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View Full Version : What is the legal basis for 'once a machine gun, always a machine gun?"


AJAX22
04-08-2011, 2:15 PM
Anyone know where the BATFE came up with 'once a machine gun, always a machine gun?'

Is there a law or regulation that they've interpreted this way or is it just something they pulled out of their collective butttocks?

Any references to check for this?

As always, any help you can render is greatly appreciated...

yellowfin
04-08-2011, 2:27 PM
Pulled it completely out of thin air. From what I gather is it was a made up extension to the 68 GCA to screw with imports and military surplus hence why we can get Garands but not M14's.

AJAX22
04-08-2011, 3:05 PM
Not finding much....

In fact there is a court case that seems to call it into question.

http://www.ll.georgetown.edu/federal/judicial/dc/opinions/95opinions/95-5187a.html

Munk
04-08-2011, 4:18 PM
I am very curious about this as well. Imagine how many more parts and complete firearms would be available if this were gone.

MasterYong
04-08-2011, 5:13 PM
Tagged.

Must. Tag. All. Ajax22's. Threads.

Must.

Paul S
04-08-2011, 5:45 PM
BATFE Fiat..of course at the time the agency was BATF.

pointedstick
04-08-2011, 5:50 PM
Tagged.

Must. Tag. All. Ajax22's. Threads.

Must.

I had the same thought! :D Are we sure AJAX22 isn't Alan Gura's online pseudonym or one of his research assistants or something…?

bussda
04-08-2011, 6:35 PM
Similar logic: Rifles cannot be made into pistols and vice versa. Once an AOW, always an AOW. I think it relates to the tax paid on the item. So tax law, not criminal law.

Along similar lines look at the Thompson/Center v ATF (?) case on rifle vs. handgun.

ETA: And there could also be some letter written 40 years ago that cannot be released because it was related to a tax case so everybody refers to it but no one has seen it. :)

yellowfin
04-08-2011, 7:57 PM
Legislating from the clipboard. Will Rogers had a saying: "Every time they make a joke, it's a law. And every time they make a law, it's a joke."

Barabas
04-08-2011, 8:33 PM
I am very curious about this as well. Imagine how many more parts and complete firearms would be available if this were gone.

Having just finished reading Vollmer v. Magaw, it appears the legal basis for their policy never even existed, indeed:

"Having examined the Bureau's arguments from text, structure, legislative history, and underlying policy, we find no reasonable basis for its once-a-machinegun-always-a-machinegun interpretation of the Firearms Act. Nor are we persuaded by the district court's own explanations of why the Bureau's position was nonetheless substantially justified. Although, as the district court observed, the Bureau had followed its interpretation of the Firearms Act since at least the early 1980s, we do not see how merely applying an unreasonable statutory interpretation for several years can transform it into a reasonable interpretation."

Why haven't we heard more of this case?! Thanks Ajax!

dustoff31
04-08-2011, 9:19 PM
Everyone catch this in the link to the court case?


Fred E. Haynes, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

AJAX22
04-09-2011, 9:20 AM
Having just finished reading Vollmer v. Magaw, it appears the legal basis for their policy never even existed, indeed:

"Having examined the Bureau's arguments from text, structure, legislative history, and underlying policy, we find no reasonable basis for its once-a-machinegun-always-a-machinegun interpretation of the Firearms Act. Nor are we persuaded by the district court's own explanations of why the Bureau's position was nonetheless substantially justified. Although, as the district court observed, the Bureau had followed its interpretation of the Firearms Act since at least the early 1980s, we do not see how merely applying an unreasonable statutory interpretation for several years can transform it into a reasonable interpretation."

Why haven't we heard more of this case?! Thanks Ajax!


I'm going through Lexis looking at other cases that cite this decision... there may be a reason we haven't heard much about it.

El Toro
04-09-2011, 10:04 AM
Seems that a lot of Agency Policy is "off-the-cuff" and loose with the interpretation of the laws as Congress intended. I believe Congress actually writes laws with a loose set of goals, hoping their political party will control the Whitehouse and therefore the Government agencies. This gets around the nasty courts who would normally rule against any law that flagrantly violates the Constitution and allows agencies to violate our rights under a policy. It then takes much longer before a court case challenging the agency comes up and by that time, Congress has moved on to the next boondoggle.

