Hollis V. Holder (Challenging the 1986 MG Ban)

Joined
Sep 15, 2009
Messages
12,148
Likes
3,063
Location
SC
Feedback: 8 / 0 / 0
Remember how the ATF approved some Form 1's for manufacturing a machinegun via a trust? ANd how then the ATF tried to rescind that approval?

The first of three lawsuits have been filed in US District Court. The first one originating in Texas. The other two will originate in two other states and I believe all three states are in separate circuit court jurisdictions.

http://www.scribd.com/doc/245057730/Hollis-v-Holder-Complaint

AR-15 thread:

http://www.ar15.com/forums/t_1_5/16...2_o___NFA_and_various_other_items.html&page=1

Gofundme: http://www.gofundme.com/fmxlnk
 
This is gonna be weird if there is a circuit split, how will that get resolved? Because you know if it goes poorly for the feds, they will appeal it.

Ultimately I don't think this is going to go anywhere, but it should be fun to watch. It would be funny as hell if the court goes halfway and forces BATFE to acnkowledge the issued stamps as being valid because of the fact that they approved them.

-Mike
 
I have started to read the complaint and it reads plainly and seems to address multiple issues with the law. I'm not a lawyer but I do know a little from reading up on case law and talking to people who do things in the legal field (like Terraformer). I have only skimmed the complaint but it looks like it might be a "shotgun approach" (which is very bad from an arguing a case and setting good case law standpoint). Now truthfully I have not read the Heller or McDonald original complaints so I don't know if they read similar and the actual attack on the law was narrowed to a specific point once the attorneys showed up in court and argued in person.
 
This is gonna be weird if there is a circuit split, how will that get resolved? Because you know if it goes poorly for the feds, they will appeal it.

Ultimately I don't think this is going to go anywhere, but it should be fun to watch. It would be funny as hell if the court goes halfway and forces BATFE to acnkowledge the issued stamps as being valid because of the fact that they approved them.

-Mike

This will be fun to watch in a really upsetting sort of way. It's always amusing and infuriating when courts (and .gov) stomp all over the law in decisions.
 
This is gonna be weird if there is a circuit split, how will that get resolved? Because you know if it goes poorly for the feds, they will appeal it.

Ultimately I don't think this is going to go anywhere, but it should be fun to watch. It would be funny as hell if the court goes halfway and forces BATFE to acnkowledge the issued stamps as being valid because of the fact that they approved them.

-Mike

It is also entirely possible BATFE backs down and allows MG's via Form 1's in exchange for us not going after something else. Who knows what will happen. By the time this case makes it to the appellate level we may have a new president (and thus a new BATFE director).
 
This is gonna be weird if there is a circuit split, how will that get resolved? Because you know if it goes poorly for the feds, they will appeal it.

Ultimately I don't think this is going to go anywhere, but it should be fun to watch. It would be funny as hell if the court goes halfway and forces BATFE to acnkowledge the issued stamps as being valid because of the fact that they approved them.

-Mike

Given Miller, and given that machine guns are legal to own (assuming a transferrable gun), I don't see how the '86 law can stand.

On the other hand, I develop software for a living so everything eventually breaks down to a 1 or 0 in my mind and the fuzzy aspect of the law strikes me as complete BS.
 
If the trust is not a person and a human performing tasks (say, manufacturing) for the trust is never in possession of the machinegun, how can the trust's rights as a person or the rights of said human acting through the trust possibly be violated?
 
Given Miller, and given that machine guns are legal to own (assuming a transferrable gun), I don't see how the '86 law can stand.

On the other hand, I develop software for a living so everything eventually breaks down to a 1 or 0 in my mind and the fuzzy aspect of the law strikes me as complete BS.

Miller is useless. Heller even makes it clear, it's a limited holding because it was a one sided case.

