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Accused Machine Gun Manufacturers in Court

There’s an interesting opportunity to listen to a federal case in front of the 9th Circuit today. If you have time and ability, you can tune in to hear Dave Hardy in US v. Rodman just after noon (Eastern).

Here’s a bit of background on the case.

UPDATE: It looks like it can be embedded, so here’s the video where it will be live-streamed later today.

45 Responses to “Accused Machine Gun Manufacturers in Court”

  1. Dano says:

    Not a lot of sympathy for these guys. It looks like they knew exactly what they were doing and knew it wasn’t legal.

    • HSR47 says:

      The question though, is where the victim is for this alleged “crime?”

      If there cannot truly be said to be a victim, then why should the action be illegal?

      Furthermore, there is the additional issue that the Hughes Amendment is fundamentally unconstitutional: Miller upheld the NFA as constitutional under the power to levy taxes; Per US vs RIA, Hughes eliminates that justification, and leaves the restrictions on machineguns without any constitutional basis:

      “Since its passage in 1934, the registration, taxation, and other requirements of the National Firearms Act (“NFA”) have been upheld by the courts under the power of Congress to raise revenue.[5] However, 18 U.S.C. § 922(o), which became effective on May 19, 1986, prohibits possession of machineguns, and thereby repealed or rendered unconstitutional the portions of the National Firearms Act which provided for the raising of revenue from the making, possession, and transfer of machineguns made after such date. As the government conceded at oral argument, the United States refuses to register or accept tax payments for the making or transfer of machineguns made after 1986.[6] Thus, § 922(o), as applied to machineguns made after May 19, 1986, left the registration and other requirements of the National Firearms Act without any constitutional basis.” -United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.Ill. 1991)

      Thus, while what these gentlemen did was CERTAINLY a violation of statute, the constitutionality of that statute is germane to this case.

      • Dano says:

        Wow, the trifecta of responses, which I expected, but all in one post. Why don’t you make and sell FA guns and use your post as your defense. If you truly though you were right, or had a legal leg to stand on, you’d do it and take the fight to the courts – where you’d surely prevail.

        But, there is a reason why you and the rest of the tough talking legal scholars are following the law as written. First, you know you’ll end up in the federal, pound me in the ass, prison for years and you’ll never win your case. Second, the juice isn’t worth the squeeze – it’s cheaper just to find a $15k registered FA toy.

        There are plenty of crimes that you can say are victimless and therefore shouldn’t be a crime. Disorderly conduct, is there really a victim? Drunk driving, if you don’t harm anyone where is the crime? Tax evasion, is there really a victim at all? How about violating the Cuban trade embargo, where are those victims?

        Answers like yours are becoming a cancer in and on every gun forum. You guys are all talk, quotes, and cites – but when it comes time to put up and put your legal theories to the test you all stutter and stammer in why you’re not willing to break a law that you’re passionately claiming to be unconstitutional.

        • Patrick H says:

          Wow, the trifecta of responses, which I expected, but all in one post. Why don’t you make and sell FA guns and use your post as your defense. If you truly though you were right, or had a legal leg to stand on, you’d do it and take the fight to the courts – where you’d surely prevail.

          Because the courts almost always fail to do their jobs, and instead of protecting rights, go out of their way with legal contortions to violate them. Courts are not about right or wrong, but about protecting the government without upsetting the peons.

          And pretty much all the crimes you list should probably not be crimes. Disorderly conduct is a catch all often used for contempt of cop. If we wanted to stop drunk driving, we wouldn’t make it illegal, we’d get help for the drunks. Tax evasion was also common by the Founders, but MAYBE you have a case there. If taxes were reasonable, there also would be less evasion. And yes, the Cuban trade embargo is a joke.

          We do not stutter and stammer- we know the stakes. We know courts are completely unsympathetic to our rights, because GUNS. When in reality, if they did their job, we wouldn’t have to go to court, because this all would have been declared unconstitutional decades ago.

          • The_Jack says:

            A big example of the courts going into contortions “because GUNS”.

            Just compare the heartache Voter ID laws get and how some courts strike them down because racism (Though do note that SCOTUS affirmed Indiana’s Voter ID law).

            But does anyone think NICS or the various private sale bans would be thrown out on similar grounds?

          • dano says:

            You are the worst of the cancerous crap posters here. You’re all talk and not a single drop of actions. You blather on about everything that’s unconstitutional but you’ll never do anything about it. It’s not like you’re going to refuse to go to the back of the bus.

            The reason you never take action is you know the outcome of defiance. You know you’re doing nothing but barroom posturing and proclaiming. So much constitutional conviction you’re afraid to act and back up your claims.

