Page 7 of 27 FirstFirst ... 5678917 ... LastLast
Results 61 to 70 of 264

Thread: Did the ATF Open the Door for Manufacture of New Machineguns for trust?

  1. #61
    Join Date
    May 2012
    Posts
    1,157
    Feedback Score
    38 (100%)
    Quote Originally Posted by Koshinn View Post
    If they approve it, it'd be hard for them to "nail you" as you'd have multiple legal theories on why you're a legitimate owner at that point. And even if they all fail, the ATF would have to give you notice to let you destroy or transfer it before successfully having charges stick, as illegal possession requires intent.
    You said you're not a lawyer, but you sure make an awful lot of strong legal claims in this thread. Care to provide citations of law and/or especially legal precedent for literally everything in the quoted post?

    It'd be hard for them to nail you? They'd have to give you notice to let you destroy or transfer an illegally-owned MG? Illegal possession requires intent? Since when?

    Citations please.

  2. #62
    Join Date
    Feb 2012
    Posts
    28
    Feedback Score
    0
    Quote Originally Posted by VIP3R 237 View Post
    There is loopholes in the trust route. A felon can create a trust and register nfa items to it. Now they can not legally posses the items, but id assume that if they have gone this way that is not an issue with them.
    Correct me if I'm wrong, but legally a felon can't. He can lie and state he is not a felon when filling out the paperwork, but he is in violation. That's not legal, that's lying. It's like lying on a 4473 and not getting caught on the electronic check.

  3. #63
    Join Date
    Jun 2011
    Location
    Vegas
    Posts
    6,717
    Feedback Score
    5 (100%)
    While I cannot use Westlaw for non-clients, here are some things I've found on Google for you.

    Quote Originally Posted by DreadPirateMoyer View Post
    You said you're not a lawyer, but you sure make an awful lot of strong legal claims in this thread. Care to provide citations of law and/or especially legal precedent for literally everything in the quoted post?
    The multiple defenses you could pose are:

    A transfer under the authority of the United States or any department or agency thereof is an exception to the ban of machine guns by persons. 18 USC § 922(o)(2)(A). The ATF is an agency of the United States that is granted purvue over the NFA. (I don't want to dig into administrative law to prove that, you can take that on faith I'm sure). While it's not a guaranteed argument that a transfer by the ATF to your trust under 26 USC § 5812 qualifies as a transfer by the ATF to your trust under 18 USC § 922(o)(2)(A), it's a pretty damn good argument. Most juries would side with you on that one.

    A trust is not banned from possession of a machine gun under 18 USC §§ 921 and 922(o). Trusts (and all persons) are banned from making/transferring machine guns (and silencers, SBRs, SBSs, AOWs, DDs, and explosives) unless approved by the ATF, which includes a tax. 26 USC §§ 5812, 5822. Similarly, trusts (and all persons) are banned from possessing NFA items transferred to him or made by him in violation of the NFA. 26 USC § 5861(b) and (c). If the Form 1 or 4 is approved, you've avoided the Title 26 laws and you have a strong (almost bullet-proof) argument that 18 USC § 922(o) simply doesn't apply to a trust as per the definition of "persion" in 18 USC § 921 that does not include a trust. Note that regarding the Title 26 laws, approval is only required upon making/transferring, it cannot be withdrawn at a later date to invalidate ownership.

    There's a commerce clause jurisdiction challenge regarding a machine gun that you've "made" via Form 1 in your own current state. For the law to be validly applied, it must either regulate 1) channels of interstate commerce, 2) instrumentalities of interstate commerce, or 3) activities that substantially affect interstate commerce. US v Lopez, 514 US 549 (1995). If, again, you made it via Form 1, the only category it could apply to would be category 3, and that would be a very uphill battle for the prosecution to prove that a single MG lower substantially affects interstate commerce.

    It'd be hard for them to nail you? They'd have to give you notice to let you destroy or transfer an illegally-owned MG? Illegal possession requires intent? Since when?

    Citations please.
    Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both. 18 U.S.C. § 924(a)(2). Besides that citation, mens rea has been a cornerstone of criminal law in the United States since forever, with very few exceptions (e.g. statutory rape, in many jurisdictions, is a crime that specifically does not require mens rea). Case law has upheld this essential piece of common law. Morissette v. US, 343 US 246 (1952).

    So to answer your question, illegal possession has required intent since, essentially, the creation of the particular illegal possession laws.
    Last edited by Koshinn; 05-21-14 at 11:57.
    "I never learned from a man who agreed with me." Robert A. Heinlein

  4. #64
    Join Date
    Jan 2010
    Location
    NoVA
    Posts
    3,190
    Feedback Score
    2 (100%)
    Quote Originally Posted by Koshinn View Post
    "Just" seeking clarification won't do anything, the ATF will probably give themselves a double standard and make an inconsistent ruling.
    You know they will... it's obvious.

    Quote Originally Posted by Koshinn View Post
    The Hughes Amendment bans people from possessing and transferring machine guns, but trusts are not people. Done, I drop the mic and rest my case.
    You're going to have to do better than that... trusts can only act through their agents, who are people.

    Pieces of paper can't pull triggers.

    Quote Originally Posted by Koshinn View Post
    The ATF will then be under a court order to approve the forms and will be required to approve all others that fall under the same relative facts.
    And then I'll just electro pencil a number on an HK sear, drop a Form 1, and Obama will walk it across Key Bridge and deliver it with a fist bump... sounds fantastic!

