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« Rumors about Vets' Affairs being party to disarming vets | Main | CCN takes on BATFE management »

Sup. Ct. reaffirms that use of machinegun is an element, not a sentencing factor

Posted by David Hardy · 24 May 2010 10:27 AM

U.S. v. O'Brien, handed down today. 18 USC ยง924(c) provides for 5 extra years' sentence for use of a firearm in certain federal crimes, and 30 years' extra for use of a machinegun. So does that mean (1) use of the described firearms is a sentencing factor, making for a stiffer sentence for the underlying federal offense, or (2) this describes an independent crime, with elements of committing the underlying offense and of being armed while so doing? If the first, the fact of being armed can be decided by the judge during sentencing; if the second, it must be decided by the jury, since it is part of the crime.

Years back, the Supreme Court had ruled that 924(c) described a separate offense, and an element that must be proven to the jury. But Congress amended the section in 1998. Now, per Justice Kennedy, the Supreme Court rules that the 1998 amendment and restructuring does not change things; it remains a new offense with element that must go to the jury for determination.

· Gun Control Act of 68

2 Comments | Leave a comment

David McCleary | May 24, 2010 12:11 PM | Reply

Given statuary law and the law of this case I cannot for the life of me understand why law abiding citizens are precluded from making buying or possessing MGs manufactured after 1986.

This clearly punishes behavior as opposed to mere possession.

fwb | May 24, 2010 2:39 PM | Reply

Could you please point to the clause in Article 1, Section 8 that grants Congress any power of punishment of this sort? I note there are specific grants which demonstrates that the power to punish is disconnected from the other powers (See coinage powers). I see an explcit grant to punish piracies and felonies on the high seas. I see a specific grant to punish offenses against the law of nations. And in Article 3 Section 3, I see an explicit grant of what would be called an inherent power, the power to punish treason. Funny that the Framers did not see the implied power over punishment that the Courts seem to find between the lines of the document.

I see no grant for federal police power in the area in question.

And my studies of the Constitution provided me with the understanding that the police powers, except as noted, were left to the states.

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