Post 86 Machine guns may become possible. NOLO

I've said it before, but here goes.

There may come a time to challenge the Hughes Amendment and/or the NFA. That time is not now.

It's only been six years since we got the Supreme Court to (barely) acknowledge that the 2A protects individual firearms ownership. In recent years, they've been presented with a pressing issue in regards to carry, and they've declined to get involved.

What makes us think they're going to hear a case like this? Worse yet, what if they do, and they decide against us? Our chances of a future challenge wither away.

The lower courts have an easy cop out by ruling that machine guns are outside the purview of "common use" or declare them "dangerous or unusual?" We can't expect much better at the Supreme Court.

Machine guns are the rhetorical third rail, and they're easy to demonize. This is not the time to be pushing the envelope.
 
It's only been six years since we got the Supreme Court to (barely) acknowledge that the 2A protects individual firearms ownership.
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And that razor thin decision was based, largely, on the fact that the firearms in question in the ruling were ones that are "commonly used". If there is a class of firearms in the U.S. that fits that description the least, it would be machine guns.
 
And that razor thin decision was based, largely, on the fact that the firearms in question in the ruling were ones that are "commonly used". If there is a class of firearms in the U.S. that fits that description the least, it would be machine guns.
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I'm probably the least qualified to reply on legal topics but my question is isnt the reason machine guns (full auto) are the "lest common" is specifically because of the National Firearms Act of 1934?
My hunch is machine guns would be very common if not for that act, but using that as an argument to repeal the act seems moot at this point since technically they still are available if you can afford it. That and the current political environment with registering "assault" rifles I agree the time to challenge that is not now.
 
I'm probably the least qualified to reply on legal topics but my question is isnt the reason machine guns (full auto) are the "lest common" is specifically because of the National Firearms Act of 1934?
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That's certainly a factor, but from what I can tell, they weren't that common before the NFA 34 act and that's part of why it was possible to push it through.
 
That's certainly a factor, but from what I can tell, they weren't that common before the NFA 34 act and that's part of why it was possible to push it through.
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They weren't rare, but they weren't very widely owned.

When Attorney General Cummings originally pitched the NFA to Congress, it would have also taxed handguns at $1 each. While the NRA didn't blanch much at the tax on machine guns and silencers (which were also pricey and uncommon at the time), the tax on handguns was deemed to be overreach and was deleted from the bill.
 
badz2801 said:
Attorney appears to be challenging 922(o) Hughes.

...

Explanation of challenge:

http://www.examiner.com/article/attorney-seeks-to-overturn-federal-machine-gun-ban-on-constitutional-grounds
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I'm skeptical.

The argument that an NFA Trust can somehow be outside the Hughes Amendment turns on a certain definition in the Internal Revenue Code (Title 26 of the USC), specifically 26 USC 7701. However --

  1. A trust is not, in fact or in law, a legal entity.

  2. Under the Internal Revenue Code (Title 26 of the United States Code), the word "person" is defined to include, among other things, a trust, a partnership, an association and an estate (26 USC 7701(a)(1)).

  3. However, just as in fact and in law a trust is not a legal entity (or person), nor are a partnership, an association (if unincorporated) or an estate.

  4. Furthermore, the preface to the IRC definitions says:
    ...where not otherwise distinctly expressed or manifestly incompatible with the intent thereof—
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  5. So even in the IRC when the word "person" is used it doesn't necessarily include a trust, a partnership, an association, or an estate. It all depends on the intent and context.

  6. So Congress apparently decided that there might be times when, for the purposes of the effective administration of the tax laws, it might be convenient to lump various non-entities under the term "person." However, that does not necessarily change the fundamental legal reality that a trust, partnership, association, or estate is not a legal entity.

