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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 10-16-2018, 4:48 PM
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Default US v Cox/Kettler:10th Circuit Suppressors and SBRs not protected by Second Amendent

Well let's hope Justice Kavanaugh is ready to hit the ground running because this is a disappointing opinion.


https://www.ca10.uscourts.gov/opinions/17/17-3034.pdf
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  #2  
Old 10-16-2018, 5:27 PM
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Violated NFA. All courts would do the same I would suppose.
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Old 10-16-2018, 5:48 PM
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A silencer is a firearm accessory; it’s not a weapon in itself (nor is it “armour of defence”). Accordingly, it can’t be a “bearable arm” protected by the Second Amendment.
Quite the conclusion. Seems a logical extension to say that the 10th circuit wouldn't find a magazine, collapsible stock, pistol grip, etc. to be protected by the Second either.
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Old 10-16-2018, 5:51 PM
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TL;DR:

10th:
  • These gentleman violated the NFA by possessing and transferring 'firearms' thus they are guilty of violating NFA.
  • We won't acknowledge SAPA as a possible defense to this (nor weighing in on if the Gov can regulate intrastate commerce - the whole point of SAPA ).
  • Although the gov't defines silencers as 'firearms,' they are not protected by the 2A via Heller because they are not 'bearable arms.'

Seems like the 10th ducked the meat of this case, reaffirming the DC's ducking of the case.

DC: You're guilty of A and B & C (the meat) cannot be used as a defense because we won't explore those.

10th: We reaffirm A. Wether B or C are legitimate defenses to A is not something we will consider.

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Old 10-16-2018, 6:12 PM
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Actually I expect Suppressor to be protected by the ADA and The New Health Standards Act within our lifetimes.
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  #6  
Old 10-16-2018, 6:23 PM
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Suppressors current laws are outdated IMO.
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Old 10-16-2018, 7:24 PM
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Suppressors have traditionally been regulated. They fail the common use test when compared to how many people own guns (statistically). Heller and McDonald do not make room the suppressors those opinions use history, tradition, and common use to decide what's protected under the 2A. They also specifically rejecting an interesting balance test. We would need another pro-2a SCOTUS decision.

If we got a solid ruling on AWB in our favor we might be able to argue that they are substantially similar enough to "assault weapons" that they cannot be outlawed at the state level.

I also think we will eventually remove suppressors from the NFA via federal legislation.

Last edited by wireless; 10-16-2018 at 9:01 PM..
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Old 10-16-2018, 7:45 PM
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Originally Posted by pdsmith505 View Post
Quite the conclusion. Seems a logical extension to say that the 10th circuit wouldn't find a magazine, collapsible stock, pistol grip, etc. to be protected by the Second either.
I do find that conclusion to be a slippery slope. .gov says no magazines over three rounds, now it's law. Stock must be in a 180 degree plain from the receiver, now it's law. Sighting devices above 2X are a felony, now it's law. It is very ambiguous both ways however and I'm not very smart with this stuff. I very much would like to see suppressors dropped from the NFA through an act of congress, then again I would like to see the NFA dropped all together but I also hope I win the lottery and I have a better chance at that.
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  #9  
Old 10-16-2018, 8:08 PM
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Quote:
Originally Posted by 1911man View Post
Suppressors current laws are outdated IMO.


Half of the current gun laws are period.


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  #10  
Old 10-16-2018, 8:29 PM
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Originally Posted by pdsmith505 View Post
Quite the conclusion. Seems a logical extension to say that the 10th circuit wouldn't find a magazine, collapsible stock, pistol grip, etc. to be protected by the Second either.
And so far... no court has shot down mag round limits, or banning bump stocks or CA AW bans based upon grips etc.
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Old 10-16-2018, 9:41 PM
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Originally Posted by wireless View Post
Suppressors have traditionally been regulated. They fail the common use test when compared to how many people own guns (statistically). Heller and McDonald do not make room the suppressors those opinions use history, tradition, and common use to decide what's protected under the 2A. They also specifically rejecting an interesting balance test. We would need another pro-2a SCOTUS decision.

