Jay Hollis Strikes Another Blow for the Second Amendment

[Bartholomew Roberts]

http://www.ca5.uscourts.gov/opinions/pub/15/15-10803-CV0.pdf

More pro-2A litigation establishing bad precedent in one of the most pro-2A jurisdictions in the U.S. If I remember correctly, this may ne the same Jay Hollis who attempted to make a 1919 receiver about ten years ago arguing a doomed-to-failure angle never considered by any court.

I question whether this isn't putting the cart before the horse by trying to go after politically difficult, unpopular changes when we aren't even having luck with minor, politically popular ones.

 

[barnbwt]

Hollis filed a Form 1 to manufacture a machine gun for a trust, because of apparently contradictory language regarding trust applicability in the Hughes Amendment vs. the 68 GCA. The form was approved, and given a stamp.

The ATF then immediately 'disapproved' their approval (the authority to do so being somewhat questionable itself), given Hollis standing to file suit. I don't know if it's the same guy as last time, but this time around the attorney has a veritable quiver full of arguments at the ready, and has actually accumulated some rather 'interesting' evidence that undercuts many of the ATFs claims about the extent of their authority.

Unlike previous MG cases, this one has the many facets of the Heller & McDonald opinions to draw from (yes, Heller specifically mentions once that 'uncommon or dangerous weapons like MGs' may be restricted, but mountains of irrefutable arguments elsewhere in the same opinion support protection of machineguns), evidence of poor administration of the Registration by the ATF (changing numbers of MGs, post-86 transferrables, firearm models invented after 86 appearing as items on pre-86 forms), tons of informed testimony about the utility and reality of full auto & its true level of 'danger' relative to semi-auto, a tortuous web of contradictory ATF opinions on what constitutes automatic vs. semi-automatic, and even the recent court case which found Tazers to be protected weapons due to being in 'common use' (there are more privately held transferrable machineguns than Tazers)

Hollis filed suit. First, he claimed that Section 922(o), which bans
machineguns, violates the Second Amendment. Second, he claimed that
Congress exceeded its power under the Commerce Clause in enacting Section
922(o). Third, he alleged the Government took his property, the M-16
machinegun, without due process of law. Fourth, he asserted the ATF has
approved other machinegun applications after 1986, and therefore, the ATF’s denial of his application was an equal protection violation. Fifth, he claimed
Section 922(o) does not prohibit an unincorporated trust from manufacturing
or possessing a machinegun.

 

[Bartholomew Roberts]

I was mistaken. I was getting Jay Hollis mixed up with Hollis Wayne Fincher.

Though I still think challenging 922(o) is a dead end at this point.

 

[barnbwt]

The primary battle being fought for in this case is actually discovery, believe it or not. There's a whole parallel set of FOIA requests for the Registry, or at least some form of audit of the Registry, to determine whether/if the ATF has been selectively (i.e. without equal protection) approving machinegun build requests to favored politicians or donors, as a highly secretive form of graft. There are certain firearms able to be transferred out there that were not invented in 1986. There are highly valuable models of MGs that, if their serial numbers are validated with the ATF's registry, return as being attached to much less valuable common models.

The registry has never been audited, and has never been subjected to any kind of independent oversight from what I understand. The evidence of impropriety within it is certainly grounds for an investigation or discovery, and may constitute an effective argument against the whole scheme altogether.

TCB

 

[Tom Servo]

Though I still think challenging 922(o) is a dead end at this point.

It's worse than a dead end. It can actually hurt us.

If this case goes to SCOTUS, Breyer owns it. He'll have Sotomayor, Kagan, and Ginsburg in his corner. Without Scalia to act as a counterweight, Kennedy will swing to the other side. Roberts will probably waffle since this involves machine guns, which are pretty much the third rail in the gun debate.

That leaves Thomas and Alito, who I'm sure will write eloquent (but futile) dissents. Even if the world's most pro-gun associate Justice gets confirmed in time, he won't have the clout Scalia had. That's the important part.

We'll be stuck with a majority opinion that machine guns are "dangerous and unusual," and that "weapons of war" or somesuch do not deserve constitutional protection because of public safety or whatnot. That leaves the door open to the constitutionality of bans on high-capacity magazines and semiautomatic "assault weapons."

This is the sort of case Breyer and Ginsburg have been waiting for. They've both gone on record extensively, saying that Heller was deficient and they'd like to see it rolled back. The Hollis case doesn't quite do that, but it does let them box the RKBA into exactly what Heller said and not one bit more.

Does Hollis care? No. When this went to the Texas District Court, he did a Q&A on Reddit in which he said his only concern was that he be allowed to build a machine gun. He seems to be under the impression that if he loses, the only thing that'll happen is that he can't do that. He doesn't understand, or he just doesn't care, about the horrific long-term consequences he could leave us stuck with.

The aspect that bothers me the most? The younger generation of gun owners won't listen to our warnings. They think the courts work like a retail transaction, and the only reason the NFA is still in existence is that us old fogeys haven't bothered to challenge it. They have no sense of scale or history, and this is where that becomes a very real problem.

 

[carguychris]

There's a whole parallel set of FOIA requests for the Registry, or at least some form of audit of the Registry, to determine whether/if the ATF has been selectively (i.e. without equal protection) approving machinegun build requests to favored politicians or donors, as a highly secretive form of graft. There are certain firearms able to be transferred out there that were not invented in 1986... The registry has never been audited, and has never been subjected to any kind of independent oversight from what I understand. The evidence of impropriety within it is certainly grounds for an investigation or discovery, and may constitute an effective argument against the whole scheme altogether.

(My emphasis underlined)

I'm not certain I agree with your assertion. Given the potential political fallout, I would think that the most feasible gov't responses to such a discovery would be to (a) try to keep the whole thing quiet, and (b) if that doesn't work, simply say "whoops" and conduct a dog and pony show to collect some of the improperly registered weapons.

Keeping everything quiet may work very well for the gov't, because very few people outside the gun community really have any interest in the NFA, and hence very few journalists have any interest in trying explain the minutia of the 86 FOPA and NFA trusts to the layperson. We live in a 30-second soundbite culture.

I think Tom Servo's last post is absolutely on-point. IMHO the NFA in general and the 86 Hughes Amendment in particular, despite their unpopularity in some corners of the gun community, are political third rails. Even if some provisions of the NFA are undermined by the SCOTUS (which I strongly agree is unlikely), they WILL be replaced with lightning speed, and most likely with something even worse—and the fallout may spill over to items NOT currently covered by the NFA.