Quote of the day—David Hardy

At the time of its enactment ATF had testified that crime with registered full autos were virtually nonexistent. I did quite a bit of research, and had only found 3-4 homicides in which one was used (two I think were by LEOs), over an 80+ year period (I also found one use in self-defense). So how could the 1986 ban be justified, except as a completely arbitrary decision? Bruen of course rules out balancing tests, but in practice that will weigh on every judge’s mind, “what will I look like if I strike that down?” For the 1986 ban, the answer would be “I merely struck down a law that had been aimed at a problem that didn’t exist.”

David Hardy
September 7, 2022
My latest law review manuscript is online
[When you think about it, a realistic path to legalizing access to new machine guns is pretty amazing compared to the dark ages of the 1990s.—Joe]


16 thoughts on “Quote of the day—David Hardy

  1. This is interesting.

    I have not made a study of this. My armchair understanding was that automatic weapons were heavily regulated, first in 1934, in response to gang activity, which made use of automatic weapons. (The Tommy guns of the Capone era have been spoken of at great length.)

    I understand that very little crime with automatic weapons has been committed in the 80+ years since, and virtually none with legally owned automatic weapons. But it seemed to me that this could be a result of the heavy regulation. It certainly can be said that, since 1986, when the price of privately-owned automatic weapons went sky-high, private owners are not going to jeopardize a piece of equipment worth tens of thousands of dollars.

    Then again, legal owners of semi-autos are hardly a risk either. (Remember the oft-quoted statistic, that legal gun owners in the United States have a lower rate of violent crime than off-duty cops?)

    I’d welcome more light and less heat on this topic. I can see reasonable arguments on both sides. (On the one hand, I’m very much in favor of less regulation of guns, not more regulation. On the other hand, if we’re going to talk about “assault weapons” et al, forget the collapsible stock and the flash hider and the bayonet lug and other such irrelevancies; if one rifle is select-fire and another is not, that is the key difference, dwarfing practically everything else.)

    • The argument that regulation is what has kept people in check from using full-autos is tempting for many. But only works through a narrow view of the subject.
      Meaning it’s a great sound bite.
      When one digs a little deeper the argument evaporates.
      People set to kill their fellows or defend themselves in a life and death struggle won’t be worried about the cost of the tool used.
      Gang-banger style full-autos are so easy to make I’m still puzzle as to why the cartels haven’t set up factories? (Not like they don’t have the money.)
      Maybe because there just not that useful in crime? Because there not. One can do just as much damage with Glock 19. So why re-invent the wheel?
      But the real question is; Why are honest people so honest? The only reason for regulation is to protect government from honest people. Is not one to be held innocent until proven otherwise?
      The laws in this matter is 180 out of phase.
      Most full-autos were made for war. And then only in a certain roll in war. Which in peace time makes them a novelty. And mostly useful in entertainment. (Unless one needs to put defilade fire on a neighbor’s pill-box.)
      But as one can easily see in the 80 years since the NFA bullshit lie was passed into what some would call law. The gang-bangers and criminal class have done quite well. Flourishing beyond anyone’s wildest imagination. As the president, or whomever is controlling him has handed over our border to the cartels. (I always considered America the land of opportunity, but this is ridiculous.)
      And as statistics have shown, almost completely without automatics.
      Full-autos are the boogeyman told through Hollywood fairytales to scare Martha’s vineyard elites.
      Just as gun-mufflers are hyped as evil “silencers”, It’s all a bullshit lie. That stems from ignorance and imagination of over excitable children. (Or those who never grew passed that stage in life.) And little else.

  2. The NFA might not be struck down on the basis of its being a tax, but I think it is highly vulnerable to being struct down as it is implemented as a ban.

    Let’s be real: if the NFA’34 was implemented as a 5% excise tax on the specific items, and that tax was collected by the FFL at the point of sale, and the transfer of the item was covered by the same background check system as any other firearm, maybe with a NICS response of DELAY every time that would run out after 3 days, we’d grumble about it, but we wouldn’t be too fired up to storm the castle walls.

    But it’s not implemented that way. It’s implemented as a keeping-prevention system, and they cover the ban with the fig leaf of a registration system, and the registration system is intentionally under-resourced to incur arbitrary extra delays, further impairing the ability to keep. The tax collection is vestigial, which is proven by the fact that the cost to collect the tax exceeds all revenue realized. The legitimate purpose of taxation is the produce revenue, so if the expense of collection exceeds the revenue, then the purpose is something other than the enumerated power.

