Machine gun ban upheld by federal appeals court

[Aim1]

http://www.washingtontimes.com/news/2016/may/19/machine-gun-ban-upheld-by-federal-appeals-court/

Machine gun ban upheld by federal appeals court


By Andrew Blake - The Washington Times - Thursday, May 19, 2016
A federal appeals court agreed Wednesday that the Second Amendment doesn’t allow U.S. citizens to own machine guns, rejecting once again a claim brought by a Pennsylvania man who unsuccessfully attempted to acquire a military-style firearm by registering it through his family trust.

Ryan Watson first sued the U.S. government in 2014 after his application for a M-16-style machine gun was accidentally approved by the Bureau of Alcohol, Tobacco, Firearms and Explosives before being rescinded one month later.

“Interpreting the statute so as to include this exception would thereby swallow the rule. We refuse to conclude that with one hand Congress intended to enact a statutory rule that would restrict the transfer or possession of certain firearms, but with the other hand it created an exception that would destroy that very rule,” the appeals panel opined.

 

[Frank Ettin]

The opinion may be found here: Watson v. Lynch (Third Circuit, No. 15-2859, 2016).

People should read the opinion and not rely on the news report linked to in the OP.

 

[tarosean]

Seems to me the man tried every loophole he could come up with. In the end he could of bought a bona fide one cheaper than his legal fees... odd.

 

[joem1945]

My puter wouldn't let me see it. "A federal appeals court agreed Wednesday that the Second Amendment doesn’t allow U.S. citizens to own machine guns"

I owned a M16 for 20 years so I don't understand this ruling.

 

[Sam1911]

My puter wouldn't let me see it. "A federal appeals court agreed Wednesday that the Second Amendment doesn’t allow U.S. citizens to own machine guns"

I owned a M16 for 20 years so I don't understand this ruling.

Which is why Frank posted that you should read the ruling, not the ignorant mewling of the reporter.

 

[amprecon]

The Court is wrong and is in contempt of the 2nd Amendment to the Bill of Rights of the U.S. Constitution and should be charged as such.

 

[Sam1911]

Would you care to explain that opinion in something more than just the usual "The 2nd Amendment is my carry permit!1!11!!" detail?

In other words, where have they erred as a matter of jurisprudence?

I see some things I don't like in their interpretation and application, but I don't know that I see where they are wrong*.




* -- Except of course in my general opinion that any infringement on the 2nd Amendment is "WRONG" -- and my opinion on the matter isn't worth the cost of the electrons expended in posting it.

 

[Frank Ettin]

The Court is wrong and is in contempt of the 2nd Amendment to the Bill of Rights of the U.S. Constitution and should be charged as such.

That is not how things are in real life in the real world.

Let's look at the legal reality.

What our Constitution states and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803; and McCulloch v. Maryland was decided 10 years later, in 1813.

The Founding Fathers assigned the role of deciding what the Constitution means and how it applies to the federal courts (Constitution of the United States, Article III, Sections 1 and 2):

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....​

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...​

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed.

Thus if there is disagreement about whether a statute enacted by Congress applies to decide a controversy or the application of the statute is barred by the Constitution, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177):

...It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule....

It's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.

For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:

• Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve compelling state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.
  
  
• If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.
  
  
• Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
  
  
  • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:

    ...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement...

    
    
  • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:

    ...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not, however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...

  
  
• In the leading case on prior restraint (Near v. State of Minnesota Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.
  
  But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):

  ...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...

  
  
• In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).

So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.

We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.

With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:

1. Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.
   
   
2. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
3. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
4. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
5. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
6. Second Amendment jurisprudence is still in its infancy. Until Heller in 2008, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald in 2010, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
7. The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.

 

[barnbwt]

We refuse to conclude that with one hand Congress intended to enact a statutory rule that would restrict the transfer or possession of certain firearms, but with the other hand it created an exception that would destroy that very rule,” the appeals panel opined.

