it is the Military and Veterans Code. As you can see, it's pretty clear that the militia is under state control until called into federal service.

Also important to the discussion is this section of Title 10. (See what I mean about the Dick Act?)

Yes, that seems to nail it, thanks!

Bhobbs
01-05-2011, 11:34 AM
In the state of California it is illegal to form a militia so it really doesn't matter if the government controls it or not.

mrdd
01-05-2011, 11:51 AM
In the state of California it is illegal to form a militia so it really doesn't matter if the government controls it or not.

Well, we are talking about the unorganized militia, as defined by the federal government. The question was whether it was under state or federal control. The answer from dustoff is that it is up to each state, and California clearly places it under state control. However, it is not completely clear what happens if a state does not declare it under its own laws.

stix213
01-05-2011, 1:43 PM
Lets get 11 round mags and functional mag releases first

fatirishman
01-05-2011, 3:29 PM
I don't think the courts will be our friends on this one for a bit - it sounds crazy (I don't mean it is, I just mean it sounds crazy.) Having said that, there is some warrant in the text of the Constitution and 18th century use that could give us wiggle room for full-auto; albeit likely not crew served. Most important in the interim, though is to find a different label: "machine-guns" and "automatic weapons" sound scary - we need something that doesn't, but doesn't seem like a painful neologism, either. BTW, I think Roberts, not Kennedy, is the holdout on a robust 2A - this is unfortunate, as Kennedy will likely be gone much sooner.