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1/25/2018 7:38:29 AM
Posted: 8/9/2002 4:18:51 AM EST
National Rifle Association, Plaintiff, Olympic Arms, a Washington Corporation, et al., Plaintiffs-Appellants, v. Bradley A. Buckles, Director, Bureau of Alcohol, Tobacco and Firearms; United States of America, Defendants-Appellees. 6th Circuit Ct case about the assault weapons ban. "The latter question need not long detain us long. The First Amendment claim was not included in the complaint or in the amended complaint filed in this action. Indeed, the plaintiffs' only mention of a free speech argument was made in passing in their brief in opposition to the defendants' motion for summary judgment. For this reason, the district court declined to rule on the issue, characterizing it as "underdeveloped." As a general rule, we would likewise decline to review the issue, there being no decision to sustain or reject on appeal. See, e.g., Taft Broadcasting Co. v. United States, 929 F.2d 240, 243-44 (6th Cir. 1991). We have taken exception to this general rule, however, "where the errors or omissions are obvious, unfair or undermine the integrity or public confidence of judicial proceedings." Brown v. Crowe, 963 F.2d 895 (6th Cir. 1992). That cannot be said to be the case here, especially in view of the fact that the "prior restraint" cases cited in the plaintiffs' appellate briefs simply are not applicable to the facts of this case. Hence, even if the issue had been squarely presented, we could not find in the plaintiffs' favor based on the authority submitted on appeal." That means this most liberal of the circuits (even more so than the 9th) think this issue is a winner. Somebody needs to sue on it ASAP.
Link Posted: 8/9/2002 4:22:39 AM EST
This is how they address the constitutional equal protection argument (in something called 'dicta', because they refused to actually consider it through a somewhat flawed string of legal reasoning: "If legislation neither burdens a fundamental constitutional right nor targets a suspect classification, it will withstand constitutional scrutiny so long as it bears a rational relationship to a legitimate government interest. Romer v. Evans, 517 U.S. 620, 031 (1996). Sixth Circuit precedent does not recognize a fundamental right to individual weapon ownership or manufacture, and the plaintiffs, gun retailers and owners, are not a suspect class. See United States v. Napier, 233 F.3d 394, 402 (6th Cir. 2000) (Second Amendment does not create an individual right to bear arms). Accordingly, in order to prevail on their due process claims, the plaintiffs "must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." Vance v. Bradley, 440 U.S. at 111. " Anybody see the problem with their decision? Somebody else needs to sue on the same facts and same suit with the first amendment claims added and that case will go all the way.
Link Posted: 8/9/2002 6:38:12 AM EST
I am going to put a call into the SAF to ask their opinion on this.
Link Posted: 8/9/2002 7:16:00 AM EST
It sounds like if you can show that firearms owners, etc. are a suspect class, you might win on due process. Or, maybe you could argue about burdening a contitutional right (1st and 2nd Amendment). Guess the Consitution is not entirely recognized there in the 6th Circuit. It sounds like they are saying that if the 1st amendment had been properly raised in the pleadings, then they would have to deal with it and rule on that issue. Give us another clue here, Happyshooter.
Link Posted: 8/9/2002 7:19:31 AM EST
Oly is suing ATF??? That raises them a few pegs, in my opinion. Not that I had a problem with them before. I think gun makers ought to file a class action against ATF for harassment. Or the very least agains the cities for all these junk lawsuits.
Link Posted: 8/9/2002 7:37:33 AM EST
The true spirit of the Second Ammendment has NOTHING to do with firearms used for hunting. The spirit behind it is that Americans be allowed to defend their rights against tyranny. Tyranny is usually wrought by the Leaders in a government. That said, Our rights should be to own and bear arms capable of standing-up against a tyrannical government. Why does nobody ever use this fact? I do digress on one topic. I feel the current standard of NFA weapons should remain as it is. I personnaly do not like the idea of gangs having machine guns.
