Ok, i thought ti was You that had gotten everything...

I've followed the threads on subguns and while I don't remember every argument against these cases, these two stick out in my mind:

1. Heller said that "dangerous and unusual" weapons don't have the same 2nd Amendment protections that other guns have.  Heller didn't flesh this language out, so some good cases from our side can chip away at it, while some bad cases can cement it in place and make it something gun rights cases will have to deal with going forward.  The concern is that machine gun cases this early in the game is asking for trouble.

2. That Heller didn't set a level of review for the 2nd Amendment.  This determines how far the government needs to go trying to accommodate our rights before they can be infringed.  The strongest is Strict Scrutiny which would require the basically government to take every step possible before infringing.  Other choices are Intermediate Scrutiny or Rational Basis (both of these would be bad for our gun rights).  For instance, suppose the government wanted to prevent shootings at playgrounds.  If Strict Scrutiny applied, they might be limited to preventing dangerous or unlawful use of firearms at playground.  But if the courts determine that Rational Basis applies, then they might be able to say that all guns are banned by everyone within 1000 feed of any playground.  This is just a fictional example off the top of my head, so don't get too caught up in the specifics. But it is the type of result we can expect from the courts settling on a level of review too low.  This is why some states have amended their constitutions to set the level of review at Strict Scrutiny.  

Here's something I found on Google that touches on this: (item 4 in the list)
http://johnpierceesq.com/?p=897

As for having them articulating a strategy, that's fine - but this isn't a binary choice.  If people on subguns or other forums or whatever can't articulate a specific strategy, that alone isn't enough to mean that this strategy can't be questioned.  Suppose your friend offered to make you dinner and it was something you were allergic to.  You tell them that's not going to work, and they ask you for ideas.  Not having a good idea of for dinner doesn't mean that you should go ahead and eat the food you're allergic to.  The point being, it shouldn't matter whether anyone else has a better idea when we're discussing the merits of this idea.

You're fighting ghosts.  There have been very few examples of people saying they don't want Hughes or NFA repealed because it would hurt them financially.  And some of those were shills just trying to rile people up.  The criticisms I've seen have articulated their concerns having nothing to do with money.  I just posted above why getting this wrong can hurt every single gun owner in the country, whether they own or even like machine guns or not.  I think trying to convince yourself and others that the people against this are millionaire machine gun collectors looking out for their financial interests is just a distraction, not based in truth, and doesn't advance the discussion.

Interesting, found some other decisions with similar verbiage. All of them have to do wtih real property where the deed was conveyed to "ABC Trust" instead of "Bob Smith, trustee of ABC Trust" which is how it should have been.

I'm no lawyer, so I'm in over my head, but this just boggles my mind. How can a trust get an EIN, file tax returns, have deposit accounts, etc., all without being recognized as a separate entity? If it's not then why deos the NFA accept any application under a trust name? All of my stamps have my trust as the transferee...

generally speaking, the only other reasons proffered to not pursue these cases all fit in the category of "don't fight back, you might make the government mad"

fuck that shit, I have no use for people who place caution above a very justified groundswell of motherfucking freedom that is almost 30 years too late

even if it doesn't work - attack, attack now and always

the anti gun people attack our rights at every turn, fuck defense, it's time to drive the MERICA ball right up the endzone of the cowards

The simple way to look at "Machine Gun" that in several places heller did address is one that the multi-fire capability of a Firearm is a modernization of that item, & is thusly protected. Secondly the intent was the use of the insividuals own weapons, or borrowed, that would give the malitia the best arms "so as to create an effective fighting force" to protect men, state & country, against all threats foreign & domestic & especially from the Govermnment itself, as annotated in the inclusion of the history of the penning, as well as the wording, of its penning. Giving only Government these best suited weapons is in direct contradiction of that intent.

