Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
Defendants’ ban on the quintessential militia arm of the modern day defies the protections our Constitution guarantees,” attorneys Stephen D. Stamboulieh and Alan Alexander Beck argued in a filing before the United States District Court for the Northern District of Texas.
The defendants they referred to were Attorney General Eric Holder and outgoing Bureau of Alcohol, Tobacco, Firearms and Explosives Director B. Todd Jones (now replaced by Acting Director Thomas E. Brandon). Plaintiff Jay Aubrey Isaac Hollis acting individually and as trustee of a revocable living trust, is suing Holder and Jones in their official capacities for administering, executing and enforcing “statutory and regulatory provisions [that] generally act as an unlawful de facto ban on the transfer or possession of a machine gun manufactured after May 19, 1986.”
What gives?
A more appropriate question might be “What got taken away?” In this case, it was an approved “Form 1,” an application to make a machine gun, with a stamp indicating payment and acceptance of the required $200 tax. But after authorizing Hollis to proceed, ATF changed its mind and reneged, even though it has no statutory authority to rescind a stamp once issued.
Still, what made Hollis even think he could apply in the first place, what with the Hughes Amendment prohibition in the so-called Firearms Owners Protection Act stating “[I]t shall be unlawful for any person to transfer or possess a machinegun” made after the law took effect? Isn’t Hollis a “person”?
He is, but the trust he represents is not, at least according to ATF.
“The term ‘person’ is defined in the Gun Control Act (“GCA”) to mean ‘any individual, corporation, company, association, firm, partnership, society, or joint stock company,’” Hollis’ Complaint for Declaratory and Injunctive Relief noted. “The term person does not include an unincorporated trust.”
That contention is backed up with an opinion letter from the Chief of ATF’s Firearms Industry Programs Branch stating “[u]nlike individuals, corporations, partnerships, and associations; unincorporated trusts do not fall within the definition of ‘person’ in the GCA.”
“Since by the BATFE’s own admission, the term ‘person’ in the GCA does not include an unincorporated trust, such a trust is not subject to the prohibition” Hollis’ attorneys argued. “The Plaintiff … has had his Second Amendment rights violated and his property interest in a lawfully applied for and approved machinegun destroyed when the BATFE decided to unilaterally, arbitrarily and capriciously revoke his approval.”
What Hollis won’t do, if the suit prevails, is rescind the National Firearms Act of 1934, including registration and transfer tax requirements. What it would do is invalidate the absurd prohibition that says you can own a machine gun made before May 19, 1986, but if you possess an identical firearm made after that arbitrary date, you’ll be a felon in for a world of hurt. And the other thing it would do is create all kind so interesting market repercussions that have kept the prices of pre-’86 machine guns at artificially inflated (and then some) prices.
To anyone capable of grasping basic logic, acknowledging the ludicrousness of the cutoff would seem cut and dried. But when descending into the bizarre and often contradictory world of ATF rulings and judicial interpretations, a happy resolution is anything but a slam dunk.
Some of those contradictory rulings include ATF giving permissions to proceed with projects in which innovators invested their life savings only to have the rug pulled out from under them by mercurial bureaucrats. That was the case with the Akins Accelerator, a “bump fire” device ATF put the brakes on two years after they’d green-lighted it. Under the same rationale, the Firearms Technology Branch once declared achieving the same effect with a shoelace an illegal conversion. And while ATF had earlier advised that shouldering an AR-15 pistol with a stability brace would not cause the configuration to be classified a Short Barreled Rifle, they followed that opinion up by declaring “When the device is redesigned for use as a shoulder stock on a handgun with a rifled barrel under 16 inches in length, the firearm is properly classified as a firearm [sic] under the NFA.”
But wait, as late TV pitchman Billy Mays used to urge viewers, there’s more!
ATF Ruling 82-8 declared SM10 and SM11A1 pistols and SAC carbines to be machine guns. Except they weren’t. They were semi-automatics. But because “a simple modification to them, such as cutting, filing, or grinding, allows the firearms to operate automatically,” it was held “The SM10 and SM11A1 pistols and the SAC carbine are designed to shoot automatically more than one shot, without manual reloading, by a single function of the trigger. Consequently, the SM10 and SM11A1 pistols and SAC carbines are machineguns…”
Just not all of them, only those assembled or manufactured after June 21, 1982. The fact that an estimated 50,000 identical firearms were manufactured prior to the cutoff is tacit testimonial to how compelling of a state interest exists in making sure such firearms are subject to special controls—which is to say not much.
The jumble of contradictions is hardly new. Congressional Research Service published a memorandum of ATF firearms testing procedures that, among other things, admitted “ATF … has over 300 cubic feet of classification letters stored in file cabinets.” None of these have been scanned into a searchable database so that consistency of interpretations can be assured and conflicts identified and resolved, and as that report was published 10 years ago, the thought of what it must look like today evokes nothing so much as the government warehouse at the end of Raiders of the Lost Ark.
The bureaucratic nightmare is obviously bigger than anything other than a concerted and cooperative effort between Congress and a friendly administration would be likely to even make a dent in. All of that, of course, would be solved by a return to “shall not be infringed, but that isn’t likely to happen any time soon, so unless and until there’s substantial change, the best gun owners can hope for are incremental gains, like what a victory in Hollis could bring about.
To that end, a major player has stepped up to coordinate fundraising for the lawsuit, the Heller Foundation, chaired by the plaintiff in the landmark Supreme Court case that established once and for all that the Second Amendment articulates an individual right.
“Dick Heller is a champion of the Second Amendment,” attorney Stamboulieh declared. “We are pleased the Heller Foundation joined the fight to reclaim our lost Second Amendment rights in Hollis v. Holder.”
“Winning this case is critical to the security of the nation’s citizens,” Heller agreed. “We think it’s important enough that donors to the Heller Foundation can now make a directed contribution on our web site, HellerFoundation.org, for the support of this case.”
They are standing up to challenge those who have been defying the Constitution. Put another, and perhaps a more accurate way, they’re defying those who have been defiling it.
By David Codrea