If we got a solid ruling on AWB in our favor we might be able to argue that they are substantially similar enough to "assault weapons" that they cannot be outlawed at the state level.

I also think we will eventually remove suppressors from the NFA via federal legislation.
This is why I've always hated the common use test. It's okay to ban it because it's been banned for so long no one has it. All common use does is reinforce longstanding laws.
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Old 10-17-2018, 8:17 AM
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Originally Posted by Dantedamean View Post
This is why I've always hated the common use test. It's okay to ban it because it's been banned for so long no one has it. All common use does is reinforce longstanding laws.
No, I think wireless misrepresents the common use test, exactly because of the argument you make. Common use must mean "in common use" or "would be in common use" otherwise, as you mentioned, a ban is self-supporting.

Also, applying some arbitrary statistics will never be the test of what's "common". If a million Americans have X, is X "common"? That's only 1/3 of 1% of our population, but it's a million, which is a whole lot of X. Originalists are not going to get into this nonsense of trying to guess which statistic is OK and which is not.
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Old 10-17-2018, 8:34 AM
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No, I think wireless misrepresents the common use test, exactly because of the argument you make. Common use must mean "in common use" or "would be in common use" otherwise, as you mentioned, a ban is self-supporting.

Also, applying some arbitrary statistics will never be the test of what's "common". If a million Americans have X, is X "common"? That's only 1/3 of 1% of our population, but it's a million, which is a whole lot of X. Originalists are not going to get into this nonsense of trying to guess which statistic is OK and which is not.
So what is the standard for "common use"?

If ray guns came out tomorrow, would they be protected since they would not yet be common?

Are muskets protected? Certainly they are not common nowadays, not as common as modern weaponry anyway.

I fear we are frozen in time to 2008, and I really hope I'm wrong.
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  #14  
Old 10-17-2018, 9:04 AM
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They all duck. The pile of un-resolved gun cases could keep the SCOTUS busy for years but they seem to have other fish to fry.
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Old 10-17-2018, 11:02 AM
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Wow...

I used to look at "in common use" as our friend. I am now starting to see it as not such a good thing.

and the whole " silencers is a firearm accessory, therefor not protected by the 2A".....so firearm accessories are not protected.....

This is a major blow to the 2A community. And I dont have faith our new SCOTUS judges will believe any different. ****.
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  #16  
Old 10-17-2018, 11:17 AM
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I'm a little surprised no one has mentioned their arguments against the NFA. Specifically, that its primary function is de facto as a gun control scheme and NOT for generating tax revenue (which is the reason the NFA was found constitutional).
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Old 10-17-2018, 11:58 AM
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I'm a little surprised no one has mentioned their arguments against the NFA. Specifically, that its primary function is de facto as a gun control scheme and NOT for generating tax revenue (which is the reason the NFA was found constitutional).
It was mentioned and the 10th didn't buy it, even going so far as to reference obamacare and how even though the "tax" is meant to influence behaviors, it's still a tax.

The plantiffs then tried to say that you can't tax my rights like that. 10th said items in questions aren't protected by 2A.
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Old 10-17-2018, 12:35 PM
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I meant mentioned on this forum. I read the opinion.

Seems like there is a decent case against NFA here.

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It was mentioned and the 10th didn't buy it, even going so far as to reference obamacare and how even though the "tax" is meant to influence behaviors, it's still a tax.

The plantiffs then tried to say that you can't tax my rights like that. 10th said items in questions aren't protected by 2A.
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  #19  
Old 10-17-2018, 2:04 PM
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Reading over this case, I feel that theCox/Kettler make reasonable arguments, the fact the court tried to refuse to acknowledge SAPA is concerning, it brings up an issue of states rights vs federal overreach. I am curious to see where this goes.
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Old 10-17-2018, 7:37 PM
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Reading over this case, I feel that theCox/Kettler make reasonable arguments, the fact the court tried to refuse to acknowledge SAPA is concerning, it brings up an issue of states rights vs federal overreach. I am curious to see where this goes.
It's going nowhere. Federal law trumping state law is a well established precedent.

