Don't blink...but people are getting Form 1's for Machineguns approved.

[fightinbluhen51]

The law. USC already states persons can't possess MGs (86+), whereas SBR, suppressor, SBS, AOW, etc. are perfectly legal to posses, post 86.

Just curious, but what case is that and why is it never referenced by name?

http://www.thetruthaboutguns.com/20...oved-first-new-civilian-machine-gun-28-years/


ETA: Last minute of the call, BATFE sounds like MSP with is a person in one case (application) but not a person in another case (application).

 

[rbird7282]

This is going to need to go to the courts anyways. You'd have to be some sort of insane to actually build an MG as a trust without real BATFE sanction, approved form 1 or not.

The other question is whether Congress would amend the law to stomp this out.

Congress can't even wipe their own ass, much less pass legislation....,


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[ericoak]

Congress can't even wipe their own ass, much less pass legislation....,


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Obviously sarcasm...

 

[OrbitalEllipses]

Just curious, but what case is that and why is it never referenced by name?

http://www.thetruthaboutguns.com/20...oved-first-new-civilian-machine-gun-28-years/


ETA: Last minute of the call, BATFE sounds like MSP with is a person in one case (application) but not a person in another case (application).

18 U.S.C. 922o (amendment under FOPA '86) makes it illegal for an individual to transfer or possess a machinegun UNLESS "(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect."

There is no corresponding USC section or subsection stating that an individual cannot transfer or possess SBR etc.; the poster I replied to wanted to know what would stop the ATF from saying "Trusts can't have that" in reference to other NFA items...and what stops that is the law. There is no law that says we can't has those, but there is explicitly a law that says we can't has machineguns.

 

[IMBLITZVT]

18 U.S.C. 922o (amendment under FOPA '86) makes it illegal for an individual to transfer or possess a machinegun ....

You missed the whole point... the Trust is not an individual... The Trust retains possession of it as a non-individual, so 922o does not apply. If anything you actually are ok by 922o[A] as the Government has allowed it with an approved form 1...

At least thats what they are saying. Its got a point. 922o is an end run around the Constitution and this is an end run around it.

 

[OrbitalEllipses]

You missed the whole point... the Trust is not an individual... The Trust retains possession of it as a non-individual, so 922o does not apply. If anything you actually are ok by 922o[A] as the Government has allowed it with an approved form 1...

At least thats what they are saying. Its got a point. 922o is an end run around the Constitution and this is an end run around it.

No, I did not '[miss] the whole point'. The trustee of a trust is a PERSON and possession by a PERSON is prohibited. THAT is the point. Even if the machinegun can be the possession of a trust there's a corporeal element that doesn't exist there and it is in the possession of a person who is acting as an agent of that trust. Will that hold up in court? That would be very interesting and I'd love to see it!

18 USC 922 O:

(2), it shall be unlawful for any [B]person[/B] to transfer or possess a machinegun.

 

[Inigoes]

My guess is that as this plays out... Courts will rule that the ATF made a mistake and is responsible for any damages incurred by those who got their approved form 1s back. So if you made that AR into a M16, that the ATF can confiscate it however they must pay for an AR replacement. If no MG receiver was made, then probably nothing will come of a lawsuit. Now if there is some legal standing to force ATF to issue the approved form 1s, then thats a different story. However knowing ATF they will change their stance on Trusts not being people and so "fix" the issue. Now if the court rules that a Trust is not a person... then it gets real interesting. All this assuming that the court does not recognize that owning a MG is most directly covered by 2A.

This will be interesting to watch, to see if the Hughes Amendment will be held as constitutional. Plenty of appellant courts held the Hughes Amendment as constitutional, but the SCOTUS has never touched on it.

If this loophole per se is valid, this brings an equal oppurtunity argument along as well.

 

[IMBLITZVT]

No, I did not '[miss] the whole point'. The trustee of a trust is a PERSON and possession by a PERSON is prohibited. THAT is the point. Even if the machinegun can be the possession of a trust there's a corporeal element that doesn't exist there and it is in the possession of a person who is acting as an agent of that trust. Will that hold up in court? That would be very interesting and I'd love to see it!

18 USC 922 O:

(2), it shall be unlawful for any [B]person[/B] to transfer or possess a machinegun.

Ok, so its unlawful for an Person to possess a MG without an approved ATF Form registering it to him, with the exception of repair work. Since he is not the trust, how can anyone possess a MG regardless of when the MG was registered. If we use your argument, does that not place all trust MGs in possess of an individual and that individual is in possession of a MG not registered to him?

Frankly I think their argument makes a lot of sense. An employee of Colt who takes his work home with him, with permission is not considered in possession of an unregistered MG is he? Because he is an employee of the company and the gun remains Colt Property... The gun is still in Colts possession. Why should a Trust be any different. The only difference I see is that a Trust is not a business. If it was, then they would be required to get an FFL/SOT to own MGs... correct?

 

[elwojo]

Ok, so its unlawful for an Person to possess a MG without an approved ATF Form registering it to him, with the exception of repair work. Since he is not the trust, how can anyone possess a MG regardless of when the MG was registered. If we use your argument, does that not place all trust MGs in possess of an individual and that individual is in possession of a MG not registered to him?