Odd, I thought Congress did exactly create an exception, giving the Bureau the ability to add entries on an individual basis at their own discretion (same as with all other federal gun laws). The sister case, Hollis v Lynch, was the one seeking discovery on the machinegun registry to prove this, since it's never been reviewed or audited by independent oversight. There's an awful lot of rotten stuff surrounding this issue, and I think it will take a lot more than one or two cases to begin unravelling it. There's equal protection arguments, due process arguments, trust law arguments, potentially even official corruption (registering MGs of prominent donors, greatly increasing their value) and all sorts of other angles which combine to form the unjust system, but which may each seem "acceptably bad" in a vacuum.

Hopefully the progress made with these two cases at least shows others the way, and a more effective attack is mounted. It's important to note that this is the first time arguments for the legalization of MGs have been seriously considered --even favorably, by some of the judges-- in considerable time.

Also, did this opinion just state that trusts cannot own property?

TCB

 

[jmorris]

Seems to me the man tried every loophole he could come up with. In the end he could of bought a bona fide one cheaper than his legal fees... odd.

As is the case for many folks that challenge the "system".

Many have gone through trials and tribulations doing what they thought was right so others would not have to do the same thing for themselves. Many examples of this throughout history.

 

[Frank Ettin]

...did this opinion just state that trusts cannot own property?...

Yes, and that is, and always has been, the law. A trust can not own property.

I discussed that in detail in this post over a year ago (and indeed touched upon that fact a number of times considerably earlier):

...A trust is not a legal entity and can not own anything. The trustee(s) has legal title to any assets held in trust. A trustee may be a natural person or an artificial person (i. e., a corporation).

People might talk in casual terms about a trust owning something or having assets, but that's only a shorthand for the more detailed, technical reality.

It's kind of like the old "I say clip, but you know I mean magazine" discussion. If one lawyer talks to another about the assets of a trust, they both know that what is really meant is the property owned by the trustee in trust. But to someone without the background to understand the shorthand, it appears that there is some legal entity called a "trust" which owns certain property. That illustrates how a casual misuse of terms can lead to a serious misunderstanding. As the Chinese say, "The first step toward wisdom is calling things by their right names."

The legal reality is that the trustee (a person -- natural or artificial (a corporation) as the case may be) holds (owns) the assets in trust, subject to the terms of the trust document, for the benefit of one or more beneficiaries. Let's look at some definitions of "trust":

1. The Free Dictionary:

   Trust
   
   A relationship created at the direction of an individual, in which one or more persons hold the individual's property subject to certain duties to use and protect it for the benefit of others.
   
   Individuals may control the distribution of their property during their lives or after their deaths through the use of a trust. There are many types of trusts and many purposes for their creation. A trust may be created for the financial benefit of the person creating the trust, a surviving spouse or minor children, or a charitable purpose. Though a variety of trusts are permitted by law, trust arrangements that are attempts to evade creditors or lawful responsibilities will be declared void by the courts.
   
   The law of trusts is voluminous and often complicated, but generally it is concerned with whether a trust has been created, whether it is a public or private trust, whether it is legal, and whether the trustee has lawfully managed the trust and trust property.
   
   Basic Concepts
   
   The person who creates the trust is the settlor. The person who holds the property for another's benefit is the trustee. The person who is benefited by the trust is the beneficiary, or cestui que trust. The property that comprises the trust is the trust res, corpus, principal, or subject matter. For example, a parent signs over certain stock to a bank to manage for a child, with instructions to give the dividend checks to him each year until he becomes 21 years of age, at which time he is to receive all the stock. The parent is the settlor, the bank is the trustee, the stock is the trust res, and the child is the beneficiary.
   
   A fiduciary relationship exists in the law of trusts whenever the settlor relies on the trustee and places special confidence in her. The trustee must act in Good Faith with strict honesty and due regard to protect and serve the interests of the beneficiaries. The trustee also has a fiduciary relationship with the beneficiaries of the trust.
   
   A trustee takes legal title to the trust res, which means that the trustee's interest in the property appears to be one of complete ownership and possession, but the trustee does not have the right to receive any benefits from the property. The right to benefit from the property, known as equitable title, belongs to the beneficiary.
   