    Quote Originally Posted by Koshinn View Post
    This really is a "gotcha!" moment. I'm actually not sure how people missed that the definition of "person" for the last 28 years...
    Ummmm... I do...



    (this is not what you think it is)

    Quote Originally Posted by Koshinn View Post
    you've avoided the Title 26 laws and you have a strong (almost bullet-proof) argument that 18 USC § 922(o) simply doesn't apply to a trust as per the definition of "persion" in 18 USC § 921 that does not include a trust.
    I certainly wouldn't call it "bullet proof."

    Any court that is willing to hear it will just say it means person/ trust/ LLC/ whatever the ATF wants...

    Quote Originally Posted by Koshinn View Post
    If, again, you made it via Form 1, the only category it could apply to would be category 3, and that would be a very uphill battle for the prosecution to prove that a single MG lower substantially affects interstate commerce.
    The Intestate Commerce Clause is simply the "how the government ****s with your life clause."

    Recall that growing produce for your personal consumption that never leaves your personal property/ land is "interstate commerce," despite the fact that it is:

    1) Not interstate
    2) Not commerce

    I guess I have a shitty pessimistic attitude, but the government is going to do whatever they want- and rights only become less... you never get more.
    Last edited by KalashniKEV; 05-22-14 at 22:53.

  5. #65
    Join Date
    Jun 2011
    Location
    Vegas
    Posts
    6,717
    Feedback Score
    5 (100%)
    Quote Originally Posted by KalashniKEV View Post
    You're going to have to do better than that... trusts can only act through their agents, who are people.

    Pieces of paper can't pull triggers.
    So you're saying if your trust owns a registered SBR and you hold it, you're now in possession of the SBR? And since it's owned by the trust, not you, you're committing a felony by possessing an SBR not properly transfered to you?

    The same would apply to every soldier holding a government issued M4. They're all felons now too?

    You can't have it both ways.


    Any court that is willing to hear it will just say it means person/ trust/ LLC/ whatever the ATF wants...
    Do you even understand administrative law?

    The Intestate Commerce Clause is simply the "how the government ****s with your life clause."

    Recall that growing produce for your personal consumption that never leaves your personal property/ land is "interstate commerce," despite the fact that it is:

    1) Not interstate
    2) Not commerce

    I guess I have a shitty pessimistic attitude, but the government is going to do whatever they want- and rights only become less... you never get more.
    This is true, the commerce clause has expanded since 1776, but it's being reeled in slowly. More recent cases have been limiting it.

    You really have given up all hope. Eat a snickers bar
    "I never learned from a man who agreed with me." Robert A. Heinlein

  6. #66
    Join Date
    Jan 2010
    Location
    NoVA
    Posts
    3,190
    Feedback Score
    2 (100%)
    Quote Originally Posted by Koshinn View Post
    You can't have it both ways.
    Actually I can totally imagine some judge saying, "...and thusly the BATFE can have it both ways!"

    *BONK*

    "Dismissed!"

    We'll see, but nothing has changed as a result of this memo.

  7. #67
    Join Date
    Jun 2011
    Location
    Vegas
    Posts
    6,717
    Feedback Score
    5 (100%)
    Quote Originally Posted by KalashniKEV View Post
    Actually I can totally imagine some judge saying, "...and thusly the BATFE can have it both ways!"

    *BONK*

    "Dismissed!"

    We'll see, but nothing has changed as a result of this memo.
    It's possible for one judge to make a patently illegal call. But that would not fly at the appeals court level where there are multiple judges.

    I don't know why you think the judicial branch is cozy with the executive branch. They pretty much hate each other, much like the legislative branch hates everyone.
    "I never learned from a man who agreed with me." Robert A. Heinlein

  8. #68
    Join Date
    Oct 2012
    Location
    Huntsville, AL
    Posts
    2,185
    Feedback Score
    26 (100%)
    I'm no lawyer but I am a realist and the realist in me says if you think BATFE is gonna allow transfers under this you're delusional. Those transfers might be 100% legal but we're talking about an org that legal has never meant much too along with having prior history of changing the rules to suit them at a moments notice.

    Until we either get rid of the Hughes amendment or dismantle the NFA, you can forget it....

  9. #69
    Join Date
    Jun 2011
    Location
    Vegas
    Posts
    6,717
    Feedback Score
    5 (100%)
    Quote Originally Posted by nova3930 View Post
    I'm no lawyer but I am a realist and the realist in me says if you think BATFE is gonna allow transfers under this you're delusional. Those transfers might be 100% legal but we're talking about an org that legal has never meant much too along with having prior history of changing the rules to suit them at a moments notice.

    Until we either get rid of the Hughes amendment or dismantle the NFA, you can forget it....
    Everyone's pretty sure they're going to deny the forms at first. The point is, they can be sued in federal court to appeal the denial and then be forced to approve them.
    "I never learned from a man who agreed with me." Robert A. Heinlein

  10. #70
    Join Date
    May 2009
    Location
    San Antonio, TX
    Posts
    1,027
    Feedback Score
    0
    The whole jist of this discussion is that we need a test case. Who wants to take point.

    Doc Williams
    U.S. Army Combat Medic/Flight Medic Retired
    1987 - 2013
    Flight Medic Class 4-95

    http://www.dustoff.org/

Page 7 of 27 FirstFirst ... 5678917 ... LastLast

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •