Another Loss on Machine Guns

There is no Second Amendment to possess a machine gun in the 8th Circuit now.  The case cited U.S. vs. Fincher as supporting case law within the circuit when crafting the decision:

In United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008), the Eighth Circuit held that the defendant’s possession of a machine gun was not protected by the Second Amendment under Heller: “Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use.”

This is why I don’t jump on board in support when people do stupid things that end screwing the rest of us.  This is a prime example of that in action.

17 thoughts on “Another Loss on Machine Guns”

  1. 1934 NFA, 1968 GCA, 1986 ban on anyone but the .gov obtaining new full autos CAUSED them to become uncommon.

    This is the definition of circular logic. The court screwed up, not Mr. Fincher.

  2. Yep, thanks Reagan.

    Have you bothered looking at the case from the beginning? With no crimiinal record his bail was higher then snoop-dog when arrested for having a pistol at the leno show…dopey dog is a felon.

  3. I would agree with you if the outcome of that case was ever in doubt, but that was not the case. This was even one of my first posts that got any real attention.

    Fincher is now also an example of civil disobedience, but I don’t think that was his intent going into this. Don’t get me wrong, I think the laws he was prosecuted under are wrong, and I think they ought to be repealed, but the fact that his future was going to be federal prison was predicted.

  4. The problem with civil disobedience is that more than one person has to do it or it’s not effective.

  5. It’s not just that more than one has to engage in it, you need many – hundreds or thousands. More importantly, you also need an issue that most people don’t really agree with even if they’ve gone along with it for years. You need public sympathy, otherwise it just becomes an odd blip in the news cycle.

  6. What she said is what I was going to say. You need some public sympathy on your side for it to work. People can relate to not wanting to sit at the back of the bus, of have to give up their seat to the superior race.

    Few people can relate to wanting a machine gun. That has to be changed before any progress will be made on the issue.

  7. That’s why I always let as many people shoot mine as I can when I have it out. No one walks away from shooting an SMG without wanting one.

    No one.


  8. Not much “public sympathyâ„¢” for bailouts and yet they go right ahead and do THAT.

    If you expect public sympathyâ„¢ to do gun owners ANY good when the leftists control the media, education, the money to hand out to the folks who you expect to sympathize with you, well, the definition of insanity comes to mind.

    I’m just going to say F most gun owners and worry about other things since they’ve become too metrosexual and Klintonian relying much too much on image and polls to stand up for their rights. Marching sheepishly to the back of the bus because the people don’t like you. Too damn self centered to do anything besides those things ignored by the law givers.

    You give him any money? Demonstrate? Write letters? Make calls?

    If he appeals will you give him any support or just leave him under the bus?

    Where were you on the Akins stock?

    How about the Olofson case?

    What did you do to support ANY of them?

  9. Akins I supported, but the court ruled in favor of ATF’s later determination. Based on the language of the law, it’s not an unreasonable decision. My problem was the ATF said his device was fine, and then suddenly changed its mind.

    My statement on Olofson is here

  10. And how has he not thrown all of us who want to own machine guns someday under the bus by pursuing a case that any Second Amendment attorney would have told him was bound to lose, and end up creating bad and binding precedent for the whole circuit?

    Screw that. I’m not going to help out a guy who sets himself on fire, then runs around demanding everyone help put it out. Guys like Akins I understand. Pushing the boundaries of the law is important, and if he had been successful, it would have been a victory for us. But what happens when you manufacture your own sten gun is a well defined legal outcome that results in going to federal prison.

  11. I have to assume you haven’t taken the time to read his “silver bullet”

    Remember that the NRA attorneys tried to scuttle your much celebrated Heller.

  12. Remember that the NRA attorneys tried to scuttle your much celebrated Heller.

    Yes, because they believed it was going to lose. When Parker started out, O’Conner was still on the bench. Feel confident she would have ruled the same as Alito and Roberts? How did Rehnquist feel about the Second Amendment?

    NRA turned out to be wrong on this one, and I’m glad they were unsuccessful. But that’s hindsight. It was a 5-4 decision, and two of those votes weren’t on the court when this all got started.

    What “silver bullet” are you referring to?

  13. Why would he argue Heller? Why wouldn’t he argue Miller? Miller set the bar for “protected weapon” at “military utility” and NO ONE can argue that the weapons in question don’t have military utility.

  14. The “common use” argument is avoidable, using historical data from 1986 onward to show that the NFA registered weapons have remained in common use since registration. Use their own records against them.

    Similarly, “common use” is not a time-dependent variable. The common use of fully automatic firearms is well documented from the era of Bonny and Clyde onward.

  15. Unfortunately, FA weapons are probably never going to be “common” again. And even if Heller had ruled more consitently with MILLER (ie that militia weapons ARE the exact weapons protected by the 2A), a colorable argument can be made the FA weapons aren’t the type that the “militia” (ie the people) would be expected to bring when called for service. FA weapons are not now even standard issue for all the military.

    Also, there is a limit to the 2A somewhere, it does not protect ANY weapon, ANY place, ANY time, it does not protect shoulder fired missles, tanks, or recoiless rifles. A cut-off at FA weapons would be a no-brainer for the SC to create even if it hadn’t had the NFA of 34 to cement it in with MILLER back in 1939.

    I say this as someone who is pretty radical agout gun ownership and would love to have them. But if the SC was going to formulate a test today in a vacum it could easily follow Don Kates suggestion in his 1986 Michigan Law Review article in which he stipulated a 3 part test – that the weapon have utility for personal defense, police work, and in the militia. FA weapons don’t pass all 3 and may not even pass the militia test (as I point out above).

    Granted they are not in “common” use now in part because they’ve been restricted, but even if not they wouldn’t be as ubiquitious as pistol and rifles, most people aren’t going to carry a Thompson in the car for self-defense, and shooting FA is not cheap. So I don’t blame Fincher or Olafson, the decision was made long before they tested the courts on it.

    We better count ourselfs lucky that Heller was decided in our favor at all and figure out how to make sure that semi-autos don’t go the route of FA arms. Reading Scalia’s decision I can see a future court saying – well, semi-autos are really dangerous an unusual (unusual in that people don’t carry them for self-defense), so bye-bye. Scalia’s decision can almost be read as limiting the right to have handguns in the home. Granted I think it will eventually be expanded to include reasonable carry outside but what limits we might get someday on that, and on what weapons, remain to be seen.

    That is where I think Gura failed most, in not making enough of an argument that the MILLER decision really was more than just a decision to send the case back to the lower court, it did indeed formulate a test – a good test – for what arms are protected. If he had got the SC to buy into that then all we would have to do is show that semi-autos are exactly the type of weapon the 2A would protect. Instead, Scalia seemed to focus on the personal self-defense angle of the 2A (which of course forms the basis for national defense) at the expense of the idea of the militia based defense. Therein lies the danger to semi-auto rifles.

    So unless we want the argument between the “prags” and the 3%’s to begin to have real-world implications lets make sure the next Congress knows we’re serious about keeping our right to keep and bear those arms.

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