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[Vanity] US vs. Mathew Henry (9th circus machine gun (922(o)) ruling). Future USSC ruling next year
9th circus court of appeals ^ | 8 AUG 12 | Dcbryan1

Posted on 08/14/2012 7:21:09 PM PDT by DCBryan1

Quick read of 9th Circuits 18 USC 922(o) ruling and commerce clause re: 2nd amendment. For you legal types, think the USSC will look at or overturn? What about Sclias recent comments? Think they might look at Ann overturn Miller (1934) case?


TOPICS: Your Opinion/Questions
KEYWORDS: 2ndamendment; 9thcircuit; banglist; rkba
Bang!
1 posted on 08/14/2012 7:21:22 PM PDT by DCBryan1
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To: bang_list; Joe Brower; Travis McGee

Bang!


2 posted on 08/14/2012 7:23:02 PM PDT by DCBryan1 (I'll take over the Mormon over the Moron any day!)
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To: DCBryan1
However, the Court stated that the Second Amendment only protects the right to own certain weapons...

Actually, the Second merely states, "shall not be infringed". So, the Court is wrong in it's narrow definition.

3 posted on 08/14/2012 7:37:22 PM PDT by Dead Corpse (I will not comply.)
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To: DCBryan1; SLB

Could be an interesting case.


4 posted on 08/14/2012 7:38:03 PM PDT by Stonewall Jackson ("I must study politics and war that my sons may have liberty to study mathematics and philosophy.")
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To: DCBryan1
However, the Court stated that the Second Amendment only protects the right to own certain weapons...

Actually, the Second merely states, "shall not be infringed". So, the Court is wrong in it's narrow definition.

I hate typing on an iPad...

5 posted on 08/14/2012 7:39:24 PM PDT by Dead Corpse (I will not comply.)
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To: DCBryan1
We reject this argument because machine guns are “dangerous and unusual weapons” that are unprotected by the Second Amendment. Dist. of Columbia v. Heller, 554 U.S. 570, 627 (2008).

What good would a weapon that was not dangerous be? As to being unsual, almost all federal police forces, and of course the US Military, are armed with several different types of machine guns. The Texas Highway Patrol even has boats armed with M249s in shielded mounts.

They have 6 of them in fact.

More info and pictures at this link

Henry also argues that Congress did not have the power to enact § 922(o)’s prohibition against possessing machine guns pursuant to the powers delegated to Congress in the Commerce Clause. That argument fails because we already have held that the Commerce Clause authorizes § 922(o)’s machine gun possession ban.

That's even more idiotic. The Second Amendment is just that, an amendment. By the nature of amendments, they change the basic document where it conflicts with them. The use of the commerce clause, or any other part, such as the power to tax, to infringe on the right of the people protected by the second amendment is thereby forbidden.

6 posted on 08/14/2012 7:42:03 PM PDT by El Gato ("The second amendment is the reset button of the US constitution"-Doug McKay)
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To: El Gato
Also, how can the interstate commerce clause have anything to do with a device manufactured and possessed in a single state?
7 posted on 08/14/2012 7:43:36 PM PDT by El Gato ("The second amendment is the reset button of the US constitution"-Doug McKay)
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To: DCBryan1

“A machine gun is “unusual” because private possession of
all new machine guns, as well as all existing machine guns
that were not lawfully possessed before the enactment of
§ 922(o), has been unlawful since 1986.
Outside of a few government-related uses, machine guns largely exist on the
black market.”

BS! there are an estimated 250,000 legal machine guns in circulation among the civilian, non law-enforcement population. (Exact numbers are not known out ATf as the registrations are confidential tax information).
So they are NOT “Unusual” outside Kalifornia.
They ARE much more “Unusual” in the black market, even most dumb criminals know they will get few breaks if the use a machine gun in their crime.

“[4] In short, machine guns are highly “dangerous and
unusual weapons”(WRONG, as noted above) that are not “typically possessed by law abiding citizens for lawful purposes.” (WRONG AGAIN, as noted above) Heller, 554 U.S. at 625,627.
Thus, we hold that the Second Amendment does not
apply to machine guns. (NOT an issue prior to 1933, cannon, machine guns, SBR and SBS were all common and unregulated)
Moreover, because we conclude (Wrongly!) that machine gun possession is not entitled to Second Amendment protection, it is unnecessary to consider Henry’s argument that the district court applied the incorrect level of constitutional scrutiny in evaluating his claims.
II.


(There is a reason the Fed. Gov. had to create an NFA tax in order to “Regulate” machine guns, it was the only way they could side-step the second amendment in 1933 (NFA Act of 1934).

This is clearly not the best possible case to overturn 922.(o), but the ruling illustrates again that the 9th Circus is a bunch of clowns.
I am sure any other court would also have twisted logic and reason into knots in order to not admit the unconstitutionality of 922.(o), but at least they would have done a more professional job of it.

For the record, after MANY years of study, in my lay opinion, the NFA-34 and 922.(o) are both absolutely unconstitutional!
You can learn A LOT about them and their history by searching the archives at NFAOA.org


8 posted on 08/14/2012 8:02:45 PM PDT by Loyal Sedition
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To: DCBryan1

“D” in ESL?


