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Title: Trump Administration Set to Announce Pointless, Legally Dubious Bump Stock Ban
Source:
Reason
URL Source: https://reason.com/blog/2018/11/29/ ... nistration-set-to-announce-poi
Published: Nov 29, 2018
Author: Joe Setyon
Post Date: 2018-11-30 06:57:57 by Deckard
Keywords: None
Views: 7442
Comments: 67
Bump stocks are modifications that can be attached to a rifle to increase the rate of fire, often at the expense of accuracy. Nine months after President Donald Trump endorsed a ban on the devices, the administration appears to be on the verge of banning them. CNN was the first to report the news yesterday evening, citing "officials familiar with the matter." An administration official confirmed to The New York Times that the rule would be unveiled "in the coming days to weeks." Under Trump's new regulation, a source tells CNN, bump stock owners would have 90 days to get rid of the devices on their own or turn them over to authorities. The issue first rose (temporarily) to the forefront of the national conversation after the October 2017 Las Vegas shooting, where a gunman used such devices as he killed 58 people. In February 2018, another mass shooting occurred, this one at Marjory Stoneman Douglas High School in Parkland, Florida. Though the shooter did not use a bump stock, Trump announced in the aftermath of the tragedy that he would be banning the accessories, directing then–Attorney General Jeff Sessions "to propose regulations that ban all devices that turn legal weapons into machine guns." In the following months, Trump continued signaling his intention to make bump stocks illegal. "So we're knocking out bump stocks," the president said in October. "And we are in the final couple of weeks." The administration probably doesn't have the legal authority to do this. Under federal law, a machine gun is defined as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." But a gun equipped with a bump stock is still able only to fire just one round per trigger pull. "Instead of squeezing the trigger, the shooter holds his trigger finger steady while pushing the barrel forward with his other hand, thereby firing a round," Reason's Jacob Sullum explains. "The recoil repositions the trigger, and continuing to exert forward pressure on the barrel makes the rifle fire repeatedly." As Reason's Christian Britschgi explained in March, this is probably why the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has said multiple times that federal restrictions on machine guns do not cover bump stocks. The Obama administration affirmed the legality of bump stocks on three different occasions: once in 2010, again in 2012, and once more in 2013. As Sen. Diane Feinstein (D–Calif.) said in a February statement: The ATF "currently lacks authority under the law to ban bump stocks." In addition to being legally questionable, a bump stock ban probably wouldn't do very much. No mass shooters before or after Las Vegas have used bump stocks to carry out their massacres. Even in Las Vegas, the death toll wasn't necessarily higher because the shooter used one. Most gun enthusiasts have little need for bump stocks. So they're a relatively easy target for those who want more gun control, and a relatively easy sacrifice for gun rights advocates. Hence the reportedly pending ban. As Britschgi argued in October 2017: "Banning bump stocks is something that can be done without pissing too many people off, placating the crowd that after every shooting in America screams for somebody to do something."
Even the Obama administration recognized it didn't have the authority to ban bump stocks.
