A guy named Jay Aubrey Isaac Hollis has started a crowdfunding campaign. His goal is to bring litigation against Attorney General Holder on the grounds that the National Firearms Act and 1986 Hughes Amendment are unconstitutional.
In short, he submitted a Form 1 to the BATFE for approval to build a machine gun for personal use, even though it's illegal for him to do so. Somewhere along the line, somebody got their wires crossed, and it was approved. The BATFE recognized the error and revoked their approval the same day.
Mr. Hollis seems to think this is his big Mr. Smith Goes to Washington moment, and he's presenting a batch of Hail Mary passes to the Northern District court in Texas. Seriously, this is what he asks for in the opening pages:
- overturning Wickard v. Filburn
- declaring "unjust taking" under the 5th Amendment because an erroneous approval was reversed
- applying strict scrutiny to all matters involving the 2nd Amendment, despite the fact that most Circuit courts have rejected the idea
- revisiting the legislative process behind the passage of the Hughes Amendment
Even if the District court sides with him, the next step is the 5th Circuit. They're not gun-friendly. They won't even acknowledge that the right to bear arms extends to those under 21 years of age. What makes anyone think they'll side with us on machine guns?
They'll take the easy way out, as they did in McGraw: by citing vague "public safety" claims. Nobody in the lower courts is going to volunteer to be the guy who legalized machine guns. And they have an easy way out: Heller's dicta about "dangerous and unusual weapons" and weapons "in common use."
That, or they can simply point out the instructions for the form Hollis submitted:
(1) 18 U.S.C. § 922(o) provides that machineguns may be made only for government use or export. An application will be denied unless the making meets these criteria.
If this made it to the Supreme Court, who would side with us? Maybe Scalia and Alito. Maybe. But we wouldn't get Kennedy, and we needed his vote just to acknowledge that the 2A guaranteed an individual right in any form.
They didn't specify a level of scrutiny in Heller or McDonald. All they said was that rational basis was off the table. Only the 7th Circuit (in Skoien) has applied strict scrutiny to laws regulating the right to keep and bear arms. For everyone else, it's intermediate scrutiny, which is very subjective.
At the moment, it seems almost any law restricting the right to keep and bear arms can pass intermediate scrutiny if it serves an "important" (rather than "compelling") government interest. What's "important?" Pretty much whatever the judge in question decides it is. In practice, the lower courts are doing their best to stretch intermediate scrutiny into rational basis. They're essentially thumbing their nose at the Supreme Court.
Worse yet, the Supreme Court doesn't seem to care.
There might come a time to challenge this stuff, but that time isn't now. Some folks need to understand that bad lawsuits set bad precedents, and bad precedents have a way of sticking around.