steve4102 wrote:In the mean time, cite your statute and case law that declares or even attempted to declare any part of the Gun Control Act of 1968 Unconstitutional.
Now you're just trolling, which is likely what you've been doing throughout this thread. No case law exists, yet. As I stated, now that the 2nd amendment has been found to protect an individual right, the 5th and 14th amendment due process clauses must apply to 2nd amendment. A person cannot be deprived of his 2nd amendment rights without due process of law. Period.
As to your argument regarding form 4473 section 11, you'll note my use of the word
potentially, as the likelihood of this to be a constitutional violation is less certain. I tend to believe it is a violation however, as it requires a person to incriminate themself or commit a crime by lying on a federal document in order to exercise a fundamental human right. The courts have found that barriers to the free exercise of rights (or even privileges) are very often unconstitutional. Think poll taxes. Requiring a federally licensed dealer to complete a standardized form for transfer is one thing. Requiring the transferee to incriminate themself, potentially for crimes that they have never been convicted or even accused of, and making it a federal crime to lie, all as a prerequisite for the exercise of a fundamental human right is very very deep into the gray area constitutionally. Again, this is less certain, which explains my usage of the word
potentially.
With the exception of the NFA of 1934, all federal firearms laws are specifically worded to apply to licensed dealers and manufacturers, and of the transfer of a firearm (Any FFLs out there please correct me if I'm wrong on this). The reason is that the federal government does not have a constitutional charter to regulate firearms. They do so under the commerce clause of the constitution. Through this piece of convoluted legal precedent, they are able to regulate the manufacture and transfer of firearms, as they effect interstate commerce. They are
not able to regulate the
ownership of firearms through the commerce clause, as simply being in possession of a firearm does not effect interstate commerce.
The government
does claim that they can regulate the ownership of NFA weapons based on the theory that NFA weapons are not protected by the 2nd amendment. This was decided in favor of the government by the supreme court in US v. Miller in 1938. However, this ruling is highly unusual as the plaintiffs filed no brief and did not appear before the court for oral arguments. The court simply had to accept the governments arguments as no opposing arguments were made. In the Heller ruling the court stated that the Miller ruling was so unusual that it should not be considered to set a legal precedent, and held the only valid finding from Miller was that the 2nd amendment protects all weapons that are commonly used for lawful purposes, and not those that are commonly used by criminals for crime. By this definition, its also possible if not likely that NFA weapons
are protected by the 2nd amendment, as they are commonly used for lawful purposes, and almost never for crime. Despite the fact that several hundred thousand machine guns are privately owned in the US, only twice since 1934 has a lawfully registered machine gun been used in a crime. This is another area that I would like to see reexamined by the court post-Heller at some point.
I won't state with absolute certainty that there has never been a case where a person has been charged with a federal crime for being in possession of a non-NFA weapon. Based on my understanding of the law, I doubt that it has happened. I believe that the only convictions you will find will be for the unlawful manufacture, transfer, or possession at a federally prohibited location. Again though, if ou know of one, provide the cite.