   The terms of the trust are the duties and powers of the trustee and the rights of the beneficiary conferred by the settlor when he created the trust....

   
   
2. The Law Dictionary:

   ...An equitable or beneficial right or title to land or other property, held for the beneficiary by another person, in whom resides the legal title or ownership, recognized and enforced by courts of chancery. See Goodwin v. McMinn, 193 Pa. 046, 44 Atl. 1094, 74 Am. St. Rep. 703; Beers v. Lyon, 21 Conn. 613; Seymour v. Freer, 8 Wall. 202, 19 L. Ed. 300. An obligation arising out of a confidence reposed in the trustee or representative, who has the legal title to property conveyed to him, that he will faithfully apply the property according to the confidence reposed, or, in other words, according to the wishes of the grantor of the trust. 4 Kent Comm. 304; Willis, Trustees, 2; Beers v. Lyon, 21 Conn. 613; Thornburg v. Buck, 13 Ind. App. 446, 41 N. E. 85....

   
   
3. Nolo Press:

   ...A trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. You can be the trustee of your own living trust, keeping full control over all property held in trust....

   
   
4. Wikipedia:

   In common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a settlor, who transfers some or all of his or her property to a trustee. The trustee holds that property for the trust's beneficiaries. Trusts have existed since Roman times and have become one of the most important innovations in property law....

There's really no difference between a gun trust and any other trust, except that one would expect that in something called a gun trust the property owned by the trustee(s) would be guns (and maybe some special attention would be called for to assure compliance with state and federal gun laws). Beyond that, there can be a lot of variation in the terms of a trust. The settlor's purposes, the nature of the property to be held in trust by the trustee(s), the settlor's tax concerns, provisions for a successor trustee, provisions for successor beneficiaries, etc., will all figure in the way a trust document will be written.

 

[pdsmith505]

Yes, and that is, and always has been, the law. A trust can not own property.

I discussed that in detail in this post over a year ago (and indeed touched upon that fact a number of times considerably earlier):

​

Just for the sake of argument, lets say a binding case from the Third Circuit existed that stated:

A trust is a legal instrument in which assets are held in the name of the trust and managed by a trustee for the benefit of a beneficiary. Black’s Law Dictionary 1546 (8th ed. 2004) (definition of “trust”). This structure means that the beneficiary does not actually own the assets of the trust, but instead has an equitable right to derive benefits from them. (The benefits vary according to the terms of the trust.) The trust has long been a tool for evading the rigid strictures of the law, which has generally been a positive development. For example, in feudal England – the trust‟s birthplace – the trust allowed younger sons and daughters to inherit land despite strict rules at law against devising land by will. See Joseph A. Rosenberg, Supplemental Needs Trusts for People with Disabilities: The Development of a Private Trust in the Public Interest, 10 B.U. Pub. Int. L.J. 91, 101 (2000) (citing Austin Wakeman Scott, Abridgment of the Law of Trusts 11 (1960)). And the trust‟s unique structure makes it useful for countless salutary purposes in modern society.

Would the difference here be that, in the case of Watson v Lynch, the opinion centers around a trust's relationship to the grantor / trustee while, in the case of Lewis v. Alexander, the opinion centers around a trust's relationship to the beneficiary?

 

[Frank Ettin]

Yes, and that is, and always has been, the law. A trust can not own property.

I discussed that in detail in this post over a year ago (and indeed touched upon that fact a number of times considerably earlier):

​

Just for the sake of argument, lets say a binding case from the Third Circuit existed that stated:

A trust is a legal instrument ....

Don't try to be cute. If you think that Lewis v. Alexander, 685 F.3d 325 (3rd Cir., 2012) somehow applies, cite it and make your case based on it. Lewis is irrelevant here. Furthermore, your quote from Lewis is out of context and therefore misleading.

Lewis involves the administration of the Medicaid program in the Commonwealth of Pennsylvania with respect to comprehensive Medicaid eligibility rules enacted by Congress which generally relate to how and when certain assets held in trust in various types of trusts would be counted as assets of those seeking Medicaid. The decision of the court involves analysis of complex statutory provisions.