Federal courts have already shot down state firearms freedom laws in MT and I believe in TN.
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Old 10-18-2018, 7:50 PM
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Suppressors current laws are outdated IMO.
Why? It is a tax and taxes will never be outdated.

Now, given that one cannot construct new machine guns, even if they pay the tax, it would appear that the prohibition on producing new machine guns is no longer a tax measure and therefore not valid as a tax measure. And, it can hardly be disputed that the founding fathers sought to preserve the right of Americans to keep those arms that would be useful should they need to assemble as part of the militia. What possible bearable weapon would be more useful than an M4, with select fire? Thus, we should all demand our 2A right to build a personal M4.
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  #22  
Old 10-19-2018, 11:24 PM
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Originally Posted by wireless View Post
Suppressors have traditionally been regulated. They fail the common use test when compared to how many people own guns (statistically). Heller and McDonald do not make room the suppressors those opinions use history, tradition, and common use to decide what's protected under the 2A. They also specifically rejecting an interesting balance test. We would need another pro-2a SCOTUS decision.

If we got a solid ruling on AWB in our favor we might be able to argue that they are substantially similar enough to "assault weapons" that they cannot be outlawed at the state level.

I also think we will eventually remove suppressors from the NFA via federal legislation.
Suppressors fail the common use test because they are regulated. Imagine if suppressors were not regulated and could be purchased like magazines or other accessories.

That is the major flaw of the common use test. The common use test protects long standing infringements as much as it does common firearms.
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Old 10-21-2018, 9:03 AM
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No, I think wireless misrepresents the common use test, exactly because of the argument you make. Common use must mean "in common use" or "would be in common use" otherwise, as you mentioned, a ban is self-supporting.

Also, applying some arbitrary statistics will never be the test of what's "common". If a million Americans have X, is X "common"? That's only 1/3 of 1% of our population, but it's a million, which is a whole lot of X. Originalists are not going to get into this nonsense of trying to guess which statistic is OK and which is not.
Well, that may get a lot more muddied soon. If you watched the kavanaugh hearing, Feinstein is already muddying the water now that Scalia can't clarify anything. She was making the argument that common use means it's used frequently, not just possessed.

I foresee SCOTUS having to define what common use is in the coming 20 years. We just better hope they land on the right side of things.

Last edited by Dantedamean; 10-21-2018 at 10:41 AM..
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Old 10-21-2018, 1:08 PM
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Has a cert petition been filed? This would be amazing to be heard.
They could cover an assault weapon ban with this too, no? Simply by merit of declaring "features" non bannable (like short barrels)
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Old 10-25-2018, 6:59 PM
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Originally Posted by Bhobbs View Post
Suppressors fail the common use test because they are regulated. Imagine if suppressors were not regulated and could be purchased like magazines or other accessories.

That is the major flaw of the common use test. The common use test protects long standing infringements as much as it does common firearms.
The common use test is used in conjunction with history and tradition. It's not a separate test, and I think sometimes people miss that part of Heller. Even if suppressors were ubiquitous they would fail the history and tradition test. Suppressors have traditionally been highly regulated and controlled under the NFA. This is in contrast to semi automatic rifles which did not start being regulated until the late 80's early 90s. I understand and agree with the point you are making, especially when it comes to something like machine guns and SBRs (which are substantially similar to commonly owned firearms), but once again common use is not an isolated test done without history and tradition. Unfortunately the test itself does not make much sense, because as you pointed out if the laws were not there in the first place, they would probably be commonly owned, pass history/tradition, and therefore be protected by the 2nd amendment. You are right that it's a poor way to look at what is protected under the 2nd amendment, but unfortunately that's what we are left with.

