Western Rifle Shooters Association

Do not give in to Evil, but proceed ever more boldly against it

Friday, September 12, 2008

Heller Spawn, Encore

Ohioans for Concealed Carry posted this report from Jeff Knox on the aftermath thus far of the famous Heller victory:

Courts Misusing Heller

Written by Jeff Knox

Wednesday, 10 September 2008
The Knox Report
From the Firearms Coalition

(September 10, 2008)


A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.” (Instructions to the jury in U.S. v. Gilbert)

In the months since the US Supreme Court’s landmark decision in District of Columbia v. Heller, there have been over a dozen rulings by judges referencing the case and virtually all of them used Heller to support limitations on firearms rights. The degree to which they used the opinion ranged from simply rebutting an appellant’s erroneous claim that Heller nullifies the law under which they were convicted, to actually using the language in the Heller opinion to support restrictions as constitutional. In U.S. v. Gilbert, the Federal Court of Appeals for the 9th Circuit did both.

On appeal, the 9th Circuit rejected Gilbert’s claim that the Heller decision’s recognition of the Second Amendment as protecting an individual right meant laws against felons possessing firearms and laws restricting possession of machineguns were unconstitutional. The Appeals Court correctly rejected this contention, citing specific language in Heller which states that the decision is not to be taken to cast doubt upon the constitutionality of such laws. Had the court stopped there, no one would have reason to fault them, but the court didn’t stop there. Instead they went on to suggest that Heller actually declared such laws to be constitutional.

There is a big difference between the Supreme Court saying, “We’re not addressing these issues” and the Court saying, “These laws are constitutional.” The Court was very careful in Heller to only make legal holdings which directly applied in that specific case. Though they did wander off into other territory, these wanderings were in the form of saying what the decision was not intended to do or impact, not how the Constitution should be interpreted in these specific areas.

Still, the 9th Circuit declared not only that Heller did not support Gilbert’s defense, but that it reinforced the lower court’s decision to include the Second Amendment information in the jury instructions. The Circuit Court held that, “Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms.” They went on to conclude that the judge’s comments on the Second Amendment in the jury instructions were correct and proper because Gilbert had improperly asserted that his actions were protected under the Second Amendment.

What the 9th Circuit failed to do, and part of this is the fault of Gilbert's attorneys for not making the right arguments, was cite legal evidence for the accuracy of the special jury instructions. For over 70 years courts have based Second Amendment decisions upon a flawed interpretation of the 1936 Miller case. Virtually all of the legal support for the constitutionality of gun control laws lies on the foundation that Miller declared the Second Amendment to only apply to participation in government organized militias. Since Heller clearly declared this position to be void, restoring the Second Amendment as an individual right with no requisite connection to a government militia, all of the previous case law falls apart and can not be used as a basis for limiting Constitutional Rights.

In a footnote within the Heller decision, the Court makes an observation that should be reviewed and applied by all judges trying to use Heller or prior case law as justification for limitation of Constitutional rights. The footnote is talking about a case which used Miller as a foundation for its conclusion and this is how the Court responded to that court’s approach:

“It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.”

It is still very early in the judicial life of the Heller decision, but the initial applications of the decision do not bode well for the future. What is particularly disturbing is that the pro-gun legal community doesn’t seem to be particularly bothered by these decisions and is not raising a vocal alarm. Imagine the uproar if courts had used prior case law to support school segregation after the Supreme Court decision in Brown v. Board of Education. Such decisions would not have been allowed to pass quietly into the record for citation in future cases. These decisions using Heller, and precedents invalidated by Heller, should not be allowed to do so either.


Permission to reprint or post this article in its entirety for non-commercial purposes is hereby granted provided this credit is included. Text is available at http://www.firearmscoalition.org/. To receive The Firearms Coalition’s bi-monthly newsletter, The Hard Corps Report, write to PO Box 3313, Manassas, VA 20108.


©Copyright 2008 Neal Knox Associates

Folks who can bear to do so should go here to read a series of post-Heller cases from the Federal courts.

Just keep telling yourself it will be OK.

Maybe that will work.

Tempus fugit.

3 Comments:

Anonymous Paul W said...

Heller was deliberately decided on a narrow basis, and is vague in other areas. While I'd have liked to have seen all infringements named and overruled in that case, such cannot happen and I didn't expect it. We lost our ability to freely exercise lots of the rights embodied in the 2nd's RKBA over many decades, and it'll take time to get it back (short of a 2nd Revolution with the victors being of the same mindset as most who read this blog).

I hope that Gilbert appeals to the USSC. Fact is that the 9th is the single most overruled Circuit in the system, and there's no close second. The case appears to have WAY over-reached, and I can easily see the USSC overruling it. The machine gun part, in particular, is very vulnerable, because a very strong argument can be made that it is closely tied to the purpose of the militia (to repel invasions or put down rebellions - go try either without having full autos).

For over 70 years courts have based Second Amendment decisions upon a flawed interpretation of the 1936 Miller case.

1939; however, the rest of the analysis is fine.

September 12, 2008 at 7:12 PM  
Anonymous Anonymous said...

