We affirm the conviction and remand the issue of Fincher’s eligibility for court appointed counsel to the district court for further inquiry...So much for the federal courts. So much for "every other terrible implement of the soldier, are the birthright of an American." We all see the "common use" citizen-instead-of-soldier bait and switch fraud here, right?
Accordingly, under Heller, Fincher’s possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use.
So much for "shall not be infringed."
Circular logic: We have usurped authority to prevent you from having arms that could threaten our grip on power, so they're not in common use.
Tell me the Founders intended for corrupt judicial decisions to be the supreme law of the land--yet that's what we have, when rulings affirm federal courtrooms are Constitution-free zones. Who are We the People to argue it in court, or to judge the law along with the facts?
There is no "legal" recourse--at least none that will be recognized by those rigging the game. Some will point out that contention is wrong, and argue something ultimately depending on majority rule--as if the hive has a collective claim to your rights.
No, the fraud has been nicely played. But then we knew those in power don't give it up if they don't have to.
More at The Volokh Conspiracy. Commentator Brett Bellmore has it exactly right:
No new innovation can start out "commonly owned", hence the government can ban every new firearm.It's what I feared when I wrote "Things to Come" back in 2002 for Guns and Ammo (not online and it's copyrighted, so I can't post the entire essay here):
It's been said that a battle isn't won until a man with a rifle occupies the ground. We must keep in mind that someone probably once said the same thing about spears.[Via Peter G]
23 comments:
Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use.
This will be very disappointing to the people that attend the weekly machine gun night at my local gun range (suspended during deer season for obvious reasons of possible hassles with game wardens on the trip to and from). As far as I know, none of the regulars ever have killed anyone except while serving in the US Military. If people didn't regularly use them in a lawful fashion, why is there a "machine gun night" ?
III
I just removed this anonymous comment: "If blood in the streets up to their ankles is what they want, then they shall surely receive it."
That is not the kind of rhetoric I'm soliciting. Notice I have not censored it because I have presented it here in full, but without knowing who the commentator is and whether it is intended as a prediction, a threat or a provocation, I am not comfortable letting it stand alone.
WoG regulars know this site is constantly monitored by federal agencies and I have had a chilling message sent to me by a US Marshal. Because of that, comments such as the one I'm discussing could be problematic. And truthfully, this protects you posting comments as much as it does me--if a threat was perceived, you know they'd try to find out who posted it.
Some may feel this is hypocritical in light of some of the topics we've not only discussed but encouraged here--and I make no pretense of being infallible. There are pros and cons to allowing comments with no pre-moderation, and the best I can do is hold visitors to the imperfect standards I try--and sometimes fail--to hold myself to.
I wouldn't view this as the end of the legal recourse for challenging NFA. Sad to say it isn't good for Mr. Fincher specifically though.
The lower courts seem to currently be abdicating their duty to "flesh out" the "newly" discovered 2nd Amendment in favor of assuming dicta in Heller is law...which it is not.
I'd look to future cases built on the Heller decision from the ground up for hope with regards to eliminating onerous laws.
David: net.toughguys are just that, and nothing more.
Anyone willing to walk the walk knows better than to talk.
that person may be wrong to bait with rhetoric from anonymity, but blood has already been spilled at waco because, despite the law, the establishment gave no recourse to the law-abiding.
so what happens when the law itself offers no recourse because the establishment has made too many bonehead moves like this?
surely the courts did not intend evil. it's just that they also arrogantly believe that no one in their position, and/or no one in law enforcement, ever will.
which is why i throw the phrase "state worship" around so much.
Unfortunately, I think Scalia has screwed us in the long run.
His opinion seems to strip away the Miller test that the weapons protected have some relationship to those needed for a well-regulated militia.
Instead, his opinion can be read to suggest that only weapons suitable for personal sel-defense are protected and that the right proteted is that of personal self-defense.
As such, I see the distinct possibility that a future court could uphold a ban on "assault weapons" as being "not commonly used for self-defense".
That by the way is my "line in the sand".
When and if the government says I don't have a right to my M1 (or any similar semi-automatic) then that government is no longer legitimate.
Scott W
Phx, AZ
The worst prisoners on death row can have their executions stalled or averted by claiming lethal injection isn't "safe and effective." But noncriminal citizens can't have weapons that have been regulated into rarity because they're "not in common use."
A republic, if you can keep it.
Now we have the sporting use test AND the common use test.
I DO see them adding in the semi-auto rifles soon. The local paper is already back to calling them "assault rifles."
MY line in the sand.
ARs and even M-16s are BECOMING common for POLICE. We shuold have what they have, at the minimum.
My line in the sand is so far behind me I can't even see it anymore. But.... I don't know what to do about it except withdraw consent and state that, as an American, the US is my enemy.
189,000 and change in the NFA records. That ain't exactly rarity. I have a sports car in the drive that there are less than 1500 road-going examples of left in the world. We know that because they make you register cars most everywhere. ;-)
Just saying...Might be a minorly numbered hobby for some people, but it's a rather numerous amount of people if you think about it. There's a lot of major cities less numerous than that.
I never got in that part of the hobby because it's terribly expensive and isn't exciting to me compared to going hunting, but I've known quite a few people that have over the years, some legal owners and some legal manufacturers. Hell, if it wasn't for home tinkerers like John Moses, there wouldn't be a sizable chunk of the US small arms arsenal. If the government entirely regulated it to death, I think it would be to their detriment. They'd end up buying everything from FN and HK...