            Build your own NFA item and advertise what you’re doing.
            Open carry in D.C.
            Go to NJ and hand out 30 round magazines
            Advertise your willingness to buy or sell guns from or to anyone, anywhere, with no questions asked.

            Enough with your cowardly rhetoric. Put up some constitutional action or STFU.

            • The_Jack says:

              Whut? Seriously, whut?

              Erm… I’ve only had two posts in this thread. And neither was about the constitution.

              And what’s all this posturing? Please cite something… anything where I’ve gone Internet Tough guy. Have you got me confused with someone else?

              Lighten up Francis.

              • Ian Argent says:

                Check the nesting – he’s replying to Patrick Henry above you. On mulitply-nested threads, this interface can be a bit of a pain to determine who’s replying to what, though it beats heck out of un-nested comments for that

            • Patrick Henry, the 2nd says:

              Lol did you actually read my post or did you just decide what I was saying without reading it? As I said, if the courts did their job, we could all be defiant because they would throw out the unconstitutional laws. I’m not going to go out of my way to make a statement that I know wont help the cause. I’ll do a much better job educating people.

              But you can damn well better believe I would not go to the back of the bus. In gun rights land, that would be registering or turning in my guns. I’ve also decided that I’m not going to let a law define where I carry.

              So yeah, you don’t know know what you are talking about.

              • Dano says:

                I’ve read all your BS for years. It’s time for you to shut the hell up and put some actions to your nonsense. You just keep going on and on with this constitutional BS that flows from your lazy-boy perch. You’re a forum/blog cancer, and you know it. You’re too afraid to do anything. So you pick a cute name and get tough at your keyboard. You’re useless.

                You’re not educating anyone on anything. The stuff you say is typical of a crap poster. You’ve been doing it for years. Like I said. It’s time for some actions to back up your tough talking constitutional theories. We all know you’re not going to do. You’re just that kind of roll over Nancy Boy who runs when the fists have to start flying.

                • Patrick H says:

                  You’re a troll. You didn’t read anything I wrote, and just keep spewing the same incorrect information over and over again.

                  Again, because the courts are so hostile to guns, I can’t put anything into action. Of course I’m too afraid to do anything- because the result will be an unjust prosecution and going to jail for a long time. How does that solve anything?

                  The best I can do is educate people (and yes, I have successfully educated many people over my time) and fund the NRA and GCA (and up til Gottlieb supported UBC, SAF) and let them fight in the courts with the best cases and the best lawyers they can get.

                  You have this incorrect belief that since I know the system doesn’t work the way it should that I’m a keyboard commander because I won’t just get arrested for nothing.

                  So how would you change things? Or maybe you actually don’t believe in the Constitution, rights, and fighting for them in the best way possible. I think you are the scared one, telling people they should get arrested for nothing, while you sit comfy in your house laughing ignorantly.

                  • Dano says:

                    Yeah, I’m the troll. Your bar room claims and posturing are always on display for all to see. It’s time for you to put up or shut up – and we all know you’re not going to do either. You’re all talk and not a drop of action. It’s been the same armchair lawyering from you for years.

                    So, now we see the chicken you are. You spout this stuff off but you “I won’t just get arrested for nothing”. You’re claims are just that, nothing. Just like you’re a nothing. No action, nothing from you. A big giant NOTHING!

                    Keep going, really keep going. More people here need to see you for the hot air spewing gum flapping puss you really are. You go on and on about all that’s wrong and unconstitutional and you won’t challenge a single thing you’re so passionately wrong about. You know the outcome and you know you’re full of crap in everything you spew.

                    So yes, I have you a big shovel and 6 feet of rope and I see you’re going to use them both. Keep going, keep going.

                    • Patrick H says:

                      LOL yes you are the troll, because again you don’t address anything I say and just keep spouting off. Again, if I’m not doing the right thing, to protect rights, what should I do? And if I’m wrong about the Constitutional arguments I’m making, why?

                      You seem to think that the courts are the be all and end all of what is right- instead of just another piece of the puzzle. So really, I don’t understand what your problem is. I’ve already “put up”, and there is no way I’m going to shut up, because A) I’m right, and B) you haven’t even tried to show me where I’m wrong. That’s troll behavior right there.

                      You say I’m nothing, that I’ve done no action- except I’ve done a lot of action. So again, you are wrong on both counts.

                      There is a lot that is wrong and unconstitutional, but just because the courts disagree doesn’t make me wrong. It makes them wrong. There is nothing I can do about it, so I can’t take the action. That’s where your problem lies.

