1986 Machine Gun Ban--Judicial Review??
I'm curious, does anyone know if the 1986 ban on new manufacture of machine guns for sale to private citizens was ever challenged in court?
I would guess there are some gun collectors who have really liked the way their Class 3 firearms have appreciated in value and would probably not be happy to see a legal challenge, but I was thinking about "life, liberty and the pursuit of happiness."
What if my form of happiness involves owning a machine gun? The 1986 law has prohibited "the common man" from pursuing such happiness; the supply of machine guns available to private citizens is being artificially limited by the law, causing their prices to sky-rocket and preventing all but the wealthy from owning them.
It just seems to me this issue could/should be challenged if it hasn't already been.
I would guess there are some gun collectors who have really liked the way their Class 3 firearms have appreciated in value and would probably not be happy to see a legal challenge, but I was thinking about "life, liberty and the pursuit of happiness."
What if my form of happiness involves owning a machine gun? The 1986 law has prohibited "the common man" from pursuing such happiness; the supply of machine guns available to private citizens is being artificially limited by the law, causing their prices to sky-rocket and preventing all but the wealthy from owning them.
It just seems to me this issue could/should be challenged if it hasn't already been.
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The Hughes ban on the production of new machineguns for private citizens has been challenged in court at least twice that I can remember and perhaps another time or two as well. The probelem is that the fellow who wrote the ammendment to the Firearms Owners Protection Act was not stupid. He did not actually prevent the production of new machineguns, the law simply prevents the BATFE from accepting the NFA Tax from ANYONE attempting to transfer a post May '86 MG to an individual and the BATFE from accepting the NFA Tax from ANYONE attempting to register a post May 86 MG for other than LE/military/export sales. This effectively closes off the only two sources an individual had for obtaining a new MG: either by transfer on a Form 4 (still valid for pre ban MG's) with the $200 tax or making an MG and registering it on a Form 1, also with a $200 tax. Since the BATFE cannot accept the tax for transfer or new registration for post May '86 MG's from or for individuals and ALL NFA firearms MUST BE REGISTERED, everyone is SOL.
The court challenges used two different approaches. The first was treating the ban as an outright ban. This went no where legally because under the letter of the law there is no actual ban since MG's can still be produced and pre '86 guns can still be transfered to individuals. What the court saw was a tax issue with the government deciding who could and could not pay certain taxes. It is no big secret that congress has the power to levy and regulate taxes of all kinds, as well as deiciding who should and should not pay these taxes and at which rate: If you are married you pay a lower tax rate than I do as a single person because some idiots in Congress simply decided that married folks should pay less. In this case another idiot in Congress decided that there would be no NFA Taxes accepted on MG's produced after May, 1986 for individuals. CASE CLOSED.
The next approach was since congress would not allow the BATF to collect the tax and since the entire National Firearms Act is nothing but a tax act, then the government should simply bow out completely and simply allow registrations with no taxes period. This failed since the NFA is based on the old Harrison Narcotics Act of 1914, who's opponents tried that same approach: if you won't collect the tax on dope then bow out. The Harrison Narcotics Act went up to the Supreme Court four times and was found constitutional each time, again based on the power to tax. Back in 1939 when the NFA had its own court challenge with the Miller case the defendants went straight for a Second Ammendment defense since the tax issue was already well sorted out by 1939 with the Harrison Narcotics Act, the National Firearms Act, and the Marijuana Tax Act. DEAD ENDS all around. When Congress loses its powers to tax then I can see the MG ban being lifted...not before.
Mark T. Christian0 -
It's not as bad as that! There haven't been any successful challanges largely because of inadaquate legal representation. There are several points that could be challanged, including another attack on the legislation as a defacto ban. If you are a clever lawyer and personally interested in challenging the law and/or making a name for yourself, it could be done. It would take several years, a considerable amount of money, a well developed geo/political strategy and some political good fortune. But it could be done. Are you the lawyer we need for this one? 0 -
Compentone, you might be unhappy of the law but Mark strafed it correctly. Save your money and buy a full automatic. You are not being denied at all. ( if your LEO will sign off in a legal state and your federal background check passes ) Supply and demand is the machine gun market. Best market now cause new states like mine ( SC ) has opened up and allowed MG's to increase in value. I am looking to purchase one or two more in the near future. 0 -
Thanks for the comments!
