NRA begins filing lawsuits againt San Fran and Chicago!!

[DoubleJ]

If you've got an AK47, you've obviously got the Class 3 tax stamp thing, then why not just get an MP5??

[PAR]

Again: How many would own a short shotgun for home, vehicle, or business defense if the cost of the $200 tax was not equal to or greater than a $200 shotgun?

I would, but only if I could get it without telling the feds that I got it (i.e., from a private party transaction). I don't trust the government to know that I'm buying such a firearm.

Yes, that was the context when I used the word "legal" above, meaning "How many of you would have such a firearm if you could legally just buy it in a gun shop, from a friend, or modify it yourself."

The only reason many of us don't have a "coach gun" is due to it being illegal. My Chinese clone of a Remington 870 is far too long and heavy to be perfect for interior home defense -- I have no need for the increased accuracy at distances less than 15 yards. (maximum possible range within my home -- 25 yards if you count from my house to the property line in any direction.)

An MP5 would make another superior home and vehicle defense firearm, if we could legally purchase one, and do so without ceding our 4th Amendment protections again search and seizure.

Edited to add the link:

http://www.atf.gov/firearms/041006-vert_grip.htm

A little off-topic but the AOW tax on an NFA (SBS) shotgun is only $5. Now the MP5 would be $200 and if you placed a can on the end, then another $200 for that stamp. Also, not sure where you coming up with the last line on giving up your 4th Amendment rights - no such thing.

[Mike1951]

If you've got an AK47, you've obviously got the Class 3 tax stamp thing, then why not just get an MP5??

OK, no one says, "I have a semi-auto AK variant".

We say we have an AK and everyone, well almost, knows what we mean.

This is picking one nit too many.

[HerbM]

Edited to add the link:

http://www.atf.gov/firearms/041006-vert_grip.htm

A little off-topic but the AOW tax on an NFA (SBS) shotgun is only $5. Now the MP5 would be $200 and if you placed a can on the end, then another $200 for that stamp. Also, not sure where you coming up with the last line on giving up your 4th Amendment rights - no such thing.

An AOW has a $200 manufacture tax though, right?

Have to look into that $5 -- last time I investigate auto-firearms the application required you to specify storage location and allow the Feds (and maybe local) to inspect it pretty much at will.

That is what I meant by giving up 4th Amendment protections.

[KBCraig]

AOW is only $5, but SBS is $200. It can't be both: it's either AOW or SBS.

The Serbu Super Shorty is not SBS, it's AOW.

[WarHawk-AVG]

AOW is only $5, but SBS is $200. It can't be both: it's either AOW or SBS.

The Serbu Super Shorty is not SBS, it's AOW.

What makes a SBS from AOW is that a SBS is modified from a non-modified normal shotgun, a AOW is manufactured and unmodified in its production

You can take a Remy 870 and saw the barrel off, it becomes a SBS and $200 (if you don't go to prison 1st)
Now manufacture a barrel and forward handgrip for a shotgun and it becomes a AOW (just be prepared to prove you actually built the thing!)


AOW


SBS

See the difference?

Simple actually

[HerbM]

Yes the legal one costs $700 plus $5 for the transfer tax stamp.

The illegal one is initially quite a bit cheaper but the legal fees, fines and time in prison will eventually (30 seconds or so?) outweigh the costs of the other.

[WarHawk-AVG]

Yes the legal one cost $700 plus $5 for the transfer tax stamp.

The illegal one is initially quite a bit cheaper but the legal fees, fines and time in prison will eventually (30 seconds or so?) outweigh the costs of the other.

Just found this!
http://www.shotgunworld.com/bbs/viewtopic.php?t=80131

If you do the paperwork 1st...you can then legally hack the snot outta your shotgun barrel legally...gotta have done the tapdance of the ATF 1st

[HerbM]

Before I look at how to legally fix a home defense or coach gun, back on topic for a moment:

The NRA (with CCRKBA) did file a lawsuit, in San Francisco:

http://www.sanfranciscosentinel.com/?p=14215

The Citizens Committee for the Right to Keep and Bear Arms today announced that it has filed a federal lawsuit in partnership with the National Rifle Association challenging the validity of San Francisco Police Code Section 617, a prohibition against possession or sale of firearms or ammunition on property controlled by the City and County of San Francisco.

