Will the Hughes Survive?
If you own a fully automatic weapon, you should seriously consider selling it now, before the market catches up with yesterday’s ruling. If you keep it, that’s your prerogative, but know this: if yesterday’s ruling stands, you’re screwed. Take a gander at this portion of the ruling:
D.C. Code § 7-2502.02 prohibits the registration of a pistol not registered in the District by the applicant prior to 1976. The District contends that since it only bans one type of firearm, “residents still have access to hundreds more,” and thus its prohibition does not implicate the Second Amendment because it does not threaten total disarmament. It could be similarly contended that all firearms may be banned so long as sabers were permitted. Once it is determined – as we have done – that handguns are “Arms” referred to in the Second Amendment, it is not open to the District to ban them.
Sure, this ruling will be appealed, and maybe it will be reversed or changed significantly on appeal, but then again, maybe it won’t. Let’s assume, for argument’s sake, that it does. If it does, I defy you to show how a different result would obtain if you substituted “fully-automatic weapon” for “pistol,” “1986″ for “1976,” and “Congress” for “the District.” Make these mechanical changes and voila, the Hughes Amendment is history, any post-1986 assault weapons (real ones, not just the phony ones Clinton banned in 1994) are legal in every state that allows them, and your M-16 is worth only a trifle more than my AR-15.
Note that I drew no distinction between the possibility that the ruling sticks because the Supreme Court upholds it vs. it sticking because the USSC declines to rule on the issue at all. In most cases, that distinction is huge. In this case, it’s a minor detail, at least for those fortunate enough to live in states permitting their subjects to own fully automatic weapons. Unless the D.C. Circuit reverses itself, the value of your fully automatic weapon will plummet whether the Supremes uphold them or bow out. If they uphold, any post-1986 weapons can be legally sold in every state that does not prohibit them – unless, of course, they extend the ruling to the states, in whcih case they could be sold nationwide. If the ruling only stands in the D.C. Circuit, then post-1986 weapons can only be legally sold in D.C., but so what? Anyone living in a state that allows them could just travel there, and D.C. would be instantly transformed from the cesspool of Second Amendment jurisprudence that it is now to a gun owner’s Mecca. I’d rather pay my sales taxes to Virginia than D.C., but if I have to drive two whole hours to get what I want, oh well.
And yes, the dissent in Parker really is as retarded as the Ass. Press has made it out to be. For once they reported a legal issue correctly.
UPDATE: Lots of good comments. Tam says I’m wrong about interstate transfers; apparently, you can’t just buy an NFA weapon in an area that allows it and then transfer it to an area that does not. Query whether there is some way around that. After all, we’re not talking different local laws, just different circuits interpreting the same law that supposedly applies nationwide. There has got to be some way to get the local authorities into a suit in the DC circuit, at least if your local authorities are friendly enough to the concept to submit to jurisdiction voluntarily.
Another commenter suggests that the Supremes might find a convoluted way to argue that handguns are “arms” under the Second Amendment but submachine guns commonly carried by soldiers on the battlefield are not. I doubt they’ll go that route myself, though I don’t doubt that that may be the end result if they take the case. More likely, they’ll uphold Parker on some other, narrower theory which does not lend itself to such a broad interpretation. For example, they could rule that all weapons are “arms” within the meaning of the Second Amendment, but note in dicta that modest restrictions on some arms (e.g., instant background checks or bans on handgun ownership by violent felons on parole) and general prohibitions on others (e.g., suitcase nukes or handguns capable of evading detection at airports) impose only minor burdens on the individual right to bear arms, and are narrowly tailored to a compelling interest of the state. To the average nonlawyer, that sounds like splitting the baby, and strictly speaking, it is. However, it’s also the strict scrutiny standard, which is the highest level of protection the Supreme Court has afforded to any constitutional right, including the ones they care about a lot more than the Second Amendment. Thus, it’s probably the best we can hope for, realistically speaking. With that, I take back my prior statement that it doesn’t matter whether the Supreme Court upholds Parker or simply allows it to stand. If they uphold it, they will almost certainly narrow its scope. It will, however, guarantee that the Second Amendment means something, so like me dying in a plane crash with 49 of my colleagues, it would be a good start.
March 11th, 2007 at 12:27 pm
[...] On the Hughes amendment: If it does, I defy you to show how a different result would obtain if you subsituted
March 11th, 2007 at 9:16 pm
No, it doesnt matter if the ruling only holds in the DC Circuit.
I refer you to 28 USC 1391 (e), the appropriate venue for bringing suit against a government official. Tell me, if you wanted to sue the director of the ATF or the attorney general, where does he reside in his official capacity?
The answer is in washington DC. In the DC Circuit. We can bring cases against ATF administrative decisions. We can bring suits challenging federal laws themselves. All in DC.