The logic of banning something in a "Sensitive Area" as Heller stated, applies not to the circumstance of a place, but a mindset. While the mindset centers around a structure or place, the context of the mindset is only valid until those that have no moral restriction to violence in those areas act out violent behavior. Once that occurs it falls back to the intent of the 2A to preserve the context of liberty as a state of mind, in those areas.

I'm going to break this up in quotes a bit. It'll make my reply a little easier to read but will make further quoting a little tedious. Sorry about that.



The "early in the game" statement is precisely what I was referring to in my post.  If someone can't articulate why it's early or when the right time is, then this is just a dismissal out of hand.  I haven't followed subguns really, but I've read several threads in a somewhat random order over the weeks.  They all seem to do this.



Scrutiny level simply has to be set at one point or another. It's like death and taxes if the status quo is to be changed.  While you've given a good explanation of what must be done, this argument isn't really an argument; rather, it's a statement of fact without a real point.  As a reader, I'm left the impression that any setting of scrutiny is bad based on that statement. The more cynical side of me simply sees fear of change



I agree that there is no reason the Hollis strategy can't be questioned. I believe that questioning at this point is beneficial.  When that questioning becomes an attempt to obstruct and is used as a tactic to undermine the overarching goal, however, it's not really questioning anymore.  Using your dinner analogy we'd all just starve to death, or, in this case, be stuck with what is at best an artificial monetary hurdle and at worst a direct infringement upon a right guaranteed us in the Constitution.  Question away, but if someone else wants to starve because he can't decide what food he wants to eat I'm not obligated to join in the hunger strike of indecisiveness.

Too late.

Right back at you :)



If courts haven't decided whether they need to examine 2A cases with Strict Scrutiny, Intermediate Scrutiny, or Rational Basis, then when a machine gun case comes before a judge it might be really tempting to justify keeping the existing ban using Rational Basis and saying "Sorry, they're banned because of public safety. Not much you can do about it."  Choosing Rational Basis would actually make the judge's job easier because the lawsuit deals with machine guns.  I doubt there are many Federal judges who want their name attached to the case that [bradyspeak]flooded the streets with machine guns[/bradyspeak].  So at the very least, I think firmly establishing Strict Scrutiny should come well before we start lobbing hot potatoes at the courts.  IMHO.

But there's still the issue of insisting that trusts can manufacture machine guns despite the trustees not being able to possess them.  As I mentioned above, and if I remember correctly as ATF mentions in their denial letters (anyone got a link to one?), trusts and trustees are not separate.  So even if ATF decided that trusts could manufacture machine guns (as opposed to an examiner screwing up), the human trustees still can't legally possess them without changing the law.



This sounds like other things I've read here, which can be summarized as "Might as well do something now because waiting sucks." But you really want to present the best case possible, and not "I want machine guns because Second Amendment."  That's basically the opposite of a sympathetic plaintiff.  Ideally it would be something along the lines of a transgender minority widowed grandmother war hero ex-teacher who's just trying to stop the drug dealers from beating her and stealing her medication, but the cops keep confiscating her guns and denying her a carry permit.  

With the wrong level of scrutiny, federal gun control and gun control in every state (without a Strict Scritiny provision in their constitution anyway) suddenly becomes as simple as "How can we advance public safety, gun rights be damned?" as opposed to "How can we advance public safety while still going out of our way to ensure that we don't infringe on anyone's gun rights unless it absolutely can't be avoided?"  So cases that incentivize judges to choose the lowest level of scrutiny might not be beneficial to our long term goals.  



Anyone determined (or stalky) enough can view the posts I've made under this username on the various gun forums over the years and see that I'm a genuine gun enthusiast, and I'd be thrilled to see the NFA (among others) repealed.  There are lots of expensive toys I'd like that I cannot afford.  I'd be thrilled - thrilled - to see the NFA or Hughes go away.  But I wouldn't be thrilled to see a massive blow dealt to our gun rights because the wrong strategy was employed at the wrong time.  So I think it's important to ask some tough questions.  If the strategy is so foolproof, then proponents should be able to lazily swat any concerns down on the merits, all day long.  But looking through the threads on this topic, what usually happens is the messenger is attacked and the concerns are ignored.  Thankfully I haven't experienced that yet so kudos to you and the others here for engaging in meaningful dialog.