                      So you can “keep going, keep going” with your worthless troll comments. Have fun doing nothing, because that’s all you are doing.

                    • Dano says:

                      Nothing you say is of any value. You’re an all talk no action Nancy boy who willing sits in the back of the bus while talking about sitting in the front like you have the balls to actually stand up and act on the things you say. Your passive assertion of your rights is on display for everyone see and it’s getting pretty damn funny.

                      You know, for as much as I think that viper gts doofus from PAFOA came from a polluted gene pool, at least he has the conviction to act on what he says – unlike you.

                      Keep going. Keep chiming in with you useless historical quotes, you tough stance words, your poorly framed legal cites. We all know you’ll do nothing beyond your keyboard.

                      Like I said. STFU and start acting on your tough stance on your rights.

                    • Patrick H says:

                      Actually a lot of what I say has value. Its clear what you say has no value. You prattle on and insult me, when you have no idea who I am or what I do. You offer nothing to the conversation, except insults and worthless arguments like “GO GET ARRESTED AND GO TO JAIL, IDIOT”.

                      I have challenged my rights to police. I have had them back down. I do stand up for my rights. I do educate people, including those who only have an opinion because of what they heard in the anti-gun media. I send my hard earned money to those who are standing up for our rights.

                      What have you done? Other than insult people on blogs. You haven’t answered any of my questions. You haven’t rebutted anything I said. You just make incorrect assumptions and bad logical arguments.

                      So I will keep chiming in with useful historical quotes, my tough stance words backed by action, and my clearly correct legal cites.

                      So maybe you need to stop talking, because you’ve done nothing helpful.

                • HSR47 says:

                  Dano, you go on and on about what you think others should do, but what do YOU do to substantively lobby to enhance the practical scope of the right to keep and bear arms?

                  What’s to say that your attacks in this thread are anything other than psychological projection, rooted in your own self-disgust at your own inaction?

        • Ian Argent says:

          Gonna have to disagree on driving while impaired (drunk driving). It’s the moral equivalent of firing into the air with a gun or bow. You’re engaged in avoidably reckless behavior whose consequences may include death or grievous bodily harm to bystanders.

          Drawing the line of “Impaired” is the detail where the Devil lives, admittedly, and that the courts allow sobriety checkpoints is offensive to the 4th amendment; but I damn well won’t call drunk driving a victimless crime. Drunk Drivers kill about as many folks as firearms per year, and none of the dead are deservedly so in that case.

          • HSR47 says:

            Driving while while intoxicated is, by definition, negligence.

            Still, there are a number of issues with blanket bans on driving while intoxicated….

            First, we do very little to curtail many other forms of impaired driving. On average, who is more impaired: A typical well-rested 30 year old male with good eyesight and a .08 BAC, or a typical poorly-rested 70 year old male with failing eyesight, reflexes/reaction times, but no measurable BAC? Why should we use the law disproportionately against one but not the other?

            Second, there’s the issue of the slippery slope of what the courts will rule as “constitutional.” 100 years ago, the concepts of DUI checkpoints almost certainly wouldn’t have passed constitutional muster. The proliferation of malum-prohibitum statutes, like our current statutes proscribing the practice of operating motor vehicles while intoxicated, contribute substantially to the erosion of our liberties.

            I could go on, but in the interest of brevity I’ll leave it there.

        • HSR47 says:

          Let’s take this in order…

          “Why don’t you make and sell FA guns and use your post as your defense.”

          There’s looking at the bear, poking the bear, and slathering yourself in honey and laying yourself out on a platter for the bear. What you suggest is the last of these.

          The premise of your argument here is essentially that the only way to desegregate a lunch counter is to walk in carrying a long gun and shoot anyone who tries to enforce a policy excluding those with dark skin from sitting at the counter.

          Patrick H is correct that the courts are substantially hostile to the notion of an expansive Second Amendment to a degree that they are not with any other part of the U.S. Constitution. Somehow a government requirement to display a valid photo ID with current address is not a burden for one right (firearms), but it is for another (voting). To deny this judicial hostility to the right to keep and bear arms is to deny reality.

          As far as your third paragraph goes, if you were on the ball, you would have countered that there ARE victims in this case: Every gun owner looking to get into machineguns was victimized here, because the antics of these individuals reduced the pool of transferable machineguns, and thus raised prices.

          Also, the premise you are advancing in your fourth paragraph (and much of the rest of this post too) is fundamentally an example of the ‘no true Scotsman’ logical fallacy: You intone that you believe that the only way one can engage in civil disobedience is to rub it in everyone’s faces. That’s like saying that you can’t possibly be a gay man if you don’t act and dress like Richard Simmons.

