Court filing argues post-1986 machine gun ban 'defies Constitution' :: 03/06/2015

Claiming the “ban on the quintessential militia arm of the modern day defies the protections our Constitution guarantees,” the legal team led by attorney Stephen D. Stamboulieh filed a sur-reply February 27 in the case of plaintiff Jay Aubrey Isaac Hollis against Attorney General Eric H. Holder, Jr. and Bureau of Alcohol, Tobacco, Firearms and Explosives Director B. Todd Jones. The additional reply was in response to “defendants’ reply to plaintiff’s response in opposition to defendants’ motion to dismiss, or in the alternative, for summary judgment.”

Hollis, acting individually and as trustee of a revocable living trust, is suing Holder and Jones in their official capacities for administering, executing and enforcing “statutory and regulatory provisions [that] generally act as an unlawful de facto ban on the transfer or possession of a machine gun manufactured after May 19, 1986.”

That Judge Barbara M.G. Lynn of the United States District Court for the Northern District of Texas Dallas Division (the court's Fort Worth Division last month declared the interstate handgun transfer ban unconstitutional) used her discretion and permitted a sur-reply indicates an interest in the plaintiff’s arguments, and if the government can be responsive to them. That she then issued a March 3 order giving the defendants until March 11 to file a sur-sur reply could indicate she has concerns over the lack of substance on government filings submitted to date, and is not even sure if defendants will produce anything more than continued obfuscation and misdirection.

Arguing against the preposterous claim that plaintiff Hollis lacked standing, the sur-reply went on to challenge contentions regarding levels of judicial scrutiny and the government’s interpretation of Heller case applicability, and to expose wholly unsubstantiated arguments for a ban based on non-existent crimes.

Referring to the earlier case of United States v. Miller, the sur-reply explained that “Miller’s phrase 'part of ordinary military equipment' could mean that only those weapons useful in warfare are protected.” Instead, plaintiff observed, Heller actually “expands upon Miller and found that weapons which have personal self-defense value are protected regardless of whether they have military value.”

As for those weapons that do have such military utility, and refuting government claims to the contrary, that only three-round burst firearms are standard issue, plaintiff noted squad automatic weapons are “by definition bearable upon the person, fully automatic and designed to be operable by one person,” and “The U.S. military currently issues a number of fully automatic light machine guns to its ordinary soldiers.”

“[T]he machinegun ban is unconstitutional both facially and as applied to Mr. Hollis,” the sur-reply concluded. How Holder and Jones will reply remains to be seen, but one reality cannot be ignored, at least with any pretense of logical consistency: As Hollis will not overturn current requirements for owning machine guns, but merely remove the ban on more recently-manufactured firearms, it seems inconceivable for the government to contend that it trusts citizens to own machine guns manufactured before May of 1986, but anything functionally-identical made after that is just too dangerous for “civilians” to possess.