So what else is new, a felon going into court under a charge of being a felon in possession of a short barreled rifle and a machine gun, will find no comfort in Heller.
1. Convicted felons can not possess weapons under our laws, and if caught with them while engaged in another crime, they should be prosecuted to the full extent of the law.
2. Short Barreled Rifles and Machine Guns fall under the NFA, The court was wrong in issuing its instructions to the jury that these items are illegal to possess, they are not under the law, but the NFA requires that such weapons be registered and a tax stamp paid to show legal possession. This is something a felon can not do see #1 above, but that you can depending on the laws in the state were you live, and if your state does not allow possession of NFA weapons work to change the laws, or Move!!!
I would not live any place that restricted my rights in this matter. I am a fighter for gun rights in my state and have fought and won a court case in my state when my local government with the backing of state officials tried to violate the state constitution to restrict gun rights, one must always stand up and fight in these matters or be a slave. Having said that there are a number of writers around the country that are beating the drum for Heller to their own ends. I say this because I live in the Washington area and have met Heller and the attorneys that took the case to the Supreme Court (SCOTUS) after the win in the DC circuit and after the win at SCOTUS. Heller laid a good foundation but there is a lot of work still to be done. One of the most important thing the attorneys did in Heller was to Choose the Right Case, writers screaming at the top of their lungs about felon cases is a waste of news print.

Courts can act but in one way in these matters, Felons can not possess Firearms under our Laws, get over it.

Courts will make bad ruling in Heller until supporting law is fleshed out, this is normal and we must fight to correct bad law.

As to the NFA this is a fight that has gone on for a long time, and as an aside the attorneys in Heller did not want to address the NFA when it was bought up by the US Solicitor General as a red haring to scuttle the case for HELLER, they did a very good job saying that the law existed, (that is the NFA), and worked for its purpose, and left it at that. All of these briefs are on line at WWW.DCGUNCase.com or by Googling Heller, primary sources are always the best. Take some time read these briefs its important. I was at a talk the chief attorney in the case gave soon after Heller was decided, and he stated as much as was in his brief, we must all remember Heller was not about the NFA and he was not paid to defend it or defeat it, his job was to win Heller and that he did very well.

My view: Are their things about the NFA that need to be changed, "Lots".

Can we get the changes needed by attacking the whole structure of the NFA, "No".

Do I believe that the refusal to register Newly Manufactured Machine Guns with the purpose of selling them to the Public, (as an aside: and not to state and local governments which is still legal today), under the NFA is legal, "NO".

The question is how to attack this illegal law that came in with Clinton's Assault Weapons Ban. The NFA is a Tax Law, the under laying history and legislative history says so, registration is required to pay the tax, proof of paying the tax is a registation letter fron the ATF with the Tax Stamp upon it. The Federal Government now says, they refuse to collect the tax, and thus have close the registration window, the effect of which is you can not register a newly manufactured machine gun for you a regular Citizen of the United States, to Lawfully Own and Possess, this now only effects machine guns and not other NFA items, They congress did not change the under laying law, and that is the issue in my mind, can the law stand if you strip part of it away, the most important part that being; collecting the tax. Can you on one hand stop taking the tax, and the requirements to take the tax, and on the other prosecute a lawful citizen, non felon for possession of an NFA weapon he has manufactured and no tax has been paid on after this law took effect, because the state refuses to collect it even if offered, it was perfectly legal to manufacture machine guns for personal use so long as you paid the tax first before this law came into effect, if you where selling to the public you needed an additional federal license,so far the answer has been yes. Attempting to pay the tax before manufacturing this new machine gun will not work as the State will not take the tax, and so far this does not give standing in court to challenge the law on its merits, ( as an aside this has had the effect of driving the price of machine guns up to investment grade items) how does one get into court with a case challenging the law with out violating the NFA and opening one self to the penalties attached to the law, the Courts have no Sense of Humor when it comes to the NFA as all to numerous people have found out to their cost, and in that; it is the same as in Heller, finding the Right Case and Getting Standing. The other means of attacking this is in congress where this illegal law was passed in the first place, but that opens up a whole other can of worms.

I could write more but this covers the basics, if you don't buy what I say, research it your self, but use real sources, there is too much junk floating around in the ether that is just that junk.

This case is a great way to introduce your kids to the law and our constitution and history and is a good read take the time and read it.

Good Shooting

The Black

September 12, 2008 at 7:44 PM  
Anonymous Paul W said...

"Do I believe that the refusal to register Newly Manufactured Machine Guns with the purpose of selling them to the Public, (as an aside: and not to state and local governments which is still legal today), under the NFA is legal, "NO".

The question is how to attack this illegal law that came in with Clinton's Assault Weapons Ban."

I don't think that the machine gun ban [Title 18, Section 922(o)] is constitutional, either. However, much as I despise Clinton and the folks that passed the AWB in '94, the machine gun ban was passed in 1986 as a last minute tacked-on provision (which wasn't voted on) to the Firearms Owners Protection Act ("FOPA"). Reagan signed this bill, mainly because there were so many other provisions that gun owners needed (interstate travel, ammo purchases without record-keeping, controls on BATF, etc.). Yeah, I know, the BATF wasn't very controlled by this law, as the folks at Ruby Ridge and Waco found out - they break the law, tell me something new.

I do think that this provision can be overruled someday, hopefully soon, but I'm not holding my breath.

September 16, 2008 at 10:30 PM  

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