I'd also like to point out that suppressors are firearm accessories. They do not contribute to magazine capacity, functionality, or efficiency of a firearm. Trying to make a 2nd amendment claim that suppressors are an essential aspect to self defense is extremely poor (through the purview of Heller/Mcdonald). They do an excellent job at preventing against hearing damage though, but that is not the same thing.

Last edited by wireless; 10-25-2018 at 7:12 PM..
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Old 10-26-2018, 7:01 AM
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if the suppressor is built into the gun is it still an accessory? Doesn't it contribute to the operation and safety of the firearm?
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Old 10-26-2018, 8:02 AM
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I'd also like to point out that suppressors are firearm accessories. They do not contribute to magazine capacity, functionality, or efficiency of a firearm. Trying to make a 2nd amendment claim that suppressors are an essential aspect to self defense is extremely poor (through the purview of Heller/Mcdonald). They do an excellent job at preventing against hearing damage though, but that is not the same thing.
I would disagree. Silencers do contribute to the functionality and efficiency of a firearm.

With a well build can, group sizes generally decrease. Also, your target tends to not be as alarmed by the sound of being shot at when the muzzle report is muffled. Personal experience is from hunting deer in VA with cans, but the practical effects are the same regardless. Last thing you need in defense of home is to be deafened by muzzle blast.

If an accessory such as a silencer does not merit 2A protection, then it's not a long leap to say that collapsible stocks, pistol grips, telescopic sights, or even magazines don't fall under 2A protection. None of those "accessories" are essential to the function of a firearm.
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Old 10-26-2018, 8:15 AM
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The common use test is used in conjunction with history and tradition. It's not a separate test, and I think sometimes people miss that part of Heller. Even if suppressors were ubiquitous they would fail the history and tradition test. Suppressors have traditionally been highly regulated and controlled under the NFA...
And if handguns were included in the NFA as originally planned, then I guess the SCOTUS wouldn't have ruled that they are protected in Heller, since they'd be in the same category as machine guns and suppressors. This is why this is such a mess, and raises the question of how long does a "long-standing" regulation have to be on the books before it's considered part of "tradition" and/or "history"? Suppressors and machine guns weren't heavily regulated until relatively recently in our over 200-year history.

Then if you take the Hughes Amendment circa 1986, would that qualify as long-standing? It shouldn't, given that D.C.'s handgun ban was struck down- a ban that had been in place since the 1970's. So, at a bare minimum, the Hughes Amendment should not be given the same weight as the NFA or even D.C.'s ban and get struck down. Let people continue to register and use machine guns, albeit under a heavy and repressive government taxing scheme.

Not really picking apart your statement, just spit-balling.
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Old 10-26-2018, 1:39 PM
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I would disagree. Silencers do contribute to the functionality and efficiency of a firearm.

With a well build can, group sizes generally decrease. Also, your target tends to not be as alarmed by the sound of being shot at when the muzzle report is muffled. Personal experience is from hunting deer in VA with cans, but the practical effects are the same regardless. Last thing you need in defense of home is to be deafened by muzzle blast.

If an accessory such as a silencer does not merit 2A protection, then it's not a long leap to say that collapsible stocks, pistol grips, telescopic sights, or even magazines don't fall under 2A protection. None of those "accessories" are essential to the function of a firearm.

Obviously suppressors do contribute to the function and sound quality of a firearm. I own nearly a half dozen myself and keep them on my two primary home defense weapons. My point is under Heller, the absence of a suppressor does not contribute to someones ability to defend themselves. It does not make the firearm more lethal nor does not effect magazine size, which would and should be an infringement on the 2nd amendment under Heller. People rarely carry suppressors on their sidearms and compared to the amount of gun owners there are, only a very small percentage 1%-3% own suppressors in the first place. If someone broke into my house or I had to defend myself against someone trying to steal my car, the absences of a suppressor does not reasonably infringe on my ability to protect my life and property.

