So I was thinking ...

.
... about the conversation going on at Sebastian's place about machineguns.

Now Sebastian is not anti-machinegun, he just doesn't see a way to either 1) get Hughes invalidated legally or 2) get Hughes repealed.

As far as getting Hughes repealed, I believe that Sebastian has no faith that if put to a vote that Hughes would be repealed. I say that our side should at least try; after all, it was 12 years ago that the Democrats snuck Hughes into the FOPA in the first place, fraudulently and against the wishes of (apparently) a majority of representatives, and at a time when the tide was just beginning to turn towards our side, culturally (meaning that we were at a low point).

And, wow ... if the NRA got behind a push to get Hughes repealed and return machineguns to their original regulated status, then there would be a much better chance of getting something done. They are, like it or not, the 800lb gorilla.

As far as getting Hughes invalidated legally, well that's a tougher row to hoe. Right off the bat I'll concede that Sebastian is correct regarding the NFA tax argument on machineguns, and that 922(o) is controlling.Heller

Think back to the 'assault' weapons ban of '94. The ban never touched on the type of weapon with regards to how it operated; rather the ban simply said you can't have an AR-15 that looks like an AR-15 (insert your favorite EBR for AR-15). Can't have detachable magazines? Then we'll make them with 'buttons'. No muzzle devices? Then they come with bull barrels. No pistol grips? Then have a thumbhole stock.

Don't even get me started on reduced capacity mags ...

As we all know, the AWB had little effect on the functioning of the weapon itself (you can still get AR pattern rifles in ban or pre-ban configurations ... they all shoot bullets).

But a machinegun is different. The only qualifying trait of a machinegun that differentiates it from non-machineguns is that it fires more than one round per pull of the trigger, an actual design element of the firearm. It matters not how sedate or menacing a weapon looks, if it only fires one round per pull of the trigger, it's not a machinegun.

So 922(o) actually bans a whole class of firearm ... machineguns. That has never happened before. And it would seem violate the police powers inherent with the states, which the statists that gave us the NFA regarded as a disqualifier (relying instead on Congress' power to tax). It would also seem to go beyond what is currently thought of as appropriate commerce clause jurisprudence (Raich not withstanding) as 922(o) doesn't regulate commerce as much as it bans commerce for post-May '86 machineguns, while at the same time regulating commerce for pre-May '86 machineguns.

So it seems to me that a truly gifted genius like Alan Gura could design a case and the arguments* surrounding it to take a stab at Hughes in the courts. Locate a willing plaintiff that is squeaky clean, file in a friendly court and go from there. It would only take a favorable decision at the appeals court level, for the government would surely appeal to SCOTUS.

But hey ... what do I know?!

pm

* I know there are some that say that Scalia in his opinion in Heller all but green-lighted machinegun bans - I disagree. He mentioned that in Miller, both prongs mentioned must be considered - military utility and common use. Given that later in the opinion he notes that even though a militia might not have the weapons capable of defeating it cannot mitigate the right. I'll admit that Scalia's declaration that machineguns don't fit the 'commonly in use' standard, that is not the militiamans fault, especially when machineguns were (and pre-May machineguns still are) regulated with no problems by the government.