As the court notes (Lewis, at 332 --333, and following directly from the snippet you quoted):

... But this same bifurcated ownership structure has been used to manufacture eligibility for government welfare programs like Medicaid. As with many government programs, eligibility for Medicaid is partially dependent on the claimant's income and assets. Wealthy individuals are expected to exhaust their own resources before turning to the public for assistance. But trusts can enable these same individuals to technically “own” nothing at all, even though they may have access to substantial wealth. Such claimants may then qualify for Medicaid. See Johnson v. Guhl, 357 F.3d 403, 405 (3d Cir.2004) (“Because Medicaid is available to the needy, creative lawyers and financial planners have devised various ways to ‘shield’ wealthier claimants' assets in determining Medicaid eligibility.”). Individuals have gained access to taxpayer-funded healthcare while retaining the benefit of their wealth and the ability to pass that wealth to their heirs.

Congress understandably viewed this as an abuse and began addressing the problem with statutory standards enacted in 1986. See Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99–272, § 9506(a), 100 Stat. 82 (Apr. 7, 1986). These standards were repealed and replaced in 1993 by the current trust-counting rules. See Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103–66, Title XIII § 13611(d)(1)(c), 107 Stat. 312 (Aug. 10, 1993) (OBRA 1993). Those rules are at issue in this case.

In the 1993 OBRA amendments, Congress established a general rule that trusts would be counted as assets for the purpose of determining Medicaid eligibility. But Congress also excepted from that rule three types of trusts meeting certain specific requirements.....

...Would the difference here be that, in the case of Watson v Lynch, the opinion centers around a trust's relationship to the grantor / trustee while, in the case of Lewis v. Alexander, the opinion centers around a trust's relationship to the beneficiary?

So no, that's not the difference. In fact that statement is pretty much meaningless.

The problem with Watson's trust argument was that it was based on a false premise, viz., that a trust is a form of legal entity which may own things. But in Watson both the trial court and the Third Circuit panel immediately saw through that attempt at misdirection. Since a trust does not and can not own property, and since legal title to assets held in trust resides in one or more trustees who are "persons" as defined in the Gun Control Act of 1968 (at 18 USC 921(a)(1)), Watson's claim that the use of a trust takes the possession of a machine gun out of 18 USC 922(o) must fail.

 

[Swing]

This result isn't even remotely surprising.

Any news on Hollis v. Lynch that was argued in the Fifth Circuit (New Orleans)?

 

[pdsmith505]

Don't try to be cute.

I believe the word you are looking for is "conversational" as opposed to "cute".

If you think that Lewis v. Alexander, 685 F.3d 325 (3rd Cir., 2012) somehow applies, cite it and make your case based on it.

Lo and behold! I did. I put it right there in the quote tags:

[QUOTE=Lewis v. Alexander]A trust is a legal instrument in...

Lewis is irrelevant here. Furthermore, your quote from Lewis is out of context and therefore misleading.

On the contrary, my quote is pithy. After having read both opinions, I quoted what I thought to be the relevant (primarily because it was interesting) parts of Lewis to ask a question, as a layperson, to someone who is knowledgeable in the subject to gain a better understanding. Would you rather I have quoted the entire opinion?

Regardless, I'll just say that the manner in which you began your reply was nothing short of rude and uncalled for. I'll try in the future to be more discerning in my wording when replying to you so that it isn't misconstrued as being "cute" and sets you off.

Lewis involves the administration of the Medicaid program in the Commonwealth of Pennsylvania with respect to comprehensive Medicaid eligibility rules enacted by Congress generally how and when certain assets held in trust in various types of trusts would be counted as assets of those seeking Medicaid. The decision of the court involves analysis of complex statutory provisions.

As the court notes (Lewis, at 332 --333, and following directly from the snippet you quoted):

​

So no, that's not the difference. In fact that statement is pretty much meaningless.

