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Thread: Is there anyone going to challenge the NFAs??

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    IS there any organization out the that will reach down and grab hold and challenge the national firearms acts and finally restore our full right to bear arms?! Also does anyone think there is a snow balls chance in hell of winning?

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    Regular Member wewd's Avatar
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    SCOTUS would never declare a tax unconstitutional.
    Do you want to enjoy liberty in your lifetime?

    Consider moving to New Hampshire as part of the Free State Project.

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    wewd wrote:
    SCOTUS would never declare a tax unconstitutional.
    It wouldn't? Apart from the obvious (poll taxes), what about http://www.allbusiness.com/accountin.../259467-1.html or http://taxprof.typepad.com/taxprof_b...eme-court.html or older, such as McCulloch v. Maryland and Murdoch v. Pennsylvania, etc.

    I wouldn't argue it on the tax aspect, though. I'd argue it based on the faultiness of Miller, in that no counter arguments were presented to the government's, and even the affirming decision should protect the right to keep and bear any arms that "has some reasonable relationship to the preservation or efficacy of a well regulated militia." Obviously, automatic and/or burst fire weapons would meet this criteria, as militaries around the world use them.

    I would think a combination of the complete lack of representation of the defendent means that Stare decisis should be put aside if this is reevaluated, but it would take both a test case and a willing Supreme Court to hear the case, which is hard to think would happen.
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    Regular Member Batousaii's Avatar
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    I would like to see this happen too, however, it would be a huge undertaking. Not sure if i agree with "SCOTUS would never declare a tax unconstitutional." - i think that could constitute infringement honestly.

    - I think they will have to determine at some point, what constitutes an "arm" by constitutional definition. Then from there would have to determine if it is fit for the "militia" (as inthe people of the US in an un-organised capacity supporting the defense of the nation).....After that, the NFA could be challenged, well something like that..... It would definitely be a interesting process, and would likely be preceded by other rulings (creating case law) first... just my guess.

    Seems to me we should be able to use any hand held or shoulder fired "Arm" that was either employed, or similar in style and capacity as any of the armed forces throughout our history .... Where do we draw the line would be the big question then....

    Please see What is the limit to the Second Amendment?in our WA state posts.

    It is an interesting topic indeed.

    Just my thoughts.

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Ok, are you guys talking about challenging the NFA in it's entirety, or just taking on 922(o)? Taking on NFA entirely is much more difficult than taking on just 922(o) (which is a ban on civilian possession of select fire weapons made after May 19th, 1986), and even then, taking on 922(o) is a very tough proposition.

    We have 4 SCOTUS justices for certain who would be for taking out 922(o). That's a minority, plus 1 Circuit Court of Appeal (the 8th Circuit) has already declared select fire weapons outside of the Second Amendment's protection. 6th Circuit also seems about to do the same thing. In both cases, these are convicted felons challenging the entirety of the NFA act due to their convictions for possession of unregistered machineguns, and their pompous self incompetence that think that merely them believing in their own minds that they are "right" would somehow convince judges that you'll win. The people to thank for these developments is Hollis Wayne Fincher and Richard Hamblen. These two jackasses might as well be working directly for the Brady Campaign for the damage that they are doing to the cause.

    The facts of 922(o) are very similar to the DC v. Heller case, and similar in unregisterability, but at least they can still be transferred (which you couldn't do in DC from 1976 till 2008.

    We are not ready for a challenge even to 922(o) at this point. Not even in the slightest. Folks, we need to rebuild the gun owners culture in the states where the most anti-gun madness has occurred. This includes ownership of non-Title 2 firearms, and carrying for personal protection nationwide.

    Let's give a general timeline:

    District of Columbia v. Heller protects handguns and presumably all non-title 2 firearms on the federal level. Destroyed any chance of an assault weapons ban on the federal level. Decided June 2008

    McDonald v. City of Chicago will incorporate the 2A against the states, either via P&I or due process incorporation. Folks, pray for P&I incorporation, as this will apply ALL federal constitutional protections onto the States. This case will be decided by SCOTUS by June 2010. This case only took 2 years to reach from filing in District Court to SCOTUS decision. I have much appreciation to Gura's form of legal work, as it allows these sort of things to rocket up quick.