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#3. To: Deckard (#0)
The administration probably doesn't have the legal authority to do this. Under federal law, a machine gun is defined as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." But a gun equipped with a bump stock is still able only to fire just one round per trigger pull. "Instead of squeezing the trigger, the shooter holds his trigger finger steady while pushing the barrel forward with his other hand, thereby firing a round," Reason's Jacob Sullum explains. "The recoil repositions the trigger, and continuing to exert forward pressure on the barrel makes the rifle fire repeatedly." As Reason's Christian Britschgi explained in March, this is probably why the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has said multiple times that federal restrictions on machine guns do not cover bump stocks. The Obama administration affirmed the legality of bump stocks on three different occasions: once in 2010, again in 2012, and once more in 2013. I suppose looking at what the proposed rule actually says might be worth a try. https://www.federalregister.gov/documents/2018/03/29/2018-06292/bump-stock-type-devices [Excerpt - proposed rule of 29 March 2018] The Department disagrees. The relevant statutory question is whether a particular device causes a firearm to “shoot * * * automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. 5845(b). Bump firing and other techniques for increasing the rate of fire do not satisfy this definition because they do not produce an automatic firing sequence with a single pull of the trigger. Instead, bump firing without an assistive device requires the shooter to exert pressure with the trigger finger to re-engage the trigger for each round fired. The bump-stock-type devices described above, however, satisfy the definition. ATF's classification decisions between 2008 and 2017 did not reflect the best interpretation of the term “automatically” as used in the definition of “machinegun,” because those decisions focused on the lack of mechanical parts like internal springs in the bump-stock-type devices at issue. The bump-stock-type devices at issue in those rulings, however, utilized the recoil of the firearm itself to maintain an automatic firing sequence initiated by a single pull of the trigger. As with the Akins Accelerator, the bump-stock-type devices at issue cause the trigger to “bump” into the finger, so that the shooter need not pull the trigger repeatedly to expel ammunition. As stated above, ATF previously focused on the trigger itself to interpret “single function of the trigger,” but adopted a better legal and practical interpretation of “function” to encompass the shooter's activation of the trigger by, as in the case of the Akins Accelerator and other bump-stock-type devices, a single pull that causes the weapon to shoot until the ammunition is exhausted or the pressure on the trigger is removed. Because these bump-stock-type devices allow multiple rounds to be fired when the shooter maintains pressure on the extension ledge of the device, ATF has determined that bump-stock-type devices are machinegun conversion devices, and therefore qualify as machineguns under the GCA and the NFA. See infra Part V. Commenters also argued that banning bump-stock-type devices will not significantly impact public safety. Again, the Department disagrees. The shooting in Las Vegas on October 1, 2017, highlighted the destructive capacity of firearms equipped with bump-stock-type devices and the carnage they can inflict. The shooting also made many individuals aware that these devices exist—potentially including persons with criminal or terrorist intentions—and made their potential to threaten public safety obvious. The proposed regulation aims to ameliorate that threat. Some commenters objected to any regulation of bump-stock-type devices because, they argued, it will decrease innovation in the firearms accessories market and result in the loss of manufacturing and associated jobs. They suggested that the Federal Government should prevent the misuse of firearms through other means, such as by enforcing existing firearms laws, preventing mentally ill persons from acquiring weapons, and enacting more stringent criminal penalties for those who commit crimes with bump-stock-type devices. However, an important step in the enforcement of existing firearms laws is ensuring that ATF's regulations correctly interpret those laws. This proposed rulemaking will have an economic impact, see infra Part VI, but the impact will not be widespread, and the costs associated with this rule are easily exceeded by the benefits it will provide for public safety. The Department also disagrees that the proposed rulemaking will decrease innovation in the firearms accessories market. The fact that more than 65,000 industry professionals from the United States and foreign countries attend the annual Shooting, Hunting and Outdoor Trade (SHOT) Show, where many new and improved firearms accessories are introduced, is a clear market signal that there is strong demand for innovation and development of new shooting accessories irrespective of whether the bump-stock-type devices described in this rulemaking are prohibited. V. Proposed Rule The regulations in 27 CFR part 479 contain the procedural and substantive requirements relative to the importation, manufacturing, making, exportation, identification and registration of, and dealing in machineguns, destructive devices, and certain other firearms and weapons under the NFA. Currently, the regulatory