The problem with Watson's trust argument was that it was based on a false premise, viz., that a trust is a form of legal entity which may own things. But in Watson both the trial court and the Third Circuit panel immediately saw through that attempt at misdirection. Since a trust does not and can not own property, and since legal title to assets held in trust resides in one or more trustees who are "persons" as defined in the Gun Control Act of 1968 (at 18 USC 921(a)(1)), Watson's claim that the use of a trust takes the possession of a machine gun out of 18 USC 922(o) must fail.

It might be that I understand a little better now, though I'll leave it to others to ask any follow on questions. Thank you for the insight.

 

[Frank Ettin]

I believe the word you are looking for is "conversational" as opposed to "cute".....

Nah!

You wrote:

Just for the sake of argument, lets say a binding case from the Third Circuit existed...

But it's not a matter of accepting a proposition "for the sake of argument." There is that case. And it should have been cited (i. e., either by case number or the volume and page at which it's published in the law reports, as I did -- there are actually several cases with the same title).

....After having read both opinions, I quoted what I thought to be the relevant (primarily because it was interesting) parts of Lewis to ask a question, as a layperson, to someone who is knowledgeable in the subject to gain a better understanding....

Okay, I'll accept that and apologize.

Lewis is a complicated case, and you couldn't necessarily be expected to recognize what was really significant in the opinion and distinguish it from what was merely prefatory or foundational.

So what you had quoted from Lewis was really just the court laying a foundation for its discussion, which I quoted, of how a trust could be abusively used to hide assets in a way which would allow a person to retain a beneficial interest in substantial wealth while being technically penurious thus qualifying for public medical assistance. And that establishes the context for the discussion of the Medicaid eligibility rules and their administration -- and that's the real issue being addressed by the court.

 

[ATN082268]

<Snip Post>

6. Second Amendment jurisprudence is still in its infancy. Until Heller in 2008, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right.

I had two questions:

1. What is an individual right and a collective right?

2. How exactly can a right, in the Bill of Rights in the U.S. Constitution, be considered a collective right?

 

[Carl N. Brown]

"A federal appeals court agreed Wednesday that the Second Amendment doesn’t allow U.S. citizens to own machine guns," -- Andrew Blake, "Machine gun ban upheld by federal appeals court", The Washington Times, 19 May 2016.

"People should read the opinion and not rely on the news report linked to in the OP." -- Frank Ettin.
[oughta the motto for THR > Social Situations > Legal]

[Claude Rains voice]I am shocked--shocked--that anti-gun bias is going on in the media.[/voice] Well, no. The news media have a demonstrated bias against guns and for blind faith in gun control as an article of faith. In my experience news reports on guns are usually crusading op-eds for gun control and are neither good reporting nor good legal opinion.

Tennessee state constitution, Article I rights of the citizen, Section 26 declares that the citizens of this state have the right to keep and bear arms and that the legislature has the power to regulate arms with a view to prevent crime. I would have to be Dr. T* to count all the op-eds I have seen over the past half-century that try to claim that the implication of militia preparedness as a reason (among other unspecified reasons) or that the power to regulate clause mean Art I Sec 26 only protects the militia and individuals' guns can be outlawed.

Nope. State court rulings, attorney general opinions and statements of legislative intent are clear that the state RKBA protects lawful possession and use for all traditional purposes, and have listed hunting, protection of livestock from predators, self-defense, military preparedness training, collection as heirloom keepsake or curio, etc. as lawful protected use and possession. Possession in your home or business for self-defense is recognized as an Absolute Right. Regulations must be tailored (a) to impact crime and (b) not to unduly restrict traditional, lawful possession and use.

That does not stop editorials and news "reportage" from spinning it wrong.

At the federal level, machine guns are taxed because the 1930s federal attorney general (Cummings) admitted out-right prohibition of "gangster weapons" was unconstitutional. According to Justice James C. McReynolds in US v Miller (1939) the National Firearms Act (1934) was modeled on the legal theory of the Harrison Narcotics Act. That implies to me the NFA operates on the principle recognized by Chief Justice John Marshall as "the power to tax involves the power to destroy," If you cannot constitutionally ban something, you tax and regulate it to death, de facto prohibition via restrictive taxation and regulation, especially if you have convinced yourself the cause is good (the War on Drugs, the War on Guns) and the Consititution is just a pesky impediment to the crusade.**

Bottom line: Do not rely on advocacy journalists to accurately report on court cases involving guns.

