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View Full Version : CA9 - Machine gun case argued recently


Window_Seat
07-06-2012, 12:45 PM
So I thought some might look at this with a bit of interest. I was listening to the oral arguments (http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000009328) in United States v. Matthew Henry, and the Counsel (F. Richard Curtner [Federal Public Defender's Agency]) argued that machine guns are protected under the 2nd, and is not considered "unusual" because there are something like 240,000 machine guns registered in the United States (according to the ATF Website).

Here is the District Court decision (http://ia600403.us.archive.org/20/items/gov.uscourts.akd.38678/gov.uscourts.akd.38678.46.0.pdf) from 03/02/11.

Am I not the only one who thinks that this would be a bad case to go to SCOTUS, ESPECIALLY if Judges Goodwin, Fletcher & Smith change the ballgame with a big surprise?

The audio kinda sukgs for some reason.

Erik.

Dantedamean
07-06-2012, 12:59 PM
Ya it would be nice if we could get fullauto back now that major organized crime is a thing of the past.

Window_Seat
07-06-2012, 1:46 PM
One other thing to add, the appellant counsel noted the Nordyke vacated decision which "[held] that only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment", but again, that was a vacated decision, and it was noted so...

I could see this three judge decision holding something similar, and saying "but machine guns cannot be entitled to such heightened scrutiny". Just what I think is going to be realistic for this court, unless they have "circuit split" on their minds.

(ETA): The posts are doing :dupe:s again...

Erik.

CrazyPhuD
07-06-2012, 1:48 PM
Especially because there are MG's whose rate of fire is not terribly faster than what a person can fire just pulling the trigger(and both with likely have similar accuracy....). Your average MG....why are they banned? Because some people don't like them.

RMP91
07-06-2012, 2:02 PM
Considering the recent upset decision on Obamacare, I fear that this case will backfire on us full force and reinvigorate the likes of the Bradys, DiFi, McCarthy, and many other anti-gunners.

I don't even know why we're jumping to MGs when we're on the verge of losing Bullet Buttons in California!

We're skipping about 20 chapters here!

monk
07-06-2012, 2:27 PM
As fun as an mg would be, can you imagine how stupid it would be with a frigging ten round mag? And then, can't imagine many ranges allowing full auto. Hell, they don't even allow rapid semi auto fire. While you do have blm land, stupid dirty people will end up getting it closed because they need their mothers to clean up after them.

I'd still get an mp5 tho :D

Dantedamean
07-06-2012, 2:48 PM
As fun as an mg would be, can you imagine how stupid it would be with a frigging ten round mag? And then, can't imagine many ranges allowing full auto. Hell, they don't even allow rapid semi auto fire. While you do have blm land, stupid dirty people will end up getting it closed because they need their mothers to clean up after them.

I'd still get an mp5 tho :D

Ya I would much rather have detachable mags and 30 round mags. Full auto is cool and all but not really needed right now. It's not a lot to ask for. Just allow us to have factory mags. Most gun owners are willing to compromise, it's the dems that don't budge on it. And they call us thick headed.

dustoff31
07-06-2012, 4:26 PM
Considering the recent upset decision on Obamacare, I fear that this case will backfire on us full force and reinvigorate the likes of the Bradys, DiFi, McCarthy, and many other anti-gunners.

I don't even know why we're jumping to MGs when we're on the verge of losing Bullet Buttons in California!

We're skipping about 20 chapters here!

What is there to backfire? The defendant lost his case. He will lose again if he appeals to the 9 CCA, and he will lose again if he appeals to SCOTUS.

Although the foregoing discussion by the majority in Heller goes well beyond the actual circumstances of Heller, it is entirely clear to this court that the United States Supreme Court is not about to include machineguns amongst those weapons that may be possessed in the home for self-defense by persons such as the defendant here. Surely no one would think that the more liberal minority on the United States Supreme Court would fail to join with the conservative majority were the Supreme Court to be asked to consider whether or not Second Amendment protection should be extended to machineguns. The court concludes that, even in one’s residence, possession of homemade machineguns or parts possessed for purposes of converting a conventional weapon to a machinegun are not protected by the Second Amendment.

morfeeis
07-06-2012, 4:29 PM
Ya it would be nice if we could get fullauto back now that major organized crime is a thing of the past.
did i miss the memo was the government dissolved?