definition of “machine gun” in 27 CFR 479.11 matches the statutory definition of “machinegun” in the NFA quoted in Part I, above. The definition includes the terms “single function of the trigger” and “automatically,” but those terms are not expressly defined in the statutory text. Those terms are best interpreted, however, to encompass firearms equipped with bump-stock-type devices. As discussed above, bump-stock-type devices like the Akins Accelerator and other devices that operate to mimic automatic fire when added to semiautomatic rifles present the same risk to public safety that Congress has already deemed unacceptable by enacting and amending the GCA (18 U.S.C. 922(o)). Therefore, the Department proposes to exercise its delegated authority to clarify its interpretations of the statutory terms “single function of the trigger,” “automatically,” and “machinegun.” Specifically, the Department proposes to amend 27 CFR 479.11 by defining the term “single function of the trigger” to mean “single pull of the trigger.” The Department further proposes to amend these regulations by defining the term “automatically” to mean “as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single pull of the trigger.” Finally, the Department proposes to clarify that the definition of a “machinegun” includes a device that allows semiautomatic firearms to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter (commonly known as bump-stock-type devices). The interpretation of the phrase “single function of the trigger” to mean “single pull of the trigger” reflects ATF's position since 2006, and it is the best interpretation of the statute. The Supreme Court in Staples v. United States, 511 U.S. 600 (1994), indicated that a machinegun under the NFA “fires repeatedly with a single pull of the trigger.” Id. at 602 n.1. This interpretation is also consistent with how the phrase “single function of the trigger” was understood at the time of the NFA's enactment in 1934. For instance, in a congressional hearing leading up to the NFA's enactment, the National Rifle Association's then-president testified that a gun “which is capable of firing more than one shot by a single pull of the trigger, a single function of the trigger, is properly regarded, in my opinion, as a machine gun.” National Firearms Act: Hearings Before the Committee on Ways and Means, H.R. 9066, 73rd Cong., 2nd Sess., at 40 (1934). Furthermore, and as noted above, the Eleventh Circuit concluded that ATF's interpretation of “single function of the trigger” to mean “single pull of the trigger” “is consonant with the statute and its legislative history.” Akins v. United States, 312 F. App'x 197, 200 (11th Cir.). No other court has held otherwise.[8] Interpreting the term “automatically” to mean “as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single pull of the trigger” also reflects the ordinary meaning of that term at the time of the NFA's enactment in 1934. The word “automatically” is the adverbial form of “automatic,” meaning “[h]aving a self-acting or self-regulating mechanism that performs a required act at a predetermined point in an operation[.]” Webster's New International Dictionary 187 (2d ed. 1934); see also 1 Oxford English Dictionary 574 (1933) (defining “Automatic” as “[s]elf-acting under conditions fixed for it, going of itself”). Relying on these definitions, the United States Court of Appeals for the Seventh Circuit accordingly interpreted the term “automatically” as used in the NFA as “delineat[ing] how the discharge of multiple rounds from a weapon occurs: as the result of a self-acting mechanism” “set in motion by a single function of the trigger and . . . accomplished without manual reloading.” United States v. Olofson, 563 F.3d 652, 658 (7th Cir. 2009). So long as the firearm is capable of producing multiple rounds with a single pull of the trigger for some period of time, the firearm shoots “automatically” irrespective of why the firing sequence ultimately ends. Id. (“[T]he reason a weapon ceased firing is not a matter with which §?5845(b) is concerned.”). Olofson thus requires only that the weapon shoot multiple rounds with a single function of the trigger “as the result of a self-acting mechanism,” not that the self-acting mechanism produce the firing sequence without any additional action by the shooter. This definition accordingly requires that the self-acting or self-regulating mechanism must perform an act that is primarily responsible for causing the weapon to shoot more than one shot. Finally, it is reasonable to conclude, based on these interpretations, that the term “machinegun” includes a device that allows a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter. When a shooter who has affixed a bump-stock-type device to a semiautomatic firearm pulls the trigger, that movement initiates a firing sequence that produces more than one shot. And that firing sequence is “automatic” because the device harnesses the firearm's recoil energy in a continuous back-and-forth cycle that allows the shooter to attain continuous firing after a single pull of the trigger, so long as the trigger finger remains stationary on the device's ledge (as designed). Accordingly, these devices are included under the definition of machinegun and, therefore, come within the purview of the NFA. The GCA and its implementing regulations in 27 CFR part 478 incorporate the NFA's definition of machinegun. Accordingly, this proposed rule makes the same amendments to the definitions of “single function of the trigger,” “automatically,” and “machine gun” in 27 CFR 478.11.
