Are used police weapons exempt from the '86 MG ban?


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SuperiorMarksman_18
October 14, 2006, 11:55 PM
I heard somewhere that used police weapons, even ones made after 1986, can be sold to civilians. Is this true?

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beerslurpy
October 15, 2006, 12:05 AM
Civilians with SOT's yes. Which basically means no, since an SOT requires an FFL, a place of business and 1000 bucks a year. And if you ever let it expire, you have to sell off all the post 86 guns.

If the weapon was transferrable prior to 86, civilians can get it, otherwise no.

SuperiorMarksman_18
October 15, 2006, 12:30 AM
OK, thanks.

Zundfolge
October 15, 2006, 12:42 AM
I heard somewhere that used police weapons, even ones made after 1986, can be sold to civilians. Is this true?
Of course they can, as long as these civilians you are talking about are in law enforcement :neener:

Sorry, referring to non LEO's as "civilians", as though LEOs are not "civilians" too kinda annoys me. :p

johnsonrlp
October 15, 2006, 01:47 AM
What if it was transferable prior to '86 then transfered to a PD. It would still be transferable, right?

boonie
October 15, 2006, 03:18 AM
Section 922(o)
(1) Except as provided in paragraph (2), it shall be unlawful
for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to -
(A) a transfer to or by, or possession by or under the
authority of, the United States or any department or agency
thereof or a State, or a department, agency, or political
subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun
that was lawfully possessed before the date this subsection takes
effect.


I haven't thought about this much before, but a literal reading of the law says that any machinegun lawfully possessed before the 1986 ban is legal to transfer...

Shouldn't that mean that any machinegun owned by the government before 1986 would be good to go? Just have the PD call up the ATF and enter it into the registry, then form4 it?

Heck, if any lawfully owned gun is good, the .mil could register and CMP all their guns...

Unless government ownership is unlawful...

ETA: I understand the ATF doesn't allow that, but the registration and transfer of PD and mil guns looks legal to my quick reading.

Hkmp5sd
October 15, 2006, 07:31 AM
Apparently my local sheriff's office had some MGs that could be transferred on Form 4s. They ran an ad in the local paper selling off their non-politically correct Ruger AC-556s back around 1990. I still kick myself for not buying one. You gotta love a sheriff selling machineguns in the local want ads.

Shouldn't that mean that any machinegun owned by the government before 1986 would be good to go? Just have the PD call up the ATF and enter it into the registry, then form4 it?


The problem is that most government owned MGs never had the tax paid on them and that is what you cannot now do. That is the same problem with pre-86 and post-86 dealer samples.

gezzer
October 15, 2006, 10:25 PM
The problem is that most government owned MGs never had the tax paid on them and that is what you cannot now do. That is the same problem with pre-86 and post-86 dealer samples.

The tax has nothing to do with it.

Any machine gun made after may-86 will never be a full transferable gun to an individual. That is the law.

Before that if a PD has a MG made before that date it is transferable TAX FREE to an individual. Provided it was not imported after 1968.

Tax paid or not has nothing to do with it.

Hkmp5sd
October 15, 2006, 11:32 PM
Before that if a PD has a MG made before that date it is transferable TAX FREE to an individual.

Really? Documentation for that? News to me.

However, the discussion is about why we cannot take pre-86 owned police weapons and NOW transfer them on Form 4s to civilians. As they are not on the books as having the manufacturing tax paid, one cannot now pay the manufacturing tax to get them legal for civilian ownership. Same as ANY machinegun not currently registered, yet was made before 1986.

boonie
October 15, 2006, 11:55 PM
gezzer,
I didn't quite follow that. Why would the transfer be tax free?


Hkmp5sd,
My thinking is that the law says the gun must have been lawfully possessed before the 1986 ban.
Regardless of whether or not the gun was transferable at the time, the police department or military lawfully possessed the firearm before the ban.

This means that the gun would fall under exception 922(O)(2) and be legal to own and transfer as long as you comply with the rest of the NFA.
The gun may not be in the registry at this time, but that seems to be more of an administrative issue than a law issue.

I'll admit that I don't remember how the entire law is written, I will look it up later today or tomorrow.
For now, I'll say that I think that the law does not specify that no new guns will be registered.
My guess is that the ATF doesn't accept new registrations because all new guns would be illegal for us under 922(O). They haven't considered a PD or the military registering pre86 guns and thus have no provisions in place for this scenario.


If you want to get really literal, the law says the gun must have been lawfully possessed before 1986, not lawfully possessed when the 1986 ban was signed into effect, or NFA registered before the ban.

Literally, almost all pre-1986 machineguns would have been lawfully possessed by someone at some point. Either by the government, foreign government, manufacturer, police department or whatever agency held it.