The litigation, which names both the City and the San Francisco Public Housing Authority as defendants, takes specific issue with a “lease provision that bans the possession of firearms in public housing,� according to a CCRKBA news release published this afternoon.

In response, San Francisco City Attorney Dennis Herrera issued the following statement.

“I intend to vigorously defend our commonsense City ordinances that protect public safety from gun violence. On the basis of the law as it exists today, I am confident that our local gun control measures are on sound legal footing and will survive legal challenges.

“Having said that, I am considerably less confident about what may happen as this Supreme Court’s conservative majority takes up Second Amendment issues in the future.

“With its ruling in Heller, the U.S. Supreme Court identified an individual right in the Second Amendment that no court ever held to exist in two centuries until this case.

“So, while nothing in Heller invalidates or even endangers gun restrictions in San Francisco, I’m deeply concerned about this Court’s direction, and how it may affect laws intended to protect public safety in the future.�

How are the ACLU and the NAACP going to feel if everyone AROUND the mostly minority public housing can have a firearm but blacks, hispanics, and other minorities cannot?

Come on San Francisco, African Americans and other minorities have the SAME RIGHTS as white Americans , whether you like it, or NOT.

[HerbM]

A better way; I had seen the part of the majority opinion where it said that the 2nd Amendment is like the 1st, but this one phrase I had overlooked and seen no references to it until just now:

Majority Opinion DC v Heller, page 8:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

All bearable arms.


I think that Justice Scalia might have just SLIPPED that by. There is no quibble there. That is without qualification.

[57Coastie]

Herb invites our attention to: All bearable arms.

Has not Justice Scalia skipped over the word "keep," as in "...keep and bear arms....? Do you see any legal significance to this, Herb? Does this dispose of the issue of whether, for example, artillery is included in the 2d, a (frivolous??) hypothetical we have seen raised several times on this forum? I.e., is it your expectation that our right to keep and bear arms will ultimately be held to include only arms that can be carried?

(I decided that now that we do not have any more serious issues to deal with we can spend some time on hypotheticals.)

With tongue in cheek (perhaps),

Jim

[HerbM]

Herb invites our attention to: All bearable arms.

Has not Justice Scalia skipped over the word "keep," as in "...keep and bear arms....? Do you see any legal significance to this, Herb? Does this dispose of the issue of whether, for example, artillery is included in the 2d, a (frivolous??) hypothetical we have seen raised several times on this forum? I.e., is it your expectation that our right to keep and bear arms will ultimately be held to include only arms that can be carried?

(I decided that now that we do not have any more serious issues to deal with we can spend some time on hypotheticals.)

With tongue in cheek (perhaps),

Jim

[Most of the following are thoughts that are still crystallizing for me so I am going to just write without concern about organization or presentation, which includes my usual typos and misspellings, etc.]

Tongue in cheek or not, I am quite serious...but it will take 5, 10, or many more years to work these details through....

I am pretty sure the Majority opinion forestalls artillery (by default at least without a further successful case) as not being a) bearable and b) in common use, despite those being in private hands at the time of the Constitution and Bill of Rights. If it is bearable it says you may keep it.

Also, such are not commonly issued by the military to individuals.

I have long claimed however, that automatic rifles are OK, and short barrel shotguns would be protected except for the ambiguity introduced by the defective (mentioned by Kennedy in oral arguments) Miller decision. The "militia phrase" sets the context that requires AT LEAST the protection of those arms normally issued to the individual infrantryman or the (paramilitary) police officer. (This is MY claim which is self-evident taking Miller and Heller together.)

Majority Opinion DC v Heller, page 8:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Scalia's majority opinion (page 55) seems to hint that an M-16 is not protected due to not being "in common use" but that is NOT what he actually writes (common civilian use is also mentioned but never stated declared a requirement for protection):

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large.

Note, he says that the Right might require M-16s, and also require even sophisticated arms...highly unusual in society at large.

The combination of the prima facie case for all bearable arms and those in common use must include those commonly issued to the individual soldier or paramilitary* police officer and cannot eliminate those not kept at home merely because those are effectively banned.