9 posted on 08/14/2012 9:06:42 PM PDT by TXnMA ("Allah": Satan's current alias...)
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To: El Gato
Also, how can the interstate commerce clause have anything to do with a device manufactured and possessed in a single state?

Back in the early 2000's, the 9th Circuit said that a homegrown cannabis plant for personal medical use was NOT interstate commerce in the Raich case. At about the same time, in the US v Stewart case, they also said that a homegrown machine gun for personal use was NOT interstate commerce.

Both cases went to the SCOTUS. They took the Raich case first and held the Stewart case. The SCOTUS reversed the 9th and said that a homegrown cannabis plant for personal medical use actually IS interstate commerce. They then sent the US v Stewart case back to the 9th with a note that said, "See Raich and try again."

The 9th complied, and redecided the case, this time concluding that Stewart's machine gun was, in fact, interstate commerce. Both opinions by Kozinski are worth reading.

For those who think Scalia will save us, go and review what he wrote in concurrence with the Raich case.
10 posted on 08/15/2012 4:34:06 AM PDT by publiusF27
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To: harpseal; TexasCowboy; nunya bidness; AAABEST; Travis McGee; Squantos; wku man; SLB; ...
Click the Gadsden flag for pro-gun resources!
11 posted on 08/15/2012 5:47:26 AM PDT by Joe Brower (Sheep have three speeds: "graze", "stampede" and "cower".)
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To: publiusF27; All
You are exactly correct. Scalia screwed us and the Constitution over royally with the Raich case. I think it was mostly because he thought he had to come up with a way to continue the war on some drugs. The ruling was pure insanity, and basicly grants the federal government power over every aspect of our lives.
12 posted on 08/15/2012 6:01:23 AM PDT by marktwain
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To: Loyal Sedition

Congressional records from 1933 and 1934 need to be submitted as evidence, as well as US v. Miller. Also, how can they be considered unusual and such since every military and Government in the world use them?

The only reason they are “unusual” in private hands is due completely because of a restriction placed by the Government. This was addressed in Heller when the court commented on the lack of availability of handguns to the citizens of DC was because of a restriction placed on them by the Government.

There is a strong move to remove 922 (o) from the books. It’s going to happen sooner rather than later, but it’s going to happen. What I’d like addressed by the Court is equal application under the color of law. That alone will eliminate many Government exemptions in law and it’ll strike down laws like LEOSA and such.

The MG ban is a dead duck. The desperation by the anti’s and the lower courts to keep it in place will not work. One way or another that ban is going away. My message to the anti’s is this... Let the ban go away. If you don’t, we’re taking the NFA and a few other laws down for our troubles.


13 posted on 08/15/2012 7:49:01 AM PDT by BCR #226 (02/07 SOT www.extremefirepower.com...The BS stops when the hammer drops.)
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To: BCR #226

The NFA has to go as well. Along with the 1968 gun control act. They are clear infringements.


14 posted on 08/15/2012 8:10:57 AM PDT by Durus (You can avoid reality, but you cannot avoid the consequences of avoiding reality. Ayn Rand)
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To: Durus

Absolutely. I’m working with Mr. Rich Heller of the Heller v. DC case to do exactly that. Donations are appreciated at www.hellerfoundation.com if you want to help.

We want the MG ban gone. We offered to not go after the NFA, sporting purpose, importation, and the BATFE if they repeal it. Since they haven’t, once we file, it’ll be to late, we won’t back down. They get rid of the ban, we won’t drop a Heller bomb on them with the other stuff. What other people do, we can’t control. But we won’t do it.

They won’t be prepared for the scope of the case we’re going to bring. Let’s just say we’ll have more than 5 plaintiffs and one heck of a strong argument.


15 posted on 08/15/2012 8:52:23 AM PDT by BCR #226 (02/07 SOT www.extremefirepower.com...The BS stops when the hammer drops.)
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To: BCR #226
The Miller court found that they could not say Millers short barreled shotgun was protected by 2A because they had no evidence that it was a normal militia weapon.

A machine gun is clearly a normal militia weapon, so how is it not protected by 2A?

16 posted on 08/15/2012 9:01:50 AM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: BCR #226
I will definitly donate. Thanks for your efforts!

I encourage everyone (that has already donated to FR) to help out in any way they can.

17 posted on 08/15/2012 9:22:44 AM PDT by Durus (You can avoid reality, but you cannot avoid the consequences of avoiding reality. Ayn Rand)
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To: MileHi

That was the arguement used in the lower court that won. It was not brought up in the USSC because the plantiffs were not represented.


18 posted on 08/15/2012 9:25:41 AM PDT by Durus (You can avoid reality, but you cannot avoid the consequences of avoiding reality. Ayn Rand)
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To: MileHi

I agree. The Miller case was an illegal decision by SCOTUS however since there was no representation by defense. It is a case that must, at some point, have a re-hearing at SCOTUS with defense represented.

The way the prosecution won was also shady as hell too. The prosecutor should burn for eternity for that. I doubt he realized, or maybe he did, just what that poor judgement on his part has wrought.


