“A federal judge has dismissed charges against a Kansas man for possessing a machine gun, saying prosecutors failed to establish that a federal ban on owning such weapons is constitutional.”
From here: US judge tosses machine gun possession case, calls ban unconstitutional (msn.com)
Is this big news, or just taken out of context?
I’ve privately thought that those 1930’s style gun control laws that banned machine guns have killed more people than we can count.
By a plain reading of the constitution they are illegal. They bar Americans from owning military grade weapons, when we have a whole amendment that says militias are important and therefore our right to bear arms “shall not be infringed”. Those laws infringe on our rights to own the only sort of weapons that would actually be useful in a militia, military grade weapons.
We pretended it was perfectly legal because letting gangsters and lunatics own military weapons is completely insane. We all know it’s insane. But… instead of throwing out the insane 2nd Amendment and replacing it with something useful, we pretended that laws which plainly violate it are A-OK.
So, instead of having reasonable actionable gun restrictions, we have a hodgepodge of BS do nothing laws 30,000 dead a year and a huge group of citizens who are wedded to their guns.
Perhaps this is the first shot across the bow to throw those laws out. When someone actually, finally, does go Hollywood shoot-em up with a truly horrifying weapon, and we accept that the 2nd amendment prevents any way to stop it, we will get rid of the damn thing.
When was the last time your militia was called into service?
Why would you call up a militia armed with pea shooters? Anyway, the 2nd doesn’t say the militia actually has to be used, just that we should make sure the people are adequately armed for one, and we’re not. It’s very very good that we’re not, but the 2nd is also not a good law, so it’s better to violate it all the time.
I am not a lawyer but it seems to me that if a federal ban exists, surely the prosecutor can bring a case against someone violating it, without needing to show that the ban itself is constitutional?
I’m not an expert on the legal system, but I was unaware that it was a the prosecution’s job to establish such a thing was Constitutional.
Agreed. Any non SCOTUS judge is supposed to enforce the law as is. That way they can appeal. If the law is unconstitutional, that’s how they get it repealed.
Doing it this way would ironically keep it on the books (assuming we have the details) and enforceable, even in the same area, as long as it’s with a different judge.
We have a well regulated militia. It’s the National Guard, with units under the control of the states, and they supply their members with arms. Seems to me the second Amendment protects the several states more than it does individuals.
Besides, the only purposes of a “militia”, as intended by the Founders, were to fight Native Americans and hunt down runaway slaves, two things we probably shouldn’t be doing any more.
Burden of proof in a criminal case is on the prosecution. If the defence puts up a challenge to the application of the law to the facts of the case, I think the onus would then be on the government to defend the application of the law in that case. The article indicates that the judge found the law to be unconstitutional “as applied”.
The power to find a law unconstitutional is not limited to the Supreme Court.
Article III vests the judicial power of the United States in the Supreme Court and “in such inferior Courts as the Congress may from time to time ordain and establish.”
The lower federal courts have the duty to apply the Constitution, as the supreme law, and to hold other laws that conflict with the Constitution to be invalid.
This is the first time I’ve seen accelerationism applied to gun control.
I doubt it would actually make a difference, though. Someone DID go “Hollywood shoot-em-up with a truly horrifying weapon” when a sniper shot almost 500 people, killing about 60 and wounding hundreds more in the ensuing stampede.
How much more “horrible” could a fully automatic weapon possibly be? In the real world, the purpose of full auto fire is to suppress the enemy - IE make them keep their head down while your squad maneuvers - not to mow down hordes of enemies.
The danger in criminals having access to heavy weaponry is not that they’ll mow down civilians (you can do that perfectly well with semi automatic weapons, as the news proves again and again). The danger is that they would be able to hole up somewhere and direct enough firepower at any approaching police officers that the police are powerless to stop them. For a good example of what this might look like, see the 1997 North Hollywood Shootout and combine it with something like the Waco siege, but put cultists with M249s in elevated positions around the compound.
But heavy weaponry isn’t going to let you be that much more effective at killing civilians, and while a lone nujob gunman with heavy weaponry might have some advantage at keeping the police at bay, police already struggle to engage these guys effectively and they end up killing themselves when they conclude their rampage half the time.
It seems to me judges shouldn’t be able to dismiss criminal charges merely because the specific crime hasn’t been constitutionally approved by SCOTUS, but they can and do.
Especially if they happen to be Trump appointees, like U.S. District Judge John Broomes.
4 posts were split to a new topic: Just want to make sure everyone is clear that the Bill of Rights were the People’s rights, not the states, not the state militia. (Gun related)
Removed off-topic reply about the Bill of Rights to its own thread.
Lower court judges have to make decisions on the constitutionality of state and local laws all the time. Supreme Court decisions provide a framework for lower court judges to determine whether other similar laws are acceptable. There would be no way for higher courts to adjudicate every disagreement about the constitutionality of every challenge to a law that comes up in criminal cases due to the volume. One Supreme Court case can make 100s of state and local laws unenforceable, and the lower courts have to make a determination on that.
Dismissing the charges isn’t the end of the story. If a prosecutor thinks that the lower Court judge is wrong, she can appeal and ask for the case to be reinstated with instructions to the lower court judge that the law is indeed constitutional.
Let me see if I’m following this argument.
We have gun control laws. People are getting killed as a result.
So we should have less gun control laws. More people will get killed as a result.
Then we’ll get more gun control laws. Less people will get killed as a result.
This seems like an accelerationist argument and I generally believe those are wrong.
While not all together wrong this is unfair and a mischaracterization of past events and I gotta respond.
The military was the largest expense of all Nation States leading up to the 18th century, but because the ruler was always short of cash and those that had it (the landed gentry/merchant class) never wanted to give more than they had too. The results of this were centuries of all manner of degrading and onerous bullshit for the common man even on a good day. Things like being forced to room and board a soldier or two would be insane to modern citizens.
No liberal democrat at the Continental Congress had any experience or even contemporary governmental model to work with but they all were damn sure arms were necessary because fighting Britain and the rest of Europe was going to be a thing for here on out. And no one anywhere wanted to pay for it.
I do not agree the 2nd Amend is good policy now, but I am sensitive to the notion it was instrumental early on for why we are still a nation today.
It appears that the issue was raided by the defense, which probably makes it a valid issue for the judge to rule on. (I think in some cases a judge can simply rule that an issue is outside the court’s judgement.)
In this particular case, it appears Judge Broomes was bending over backwards to agree with the defense. The defense has presented an argument that there the machine gun ban was unconstitutional because the Supreme Court has ruled that gun control laws must match with historical traditions and they felt that the prohibition on machine guns did not do this.
The prosecution presented evidence of historical laws banning machine guns and other historical laws which banned certain types of weapons. Judge Broomes said he did not agree with what the purpose of those laws was and therefore would not accept them as evidence. In the absence of evidence he accepted the existence of, he was legally able to declare no evidence existed and therefore the law in question could be ruled unconstitutional within the guidelines set by the Supreme Court.
I would dispute this. It was already recognized in 1789 that a citizens militia was not a useful thing in a conventional war. The revolutionary war had demonstrated that militia units could not stand up to regular army units in battle. So if you wanted to win a war you needed a regular army. So the Continental Congress had no reason to enact protections for militias in order to fight Europeans.
The purposes of militias by 1789 was to fight non-conventional battles, like slave uprisings and fighting with Indians.