AR-15s and similar firearms are in common civilian use, as M-16s and varients of essentially the SAME FIREARM design are standard issue (therefore common use) in the military and paramilitary police. A similar but slightly more difficult (less common and confused again by the defective Miller decision) case can be made for short barrel shotguns.

*Note that I make a point of including "paramilitary" police in these discussions not as a criticism of police but for several reasons, including:

• Police didn't exist as we now know them at the time of the Constitution

• As a paramilitary organization, e.g., ranks, military discipline, issued arms similar to the military they set up either/both an organized militia and/or a government entity having rights PROTECTED beyond those of the ordinary citizen which is unconstitutional in light of Heller

• Government agents, especially military ones, cannot have a right protected while it is ignored or prosecuted for citizens

There is NOTHING particularly dangerous about M-16's in the hands of either the military infantryman or the civilian/paramilitary police officer (or law-abiding citizens in the few cases where that is legal), and there is nothing particularly distinctive about it except for it being automatic -- the government cannot in light of Miller and Heller disallow, either directly or through egregious licensing and taxation forbid these common, even essential firearms.

Nor can they claim these must be in common civilian use -- when similar weapons are anyway -- when any such lack of commonality is merely due to the very prohibitions or excessive taxation schemes that would be challenged.

They are common and they are bearable, even issued to individuals in civilian and military employ of the government.

I am seriously considering applying for a short barrel shotgun manufacturing license and tax stamp for personal use (for home and vehicle defensive use), without the tax being submitted, under a cover letter that explains my claim vis a vis Heller. I would include TOE (Table of Equipment) from the military that shows this is an issued weapon at times and examples of such which are manufactured legally.

They can only deny or approve my request.....

I have claimed Heller will be as transforming as Miranda and still hold out that hope. Oddly enough Heller and Miranda have common issues of public safety and crime control being weighed against protection of individual rights.

Using the 1st Amendment as a guide might be a poor analogy (though Heller does do this) in many case as the only regulations and proscriptions which would survive would be a) noise regulations b) actual harm/violence, which is more behavior than exercise of a right and c) and time/location rules.

Noise regulations would be similar to prohibitions on free speech in front of your neighbors house at 3:00 AM being restricted or firing a gun during the night. Actual harm would be like libel, slander, and even perjury being analogous to unsafe shooting (residential neighborhoods) or actual assault. And time and location might be used to prevent you from carrying within a government building or school (but this is more difficult.)

The majority in Heller says or at least implies that sensitive locations can be regulated -- it does not say that all such regulations will survive though.

Assembly under the 1st Amendment and 4th and 5th amendment protections seem much better analogies for 2nd amendment protections however.

Fire marshal regulations can prevent an assembly beyond a certain size in a particular room but the Fraternal Order of the Police or the Police Academy Graduation ceremony or City Council meetings would be subject to the same or precisely similar restrictions. The police and government may not do what the citizens are forbidden from doing without compelling state interest (e.g., making war would generally be restricted to the government but again this is behavior not the exercise of the right itself.)

Similarly for parade permits and other legitimate, but VERY NARROWLY TAILORED, restrictions on assembly.

Defense attorney's are going to have a field day with Heller -- although I would prefer law abiding citizens do so first -- as our legal system is set up to discourage the law-abiding from challenging illegal government behavior a priori an offence, and to encourage criminals found guilty to do so after conviction.

Contrary to others, I don't believe that even "sensitive places" are immune from challenge, just that no lower court would need to necessarily allow those challenges, i.e., such challenges would require new information and probably a new decision from the Supreme Court.

Miranda is curious in that it not only guarantees rights, but requires the government to INFORM the suspect and perhaps to even PROVIDE material assistance for the right to be exercised. Were Heller enforced the same way they would have to issue me my M-16.

And another thing, many of us have PREVIOUSLY QUALIFIED with the M-16 or other military issue firearms so no claim of incompetence or training requirement can be automatically ( ) correct. This previous qualifications also testifies to the simple fact that we civilians have a long history of NOT misusing such arms, especially those of us with military experience.

This would not forestall non-veterans, just make it trivial to show that a large body of citizens are pre-qualified and have demonstrated responsible use personally.

[57Coastie]

Interesting and thoughtful, Herb.

