I've been thinking a lot ...

.
... about the NFA.

I had subscribed to the comments on a post at The Truth About Guns (hold your fire!), there was another one yesterday and I went back over them. Here are some thoughts (especially now that the ATF has fucked up and issued stamps for new Form 1's):


Politically, the NFA is here to stay. There are no ifs, ands or buts about it. There is not the political will to end it.

Politically, the machinegun registry is closed. No ifs, ands or buts. It is possible (IMHO and IANAL) that the Hughes Amendment could be attacked in court if there was the political will to do so.

I note that the NRA is not even in the conversation, as they have done nothing to help Title II owners.

As I see it (and remember, IANAL), there are two routes that could be taken to challenging Hughes; the argument that machineguns are protected via US v Miller, and a police powers argument.

The Miller argument is rather simple; in Miller, the court held that a short-barreled shotgun had no utility in a military or militia and as such was denied 2A protections. While the court did not hold that military weapons were absolutely protected the implication is that is one of the over-riding tests. It can hardly be argued that full auto weapons have no utility to the military.

The police powers argument is more complex. Generally (and remember, IANAL) the police powers of a state are sacrosanct, and can only be encroached on by the federal government in very specific instances (like where federal assets are concerned ... think military bases and the postal service). For example, there are 11 states that ban the possession of machineguns, even though those manufactured and registered prior to May 19, 1986 are legal. The federal government has no problem at all with this situation.

But what if a state decided that it's citizens should be able to own modern machineguns? Would a state suing the federal government over a police power violation not have more legitimacy? I understand that this argument runs the risk that befell Montana and the Firearms Freedom Act (not granted cert) but that case was in reference to a new law rather than an old one.

In preparation for the police powers argument, it could be noted that those machineguns registered before May 19, 1986 are just fine and dandy, so long as one pays the tax. Surely it can't be legitimately argued that a post-ban M-16 is more deadly than a pre-ban M-16?

Additionally, an argument can be made that there have been 0 crimes committed with legally-registered machineguns¹ since 1934, so there simply was no reason to believe that machinegun owners were going to go berserk on May 20.

But the best argument for violation of state police powers can be found in the testimony for the NFA before Congress. During the hearings, Atty Gen Cummings explicitly stated that a ban would likely run afoul of the police powers of states, but that a tax on machineguns would pass constitutional muster as a revenue-raising device (that it was intended to curtail ownership is implicit). Even then-NRA president Karl Frederick commented several times that he felt that Congress was attempting to exercise a police power under the guise of a regulatory action (and that it would be of little effect).²

The Heller decision gives more support. Invoking Cruishank, Justice Scalia noted:

The second amendment . . .means no more than that it shall not be infringed by Congress.” 92 U. S., at 553. States, we said, were free to restrict or protect the right under their police powers. - pg 55

So the 11 states that prohibit machinegun ownership are within their rights even though federal law allows it; the reverse is not true.

Scalia also notes that though "M-16 rifles and the like" may be "highly unusual in society at large" and ultimately be useless against "modern-day bombers and tanks", because "modern developments have limted the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the
right." (pgs 55-56).

It's just my opinion, but an attack on Hughes via the police powers could potentially re-open the registry, especially given the facts surrounding pre- vs post-ban weapons:

- Violates the police power of the state
- It strains credulity to have machineguns manufactured before May 1986 legal, and those manufactured after be illegal to own, especially when
- there have been 0 crimes committed by legally registered machineguns since the NFA went into effect

Yes, I continue to beat this drum because I believe that Hughes is unconstitutional. It's just that now we have a bit of case law that may be supportive of a challenge. It's also too bad that we can expect no help from the 800lb gorilla.

pm


¹ I realize that there have been at least a couple of crimes committed by legal machineguns, but the anti-gun forces lie without effort. In the grand scheme of things, there have essentially been 0 crimes committed with legal machineguns. Besides, I would like to see anti-gunners have to prove that legal machinguns are a general menace!

² In my opinion, Karl Frederick has been given somewhat of a bad rap regarding his testimony before congress. Yes, it's true that he was instrumental in getting legislation passed in DC and some states and he stated his personal thoughts about carrying weapons, but in his testimony he clearly and often makes note that what the congress was attempting is not in their purview and the law as presented would be ineffective and likely a burden on lawful gun owners.