Hkmp5sd
October 16, 2006, 12:17 AM
No, I don't want to get literal. It's just that if I could have acquired more machineguns from LEOs prior to '86 and they could have been tax free, I want to kick myself harder. I could have made many good deals back in the 80's when small agencies were starting their own SWAT teams only to learn they couldn't really afford them. Back when you could buy a machinegun for $600, the $200 fee was a lot of money.

boonie
October 16, 2006, 01:03 AM
mp5, it sounds like we're talking about two different things.

All I am trying to say is that the law says that any machinegun lawfully owned before 1986 can be lawfully owned by us today. It does not say that the machinegun needed to be in the NFA registry before 1986.

I don't think that the police and military have ever needed to pay the $200 tax and NFA register their guns. They lawfully owned them, despite not being NFA registered.

Thus, if we were to NFA register these machineguns, they would be normal transferables (lawfully owned by someone before 1986, so not banned under 922(o)).


My belief is that the ATF will not take any new registrations because it is assuming that we would be attempting to register a new gun, which would be illegal under 922(o) or, if the gun was pre-1986, we'd be illegally owning a unregistered machinegun, so they'd just arrest us.

However, the police should be able to register machinegun owned before 1986, after all, the law doesn't say no new registrations.

I am going to go read the law, double check this and all, see if I can find why the ATF does not take registrations. If it is because it would be illegal for us under 922(o), we may be able to get around it by having a police department register pre-1986 machineguns.

I'm thinking that if we could take this path, it would open up thousands of M16's that the police have been getting cheap. (lawfully owned before the ban, by the military)

ETA:
I think that the police would need to pay the $200 tax to register, then the $200 tax to transfer it to you.
I don't know where gezzer is coming from on no tax transfers.

Maybe the cops could run a fundraiser, 4k m16's, you pay the transfer fees.

romma
October 16, 2006, 08:44 AM
This whole thing is crappola! tap dancing around these silly laws for machine guns! I am really starting to get angry about these useless, token restrictions on law abiding citizens... I am going to write my congressman,,, again! :mad:

wdlsguy
October 16, 2006, 06:28 PM
I wonder if a L.E. agency might be willing to transfer one of their old (pre-'86) machineguns to a citizen if said citizen funded the purchase of a brand new (post-'86) machinegun? :evil:

ArmedBear
October 16, 2006, 06:36 PM
Sorry, referring to non LEO's as "civilians", as though LEOs are not "civilians" too kinda annoys me.

As long as LEO's are allowed access to equipment, and allowed means of self-defense, that are forbidden to civilians, it's something to get used to.

Consider that no one used JBT in this post, before getting too annoyed.:cool:

CleverNickname
October 16, 2006, 06:50 PM
All I am trying to say is that the law says that any machinegun lawfully owned before 1986 can be lawfully owned by us today. It does not say that the machinegun needed to be in the NFA registry before 1986.

But that's the way the BATFE interprets the law, so unless you're ready to pony up a lot of money to take them to court, then their interpretation is the defacto law.

As for police department transfers being tax free, it's because 26 USC 5853 says so. (http://www4.law.cornell.edu/uscode/html/uscode26/usc_sec_26_00005853----000-.html)

boonie
October 16, 2006, 07:44 PM
CleverNickName,

I know transfers to a police department are tax free.
I am trying to figure out if gezzer was correct with his statement that transfers from a PD to an individual are tax free.



I'm thinking it might not take a big court case to get the ATF to allow registration of pre86 PD guns...

I'm going to go out on a limb and guess that the ATF hasn't made an interpretation as to the registration of pre86 guns because they haven't encountered this situation yet.

This isn't like what we've discussed in the other thread, trying to loophole the thing by getting a government agency to "authorize" transfers.

The law plainly states its legal, we just need to push the paperwork through.

I think we'd stand a decent chance at getting a pre86 PD gun registered if the sheriff files the paperwork and has a lawyer type attach a letter with an explanation.

Even if they choose to deny this, we'd stand a better chance at winning this in court than getting 922(o) or the NFA repealed in the near future.

This would at least open up all those PD guns, and it would open the possibility of the military CMP'ing their guns.

I haven't had a chance to look up the law more, I'll come back when I've done some more reading.
Maybe I should write the ATF and get their response...

edit:
spelling/grammar

69Chevy
October 16, 2006, 08:17 PM
Is this something I can ask them?

http://www.atf.gov/field/philadelphia/email.htm

If they said yes it would be a free for all with collectors trying to get to the police departments to try and coerce them into selling off their stuff.

gezzer
October 16, 2006, 08:53 PM
Transfer from Goverment agencys are transfered on F5 which is tax free.

Try looking it up , you don't believe me don't be lazy.

I am sorry for trying to clarify it.

Write a letter? Look it up on the net try subguns.com it is plain

boonie
October 17, 2006, 12:04 AM
Thanks gezzer,

I have never heard of a Form 5 being used for a tax exempt transfer from a gov't agency, but the form does list that...
Don't be sorry, I know I was confused, I'd only heard of tax exempt transfers for estates and gunsmithing/repair before this.