    Nordyke v. King en banc will be heard next week in San Francisco by an 11 judge panel. This panel draw is very good for us. I predict that Alameda's ordinance will be struck down basically banning gun shows, and 2A will be incorporated, and the Nordyke panel may give some additional commentary on other things in CA law too.

    Concurrently, there are two cases that will be affecting gun carry, Sykes v. McGinness and Palmer v. District of Columbia. Sykes is currently being held up by Nordyke going en banc and the judge deciding to wait until Nordyke or McDonald is finalized. A sound judicial decision given the fact that he doesn't want a hostile three-judge panel smacking him down on going ahead of Nordyke. Palmer is now ahead of Sykes and is not hobbled by incorporation issues, similar to Heller. A favorable ruling in SCOTUS (within 2-3 years from now) plus the McDonald case two years earlier will have a full effect nationwide, making may-issue carry and no allowed carry completely unconstitutional. Either Maryland, New Jersey, New York, Massachusetts, Iowa, and Hawaii had better start issuing licenses to carry or allow OC, or they will be hit with lawsuits quickly, and their begging to the Courts of Appeal will fall in deaf ears.

    Pena v. Cid is a lawsuit filed against California's handgun roster. Currently also being held up by the Nordyke en banc situation.

    There will also be an challenge against California's AWB and High Capacity Magazine ban when Nordyke becomes final. Unknown who the plaintiffs are at this point.

    So, in order to fully rebuild the gun culture, you need A) Full ability to carry firearms and reasonably be able to get enough ability to gain carry licensure or being able to travel across the entirety of 50 states. Without that ability to be able to carry in these high population states, the people of these states will continue to believe that the rest of the country is this unfathomable horde of "gun nuts" surrounding them, and believe themselves as a "sieged area" against that horde. Rebuild the gun culture in these states, and you won't have an issue getting 922(o) legislatively repealed, and getting these state level machinegun bans repealed by the state legislatures.

    That being said, 922(o) must be saved for last. At that point, we'll have plenty of pro-2A individual right caselaw to draw on, instead of now where we have little to nothing outside of Heller.


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    Good analysis. Thank you.

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    Founder's Club Member Brass Magnet's Avatar
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    I'm suprised no one mentioned this (or maybe I just didn't see it); but the case I would bring up against the NFA is that it's beyond congress' power to regulate via the commerce clause.

    Isn't that some of what the states who passed the states rights bills are doing? They are exempting NFA weapons from their prospective bills; probably for votes, but it's the same thing.

    I think you need to look at it from the commerce clause angle and not from a 2A standpoint. There is already some case law to help out in U.S. V. Lopez. I think it first needs to be found in violation of the commerce clause. After that the states will have the regulatory power. Then we will have the option to bring up 2A grounds to leave the states out of it or pursue state legislative relief. That would be the best way around it IMHO.
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    Brass Magnet wrote:
    I'm suprised no one mentioned this (or maybe I just didn't see it); but the case I would bring up against the NFA is that it's beyond congress' power to regulate via the commerce clause.

    Isn't that some of what the states who passed the states rights bills are doing? They are exempting NFA weapons from their prospective bills; probably for votes, but it's the same thing.

    I think you need to look at it from the commerce clause angle and not from a 2A standpoint. There is already some case law to help out in U.S. V. Lopez. I think it first needs to be found in violation of the commerce clause. After that the states will have the regulatory power. Then we will have the option to bring up 2A grounds to leave the states out of it or pursue state legislative relief. That would be the best way around it IMHO.
    the current majority crop of federal judges we have right now seem to have no problem whatsoever with interpreting the commerce clause as giving congress the ability to restrict 'weapons not made for civilian purposes'.

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    DKSuddeth wrote:
    Brass Magnet wrote:
    I'm suprised no one mentioned this (or maybe I just didn't see it); but the case I would bring up against the NFA is that it's beyond congress' power to regulate via the commerce clause.