Your mention of military arms, particularly the M16, and the potential having to do with those civilians trained in their use in the military, dates me rather brutally. Thanks a lot! My experience in small arms while in the service was with the M1 and the M1911, which are rapidly becoming antique firearms, except, of course, for what we are observing these days with respect to the M1911, which appears to be coming back to life in the modern military.

I was never exposed to an M16 throughout my 20 years active duty.

Jim

[HerbM]

Interesting and thoughtful, Herb.

Your mention of military arms, particularly the M16, and the potential having to do with those civilians trained in their use in the military, dates me rather brutally. Thanks a lot! My experience in small arms while in the service was with the M1 and the M1911, which are rapidly becoming antique firearms, except, of course, for what we are observing these days with respect to the M1911, which appears to be coming back to life in the modern military.

I was never exposed to an M16 throughout my 20 years active duty.

Jim

I mentioned the M-16 because the Heller* decision mentions it specifically, and protectively in my opinion. Also because it or it's variants are the most common military rifle assigned to individuals in the armed forces, National Guard, police, and other law enforcement organizatons (FBI, DEA, US Marshals, etc.)

Similar arguments can be made for the M-14, M-1, etc -- they just aren't as common for assignment at this time but may still be issued on occasion.

I also believe that the CMP should be required to sell surplus M-14s and M-16s left over from the Vietnam era similar to the current CMP rifle sales.

After all, those firearms BELONG to the American people and specifically to the militia -- us.


Also NPR had this today:

June 28, 2008 · A day after the Supreme Court issued a landmark gun ruling striking D.C.'s handgun ban, the National Rifle Association filed suit in five jurisdictions to overturn their bans as well. One of the suits is against the City of San Francisco over its ban on handguns in public housing.

We know about SF (and the NRA), and now NPR says that the NRA is filing in Chicago and 3 other (unnamed) Chicago suburbs -- might be accurate or NPR might be confusing one RKBA group with others (NRA vs. ISRA and SAF) through ignorance. After all to the liberal press the NRA is THE radical gun rights group even though that is patently untrue. The NRA is neither the most radical (read: uncompromising) nor the most solely focused on the RKBA.

* I strongly recommend that everyone read Heller themselves -- perhaps in conjunction with some decent web site that will explain what (they think) is being said. Remember what is NOT said, is not law. What is NOT ruled, is at best guidance. Implications are useful but they have little if any force. Failure to protect something is not the same as denying protection, and vice versa. I need to re-read it myself. The majority opinion is the important part and it is only about 60 pages.

[57Coastie]

...* I strongly recommend that everyone read Heller themselves -- perhaps in conjunction with some decent web site that will explain what (they think) is being said.

That is so very true Herb, but the rub, of course, is finding a "decent" analysis. I, for example, have had some 42 years experience in reading and analyzing appellate court opinions, perhaps not on a daily basis, but very nearly so, and I have been privileged during one stage of my life to write and issue some myself. This experience does not necessarily make me any better than others at analyzing court opinions, and I tend to tread very lightly where Heller is concerned. My personal prejudices sneak in no matter how hard I try to avoid it when analyzing them, and, not to start a judicial philosophy debate here, but also, I am sure, they snuck in when writing them.

I would suggest that the best place to find the most trustworthy analyses in the relatively near future is in your nearest law school library, as I am sure the editors of the various law reviews are breaking the sound barrier in their efforts to be first off the press with a good analysis of Heller. While I am not so naive at my age as to suggest that law reviews are always "fair and balanced," to coin an expression, I do feel that by and large they tend to be. Our forum members can of course get to some law reviews on the 'Net. A place to start would be to Google "law reviews."

As time goes by, the best source for finding trustworthy analyses of Heller will be opinions of appellate courts which are trying to sort out what "the five" left for them to handle. Many would argue that issuing a decision in an appellate case amounts to so much more than just deciding that case. After all, most appellate courts' decisions (as contrasted with their opinions) could be little more than one of but two words -- "affirmed" or "reversed." The well written opinion, as perhaps we see in Heller when we lump them all together, gives us all the way from clues to a clear road map as to what the answers to those unaddressed issues will be, and this aids us in ordering our affairs for the future.

Your advice is so very valid, Herb.

Jim