Constitution

Just as Barack Obama is plotting to create more limits on firearms, ammunition and the like during his final year in the Oval Office, there are court arguments developing that the longstanding federal ban on machine guns is, in fact, unconstitutional.

One of Obama’s plans when he moved into the White House some seven years ago was to deprive more Americans of access to guns. Under his watch, various federal bureaucracies have been doing that, such as the Veterans Administration’s move to arbitrarily classify returning veterans as incompetent and then warn them they were being put on the federal list of individuals banned from owning guns.

Readers told the Los Angeles Times recently about their concerns over Obama’s decision to go, or not go “off-script,” meaning outside the constitutional channels for legislation, and “use his executive authority to implement what he wants to do on gun control.”

One said, “Just do something. We are losing to (sic) many people to gun violence.”

Another said, “Obama is frustrated that he can’t dictate the law on guns, and he ought to know that doing otherwise is unconstitutional. The question is, does he care?”

Why carrying in church is biblical – get Charles van Wyk’s classic “Shooting Back”

But there now is a challenge that potentially could push the precedent for gun ownership in the nation a huge leap the other direction.

The case, U.S. v. Watson, pending before the U.S. Court of Appeals for the Third Circuit, concerns whether the federal ban on machine guns is constitutional.

“At issue is the constitutionality of a part of the 1986 McClure-Volkmer legislation, which prohibits the manufacture and possession of machine guns by Americans unless they were registered prior to the date of the act,” explains Gun Owners of America, which along with other groups has filed a friend-of-the-court brief in the case.

The arguments were prepared and presented by the legal team at William J. Olson, P.C.

Just recently, the Fifth Circuit also was confronted with a similar question. GOA filed a brief on behalf of gun ownership there, too.

“The case in Watson … involves a family trust that had applied to manufacture an M16 and challenged ATF’s eventual denial of that application,” the organization explained.

Specifically, while a court decision said “that machine gun prohibitions are constitutional,” the precedent that was cited not only was wrongly decided, but now is in conflict with the Heller case, which determined that the Constitution’s protection for gun ownership applies to individuals, GOA explained.

“We argue that Heller supports exactly the opposite position – that machine guns are protected arms. Heller stated that ‘all instruments that constitute bearable arms’ (like an M16) are protected by the Second Amendment, unless proved otherwise,” GOA reported. “Indeed, Heller noted that the definition of what is and what is not a protected arm does not turn on whether a weapon has a military or nonmilitary use.”

The GOA said courts as far back as 1939 “indicated that weapons which are ‘ordinary military equipment’ (like the M16) are protected. Heller followed that up by noting that military-grade weapons are not the only sorts of weapons that are protected.”

It said what Heller found was that “the Second Amendment protects a whole variety of ‘arms,’ including those used for private self-defense, hunting and target shooting – in addition to military grade weapons (like the M16) for defense of the free state against tyranny.”

GOA said the M16 actually is just the most recent development in a “long chain of firearms evolution. At each stage along the way, one could make the same arguments that the anti-gunners today make about machine guns – that the new weapons have greater firepower, enable a shooter to shoot and reload more quickly, and are thus more effective at what they do. ”

“But newness and greater effectiveness does not mean that something can be banned because, as the Supreme Court has made clear, the Second Amendment extends to all ‘bearable arms, even those that were not in existence at the time of the founding,'” the GOA said.

The brief was filed on behalf of several organizations, including: Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, Inc., The Heller Foundation, Conservative Legal Defense and Education Fund, and Institute on the Constitution.

In the situation in dispute, the brief notes that the district court claimed Heller held that the possession of machine guns is unconstitutional.

“Heller said no such thing,” the brief explains. “Rather, Heller confirmed that the Second Amendment secures a right of the people to possess the arms necessary for self-defense and a citizens militia in defense against tyranny.”

Another case that was cited, Marzzaarella, also claimed that an even earlier case, Miller, “held that short-barreled shotguns are unprotected.”

But, the brief explains, the Miller case said the court had no evidence in its possession to comment on the Second Amendment’s applicability regarding such a weapon.

“There is a vast difference between not being able to say that something is so, and saying that something is not so,” the brief points out.

Further, the U.S. Supreme Court has not said that machine guns are outside the scope of the Second Amendment.

Neither of the two significant rulings on the issue said “that ‘ordinary military equipment’ like an M16 is not protected by the Second Amendment,” the brief said.

“Rather, a fair reading of Heller would support the proposition that such ordinary military equipment is protected and, further, that it is not the only type of arm that is protected. Indeed, Heller notes that in the founding era, the same weapons were used for militia service in defense of the ‘free state,’ for private self-defense, and even for hunting, and other purposes.”

It continued, “Heller explained that the Second Amendment protects more than ordinary military equipment, and it is a ‘startling reading’ of Heller to twist the passage to support the opposite proposition, as the district court does.”

In fact, the Supreme Court in Heller said, “We do not undertake an exhaustive historial analysis today of the full scope of the Second Amendment.”

The result?

“Under Heller, all bearable arms (like the M-16) are ‘prima facie’ protected,” the brief said.

Obama repeatedly has called for more and more gun restrictions. After the Sandy Hook massacre at a grade school by a crazed gunman, a plan of restrictions and limits was introduced in Congress. It failed.

Why carrying in church is biblical – get Charles van Wyk’s classic “Shooting Back”

The GOA’s Larry Pratt earlier called Obama “incredibly ideologically driven” and said he believes Obama will continue to demand gun control.

Listen to the WND/Radio America interview with Larry Pratt:

He said he sees the limited time remaining in the Obama administration as a major motivating factor in a possible gun-control push.

“This man is hard, hard left,” he said. “He believes the government should control everything. Now, he’s got less than two years to really snap the socialist vise on the country. I don’t see him backing off.”

 

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