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And if handguns were included in the NFA as originally planned, then I guess the SCOTUS wouldn't have ruled that they are protected in Heller, since they'd be in the same category as machine guns and suppressors. This is why this is such a mess, and raises the question of how long does a "long-standing" regulation have to be on the books before it's considered part of "tradition" and/or "history"? Suppressors and machine guns weren't heavily regulated until relatively recently in our over 200-year history.

Then if you take the Hughes Amendment circa 1986, would that qualify as long-standing? It shouldn't, given that D.C.'s handgun ban was struck down- a ban that had been in place since the 1970's. So, at a bare minimum, the Hughes Amendment should not be given the same weight as the NFA or even D.C.'s ban and get struck down. Let people continue to register and use machine guns, albeit under a heavy and repressive government taxing scheme.

Not really picking apart your statement, just spit-balling.
The Hughes amendment is unique because it straight up bans the transfer of new machine guns. Under the NFA new suppressors, SBRs, and SBS's are still legal to manufacture and purchase without an FFL/SOT. NFA items have traditionally been regulated and made a nuisance to obtain, but the Hughes amendment is unique in that sense. Though that should not matter under Heller, because machine guns fail the tradition and history test. So if they are not protected by the 2nd amendment under Heller in the first place, then the Hughes amendment is constitutional. Heller does not categorize 2a items as being protected but subject to NFA like regulations. They are either protected or they are not when it comes to the issue of "Keep". So yes, 1986 is not long standing by any means, but since they fail the first part of the test outlined in Heller, the recent outright ban question is irrelevant. As I said before, the common use test comes after history & tradition.

Long standing is tough because it changes depending on what you're evaluating. When it comes to jurisprudence anything at or around the civil war would be considered long standing- a major point in our history where the constitution was ratified. Firearm technology did not really take off until late 19th, early 20th century. Small arms technology as we know it did not really kick in until the early 20th century, and mass availability for The People wasn't really a thing until after WWI (in terms of machine guns or semi automatic rifles). Maxim didn't even get a patent on the suppressor until 1909 and in 1934 they became regulated under the draconian NFA. Compared to jurisprudence modern 2a technology is not long standing. But the history and tradition test outlined in Heller is judged relative when firearm technology was created, not the history of our country. If that weren't the case, semi-auto handguns would fall outside of Heller because they haven't been around long relative to US case law. Only muskets would be protected.

The issue is complicated, but when looking at Heller it's clear suppressors fall outside of the 2A. It's screwed up because they are arguably the least dangerous item regulated under the NFA by a long shot. I do believe there is some compelling argument when it comes to SBRs. What's the difference between a 14.5in barrel rifle and a 16in barrel rifle? How is an AR-pistol (protected by the 2A even though the lower courts have defied SCOTUS at unprecedented levels), any different than an SBR? In the world of pistol braces and shock fins SBR laws aren't really relevant even though there is a history and tradition of regulating them. However with suppressors there isn't this type of alternate technology. Any item that reduces the DB of a gunshot is considered a suppressor by the BATFE.

Ironically if our 2A laws were subjected to an honest interesting balance test, SBR laws would fail to meet intermediate scrutiny. But alas, here we are as a society arguing about levels of scrutiny when Heller specifically rejected using an interesting balance test in the first place.

My point is we should look at Heller for what it truly says. Suppressors and machine guns fail the history and tradition test outlined in Heller, but semi automatic rifles and 20rd-30rd magazines do not. I think this is what Scalia and the majority envisioned when they published their landmark decision. I believe the second amendment goes beyond the scope outlined in Heller. Constitutional carry is truly the intent of the 2nd amendment, but that doesn't mean I can twist and mesh Heller to fit something it doesn't say. Both sides are guilty of this, the anti-2a advocates are far more culpable though.