Link Posted: 8/9/2002 7:44:25 AM EST
Originally Posted By DevilsAdvocate: I do digress on one topic. I feel the current standard of NFA weapons should remain as it is. I personnaly do not like the idea of gangs having machine guns.
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Oh, you mean those law abiding gangs, right?
Link Posted: 8/9/2002 7:47:50 AM EST
Originally Posted By DevilsAdvocate: I do digress on one topic. I feel the current standard of NFA weapons should remain as it is. I personnaly do not like the idea of gangs having machine guns.
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You mean the current law keeps gangs from getting NFA weapons? Could have fooled me!!
Link Posted: 8/9/2002 8:02:37 AM EST
[Last Edit: 8/9/2002 8:11:24 AM EST by Big_Bear]
Link Posted: 8/9/2002 6:42:00 PM EST
Sorry, got excited at work today when I read this crap and didn't fulkly give my thoughts. Two points: 1) They must think the 1st amendment is a winner, or they would have addressed it in dicta instead of flushing it. 2) They proclaimed that there is no equal protection/due process right to a numbered constitutional right because a numbered right is not 'fundamental'. The abortion crowd is never going to let that fly, so let's push it all the way to the final conclusion. The 6th finally screwed up in supressing our gun rights.
Link Posted: 8/9/2002 6:47:41 PM EST
"The latter question need not long detain us long. The First Amendment claim was not included in the complaint or in the amended complaint filed in this action. Indeed, the plaintiffs' only mention of a free speech argument was made in passing in their brief in opposition to the defendants' motion for summary judgment. For this reason, the district court declined to rule on the issue, characterizing it as "underdeveloped." As a general rule, we would likewise decline to review the issue, there being no decision to sustain or reject on appeal. See, e.g., Taft Broadcasting Co. v. United States, 929 F.2d 240, 243-44 (6th Cir. 1991...........
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translation please!
Link Posted: 8/9/2002 7:03:44 PM EST
Huh? A little more background on this case, please? Is the basic argument here that gun control laws barring law-abiding citizens from possessing weapons, constitutes prior restraint, and is hence unconstitutional, just as prior restraint on various types of speech is unconstitutional under the 1st amendment? I mean, that's *true*, but is that the argument here? Just that one paragraph isn't enough to figure out what's going on.
Link Posted: 8/9/2002 7:18:10 PM EST
Originally Posted By AnotherPundit: Huh? A little more background on this case, please? Is the basic argument here that gun control laws barring law-abiding citizens from possessing weapons, constitutes prior restraint, and is hence unconstitutional, just as prior restraint on various types of speech is unconstitutional under the 1st amendment? I mean, that's *true*, but is that the argument here? Just that one paragraph isn't enough to figure out what's going on.
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This I understand. SSD
Link Posted: 8/9/2002 7:31:40 PM EST
[Last Edit: 8/9/2002 7:32:30 PM EST by mattja]
Originally Posted By Big_Bear:
Originally Posted By DevilsAdvocate: I do digress on one topic. I feel the current standard of NFA weapons should remain as it is. I personnaly do not like the idea of gangs having machine guns.
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It's funny you should mention that. NFA '34 was the government's answer to the gangland crime wave in the 1930s. The facts show that it didn't have the effect they intended. Seems gangsters didn't bother to register their weapons . It wasn't until the end of prohibition that gang shootings went down. NFA '34 was really unnecessary since prohibition was repealed about a year earlier and gang crime took a dive before NFA '34 went into effect. There is a lesson in there for us somewhere.
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Publicly, yes. Behind the scenes, it's likely the US was following in the footsteps of our friends across the pond, who desired to ban firearms in the hopes of averting a popular uprising. This was during the depression. Millions were out of work, certain visible gangland personalities were gaining the support of the people, and the nation as a whole was leaning communist (the American Communist Party's membership increased drastically during that time period). What better reason than to ban military style weapons? If SHTF again, the first thing the feds will try to do is ban firearms ownership. It's a given.
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