    Isn't that some of what the states who passed the states rights bills are doing? They are exempting NFA weapons from their prospective bills; probably for votes, but it's the same thing.

    I think you need to look at it from the commerce clause angle and not from a 2A standpoint. There is already some case law to help out in U.S. V. Lopez. I think it first needs to be found in violation of the commerce clause. After that the states will have the regulatory power. Then we will have the option to bring up 2A grounds to leave the states out of it or pursue state legislative relief. That would be the best way around it IMHO.
    the current majority crop of federal judges we have right now seem to have no problem whatsoever with interpreting the commerce clause as giving congress the ability to restrict 'weapons not made for civilian purposes'.
    Cite please. I haven't heard anything about any decisions being made lately that had to do with the commerce clause.
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    sandbandit0331 wrote:
    IS there any organization out the that will reach down and grab hold and challenge the national firearms acts and finally restore our full right to bear arms?! Also does anyone think there is a snow balls chance in hell of winning?

    All you need is 1 Governor willing to issue militia cards to state citizens which permit them to carry select fire weapons.

    Sell (issue)militia M-16s out of the state armoury (Not the National Guard Armoury).


    States are sovereign.

    Montana will take a huge step towards retaking her sovereignty on 1 October.

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    IS there any organization out the that will reach down and grab hold and challenge the national firearms acts and finally restore our full right to bear arms?! Also does anyone think there is a snow balls chance in hell of winning?
    All you need is 1 Governor willing to issue militia cards to state citizens which permit them to carry select fire weapons.

    Sell (issue)militia M-16s out of the state armoury (Not the National Guard Armoury).

    States are sovereign.

    Montana will take a huge step toward retaking her sovereignty on 1 October.
    I agree, any sitting Governor could direct his/her attorney general to literally gut Federal gun-control laws. The State's argument would be that such and such federal law infringes on theGovernor's ability to quickly mobilize a properly armed & equippedcitizen's militia in the event of a grave emergency (i.e. one in which the existing law enforcement and Stateguard troops were overwhelmed by the task). It would be hard for the federal government to defend against a State-plaintiff (as opposed to a private individual suing in his/her own capacity).

    IS there any organization out there that will reach down and grab hold and challenge the national firearms acts and finally restore our full right to bear arms?! Also does anyone think there is a snow balls chance in hell of winning?

    The organization that we are looking for is a State (i.e. Montana or Alaska). Currently, that is what it would take to get the NFA repealed.If enough of its voting Citizens demand their full Second Amendment rights, then sooner or later a Second Amendment-absolutist governor is going to get into office and take the appropriate action.

    It wouldn't matter if the NRA, GOA, SAF andother gun-rights organizations all banded together on an NFAchallenge. The media would just vilify thegun-lobby.Formenting masshysteria would be a bit more problematicif it were a conflict between State's Rightsand unchecked Federal power.

    :celebrateThe anti-gunners themselves have been arguing for years that the Second Amendment was specifically designed to prevent Federal interference with the State's ability to arm its own militias.SeetheBrady Campaign's opposing brief from last year's Heller case.

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    Brass Magnet wrote:
    DKSuddeth wrote:
    Brass Magnet wrote:
    I'm suprised no one mentioned this (or maybe I just didn't see it); but the case I would bring up against the NFA is that it's beyond congress' power to regulate via the commerce clause.

    Isn't that some of what the states who passed the states rights bills are doing? They are exempting NFA weapons from their prospective bills; probably for votes, but it's the same thing.

