New Federal 2nd Amendment Challenge?

Been involved in a lengthy bit of Devil’s advocacy with a “Constitutional Historian” involved in “a case in the works right now, well-research, and narrowly tailored that uses Presser, Miller, Heller AND McDonald to overturn NFA & Hughes Amendment. Brady/GCA are next to get struck down by the Roberts Court.” That’s generally enough to set off major alarm bells right there. But when you follow up with, “[Alan Gura] lacks complete understanding of the historical premises’ surrounding the 2nd Amendment’s ratification and early case-law,” that really sets off alarm bells.

The diminishment of proven experts, and the elevation of unproven experts, is part and parcel for those who bring bad cases. Additionally, any suit so broad, and depending on cases like Presser v. Illinois, which said precious little about the Second Amendment, and US v. Miller, which was a deeply flawed case to begin with, is pretty much destined to quickly start setting bad precedent the rest of us will have to either live with, or spend a long time waiting to undo.

Taking a machine gun case into the Court system right now is madness. Others have tried it and lost, and now no one in the 8th circuit will ever have machine gun rights. Fincher was convinced he was right, too. That doesn’t win cases. What makes cases like this even more aggravating, is if one of the Heller 5 retires or dies, this kind of case would be the perfect opportunity for Justice Ginsberg to get what she wants; a reconsideration of Heller and McDonald which results in their being reversed, and the Second Amendment being redacted from the Bill of Rights entirely. We are our own worst enemies.

38 thoughts on “New Federal 2nd Amendment Challenge?”

  1. Bet him $1,000 that he loses. It’s a win-win situation for you, and if he doesn’t take the bet, it shows how confident he really is in his case.

    1. Considering my track record at gambling, that would be the most reliable way to ensure we do in fact get every federal gun law thrown out :)

  2. I’m largely in line with your arguments, Sebastian. I’m seeing all sorts of red flags in the conversation. If SCOTUS justices were that open to 18th century historical theoretical arguments on the second amendment, we wouldn’t be where we are in the first place. It’s like he doesn’t understand that half the court just doesn’t care about those arguments. Gura was smart enough to know what would work, and did the right thing in the circumstances.

    The confidence demonstrated is just insane. No one should be that confident going into a SCOTUS battle. It’s damned delusional. You could dump a metric ton of evidence on Ginsberg and she would not move. Kennedy, on the other hand, could vote either way depending on whether he had a good breakfast that morning or not.

    We can’t know much, given that no details about the case are given. But the risks … damn it makes me nervous. The last thing we need is to give the court an opportunity to gut the 2nd–and you know some of the justices want to do just that.

  3. We’re still better off getting Congress to rid us of these laws than depending on the whim of judges to save us.

  4. A big mistake these kinds of people make is thinking judges are willing to do the right thing because the logic, history, and precedent just make such a strong case (often times only in their minds). From my observation of the courts, though I don’t pass myself off as an expert here, judges are very reluctant to overturn legislative apple carts. Gura’s strategy is to get the courts to remove the apples from the cart one by one, which doesn’t hurt much, after all.

    Another example is the whole Privileges or Immunities Clause in the 14th Amendment. Everyone agrees those cases were wrong. Hell, not just wrong, but downright evil, and only Thomas wanted to revisit that. It was a damned shame, but it shows even when you make rock solid arguments, put together a very careful and well argued case, judges can still disappoint.

  5. It’s bad enough that “logic, history, and precedent” don’t necessarily impress judges; it appears that many people believe that “law” is some sort of magic incantation that uttered properly in court will cause judges to bow down before them in some sort of quasi-Harry-Potter spell. I think some examples are the True Believers in “sovereign citizen” doctrine; or that “nothing in the law requires us to pay income taxes;” or that “the sheriff is the highest constitutional authority in the land.” What they miss is the simple, Machiavellian fact that even if their doctrines were legally valid, it wouldn’t make any difference anymore. Law has settled on something else, and reciting ancient incantations will not change that.

  6. Miller? The guy from Fort Smith, Arkansas, who did not have the money to send his lawyer, Paul Gutensohn, to D.C. to argue the case?

    Wikipedia has gone off the rails. As I recall, Gordon Dean represented the United States, arguing the NFA was Constitutional, and NO ONE represented Miller. Faced with a one sided case the badly crippled Supreme Court had no choice but to find for the U.S.

    Among other places, The complete story is at the NYU law library, here.(pdf)

    And I wish I had a case of whatever anyone who thinks they have found anything in Miller that would help overturn the NFA has been drinking.


  7. I submit that 10th amendment cases would be the way to go. Get attorney-client, priest-penitent, husband-wife, doctor-patient confidentiality under the penumbra.

    Alternatively, a pro-gun state like Texas should set up a 2nd amendment softball lawsuit. Pass an stupid local law (e.g. pregnant retired cops can’t bear arms when being stalked by somebody who wants to murder them to kill their unborn child), have it challenged, have the lower courts play along ruling the law constitutional. Logically, there is no reason to take the very worst lawsuits forward to the Supreme Court.

  8. Scary stuff brewing. If Obama is re-elected the Second Amendment is all but dead. If he gets an opportunity to stack the Supreme Court this nation is screwed. The thought that we may be better off with Romney sends shivers up my spine.

    I’m still voting for Gary Johnson but, damn, I worry about Obama getting another term for this issue alone.

  9. I would challenge the 1986 Hughes Amendment only before gunning for the NFA itself. The 1986 Amendment is basically a ban on a certain class of firearms and can be easily demonstrated by the dwindling supply of pre-1986 machine guns and lack of new registrations.

