Legal Question: Is this the way to challenge the NFA?

[CampingJosh]

I have a legal question, and I'd like opinions especially from our members with a legal background (though I'd also like everyone else to join in).

This was on the second page of Justice Stevens' dissenting opinion to the D.C. v. Heller case last year. (Full text of opinion and dissent here)

In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Sustaining an indictment under the Act, this Court held that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U. S., at 178. The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

(Note that Justice Stevens is one of the more liberal members of the SCOTUS, and even he says this.)

If I read that right, it seems that the Miller ruling suggests that arms which are efficient for military use are exempt from the NFA (though certainly the ATF wouldn't see it that way until expressly ordered to do so by a federal court).

Since short-barreled shotguns are used in at least some military capacity now (see here), is this our ticket to get at least that one portion of the NFA declared invalid? Or, am I totally off base with this?

[kingnothingugm]

Since the second amendment does not give permission to congress to regulate firearms, the NFA is un-Constitutional, hence, invalid. I have no legal background, but, the 9th and 10th amendments tell you that any right not given is reserved to the states. Congress was not given that right. The NFA is law that congress has no power to enact and is as worthless as the paper it is written on.

[kingnothingugm]

That we choose to follow a law does not make that law legal. Sounds weird huh?

[CampingJosh]

Originally Posted by kingnothingugm

Since the second amendment does not give permission to congress to regulate firearms, the NFA is un-Constitutional, hence, invalid. I have no legal background, but, the 9th and 10th amendments tell you that any right not given is reserved to the states. Congress was not given that right. The NFA is law that congress has no power to enact and is as worthless as the paper it is written on.

I agree, but I for one don't want to spend my days in prison as a protest. I'm looking for other ways to get through the system.

[kingnothingugm]

If the states stick to their current sovereignty streak we won't have to. If they actually take back their rights that is. I, on the other hand, would volunteer as the first to be wrongfully imprisoned if it would set things in motion.

[CampingJosh]

btt

[RunningOnMT]

Originally Posted by CampingJosh

I agree, but I for one don't want to spend my days in prison as a protest. I'm looking for other ways to get through the system.

I can agree with you not wanting to go to prison...I certainly don't want to be the only one or one of just a few to give up my freedom. However, it seems to me that the cause we support is worthy of personal sacrifice. Sometimes I think it takes a few with courage to set an example for others. It is time to take a stand. I have no intention of complying with any future firearms ban (on national, state, or local level) beyond what is forced upon me by lack of availability of arms and ammunition.

[user]

The problem is that the NFA is a taxation mechanism, it's not about regulation of interstate commerce. Anyone who meets the (reasonably straightforward criteria, sort of like what you go through to get a concealed carry permit) and who pays the tax, can have a sawed-off shotgun or a machine gun. The government's stated interest in such things is collection of the tax, which is why what used to be ATF was part of the Treasury Dept. So in theory, the NFA didn't infringe on the legitimate ownership of weapons, it just taxed them, the same as the United States does with tires.

[RunningOnMT]

Originally Posted by user

The problem is that the NFA is a taxation mechanism, it's not about regulation of interstate commerce. Anyone who meets the (reasonably straightforward criteria, sort of like what you go through to get a concealed carry permit) and who pays the tax, can have a sawed-off shotgun or a machine gun. The government's stated interest in such things is collection of the tax, which is why what used to be ATF was part of the Treasury Dept. So in theory, the NFA didn't infringe on the legitimate ownership of weapons, it just taxed them, the same as the United States does with tires.

Good point regarding the taxation mechanism but is one also able to obtain any weapon listed in the so called assault weapons ban by merely paying a special tax as you now can with fully automatic weapons? My understanding was that it is an outright ban on the importation and sales of such weaponse to anybody.

[millwright]

What you've got is a history question, CJ.....

By the time Miller vs US came to SCOTUS the principal appellate, (Miller) was dead. The government was allowed to admit unchallegened "evidence" a sawed-off shotgun was not part of the Army's issue weapons. This was contrary to fact circa WW 1. IOW the resultant SCOTUS decison was flawed in concept and substance.

IMO, little of Miller vs US is germane to our present situation. Far too much anti-gun legislation and regulation has passed under the bridge. >MW

[armedandsafe]

The problem is that the NFA is a taxation mechanism, it's not about regulation of interstate commerce.

Just as was the poll tax. The one the Supreme Court held unconstitutional as taxing the exercise of a right protected by the Constitution.

Pops

[1shot1k]

Originally Posted by CampingJosh

I have a legal question, and I'd like opinions especially from our members with a legal background (though I'd also like everyone else to join in).

This was on the second page of Justice Stevens' dissenting opinion to the D.C. v. Heller case last year. (Full text of opinion and dissent here)

(Note that Justice Stevens is one of the more liberal members of the SCOTUS, and even he says this.)

If I read that right, it seems that the Miller ruling suggests that arms which are efficient for military use are exempt from the NFA (though certainly the ATF wouldn't see it that way until expressly ordered to do so by a federal court).

Since short-barreled shotguns are used in at least some military capacity now (see here), is this our ticket to get at least that one portion of the NFA declared invalid? Or, am I totally off base with this?