Connor P Price
07-06-2012, 5:13 PM
Am I not the only one who thinks that this would be a bad case to go to SCOTUS, ESPECIALLY if Judges Goodwin, Fletcher & Smith change the ballgame with a big surprise?


You're not the only one. This certainly isn't the way I'd want to see the machine gun issue play out. Even so... I'm not to concerned about that happening because I'd think that the likelihood of a cert grant is quite low. SCOTUS doesn't like taking criminal 2A cases.

nicki
07-06-2012, 8:06 PM
The SCOTUS is reluctant to take any criminal cases, so I doubt this case will get to the SCOTUS unless the 9th sides with the defendant.

The makeup of the SCOTUS has changed since the Seward case and Justice Roberts appears to want to significantly curtail the "Commerce Clause".

We know it takes 4 justices to agree to hear a case, the question I don't know and maybe someone here on this board can answer this is how many justices does it take to vacate a ruling and send it back to the lower courts.

The 9th circuit could pull a fast one and rule with the defendant to try to force a second amendment case that the SCOTUS would apply limits to the 2nd amendment.

This is potentially a very damaging case as a result.

The other side in their mind has nothing to lose to force this issue because right now, they have 5 SCOTUS judges against MG ownership.:mad:

Nicki

Gray Peterson
07-06-2012, 8:15 PM
Considering the recent upset decision on Obamacare, I fear that this case will backfire on us full force and reinvigorate the likes of the Bradys, DiFi, McCarthy, and many other anti-gunners.

I don't even know why we're jumping to MGs when we're on the verge of losing Bullet Buttons in California!

We're skipping about 20 chapters here!

First off, RMP, "we're" in this case is the Defendant's lawyer, specifically the Public Defender service.

When Alan Gura speaks of lawyers doing things they shouldn't be doing, such as filing cases in unadventageous areas, or challenging something not in the order of operations, he makes it clear that his comments are not with the criminal defense bar. They especially owe their clients a full defense, regardless of considerations of the strategic civil litigation timetable.

Window_Seat
07-06-2012, 9:42 PM
First off, RMP, "we're" in this case is the Defendant's lawyer, specifically the Public Defender service.

When Alan Gura speaks of lawyers doing things they shouldn't be doing, such as filing cases in unadventageous areas, or challenging something not in the order of operations, he makes it clear that his comments are not with the criminal defense bar. They especially owe their clients a full defense, regardless of considerations of the strategic civil litigation timetable.

+1, as well as:I think this somewhat illustrates why we often ask folks to leave gun cases to certain specific lawyers...

-Gene

Erik.

tryzubconsulting
07-07-2012, 12:11 AM
Ya it would be nice if we could get fullauto back now that major organized crime is a thing of the past.

I am laughing derisively in your direction.

Maestro Pistolero
07-07-2012, 6:25 AM
We won't get this in the courts. In a highly favorable (future) legislative environment, perhaps a re-opening of the registration could be possible. But in the current environment, not a chance.

OR:

A 2A friendly state could authorize privately-owned, select fire weapons for a legitimate, state-sanctioned militia.

If the latter course were successful, then the closed NFA registration would be on shaky constitutional ground because the weapons would actually be in current use for it's only specifically stated purpose (as written in the amendment).

Demonicspire
07-07-2012, 6:43 AM
If I were to see the supreme court deciding on full-auto weapons, it might be on "unconstitutionally vague". Although there is a clear definition of a full auto receiver, there are many techniques a person can use to achieve that kind of rate without making a full auto receiver. I forget what provision it is that gives constitutional viability to the Destructive Device /Firearm dichotomy that puts say, a howitzer out of the field of right to bear arms. So the real question here is, how big of guns does 2A cover. If it covers full auto, they can't legislate on it, if it doesn't, they can.

Speaking of vague, I'd love some of the AWB stuff to get the vaguery test. You can get a good definition for a full auto reciever, but the AWB definitions arer smoke and mirrors.

dustoff31
07-07-2012, 7:02 AM
If I were to see the supreme court deciding on full-auto weapons, it might be on "unconstitutionally vague". Although there is a clear definition of a full auto receiver, there are many techniques a person can use to achieve that kind of rate without making a full auto receiver.

In a manner of speaking SCOTUS already ruled on the issue of full auto weapons in private hands by seperating the militia argument from the basic right to arms.

I do not believe that we will ever see them strike down the NFA. More to the point for folks in CA, they will definitely not IMO, ever force a state to allow them over the states objection.

