Ramifications of Hollis vs. Holder and Watson vs. Holder

M

MagnumWill

New member
I've been following this issue on ARFCOM (unfortunately; i don't ever post there) but this is a very interesting situation.

http://blog.gunlink.info/2014/11/17/watson-v-holder-second-nfa-lawsuit-filed-challenging-922o/

http://www.ar15.com/forums/t_1_5/16...rney_announced_for_our_team_p_30_.html&page=1

There's a lot to this case, but i'll give a brief synopsis (i've read his ~39 page claim);

There's an ATF response to Dakota Silencer, where they had asked if a person picking up an NFA item must pass a background check, if they are picking it up on behalf of a gun trust. The ATF stated that a gun trust isn't considered a person.

This raises the question that the verbiage of the 1986 legislation (section 922(o)) regarding which entities are prohibited from possessing a machine gun manufactured after May 19(?)th, 1986, that it may not actually apply to a gun trust.

Hence, the Watson Family Gun Trust applied for two Form 1 requests to manufacture a machine gun on behalf of the trust, one electronic and one paper. They received the electronic one back as APPROVED with an attached stamp. Stamp in hand, they proceeded to manufacture a machine gun out of an AR lower.

Next, it sounds like they receive the paper application back as DECLINED, and then they receive a copy of the electronic submission with THE ATF SIGNATURES WHITED OUT, AND "DISAPPROVED" across the document (it sounds like the ATF can disapprove stamps, save for that no action has been taken to develop said firearm/device/etc.). An explanation was included that they couldn't actually produce the machine gun, in their own interpretation of the law (can't remember the verbiage, it's in Strombo's case file). It sounds an awful low like the accuser interpreting the law on their behalf at their discretion.

Now, they ask the Trustee (Mr. Watson, presumably) to now surrender the illegal weapon to an ATF agent. Mr. Watson is now concerned about federal charges of now assembling an "unlawful" machine gun. After much communique, it was decided that no federal charges will be pressed if he surrenders the weapon (without compensation).

It sounds like the first of the cases will proceed 1/16, after an extension because of the holidays. If these cases proceed, what could the potential outcomes be? It sounds like they actually have a pretty solid case of the ATF not being clear, discriminatory and overstepping their boundaries (as expected), not to mention putting someone in legal jeopardy based on an interpretation of the law, instead of the letter of the law.

Thoughts? Could this potentially mean that they now redefine a Trust as a person, corporation, etc. (having ramifications outside of the firearms industry) or potentially having section 922(o) not apply to trusts?

It sounds like they have a pretty solid case, if they act on it.
 
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There are several glaring problems with Hollis' lawsuit.

The first is this, taken from the instructions on the Form 1 itself:

(1) 18 U.S.C. § 922(o) provides that machineguns may be made only for government use or export. An application will be denied unless the making meets these criteria.
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So, he disregarded this and filed an application he knew was invalid. An examiner made a mistake, then corrected it. The whole situation comes back to that first point: he was not legally authorized to manufacture a machine gun. This is going to affect his argument that he's suffered damages.

His second problem is the utter mess of arguments he's throwing in the pot. In the opening pages, he asks the court to:

  • overturn Wickard v. Filburn
  • declare "unjust taking" under the 5th Amendment because an erroneous approval was reversed
  • apply strict scrutiny to all matters involving the 2nd Amendment, despite the fact that most Circuit courts have rejected the idea
  • revisit the legislative process behind the passage of the Hughes Amendment

Even if the District court sides with him, the next step is the 5th Circuit. They're not gun-friendly. They won't even acknowledge that the right to bear arms extends to those under 21 years of age. What makes anyone think they'll side with us on machine guns?

They'll take the easy way out, as they did in McGraw: by citing vague "public safety" claims. Nobody in the lower courts is going to volunteer to be the guy who legalized machine guns.

And they have an easy way out: Heller's dicta about "dangerous and unusual weapons" and weapons "in common use." We'd be left with a disastrous precedent, and any hopes of reforming the NFA system would be set back by decades.

The Watson case is a carbon copy of Hollis' case. In fact, large chunks of text appear to have been cut and pasted between the two.
 
Huh, i didn't read into the Hollis case as much as I did with the Watson case. The thing with the Watson case is that said restrictions may not actually apply to gun trusts, since they didn't explicitly state them, as well as them approving his stamp...?
 
Both the dangerous and unusual language and common use simply do not mean what you think they mean.
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What I think they mean is irrelevant. What the court thinks they'll mean is vitally important. Just because you make the argument doesn't mean they'll accept it.

Plaintiff Jay Aubrey Isaac Hollis, as trustee of the Jay Aubrey Isaac Hollis Revocable Living Trust (“the Trust”), submitted the proper applications (commonly known as a “Form 1”) to the BATFE pursuant to the NFA for authority to manufacture an M-16 style machinegun from an AR-15 semi-automatic lower receiver owned by the Trust.
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But it wasn't the proper application. It plainly stated that it would be rejected unless the weapon was manufactured for government use or export. They're going to harp on that.

I'd like to see Mr. Hollis prevail, but I really don't think that's going to happen at this juncture. Worse yet, we may see an opinion claiming that restrictions on NFA items serve a valid "public safety" purpose, which could set back a challenge further down the road.
 
My understanding of the suits revolve around the ATF saying trusts are not considered persons and the belief that the Hughes amendment states that persons cannot manufacture new machine guns. Well if a trust isn't a person then that provision does not apply to one.

If just one trust had a stamp approved you could call it a mistake. Last I heard that number was around 500. That's not a simple clerical error.

I'm not super optimistic that "we" will prevail but it is going to be an interesting ride.
 
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