This is interesting. A man in Hillsborough, N.C. got a plea bargain for his attack on nine people. Nine counts of attempted murde and felonious assault were consolidated into two, to which he pled guilty.
He drove a sport utility vehicle onto a crowded Hillsborough sidewalk. Mohammed Taheri-Azar said he wanted to avenge Muslim deaths overseas.
There's some kind of lesson there. Probably more than one.
Given that as soon as a ban is upheld by the Supreme Court, there's effectively no way to challenge it, the flaccid warriors' battle will end as soon as one of these bans makes it all the way up there and is supported.
What do we do then? Decide we played a good game and go home?
Voting is more dangerous than MG possession.
Should we outlaw unusual candidates?
Unusual candidates aren't the problem, the usual candidates are.
When Heller was decided this is exactly what I warned against. If read for what Scalia actually said, I expect some lower court will decide a case in the future that even "common use" firearms are banned everywhere but the home.
The prags yelled and screamed and said anyone who could actually read and make logical projections was paranoid and an internet warrior. Can't wait to see their new apologia for this obscenity.
This court took even more leeway than Scalia gave them in his opinion. He made no differentiation of "common" use as to military or civilian. As we all know fully automatic weapons in the hands of Americans is an extremely common occurrence. Unfortunately those hands belong to the state, either in the military or law enforcement, but common nonetheless.
Having said that, though, the extra leeway this court took is not a lot, because Scalia left the door open by redefining the purpose of the second amendment as defense against crime in the home.
Prepare to see a lot more court rulings adding layer upon layer of infringement on the right to keep and bear arms as what is "suitable" or "needed" for defense against crime in the home becomes the yardstick by which they justify ever more denial of rights and de facto repeal of the constitutional guarantee.
It gets really tiresome always saying "I told you so". It would be much more gratifying if all our intellectual superiors (my ass!)who view themselves as leaders in the gun rights community would actually grow some balls or brains, either would be an order of magnitude improvement in solidifying the community into a viable force by which we might prevail without violence. Growing both would guarantee a win and greatly raise the probability of success without violence or submission to slavery.
I suppose for now, all I got is "I told you so." GODDAMNIT!
Hey jh,
I think Vanderboegh has summed up the answer to your question.
At least for me.I stand with the 3 percenter's,and speak only for myself...
CIII
Still in love with the rule of law in a universal suffrage democracy? Whats to become of the republic?
Well, David, I have seen the new set of apologia. I notice that anyone they like to call SNBI's who actually exercise their rights, rather than beg for privileges as they insist is the only proper way to behave, use the exercise of rights and the subsequent illegal and immoral punishment of it as personal relief from principle and/or
adherence to it.
How many times will they say "Well, he knew the state didn't want him to be free to exercise his constitutionally guaranteed rights, yet he did anyway, so he deserves what he got, at the least he doesn't deserve our support.", before they choke on their own vomit?
They get a pat on the head and a knife in the back and their only response is obsequious gratitude for the meaningless pat on the head.
I am so honored to not be liked or respected by such.
Though I am not terribly optimistic, this is not yet entirely over as we will be filing a petition for rehearing, en banc.
By the way, David, I recently wrote an article on Heller for S.W.A.T. Magazine, for next month's edition, that is likely similar to your Guns expose of the Court's betrayal.
While I still hold that we should go on the legal offensive, wherever we can, the future does look grim. The comments here have been spot on in their analysis and prognosis. I agree that we can expect most - if not all - federal judges to seize on the Heller dicta, especially the "common lawful purpose" crap, to confine the so-called "right" (actually treated as a privilege)to keep and bear arms as narrowly as they possibly can, upholding nearly anything and everything.
Stewart Rhodes
The problem is the courts are assuming the dicta as law rather than actually considering whether it is or not.
I think this will take a few years to fully flesh out. In the meantime, we need to keep pushing our local and national politicians.
It ain't over yet, but when the smoke clears we'll have to assess if we are where we need to be or whether more drastic measures need to be taken.
I'm guess that if it looks good, your 3% will be .3%. If it looks bad, it'll be more like 30%.
As a former Boy Scout, I adhere to the maxim, hope for the best but plan for the worst.
"Machine guns are not in common use by law-abiding citizens for lawful purposes" because the National Firearms Act of 1934, further enhanced by the Firearms Owners Protection Act of 1986 has created an ARTIFICIAL ENVIRONMENT in which everyday citizens simply cannot exercise their inalienable right to own such weapons.
Anyone who has an AR-15 variant who would immediately replace the semi-auto parts group with a full-auto group if it wasn't for the threat of incarceration say "AYE."
I would argue that in a natural gun-owning environment, the semi-auto AR-15 wouldn't even exist.
to straightarrow: I do recall your comments when the decision was handed down. I was also dubious; despite all the sophisticated legal minds who assured us that the "cell phone and handgun" passage was an obiter dicta and not the basis of the decision. A later court may take *any* part of an earlier decision if it likes as far as I can see, and that passage was egregiously prominent. FYI: IANAL. all the best, cycjec.
IANAL?
“I Am Not A Lawyer”
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