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US v. Rock Island Armory: Not a Loophole in the NFA

In the previous thread about someone trying to foolishly mount a challenge to NFA and all the other federal gun laws, the topic of US v. Rock Island came up. I went searching through my archives, convinced I had done a post about this, but it turns out I hadn’t, and that it was just a long running argument in the comment section. So I figured it was worth a full post just to get better information out there about the impact of this case. There’s a lot of folks on the Internet touting Rock Island as a case which invalidates the National Firearms Act, and creates some not-widely-known loophole that makes machine guns legal, either broadly, or in the District it was decided in.

But if something sounds too good to be true, it probably is. United States law regulating machine guns rests on two prongs. The first prong is the National Firearms Act, passed in 1934 as an exercise of Congress’ power to tax. The second is the Gun Control Act of 1968, as amended by the Firearms Owners Protection Act of 1986, which contained the infamous Hughes Amendment. The Gun Control Act is based on Congress’ powers under the commerce clause.

In 1934, when the National Firearms Act was passed, it was believed that outright gun bans would be constitutionally problematic, both from the point of view of the Second Amendment, but also from the point of view of valid exercises of Congress’ powers to regulate interstate commerce. The proponents of the National Firearms Act decided to rely on the Congress’ power to tax, which was used, and upheld, to regulate narcotics under the Harrison Act, and it was relatively less risky than relying on the commerce power. The $200 tax on manufacture and transfer, in 1934 dollars, effectively doubled the price of existing machine guns, and was considered an effective means of discouraging their possession by mere peons like us.

By the time 1968 rolled around, the federal government’s ability to regulate using its interstate commerce power had been greatly expanded. The Gun Control Act of 1968 was purely a criminal provision, and not in any way connected to the taxing power. Additionally, the 1986 inclusion of the Hughes Amendment, codified under 18 USC 922(o), created a special problem for prosecution under the NFA provisions for machine guns manufactured after May 19, 1986.

In Rock Island, the US Attorney simply made the mistake of prosecuting under the wrong section of the United States Code, when they charged someone under the NFA for failing to pay a tax it refused to collect. From the case:

The superseding indictment alleges that Defendants committed acts in respect to the making and registration of “firearms,” i.e., machineguns,[1] in the years 1987 and 1988 which violated parts of the National Firearms Act, Chapter 53 of the Internal Revenue Code, 26 U.S.C. §§ 5801 et seq. Specifically, Count I alleges in part that Defendants conspired “(a) to manufacture firearms in violation of Title 26, United States Code, Sections 5822[2] and 5861(F) [AND] (B)[3] to knowingly deliver into interstate commerce firearms in violation of Title 26, United States Code, Sections 5822 and 5861(j)….”[4] Count 2 alleges that in 1988, Defendants made machineguns “in violation of the registration provisions of Title 26, United States Code, Section 5822,” which is alleged to have violated 26 U.S.C. § 5861(f). Count 3 alleges that Defendants delivered into interstate commerce the same machineguns as in Count 2, and that these machineguns “had not been registered as required by the provisions of Title 26, United States Code, Section 5822,” in violation of 26 U.S.C. § 5861(j).

Since its passage in 1934, the registration, taxation, and other requirements of the National Firearms Act (“NFA”) have been upheld by the courts under the power of Congress to raise revenue.[5] However, 18 U.S.C. § 922(o), which became effective on May 19, 1986, prohibits possession of machineguns, and thereby repealed or rendered unconstitutional the portions of the National Firearms Act which provided for the raising of revenue from the making, possession, and transfer of machineguns made after such date. As the government conceded at oral argument, the United States refuses to register or accept tax payments for the making or transfer of machineguns made after 1986.[6] Thus, § 922(o), as applied to machineguns made after May 19, 1986, left the registration and other requirements of the National Firearms Act without any constitutional basis.

This is where people get confused when they read Rock Island. It’s conventional wisdom among gunnies that machineguns are regulated under the National Firearms Act, and that is true. But lesser understood is the fact that they are also regulated under the Gun Control Act. The GCA is part of the US Criminal Code, unlike the NFA which belongs to the Internal Revenue Code. A lot of folks read “left the registration and other requirements of the National Firearms Act without any constitutional basis,” and assume this to mean the regulations regarding machine guns have been struck down. They have not been. If you manufacture a machine gun without a federal license to do so, you will go to jail.

What Rock Island said was, because 922(o) (Hughes Amendment) prevents the Treasury from accepting any payment of tax under the NFA, for any machine gun not legally possessed or manufactured before May 19, 1986, that the government can then not turn around and charge someone for failing to register the machine gun, and pay any tax, because the government admits that it refuses to collect that tax and accept the registration. That only means that the government may not prosecute this crime under the National Firearms Act. It is still empowered to prosecute individuals under the Gun Control Act, 18 USC 922(o). Since the United States lost the Rock Island case, that’s been standard operating procedure for US Attorneys in cases involving machine guns manufactured after May 19, 1986.

For someone possessing a machine gun legally possessed or manufactured before May 19, 1986, but not legally transferred, they may still be prosecuted under the National Firearms Act, because the government will accept the tax in that instance. In short, if I buy my friend Jason’s submachine gun from him privately, I’m guilty of violating the National Firearms Act, because the government would have accepted that tax for that transfer. If I take my AR-15 and convert it to an M16, I’m guilty of violating the Gun Control Act, Section 922(o), not the National Firearms Act, because that was obsoleted by the Hughes Amendment for guns manufactured after the magic date.

