If only it could be true! Attorney Josh Prince makes a strong case the ATF made a major error: “Did ATFâ€™s Determination on NICS Checks Open the Door for Manufacture of New Machineguns forÂ Trusts?” They decided to redefine “person” to exclude non-incoprporated trusts. But if a non-incorporated trust isn’t a “person,” then does 922(0), which says “it shall be unlawful for any person to transfer or possess a machinegun” not manufactured before May 19, 1986, apply to non-incorporated trusts? I’d imagine that it would be a cold day in hell before a court grants us a machine gun free-for-all, but it certainly calls into question ATF’s determination about trusts, doesn’t it?
8 thoughts on “Machine Gun Free-For-All?”
hahahaha. I saw Josh’s post yesterday but wanted to see what you had to say when it creeped across my facebook and the first thing I noticed was the awesome automatically generated related posts at the bottom (not sure if this will be the same for everyone):
2. I Lend this Some Credence
3. Part II from the Machine Gun Lawyer
Makes it look like you’re feeling conflicted. ;)
I’m no legal scholar, but it looks like BATFE got themselves into some pickle here. It certainly does call into question their determinations about trusts, but more so I think this is a wonderful illustration how poor it is to rule by determination letters. If different BATFE offices can’t even come to identical conclusions on the same issue it’s a pretty clear indicator that we are dealing with bad laws. But of course I’m probably preaching to the choir on that one…
Now I need to get back to the paperwork for my new trust…
You are looking at this all wrong. The better play here is to not fight them on the machine gun transfer, you use that as the immovable object and the NICS checks as the rock. Challenge the NICS check requirement as outside their statutory authority. A court *should not* (meaning there are two sets of rules, one for gun cases and one for everything else) interpret one word in one manner, and the same word in contradictory manner within the same statute.
Wow that’s very interesting. Reminds me of the guy in the Gulag in Russian, who disrupted the Soviets with their own laws.
Keep it up!
ATF held in their ruling as follows:
“ATF has interpreted the GCA exception in sections 922(t)(3)(B) and 478.102(d)(2) to mean that firearms transfers are exempt from a NICS check when they have been approved under the NFA to the person receiving the firearm. Unlike individuals, corporations, partnerships, and associations; unincorporated trusts do not fall within the definition of â€œpersonâ€ in the GCA.”
They will claim that their ruling is narrow and applies only to the GCA, not to the NFA. No way a judge will let us register new machine guns with trusts. Interesting legal theory, but in reality it won’t be allowed to happen.
922(o) is not NFA. It’s part of the FOPA Amendments to the Gun Control Act. Same statute.
Yup, if trusts are not “persons” under the GCA then prohibitions explicitly aimed solely at “persons” that are found in the GCA do not apply to entities that are not “persons” for the purposes of the GCA. So 922(o) cannot be used against an unicorporated trust, if unincorporated trusts are not “persons” under GCA.
But unincorporated trusts are defined as “persons” for the purposes of the NFA, which governs registration of machineguns (and subsequent possession by authorized trustees of unincorporated trusts that have said guns in the trust).
The real question I have is what happens to my $200 when ATF denies my Form 1?
It will be refunded actually. They aren’t THAT mean. Haha.
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