
Originally Posted by
oberstgreup
You are correct, but where you are mistaken is in thinking that the plain meaning of a statute to a judge or lawyer is the same as the plain meaning to someone without a legal background.
Trust me, there is no loophole here and no court will interpret the statutes so as to create one. I'd love to see it happen but it won't. And even if it did, Congress would probably just pass a new statute closing it. Or maybe just ban private ownership of machine guns altogether. Machine guns get even less love than "semiautomatic assault weapons" from people who don't own one.
As for the language of the statute, the problem with this loophole is that the administrative ruling in question specifies that when the firearm is transferred to the individual acting on behalf of the trust, for purposes of the GCA the transfer is treated as being to the individual, not the trust. That means that the transfer and possession of a post-96 MG is barred by § 922(o), because for purposes of Title 18, chapter 44 (the GCA), the transfer or possession is considered to be by the individual, even if for purposes of Title 26 (the NFA) the transferee or maker is the trust.
The interpretation you're looking for is that the omission of trusts from the GCA definition of "person" in § 921(a)(1) means that any firearm owned by a trust is exempt from all the provisions of the GCA, but that is not what the ATF opinion says or how courts would interpret the statute. The interpretation ATF gave it is that the existence of the trust is simply ignored for GCA purposes. The best you'd get from a court on this issue is that ATF was mistaken and trusts do fall under the definition of "person" in § 921(a)(1). More likely they would follow the ATF interpretation and consider the individual to be the transferee/possessor for GCA purposes.
This wouldn't be affected by the issue of a tax stamp. The tax stamp affects the legality of transfer or possession under the NFA, not under the GCA. Nothing in the NFA creates an exception to any of the requirements of the GCA, and there is no statutory authority for ATF to waive the prohibitions in the GCA. The stamp doesn't mean it's legal for you to possess the firearm, it just shows that you have complied with the tax provisions and therefore it is not illegal under the NFA for you to possess it. It's effectively the same as if the NFA Branch slipped up and accidentally issued a stamp to a felon, the stamp would not negate the § 922(g) ban on felons possessing firearms, nor of course any state laws prohibiting such possession.
This is the correct answer.
The spirit of the law was to ban the ownership of MGs by civilians made after 1986. A judge will rule in the favor of the government.
The MG ban was quickly drafted and hastily passed into law. This "loophole" is due to poor drafting and reading. There is no loophole.
Trusts are pieces of paper, they don't posses anything. The gun is physically possessed by a natural person, and the Hughes Amendment banned the possession of a post 1986 MG by a natural person.
This is nothing more than a clerical error. Less than 10 of these were approved from what I can gather.
If the stamp holder does not comply with the ATF revoking the stamp, the ATF can get a search warrant using the position the owner plans to proceed with the MG build and is not cooperating.
Last edited by scottryan; 09-15-14 at 20:31.
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