    Even under Bruen, the taxation power of Congress is unassailable. But there’s loads of scope for as-implemented challenges using the Bruen doctrines.

    • “Even under Bruen, the taxation power of Congress is unassailable.”
      I respectfully disagree.
      An amendment, amends that wrote before it. Our forefathers would laugh at the argument that congress should be able to tax firearms out of existence, which your statement would allow them to do.
      I would posit that taxes are an infringement. If they weren’t then congress would not even consider using them. Which is exactly the stated congressional intent of the NFA in the first place. Was it not?
      Make the tax (infringement), so high most people could not afford them? Or would not submit themselves to the infringement process? Thus, shuttering the industry and rights through infringement?
      Also the taxation argument for the NFA died in 68. You can’t enforce a taxation law on something you forbid people to possess. It’s like putting a tax on meth. And as you pointed out the absolute futility of collection. The congressional reasoning/intent of the law is infringement.
      Which the 2A forbids in total.

      • Oh, true, a vindictive tax for a purpose other than raising revenue is assailable, and that is totally what the NFA’34 is.

        The Pittman-Robertson Act is an excise tax on gun and ammo, but because the funds go straight to a fund that is used for wildlife preservation, it’s tolerated. I won’t say it’s completely 2A proof, because the 2A is not about hunting, but I don’t see enough fire to eliminate it.

        NFA’34 gets fire because it is implemented as an infringement through obstruction, incompetence, uncertainty and arbitrariness. The process is the punishment. If the NFA’34 was implemented the way the Pittman-Robertson Act is, and just taxed, there wouldn’t be anywhere near the fire to dump it.

        So, let’s say the case gets to SCOTUS and Roberts goes “It’s a tax” like he did with Obamacare, and the law is presumptively in Congress’s power to tax anything that is passed by normal Constitutional order. But, he goes on to say, “the delays, obstruction and petty bureaucracy makes it unconstitutional. Congress has deigned to fund any improvement in the process. So, unless Congress funds and implements a way for the payers of these taxes to complete the process in less than three business days, if not within the scope of a NICS check or a successor system, the collection of the tax will be enjoined. Furthermore, any item subject to tax, but the government will not collect it (i.e. Hughes Amendment), or cannot because of being enjoined, shall not be considered a taxable item at the time of purchase or transfer. This injunction shall come into effect 365 days from now, it is so ordered”.

        Basically, Roberts will uphold it as a tax, but only if the tax is payable in a manner consistent with any other tax imposed by Congress. That’s where it is vulnerable in the short term: the BATFE doesn’t implement the NFA’34 as a tax.

        Separately, we can get into the issue of the 2A limiting and constraining the taxation power. But that would also implicate the Pittman-Robertson Act. If Congress amended that one to tax all kinds of hunting and fishing equipment other than guns, gun accessories and ammo, it’d get out from under a 2A shadow and leave the NFA’34 standing lonesome on the field to be trampled.

        • I’m still going to stick with 2A amending ANY power that is used to infringe on the right to bear arms.
          Both civil and governmental.
          To say otherwise is to grant congress the power to be outrageous. (As our forefather noted that all governments become.)
          Force you to wear a monitor and pay a tax on your very breath? (Not something outside the imagination of Gates and friends?)
          Then choke you to death if you don’t pay?
          Such atrocities has been norm with the ATF and taxation, have they not?
          We must hold that all human rights unalienable. Thus, un-taxable.

    • Re taxation power: there’s an interesting comment in the Federalist Papers about this. I mentioned it in a letter to the editor of the Wall St. Journal (I think they printed it) in 2012:

      In yesterday’s editorial analyzing Justice Roberts’s opinion, you mention that the Constitution “gives Congress an independent grant of power to ‘lay and collect taxes…'”

      In 1787, when the question of limits on Federal powers was one of the major issues in the debates on whether to ratify the proposed constitution, anti-federalist writer “Brutus” argued that the proposed constitution was dangerous because this section places no limits on either the amount or the purpose of taxation.

      James Madison, replying to this criticism in Federalist #41, dismissed it, saying “But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?” In other words, he claimed — even though that seems a peculiar way to read the words and punctuation of Section 8 — that the first clause is NOT an independent grant of power but merely a summary of the specific powers listed in the subsequent clauses.