Frankly I think their argument makes a lot of sense. An employee of Colt who takes his work home with him, with permission is not considered in possession of an unregistered MG is he? Because he is an employee of the company and the gun remains Colt Property... The gun is still in Colts possession. Why should a Trust be any different. The only difference I see is that a Trust is not a business. If it was, then they would be required to get an FFL/SOT to own MGs... correct?

I would be very curious to see the 922o2 debate in court. I think that the courts would side with the government - because we are a government of the people, right? :-(

But at the same time, I think this could create problems. Congress in no way will be able to amend 922o, so it really comes down to the undefined and the defined. Which means an executive order can fix it - or we are right and a trust isn't a person and therefore can make a machinegun, which is in total possession of the machinegun and leaves no trustee at fault for utilizing the trust's items.

Personally. I just want a select-fire MP5 for a reasonable price - not 30k! And I doubt I could do that in Maryland since semi-auto MP5s are on the naughty list...

 

[OrbitalEllipses]

Ok, so its unlawful for an Person to possess a MG without an approved ATF Form registering it to him, with the exception of repair work. Since he is not the trust, how can anyone possess a MG regardless of when the MG was registered. If we use your argument, does that not place all trust MGs in possess of an individual and that individual is in possession of a MG not registered to him?

Frankly I think their argument makes a lot of sense. An employee of Colt who takes his work home with him, with permission is not considered in possession of an unregistered MG is he? Because he is an employee of the company and the gun remains Colt Property... The gun is still in Colts possession. Why should a Trust be any different. The only difference I see is that a Trust is not a business. If it was, then they would be required to get an FFL/SOT to own MGs... correct?

Which is why all of this is dangerous and ATF will play word games all day to keep MGs out of people's hands.

The FFL/SOT thing is interesting because it's not that expensive to maintain one...the problem becomes the ATF audit when they ask why your SOT hasn't manufactured anything in two years and decide to take it away. The Colt example is a bit fuzzy - taking your work home with you isn't something that I'd want to get into, because then you have to argue whether or not he is still an agent representative of Colt after he's left the facility to go home; work happens at work and taking the work home could be construed as not under the coverage of Colt you know?

 

[Pinecone]

You have to divorce your common definition of possess with the legal definition in this law.

Just like the word transfer in MD law about magazine.

 

[Dogabutila]

No, I did not '[miss] the whole point'. The trustee of a trust is a PERSON and possession by a PERSON is prohibited. THAT is the point. Even if the machinegun can be the possession of a trust there's a corporeal element that doesn't exist there and it is in the possession of a person who is acting as an agent of that trust. Will that hold up in court? That would be very interesting and I'd love to see it!

18 USC 922 O:

(2), it shall be unlawful for any [B]person[/B] to transfer or possess a machinegun.

The trustee of the trust is NOT a person under law, but an agent of the trust.

 

[rem87062597]

I do know that there's a 100% chance that the ATF isn't going to go down without a fight. Even if this case is won they'll change some words around or something will happen and we'll be right back where we started.

 

[IMBLITZVT]

Which is why all of this is dangerous and ATF will play word games all day to keep MGs out of people's hands.

The FFL/SOT thing is interesting because it's not that expensive to maintain one...the problem becomes the ATF audit when they ask why your SOT hasn't manufactured anything in two years and decide to take it away. The Colt example is a bit fuzzy - taking your work home with you isn't something that I'd want to get into, because then you have to argue whether or not he is still an agent representative of Colt after he's left the facility to go home; work happens at work and taking the work home could be construed as not under the coverage of Colt you know?

Yes, sometimes these things do come back to bite...

Well in Maryland, a business needs to be zoned correctly so, so running an FFL out of your house is often an issue. So for me, the idea of renting or buying a space is the real money involved. Plus then you have things like the ITAR fees which so do and some don't pay. Otherwise I would love to get my SOT and build a few MGs.

You have to divorce your common definition of possess with the legal definition in this law.

Just like the word transfer in MD law about magazine.

Is the word ever legally defined in the law? If not would not that revert to common usage?

The trustee of the trust is NOT a person under law, but an agent of the trust.

That makes sense to me and would mean that the Trusts are not people and should be treated like a SOT and should be allowed to make a MG... I think?

 

[OrbitalEllipses]

That makes sense to me and would mean that the Trusts are not people and should be treated like a SOT and should be allowed to make a MG... I think?

All right, but then what about the NICS check that gets run against the Trustee? If the trustee is an agent of the trust and the trust is not a person, why are we subjected to NICS checks on NFA?

 

[ericoak]

All right, but then what about the NICS check that gets run against the Trustee? If the trustee is an agent of the trust and the trust is not a person, why are we subjected to NICS checks on NFA?

I never had a NICS check run on me when I bought my MG with a trust.
The ATF started requiring it later, but that doesn't mean that it is required by law. Just like MSP said lowers were illegal until they were forced to change their position.

In fact, I don't see any legal reason why I couldn't sell my trust by adding you and dropping myself and skip the entire process. I would guess the ATF would try to nail you, but I haven't seen any statue that restricts buying/selling trusts.

 

[awptickes]

Here we go again.

What's the saying... "Don't poke the bear" right?

 

[clandestine]

ATF is rounding up the MG's and the Stamps. Some people have retained Counsel and have not relinquished their Stamps or MG's.

 

[Atlasarmory]

I'm sure ATF will offer stamp owners fair market value for what they were given permission to create

 

[clandestine]

I'm sure ATF will offer stamp owners fair market value for what they were given permission to create

I think 50K would cover each RR M16 they take.