Year: 2008

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.

A District Court rules that it may be a constitutionally protected right.  Go read the circumstances.  It’s truly appalling.

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.