19 posted on 08/15/2012 9:47:16 AM PDT by BCR #226 (02/07 SOT www.extremefirepower.com...The BS stops when the hammer drops.)
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To: Durus
It was not brought up in the USSC because the plantiffs were not represented.

The defendant was not represented in the hearing because he was dead so his counsel did not show up. That is why the Court said that they had no evidence regarding the shotgun, because none was presented.

20 posted on 08/15/2012 9:58:28 AM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: MileHi; Durus; BCR #226
The Miller court found that they could not say Millers short barreled shotgun was protected by 2A because they had no evidence that it was a normal militia weapon.

Actually, the Miller Court indicated that "there is no judicial notice..." that a short barreled shotgun was protected by the 2A. This is because Miller, the plaintiff, was killed by some "friendly competition" and his lawyer saw no point in bringing any evidence to the table when: a) it didn't matter to his client; and b) he wasn't getting paid anything to do the work. The Solicitor General at the time put forth a specious argument about what the 2A meant, and the Court had nothing opposed to that view in front of it, so it adopted his view in their ruling. In point of fact, short-barreled shotties were commonly known during WW1 as "trench brooms," and could easily have been shown to have significant use and value to the militia.

As you noted, machine guns are highly valuable - though for the armed forces and NG, and thus also the militia. There won't be any lack of evidence today, that's for certain. My view of 922(o) is that it is, by itself, unconstitutional because Congress has passed a tax that the BATF cannot collect because of this subsection, i.e. the law contradicts itself. When combined with the fact that it limits the right to own full autos - an entire class of weapons - and that there are already about 250,000 full autos owned by civilians, there is no doubt that it is unconstitutional. Not to mention that the '34 NFA itself is a Constitutional abomination.

Looking forward to the day when us proles can legally by drop-in happy switches, and there are about 5 million of them out there - when that happens, there is NO WAY that any government is going to try to confiscate weapons.

21 posted on 08/15/2012 10:01:41 AM PDT by Ancesthntr (Bibi to Odumbo: Its not going to happen.)
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To: MileHi; Durus; BCR #226
The Miller court found that they could not say Millers short barreled shotgun was protected by 2A because they had no evidence that it was a normal militia weapon.

Actually, the Miller Court indicated that "there is no judicial notice..." that a short barreled shotgun was protected by the 2A. This is because Miller, the plaintiff, was killed by some "friendly competition" and his lawyer saw no point in bringing any evidence to the table when: a) it didn't matter to his client; and b) he wasn't getting paid anything to do the work. The Solicitor General at the time put forth a specious argument about what the 2A meant, and the Court had nothing opposed to that view in front of it, so it adopted his view in their ruling. In point of fact, short-barreled shotties were commonly known during WW1 as "trench brooms," and could easily have been shown to have significant use and value to the militia.

As you noted, machine guns are highly valuable - though for the armed forces and NG, and thus also the militia. There won't be any lack of evidence today, that's for certain. My view of 922(o) is that it is, by itself, unconstitutional because Congress has passed a tax that the BATF cannot collect because of this subsection, i.e. the law contradicts itself. When combined with the fact that it limits the right to own full autos - an entire class of weapons - and that there are already about 250,000 full autos owned by civilians, there is no doubt that it is unconstitutional. Not to mention that the '34 NFA itself is a Constitutional abomination.

Looking forward to the day when us proles can legally by drop-in happy switches, and there are about 5 million of them out there - when that happens, there is NO WAY that any government is going to try to confiscate weapons.

22 posted on 08/15/2012 10:01:41 AM PDT by Ancesthntr (Bibi to Odumbo: Its not going to happen.)
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To: BCR #226
The Court seemed to imply that if evidence showed that short barreled shotguns were normal militia arms then it would have been protected by 2A.

Is that how you see it?

23 posted on 08/15/2012 10:01:51 AM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: Ancesthntr

I agree with everything you posted.


24 posted on 08/15/2012 10:06:45 AM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: BCR #226
Another point to consider is the case of US v. Rock Ridge Armory wherein the judge ruled against the ATF precisely because their "regulatory powers" stemmed from the ability to tax, and that by withholding the tax-stamp for new machine-guns they could not legitimately regulate machine-guns. -- This case's reasoning was so strong the ATF refused to appeal it higher because if they did the ruling [if upheld] would have stripped them of power in multiple states.

In addition to this, the 2nd amendment applies to the original Constitution "in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added" and therefore applies restriction to taxes 'infringing' the rights of keeping & bearing arms... AND to the commerce clause.
There might be argument that the 16th Amendment could be used to apply against weapons at the point-of-sale, but that has not been argued as the power/authority by which the right is regulated.

25 posted on 08/15/2012 12:46:47 PM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark

Another case to look at is US v. Leary. When the Government pulled the same stunt on marijuana and Dennis Leary handed their butts to them in the late 60’s. The MG ban is very similar in wording as the marijuana ban then.

Those tax laws are a pain sometimes.


26 posted on 08/15/2012 1:48:14 PM PDT by BCR #226 (02/07 SOT www.extremefirepower.com...The BS stops when the hammer drops.)
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