    I think you need to look at it from the commerce clause angle and not from a 2A standpoint. There is already some case law to help out in U.S. V. Lopez. I think it first needs to be found in violation of the commerce clause. After that the states will have the regulatory power. Then we will have the option to bring up 2A grounds to leave the states out of it or pursue state legislative relief. That would be the best way around it IMHO.
    the current majority crop of federal judges we have right now seem to have no problem whatsoever with interpreting the commerce clause as giving congress the ability to restrict 'weapons not made for civilian purposes'.
    Cite please. I haven't heard anything about any decisions being made lately that had to do with the commerce clause.
    United States v. Rybar (3d Cir. 1996)

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Attorney Generals are ELECTED positions, not appointed, in most US states. The Governor cannot order an AG to do anything. No state will actually arm their civilians in the manner that you describe, and they are not going to take that kind of risk of actually issuing cards, because all it will take is one illegal usage of an MG and the state will just yank it away from everyone. What kind of right is that? The Governor or AG can do something, doesn't mean he or she will stick out their political neck for us.

    Are you going to help the RKBA movement push forward with carry laws in all 50 states (using Sykes and Palmer), getting these stupid semi-auto "assault weapons" ban struck down, and such, or are we going to continue tilting at a windmill that will never happen until we get the gun culture repaired nationwide?

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    Look I understand that most if not all people think the US govt. is infallible but you have to think they can be beaten. The founding fathers never said in the 2nd amendment that you can have a firearm that is semiautomatic or fully automatic because it hadn't been invented yet and they probably didn't think that anything could beat a muzzleloader at the time. What it states is plain and simple cut and dry
    "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." so what part of shall not be infringed do people not understand it's all the interpretations of our founding and all of the controversy that has gotten us in this friggin mess we find ourselves in now!!! What would you say if the government said you can't own a car without a tax stamp and you must pay $500 dollars a year for this stamp and then they say no new cars can be manufactured after 2009 and the price of cars went up 300% I bet you the people would get off their butts and say not just no but heck no!! so think about that if we don't challenge our government we become slaves to it!!

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    sandbandit0331 wrote:
    Look I understand that most if not all people think the US govt. is infallible but you have to think they can be beaten. The founding fathers never said in the 2nd amendment that you can have a firearm that is semiautomatic or fully automatic because it hadn't been invented yet and they probably didn't think that anything could beat a muzzleloader at the time. What it states is plain and simple cut and dry
    "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." so what part of shall not be infringed do people not understand it's all the interpretations of our founding and all of the controversy that has gotten us in this friggin mess we find ourselves in now!!! What would you say if the government said you can't own a car without a tax stamp and you must pay $500 dollars a year for this stamp and then they say no new cars can be manufactured after 2009 and the price of cars went up 300% I bet you the people would get off their butts and say not just no but heck no!! so think about that if we don't challenge our government we become slaves to it!!
    I understand very much that select fire weapons are very important to you. It's very important for me too. I live in a state where it's been completely banned since the early 1960's, yet I want to be able to buy an M16, a P90, and an Heckler & Koch G36, and lots of ammo thereof.

    If you file a case, with a lawyer who knows little to nothing of 2A issues (or knows about 2A issues but is incompetent), you well set us back decades, and neither you and I will be able to possess post-86 machines, and neither will our children (if we have any).

    You need to learn patience and we full auto enthusiasts need to wait our turn. Our legal funds and energies must be focused on getting 50 state carry, getting AWB's struck down nationwide and so on. Once we have that, and rebuild the "gun owner culture" that existed in these extreme anti-gun states, we may be able to get 922(o) repealed legislatively, which is always a preferred solution than going to court.


    It's in the pipeline, but it'll be the last thing to go.

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    I'm pretty sure that an Attorney General would have to play ball with the Governor (in most, if not all states). Their position requires them to defend the interests of the State, even if they personally disagree with the law. Remember, there only needs to be one (1) state with a Pro-Second Amendment Governor willing to butt heads with the Federal government over the Constitution. My guess is that it would be Montana, possibly Alaska.I didn't intend to imply that the political environment in either state has reached a pro-Constitution critical mass just yet, but their respective Citizens are leaning that way.

    I too agree that it is premature now to challenge the NFA and that there are other pro-gun issues on the plate now. However,the OP wanted to know if there were any organizations capable of challenging the NFA (and winning) and I answered his question to the best of my ability.