The only downside is a slightly stricter standing rule than other circuits have, but all we need is a denied form 1 and we are in the same exact sitaution as the police officer plaintiff in Parker. And boom, no more 86 ban. I can finally get a lightning link for my AR! I can finally buy a P90! I can finally put an auto sear in my saiga 12 and cut the barrel down to 12 inches! My cup runneth over! Hahahahaha.
March 12th, 2007 at 9:27 am
now, i’m no lawyer and have no desire to play one on the internet. but if i had such a perverse desire, then this:
…is where i’d start making that argument. now, granted, it’d take a twisting of plain English into scarcely imaginable pretzels to determine that fully automatic weapons (but not semiauto pistols!) do not constitute “arms”… but that’s exactly the sort of logic i, as a non-lawyer, have come to expect out of the U.S. legal system, and especially the supreme court.
plus, i see a political incentive for them to do so. semiauto pistols are reasonably well accepted, so the Parker ruling couldn’t really be overturned without some outcry; but fully-auto anything is reviled, and could not be set free again without serious outcry. knowing that the SCOTUS is a very political beast, it wouldn’t much surprise me to see them twisting in this direction, frankly.
March 12th, 2007 at 9:55 am
“If the ruling only stands in the D.C. Circuit, then post-1986 weapons can only be legally sold in D.C., but so what? Anyone living in a state that allows them could just travel there,”
Not really. You can purchase an NFA weapon out of state, sure, but it would still need to be tranferred to you through an SOT in your home state. So not so much with the driving to DC for your AK fix.
Also, to the guy who is doing the happy dog dance at the thought of his own P90: Only if it’s built by FN at its South Carolina plant. Imported machineguns are still a no-no under GCA ’68, not the Hughes Amendment.
March 12th, 2007 at 9:38 pm
“The people” is where the focus will be. Are eighteen year olds (as opposed to twenty-one year olds) people? Non-citizens? Non-permanent residents. Illegal aliens? They are under the First Amendment.
March 13th, 2007 at 11:03 am
come to think of that, if this ruling stands then the meaning of “the people” really might have to be worked out in detail.
most people seem to agree that extending first-amendment rights (for example) to just about every competent adult on U.S. territory is no big deal, and might even be a good thing, but letting just anybody own guns is another matter entirely. as a green card holder myself, i confess i’m not too sure i should be allowed to own just any kind of weaponry until i get my citizenship.
(i have access to a couple of shotguns, as it happens, but neither of them are technically owned by me. personally, i’d be leery of buying a handgun in my own name until i got naturalized; long guns, less so. it’s not a matter of legal right to own weapons, either; it just doesn’t seem polite to my host country, in my eyes.)
March 14th, 2007 at 5:13 am
FN makes the P90 and PS90 domestically, so I dont think this would be much of a problem. I’m aware of the GCA’s effect on importation.
In any case, gunsmithing machine guns into existance will be expensive but way less expensive than the cost of dealing with the post 86 shortages. I would probably form 1 a krink into existance for fun if the 86 ban ever goes away.
March 15th, 2007 at 9:01 am
[...] noted the comparisons here. Now, GLN wants some info. He notes: Parker v. District of Columbia challenged D.C. law based upon [...]
March 15th, 2007 at 2:04 pm
I was wondering about the effect of the Parker ruling on import restrictions under GCA.
Even though the other side says rights are not absolute, as being unable to possess certain kinds of pornography does not violate the 1A, there are no US Customs restrictions on the importation of 99.5% of books. Why would the 2A be subject to a lesser standard? A right is a right.
I think if the militia-only firearm standard is applied to imports, almost everything under a 155mm howitzer would be allowed. US Army infantry units, such as a company-sized unit equivalent to an effective militia unit, are supported in their mission by artillery and tanks. Why would a “well-regulated” militia under the 2A not be backed up by proper support units? 19th C. state militia infantry units certainly had artillery units attached to support them.
Certainly tactical missles could be banned–as “no right is absolute,” as they say–but what is the upper limit?
By the barest interpretation of a militia standard for firearms, full auto would have to be allowed in again. The line would undoubtedly be drawn somewhere in the Destructive Devices category.
The Volokh Conspiracy law blog has an excellent discussion of where the line should be drawn. There are a lot of idiots out there who have no clue about firearms but still manage to form an opinion, however…
Link here:
http://volokh.com/posts/1173753555.shtml
–PB
April 17th, 2007 at 11:42 am
[...] He used at least one 9 MM pistol. These pistols can generally hold a maximum of 16 shots fully loaded — 1 in the chamber and 15 in a clip. Clips are very fast to reload and the rate of fire can easily be 1 per second with a pull of the trigger. The serial numbers were filed off any weapons recovered. This is done to hide someone’s identity, but if this man was planning on killing himself and leaving a note, he certainly wasn’t worried about hiding his identity. Authorities will no-doubt seek to find the sellers of the weapon(s) used. An INS Green Card is often enough to be able to legally purchase a license to carry firearms. This aspect of U.S. law certainly needs closer examination. [...]