      It is clear that Justice Roberts has decided that Madison was wrong, and Brutus was right, and Federal power is unlimited. Perhaps what is needed is a “Madison Amendment”, replacing the semicolon after that first clause in Section 8 by “to wit”.

    • The idea is not to attack the NFA, at least not yet, but to attack the Hughes Amendment which was dubiously passed and closed the machine gun registry. At least that is how I read it.

  3. “(I also found one use in self-defense)”

    Two, that I’m aware of.
    The H&K employee using a privately owned select fire Ruger Mini-14 to stop an attack by some road-raging idiots. MD, I think, or VA. (at least one dead?)

    And the Gun Dealer protecting his shop and home from a large gang breaking in. He used 4 guns, including a S&W Model 76 sub-gun. Over 100+ rounds fired by him in total. (At least two dead, IIRC. He was trying to drive them off, rather than actually kill them, but that pair tried to run him down. (FL?)

    • Yeah, that FL shoot was right up the road outside of Gainesville. Idiots decided to rob a gun store kinda out in the woods(at the time) and ran into a guy who collected Class III stuff on the side. Game, set, match.
      You can still see the bullet holes on the store walls and yes the store is still in business.

  4. 1920s Gang violence was largely the result of the huge profits made available to criminals, corrupt politicians and corrupt police by the Prohibition of alcohol, and that violence curtailed significantly after the so-called repeal of Prohibition. It started coming back up again with the passage of drug laws which attempted to duplicate the violence and the government over-reaches of the 1920s.

    And yes; in the final analysis, a Tommy gun isn’t markedly more scary or deadly than a semi-auto chambered in an intermediate cartridge, e.g. 5.56mm NATO, of today. Where a machinegun really makes a difference is in repelling a group of enemies, or in stopping them and making them hunker down momentarily (A.K.A. “suppressive fire”), so that your comrades can maneuver upon them more easily. That tactic doesn’t overlap very much with gang violence, and in any case a semi can be used for suppressive fire also, as was demonstrated by the Americans in W.W. II in street fighting using the M1 Garand rifle and the M1 Carbine.

    If I were given the choice of a semi auto AR and a select fire AR, for use in a civil unrest situation, it would be a near toss-up between the two. So OK; I’d take the select fire because it can always be used in semi auto mode and I’d still have the option of full auto for the very unlikely event that it would make sense to use it. If you gave me the choice between a full auto only (no semi auto mode) and a semi auto AR for the same purpose, then I would definitely take the semi.

    • One of the important things that should be taught with a full-auto weapon is how to fire only 1, 2, or 3 rounds per trigger pull. Gets a little involved if it’s an open bolt, but certainly do-able with a closed bolt system. I think I would take a full auto closed bolt setup in that scenario choice.
      One of the major advantages of full auto is that EVERYONE reacts when they hear it. Crowd control is very much enhanced, and chasing off mobs might be it’s reason to exist in private hands.

  5. ”When you think about it, a realistic path to legalizing access to new machine guns is pretty amazing…”

    Yeah, I’d probably have to get at least one AR and one AK in select fire, and at least one beltfed for more serious defense. And hmm; what will happen to the ammunition prices and availability once there are a few million brand new machinegun owners? Someone’s going to have to start a new, high-volume primer factory if nothing else…

  6. Speaking of the gun world dark ages, I once revisited a very old thread discussing federal gun laws, and someone posted a link to some sort of relevant document on the ATF’s website.

    The thread topic immediately changed to ways to get the information through other sources, since few were comfortable having their IP address appear on an ATF server’s request logs.

  7. While getting the giggle-switch for new guns in normie hands is good, I’d be much more enthusiastic if the status of suppressors were to be regularized as an ordinary piece of gun furniture, or at most a 4473 item. Much more practical, useful, and affordable for most people.

    Not that I’d mind re-legalized new full-auto, but that’s expensive.

  8. The biggest problem with “normalizing” transfer/purchases of automatic weapons is that far too many people out there that already own them DON’T want to see the value of what they own drop. Said value skyrocketing after the gun ban of ’86(?). Best example registered mini-gun current value ~$750K + for a gun that costs ~$12K – IIRC to build. or Macs that cost $250 before the ban going for $10-12K

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