Reporter says: Machine gun ban upheld by federal appeals court but the court's opinion does not say that. One guy who had been denied a Form 4 as an individual was not allowed to get a Form 4 as a member of a trust. Nothing has sustantially changed.

_____________________
* https://en.wikipedia.org/wiki/The_5,000_Fingers_of_Dr._T

** The 1937 Marihuana Tax Act did not ban marijuana; it just required the reasonable regulation of a $500 tax stamp printed with unobtainium ink on fergetabutit paper. You enact "common sense" laws from a prohibitonist point of view, or you enact blatantly unconstitutional laws with a wink'n'nod; Florida State Supreme Court Justice Rivers H. Buford stated the state pistol permit law (1893) was only enforced against non-resident black migrant workers and had not been enforced against persons with standing to challenge the law in court "because it has generally conceded to be in contravention of the Constitution and nonenforceable if contested" -- (Watson v. Stone, 148 Fla. 516, 524, 4 So.2d 700, 703 (1941)).

 

[Frank Ettin]

6. Second Amendment jurisprudence is still in its infancy. Until Heller in 2008, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right.

I had two questions:

1. What is an individual right and a collective right?

2. How exactly can a right, in the Bill of Rights in the U.S. Constitution, be considered a collective right?

See this article by Second Amendment scholar and advocate, Dave Kopel: "Cooking Up A Collective Right."

 

[ATN082268]

See this article by Second Amendment scholar and advocate, Dave Kopel: "Cooking Up A Collective Right."

Thank you. That was most illuminating...

 

[nutherboomer]

A bit of background on the justices in this third circuit:

Anne Thompson: appointed by Pres. Jimmy Carter;

Thomas L. Ambro: appointed by Pres. William J. Clinton;

Cheryl Ann Krause: appointed by Pres. Barack Obama.

I believe that this limit on a fundamental right opens the door to further limiting gun rights. Should this case go to the Supreme Court in 2017, the replacement for Scalia could be the decisive opinion.

Who one votes in as president does matter.

 

[hdwhit]

Thank you, Frank.

I look forward to reading your posts. They are always informative and easy to understand.

 

[Arrowsmith]

Newbie here, this is my first post. I have to say I'm impressed with the information that Frank has provided. The decision makes it abundantly clear that Watson was given a thorough and fair hearing. Despite some minor blustering, the moderators insured that this thread was worth reading. Good job

 

[barnbwt]

Another update here; it seems the Fifth has refused to do an en banc rehearing without opinion/comment, and the attorneys will not be appealing to SCOTUS (wise decision at this point). Still a number of questions left unanswered in the case, that will sadly go unanswered.

Basically the opinion was the MGs aren't protected under RKBA and trusts can neither hold, nor possess, nor own property (so why do we have them again?) therefore none of the other questions need to be answered. They claim MGs aren't protected because they are not in "common use," and because the prospect they could be protected is facially ridiculous (this despite the fact that every supporting argument in Heller suggests the protection of machineguns, except for the fact they are explicitly excluded at numerous junctures in the ruling as the logic was constructed. My personal interpretation is that Scalia was seeking to deny the obvious ramifications of an otherwise cohesive argument so as to get Kennedy on board, this fatal flaw becoming the focus rather than a facet of the overall ruling, subsequently )

I'm still curious how a trust (referred to repeatedly as an 'entity' or 'fiction' in the opinion) owning property or not has anything to do with a trustee being able to lawfully produce/register NFA machineguns on its behalf, when the law does clearly refer to "persons" not "entities" in a thorough littany of legal constructs that does not include trusts. Trusts are distinct for tax purposes, and not treated as "persons" because a human fills out the tax forms on their behalf. I suppose you could say the intent of congress to ban MGs is clear (and it is, though far outside the authority of congress as accepted when the NFA was written, which is why a prohibitive tax was adopted instead of a ban) but that gets into the timeless argument of whether the courts are to be congress' spell checkers, or mere constitutional arbiters (and the fact that the presence of a loophole in 922o has nothing to do with constitutionality, especially if congress' "will" can be attained by corrective legislation, which is what should have happened here)

ATF explained that although a trust is not a
“person” under the Act, a trust cannot legally make or hold
property. Therefore, ATF considers the individual acting on
behalf of the trust to be the proposed maker and possessor of
the machine gun.