There are a number of YouTube videos which illustrate how you can get the same effect using your belt loop. Now what? Ban belt loops? Pretty soon it will dawn on liberals that the only solution is to ban all semi-autos.
Ban the possession or use of any weapon which has been modified to permit it to operate in the manner of a fully automatic weapon. Ban the manufacture or sale of parts intended to be used to modify a legal firearm to operate in the manner of a fully automatic weapon. Or people can just ignore the (prospective) rule if and when it becomes a rule, and hope their trial and/or appellate court finds the ban to be unlawful or unconstitutional. Defendants can always argue that rules of the Obama administration are binding on the Trump administration and cannot be changed. Reason thinks that is an argument.
That's my point. There is no modification to the semi-automatic weapon itself. Hook your finger in your belt loop and you end up with a full-auto effect. Watch a video.
Your point is limited to the semantics of how the government may prohibit bump stocks or anything enabling fire more rapid than the original design. Let's try, "Any person, enabling or using a firearm to achieve or emulate the rapid fire mode of a fully automatic firearm, shall be imprisoned for not less than 10 years." Definition: "Rapid fire shall be firing at a higher rate than the original design specifications." There is no constitutional right to keep and bear bump stocks. Government agencies are created by Congress and empowered to create regulations having the force of law. If the government chooses to regulate bump stocks, it can issue a regulation to do so. If Congress does not like the regulation, it can enact a statute to override it. A regulation can be challenged in court. It may be difficult to get a majority of any court to find a right to bump stocks, or anything enabling full-auto effect.
Should the Fed govt choose to pass a regulation against it, the video might be retitled How to earn oneself 10 years in prison. What is the point? There is no protection provided by the Constitution. The ability to aim is doubtful. Finding majority support in Congress or in a court is greatly doubtful. While one may claim a God-given right, getting God to honor a witness subpoena is problematic, and getting Him to so testify would be even more problematic. The RKBA of the Constitution is very clearly descended from the English Common Law right held by the colonists, and so held by the U.S. Supreme Court. One may ignore Heller if one chooses, but that does not make this precedent setting SCOTUS opinion disappear. It remains in full force. Heller at 620: Heller at 624-25: We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. Heller at 626: Heller at 627-28: Heller at 593-95: And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833). There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause. Heller at 626-28: We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874). It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Miller also said the second amendment protects weapons which have a " a "reasonable relation to the preservation or efficiency of a well regulated militia". Certainly the full-auto M4 qualifies.
Certainly the full-auto M4 qualifies. As you well know, a full-auto M-4 qualifies for years in prison. You are still stuck on your repeated, wilfull, knowing and wrongheaded misinterpretation of Miller. Heller at 623: It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. You may repeatedly insist on being as wrongheaded as you choose, and it will not change the controlling authority of Heller. Heller at 624-25:
On March 30, 1939, the Supreme Court heard the case. Attorneys for the United States argued four points: 1.The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury. 2.The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce. 3.The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia. 4.The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization.
3.The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia. What matters is what the Court decided, not what anybody argued. What really matters is the most recent holding the the U.S. Supreme Court which is on point. See Heller and McDonald. Heller at 625: - - - - - - - - - -
Correct. Attorneys for the United States argued that the Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia. And the Miller court agreed.