I agree with Maestro Pistolero, the courts are simply not going to do it. Nor do I believe that even in the best of political environments that the NFA will be overturned legislatively.

Therefore, the logical and most likely to suceed way is to work toward reopening the registry and allowing those who want to do so to build their own where state laws allow it.

I forget what provision it is that gives constitutional viability to the Destructive Device /Firearm dichotomy that puts say, a howitzer out of the field of right to bear arms. So the real question here is, how big of guns does 2A cover. If it covers full auto, they can't legislate on it, if it doesn't, they can.

Again, it's a state issue. With a Form 4 and a C&R, in AZ and many other states for example, one can have 37mm Anti-Tank guns and 75mm pack howitzers shipped to their front door.

Demonicspire
07-07-2012, 7:08 AM
In a manner of speaking SCOTUS already ruled on the issue of full auto weapons in private hands by seperating the militia argument from the basic right to arms.

I do not believe that we will ever see them strike down the NFA. More to the point for folks in CA, they will definitely not IMO, ever force a state to allow them over the states objection.

I agree with Maestro Pistolero, the courts are simply not going to do it. Nor do I believe that even in the best of political environments that the NFA will be overturned legislatively.

Therefore, the logical and most likely to suceed way is to work toward reopening the registry and allowing those who want to do so to build their own where state laws allow it.



Again, it's a state issue. With a Form 4 and a C&R, in AZ and many other states for example, one can have 37mm Anti-Tank guns and 75mm pack howitzers shipped to their front door.
I do agree, whatever the constitutional reality of it is, its unlikely to be ever picked up by the court.

edwardm
08-09-2012, 5:12 PM
Seemed worth reviving. Henry lost on appeal. Pretty sure this one is dead now. Courts reasoning was highly flawed in some ways, but not surprisingly so. This is a non-starter for SCOTUS. Move along and wait for The Steamroller. :)

adampolo13
08-09-2012, 5:14 PM
Ya it would be nice if we could get fullauto back now that major organized crime is a thing of the past.

Organized crime is NOT a thing of the past. Organized crime has just changed the way they operate.

Crom
09-25-2012, 12:32 PM
Loser created bad case law.

It looks like he was sentenced to two years in prison.

From the opinion (http://scholar.google.com/scholar_case?case=724515986323419935):

He contends that he has a Second Amendment right to possess a homemade machine gun in his home. We reject this argument because machine guns are "dangerous and unusual weapons" that are unprotected by the Second Amendment.

stix213
09-25-2012, 12:41 PM
Loser created bad case law.

It looks like he was sentenced to two years in prison.

From the opinion (http://scholar.google.com/scholar_case?case=724515986323419935):


A machine gun is "unusual" because private possession of all new machine guns, as well as all existing machine guns that were not lawfully possessed before the enactment of 922(o), has been unlawful since 1986. Outside of a few government-related uses, machine guns largely exist on the black market.


Interesting circular argument. So the ban law against machine guns is legal because they are "unusual." They are "unusual" because the law in question banned them, so that makes the ban legal. :rolleyes:

Crom
09-25-2012, 12:44 PM
^ yeah I agree. And I've seen it discussed here before (the cir. logic). I'm not sure what strategies exist for taking on MG laws, but I know it's a long ways off and there is plenty of low hanging fruit to go after right now...

sandman21
09-25-2012, 1:03 PM
Looks like KC was right again. Simply ban the object before it receives 2A protection and that object can never receive protection.

Miller is the best avenue for an attack but not in this fashion. IMO

Flopper
09-25-2012, 2:50 PM
Looks like KC was right again. Simply ban the object before it receives 2A protection and that object can never receive protection.

Which is of course ludicrous, since RKBA (and all other rights) transcend space and time.

Dantedamean
09-25-2012, 3:07 PM
Interesting circular argument. So the ban law against machine guns is legal because they are "unusual." They are "unusual" because the law in question banned them, so that makes the ban legal. :rolleyes:

This concept right here is the exact reason why I absolutely HATE the common use issue.

sixtus
09-25-2012, 3:21 PM
Ya it would be nice if we could get fullauto back now that major organized crime is a thing of the past.

Major Organized Crime is most definitely NOT a thing of the past. They have just gotten a hell of a lot quieter. Sacramento is still a major hub of the russian organized crime in CA. San Francisco is a major area for Sicilian Crime Familes, the Triad and Yakuza. They're still around, but a lot smarter since the major crackdown on the Sicilian Mafia in the eighties on their home turf, in Sicily.

