Foreign Devil
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Am I correct that while the 1934 NFA was based on the power of taxation, the 1968 GCA and the 1986 FOPA amendment were based on the interstate commerce power?
Ninth circuit court homemade Machine gun ruling
- Thread starter jke456
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FNFiveSeven
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The state laws don't say "if approved by the ATF", they say that the machine gun is legal to possess so long as it's possession is in compliance with all federal laws. Since the federal laws don't apply to homemade machine guns, homemade machine guns are defaulted into "compliance." Federal law will effectively be silent on the issue of homemade machine guns in the 9th district.
appeals court jurisdictions:
http://www.findlaw.com/10fedgov/judicial/appeals_courts.html
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I just read through the court's paper on this case, and I was wondering;
does this ruling also apply to other homemade NFA items? (suppressors, sbr's, sbs's, dd's, aow's?)
It looks like it does to me, even though only machine guns are specifically mentioned, a ruling on the NFA based on interstate commerce has to hit everything, not just mg's.
I hear that basic suppressors are pretty simple to make...
So fed law says that unregistered, home made NFA's are legal, right?
I have looked around for state law on some of this, mainly Arizona/Nevada because I've heard that they have better firearms laws than some of the other 9th circuit states.
Arizona:
http://www.atf.gov/firearms/statelaws/22ndedition/arizona.pdf
NFA items are "prohibited weapons", unless registered with the fed's.
It is illegal to posses/make/transfer a prohibited weapon, unless you are a leo, mil, or allowed to possess the weapon by state or federal law.
That 'or' federal law in there looks important. Because making/owning homemade mg's (and other NFA's?) is permitted by federal law, then it is legal with the state as well.
quotes:
-------------------------------------------------------------
7. "Prohibited weapon" means,...
...
(b) Device that is designed, made or adapted
to muffle the report of a firearm;
(c) Firearm that is capable of shooting more
than one shot automatically, without manual
reloading, by a single function of the trigger; or
(d) Rifle with a barrel length of less than
sixteen inches, or shotgun with a barrel length of
less than eighteen inches, or any firearm that is
made from a rifle or shotgun and that, as
modified, has an overall length of less than
twenty-six inches;
...
B. The items as set forth in subsection A,
paragraph 6, subdivisions (a), (b), (c) and (d) do
not include any firearms or devices that are
registered in the national firearms registry and
transfer records of the United States treasury
department or any firearm that has been classified
as a curio or relic by the United States
treasury department.
...
13-3102. Misconduct involving weapons;
defenses; classification; definitions.
A. A person commits misconduct involving
weapons by knowingly:
...
3. Manufacturing, possessing, transporting,
selling or transferring a prohibited weapon;
...
---------
C. Subsection A, paragraphs 1, 2, 3, 7, 10,
11, 12 and 13 of this section shall not apply to:
...
4. A person specifically licensed, authorized
or permitted pursuant to a statute of this state or
of the United States.
---------
...
--------------------------------------------------------------
Nevada:
http://www.atf.gov/firearms/statelaws/22ndedition/nevada.pdf
Reading through the above pdf. Looks similar to Arizona, except that sbr's and sbs's must be registered with the fed's.
mg's and suppressors are legal if it is legal with the fed's.
--------------------------------------------------------------
IANAL, a lot of you have done more research into this than I have.
I wouldn't be surprised if I am wrong on this stuff.
---------------------------------------------------------------
I wrote this before seeing the above post on state legality.
I just continued to put my thoughts and some links to other laws out here.
http://www.findlaw.com/10fedgov/judicial/appeals_courts.html
-----------------------------------------------------------------------------------
I just read through the court's paper on this case, and I was wondering;
does this ruling also apply to other homemade NFA items? (suppressors, sbr's, sbs's, dd's, aow's?)
It looks like it does to me, even though only machine guns are specifically mentioned, a ruling on the NFA based on interstate commerce has to hit everything, not just mg's.
I hear that basic suppressors are pretty simple to make...
So fed law says that unregistered, home made NFA's are legal, right?
I have looked around for state law on some of this, mainly Arizona/Nevada because I've heard that they have better firearms laws than some of the other 9th circuit states.
Arizona:
http://www.atf.gov/firearms/statelaws/22ndedition/arizona.pdf
NFA items are "prohibited weapons", unless registered with the fed's.