[misterwhite #40 quoting nolu chan #32] What matters is what the Court decided, not what anybody argued. You left off half of it. [nolu chan actual #32] What really matters is the most recent holding [of] the U.S. Supreme Court which is on point. See Heller and McDonald. [misterwhite #40] Correct. Attorneys for the United States argued that the Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia. What the attorneys may, or may not, have argued does not make a shit. Nothing the attorneys argue is even evidence, much less an opinion of the court based upon evidence. Even if your "wrong headed" interpretation of Miller were not just legally ignorant, the 2008 and 2010 holdings of Heller and McDonald are current precedent and strike down anything in the 1939 Miller opinion which is in conflict with the more recent precedents. Your observation in #39 that "The Heller court made it up," is just your typical bullshit, and changes nothing. Heller and McDonald are the law, and your rejected and "wrong headed" reading of Miller is not.
Meaning you'll shut up about Roe v Wade because it is the law?
Roe is the law. I have never made believe otherwise. You are bulbbering absolute bullshit about Miller and denying that Heller and McDonald are the law. The brief for the government in Miller, filed with first named attorney being Robert H. Jackson, Solicitor General, cited a list of cases and then stated:
Oh, please. I never denied they were the law. I said I disagreed with the decisions and stated why. Quite succinctly, I might add. "The brief for the government in Miller ..." Brief schmeef. The prosecution is free to say what it wants. But the NFA did not ban those weapons. It merely taxed them. If Mr. Miller had a machine gun with a tax stamp he would never have been arrested.
Brief schmeef. The prosecution is free to say what it wants. Remember your brain dead bullshit. I will remind you of what you said as many times as your short term memory loss requires. [misterwhite #40] Attorneys for the United States argued that the Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia. [misterwhite #42] Meaning, citizens were expected to show up with military weapons. In today's world, that would be a full-auto M4. Of course, the Second Amendment does not protect military-type weapons appropriate for use in an organized militia. It protects weapons in common use by ordinary citizens in the UNORGANIZED militia. [misterwhite #51] In 1931, Mr. Brown (a habitual criminal) was caught carrying a blackjack in violation of Michigan state law. He claimed second amendment protection. You have an unerring aim for the capillaries. You really think that paragraph was about Brown? No, you just like to be an asshole when you serve up the same bullshit argument over and over, and it get exposed as bullshit. Where did your creative account of the argument in Miller come from? The indictment? The brief for the government, filed with first named attorney being Robert H. Jackson, Solicitor General, cited a list of cases and then stated: https://www.law.cornell.edu/uscode/text/10/246 (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. (Aug. 10, 1956, ch. 1041, 70A Stat. 14, §?311; Pub. L. 85–861, §1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103–160, div. A, title V, §524(a), Nov. 30, 1993, 107 Stat. 1656; renumbered §246, Pub. L. 114–328, div. A, title XII, §1241(a)(2), Dec. 23, 2016, 130 Stat. 2497.) Richard Hamblen tried your argument in court. His convictions were upheld. https://caselaw.findlaw.com/us-6th-circuit/1498418.html United States Court of Appeals,Sixth Circuit. Richard HAMBLEN, Petitioner-Appellant, No. 09-5025. [...] In 2005, Hamblen was charged in a two-count indictment for unlawfully possessing machine guns, in violation of 18 U.S.C. § 922(o), and possessing unregistered firearms, in violation of 26 U.S.C. § 5861(d). After trial, he was convicted on both counts of the indictment. The district court denied Hamblen's motion for judgment of acquittal, which was based on the allegedly unconstitutional infringement of Hamblen's Second Amendment rights that he claimed would result from his conviction under 18 U.S.C. § 922(o). In 2006, Hamblen was sentenced to a term of imprisonment of fifteen months for each count, to run concurrently, followed by a two-year period of supervised release. Hamblen appealed his convictions and two concurrent sentences. United States v. Hamblen, 239 Fed.Appx. 130 (6th Cir.), cert. denied, 552 U.S. 992, 128 S.Ct. 523, 169 L.Ed.2d 343 (2007). Holding that the statutory prohibition against possessing machine guns did not violate the Second Amendment right to bear arms as applied to Hamblen, that the statutory prohibition against possessing machine guns was not unconstitutionally vague as applied, and that the statutory prohibition against