    1. Dude, go read Parts II-E and III of Heller. It pretty much comes out and says machine guns are not “arms” at all under the Second Amendment. That is the decision that courts are going to look to for legal guidance in this area.

      The argument is DOA.

      Not saying that’s how it should be, but that is how it is.

      1. Yeah but machine guns weren’t really part of the Heller case.

        I still say try the 86 amendment.

    2. Complete agreement. And I wouldn’t go after the Hughes Amendment until we have successfully knocked down some of the semiauto bans first. One slice at a time works better than demanding the whole loaf. It worked for the civil rights movement, and it worked for the gun control crowd for many years.

      1. But those are States issues. There is not Federal ban on semi-autos. But I agree, the first step is taking down CA, NJ, NY AWBs in those districts.

        Honestly, I don’t know why I can’t goto Walmart and pick up a KRISS SMG to protect my home along with a suppressor to protect my hearing.

        1. We stand a very good chance of losing on the assault weapons issue in Court, if only because Eugene Volokh’s paper has been very influential with the federal courts, and he essentially conceded that AWBs, along with magazine limitations, are probably constitutional.

    3. IMO the best way to attack the Hughes Amendment is via the taxation angle. Functionally the Hughes Amendment works by prohibiting BATFE from accepting the transfer tax payment and you can’t do a transfer without paying the transfer tax.

      All you have to do is legally equate the transfer tax to a poll tax, which is already unconstitional many times over and for all intents and purposes, the NFA and the Hughes Amendment go away.

      You just have to bring a very simple constitutional principle to the table, namely that you can’t be charged a tax in order to excercise your rights guaranteed under the constitution.

      1. You’re assuming you’ve already won the debate that a machinegun is an “arm” for which the Second Amendment protects your right to keep and bear. We have not won that argument, and are not even close to winning it. Right now, I think you’d be lucky to get protection for assault weapons and from magazine restrictions.

        1. I don’t think it’s a big hurdle at all to claim that machineguns are ‘arms’ when the Hughes amendment bans ‘new’ machineguns but allows identical ‘old’ machineguns, especially when the ‘old’ machineguns are freely transferable within federal law.

            1. Ok … right or wrong, the government has (by judicial construct) a ‘right’ to regulate certain arms, and even though the NFA was sold as a revenue generator, the NFA has generally been thought of as an act that regulates arms.

              So machineguns are (or were) arms, that were regulated under the NFA.

              How then, can they, by the passage of the Hughes amendment, become not arms?

              I realize that SCOTUS doesn’t operate on common sense, but it strains credulity that machineguns could be arms one day, and the next they are not arms under the 2A.

        2. I concede you are correct that courts are not easily inclined to acknowledge our right to machine guns; but why is that so? Aren’t machine guns common armament for a militia? Are not those the very arms the Second Amendment guarantees the people’s right to keep and bear? It seems a simple argument easily and irrefutably presented. Why is this so hard for supposedly erudite judges to comprehend? Frustrating!

          1. Arnie, I agree with you.

            Part of the problem is that, to me, Scalia’s opinion in Heller is schizophrenic, because on the one hand he acknowledge that the militia were expected to bring what weapons were in common use at the time (and that civilian weapons and military weapons were the same), but on the other hand acknowledges later that while technological advances may have “limited the degree of fit between the prefatory clause and the
            protected right” that cannot change the right.

            Both of these statements seem to support machinegun ownership, however grudging.

            But the reason that more law-abiding citizens (and presumed members of the unorganized militia) aren’t armed with military-grade weaponry is the result of government action trying to limit the availability of those weapons (face it, in ’34 a $200 tax stamp was an impossibility for all but the hyper-wealthy). It could be argued that the Hughes amendment was the logical end of the real reason the NFA exists, especially since $200 is nothing against a $2-3000 M4 (the entry fee still tamps down suppressor usage, though that’s changing).

            So the Hughes amendment bans an entire class of weapon (a class which was available by mail at one time), but not really since those already registered are A-OK (or not as dangerous as new machineguns?). surely I’m not the only person who feels that the Hughes amendment deserves real court challenge just on the basis that it’s incomprehensibly stupid?

            I believe that we should engineer a court case (like the Left did in Roe and Lawrence), with a good plaintiff in a friendly jurisdiction. If I ever win the lottery I’ll meet with Alan Gura and hand him a blank check to that end.

            Sorry, I’m rambling … Hughes is my hot button!

            1. Hey, that’s all right – just keep on ramblin’, ’cause I’m learning a lot from you. My sentiments exactly on Heller. I like Scalia, but I think he planted in Heller the seeds for its own destruction with the “reasonable regulation” allowance for Federal infringement. I was unfamiliar with Hughs until this posting. Thanks to all!

  10. Speaking of nibbling NFA to death by ducks, it might be easier to start with going after Title I, SBR/SBS, and AoW – the category definitions are not internally consistent and BATFE already has lost some key cases in this space. Sebastian claims the federal judiciary isn’t going to look kindly on legalizing short-barreled shotguns, but the categorization of non-select-fire firearms is a logical mess. Identical weapons are classified as Title I Handgun or SBR via path-dependent definitions.

    Though I suppose it would probably be best to knock off “sporting purposes” first. The actual holding of Heller should be enough for that.

  11. Can anyone explain why the case:

    UNITED STATES v. ROCK ISLAND ARMORY, INC., and David R. Reese, Defendants. No. 90-40025.
    United States District Court, C.D. Illinois.
    June 7, 1991.

    hasn’t helped us? The court basically said since the NFA was based on Congress power to tax, and the 1986 act prevents the tax from being collected, it nullifies the entire act or renders it unconstitutional. What part of this case am I missing?

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