Last edited by wireless; 10-26-2018 at 1:46 PM..
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Old 10-30-2018, 4:28 AM
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Originally Posted by wireless View Post
Obviously suppressors do contribute to the function and sound quality of a firearm. I own nearly a half dozen myself and keep them on my two primary home defense weapons. My point is under Heller, the absence of a suppressor does not contribute to someones ability to defend themselves. It does not make the firearm more lethal nor does not effect magazine size, which would and should be an infringement on the 2nd amendment under Heller. People rarely carry suppressors on their sidearms and compared to the amount of gun owners there are, only a very small percentage 1%-3% own suppressors in the first place. If someone broke into my house or I had to defend myself against someone trying to steal my car, the absences of a suppressor does not reasonably infringe on my ability to protect my life and property.



The Hughes amendment is unique because it straight up bans the transfer of new machine guns. Under the NFA new suppressors, SBRs, and SBS's are still legal to manufacture and purchase without an FFL/SOT. NFA items have traditionally been regulated and made a nuisance to obtain, but the Hughes amendment is unique in that sense. Though that should not matter under Heller, because machine guns fail the tradition and history test. So if they are not protected by the 2nd amendment under Heller in the first place, then the Hughes amendment is constitutional. Heller does not categorize 2a items as being protected but subject to NFA like regulations. They are either protected or they are not when it comes to the issue of "Keep". So yes, 1986 is not long standing by any means, but since they fail the first part of the test outlined in Heller, the recent outright ban question is irrelevant. As I said before, the common use test comes after history & tradition.

Long standing is tough because it changes depending on what you're evaluating. When it comes to jurisprudence anything at or around the civil war would be considered long standing- a major point in our history where the constitution was ratified. Firearm technology did not really take off until late 19th, early 20th century. Small arms technology as we know it did not really kick in until the early 20th century, and mass availability for The People wasn't really a thing until after WWI (in terms of machine guns or semi automatic rifles). Maxim didn't even get a patent on the suppressor until 1909 and in 1934 they became regulated under the draconian NFA. Compared to jurisprudence modern 2a technology is not long standing. But the history and tradition test outlined in Heller is judged relative when firearm technology was created, not the history of our country. If that weren't the case, semi-auto handguns would fall outside of Heller because they haven't been around long relative to US case law. Only muskets would be protected.

The issue is complicated, but when looking at Heller it's clear suppressors fall outside of the 2A. It's screwed up because they are arguably the least dangerous item regulated under the NFA by a long shot. I do believe there is some compelling argument when it comes to SBRs. What's the difference between a 14.5in barrel rifle and a 16in barrel rifle? How is an AR-pistol (protected by the 2A even though the lower courts have defied SCOTUS at unprecedented levels), any different than an SBR? In the world of pistol braces and shock fins SBR laws aren't really relevant even though there is a history and tradition of regulating them. However with suppressors there isn't this type of alternate technology. Any item that reduces the DB of a gunshot is considered a suppressor by the BATFE.

Ironically if our 2A laws were subjected to an honest interesting balance test, SBR laws would fail to meet intermediate scrutiny. But alas, here we are as a society arguing about levels of scrutiny when Heller specifically rejected using an interesting balance test in the first place.

My point is we should look at Heller for what it truly says. Suppressors and machine guns fail the history and tradition test outlined in Heller, but semi automatic rifles and 20rd-30rd magazines do not. I think this is what Scalia and the majority envisioned when they published their landmark decision. I believe the second amendment goes beyond the scope outlined in Heller. Constitutional carry is truly the intent of the 2nd amendment, but that doesn't mean I can twist and mesh Heller to fit something it doesn't say. Both sides are guilty of this, the anti-2a advocates are far more culpable though.
I guess I'm still failing to see how machine guns fail the history and tradition test? The first successful machine guns were developed (mid 19th century) before the first successful semi-autos (late 19th century). If it is older technology, and was presumably just as widely available to the public as semi-autos before the NFA, then to me it seems history and tradition would weigh in favor of protection.

Again, if it weren't for the mere fact that congress passed a law saying "we don't want you to have these, so we're making them super hard for the common man to obtain", then they wouldn't have been "traditionally" regulated. Was it a constitutional regulation to begin with? Was taxing the hell out of a constitutional right constitutional?