possessing unregistered firearms was not unconstitutional as applied, this court affirmed the judgment of the district court. Id. at 134-37. In 2008, Hamblen filed a 28 U.S.C. § 2255 motion to vacate his sentence. The district court denied the motion and issued a certificate of appealability on Hamblen's Second Amendment claim. [...] DISCUSSION The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting the scope of the Second Amendment, we are guided by District of Columbia v. Heller, --- U.S. ----, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). We note, as a preliminary matter, that Hamblen's possession of nine unregistered machine guns was not only outside the scope of his duties as a member of the State Guard, but also directly violated State Guard policy. Therefore, this case does not present a novel issue of law regarding the Second Amendment's prefatory clause. Hamblen's challenge to his conviction for unlawful possession of unregistered machine guns has been directly foreclosed by the Supreme Court, which specifically instructed in Heller that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” Id. at 2815-16. Moreover, the Heller Court expressly rejected Hamblen's reading of United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), when it opined that it would be a “startling” interpretation of precedent to suggest that restrictions on machine guns, set forth in the National Firearms Act, might be unconstitutional. See Heller, 128 S.Ct. at 2815. Thus, whatever the individual right to keep and bear arms might entail, it does not authorize an unlicensed individual to possess unregistered machine guns for personal use. AFFIRMED.
Of course the Heller court rejected it. I mean, the Miller court said that second amendment only protected the weapons used by a Militia. Surely the Founding Fathers were joking.
Consult your #58 to see yourself stating that Heller ingored Miller. Of course, the Miller court said no such bullshit as you ascribe to it, but if it reassures you to keep stating your false claim, by all means continue. Richard Hamblen enlisted in the Tennessee State Guard. He obtained his own full-auto machine guns and stood ready to use them for Guard and Country. His 2nd Amendment argument failed and he was convicted for unlawful possession and sentenced to prison. It's a sad story. In Hamblen v. United States, 3:08-1034, TNMD (8 Dec 2008), the court found, 128 S.Ct. at 2815-16. The conclusion that the Heller Court did not extend Second Amendment protection to machine guns, in particular, is supported by the lower federal courts that have addressed the issue. In United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008), the Eighth Circuit held that the defendant's possession of a machine gun was not protected by the Second Amendment under Heller: "Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use." In United States v. Gilbert, 286 Fed. Appx. 383, 2008 WL 2740453 (9th Cir. July 15, 2008), the Ninth Circuit approved a jury instruction that an individual does not have a Second Amendment right to possess a machine gun or a short-barreled rifle. The court explained that under Heller, "individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did . . ." 286 Fed. Appx. at 386.2 The Petitioner argues that the limitations placed on the Second Amendment right to bear arms by the majority opinion in Heller can not square with the Court's earlier decision in Miller. Whatever merit there is to that argument, however, this Court is bound by the Heller opinion as written. As in Hamblen, whatever merit there is to your Miller argument, today's courts are bound by the Heller opinion as written. Richard "Dick" Hamblen got himself some full-auto machine guns. Dick went to prison. Don't be a Dick. Your supplemental stream of bullshit is noted and taken under advisement.
There are no replies to Comment # 65. End Trace Mode for Comment # 65.
Top • Page Up • Full Thread • Page Down • Bottom/Latest In the following months, Trump continued signaling his intention to make bump stocks illegal. "So we're knocking out bump stocks," the president said in October. "And we are in the final couple of weeks."
Numerous persons commented that bump-stock-type devices do not fall under the statutory definition of “machinegun because, when attached, they do not change the mechanical functioning of a semiautomatic firearm, and still require a separate trigger pull for each fired round.” They noted that bump firing is a technique, and pointed to many other ways in which a shooter Start Printed Page 13447can increase a firearm's rate of fire without using a bump-stock-type device.
#4. To: nolu chan (#3)
#7. To: misterwhite (#4)
There are a number of YouTube videos which illustrate how you can get the same effect using your belt loop. Now what? Ban belt loops?
