gwsb wrote:Chia I am not a lawyer in South Carolina or anywhere else. However it seems to me that congress and the pres could, with a simple majority, outlaw NFA firearms. As you point out the political realities might be different and there are so few of them that in any week you can see more of them on TV than actually exist in America.
I see a scenario, however, where on Jan 21 the new pres sends to the Senate a name to replace Scalia that would join with the other 4 to reverse the Heller decision and move the 2nd amendment from an individual right to a governmental right. Cities all over America would be free to vote to ban all firearms as Chicago and Washington did pre-Heller.
Whoo boy your post has a lot to unpack! No worries about not being a lawyer. I'm just glad you folks don't hold it against me....
most of the time. I strongly suspect that most lawyers hide it on forums like this because they don't want the blowback or are concerned about liability (hence my signature disclaimer, which applies to this post!). I'll switch from suggesting an investment to answering questions in this post.
First, the political reality. The president doesn't need to get involved at all. It's all up to Congress. But yes, you are correct that Congress could repeal the NFA. In a similar level of likelihood, Congress could also pass a budget each year like us normal people have to and could repeal the tax code. Neither seems likely, and I'd give similar odds for prohibiting NFA firearms.
Political realities aside, I'll briefly discuss the legal issues you bring up. First up is the Supreme Court. Attacking a law judicially is a heck of a lot more complicated than going through the legislative process. Unlike Congress, where you just need to present the bill and get a majority, you have to make an actual, real case, try it, appeal it, appeal it again, and then appeal it to the Supreme Court. This is a huge undertaking, and the odds of getting the Supreme Court to hear a case are slim. The Supreme Court receives at least 6,000 petitions per year. They actually hear arguments and decide less than 200.
So yeah, getting a case to the Supreme Court takes a lot of time, money and effort. It wouldn't happen in an instant, and you would definitely see it coming. There are many
groups that
track these cases. It would, at a minimum, take several years to get to the point that the Supreme Court would consider a legal challenge to the NFA. That's excluding any intentional slowing of the process during discovery at the trial level, which is almost certain to happen on such a contentious legal issue. Also, any decision by the Supreme Court is very unlikely to strike down the NFA. They have a case on it already: the
Miller case. Unless there are serious and significant differences, stare decises will control and the Supreme Court will not overturn that precedent.
Lastly, your point about cities. Let's assume that we get to the point you are talking about and that cities attempt to ban the firearms. States can already do this with NFA firearms. Not all do. But for those that do, cities are often locked out of legislating in that area by what's called a preemption statute. For example, South Carolina has S.C. Code Ann. § 23-31-510 states that "No governing body of any county, municipality, or other political subdivision in the State may enact or promulgate any regulation or ordinance that regulates or attempts to regulate [firearm possession, sale or transportation]." These are very common provisions, and I'll bet that this would be the next point of defense that the various firearms lobbyists would move to.
Tstamey, silencers are legally firearms, both under the Gun Control Act (GCA) and the NFA. You have to fill out exactly the same paperwork for a silencer as you would for a short-barreled shotgun.
Any other questions? I know we've gotten a bit far afield from the topic, but I thought this would be a good opportunity to clear up some confusion about this stuff. There has been a ton of snake oil sold about firearms law in the last few years, and one of the goals of my business is to make sure that firearms law gets cleaned up and made more respectable. It does not currently have a good reputation in the legal profession (gun trust lawyers are around ambulance chasers on the totem pole), and it really needs to so that attorneys learn this law and can properly help clients meet their goals. Nobody wants to be in the ATF's or a local USDA's sights for violating either the NFA or GCA, and I
REALLY don't want to see one of my clients there.