This bit in particular makes no sense, because a trust can most definitely hold property (that's kind of the entire point). That's why the phrase is "held in trust." I don't see how claiming it to be 'inseparable' from its trustees or beneficiaries changes that fact (other than to deny the entire purpose of a trust which is to disentangle assets from beneficiaries so they may be managed by independent trustees, most frequently for advantageous TAX PURPOSES which is also the whole point of NFA trusts if you think about it)

Moreover, this holding is necessarily correct because
to interpret the Gun Control Act as Watson suggests would
allow any party—including convicted felons, who are
10
expressly prohibited from possessing firearms under 18
U.S.C. § 922(g)(1)—to avoid liability under this section
simply by placing a machine gun “in trust.”

Basically the argument as I see it is such a loop hole is legally 'ridiculous,' and therefore cannot be sustained. Which is odd seeing as this is the exact stated justification for the whole 41F regulation change; that otherwise prohibited persons could obtain NFA items legally without a background check. Once again, this finding is more along the lines of 'fixing' the legislation, rather than interpreting its plain meaning. Even so, their objections to PPs taking advantage of the NFA through trusts would seem to be obviated by 41F, which once again is set up to specifically prevent this scenario.

Pretending trusts are not distinct from their trustees or beneficiaries is a strange (and lazy) way of squaring the circle for a desired policy outcome, considering the whole point of the stereotypical "Cayman Islands Trust Fund" is to separate it from the domestic citizen for tax sheltering purposes. The logic in this ruling claims that such a trust fund's money is in fact the possession of the beneficiary or even filing accountant, who should directly determine the trust's treatment relating to its taxation/etc by tax assessors/regulators. Seems to fly in the face of even basic trust law going back centuries.

See, e.g., Haynes v. United States, 390 U.S. 85, 87
(1968) (describing machine guns as “weapons used
principally by persons engaged in unlawful activities”)

Reading over the opinion again, I found this excerpt rather comical, seeing as select fire weapons are overwhelmingly used by law enforcement officers domestically, as well as hundreds of thousands by law abiding citizens. There are illegal unregistered machineguns out there (which incidentally have nothing to do with the NFA-registered machineguns the focus of the case), but they are likely dwarfed by the LEO weapons. It's really a shame SCOTUS is so hostile now, since it'd be interesting to see how the MA TAZER ruling would effect these Heller-based "common use" escape clauses.

I still find it funny that even going back to Miller, the plainly circular argument against NFA items is "the only people using these illegal weapons are criminals," used to justify infringements chasing the goal of a non sequitor; "therefore we can ban all these illegal weapons to eliminate all crime." Police & military uses never enter into the equation at all.

TCB

 

[Frank Ettin]

...because a trust can most definitely hold property (that's kind of the entire point).....

No, that is completely wrong. And because you are starting with a fundamentally flawed premise, everything you base on that premise is wrong. See post 11 for an introduction to the law of trusts.

...That's why the phrase is "held in trust."...

The phrase "held in trust" doesn't refer to some entity having ownership of property. It refers to the nature of a trustee's ownership of assets held by him in trust. Assets being held by a trustee in trust may not be used by the trustee for his purposes or his benefit. The trustee owns the property solely for the benefit of someone else, the beneficiary of the trust.

Trusts have been around for a very long time. They have been, and are, used for many purposes and in many ways. There is an enormous body of law relating to trusts, how they work, tax consequences, duties of trustees, right of beneficiaries, etc. Trying to "puzzle things out" won't get you right answers.