I don't have the time right at the moment to read it in detail but it sure as hell appears that this is the case that I was afraid we would see. There are a lot of people who think that Gura "got it wrong" in Heller, despite the fact Gura didn't touch FA in Heller and wasn't responsible for the court mentioning it. These people think they can do it better (despite the fact Gura wasn't really instrumental either way in the wrong they seek to right) and they want to be heroes. I can't tell you how many cases I see fail on their face being helmed by some arrogant ass who thinks he is going to do it all and with style. They end up failing miserably and screwing you and me in the process. I don't know what's happening in this case, but man do I hope this complaint doesn't reflect what is going on here.
 
This is gonna be weird if there is a circuit split, how will that get resolved? Because you know if it goes poorly for the feds, they will appeal it.

Ultimately I don't think this is going to go anywhere, but it should be fun to watch. It would be funny as hell if the court goes halfway and forces BATFE to acnkowledge the issued stamps as being valid because of the fact that they approved them.

-Mike

The worse thing we could get is a circuit split because SCOTUS would take the case immediately and we would be done. No future court would override that decision. The best we can hope for is a new generation on the court who is willing to override Heller's dicta. Time is on our collective sides on NFA issues. But you can't tell the lunatic hero wannabes that.
 
Miller is useless. Heller even makes it clear, it's a limited holding because it was a one sided case.

When you have time, could you expand on that? I've always read it as saying the 2nd protects weapons consistent with use in a militia.
 
The worse thing we could get is a circuit split because SCOTUS would take the case immediately and we would be done. No future court would override that decision. The best we can hope for is a new generation on the court who is willing to override Heller's dicta. Time is on our collective sides on NFA issues. But you can't tell the lunatic hero wannabes that.

What "dicta" in Heller makes this case dangerous for us? That Scalia said it's not Carte Blanche to carry any weapon in any manner?


(I quote "dicta" because I am unsure of the meaning of the word in context)
 
What "dicta" in Heller makes this case dangerous for us? That Scalia said it's not Carte Blanche to carry any weapon in any manner?


(I quote "dicta" because I am unsure of the meaning of the word in context)

Editor to the rescue. I'm sure you could look it up, but a dictum (plural, dicta) is essentially an individual judge's opinion that may go beyond the facts presented in a case (i.e., a judge's personal view) and as such is not a binding precedent.
 
When you have time, could you expand on that? I've always read it as saying the 2nd protects weapons consistent with use in a militia.

You will see more in two weeks on this but here is the actual section of Heller that discusses it. I bolded some bits.

District of Columbia v. Heller said:
Justice Stevens places overwhelming reliance upon this Court's decision in Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206, 1939-1 C.B. 373. "[H]undreds of judges," we are told, "have relied on the view of the Amendment we endorsed there," post, at 638, 171 L. Ed. 2d, at 685, and "[e]ven if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law," post, at 639, 171 L. Ed. 2d, at 686. And what is, according to Justice Stevens, the holding of Miller that demands such obeisance? That the Second Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons." Post, at 637, 171 L. Ed. 2d, at 685.

Nothing so clearly demonstrates the weakness of Justice Stevens' case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men's federal indictment for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not "for . . . military purposes" but for "nonmilitary use," post, at 637, 171 L. Ed. 2d, at 685. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: "In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." 307 U.S., at 178, 59 S. Ct. 816, 83 L. Ed. 1206 (emphasis added). "Certainly," the Court continued, "it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." Ibid. Beyond that, the opinion provided no explanation of the content of the right.

