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My latest law review manuscript is online
At SSRN. It deals with NYSRPA v. Bruen, and in particular with the questions of (1) how many of those medieval restrictions on bearing arms even applied to the American colonies and (2) could 18th century Americans even have known of them?
The Court has often spoken of how we adopted the common law, but the fact is that (1) the colonies made their own laws, by judges or by legislatures, and adopted whatever they thought was suitable -- which the English restrictions on bearing arms were not -- and (2) all our sources on English law were only compiled much later, in 1810-1900. The colonists had to depend on commentator such as Blackstone to tell them what English law was, nobody had compiled the Statutes of the Realm or English Reports yet. The debate over the Statute of Northampton or the proclamations of Edward II has no relevance to what Americans of 1791 thought their right to arms was.
UPDATE: I hadn't thought of FOPA, specifically the 1986 ban on future full-autos. A few years ago I did, tho. I thought an attack might work if focused just on that. After all, at the time of its enactment ATF had testified that crime with registered full autos were virtually nonexistent. I did quite a bit of research, and had only found 3-4 homicides in which one was used (two I think were by LEOs), over an 80+ year period (I also found one use in self-defense). So how could the 1986 ban be justified, except as a completely arbitrary decision? Bruen of course rules out balancing tests, but in practice that will weigh on every judge's mind, "what will I look like if I strike that down?" For the 1986 ban, the answer would be "I merely struck down a law that had been aimed at a problem that didn't exist."
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Additionally, NFA does not fall into the period between the founding and the ratification of 14A that Bruen states we should review, therefore it is potentially not good 2A law.
So what will Happen with the NFA & FOPA?
Getting the court to protect ownership of actual military rifles (automatic ones) would mean they would have to dump the absurd "common use" test they have adopted.
It's a terrible test because:
1) It is nowhere in the Second Amendment. It is spun out of an old English court case saying it is not okay to "carry dangerous and unusual weapons to the terror of the public." That nixes brandishing weapons in a threatening manner (which we do not assert anyone has a right to do), but says nothing about owning and peacefully using any type of weapon. The court has twisted this into saying all weapons that are not commonly owned can be banned from ownership. That is a pure invention, created only to justify a ban on machine guns.
2) It is a circular argument. Machine guns are not in common use because they are virtually banned. Therefore it is okay to ban machineguns because they are not in common use. That is a crazy argument.
The most popular rifle in the USA is based on an automatic rifle. The only reason the vast majority of these are not automatic like Stoner designed them is because the government has banned making them.
3) It is very clear that ownership of military firearms were intended to be protected by RKBA... ones that citizens could use in combat for militia service. That is the primary purpose of the Second Amendment. The primary purpose of the Second is not to shoot burglars in your house. Every court case in the 1800's dealing with what type of weapons Americans had a right to own said unambiguously that we have a right to own military weapons. A few cases said Americans have a right to own any weapon. Literally no one asserted military weapons were not protected. Even the stupid Miller supreme court case said that military arms were protected.
4) It castrates the Second Amendment, which was written so that Americans can own military weapons for militia service to prevent abuses by the standing army and the federal government. It would allow any new advance in firearms tech to be banned by the Federal government.
When percussion caps were invented, the Federal government could have banned them for private ownership, because they were not yet in common use. And they could have proceeded to ban each new advance, making the protection of RKBA against tyranny totally obsolete. Crazy right? That is what the "common use" test allows.
This is in fact what the government is trying to do when they ban ownership of firearms in "common use" with modern militaries. They want to destroy the ability of Americans to own weapons that can resist them.
5) The Bruen case says that gun laws must be consistent with the early tradition and history of laws in the USA. There is zero history and tradition of banning military arms in the United States. None at all. This a a complete contradiction to the "common use" test.
When you use automatic weapons as a "presumptively lawful regulation," you imply that the NFA is presumptively lawful. The NFA is currently being abused by the ATF to make millions of citizens into felons with a wave of the Administration's wand. Bumpstocks, pistol braces, solvent traps, forced reset triggers, and personally manufactured firearms were previously deemed legal under the NFA by the ATF. Now these objects and activities are being used as a cudgel to chill the exercise of rights. ATF " . . . has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance." Congress is too cowardly to limit the ATF or correct the NFA, therefore we must rely on the courts. Courts that often depend upon legal scholars such as yourself to help form their opinions.
Please use a better analogy for presumptively lawful, perhaps felons in possession.