Plaintiff is a federally-licensed firearms dealer, and alleges that the ATF arbitrarily denied him permission to import a reproduction of a World War II-era German machinegun[, the BD44]....
In light of Heller, plaintiff's facial challenge to section 925(d) fails.
Historical re-enactors aren't engaging in a sporting purpose? What are they doing?[T]he ATF determined that the BD44 was not importable under section 925(d)(3) because it was not “generally recognized as particularly suitable for or readily adaptable to sporting purposes.” Plaintiff challenges the ATF's decision. Plaintiff argues that the ATF's interpretation of section 925(d)(3) is arbitrary and capricious, and seeks damages for lost income resulting from his inability to sell BD44s to prospective military re-enactors....
Actually, Scalia got that wrong. The Miller court said only that they didn't know and were not prepared to say whether a sawed off shotgun was eligible for 2a protection under their standard. Also, there's nothing startling about saying that the Miller result may well have been different had Miller and Layton been carrying a machine gun, especially a common military one.According to plaintiff, Congress may not “regulate” his individual right to keep and bear arms by declaring that he may not own certain types of arms, and he may accordingly own almost any type of weapon he chooses (including the BD44) so long as he complies with reasonable time, place, and manner restrictions. See [plaintiff's brief] at 7-8 (“[N]ever does Congress have the right ... to ban the ownership of any defensive arm equivalent or superior to that used by the standing armies of the United States.”).
Unfortunately for plaintiff, the Supreme Court rejected this argument in Heller. See Heller at *26 (construing United States v. Miller, 307 U.S. 174 (1939), to hold that “the type of weapon at issue [a sawed-off shotgun] was not eligible for Second Amendment protection”); id. (“Miller stands ... for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.”); id. at *27 (finding it a “startling reading” of Miller to suggest “that the National Firearms Act's restrictions on machineguns ... might be unconstitutional”)
On April 25, 2007, plaintiff Steven John Mullenix ("Mullenix" or "plaintiff'), proceeding pro se, sued the Bureau of Alcohol, Tobacco, Firearms,and Explosives
In response to defendant's motion for summary judgment, plaintiff maintains that section 925(d), and all other federal gun-control laws,are unconstitutional. See PI.'s Aff. in Resp. to Def.'s Mot. for Summ. J. 6-10 [hereinafter "Pl.'s Resp."]. Although plaintiff did not plead a Second Amendment claim, the court must liberally construe pro se pleadings. See,~, 5 U.S.C. § 706(2)(B); Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (per curiam); cf. Fed. R. Civ. P. 8(e).