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice Stevens can say again and again that Miller did not "turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns," post, at 677, 171 L. Ed. 2d, at 708, but the words of the opinion prove otherwise. The most Justice Stevens can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General's argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, [623] No. 696, pp 4-5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. Justice Stevens claims, post, at 676-677, 171 L. Ed. 2d, at 708, that the opinion reached its conclusion "[a]fter reviewing many of the same sources that are discussed at greater length by the Court today." Not many, which was not entirely the Court's fault. The defendants made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court's consideration of the Second Amendment). See Frye, The Peculiar Story of United States v. Miller, 3 N. Y. U. J. L. & Liberty 48, 65-68 (2008). The Government's brief spent two pages discussing English legal sources, concluding "that at least the carrying of weapons without lawful occasion or excuse was always a crime" and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) "the early English law did not guarantee an unrestricted right to bear arms." Brief for United States, O. T. 1938, No. 696, at 9-11. It then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United States, O. T. 1938, No. 696, at 12-18. The final section of the brief recognized that "some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property," and launched an alternative argument that "weapons which are commonly used by criminals," such as sawed-off shotguns, are not protected. See id., at 18-21. The Government's Miller brief thus provided scant discussion of the history of the Second Amendment--and the Court was presented with no counterdiscussion. As for the text of the Court's opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U.S., at 178, 59 S. Ct. 816, 83 L. Ed. 1206 (which we do not dispute), and then reviews some historical materials dealing with the nature of the militia, and in particular with the nature of the arms their members were expected to possess, id., at 178-182, 59 S. Ct. 816, 83 L. Ed. 1206. Not a word (not a word) about the history of the Second Amendment. This is the mighty rock upon which the dissent rests its case.

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." 307 U.S., at 179, 59 S. Ct. 816, 83 L. Ed. 1206. The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." State v. Kessler, 289 Ore. 359, 368, 614 P.2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III.

On this point:
We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

I should expound that the handgun at issue in Heller (a revolver) is used in street crime often. So clearly an arms use in crime is not the limiting aspect of whether it gets protection or not, it's the lawful purpose of an arm that makes it protected or not.
 
Last edited:
It is also entirely possible BATFE backs down and allows MG's via Form 1's in exchange for us not going after something else. Who knows what will happen. By the time this case makes it to the appellate level we may have a new president (and thus a new BATFE director).

Maybe a new pres, and an appointment (or two) to the SCOTUS, a couple of them are about to turn to dust. Here's for some hope and change. It'd be real interesting to hear the 'common use' interpretation with a good enough lawyer to argue MG's aren't in common use simply because they've been banned for 30 years.

Select fire weapons are in common use with LE agencies across the country.
 
That last bolder part seems to assume a lot about me, as if I can't have an sbs because then I'd be a criminal because only criminals use sbs....k. Statistically, it seems like it would be difficult to argue that nfa items are usually used by criminals.
 
That last bolder part seems to assume a lot about me, as if I can't have an sbs because then I'd be a criminal because only criminals use sbs....k. Statistically, it seems like it would be difficult to argue that nfa items are usually used by criminals.

Exactly. That is some really crappy reasoning. For example, SBRs are in use by both military and police units so are they to be considered criminals because of the length of the barrel? By that manner of thought, wouldn't a pistol in essence be a short barreled rifle?
 
I think one of the key points will always be what defines common use. How many and who owns them is the key. If taken as a whole "handguns, rifles, and shotguns" could never be banned. When further defined and parsed one could say that a shotgun like the KSG is unusual so it could be banned. I think that is why the mag restrictions are an important stone for the opposition. If they can claim that a certain capacity limit moves a firearm over the threshold to uncommon then you could ban it.
Additionally when they choose their representative group they would most likely try to limit it to "civilians". If they included military firearms then it would have to be opened up to allow everyone to own full auto. If they parse their population (as they most certainly will try) they will exclude police, national guard, etc. If successful then it would stop innovation and available firearms in the civilian ownership population. For example the AR must be understood as in common use. the number produced and owned is large. But what about the Tavor?

I remember reading an opinion that i think was out of California that said we have a mag limit, so standard capacity mags are unusual, thus we can ban them. I don't think that many courts will actually look at statistical data to show how many firearms of a certain type have been sold and thus create a "sales threshold" to say that once a firearm reaches this point it's now in common use. There will be lots of resistance to doing away with NFA.
 
I don't see how anyone talking about the militia can argue that 2A doesn't support parity with .gov when it comes to weapons. If the militia is expected to show up and fight effectively, it needs the tools to do so. Saying that today we can't have the same weapons as .gov is the same as saying that when the founders wrote 2A, they expected the militia to show up with bows and arrows.
 