Cj , I am no legal scholar either...but I have read and reread the statement you provided..and I have many links to last years ( july I think ) ruling...I will check them also....

but ...IMOP..after reading your post insert..(brief) it would appear he is upholding or indicating indictement (just) of the NFA to prohibit per general accepted meaning.....

I'm not saying IMOP that the NFA is valid , constitutional , fair , communist , or other..only that...."what they say now...goes" as to the interpretation of SCOTUS per "this" ruling brief...and remember..this is a report or brief as you will get from (1) justice...and a published report of an "opinion" as to why the (1) voted yeah / neh...should not be a basis for you or anyone to dream/plan/run out buy a sawed off , thompson sub , etc...

I can see how you might have interpreted this..but as I say...in my "opinion" of reading and understanding this , as it was posted...such a weapon being banned or listed..was upheld....

just my 2c......."and hell..about the last 2 I got anyway...so be glad U got them...

thanx,

1shot

[KING64]

Originally Posted by user

.....and who pays the tax, can have a sawed-off shotgun or a machine gun.

And just wait. The tax mechanism has been proposed before and will be proposed again with respect to firearms and ammunition. If they cannot succeed in making private possession of firearms illegal they will attempt to tax it so heavily that only the rich and elite will have the means to own them or to employ their own armed body guards.

I am not a smoker but heavy taxes, the so called sin taxes, are being levied all the time on smoking material. I hate to see that for it is only a baby step further to place burdensome taxes on anything else our "guardians" do not want us to have. Guns will be the next object of the "sin tax." It will be determined that guns are not a necessary item with which to pursue happiness therefore they are not needed by the masses.

Beware golfers: I investigated two homicide cases during my career in which the victim was beaten to death with a golf club. Your clubs could be next.

[Pistolenschutze]

Originally Posted by armedandsafe

Just as was the poll tax. The one the Supreme Court held unconstitutional as taxing the exercise of a right protected by the Constitution.

Pops

Precisely so, Pops. It was essentially held to be a violation of the 15th Amendment, just as most current firearms regs are violations of the 2nd,

[RunningOnMT]

Originally Posted by armedandsafe

Just as was the poll tax. The one the Supreme Court held unconstitutional as taxing the exercise of a right protected by the Constitution.

Pops

Wow pops what a great argument. Wonder if the NFA has ever been challenged on that point.

[RunningOnMT]

Originally Posted by KING64

And just wait. The tax mechanism has been proposed before and will be proposed again with respect to firearms and ammunition. If they cannot succeed in making private possession of firearms illegal they will attempt to tax it so heavily that only the rich and elite will have the means to own them or to employ their own armed body guards.

I am not a smoker but heavy taxes, the so called sin taxes, are being levied all the time on smoking material. I hate to see that for it is only a baby step further to place burdensome taxes on anything else our "guardians" do not want us to have. Guns will be the next object of the "sin tax." It will be determined that guns are not a necessary item with which to pursue happiness therefore they are not needed by the masses.

Beware golfers: I investigated two homicide cases during my career in which the victim was beaten to death with a golf club. Your clubs could be next.

Good point. I AM a smoker and the lmposition of excessive taxes on tobacco products infuriates me. Then again a lot does that these days. Anyway, Since obama took office my little cigars have increased in price 3 times. I buy ten packs at a time. That used to cost me about $25.00. Then they went up to $28.00 something. Then around $30.00. The last time I bought them they were $34.80. I asked the store why the increase. They told me it was some part of either the stiffinus package or some other new proclamation by the messiah. It's a crime that they can get away with this. Whether you're a smoker or not...it's the principle of the thing. What right do politicians have to levy an arbitrary tax on a particular commodity they don't personal use or like?

[bcj1755]

Originally Posted by Pistolenschutze

Precisely so, Pops. It was essentially held to be a violation of the 15th Amendment, just as most current firearms regs are violations of the 2nd,

Going by the strict wording of the Constitution, then ANY law that restricts ANYONE from owning ANY firearm in ANY way is a violation. "Shall not be infringed" is pretty specific.

[islenos]

Even if the NFA was overturned, you would still have to deal with your state firearm laws which mimic in part to those of the NFA.

[alhefner]

Originally Posted by bcj1755

Going by the strict wording of the Constitution, then ANY law that restricts ANYONE from owning ANY firearm in ANY way is a violation. "Shall not be infringed" is pretty specific.

Exactly! Every citizen of the US, according to the constitution, IS guaranteed the right to keep and bear arms capable and adequate for use during armed rebellion against the government. That is the sole PURPOSE for the Second amendment.

[45nut]

Originally Posted by alhefner

Exactly! Every citizen of the US, according to the constitution, IS guaranteed the right to keep and bear arms capable and adequate for use during armed rebellion against the government. That is the sole PURPOSE for the Second amendment.

So why do you think they don't want the good people to own these fine weapons? I can think of one good reason, but I'm just a bitter redneck clinging to my guns and religion.

[bcj1755]

Originally Posted by 45nut

So why do you think they don't want the good people to own these fine weapons? I can think of one good reason, but I'm just a bitter redneck clinging to my guns and religion.

I"m not a redneck, but I am what Barry considers a bitter clinger. I'm pretty sure we have the same reason in mind, and I'll come out and say it....because they're worried that when the start with the real heavy socialist crap, that the armed people in the US will rise up and march on Washington to throw their sorry a**es out of office.