Mark, as usual, your insight and knowledge is extremely informative.
SCK, I assume your comment "Are you the lawyer we need for this one?" is just a general question to any lawyer who might happen to be reading. I just want to make it very clear, I am NOT a lawyer!
SELECT-FIRE, I'm in SC too and the recent "expiration" of the law banning ownership of machine guns for this state's residents is what has gotten me more interested in them.
Even with Mark's explanation, I still wonder if there is some "fair tax" legislation which could be used to challenge the law which clearly was intended to be a ban on new production of MG's and wasn't really a tax issue.
I also wonder if any civil suit could be filed against the BATFE--using an argument that the government is infact unlawfully restricting my "pursuit of happiness"--and attempt to have the court force them to action. If I had a machine gun manufacturer willing to sell me a post-86 firearm; if I applied for the tax stamp, when its issuance was refused, I could file a suit arguing that the government is infact discriminating against me based upon my income. My income could not justify the expense of thousands of dollars for a pre-86 MG, but I could afford the few hundred dollars that the post-86 MG's sell for. What differnce should it make to the government when a specific firearm was manufactured? If I can qualify for MG ownership in all other respects, it could be argued that the BATFE should HAVE to issue the stamp, regardless of the date of manufacture/price of the MG being transfered.
Of course, the time and money to pursue such an action could just be put toward the purchase of a pre-86 MG, but...
I "fell in love" with the AK-47 when I first purchased a semi-auto one a few years back, and it will be a LONG time saving before I could afford a pre-86 one--if one could even be found! (I see post-86 "dealer sample" full-auto SAR-1's for sale on GB at a price I could actually afford!)0 -
You can not hit the BATFE with a law suit for failing to issue you a National Firearms Act Tax Stamp on a post ban machinegun because the law does not allow them to do this even if they wished to do so. Another way of looking at it would be trying to place a law suit against your local FFL dealer for refusing to sell you a handgun at age 20...the law does not allow this to happen so who is at fault? The people who wrote the laws and not the agency or the person enforcing or bound by the laws.
About two years ago there was another challange dealing with the NFA. A group went to court to try to eliminate the CLEO sign off needed on Forms 1,4, and 5 since without the CLEO's signature the entire process was dead in the water. The court ruled that the signature aspect of the NFA was perfectly legal due to the fact the the CLEO was ONLY signing to indicate that he knew of no reason on a local level that the applicant should not be allowed to register the firearm in question. There is nothing on the form or in the regulations that state the CLEO must agree with the NFA, likes the idea of people owning machineguns or other weapons, or even agrees with the whole registration process...he only signs to indicate that there is nothing happening on a local level that the Feds need to be aware of.
Of course plenty of chiefs won't sign off on the forms and leave applicants hanging. The court stated correctly that if the CLEO was not signing due to some personal problem or issues than this needed to be addressed on a local one to one level between the applicant and the CLEO and it was not the place of the Federal courts to get involved. This would be like going to court to ask that all speed limits be removed because a few local agencies use their lawful ability to set low speed limits and then set up speed traps. Once again, this is a local problem between you and the cops unless your Civil Rights were violated.
These court challanges were well finalced and the plantiff's had some of the best lawyers available in the field of firearms rights and I've met a few of those folks and I'd be thrilled to have them on my side of the court room. Right now the only way you'll see this ban lifted is to go back to Congress and get new legislation passed in both houses and signed by the President. I doubt that this can be done any time soon. Interestingly enough when the ban went into effect in May, 1986 it caused little alarm because the intention was to simply go back to a gun friendly Congress who had passed the Firearms Owners Protection Act (which contained the MG ban as a last minute poison pill by some anti gunners) and allowed for the resumption of suplus military firearms and get the MG ban ammendment removed. Unfortunitly in only a couple of years the entire mood towards firearms turned 180 degrees in the wrong direction in DC and we were faced with the battle over the Brady Bill, the Bush assault weapons ban, as well as a number of State gun bans like those in California. Suddenly there were way too many other things to worry about besides just machineguns and the rest is history.
Mark T. Christian0 -
Mark - I always look forward to reading your posts. You are a wealth of information. Keep up the good work.
Boomer
"Success is to be measured not so much by the position that one has reached in life as it is by the obstacles which one has overcome while trying to succeed."NRA Life Member0
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