Don't kid yourself man.

Nick Justice
09-25-2012, 3:26 PM
Interesting circular argument. So the ban law against machine guns is legal because they are "unusual." They are "unusual" because the law in question banned them, so that makes the ban legal. :rolleyes:

Yes. It's an argument that needs to be brought up at the right time, in the right case.

Nick Justice
09-25-2012, 3:32 PM
Best estimated compliance rate of the NFA: 10%. Meaning that there are probably 2.4 million NFA firearms/devices out there, that are not in the book.

CA "Assault Weapons" registry best estimated compliance rate: 5-7%. Meaning that there are probably 3.3 million in CA not on the registry.

OleCuss
09-25-2012, 4:18 PM
I know I've heard of full autos which I guarantee are not registered stashed up in the Sierras somewhere. Reportedly the quantity was enough to arm a sizable Army unit but they didn't give me a good estimate.

And no, I don't know where they are or who controls them. I don't even remember the name of the person who told me. (And no, I'm not just making a disclaimer, I really couldn't tell you who with my very best of effort to recall - it's been a long time and I had no interest in pursuing the matter.)

But an odd thought does occur. Isn't the controlling term "common usage"?

So what percentage of the population has gone to a range and tried out a full-auto weapon? Wouldn't that number be in the millions? And wouldn't that mean that it is quite common for someone to have used one (even if they can't own one) and could that constitute "common usage"?

Capybara
09-25-2012, 4:36 PM
Hell, I'd be happy if we could have a Slidefire here legally.

formerTexan
09-25-2012, 11:27 PM
Well, this is CA9, so another circuit, a 2A friendlier one, could decide the other way and we have circuit split :)

morfeeis
09-25-2012, 11:54 PM
Ya it would be nice if we could get fullauto back now that major organized crime is the government.

there that's better.

Powerkraut
09-26-2012, 12:16 AM
There are a few states that have already dissolved NFA restrictions for everything except machine guns as long as they're manufactured in the state and owned by residents, just waiting for someone to take the next step and completely dissolve NFA restrictions. If that were to happen then the BATFE would have really screwed themselves be declaring only the auto-sear (for closed bolt weapons) to be the "machine gun" since this would then be the only part that had to be manufactured in state.

The NFA is obviously unconstitutional and a misuse of the commerce clause, it is also the basis for much of our gun control since it is wat establish the BATFE. I pray for the day that we can strike at the heart of the beast. We can never compromise because the opposition always wants "just a little more".

kcbrown
09-26-2012, 12:21 AM
Well, this is CA9, so another circuit, a 2A friendlier one, could decide the other way and we have circuit split :)

And then SCOTUS will pull the rug out from under us and rule against us on it.

It's going to be hard enough to get them to rule that carry in public is a Constitutionally-protected right. Indeed, it was hard enough to get the 2nd Amendment recognized in the home, and it obviously took some compromises to just get that far (the whole "common use" thing being but one), and even more compromises will be made in order to get carry in public recognized as a right.

Given that, I don't think there's a hope in hell of getting FA firearms recognized as being protected by the Constitution. We'll be lucky if we get carry of rifles in public (I expect that the availability of handguns for that will be considered to "satisfy the right", thus making bans of carry of long arms in public "Constitutional" TPM restrictions).

nicki
09-26-2012, 1:55 PM
Like many of you, I would like to have "full autos", however "full autos" IMHO will have to be the "LAST THING" we go after.

The "Common Arms" test right now works against us and I believe Scalia came up with this to get Justice Kennedy on board.

The anti's have actually done us favors in that rather than take "Heller" and expand it's ruling like they have done with other court rulings, they are refusing to act even when appropriate.

An "EBR" case will set the ground work for MG cases because hopefully the SCOTUS will give us a favorable ruling.

Once we get a favorable ruling on "EBRs", it is possible that we could get the "Hughes amendment" revised so that the registry is opened back up.

With "bump-fire" and "bump-fire type stocks" hitting the market in the other states, public opinion on full autos type arms will shift as people become more used to seeing them.

EBRs are dominating new rifle sales, so to say that EBRs are not "common arms" won't fly.

Upholding the "MG" ban because they are not "common" would mean that the SCOTUS is going against their own precendents on other rights.

For example, computers weren't around in 1791, neither were phones. Does this mean the 4th amendment's protection on privacy doesn't apply to electronic documents?

Remember, we don't have tiers of constitutional rights, they all are equal.

Nicki