It is illegal to posses/make/transfer a prohibited weapon, unless you are a leo, mil, or allowed to possess the weapon by state or federal law.
That 'or' federal law in there looks important. Because making/owning homemade mg's (and other NFA's?) is permitted by federal law, then it is legal with the state as well.
quotes:
-------------------------------------------------------------
7. "Prohibited weapon" means,...
...
(b) Device that is designed, made or adapted
to muffle the report of a firearm;
(c) Firearm that is capable of shooting more
than one shot automatically, without manual
reloading, by a single function of the trigger; or
(d) Rifle with a barrel length of less than
sixteen inches, or shotgun with a barrel length of
less than eighteen inches, or any firearm that is
made from a rifle or shotgun and that, as
modified, has an overall length of less than
twenty-six inches;
...
B. The items as set forth in subsection A,
paragraph 6, subdivisions (a), (b), (c) and (d) do
not include any firearms or devices that are
registered in the national firearms registry and
transfer records of the United States treasury
department or any firearm that has been classified
as a curio or relic by the United States
treasury department.
...
13-3102. Misconduct involving weapons;
defenses; classification; definitions.
A. A person commits misconduct involving
weapons by knowingly:
...
3. Manufacturing, possessing, transporting,
selling or transferring a prohibited weapon;
...
---------
C. Subsection A, paragraphs 1, 2, 3, 7, 10,
11, 12 and 13 of this section shall not apply to:
...
4. A person specifically licensed, authorized
or permitted pursuant to a statute of this state or
of the United States.
---------
...
--------------------------------------------------------------
Nevada:
http://www.atf.gov/firearms/statelaws/22ndedition/nevada.pdf
Reading through the above pdf. Looks similar to Arizona, except that sbr's and sbs's must be registered with the fed's.
mg's and suppressors are legal if it is legal with the fed's.
--------------------------------------------------------------
IANAL, a lot of you have done more research into this than I have.
I wouldn't be surprised if I am wrong on this stuff.
---------------------------------------------------------------
I wrote this before seeing the above post on state legality.
I just continued to put my thoughts and some links to other laws out here.
publius
Member
This was my understanding as well. The explanation offered is that the Constitution grew between the 30s and the 60s.
From reading The Federalist Papers, my impression is that the interstate commerce clause was put there to establish an American free trade zone, not an American federal regulatory district.
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publius
Member
That was my understanding as well. Back in the 30s, the commerce clause was there to establish an American free trade area, but the power to tax could be stretched into the power to regulate.
By the 60s, the commerce clause had grown to the point where it established an American federal regulatory district. The key decision along the way was Wickard v. Filmore or something like that.
Ok, couple things I need clarification on. Would this make it legal to convert an existing weapon to full auto, or only let you manufacture you're own new firearm? And if you the latter is true, would that mean it is legal to make a DIAS and put it in an AR-15 since the ATF considers it a machine gun even if it isn't installed? Or would the DIAS just count as a regular part like the M16 fire control trigger parts.
Ultima-Ratio
Member
Confusing Stuff This-
For more confusion do a search on U.S. vs Rock Island Armory, the govt LOST since RIA used the tax issue mentioned. That is that the BATF is a taxing agency!
For more confusion do a search on U.S. vs Rock Island Armory, the govt LOST since RIA used the tax issue mentioned. That is that the BATF is a taxing agency!
publius
Member
publius
Member
Well, the 9th Circuit says a homegrown machine gun for personal use isn't interstate commerce. Wickard still says pretty much anything is interstate commerce, except maybe walking too near to a school with a gun. Rock Island says that if you're going to tax something, you have to actually tax it, not prohibit it or make up a whole bunch of extra rules which have nothing to do with the collection of the tax.
I say we kill all the lawyers, using machine guns.
I say we kill all the lawyers, using machine guns.
Deavis
Member
WHOA! THE HIGH ROAD... Lawyers are like cops, everyone hates them until they need them There are good and bad, convert the good ones to our cause and forget about the rest!
Wildalaska
member
Im a lawyer...want my address? Ya got the guts?
WildcomeandgetmeAlaska
publius
Member
Relax, folks. Just a very old joke.
Besides, I don't have to go way up north where bananas don't grow to kill lawyers. I could start with my parents and my oldest brother and my oldest friend and the close friend who performed my wedding and...well, you get the idea.