Using my dinner analogy (which isn't terribly ideal to take any further, but here goes..), the choice isn't between starving and eating food that will cause anaphylaxis.  If the only choice presented isn't a good one, then the only real option is finding another choice.  In the food analogy, that would mean not eating the food that could kill you because it's the only thing around.  Regarding gun rights, it means not pushing a case that could damage or even destroy gun rights (having nothing to do with machine guns btw) just because there are no other cases being promoted on AR15.com and the critics haven't articulated another strategy that should be pursued in its place, right now, today.  

There are gun rights groups working through mundane, strategic cases every day of the week in an effort to advance gun rights.  They're not crowd-funding them on this forum, and they're not giving anyone hope of cheap machine guns.  So yes, I can absolutely see the draw.  Sometimes it's hard to figure out if a lawsuit has merit, so opinions from people who aren't involved and are familiar with the subject matter should be welcomed.  Instead, people try to assign baseless ulterior motives to them.  People even questioned Alan Gura's motives when this link popped up:
http://www.reddit.com/r/guns/comments/2lhm0o/the_attorney_who_argued_the_heller_decision_alan/

Sometimes a cigar is just a cigar.

But here we are, with what passes Constitutional muster for the 2nd Amendment today:

Some law-abiding people have a right to government-approved guns in their home and only in their home, pending government approval, after a substantial delay, and subject to registration.  Void where prohibited.

There are a lot of really boring baby steps between that and "I have a right to a machine gun because Second Amendment."  I'm obviously not part of any strategy sessions, but I'd guess that things higher on the list that could help someday to overturn Hughes or the NFA would be things like attacking the Sporting Purposes test, 922(r), and the like (despite them being gifts to the American gun industry).  But the logical next steps probably aren't even be that sexy.  

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Alan Gura has always considered machine guns unattainable.



 

20 years ago I considered concealed carry in almost every state unattainable. I thought for sure the AWB sunset was unattainable, as did many people. Most people, including attorneys, considered the SCOTUS ruling the 2nd Amendment an individual right to be unattainable. Yet here we are.

Things have a way of working out to be very surprising now and then, even more often when there are a lot of people dedicated to expanding freedoms for everyone in the nation. I hope that this case as a means to overturn 922(o) and the NFA in general turns out to surprise and delight Alan Gura.

And why is that?   He's easily the most accomplished 2A rights lawyer ever.  Two landmark United States Supreme Court victories under his belt and countless and other victories.  He's a guy who pressed Heller when certain prominent gun right's organizations tried to derail it  thinking it wasn't the right time.  

So why is that someone like Alan Gura looks at this issue and saw it as tilting at windmills?   Has he softened his view in light of some salient fact?

Two of the three things you once thought unattainable were brought about through the legislative processes.  The third through a guy who says this a pipe dream.  

Don't get me wrong, I hope this suit prevails.  But color me skeptical as to that likelihood.

Alan doesn't see the true meaning of the 2nd Amendment as a viable argument in court.



 

That's a fairly bold statement about an attorney who pressed Heller to the highest court in the land despite opposition from our venerable 2A rights organizations.  Perhaps he accurately recognizes the limits of a court's tolerance for recognizing 2A rights.  We don't even have a set standard from the high court on the level of scrutiny firearms laws are to be subjected to and this issue sure isn't going to be a friendly vehicle for getting strict scrutiny.

This.  The best you could hope for is reopening the registry for post-86 guns due to a technicality because the government requires a tax to be paid but prohibits collection of that tax.  Even the conservative wing of the USSC is anti-machinegun.  Had Heller not specifically excluded them, they would have ruled against us to prevent the floodgates from opening.

Which is still entirely based on nothing but hysteria. Two freaking crimes with registered MGs. Two. Clearly they held back some sort of impending crime wave from occurring.

