Post 86 Machine guns may become possible. NOLO

[Frank Ettin]

If it fires more than one round per trigger pull, it's a machine gun. There's no way around that.

The definitions I've seen say "an automatic gun that fires bullets in rapid succession for as long as the trigger is pressed" It's a technicality that can be debated, but that's not what burst mode is.

Your definition is the "common" or "casual" definition of machine gun. Tom Servo paraphrased the legal definition (the one that counts). See 26 USC 5845(b), emphasis added:

(b) Machinegun

The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.​

 

[JohnKSa]

that is where common use comes from, not people in general commonly use.

sawed off shot guns/ sbs got knocked out specifically because it wasn't commonly used by the military.
I forget the case name but it was specfically called out that way.

today the argument machine guns are not commonly used cannot be an argument.

You need to read Heller. Your definition of commonly used (involving military use) is absolutely not relevant to the discussion and explanation of common use in the Heller ruling.

 

[Tom Servo]

Your definition of commonly used (involving military use) is absolutely not relevant to the discussion and explanation of common use in the Heller ruling.

True, but can we hold the courts to this? After all, the lower courts have been actively thumbing their nose at other parts of the decision with impunity, and SCOTUS hasn't seen fit to intervene.

I really, really, really don't think we can win this right now.

 

[JohnKSa]

No, I'm not sure we could hold the courts to the standard of "in common use by citizens for self-defense" that they defined in Heller. They could always skirt the issue if they wanted.

What I AM certain of is that we can't hold them to the standard of "in common use by the military" since neither Heller nor McDonald states that common use by the military is a criteria for determining that a weapon can't be banned from civilian ownership.

 

[ATN082268]

End result, like the income tax. Although correct that it was never properly legally adopted, court rules it doesn't matter, we continue to keep doing what we are doing now.

Aren't the courts supposed to uphold the law? Examples like that don't inspire a whole lot of confidence in the legal system...

 

[44 AMP]

Aren't the courts supposed to uphold the law?

Wellll, that's what they did, now, wasn't it?

As I heard it, when the tax protestors actually did get to court with their claims about the law never having been properly ratified/adopted, the court looked at their evidence, and supposedly said, essentially, "yep, you're right, they did commit a procedural error back then. But, we've been doing it as law, for over 70 years, so we are going to keep on doing it as law."

I can't say if this story is true, but I find it entirely believable. And I think that attitude would prevail on the machine gun issue, as well. I think that, currently, that is the best we can hope for, and bringing up the issue risks them adding further restrictions, rather than the reverse.

sawed off shot guns/ sbs got knocked out specifically because it wasn't commonly used by the military.
I forget the case name but it was specfically called out that way.

I think you are referring to the Miller case, which was the first (and only?) challenge to the 1934NFA. In that case, the high court, essentially double talked their decisions. They didn't say that sawed off /SBS are not protected because they are militia weapons, they said that "this court has been presented no evidence that they are protected.." Which was true, actually, because govt did not introduce any, and the defense didn't show up....
(or so I have heard, )

to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.

This is a key part of the legal definition. No matter what else the gun does, or does not do, it must do this, to be a machine gun under the law. If it doesn't, or cannot, then its not a machinegun.

Another "urban legend" uses this point as the successful defense. The story goes, a guy made a perfect copy of a Tommygun, all out of wood, other than the springs. Rifled barrel, fully cut chamber, etc., everything a perfect copy of the real submachine gun, but made of wood.

ATF went after him, for having an unlicensed machinegun. Defense asked them to define "machinegun" and they entered the legal definition into the court record, including the part about firing more than once from a single trigger pull. Defense explains how firing a SINGLE cartridge in the WOODEN gun would shatter it, and rests. Judge throws case out.

Can't shoot more than a single shot per trigger pull, not legally a machinegun. Period.

Same kind of story, also about a Tommygun, guy made a beautiful model, I forget the actual scale, but it was smaller than a dollar bill. The guy was a master at miniatures, all parts faithfully rendered in wood and metal. Guy winds up in court, facing an unlicensed machinegun charge. Prosecutors say, its a machinegun, complete in all detail, and illegal, despite its size.

Defense says, "did you get it to shoot more than one shot per trigger pull?"
Prosecutor admits, "no, we did not".
"why not?"
sighs.."because no ammunition that can fit this gun exists..."
case is dismissed. Prosecution could not prove their case.

Amazing the stories one hears over the years, isn't it?

 

[ThesNazud]

A thought came to mind reading this... It pertains to suppressors. Namely, wouldn't it be possible, more prudent to chip away at all this by going for them via sporting applications. Granted using examples from other countries may not be as effective, but it just might. Using examples of how it would be benifitial for hunters to use a suppressor while hunting to risk spooking the game, to the health benefits of not needing hearing protection, thus possibly saving lives when hunters can hear what is around them better. We could even argue that gun ranges would benefit here as well, owing to noise reduction. I live a good mile and a half from the local range and I know exactly when the CCL classes and LEOs are doing qualifications. Sure it isn't overly loud, but it is there.

Granted the opposition will counter with 'if we make them legal, criminals will use them'. Personally I could see a rise in their use, especially if they are an item that you can just go in and buy, like scopes, ammo, and such. I would not be opposed to them being regulated and having to go through the same process for getting on that I would for a firearm period.

 

[Tom Servo]

Namely, wouldn't it be possible, more prudent to chip away at all this by going for them via sporting applications.

It would be nice, but chipping away at that means chipping away at the NFA as a whole. That includes machine guns and destructive devices.

That's the root problem: all that stuff is tied together.

 

[ATN082268]

Aren't the courts supposed to uphold the law?

Wellll, that's what they did, now, wasn't it?

As I heard it, when the tax protestors actually did get to court with their claims about the law never having been properly ratified/adopted, the court looked at their evidence, and supposedly said, essentially, "yep, you're right, they did commit a procedural error back then. But, we've been doing it as law, for over 70 years, so we are going to keep on doing it as law."

Well, yes and no. The courts upheld the Federal Income Tax law but disregarded the law required to pass it in the first place (assuming that was true). And using an excuse along the lines of since we've been doing it for a long time now that makes it law, is the lame icing on the cake...

 

[spacecoast]

I hope the protagonists in the lawsuit have more vision and inspiration than those on this thread who seem to be resigned to the status quo.

 

[JohnKSa]

Vision and inspiration don't change the facts. You can have all the vision and inspiration in the world, but you still won't be able to fly by simply flapping your arms.