#8. To: nolu chan (#7)
Ban the manufacture or sale of parts intended to be used to modify a legal firearm to operate in the manner of a fully automatic weapon.
#9. To: misterwhite (#8)
That's my point. There is no modification to the semi-automatic weapon itself. Hook your finger in your belt loop and you end up with a full-auto effect. Watch a video.
#11. To: nolu chan (#9)
(Edited)
#12. To: misterwhite (#11)
How to bump firea semi-automatic rifle.
We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ”
“In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
#20. To: nolu chan (#12)
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”
#23. To: misterwhite (#20)
Miller also said the second amendment protects weapons which have a " a "reasonable relation to the preservation or efficiency of a well regulated militia".
Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.
#26. To: nolu chan (#23)
#32. To: misterwhite (#26)
On March 30, 1939, the Supreme Court heard the case. Attorneys for the United States argued four points: ...
We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.
#40. To: nolu chan (#32)
What matters is what the Court decided, not what anybody argued.
#43. To: misterwhite (#40)
What matters is what the Court decided, not what anybody argued.
#46. To: nolu chan (#43)
Heller and McDonald are the law,
#49. To: misterwhite (#46)
Meaning you'll shut up about Roe v Wade because it is the law?
That the foregoing cases conclusively establish that the Second Amendment has relation only to the right of the people to keep and bear arms only for lawful purposes and does not conceivably relate to weapons of the type referred to in the National Firearms Act cannot be doubted. Sawed-off shotguns, sawed off rifles and machine guns are clearly weapons which can have no legitimate use in the hands of private citizens. On the contrary they frequently constitute the arsenal of the "public enemy" and the "gangster" and are not weapons of the character which, as was said in People v. Brown, 253 Mich. 537, 542, are recognized by the common opinion of good citizens as proper for defence.
#50. To: nolu chan (#49)
"... denying that Heller and McDonald are the law."
#53. To: misterwhite (#50)
"The brief for the government in Miller ..."
That the foregoing cases conclusively establish that the Second Amendment has relation only to the right of the people to keep and bear arms only for lawful purposes and does not conceivably relate to weapons of the type referred to in the National Firearms Act cannot be doubted. Sawed-off shotguns, sawed off rifles and machine guns are clearly weapons which can have no legitimate use in the hands of private citizens. On the contrary they frequently constitute the arsenal of the "public enemy" and the "gangster" and are not weapons of the character which, as was said in People v. Brown, 253 Mich. 537, 542, are recognized by the common opinion of good citizens as proper for defence.
10 U.S. Code § 246 - Militia: composition and classes
v.
UNITED STATES of America, Respondent-Appellee.
Decided: December 30, 2009 Petitioner Richard Hamblen appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate, claiming that his convictions for possession of machine guns, in violation of 18 U.S.C. § 922(o), and possession of unregistered firearms, in violation of 26 U.S.C. § 5861(d), are unconstitutional. Because the Second Amendment does not confer an unrestricted individual right to keep and bear machine guns, we affirm the district court's judgment and deny Hamblen's petition for relief.
#59. To: nolu chan (#53)
Moreover, the Heller Court expressly rejected Hamblen's reading of United States v. Miller ... when it opined that it would be a “startling” interpretation of precedent to suggest that restrictions on machine guns, set forth in the National Firearms Act, might be unconstitutional.
#65. To: misterwhite (#59)
Of course the Heller court rejected it. I mean, the Miller court said that second amendment only protected the weapons used by a Militia.
Thus, the Heller Court made clear that the Second Amendment right it recognized did not include possession of weapons by certain categories of individuals, or possession of weapons in certain places, or possession of certain types of weapons. The Court specifically discussed the types of weapons that were not protected by the Second Amendment in distinguishing the Miller case:
Read in isolation, Miller's phrase 'part of ordinary military equipment' could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. . . . We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. . . .
Replies to Comment # 65.
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