I wholeheartedly agree that it is hysteria.  But hysteria is often what drives the ignorant.  And this is historically an area that judges tend to be ignorant.  The failure of the media to distinguish between fully automatic weapons and the occasional semi-automatic rifle used in a crime means that the concept is as frightening as the boogey-man for the uninformed.

If this effort fails the above will be why.  That being said, the arguments laid out in the complaints are so strong I have hope of success.

 

Well, if we win some POTUS elections for a change, we can nominate younger replacement justices with perhaps a less FUDD-ish mindset.

 DING DINGDINGDINGDINGDINGDING  WINNAH!!!!!!!!!!!!!!!

Not the last time I spoke with him, or when I spoke with Gottlieb a few months ago.. What Gura Said was that MG's would be a Long Road...I don t know why people associate MG's with Heller...it was never a part of the case

ETA: This thread puts me in a good mood every single time I see it!

Machine guns were part of the SCOTUS oral argument.

Thanks for keeping us updated.

Every day since you started this, I've been hopeful you are successful.

Thanks for making the effort, even if it's not.  It was necessary, and you have my admiration for being the one who had the nuts to pick up the ball and run with it.

How many extensions are usually granted to the government in a federal case?
I guess the question I am asking is how often are request for extension denied?

This.  You have provided hope, where previously, there was none.

Mr. Gura did an outstanding job, but some of the scholarship that helped him came from Internet discussions twenty years ago.  Names like Clayton Cramer, David T. Hardy, David E. Young, etc... hashed out legal strategies for what needed to be done to set the stage for such a legal decision, and did a lot of the research that supported it.  So while I respect his work, I don't consider it a solo effort.  But I'm biased, I was in some of those same discussions, and can see where points I raised or even research I did was later built on by Clayton and David Young and others.



 

I'll note that compared to the whole, my contributions were minor...  Most significant research I did was around how the phrase "well-regulated" was used at the time the Bill of Rights was being debated, I dug through the annals of the first couple of Congresses and found several examples of the phrase being used where it clearly did not refer to "government controlled".




 
 

Which arguments do you think are the strongest?

double tap

Thursday morning bump.
TS

Justice Ginsburg was on the right track here...  IMHO, Gura missed an opportunity to point out that MGs are not in common use solely because of the Hughes Amendment.   It is not because the free market has spoken and nobody wants select-fire rifles or even actual belt-fed MGs.  And that's really the point of these cases, isn't it?

And he additionally screwed the pooch by failing to point out that undetectable plastic handguns are a fantasy strawman argument of the anti-2nd Amendment crowd. No such thing exists.

I have confidence in my friend from Mississippi and I always enjoy the updates. Thank you sir.

We still keep some semblance of our Republic if we continue to push back, even in battles that seem impossible. When that spirt is gone so goes the Republic Franklin dared us to keep. Doing the impossible is what we need, and low and behold sometimes we even pull it off.

For we hold the line by giving what we can (time, money or expertise) "Once more unto the breach, dear friends, once more ....."

It seems like he shit the bed on that.

He was playing chess.  You would lose at Checkers. Had he made your argument the decision could easily have been 5-4 the other way.  

He was keeping his issue focused.  I can't fault him for that.

This is exactly what I was told six years ago when I listened or read the proceedings from the oral arguments and was upset Gura didn't "go for broke."  I understand that now but like many 2nd Amendment supporters and firearms enthusiasts it was hard to contain myself; it was the first time in a long time there seemed to be a chance for a pro-2nd Amendment ruling from the SC.  Of course what happened was good and has led to a lot of good.  Hopefully this lawsuit continues that positive trend.

It's just highly disappointing that our legal realities are based around false Hollywood movie ideas that have been put in the heads of uninformed judges. The Glock 7 doesn't exist and registered MGs aren't even a blip on the radar for being used to commit crimes.

"Gun control" is not about preventing crime. It has never been about preventing crime.