I guess another way to look at it would be to ask, considering history and tradition, would a pre-1934 SCOTUS have ruled that machine guns were protected?

Last edited by selfshrevident; 10-30-2018 at 4:31 AM..
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Old 10-30-2018, 12:39 PM
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Originally Posted by wireless View Post
My point is we should look at Heller for what it truly says. [SMS] and [email] fail the history and tradition test outlined in Heller, but [letters] and [newspapers] do not. I think this is what Scalia and the majority envisioned when they published their landmark decision. I believe the [first] amendment goes beyond the scope outlined in Heller. [Free speech] is truly the intent of the [1st] amendment, but that doesn't mean I can twist and mesh Heller to fit something it doesn't say. Both sides are guilty of this, the anti-[1a] advocates are far more culpable though.
We have such convoluted and stretched justifications on the restriction of the 2A but interpret the 1A as intended. Massive double standard. It's infuriating
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Old 10-30-2018, 1:24 PM
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I guess I'm still failing to see how machine guns fail the history and tradition test? The first successful machine guns were developed (mid 19th century) before the first successful semi-autos (late 19th century). If it is older technology, and was presumably just as widely available to the public as semi-autos before the NFA, then to me it seems history and tradition would weigh in favor of protection.

Again, if it weren't for the mere fact that congress passed a law saying "we don't want you to have these, so we're making them super hard for the common man to obtain", then they wouldn't have been "traditionally" regulated. Was it a constitutional regulation to begin with? Was taxing the hell out of a constitutional right constitutional?

I guess another way to look at it would be to ask, considering history and tradition, would a pre-1934 SCOTUS have ruled that machine guns were protected?
The first real machine gun was made by Maxim in 1884. That doesn't equate to mass availability. Machine guns fail the history and tradition test because they weren't really available or even owned until after WWI. The NFA was instituted in 1934, which leaves less than two decades without regulation. Because these items have traditionally been regulated, not commonly owned, they fail the history and tradition test. Handguns are different because they did were not commonly regulated nor were semi automatic rifles. They meet the history and tradition standard, thus the commonly owned test applies. Although I would not say common ownership is itself a separate test in Heller, rather one thing to consider when evaluating if a gun law is constitutional or not.

Congress might have not regulated them and then they would be commonly owned, however that is not the case, nor does Heller really take into consideration such things. There is some guidance when they go into the history of weapons that were carried, and that weapons which were uncommon or used to intimidate would not meet the standard for 2nd amendment protection.

Your what ifs are all valid. I am merely explaining how these tests work through the standard outlined in Heller and McDonald, even if it is inherently flawed because it does not consider some of these questions. If you look at suppressors through the Heller framework, it's a no brainer they are not protected by the 2nd amendment. They are not commonly owned. They have traditionally been regulated. They aren't a necessary component to self defense or protection of The State. If the citizen militia was called to duty they would not be ubiquitous and rather rare for that matter. Some of the calculations I did estimated that at best you'd get ~1 suppressor for every 100 gun owners, but realistically the average suppressor owner does not own 1.3 suppressors, so at two-three suppressors per gun owner, we'd be looking at one person owning a suppressor for every 200-300 people. If we compared that to the rest of the entire non-gun-owning population, it'd be 1 owner per 400-600 people.

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We have such convoluted and stretched justifications on the restriction of the 2A but interpret the 1A as intended. Massive double standard. It's infuriating
I know. It's ridiculous that this is test we must abide by. I couldn't even imagine how bad it would be if the dissent in Heller and McDonald got their way.
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Old 10-30-2018, 10:25 PM
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I know. It's ridiculous that this is test we must abide by. I couldn't even imagine how bad it would be if the dissent in Heller and McDonald got their way.
Entire states would have enacted DC-style bans within 5 years of the decision... guess which state would have been in the first year?
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