Olofoson's definition of "Automatic"

[Sebastian the Ibis]

I just listened to the Oral Arguments in U.S. v. Olofson. available at: http://www.ca7.uscourts.gov/tmp/KG1FG04V.mp3

The oral argument revolved around the definition below. I though Olofson didn't have a prayer, but even if the court doesn't approve this definition it gives Mr. Olofson a great Mens Rea Argument.


"As used here, the terms “automatic” and “fully automatic” refer to a weapon that fires repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted. Such weapons are “machineguns” within the meaning of the Act. We use the term “semiautomatic” to designate a weapon that fires only one shot with each pull of the trigger, and which requires no manual manipulation by the operator to place another round in the chamber after each round is fired. "

U.S. v. Fleischli 305 F.3d 643, 654-655 (7th Cir. 2002), Staples v. United States, 511 U.S. 600, 602 n. 1, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)

Has anyone else tried this argument before with any success?

 

[DMF]

Interesting argument, but IMO is unlikely to carry much weight.

The definition of a machinegun in the US Code is:
"The term "machinegun" means any weapon which shoots, is designed
to shoot, or can be readily restored to shoot, automatically more
than one shot, without manual reloading, by a single function of
the trigger. The term shall also include the frame or receiver of
any such weapon, any part designed and intended solely and
exclusively, or combination of parts designed and intended, for use
in converting a weapon into a machinegun, and any combination of
parts from which a machinegun can be assembled if such parts are in
the possession or under the control of a person."

http://caselaw.lp.findlaw.com/casec...chapters/b/parts/i/sections/section_5845.html

You'll note all it says is the weapon "shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." The definition says nothing about releasing the trigger or exhausting the ammunition.

No federal court has ever recognized that a burst setting on gun did not constitute a machinegun, despite the fact that a gun with 2, 3, or other limit, round burst setting would not "continue to fire until its trigger is released or the ammunition is exhausted."

 

[Guzzizzit]

There is case law to support that argument. Cheek v. United States, 1991 does hold that a genuine good faith belief that someone is not violating the law, if based on the complexity of the law, can stand as a defense to the "willfulness" of a crime even if the belief is considered unreasonable. Admittedly, this case was based on tax law, but it's still precedence.

 

[General Geoff]

The upshot to all this is that if he's acquitted, that means burst settings will no longer constitute a machine gun.

 

[Sebastian the Ibis]

DMF I understand the definition in the USC. However, if there is another legitimate definition (i.e. one used by SCOTUS when interpreting the statute, and used by the ATF in their publications) Then Olofson can say 1) this is the proper definition and 2) even if it is not I should not be convicted because I reasonably beleived this was the law.

Its an issue that often comes up in constitutional cases. A court says a statute is unconstitutional, but the statute remains on the books. People do whatever the act is, then the lower court is overruled. What do you do with the people that were violating the statute, which a court had erroneously said was unconstitutional?

 

[Mot45acp]

As fun as it would be to have, I'm not going to be the one to try it. Whether right or wrong the BATFE is not to be trifled with. Look at what they did to Mr. Olofoson.

I fail to see how any law enforcement agency has the right to make up laws on a whim, without Congress or the House.

Yes I am a wuss.

 

[Jeff White]

I fail to see how any law enforcement agency has the right to make up laws on a whim, without Congress or the House.

You aren't really naive enough to think that congress actually passes all the regulations we live under are you? Congress passes a law, then it allows an executive agency (i.e. the BATFE) to write the policies and regulations that are enforce the law. It's not just with firearms law, the EPA, DEA, OSHA, any number of agencies actually write the rules that define and enforce the laws that congress passes. Normally the law gives the cabinet secretary over whatever agency regulates the activity the power to make the rules. Of course the secretary himself doesn't do that, some nameless, faceless bureaucrat makes them up and the secretary signs off on them. In many cases they are published in the federal register and the public is given a chance to comment on them.

 

[Mot45acp]

You aren't really naive enough to think that congress actually passes all the regulations we live under are you?

No sir, I am not.
My very basic education is that the BATFE and the others you mentioned are all enforcement agencies.

I was under the understanding that these agencies enforced laws. Proposed by the legislative, signed by the executive, and enforced by the judicial.

It just appears to me that our elected officials are becoming lazy and complacent in their duties. Rather than do their job of effecting new laws and voting, they assign a bureaucrat to "make them up." I just simply believe this goes against the way this country was initially set up. Just one man's opinion.

I was stating that I did not want to be the Beta tester for installing a burst application on a firearm, and that I did not agree with the current power granted to the BATFE. I deal with OSHA and EPA regs on a daily basis and their officials on a monthly basis.

I am very interested in the Federal Register is there a web site that I can go to? How much influence do the People have on these?

Please bear with me, I am new to the educated part of RKBA. Before I was just "into" guns. Now I am expanding and trying to get educated in these matters.

 

[Duke of Doubt]

The modern bureaucratic regulatory rulesmaking system goes back to the Administrative Procedure Act, foisted onto America by a Democrat Congress in 1946:

http://en.wikipedia.org/wiki/Administrative_Procedure_Act

 

[DMF]

I fail to see how any law enforcement agency has the right to make up laws on a whim, without Congress or the House.

They don't have the right, and they don't try to make law. The executive branch is responsible for enforcing legislation. Therefore they can attempt to interpret what a law means, and provide guidance in the form of regulations, and are often explicitly given leeway by Congress to create regulations. HOWEVER, any attempt by the executive to interpret the law, and create regulations, to apply the law in a practical setting is subject to scrutiny, and oversight.

First by the Justice Department when it comes time to actually prosecute someone for a violation of the law. If the agency can't convince the prosecutors in DOJ to accept their interpretation of the law, then their interpretation carries no weight. Second, even if the prosecutors agree, then the courts in the District, Circuit appellate courts, and finally the Supreme Court will scrutinize and rule on the meaning of the law, as it applies to various cases. Finally, Congress can draft additional legislation to clarify the intent of the law.

 

[DMF]

DMF I understand the definition in the USC. However, if there is another legitimate definition (i.e. one used by SCOTUS when interpreting the statute, and used by the ATF in their publications) Then Olofson can say 1) this is the proper definition and 2) even if it is not I should not be convicted because I reasonably beleived this was the law.

As I said, I think the idea that a burst fire weapon does not constitute a machinegun is a losing argument based on the clear language of the statute. However, that is the hand Olofson, and his counsel have chosen to play. Also, I think it's a losing argument on your second point, as the evidence tends to suggest Olofson was very knowledgeable of firearms, and firearms law, and would know that a burst fire weapon fit the definition of a machinegun. Again, that's the hand Olofson has chosen to play, and time will tell if it's a winning hand or not.

Its an issue that often comes up in constitutional cases. A court says a statute is unconstitutional, but the statute remains on the books. People do whatever the act is, then the lower court is overruled. What do you do with the people that were violating the statute, which a court had erroneously said was unconstitutional?

Unless I missed something here, Olofson isn't making an argument that he was justified in making, possessing, or transferring that firearm based on it being his right under the Second Amendment, despite the past seven decades of precedent on machinegun cases. If I'm wrong about that, can you point me to documentation that Olofson has made arguments to the court(s) that despite 18USC922(o), and 26USC5861, and decades of legal precedent, Olofoson was legally allowed to manufacture, possess, and/or transfer a machinegun.

 

[Erik]

I predict the assertion that Olofson's machine gun is not a machine gun will fall on deaf ears, that he will be convicted, and that he deserves to be; his argument is one of definitions, and what a machine gun is or is not is clearly defined in federal law.