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NFA Challenges

I’ve seen a few suggestions around both Volokh and some other places that the first order of business is to challenge the NFA LEO sign off as arbitrary and capricious.  Something to think about: first you really need to get the courts to recognize that an NFA item is an “arm” protected by the Second Amendment.  If you don’t have a right to own something, than the government can get away with a lot more shennanigans than it can if you do.  There might be grounds you could challenge LEO sign off on, but I’m not sure the Second Amendment is one of them, unless you can make a case that the arm in question is within its scope.

I agree with folks that the “common use” language presents a logical problem, but I don’t think it’s an insurmountable one.  There are ways out of the trap, which I’ve talked about before, where if a law is interfering with determining whether an arm is “common” or “unusual and dangerous” one has to look at police use.  I would also add that looking at commonality in countries which don’t have such restrictions on the item in question also needs to be considered.

22 Responses to “NFA Challenges”

  1. SayUncle says:

    Went 5-4 on a 22 revolver. MGs and NFA not gonna happen anytime soon. Focus on what’s coming up: Incorporation; staving off AWB pt 2 or other gun control measures; and then state level AWBs and such. Easier sell than MGs.

    Not sure what, after that.

  2. I would also add that looking at commonality in countries which don’t have such restrictions on the item in question also needs to be considered.

    Beggin’ yer pardon, there, Sebastian, but isn’t that the kind of thing we used to give Sandra Day O’Connor a raft of crap (deservedly so) about? ;-)

    If one plays the “what other countries are doing” card, the grabbers can deal themselves a hell of a lot better hand than free men and women can.

  3. Sebastian says:

    There’s a slight difference. You’re not really looking to the other country for legal guidance, as Sandy-O advocated. It’s not so much “Few other countries have the death penalty, so pretty clearly it’s cruel and unusual,” without respect to our our legal traditions here, so much as if the standard is common use, and you have a law present in the United States that prevents an assessment commonality from being accurately assessed, it’s proper to look at gun owners in countries without such restriction, and determine whether they are items in common use.

    But it’s a good point. Perhaps this is too dangerous. But my thought in the matter was more than suppressors are common in other countries. We’re actually one of the few that restricts them. Bitter CZ-452, for instance, has a sleeve sweated over the barrel threads. In the European version, the threads are used for attaching a suppressor.

  4. Tom says:

    The EASIEST, lowest hanging fruit is the AOW designation for a pistol with a second grip. Stocks on pistols.

    I’d think SBR would be next as they’re just rifles with shorter barrels. Rifles are in common use.

    Silencers as medical devices under the abortion or smoking arguments. “It’s my body” or the “it damages the hearing of others” mantras.

    DO NOT open the “look to foreign countries” pandora’s box they’ve already started screwing with.

    And while we’re at it, go after imported parts count crap and sporting garbage.

  5. Sebastian says:

    The EASIEST, lowest hanging fruit is the AOW designation for a pistol with a second grip. Stocks on pistols.

    I would agree with that.

  6. Tom says:

    Oh, and to back up the argument on pistol with 2nd grip, and to counter the “designed to fire from one hand” crap…

    http://www.ag.state.oh.us/le/prevention/pubs/CCW_curriculum.pdf

    They discuss using TWO hands. That’s a government advocating two hands for a pistol.

  7. illspirit says:

    An AOW/SBR challenge should be able to pass even a rational basis test. In theory.

    Just show up at court with a glossy print of an AR-15 rifle (with no stock on the tube) above a pistol, and cut-out window sticker-type thingies depicting a fore grip and an M4 stock. Next, move the stickers between the pistol and rifle version, explaining how that would “create” an SBR and AOW out of otherwise unremarkable things.

    Then ask how the hell regulating an extra +/- 3″ of plastic here or there serves any compelling government interest.

    The SBR would be no more “concealable” than the pistol version. And the AOW wouldn’t be any less “one handed” than it was when you could grasp the mag well or hand guard.

  8. chris says:

    my suggestion for the CLEO signoff is for it being an “arbitrary and capricious licensing scheme”…

    it is already a licensing scheme… so there is no question as to if it is a right or not… it is clearly a violation of equal protection to allow one group (county A) to have something but not another (county B) simply on the whim of their individual sheriff.

    since the NFA is a federal law, its protections and exclusions should apply evenly all over the nation. that is the key to making the argument, not on whether or not a MG should be legal…

    remember that CLEO signoffs are required for other NFA items, not just MG’s…

  9. chris says:

    i should add that i am in a case where my CLEO wont sign but the co-worker next to me lives in the next county over where the CLEO will sign…

  10. Tom says:

    but doesn’t ATFU have a long list of folks to try to get a signature from? Also there’s the trust or corporation angle that could present problems for that as you have those open as options.

    You have the militia laws (called up into service…especially given the highly polarized nature of the country and the thinly spread forces of military and police) when those arms used by the “only ones” are taken into consideration as stated before.

  11. chris says:

    very rarely will anyone sign off if the CLEO refuses… also, a trust is easily defeated by the government… a simple pen stroke can invalidate that option at the state level.

    keep in mind… i have never said that this should be the first step in a pro-gun set of challenges…

    i have repeatedly said and i believe that this avenue will be easy to win if the person challenging has the right case and the right lawyer.