  7. In other words, defining "person" to include a trust, a partnership, an association, and an estate is merely for the purposes of stylistic convenience. There may be times when, and situations in which, for the purposes of tax law the word "person" may be read to include a trust, a partnership, an association, a company or an estate. For example, certain rules relating to the deductibility of some business expenses, or the accounting for some business income, might apply whether the business is conducted by a natural person (i. e., a sole proprietorship), an artificial person (i. e., a corporation), a partnership, a trustee managing business property held by him pursuant to a trust, etc.

  8. But lumping a trust, a partnership, an association, a company and an estate under the heading "person" doesn't change the legal nature or character of a trust, a partnership, an association, or an estate.

  9. In a partnership, for example, the partners (or general partners) are personally liable for the debts of the business. A partnership might do business under a properly filed fictitious name giving the appearance of being a single entity, but the property, liabilities and debts trace back personally to the individual general partners.

  10. Let's consider the nature of a trust:

    • A trust is a special structure for holding title to property. Let's look at some definitions of "trust":

      • 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....
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      • 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....
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      • 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....
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      • 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....
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    • In a trust, there is one or more trustees who hold title to certain property. Trustees can be natural persons or artificial persons (corporations). But the property is owned by the trustee(s). If the trustee is a natural person, he personally owns the property which is held in trust.

    • But in a trust, while the property is owned by the trustee he is not free to do with it as he wishes. He is not free to use it for his own purposes. He owns the property as a fiduciary to use for the benefit of one or more third parties called the beneficiaries.

    • The rights and obligations of the trustee with regard to the property he owns in trust (sometimes called the "trust res") are set out in writing in a document called a trust, or trust document, or trust indenture. That document describes what the trustee must do, may do and may not do with the property he owns in trust. That document also sets out the rights and obligations of the beneficiary.

    • The trust is started, assuming a trustee agrees to act, by a person, called the trustor or settlor, transferring property to the trustee. The trustee accepts the property subject to the trust document and agrees to be bound by the trust document.

    • So there is no entity called a trust. Business related to the property held in trust is conducted by the trustee as trustee, as a person (natural or artificial, as the case may be).

    • The foregoing is the basic structure of any trust arrangement. Trusts are used in many contexts for many purposes and to hold title to all kinds of property. Trusts are not unique to the NFA world, and an NFA trust is still a trust and operates essentially as described above.

  11. Now let's look at the Hughes Amendment, i e., 18 USC 922(o):
    (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.​
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    • Some folks have made a big deal out of the fact that the definition of person under the GCA (specifically 18 USC 921(a)(1)) doesn't include a trust, while the IRC definition does (except "where not otherwise distinctly expressed or manifestly incompatible with the intent thereof"). So, the reasoning goes, since a trust isn't a person, a trust can own a machinegun even if the gun wasn't lawfully possessed prior to the effective date of 18 USC 922(o).

    • However, that "logic" doesn't consider some material data and information.

      • It doesn't involve a thorough analysis of the the IRC definition of "person" as I outlined above. And as I've outlined, the IRC definition doesn't change the fundamental legal nature of a trust.

      • It ignores the fundamental legal reality of the nature of a trust. A trust doesn't own anything. A trust doesn't buy or sell anything. In connection with a trust a person (natural or artificial), the trustee, has legal title to the property held in trust. The person might acquire more property to hold in trust. That person might divest property held in trust (subject to his obligations under the trust). But it's always done by a GCA person.

  12. This would ultimately be an issue for the courts to decide, but I think it highly unlikely that a court will find the Hughes Amendment doesn't apply to an NFA trust.
 
While I applaud the effort, and wish them well, I don't see a good outcome as likely.

Likely #1:
bringing the issue into the public eye could generate a media fueled backlash ultimately resulting in INCREASED restrictions. Particularly likely increase in the original $200 tax, to adjust for inflation.

Likely #2:

End result, like the income tax. Although correct that it was never properly legally adopted, court rules it doesn't matter, we continue to keep doing what we are doing now.

Least likely #3:
We win enough that the register is reopened, all other rules remain in place.

All in all, at this time, I think we risk losing more than we would gain.
 
