Thursday, July 10, 2008


I feel no need to comment. This article says it all. This is dedicated
specifically to those who doubted what I said about the Heller
decision-- that is, it didn't change a damned thing, except 'allow'
(which I think is mighty white of them) the folks in DC and (perhaps)
a few other metropolitan areas own handguns.
Mike Kemp

[Eugene Volokh, July 7, 2008 at 7:06am] Trackbacks
One of The First Post-Heller Second Amendment Opinions:
Mullenix v. BATF (E.D.N.C. July 2, 2008):

Plaintiff is a federally-licensed firearms dealer, and alleges
that the ATF arbitrarily denied him permission to import a
reproduction of a World War II-era German machinegun[, the BD44]....

Title 18, section 925(d) of the United States Code provides that
certain types of firearms may be imported into the United States.
Among these are firearms "generally recognized as particularly
suitable for or readily adaptable to sporting purposes." ... [T]he ATF
determined that the BD44 was not importable under section 925(d)(3)
because it was not "generally recognized as particularly suitable for
or readily adaptable to sporting purposes." Plaintiff challenges the
ATF's decision. Plaintiff argues that the ATF's interpretation of
section 925(d)(3) is arbitrary and capricious, and seeks damages for
lost income resulting from his inability to sell BD44s to prospective
military re-enactors....

Plaintiff first argues that "[a]ll bans [on gun ownership] are
clear unconstitutional infringements to the right to own and bear
arms.... [In Heller,] the Supreme Court rejected the notion that the
Second Amendment right is unlimited:

Like most rights, the right secured by the Second Amendment is
not unlimited. From Blackstone through the 19th-century cases,
commentators and courts routinely explained that the right [to keep
and bear arms] was not a right to keep and carry any weapon whatsoever
in any manner whatsoever and for whatever purpose.

In light of Heller, plaintiff's facial challenge to section 925(d) fails.

Alternatively, plaintiff contends that, although Congress has the
power to regulate the individual right to keep and bear arms,
"regulation" of that right is limited to reasonable time, place, and
manner restrictions. According to plaintiff, Congress may not
"regulate" his individual right to keep and bear arms by declaring
that he may not own certain types of arms, and he may accordingly own
almost any type of weapon he chooses (including the BD44) so long as
he complies with reasonable time, place, and manner restrictions. See
[plaintiff's brief] at 7-8 ("[N]ever does Congress have the right ...
to ban the ownership of any defensive arm equivalent or superior to
that used by the standing armies of the United States.").

Unfortunately for plaintiff, the Supreme Court rejected this
argument in Heller. See Heller at *26 (construing United States v.
Miller, 307 U.S. 174 (1939), to hold that "the type of weapon at issue
[a sawed-off shotgun] was not eligible for Second Amendment
protection"); id. ("Miller stands ... for the proposition that the
Second Amendment right, whatever its nature, extends only to certain
types of weapons."); id. at *27 (finding it a "startling reading" of
Miller to suggest "that the National Firearms Act's restrictions on
machineguns ... might be unconstitutional"); id. at *28 ("[T]he right
[is] not a right to keep and carry any weapon whatsoever....").
Accordingly, in light of Heller, the court rejects plaintiff's
challenge to section 925(d), and rejects plaintiff's claim that the
Second Amendment entitles him to possess the BD44 in this case.
Not a surprising result, or likely an important one, but it is one of
the first, so I thought I'd note it.

UPDATE: When I posted this, I labeled this the "first" post-Heller
Second Amendment opinion -- forgetting that Lexis sometimes has
unpublished cases that Westlaw doesn't, and neglecting (for no good
reason) the fact that some unpublished cases never make their way to
Lexis or Westlaw and a few others take some time to get posted. I've
revised the title accordingly, and will blog shortly on at least one
earlier post-Heller Second Amendment case. Thanks to commenter
ClosetLibertarian for reminding me about this.

1 comment:

Anonymous said...

*Cough Cough* Regardless, it's already been imported post-Heller.