Is NFA 34 a house of cards?
Zak, I don't know if you are an expert on the legalities of Class III as opposed to a technical expert on Class III stuff, but here goes.
I think NFA 34 and the lone Supreme Court case that buttresses it, Miller 1939, is a legal house of cards that has never been blown to bits simply because no one has ever challenged them in court.
As I understand Miller '39, Miller was arrested and charged for transporting an NFA weapon, specifically a double barrelled shotgun, across a State line without having paid the $200 NFA "tax" on it.
The initial Federal Judge ruled in favor of Miller, effectively throwing NFA 34 under the bus, as a violation of Miller's 2nd Amendment rights.
When the case got to the Supreme court, only the Government's lawyers and the judges were there. There was no one there to argue the pro-Miller, pro-2nd Amendment, side of the case.
The government's case was that the lower court decision should be reversed because the specific arm in question, a sawed off shotgun, was not suitable for militia use.
The Supreme court accepted that argument, thereby reversing the lower court decision and re-instating NFA 34 which remains in effect to this day.
However, if you take the government's own argument one step further, which the Miller court did not and no court since has not, any weapon that does have a "militia use" should be protected under the 2nd Amendment. In other words, by the government's own argument the Class III stuff controlled under NFA 34 should not be controlled under NFA 34!
If Miller had had, say, a BAR instead of a sawed-off shotgun, the government would not have been able to make the "no militia use" argument and the lower court might have been sustained, and NFA 34 would have remained scrapped.
Am I wrong there? :dunno:
Since then of course, we have had the 1986 "Ban" on production of new NFA weapons. If the combination of NFA 34 and the 1986 does not "infringe" the 2nd Amendment, I do not know what does!
You make a compelling argument, but Miller is history-- I mean that literally in that the opportunity is passed.
I believe that if you read Heller and listen to the oral arguments, you will get a better idea of what potentialities might exist.
I think the opportunity has never been persued.
I did read Heller.
There are three main components to the 2nd Amend.
Do not Infringe.
Heller and McDonald have settled "Keep" to the extent that the Supreme Court, and now all lower jurisdictions, must honor our right to Keep arms on the INside of our own front doors.
The next to be decided will be "Bear". Which will happen when the cognizant Courts recognize that the 2nd Am says nothing about which side of a door it applies to.
The 42 States that now have "shall issue" CCW laws have already seen that writing on the wall and have not waited for the SCotUS to rule on it.
Once it is established that both "Keep" and "Bear" are constitutionally protected rights on a par with freedom of religion, etc., the time will then be right to challenge this cockamamie notion that the gub'mint can control what kind of (militia-suitable!) arms we have the right to keep and bear and yet consider that that very control is not an "infringement".
At which point their own argument in "Miller" is going to be used to blow "Miller" right out of the water. And along with it, the 1986 MG "ban" and the Tax portion of NFA 34 as well.
I think the NFA process itself will remain intact.
However, new manufacture of NFA weapons will resume and the process will be "shall issue" just as CCW now is in those 42 States.
Mark my words. See if that does not happen within, say, the next 10 years.
Any relation to L. Neil Smith? Last I heard, he lives in Ft. C as well. :supergrin:
This being GLOCK Talk, did you make it over to the Glock Sport Shooting Foundation match over the other side of Greeley last week?
Many share your opinion, or one very close to it, but where the rubber hits the road is actual USSC cases and how they are argued. Perhaps another type of forum would better fit your intent posting this thread.
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