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

  1. #121
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    Quote Originally Posted by Koshinn View Post
    I have no energy to keep debating this point since I'd just be repeating myself. I do have a legal background and it makes sense to me.
    No offense intended, but having access to Westlaw doesn't make you a lawyer, and what makes sense according to common sense has very little bearing on how the law actually works and is interpreted by courts. Maybe it should, but it doesn't. I am a lawyer, I've spent most of the last decade analyzing legislation for a living, and I assure you the interpretation you're looking for just won't fly. But I'm not posting here to argue the point or impress anyone, just to offer some free advice: don't count on this loophole because it won't hold up in court.

  2. #122
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    FWIW, theres a thread on TOS about this too. Seems a few people have the approval in hand and someone actually built a MG. And now they have lawyers involved. Interesting, but I too doubt it will stand.

  3. #123
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    Quote Originally Posted by cbx View Post
    I'm in disbelief that they approved it. But, still cool. Very cool.
    Stuff gets approved all the time that shoudn't. Processing tens of thousands of forms a year, mistakes are made. I have forms approved with no stamps, no signatures, no CLEO, you name it. Easy to see how an F1 for MG can get overlooked since 99.99% of F1s are for SBRs.

    Can't help but notice though, nobody has posted a pic of an approved F1 for MG ever that I know of. Kinda like the mythical transferable Glock Sear.

  4. #124
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    Quote Originally Posted by oberstgreup View Post
    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.
    "Not every thing on Earth requires an aftermarket upgrade." demigod/markm

  5. #125
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    Apparently, there are a few hundred of these applications that made it through the system and a good many stamps mailed out already, some dating back into August. So far, it seems that there has been no written notification by the ATF, only carefully worded phone calls. I'm not saying that this snafu changes the landscape at all, but I am very curious about what will or won't happen with the ones that made it through the system. Short of confiscation, what do you guys think will happen? At this point, it seems like ATF would literally have to physically inspect every approved lower and step up the rescission of these applications.

  6. #126
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    Quote Originally Posted by mtdawg169 View Post
    Apparently, there are a few hundred of these applications that made it through the system and a good many stamps mailed out already, .
    Do you have any proof of this?
    "Not every thing on Earth requires an aftermarket upgrade." demigod/markm

  7. #127
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    Quote Originally Posted by scottryan View Post
    Do you have any proof of this?
    It's just what I've read elsewhere Scotty. Supposedly, that's what an ATF representative told someone who was approved and subsequently received a phone call instructing them to return the approved F1. Heresay, I know. But, what if? It really doesn't matter if it was 1, 10, 100 or 1000. My question is, how exactly would the ATF go about revoking the Form 1 and what steps do you think they would take to ensure compliance? My biggest concern is that this fiasco may backfire on us and Trusts or eforms will no longer be allowed.

  8. #128
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    They might just tell local LEO about it and tag along for the bust.
    If there is no enemy within the enemy outside can do us no harm

  9. #129
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    Quote Originally Posted by mtdawg169 View Post
    My biggest concern is that this fiasco may backfire on us and Trusts or eforms will no longer be allowed.
    I don't see why this would be a consequence. They won't close the NFA down because a few people tried to game the system. So, since the NFA isn't going anywhere, they won't shut down eforms, because we're taking a part of the ATF's workload by using the online system. They'll likely just reword the regs to be more specific.

  10. #130
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    Wow, only 28 years ago transferable machine guns were legal. I can't believe the dissention in this thread.

    Also, there are a lot more post 86 MG's in the hands of users who are not 07s than one might think.

    A government entity can and has transferred MG's to individuals post 86.

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