So the courts weren’t creating any loophole. They merely ruled that if the United States wishes to prosecute someone for possession or transfer a machine gun that was not lawfully registered before May 19, 1986, they had to do so under the Gun Control Act, not the National Firearms Act. I hope this makes sense. Rock Island does not create any loophole in the machine gun laws, and I thought it was worthwhile to clear this up before someone believes this Internet rumor, tests it, and ends up in federal prison.

14 Responses to “US v. Rock Island Armory: Not a Loophole in the NFA”

  1. Patrick says:

    Excellent post and explanation. When it comes to machine guns in the USA, the official US motto is, “there are two (or more) ways to skin your hide.”

    Just because NFA is invalid for some guns at some times, does not mean you have a get-out-of-jail-free card for all the other myriad laws that apply to the gun.

    I have suggested to people to think of it this way: the Form 4473 asks if you are a DV convict. Just because you checked “no” to that one question does not mean you get a free pass on the “felon” restrictions. There are lots of ways to become a criminal in the USA. Just because one path fails doesn’t mean they won’t have others.

    Suggestion for a future post: why the rule committee markup and vote (Rangel’s games) does not invalidate the Hughes Amendment becoming law. Hint to the curious: the answer is in the Constitution.

    • Sebastian says:

      Suggestion for a future post: why the rule committee markup and vote (Rangel’s games) does not invalidate the Hughes Amendment becoming law. Hint to the curious: the answer is in the Constitution.

      That’s also a good idea. Is this what you’re thinking of?

      Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

      • Patrick says:

        More like: it doesn’t matter how the proposed text gets written or what processes they used to do it; all that matters is the final vote – the one in the Constitution.

        Rangel played games and it is pretty clear he let the amendment onto the bill despite hearing more ‘nay’ votes. But it was a committee vote. They were voting over proposed words in a proposed bill. The Constitution doesn’t care about how the Congress makes the proposals, only about how that final vote comes down.

        It’s simple. Any bill is just hopeful text until the entire chamber votes on it. It does not matter where it came from, even one written by random monkey generator. All that matters is if the final vote – the one the Constitution mentions – passes.

        The House had a process for shenanigans like the ones Rangel used. That process didn’t lead to anything (and I do not even think it was pursued). The Dems ran everything back then, so it wouldn’t have gone anywhere anyway.

        But the simple truth is Rangel’s botched vote made no law. That happened later, when the entire bill was voted on by the whole of the Congress.

        • ParatrooperJJ says:

          To clarify further the political question doctrine prevents courts from hearing cases on whether or not internal processes of Congress effect the validity of laws. If I recall correctly the USSC has ruled that if the Speaker of the House and the President Pro Tempore of the Senate certify that a bill has passed both houses then it’s considered legally passed by the court.

  2. Ian Argent says:

    Loosening restrictions on machine guns is not going to happen this political generation. Hearts and mind have to be permanently changed. Let’s not make the mistake of our opponents by building a legal structure without laying the foundation first.

  3. Harold says:

    The pedant in me says it is a “loophole in the NFA” … just not a useful one, since the amended GCA has supplanted it at the same time it created the “loophole”.

  4. Phssthpok says:

    So what happens if a properly licensed FFL manufactures a MG and goes to sell it?

    It’s been manufactured in accordance with ‘the law’, and since ‘Rock Island’ established that it cannot be a crime to not pay a tax that is refused to be accepted, it stands to reason that one could get a MG mfg. license and start crankin’ em out to the public.

    • Ian Argent says:

      922(o)(1): except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
      922(o)(2): this subsection does not with respect to (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.
      Per http://law.cornell.edu/uscode/text/18/922

    • Patrick says:

      To back up Ian and Sebastian (and to be crystal clear because someone will do it):

      If the entirety of the NFA law was dismantled and removed from existence today, it would still be a crime for a civilian to own or manufacture a post-86 machine gun.

      NFA has nothing to do with the ban or your ability to own post-86 machine guns. Nothing. Zero. Nada. Zilch.

      A whole different law – 922(o) is the culprit. It makes such possession a felony.

  5. John Biros says:

    Just where do suppressors fall in all of this.I f I go through the proper dealers, pay my tax, background comes back clean etc. Can I purchase a suppressor that is of current manufacturer?
    Current TV shows, Sons of Guns etc seem to make it easy to buy one of course through legal channels, or are these shows selling to exempt orgs like Law enforcement, or Gov Contractors.
    I guess I could call BTAF but I really don’t think that under their current leadership straight answers would be easy to come by. Just think of the hearing problems that could be saved if suppressors were used like they are in Europe for Hunting and competitive shooting.

    • Harold says:

      I guess I could call BTAF….

      My God, never, ever do that. In times past they’ve told people to do illegal things, carefully taking down their ID information, then successfully prosecuted them.

      From the start the courts have been amazingly lenient about BATF abuses, e.g. there’s one case of “entrapment” where a black gun dealer (and this was in the early ’70s, plus we know from the much more recent “party” they’re still more than a little racist) was told by BATF agents they were from the mob and that he and maybe his family would be killed if he didn’t do the transaction. This latter case is well documented in a SAF publication, BTW.

  6. John Biros says:

    Ps. We all know suppressors are not silencers,think of the problems solved in suburban areas where development moved into shooting range areas . Its the noise that gets to people. Proper backstops, Quieter guns and its a win win. A bullet traveling over 1150 fps is till gonna make noise so you cant just fire in the backyard. And a gun used in crime is still a felons tool whether loud or suppressed.

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