In fact, if you read the recent Obamacare legislation, most of the language delegates how and what to the Secretary of Health. So, the law is loose and the DHHS can be as strict as they want with "death Panels" or whatever.

mj1
04-09-2011, 5:17 PM
SCHUMMER did it.

AJAX22
04-10-2011, 8:48 PM
Slightly un-related: but an interesting read

831 F.2d 253

http://law.justia.com/cases/federal/appellate-courts/F2/831/253/397734/

Hozr
04-10-2011, 10:31 PM
Just tagging along. Thanks.

Beatone
04-10-2011, 11:29 PM
I'm also interested in how this thinking came about.

Fate
04-11-2011, 11:35 AM
There goes Ajax22, pulling away the curtain again...

http://startupsquare.com/blog/wp-content/uploads/2010/05/manbehind-1.jpg

CHS
04-11-2011, 2:21 PM
Similar logic: Rifles cannot be made into pistols and vice versa. Once an AOW, always an AOW. I think it relates to the tax paid on the item. So tax law, not criminal law.


The difference with rifles not being able to be turned into pistols is that that silly piece of non-logic IS actually codified into law. "Rifle" is defined in certain ways (16" rifled bore, buttstock, 26") and then it's also defined as any firearm "made from a rifle".

I don't know of any BATFE logic that says once an AOW always an AOW. An AOW can be neutered into no longer being an AOW, then struck from the NFA registry. At that point it would be a pistol, or you could turn it into a regular rifle.

Same with an SBR. If you have a legally registered SBR, you can make it 26" with a 16" barrel and strike it from the registry.

You don't get your $200 returned, sadly :)


Along similar lines look at the Thompson/Center v ATF (?) case on rifle vs. handgun.


That's a very interesting case since they actually called into question the whole "made from a rifle" business. They said in their opinion that the firearm must be judged on its actual configuration and not what it was "made from". They essentially said "if it's legally configured as a pistol, it's a pistol. If it's legally configured as a rifle, then it's a rifle.".

The problem with that case is that the ATF says "yeah, we don't care. That case ONLY applies to the TC kits and no other firearm, unless it's sold as a rifle/pistol kit".

I know a while back some people on here were talking about selling an AR15 kit that included two uppers (one 16" and one less than 16"), and a lower that had a pistol tube and attachable buttstock so that it could be a true dual-purpose lower. Rifle and pistol AR15.

The legal issues that we have to deal with is that the ATF most usually settles because they don't like their flaws being called into account on official court record. So basically they get to make up law, and they never pursue conviction because they know they'll get called on it and lose their precedent.

The TC case is the perfect example. The court said one thing, the ATF STILL says the opposite, and until the United States code is changed to remove the "made from a rifle" language we're stuck unless someone wants to be a test case and invoke the TC decision.

bussda
04-11-2011, 4:21 PM
...

The legal issues that we have to deal with is that the ATF most usually settles because they don't like their flaws being called into account on official court record. So basically they get to make up law, and they never pursue conviction because they know they'll get called on it and lose their precedent.

The TC case is the perfect example. The court said one thing, the ATF STILL says the opposite, and until the United States code is changed to remove the "made from a rifle" language we're stuck unless someone wants to be a test case and invoke the TC decision.

A little disagreement. Most BATFE regulations fall under the tax code. If the BATFE pursues you, it is a tax case presented in (usually) tax court. Where the accused rarely wins, and prior decisions are not disclosed for taxpayer privacy.

To bring cases in the federal court (criminal, civil), the tax must be paid first, then make a claim, file case process. This is how Thompson/Center successfully fought the case.