Besides, I don't have to go way up north where bananas don't grow to kill lawyers. I could start with my parents and my oldest brother and my oldest friend and the close friend who performed my wedding and...well, you get the idea.
Foreign Devil
Member
- Joined
- Mar 29, 2004
- Messages
- 507
"Kill all the lawyers" was quite obviously a joke.
If that interpretation of the case is correct, I would think that it means the ATF must now accept new machine gun registrations.
If that interpretation of the case is correct, I would think that it means the ATF must now accept new machine gun registrations.
tulsamal
Member
Not to mention a Shakespeare quote!
Gregg
armoredman
Member
In this case, I think a lawyer might be a good thing, so we can have actual legal opinion, to back us when we run into Johnny Law who never heard of this! Anyone here a practicing attorney, who can render an official opinion? At least for your state?
Found Sten kits for $40 at Interordnance, minus magazines.....
Found Sten kits for $40 at Interordnance, minus magazines.....
BryanP
Member
What he said. References? Book titles / isbn? This sounds like an interesting read.
M1911Owner
Member
Foreign Devil, I think you need to go back to the link and read the case over again. It said that the 1986 act, and the government's subsequent refusal to accept payment of the $200 transfer tax, have in fact repealed the portion of the NFA '34 requiring registration and payment of the tax. So there is no need to register them, because the law is repealed.
However, I note that the Court dismissed counts 1 (a) and (b), and counts 2 and 3. That suggests that there was at least a count 1 (c) remaining, and possibly counts 3, 4,... I suspect that they were still nailed for violations of the 1986 gun control act.
What's the sum total effect of all of this? Well, I'm not a lawyer, so I don't know. But, as a non-legal opinion, it appears that the RIA case voided the machine gun registration and transfer tax provisions of the NFA '34, and the Ninth Circuit case further ruled that there can be situations involving homemade machine guns that are outside the reach of the Commerce Clause theory on which the 1986 act is based.
The Ninth Circuit case involved a machine gun that, as I understand it, was almost completely machined from scratch, and followed a unique design of its maker. The question of where the line is at which the Court would hold that the Commerce Clause theory starts to take effect is unanswered. If one were curious about where exactly that line is, he could, say, make his own auto sear, and see if the Court decides to send him to prison. I don't recommend that course of action.
I also note that the RIA case wasn't in the Ninth Circuit, so these rulings don't necessarily overlap--if one were to build a machine gun within the Ninth Circuit, you still might be in trouble under the NFA '34.
However, I note that the Court dismissed counts 1 (a) and (b), and counts 2 and 3. That suggests that there was at least a count 1 (c) remaining, and possibly counts 3, 4,... I suspect that they were still nailed for violations of the 1986 gun control act.
What's the sum total effect of all of this? Well, I'm not a lawyer, so I don't know. But, as a non-legal opinion, it appears that the RIA case voided the machine gun registration and transfer tax provisions of the NFA '34, and the Ninth Circuit case further ruled that there can be situations involving homemade machine guns that are outside the reach of the Commerce Clause theory on which the 1986 act is based.
The Ninth Circuit case involved a machine gun that, as I understand it, was almost completely machined from scratch, and followed a unique design of its maker. The question of where the line is at which the Court would hold that the Commerce Clause theory starts to take effect is unanswered. If one were curious about where exactly that line is, he could, say, make his own auto sear, and see if the Court decides to send him to prison. I don't recommend that course of action.
I also note that the RIA case wasn't in the Ninth Circuit, so these rulings don't necessarily overlap--if one were to build a machine gun within the Ninth Circuit, you still might be in trouble under the NFA '34.
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publius
Member
Someplace between growing your own wheat and walking near a school with a gun, I'd guess.
If that is what the court wrote, then NFA is dead! Is it not?
"In sum, since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts 1(a) and (b), 2, and 3 of the superseding indictment are
DISMISSED."
"In sum, since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts 1(a) and (b), 2, and 3 of the superseding indictment are
DISMISSED."
Foreign Devil
Member
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- Mar 29, 2004
- Messages
- 507
Wait ... so according to the court, the '86 "ban" actually removed the constitutuional basis for the portion of the National Firearms Act dealing with machine guns?
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