          • Patrick H says:

            Haha I like the bear analogy. And the gay one too. I’m not even sure what this guys purpose is- why is he so gung ho about people advancing proper Constitutional arguments?

            • Dano says:

              Oh look, the constitutional wonder twins have activated their powers.

              • Patrick H says:

                Oh look, you have no good points, just insults.

              • HSR47 says:

                So rather than attempt to rebut my post with actual arguments, you go straight to ad-hominem attacks.

                Please do come back with something other than logical fallacies and personal insults: I’d love to have an honest discussion on the topic of machinegun ownership as a fundamental component of the right to keep and bear arms.

                • Chris from AK says:

                  We’ve discussed it here many times before.

                  If you take the plain reading of Heller to say that guns in common usage are protected under the 2A, then go the next step to say that “anything in civilian law enforcement usage is common usage” then machine guns are clearly protected.

                  A full auto short-barreled AR-15 in the trunk of a police cruiser is called a “personal defense weapon.” They are apparently completely appropriate for self-defense as envisioned by Heller.

        • Sigivald says:

          Well, we should distinguish between mala prohibita and malum in se crimes, shouldn’t we?

          “X is victimless and the State thus has no business banning it” is a perfectly sound moral argument (not one that cannot be argued against, perhaps, but not in itself faulty or incoherent).

          “Having a machine gun without a piece of paper and a small fee” would be mala prohibita; nothing is inherently or naturally wrong with it.

          Driving drunk is much closer to malum in se; it is wrong in itself because of the great risk to other drivers, just as throwing knives into a crowd is wrong in itself, even if you’re probably not going to kill or maim or even cut anyone…

          (Against HSR, note that our very host has written about US vs. RIA, and notes that the decision there said only that the NFA regulation of machine guns under the Revenue Cods was unconstitutional.

          It did not say that prosecution under the Gun Control Act of 1968 was unconstitutional; 18 USC 922(o) does not depend on the tax authority, and would require a radically different challenge or simple repeal.)

          • HSR47 says:

            While it is obvious that driving while intoxicated is a negligent behavior, I’m not entirely convinced that we are better off allowing the government to prohibit it outright: We started with the admirable goal of reducing the number of preventable deaths, and ended up fundamentally eroding the practical scope of the Forth Amendment.

            While I have never driven while intoxicated, I have been the victim of a hit & run collision where the other driver presumably* was over the statutory BAC threshold, so I’m inclined to believe that I have more right than most to challenge the current notion of DUI laws.

            As it stands, we basically treat DWI as a strict liability offense: If you’re over the legal threshold, you’re automatically guilty, even if you haven’t caused any measurable harm to anyone.

            Personally, I would prefer a system where a statutory threshold is set constitutes criminal negligence in the event that measurable harm is caused by someone driving while intoxicated. In other words, instead of DWI being a stand-alone offense, I believe it should simply exist as an enhancement offense, first requiring an event that substantively harmed someone to occur before charges can be brought.

            Given the modern system by which prosecutors seek to plea bargain crimes down in order to guarantee convictions (and thus re-election), I’m inclined to believe that our current statutes criminalizing drunk driving aren’t really effective anyway.

            That’s before we even consider the point I bought up in another comment in this thread about the relative fitness of young drunk drivers vs old sober drivers. If we concede that the state has the authority to restrict the driving rights of one of these groups, then it stands to reason that it has the authority restrict the driving rights of the other. Frankly, I’m not sure I like where that leads us either.

            *It took the cops a little while to find her, and she was consuming alcohol when they did, so they weren’t sure they could make a DUI stick, and in retrospect they probably figured it wasn’t worth their effort due to the solid case they already had against her. In the end, they plea bargained her down to H&R on an unoccupied vehicle.

            • Ian Argent says:

              The insane low threshold for being considered “under the influence” is a problem – a moderately cautious driver at 0.08% BAC is just not a statistical threat. The troopers of the IMPD, on the other hand, whose BAC rivals the alcohol content of their cruiser radiators…

              I realize this is just as much of a fantasy as expecting machine guns to be as legally available as (say) shotguns in my lifetime, but I’d like to see the limit for “impaired” be raised to something approaching actual impairment (instead of being used as a weapon by neoprohibitionists) and DUI checkpoints being abolished. To a certain extent, societal disapproval is doing more than all the DUI laws ever, but we still have folks on the margin who think it’s appropriate to tank up and drive.

  2. MyOpinion says:

    The fact that a government passed and strongly enforces a law does not make it Constituional. HSR47 makes a valid point. He is not inciting illegal action. We don’t know how he personally acts. He may chose to comply simply to avoid the results of violating the statute. His action is irrelevant to Constitutionality.