  12. Tom says:

    I’d like to ask what case’s should I be watching?

    Where are the pragmatists cases within the system, since no doubt they have found the perfect case and it is currently at some stage of appeal to a higher court due to the threats of Obama appointing judges.

    If not, time’s a wastin’.

  13. chris says:

    prag·ma·tism

    A practical, matter-of-fact way of approaching or assessing situations or of solving problems.

    as opposed to

    rad·i·cal

    One who advocates fundamental or revolutionary changes in current practices, conditions, or institutions

    Of course those of us that advocate using the system are called “prags” as if that is some sort of insult…

    why cant you and your ilk go argue with the brady bunch… they are your true opponents, not people that enjoy shooting as much as you supposedly do.

  14. Sebastian says:

    Tom:

    Now is not the time for challenging the NFA regulations on machine guns. We need to build more case law before that’s on the table. This will take a long time.

  15. oldblinddog says:

    No, not police use. Military use. The Second protects use of military arms.

  16. Tom says:

    Yeah, and the police by Mil surp.

    http://www.policemag.com/News/2008/03/06/S-C-Sheriffs-Department-Armored-Vehicle-with-Belt-Fed-Machine-Gun.aspx

    “Now is not the time for challenging the NFA regulations on machine guns. We need to build more case law before that’s on the table. This will take a long time.”

    Take it down piece by piece as prags keep saying. Go for the AOW pistol/stocks crap. Go after SBRs. Quit moving the goalpost.

    Chris:

    fun-da-men-tal

    of central importance

  17. chris says:

    if you understand the word fundamental… you should understand that the fundamental threat to gun rights are the groups like the brady campaign, not your fellow gun owners.

    course that would mean that you would have to stop shouting about how your dick is bigger than the rest of the gun owners… but we wouldnt want to do something productive would we?

  18. Tom says:

    And just HOW am I shouting about the size of my dick?

    Sebastian posts about how we need to gets NFA stuff recognized as arms.

    I give him ways.

    He says OH nonono we can’t do it NOW. We have to “build more case law”

    Yeah, go after the EASY ones, pistols with other things slapped on or rifles that are cut off. Both in common use in other configurations, heck I even backed it up with government documents saying two hands on a pistol aid in control.

    Yeah, whole lotta dick size shoutin going on!

    Nomination for dumbest post of the week goes to Chris for paragraph 2 and the week is still young.

  19. Weer'd Beard says:

    How about we just work to take NFA guns AWAY from Police.

    Get rid of their handy exemption, and they might just do all the dirty work for us!

  20. Gun Blobber says:

    I think that anything involving “sporting purposes” language would be an easy target. Mostly I am thinking of restrictions on imports of weapons that are legal if domestically produced. E.g. Walther PPK and other small pistols, semi-auto normal-capacity assault weapons, the 922(r) “less than ten parts game,” etc. Moving on from that, the SBS/SBR/AOW stuff should be pretty easy too.

    The problem is that there is no real way to coordinate all of these lawsuits challenging all of these laws. There is no way to take them one-at-a-time… anybody is free to file whatever lawsuits they want. Fortunately, there are probably only a few people with enough money to take appeals cases all the way to the SC, ad the NRA and other groups with such money can probably coordinate their efforts reasonably well. There’s no way to stop the other people trying to jump ahead in the game, but I really don’t see how much harm they could do, and they might even end up doing some good.

  21. Jake says:

    That “in common use” language is one of the worst parts of the Heller decision. (The “reasonable regulation” bit is the other, and I have a hard time deciding which is worse.)

    “There are ways out of the trap, which I’ve talked about before, where if a law is interfering with determining whether an arm is “common” or “unusual and dangerous” one has to look at police use. I would also add that looking at commonality in countries which don’t have such restrictions on the item in question also needs to be considered.”

    I doubt most courts would accept the “police use” basis. They are more likely to be convinced by the other side that “common use” means “common civilian use” simply because there are already many specific exemptions in the law for the police. Many items and behaviours that are banned or restricted for civilians are allowed for police, and, as I understand it, these exemptions have been held up in court, so we would be fighting precedent.

    Looking to other countries might work, but it’s a treacherous path to start down. With so many countries having such varied laws, it’s too easy for a hostile judge to cherry pick countries that support what he wants. When a judge rules based on which conflicting evidence he believes is more reliable, appeals courts are usually very strongly opposed to overruling the decision.

    Probably the best thing to look at is commonality at the time the law was passed. It’s hard to argue that as irrelevant. Unfortunately, I don’t know if that would help us or hurt us as far as machine guns, and I don’t have the time or resources to do the needed research.

  22. JJR says:

    re: “common civilian use”

    But technically police are civilians, too, insofar as they’re not military. as Sebastian has pointed out before.

    But then I agree with those who think that (ideally) the 2A should protect military grade small arms; anything US Army infantry uses, the unorganized militia, comprised of the body of the people, should be able to use, too.

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