    Remember, a State could just as easily challenge any otherless-controversial Federal gun-control measure with the same 2A State's Rights argument proposed above.In fact I'd highly recommend that they litigate something less controversial to establish good precedent. A federal semi-auto ban and/orhigh-capacity magazine ban (if ever passed) would be an ideal test case, in my humble opinion.

    Who knows, maybe Montana would try this legal argument if their current 10th Amendment Challenge fails. Seems like Montana has the motivation!

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    OC4me wrote:
    I'm pretty sure that an Attorney General would have to play ball with the Governor (in most, if not all states). Their position requires them to defend the interests of the State, even if they personally disagree with the law. Remember, there only needs to be one (1) state with a Pro-Second Amendment Governor willing to butt heads with the Federal government over the Constitution. My guess is that it would be Montana, possibly Alaska.I didn't intend to imply that the political environment in either state has reached a pro-Constitution critical mass just yet, but their respective Citizens are leaning that way.

    I too agree that it is premature now to challenge the NFA and that there are other pro-gun issues on the plate now. However,the OP wanted to know if there were any organizations capable of challenging the NFA (and winning) and I answered his question to the best of my ability.

    Remember, a State could just as easily challenge any otherless-controversial Federal gun-control measure with the same 2A State's Rights argument proposed above.In fact I'd highly recommend that they litigate something less controversial to establish good precedent. A federal semi-auto ban and/orhigh-capacity magazine ban (if ever passed) would be an ideal test case, in my humble opinion.

    Who knows, maybe Montana would try this legal argument if their current 10th Amendment Challenge fails. Seems like Montana has the motivation!
    There's only one leading lawyer that I trust with fielding a challenge on that subject, and that is Alan Gura and his associates (Don Kilmer, Jason Davis, Don Kates). Stephen Halbrook is good for appellate work, but not the best for trial court work.

    As for a "State can field a challenge", a tremendous amount of people on this forum challenge the competence of federal government lawyers. Do you think state lawyers, especially elected lawyers, are better than some of the lawyers dedicated to our cause and focus exclusively on our issues? It suggests that a state government is tremendously more competent, which I seriously doubt.

    Someone also suggested that the AG's office must follow orders from the Governor. I would argue that unless there is a specific statute authorizing the governor to make a command to an elected AG and this same statute commands compliance with such a law, elected attorney generals can and have refused orders from the Governor to do something.

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    DKSuddeth wrote:
    United States v. Rybar (3d Cir. 1996)
    Thanks for the link. It's interesting that Alito dissented and could be a plus.

    I was reading somewherethat several of the justices thought Wickard v. Filburn was decided wrongly and wanted to revisit it.

    If congress PO'd SCOTUS enough they may really want to hear it.
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    Gray Peterson wrote:
    As for a "State can field a challenge", a tremendous amount of people on this forum challenge the competence of federal government lawyers. Do you think state lawyers, especially elected lawyers, are better than some of the lawyers dedicated to our cause and focus exclusively on our issues? It suggests that a state government is tremendously more competent, which I seriously doubt.
    I sincerely hope that this thread don't digress into an argument over the competency levels of government lawyers vs. private attorneys, seems kind of silly to me and off topic.

    My opinion is that Federal gun controls would be vulnerable to a State challengeshould any single State wish to go down that road. I'm optimistic that Montana is heading in that direction based on their current attempt to void almost all Federal gun controls via the 10th Amendment. Having taken such an unprecedented step, why wouldn't they consider a Second Amendment challenge to accomplish the same goal (should their 10th Amendment argument fail)? Your viewpoint (and it is just as valid as mine)seems to bethat such a challenge would be better litigated though a private action, i.e. an individual Citizen(s) as Plaintiff, represented by the likes of thenow famous Alan Gura and his colleagues. Fair enough, let's agree to disagree.

    Hopefullywe all understand that a NFA challenge would presently be a bit premature, no matter who picks up the ball.

    Peace!


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    Gray Peterson wrote:
    Ok, are you guys talking about challenging the NFA in it's entirety, or just taking on 922(o)? Taking on NFA entirely is much more difficult than taking on just 922(o) (which is a ban on civilian possession of select fire weapons made after May 19th, 1986), and even then, taking on 922(o) is a very tough proposition.