This is gonna be weird if there is a circuit split, how will that get resolved? Because you know if it goes poorly for the feds, they will appeal it.

That is the intent.

There is a lot of misunderstanding about Miller. The dicta and opinions are interesting reading, but SCOTUS didn't issue a ruling on Miller; they remanded the case, which ultimately went undecided. The entire case was a set-up for an anti-gun U.S. Attorney and anti-gun U.S. District Judge to fast-track a case to SCOTUS.
 
You will see more in two weeks on this but here is the actual section of Heller that discusses it. I bolded some bits.



On this point:


I should expound that the handgun at issue in Heller (a revolver) is used in street crime often. So clearly an arms use in crime is not the limiting aspect of whether it gets protection or not, it's the lawful purpose of an arm that makes it protected or not.

Hmm. Thanks. To me it seems that even Scalia needs a class in logic. That said, I wouldn't say that the last quote necessarily excludes machine guns from being protected.
 
This is gonna be weird if there is a circuit split, how will that get resolved? Because you know if it goes poorly for the feds, they will appeal it.

Ultimately I don't think this is going to go anywhere, but it should be fun to watch. It would be funny as hell if the court goes halfway and forces BATFE to acnkowledge the issued stamps as being valid because of the fact that they approved them.

-Mike
Honestly a circuit split + years of SCOTUS refusing to grant cert might be the better play for us long term (while being a gross injustice exceeded only by their likely current ruling that MGs are not protected by 2A).

Having some time for people to come around on this issue to realize that MG bans are just extension of irrational gun fear that causes all bans might be the only way that we finally get rid of this nonsense ban.

Of course the trouble is that SCOTUS is likely to get worse before it gets better. It could be 20 years before the coming libtards to be appointed are aged out and replaced at all much less replaced by something other than the crap in the pipe for such positions. We have 40 years of progressive packing of the bench to unwind.

and that unwind has not even begun...
 
“Going after the NFA soon is like asking the girl you just met in the bar if she's into anal sex.”
– Gene Hoffman, Calguns Foundation board member
Well, it certainly clears up any miscommunication...

I have to ask though, its been 30 years of our rights completely suppressed (and not in that awesome can on the end of your barrel way), how long do you wait? It's been 80 years of just trampling of due process (as we are presumed guilty and require a form 4 to prove otherwise).

I hear the argument about "easing into it" (without adding any lubrication jokes), heck, I even made it above, well not really, I just admitted that pragmatically it would be better to "go slow and use lots of lubrication" - Dr Ruth... Darn it.... I said I wasn't going to do that...

All that said, perfect is the enemy of good.
 
There is plenty of more fundamental suppression of rights going on that's a far higher priority. Once everyone in the country can own any non-NFA firearms they want in the home and carry any handgun they want everywhere they go about their daily lives, then I'll worry about protecting the right beyond that.
 
There is plenty of more fundamental suppression of rights going on that's a far higher priority. Once everyone in the country can own any non-NFA firearms they want in the home and carry any handgun they want everywhere they go about their daily lives, then I'll worry about protecting the right beyond that.
as I said, it will follow naturally that as the fiction that is gun-control falls away and more people become accustomed to something approximating actual freedom, these laws will seem as ridiculous as they are to enough people to get rid of them.

The trouble is there are people being harmed by them right now.

There is also the matter that incrementalism generally only goes one way - against the truth.

It is easy for a million small likes to pile up into one grand deception, but actual truth turns things on their head much faster - as it must. The truth cannot reveal itself in politically convenient increments.

The compelling argument here is Due Process and Freedom. The presumption of innocence. The subservience of the state to the people.

Everything else is easily twisted into strawmen and BS about whether we "NEED" a gun. It has nothing to do with "NEEDING" a gun, it has everything to do with the tyranny of my having to show such a need.
 
Back
Top Bottom