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Greatest Threat to the Second Amendment

It’s not the anti-gun people, it’s guys like this:

The attorney for a Kingsburg[, CA] man charged with allegedly possessing 33 assault rifles, a grenade launcher and a silencer said Thursday that the Second Amendment gives him the right to collect guns.

Apparently some of those assault rifles were actual assault rifles. This is not going to end well folks, if this argument moves forward. I was always pretty pessimistic about saving the right to machine guns in court. I am now getting pessimistic we’ll ever get rid of bans on assault weapons. We really need a few more Supreme Court cases, and some changes on the federal courts, before we’re ready to start litigating on bans on narrow classes of firearms rather than bans on broad categories of firearms.

Had Obama not won, we could have gotten there much faster. But he won, and by historical precedent, he’s likely to win a second term. I think we might have to write off “assault weapons” as protected by the Second Amendment, at least by the courts. Certainly we’ll fight bans politically, and probably win, but that won’t help the half-dozen or so states who restrict narrow categories of firearms. Even Eugene Volokh doesn’t seem too optimistic about slipping that by the federal courts.

There are going to be too many guys like this out there taking cases too soon. If you think about the kind of logic allowing selective banning of classes of weapons requires, it blows a hole in the Second Amendment the size of a barn.

19 Responses to “Greatest Threat to the Second Amendment”

  1. Johnny Gee says:

    Thank God I live in a state where machine guns and silencers are legal!!!!!!!!!!!!!!!!!!!!!!

    • Bryan S. says:

      Except they are federally regulated. And only special people can own anything that is not effectively an overpriced antique at this point.

  2. David says:

    But he won, and by historical precedent.

    What historical precedent was that?

    he’s likely to win a second term
    Polls among independents show the exact opposite of 2008. Elections are won and lost on the independent vote. With registered voters being 33% R, 33% D, and 33% I; it’s really the independent vote you’re chasing.

    • Sebastian says:

      Most Presidents who run for re-election get re-elected. There’s a lot of tea leaf reading you can do about Presidents in bad economies, and I’ll give you that Obama’s chances of not being re-elected look decent, but the fact is that historically Presidents who seek second terms win them.

      • David says:

        Bush Part I
        Carter
        Johnson (after dropping out of the race due to a poor primary performance)

        It’s not a given that an incumbent will be reelected. Since 2010 independent voting preferences have leaned right. This is going to be a tough election for BHO, he now has a record that he has to defend. NC, VA, OH, and PA are going to make the difference. Take a look at the 2009/2010/2011 election results from those states. BHO has got to be worried.

  3. Gene Hoffman says:

    We don’t need to worry about this one much. It’s in California state courts where an appeals panel already reached out after Heller but before McDonald, to hold that these semiautos are dangerous and unusual.

    This fight will be in the Federal Courts and there CGF has some excellent cases of people charged with possession who were actually innocent. Prosecutorial overreach will offset gun owners not following the law here in CA.

    -Gene

  4. MicroBalrog says:

    So see. The biggest threat to the Second Amendment.

    Is not the Obama Administration. Is not MAIG. Is not the anti-gun groups.

    No! It’s people who challenge gun laws in court?

    Like, Sebastian, I get that you disapprove of what this guy did, but that is a bit overboard.

    Okay, that’s hugely overboard.

    • Sebastian says:

      They have the potential to do more damage over the long term, by taking cases forward before the Courts are ready for them. I’m happy to hear Gene mention that damage has already been done, and this will probably die in state court. I’m in a foul mood on AWBs because of the Heller II loss, so I feel like we don’t need more bad cases fucking things up.

      A court loss is worse than anti-gun legislation, in that it’s really hard to overturn. And court losses are going to be caused by people on “our side”

      • MicroBalrog says:

        1. Well, what other defense can this guy pursue? I can hardly expect him to just shut up and go to prison quietly, nobody does that.

        2. There seems to be a sad lack of an *alternative strategy* the moderates can offer on this issue. It’s all “you machinegun people just wait around until we resolve national carry, and BATF reform, and then we’ll get around and help you. Some day.”

  5. Gene Hoffman says:

    And this, filed moments ago, is how we attack the CA AWB on one front at high quality.
    http://www.archive.org/download/gov.uscourts.cand.225676/gov.uscourts.cand.225676.43.0.pdf

    -Gene

    • Sebastian says:

      Reading it now. This seems like a very carefully considered angle. It still makes me nervous, but this whole subject does. I’ll continue reading and will do a post. But I think my opinion will be this is most definitely worth a try. It’s certainly more carefully considered than Heller II.

    • Sebastian says:

      Wasn’t there a vagueness challenge to an Assault Weapons Ban before? I can’t remember if it was in California or not. But I seem to remember a case.

      • Gene Hoffman says:

        There have been vagueness challenges before. One in OH, and one in CA. OH won, CA settled out without any real impact (NRA: Hunt v. DOJ) but neither had the actual factual history of people being arrested and charged for actually innocent conduct.

        -Gene

      • Ian Argent says:

        New Jersey has a de-facto “evil features” AWB to avoid the statutory “substantially similar to ” ban being struck down on “vagueness” grounds. Technically the features list defines what the legislature meant by “substantially similar,” though I am pretty sure many of the weapons on the list don’t hit enough of the features to be banned.

  6. Kansas Scout says:

    Your far too pessimistic on Obama being tossed out next year. He will lose in a landslide. It will be historic. The GOP will have the house and senate and the White House. If they botch it this time, the two party system is dead and our system will fall apart. They simply must succeed or hell is on the way like we have not seen since the Civil War. I am more optimistic but in a guarded way

    • Ian Argent says:

      I’m not all that sanguine about having both sides of the capitol and the white house all under control of one party, no matter the party. In this case, we know both devils and right now I’ll take the one currently out of power.

  7. Apparently some of those assault rifles were actual assault rifles

    The only thing mentioned in the article is that there was “one” machinegun, and given the historical accuracy of the media, I would say that the MP5 is actually a HK94.

    I’ve had it out with at least one local news station about parrotting the “experts” of the police department when there has been no testing of alleged machineguns. The police are as likely to claim a rifle is a machinegun because the selector can go to the auto setting (like my FAL, though it only shoots semi) as to actually test the thing.

    Also, given CGF’s suit (and the facts contained therein), it’s entirely possible that the gentleman merely owns a lot of legal semi-autos.

    The silencer (assuming it “is” a silencer, and not a fake for an HK94) is on him, since I believe that CA doesn’t allow Class III, but again, we have only the word of an uneducated media to go on.

    It’s too bad that if you haven’t had your suit approved by the “right people”, you’re not supposed to file (lest it make the rest of us look bad) and you’re left with no support from mainstream advocates.

  8. Bill Twist says:

    If he actually had real machine guns, and a real silencer, then why no federal charges? The search was at the request of federal agents, after all, but the charges are all state charges.

    Smells fishy, if you ask me.

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