  3. Murphy's Law says:

    Dano wins the Internet Appreciation prize for the day for actually making sense and calling out the libertarian lemmings who hide behind anonymous names or pictures of founding fathers and just spew blather and unsupportable accusations of ill-defined conspiracy across the web, making every gun forum look like a gathering of kooks. Thank you, sir. My hat’s off to you today.

    • The_Jack says:

      “who hide behind anonymous names or pictures of founding fathers ”
      Said Mr. Murphy Law who is also a dog.

      • beatbox says:

        Take the rest of the day off. You won the Internet for today.

      • dustydog says:

        I, for one, am savoring the awesome.

      • Sigivald says:

        In his defense, though, he does link to his own website in his nickname.

        Of course, it’s equally anonymous, but lagniappe/Murphy does, at least have an internet identity he’s associating with himself, strongly.

        “Not a real legal name”, but certainly a real identity he’s standing behind. So there’s that.

  4. RAH says:

    HSR47 makes a good points on defense .If these guys did what alleged then they are toast. I guess the defense is in the details.

    • Murphy's Law says:

      No he didn’t. He made no point at all. He posed a rhetorical question, implying that somehow all crimes require identifiable victims, and that’s not the law and never was. Then he cited a paragraph of a legal case out of context because, like many internet law scholars, he likely did not read the whole case and doesn’t understand how that paragraph applies. Like so many of the internet legal scholars, he seems to think that because one sentence in a case says something that he agrees with, somehow that one sentence has the force of law or is the crux of the case. Sorry, but while HSR47 likely means well, he fails across all fronts.

      • Patrick H says:

        No, he clearly made a good point. And again that point is what the law SHOULD be, not what it IS. Two totally separate ideas that you missed. And no, that paragraph was not out of context- it was a very valid point out of the case. And actually, yes a quote out of a prevailing opinion DOES have the force of law. That’s how precedence works. And you insult others for not understand case law?

  5. beatbox says:

    What is his defense? Not much sympathy for these guys. Also, sleazeballs don’t make for good optics when it comes to impacting change via courts (Something Gura understands).

  6. Matthew Carberry says:

    Not every gun-related case is a gun rights case. For good or ill all defendents deserve a defense and, if your only possible play is to challenge Constitutionality then that’s what you do, regardless of the overall “gun rights” movement.

  7. Alpheus says:

    Concerning the Patrick H vs Dano scuffle above:

    Dano would have us believe that every one of us who believes that machine guns should be protected by the Constitution, should make a machine gun, and then subject ourselves to the whims of the courts, and that this is the only way to defend our rights.

    Of course, this has already been tried, by a member of a privately organized militia, who wanted to make such a defense. I don’t remember the details of the case, except for this: the guy was specifically prohibited by the Federal judge over the case, from bringing up the Second Amendment as a defense for owning a machine gun.

    So, yeah, I happen to agree with the notion that choosing to fight for our rights outside of court action isn’t cowardice: the option of fighting for the right to machine guns in the courts has already been taken off the table.

    • HSR47 says:

      It sounds like you’re referring to the case of US v. Fincher, which is certainly a perfect example of the hostility of the courts not only to machinegun ownership but to the RKBA in general.

      I had actually forgotten about that case, but your post stirred up enough keywords that it was pretty easy to dredge it up with Google.

  8. Patrick says:

    I’ve perused at one of the shops in question. The ATF raided it and tried to make a case against the owner. I guess it didn’t stick because he’s not being prosecuted.

    Typically oblivious, I went into the shop a few weeks after the shop re-opened (post-raid) without knowing any of this in advance. The owner was there and almost about killed me with a dirty look when I asked if he worked with any NFA stuff (I was shopping for a .22lr can). He figured I was pulling his chain, I guess.

    Once he figured out I truly was as clueless as I sounded, he let out an exasperated sigh as said, “I won’t ever touch that shit again. It’s more hassle than it’s worth.”

    I left wondering what was up. Read a story about it all a few weeks later. Ouch.

    Anyway, I am posting to distract from the clusterfuck of posts above and to point out that good people get snarled in crazy stuff sometimes.

  9. SPQR says:

    Not sure who pissed in Dano’s morning cereal but the idea that no one can opine on the constitutionality of the NFA or Hughes Amendment without also undertaking deliberately committing the Federal felony is just horse manure.

  10. Chris from AK says:

    I would vote “not guilty” on pretty much any NFA issue if I’m on the jury. Which is why I never will be a juror on such a case.

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