Corporations, 14th Amendment, and the NFA

[ctdonath]

[The movie] "The Corporation" ... begins with the unsettling information that, under the law, a corporation is not a thing but a person. The U.S. Supreme Court so ruled, in a decision based, bizarrely, on the 14th Amendment to the Constitution. That was the one that guaranteed former slaves equal rights. The court ruling meant corporations were given the rights of individuals in our society. They are free at last.
- Roger Ebert

The author (his personal politics aside) brings up a fascinating fact: legally, corporations are people. This point raises an interesting, if perverse, method for legally approaching the NFA "CLEO signoff" problem (among other related legal absurdities).

A carefully orchestrated assault on the "CLEO signoff" problem was launched by the 1934 Group several years ago: a wide variety of upstanding citizens, unable to get the required signature (that of a local Chief Law Enforcement Officer, who is not legally obligated to comply appropriately with the signoff request) on BATFE Form 4 paperwork to obtain NFA weapons (machineguns, silencers, etc.) sued for the elimination of the "CLEO signoff" requirement. The attempt failed, with the judge concocting obscure and strange excuses for RKBA being left to the whims of bureaucrats.

Perversely, one need not obtain the "CLEO signoff" - IF one officially registers a corporation which, as a legal entity, files the Class III paperwork and takes official ownership of the NFA weapons. Only as officers or designees of the company may a citizen then keep and bear NFA arms. Yes, a citizen needs permission from a bureaucrat (who has no obligation to grant consent) to fully exercise RKBA, but a corporation does not.

Which leads us to the Robert Ebert quote (ironic, him being a flaming liberal). If a corporation is a legal person, then surely an actual person could sue under the 14th Amendment for equal treatment under the law, to wit: submit and have approved an NFA Form 4 request to pay the NFA tax and take ownership of a Class III weapon without seeking the approval of unapproving CLEOs, just as may happen for a corporation (that being a legal person). For the "CLEO signoff" requirement to stand creates an unequal-under-the-law rift between two legal classes of persons, which is intolerable under the 14th Amendment.

Thoughts?

 

[Standing Wolf]

Best of luck, eh? The courts are packed to the rafters with leftist extremist judges, so neither American law nor common sense stand much of a chance.

 

[alan]

ctdonath:

An interesting proposition, however given the nature and seeming inclinations of the courtrs, I doubt that it will fly.

On the other hand, what do I know?

 

[DevilDog]

Good argument, and an ubiased court system would have a hard time with that.

Side note - I started an S-corp last year and have been self employed for the last 18 months. With Sept coming up, I think my company's president needs to get to work on some SBR paperwork.

 

[CleverNickname]

I have a feeling even if the ruling did go the right way, the BATF would change the rules to require signoffs for corporations, too. Then the rules would be the same for both real people and corps, so they could continue to require the signoffs.

FWIW, the signoff requirement is an administrative rule. Nothing in the law requires it, and it could be rescinded with an executive order.

 

[Basura Blanca]

This may not be news to anyone, but historically, most supreme court cases that have dealt with the "equal protection" clause of the 14th were not cases involving former slaves but rather corporations.
The corporations as people angle has been exploited for many years in the courts.

 

[Hkmp5sd]

the BATF would change the rules to require signoffs for corporations, too.

They can't. These particular rules are written in the 1934 NFA, so the actual laws must be changed. That is the reason for the court battles trying to rule the law (or portions) unconstitutional.

 

[CleverNickname]

These particular rules are written in the 1934 NFA, so the actual laws must be changed.

Do you have a cite for this? I couldn't find a requirement anywhere in the law that there be no signoff for a corporation, or that would require one for a natural person.

 

[Hkmp5sd]

§ 179.85 Identification of transferee.

If the transferee is an individual, such person shall securely attach to each copy of the application, Form 4 (Firearms), in the space provided on the form, a photograph of the applicant 2 x 2 inches in size, clearly showing a full front view of the features of the applicant with head bare, with the distance from the top of the head to the point of the chin approximately 1 1/4 inches, and which shall have been taken within 1 year prior to the date of the application. The transferee shall attach two properly completed FBI Forms FD-258 (Fingerprint Card) to the application. The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them. A certificate of the local chief of police, sheriff of the county, head of the State police, State or local district attorney or prosecutor, or such other person whose certificate may in a particular case be acceptable to the Director, shall be completed on each copy of the Form 4 (Firearms). The certificate shall state that the certifying official is satisfied that the fingerprints and photograph accompanying the application are those of the applicant and that the certifying official has no information indicating that the receipt or possession of the firearm would place the transferee in violation of State or local law or that the transferee will use the firearm for other than lawful purposes.

The law defines a person as "any individual, corporation, company, association, firm, partnership, society, or joint stock company." § 179.85 requires the CLEO for identifcation of an "individual". While an "individual" can be a corporation for the purposes of obtaining licenses and doing firearm transfers, a corporation is not always a single individual and often covers many legal jurisdictions. Therefore, the requirement for fingerprints, photos and CLEO autograph cannot and do not apply.

If ATF wanted to require corporations to get the CLEO, the law would have to be re-written.

 

[Cosmoline]

It's called a "legal fiction" because it's only done to give the corporation legal status to sue and be sued, to hold assets and the like. In this case, you are technically correct that there is unequal treatment. But such unequal treatment has sufficient justification to mass muster. Specifically, corporations aren't likely to rob banks with automatic weapons. Of course we know you aren't either, but all Congress must do is provide some reason, even if it isn't a very good one. You are not a member of a protected class.

 

[alan]

Cosmoline:

Were corporations to take up bank robbery, likely the weapons used would be "pieces of paper", rather than firearms of any type.

 

[SB88LX]

Sorry, not trying to hijack, but are corporations just as crippled by the '86 machine gun ban as civilians, or can corporations legally obtain post '86 full autos?

 

[Hkmp5sd]

are corporations just as crippled by the '86 machine gun ban as civilians

Yep. No post-86 machineguns.

 

[jefnvk]

Good argument, and an ubiased court system would have a hard time with that.

Side note - I started an S-corp last year and have been self employed for the last 18 months. With Sept coming up, I think my company's president needs to get to work on some SBR paperwork.

If you're using your corp as an actual business, I would be wary of registering weapons in its name. If it ever went belly-up, they count as assets and could be sold off, or whatever happens to the company property after it flounders

 

[Hkmp5sd]

I would be wary of registering weapons in its name.

If the corporation closes, the NFA items have to be transferred anyway. The primary reason for mixing corporations and NFA weapons is to get around the CLEO requirement when the CLEO will not sign. If the owner of the corporation still cannot get the CLEO when his corporation closes, he will have to transfer the guns to someone else.

On the other hand, if your business is going belly up, selling off a few machineguns might give you the capital to save it.

 

[DevilDog]

If you're using your corp as an actual business, I would be wary of registering weapons in its name. If it ever went belly-up, they count as assets and could be sold off, or whatever happens to the company property after it flounders

It is an actual business, but it is just me (self employed programmer). My company has almost no expenses, so I only have to make enough profit to pay for my accounting services and a token salary to myself (so I have very little risk in not making payroll). Even if I take a W2 position somewhere, I only need one or two tiny projects in a year to maintain.

A single person software consulting shop is a very low risk as far as law suits go, so the risk of having to sell them in that event is minimal.

If I needed to ever dissolve my corp, I could sell them to myself and do the fingerprinting/cleo signoff then.

Your point is worth noting though - there are risks in the corporate solution for NFA purchases, so one should not do it blindly.