Funny, something else just happened in nfa that may she'd some light on this.
First, the national firearms act is a tax law. Second, it would appear that the Hughes amendment is a criminal law. If that in fact is the case, it won't happen. Why? Because while the national firearms act does indeed recognize a trust like a person, criminal law does not.
The precedent is the gun control act of 1968, which specifically does not recognize a trust as a person.
This is why just recently, it was decided that whomever picks up an nfa item that has been registered to a trust must go through a background check.
 
I think you have forgotten in 1934 even the military didn't commonly use a machine gun.
where as today it is the standard issue type weapon.

that is where common use comes from, not people in general commonly use.

sawed off shot guns/ sbs got knocked out specifically because it wasn't commonly used by the military.
I forget the case name but it was specfically called out that way.

today the argument machine guns are not commonly used cannot be an argument.
 
I forget the case name but it was specfically called out that way.
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It was US v. Miller. There's a lot of history on Justice McReynolds, but let's just say he was known for being sloppy and lazy in his research. Add to that the fact that the government was able to make their case without opposition, and we have a perfect storm of idiocy.

Short-barreled shotguns were in common military use in WWI as trench guns, and they were used by guards in POW camps.
 
And "in common use" is not a shoo-in. See District of Columbia v. Heller, 554 U.S. 570 (2008), at 626 (emphasis added):
...Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose....
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I totally agree now is not the time for this.

But it seems to me the strongest basis for repealing the Hughes amendment is the first clause of the Constitution, not the relatively recent "common–use test.

I actually think Heller was somewhat ambiguous on the subject of "M-16s and the like", although it called a reading of the Miller decision that deemed machine guns protected "alarming".

Anything that constitutes a bearable arm, that's not dangerous AND unusual, it would seem to me, would warrant protection vis-à-vie the anti tyranny purpose that has been noted and acknowledged in several federal courts.

At first glance, a machine gun might seem obviously dangerous AND unusual. But stood alongside the capabilities of the US government or potential foreign threats, not so much.

Along the continuum of bearable arms, no medium caliber select fire weapon touches what the government has available to them. Even though, as justice Scalia wrote, modern tanks and bombers may create a disconnect between the anti-tyranny purpose and the self-defense purpose of the Second Amendment., that fact cannot change the interpretation of the right.

At this point, we have an outright ban on new, select fire weapons, which may be the greatest vulnerability of the Hughes amendment. Eventually.
 
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I think the other issue is, commerce vs control.
nfa was orginally a commerce control of machine guns and other weapons vs regulation against it.

and while I do believe the general population feels why shouldn't we regulate, I think that with the door cracked open, if the court will hear it, that should be the argument again.
it isn't a popular/population vote then, but rather is it constitutional.
and while they might be against it, based on the heller vs dc, they have shown at least this bunch tries to look at it constitutionally vs just their "feelings" .

might not be a great shot, but probably the best in my life time.
 
I think under the doctrine of dangerous and unusual, we could potentially end up with a case where we find an M4 commando to be protected but not a Mk19 grenade launcher or ma deuce. How would they legally meet that definition and where would the line be? I'm not sure.

I think a case could be made for opening up the machine gun registry while keeping them NFA items while removing suppressors and SBR/SBS from NFA restrictions. Even if we still had to pay a tax and do a background check for a silencer, I think a case could be made that restricting them so heavily is illegal considering their many safety benefits and common use in countries where they're legal. Plus, the huge (almost absurdly large) growth in NFA applications has got to mean something to the court
 
If it fires more than one round per trigger pull, it's a machine gun. There's no way around that.
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The definitions I've seen say "an automatic gun that fires bullets in rapid succession for as long as the trigger is pressed" It's a technicality that can be debated, but that's not what burst mode is.

There is a wide continuum between "one shot per trigger pull" and "empty your mag or drum or ammo box in one trigger pull". I think most would agree that a handheld 2 or 3-round burst fire-capable weapon at a reasonable price would be very attractive and would sell extremely well.
 
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