While you're here, do you know of anything that would prevent the registration of a pre-86 PD machinegun?
I did look through the ATF letters available here,
http://www.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/law.html
and found nothing on the topic

I try not to be lazy, but it would certainly save me some time if you happened to know of a ruling or letter already out there that you could point me towards.

ETA:
http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/nfa_faq.txt

Additionally, if the gun in question is a machine gun, not having
the paperwork can lead to being charged with a violation of 18
U.S.C. sec. 922(o), the ban on possessign machine guns made after
May 19, 1986. All four of the federal circuit courts of appeals
(U.S. v. Just, 74 F.3d 902 (CA8 1996), U.S. v. Gravenmeir, 121 F.3d
526 (CA9 1997), U.S. v. Gonzales, 121 F.3d 928 (CA5 1997) and U.S.
v. Franklyn, 157 F.3d 90 (CA2 1998)) that have addressed the issue
have ruled that sec. 922(o) prohibits possessing all machine guns,
and it is an affirmative defense to such a charge that the weapon
was legally possessed before it took effect. It is up to the
defendant to prove an affirmative defense, although by a lower
evidentiary standard than the government needs to prove to show a
criminal violation (usually preponderance of the evidence versus
beyond a reasonable doubt). It is not up to the government to prove
the weapon was not registered, for a charge under sec. 922(o), at
least according to all the appeals courts that have considered the
question. If you don't have the paperwork, and it isn't in ATF's
computer, (it is likely they will check, even though they don't
have to prove non-registration, they don't want someone to wave a
registration form in their face during a trial) you can have a
serious problem.


I'll be looking up those court cases to see what they say.
I'm still thinking that the law doesn't specify the machinegun had to be registered, but lawfully possessed.

Double ETA:
Same source as above;

Tax exemptions

Law enforcement, states, and local governments are totally exempt
from the making and transfer (either to or from) taxes, but must
comply with the registration requirements. While the NFA only
specifically provides that there is no transfer tax due when the
U.S. government is the transferee, (26 U.S.C. sec. 5852(a)), or a
state governmental entity (26 U.S.C. sec. 5853(a)), ATF has made up
an exemption from the transfer tax where any U.S. or state
governmental entity is the transferor, see ATF Chief Counsel
Opinion numbers 20023 and 20400. Opinion 20023 is on my web page -
ATF refuses to release number 20400, claiming it is privileged
attorney-client work product. Abuses of this tax exemption, as in
transferring guns through governmental entities so as to avoid
transfer taxes, have been successfully prosecuted. See U.S. v.
Fleming, 19 F.3d 1325 (CA10 1994).



I'll say this is why I'm confused;
The law says that the gov't is only exempt when it is receiving a NFA weapon, but it's a ATF decision to not tax them on transfers out of the government.
Did I read that right?

boonie
November 4, 2006, 02:12 AM
I said I'd do some reading and get back to you guys.
I've been busy, otherwise I would have gotten back to you all a bit more quickly.

Here's the cases I looked at, with a quick description and my understanding of the ruling. I'm an engineer, not a lawyer, so I'd appreciate corrections if I read the rulings wrong.

I don't think any of these would really affect the "pre-86 police+military guns were lawfully owned and can be registered" line.

Except maybe US v. Just.
It looks like that establishes that registration and 922(o) are not linked, though it's doing it from the wrong angle.




US v Just
http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/us_v_just.txt
inoperable (somewhat operable?) Jap 99 MG sold to undercover officer
Ruling is that the government does not need to prove non-registration as a component of 922(o)
plus legal wrangling



US v Gravenmeir
http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/us_v_gravenmeir.txt
Felon in possession of machinegun.
ruling is that .gov does not need to prove it is a post-86 gun, the defendant needs to prove that he is legal.



US v Gonzales
http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/us_v_gonzales.txt
Drug dealer caught with machinegun and coke.
ruling is that the .gov does not need to prove that the machinegun is post-86, but that the defendant needs to prove it is pre-86.



US v Knutson
http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/us_v_knutson.txt
Caught with machinegun. (resumably unregistered).
Ruling is that 922(o) is constitutional under commerce clause.



US v Franklyn
http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/us_v_franklyn.txt
Felon in possession of machinegun
Ruled 922(o) is constitutional under commerce clause



Staples v US
http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/staples_v_us.txt
Unregistered machinegun (possible trigger failure?).
ruling that the gov't must prove the defendant knows that he had a machinegun
(yay!)

Malum Prohibitum
November 4, 2006, 09:30 AM
US v Knutson
http://www.cs.cmu.edu/afs/cs/usr/wba..._v_knutson.txt
Caught with machinegun. (resumably unregistered).
Ruling is that 922(o) is constitutional under commerce clause.


Yes! That is exactly what James Madison had in mind! :rolleyes:

Prince Yamato
November 4, 2006, 01:49 PM
I love how the first part of the Knutson article complains about interstate commerce :neener:

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