Johnson v. United States NFA possession not "violent crime"

[henrybowman]

http://www.ar15.com/forums/t_1_5/168411 ... tml&page=6

Standing alone, the elements of this offense—(1) unlaw-
fully (2) possessing (3) a short-barreled shotgun—do not
describe inherently dangerous conduct. As a conceptual
matter, “simple possession [of a firearm], even by a felon,
takes place in a variety of ways (e.g., in a closet, in a store-
room, in a car, in a pocket) many, perhaps most, of which
do not involve likely accompanying violence.” United States v.
Doe, 960 F. 2d 221, 225 (CA1 1992). These weap-
ons also can be stored in a manner posing a danger to no
one, such as unloaded, disassembled, or locked away. By
themselves, the elements of this offense indicate that the
ordinary commission of this crime is far less risky than
ACCA’s enumerated offenses.

Reported convictions supportthe conclusion that mere
possession of a short-barreled shotgun does not, in the
ordinary case, pose a serious risk of injury to others. A
few examples suffice. In one case, officers found the
sawed-off shotgun locked inside a gun cabinet in an empty
home. State v. Salyers, 858 N. W. 2d 156, 157–158 (Minn.
2015). In another, the firearm was retrieved from the
trunk of the defendant’s car. State v. Ellenberger, 543 N.
W. 2d 673, 674 (Minn. App. 1996). In still another, the
weapon was found missing a firing pin. State v. Johnson,
171 Wis. 2d 175, 178, 491 N. W. 2d 110, 111 (App. 1992).
In these instances and others, the offense threatened no
one.

The Government’s theory for why this crime should
nonetheless qualify as a “violent felony” is unpersuasive.
Although it does not dispute that the unlawful possession
of a short-barreled shotgun can occur in a nondangerous
manner, the Government contends that this offense poses
a serious risk of physical injury due to the connection
between short-barreled shotguns and other serious crimes.
As the Government explains, these firearms are “weapons
not typically possessed by law-abiding citizens for lawful
purposes,” District of Columbia v. Heller, 554 U. S. 570,
625 (2008), but are instead primarily intended for use in
criminal activity. In light of that intended use, the Gov-
ernment reasons that the ordinary case of this possession
offense will involve the use of a short-barreled shotgun in
a serious crime, a scenario obviously posing a serious risk
of physical injury.

But even assuming that those who unlawfully possess these weapons typically intend to use them in a serious crime, the risk that the Government identifies arises not from the act of possessing the weapon, but from the act of using it. Unlike attempted burglary (at least of the type at issue in James) or intentional vehicular flight—conduct that by itself often or always invites a dangerous confrontation—possession of a short-barreled shotgun poses a threat only when an offender decides to engage in additional, voluntary conduct that is not included in the elements of the crime.

Until this weapon is assembled, loaded, or used, for example, it poses no risk of injury to others in and of itself. The risk of injury to others from mere
possession of this firearm is too attenuated to treat this offense as a violent felony. I would reverse the Court of Appeals on that basis.


How this effects the machine gun lawsuit...


http://media.wix.com/ugd/c601ae_b23f067 ... ceb4b1.pdf

http://media.wix.com/ugd/c601ae_ec7afd2 ... ecc66e.pdf



Johnson was an NFA case. The concurring opinion speaks to short-barrel shotguns (NFA items) as not really that dangerous. If they were dangerous and unusual, the court could have easily said that, but they didn't. the court didn't address unusualness at all. They said the possession of a short barrel shotgun by itself is not dangerous. Our argument is that the possession of a machinegun is not dangerous. So, while it's not 100% on point, it has some usefulness to our side. As this is a Notice of Supplemental Authority and not an argument, we have to be very careful how to draft it so as not to be seen as introducing new argument to the case and merely advising the court that there is a new supreme court opinion that may be helpful.


A short barreled shotgun isn't dangerous until it is used dangerously, but merely having it is not dangerous.

A machine gun isn't dangerous until it is used dangerously, but merely having it is not dangerous.

Hopefully the side by side shows the correlation to our argument. That machine guns are not dangerous and unusual is the core of our fight.

[Termite]

How about some context.

[PawPaw]

How about some context.

Or at least a link, so we can provide context.

[Flintlock Tom]

I suspect in relation to this case:
http://rt.com/usa/270061-supreme-court- ... ender-law/

[NVGdude]

Federal 4 strikes and out law. AKA the Federal career violent criminal act.

Basically said that a 4th violent felony would mandate an extra 5 years to the sentence. The defendant got 15 years, but without the "violent felony" part would have received 10.

The law lists by name several specific violent felonies, but also had a sort of "catch all" category. The court actually struck down the catch all portion as unconstitutionally vague.

[Netpackrat]

Yeah, not sure there is anything in this one that is terribly useful to us.

[henrybowman]

Yeah, not sure there is anything in this one that is terribly useful to us.

NOLO aka the machine gun lawsuit lawyer believe other wise...

[Netpackrat]

Again, a link please?

[henrybowman]

Again, a link please?

http://www.ar15.com/forums/t_1_5/168411 ... tml&page=6

Stay tuned he will post it very soon...He is working on the case.

[henrybowman]

Again, a link please?

http://www.ar15.com/forums/t_1_5/168411 ... tml&page=6

Stay tuned he will post it very soon...He is working on the case.

http://media.wix.com/ugd/c601ae_b23f067 ... ceb4b1.pdf

http://media.wix.com/ugd/c601ae_ec7afd2 ... ecc66e.pdf