    We have 4 SCOTUS justices for certain who would be for taking out 922(o).
    Huh? You think 4 justices are going to agree to let machine guns proliferate in the United States over the objection of Congress? Really? We don't even have an established right to carry in public with a license, let alone the right to possess an unusal weapon lik a machine gun.

    Litigation is path dependent - go for the easiest low hanging fruit first - this must occur over years, even decades. Each case is a stepping stone. reach to high at first, and the ledge will break off, blocking your path forever.

    Do people on this board really not understand this??

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    Mike wrote:
    Gray Peterson wrote:
    Ok, are you guys talking about challenging the NFA in it's entirety, or just taking on 922(o)? Taking on NFA entirely is much more difficult than taking on just 922(o) (which is a ban on civilian possession of select fire weapons made after May 19th, 1986), and even then, taking on 922(o) is a very tough proposition.

    We have 4 SCOTUS justices for certain who would be for taking out 922(o).
    Huh? You think 4 justices are going to agree to let machine guns proliferate in the United States over the objection of Congress? Really? We don't even have an established right to carry in public with a license, let alone the right to possess an unusal weapon lik a machine gun.

    Litigation is path dependent - go for the easiest low hanging fruit first - this must occur over years, even decades. Each case is a stepping stone. reach to high at first, and the ledge will break off, blocking your path forever.

    Do people on this board really not understand this??
    Yes, we do! Just having an 'academic' discussion. The low-hanging fruit is quite abundant and more urgent.

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    What I am saying is that the NFA in its entirety is wholly unconstitutional! the 2,14,and 10th amendments basically stress that!!! So does anyone know if there is an organization out there somewhere or someone who is challenging or is trying to challenge this infringement on our rights?!

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    sandbandit0331 wrote:
    What I am saying is that the NFA in its entirety is wholly unconstitutional! the 2,14,and 10th amendments basically stress that!!! So does anyone know if there is an organization out there somewhere or someone who is challenging or is trying to challenge this infringement on our rights?!
    There was a group (1934 something), not sure if they are still around, site is down, but here is an article on them...Stephen Halbrookchallenged the LEO sign off and lost, can't find the case (even on his site) but look around its out there.

    http://www.wnd.com/index.php?fa=PAGE...mp;pageId=1817

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    sandbandit0331 wrote:
    IS there any organization out the that will reach down and grab hold and challenge the national firearms acts and finally restore our full right to bear arms?! Also does anyone think there is a snow balls chance in hell of winning?
    Sandbandit,

    I've felt for a while that we on the "pro" side need to unite and figure out what our "end game" is; to essentially come up with an overarching goal or list of goals.

    The anti side, no matter how much they claim to be in favor of "sensible gun laws" basically has one goal: universal disarmament of non-military and non-police. (And I'm sure that there are some super-extreme wackos among those who want cops and soldiers to lay down their arms, too.)

    There's a saying, "begin with the end in mind." And for the most part I haven't seen too much of that. Doesn't mean it isn't there, just that I haven't perceived it.

    What I'm sure that I have seen is mostly defensive thinking - battling different new rules and restrictions as they are rolled out at the state, municipal and federal level.
    I think our side does yeoman work in rolling back that crap as it appears, but it's a withering assault, and we need to go on the offensive - aggressively looking to repeal onerous rules and laws.

    I live in New York State, one of the few that requires a permit to simply *own* a handgun (concealed carry requires a whole additional licensing process, which is very much "may issue"). I don't see the NRA, NYSRPA, etc. doing anything to repeal this madness.

    The antis know what they want and can articulate it, even when they dress it up in the cloak of moderation.

  25. #25
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    Overtaxed wrote:
    The antis know what they want and can articulate it, even when they dress it up in the cloak of moderation.
    Their job is a little easier though. The legislation they want doesn't have to make sense. It doesn't have to be scientifically sound or morally justified. They just run off of emotional arguments that they can get support for by either using mass hysteria or calling the pro-firearm people gun nuts and extremists.

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