This is why lawyers hesitate to take on the BATFE, low chance of success and no real prior case law. Paying the tax is usually easier. And revenue (tax) functions of BATFE are with Treasury and criminal are with Justice, but which is which. It is a mess.

ke6guj
04-11-2011, 8:54 PM
Having just finished reading Vollmer v. Magaw, it appears the legal basis for their policy never even existed, indeed:

"Having examined the Bureau's arguments from text, structure, legislative history, and underlying policy, we find no reasonable basis for its once-a-machinegun-always-a-machinegun interpretation of the Firearms Act. Nor are we persuaded by the district court's own explanations of why the Bureau's position was nonetheless substantially justified. Although, as the district court observed, the Bureau had followed its interpretation of the Firearms Act since at least the early 1980s, we do not see how merely applying an unreasonable statutory interpretation for several years can transform it into a reasonable interpretation."

Why haven't we heard more of this case?! Thanks Ajax!this is similar to how ATF says that a VFG on a pistol creates an AOW, but more than one court has ruled against them on it. However, ATF still pushs the VFG+pistol=AOW opinion.

IrishPirate
04-11-2011, 9:16 PM
you expect logic from an ANTI GUN federal agency?.....good luck with that!!!

AJAX22
04-11-2011, 9:17 PM
What court cases have ruled tha vfg on a pistol does not make it an aow?

ke6guj
04-11-2011, 9:55 PM
What court cases have ruled tha vfg on a pistol does not make it an aow?

there were a couple that I know about,

http://www.titleii.com/bardwell/us_v_davis2.txt

24. The 9 millimeter and .22 caliber pistols seized by ATF
were modified by adding an additional grip.

25. Title 26, United States Code Section 5845(e) defines
"any other weapon" as:

... any weapon or device capable of being concealed from which
a shot can be discharged through the energy of an explosion
... Such term shall not include a pistol or revolver having a
rifled bore, or rifled bores, or weapons designed, made or
intended to be fired from the shoulder and not capable of
firing fixed ammunition.

26. A "pistol" is defined in Section 5845 as

A weapon originally designed, made and intended to fire a
projectile (bullet) from one or more barrels when held in one
hand, and having (a) a chamber(s) as an integral part(s) of or
permanently aligned with, the bore(s); and (b) a short stock
designed to be gripped by one hand and at an angle to and
extending below the line of the bore(s). 27 CFR 178.11
(emphasis added).

27. Even after being modified with grips, the pistols are
still "pistols" as defined above and not "any other weapon" as
defined by 26 U.S.C. section 5845(e).

that one was district court ruling that ATF did not appeal, IIRC. The rumor was that they didn't appeal it so that it wouldn't be binding in other cases.


Then, about 10 years ago, someone got convicted and appealed it to the 9th Circuit and the 9th Circuit ruled as following:


"Fix argues that the government did not prove the Calico Liberty III, found during a search of his home and business, was a weapon that required registration. Fix was convicted under 26 U.S.C. 5861(d) of possession of an unregistered firearm. In a related provision, HN2"firearm" is defined by a list of eight weapons and a catchall provision of "any other weapon." See 26 U.S.C. 5845(a). "Any other weapon" includes "any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive," but not "a pistol . . . having a rifled bore . . ." See 26 U.S.C. 5845(e). Weapons not included in the definition of firearm in 5845 need not be registered under 5861(d). Fix argues that his Calico was a pistol, [**5] met the exception in 5845(e), and did not need to be registered under 5861.

We agree that the Government failed to prove a violation of 5861(d) for two reasons.

First, the weapon does not fit the definition required by the statute. HN3The provision defining "pistol" for the purposes of the statute is 27 C.F.R. 179.11, which defines a pistol as "a weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand . . . ." The government argues that because the Calico was modified to be fired with two hands, it "falls out" of the definition of pistol and falls back into the definition of "any other weapon" in 5845. This argument ignores the definition's requirement that the weapon be capable of being held with one hand at the time it was originally designed and made. As written, this definition does not consider modifications of the weapon by the owner. The Calico was originally designed and made to be fired with one hand, and still could be, despite the addition of a foregrip.

Second, the definition of "any other weapon" in 5845(a) and (e) expressly excludes weapons with a rifled [**6] bore. We assume that the "any other weapon" provision was intended as a catch-all category in which to gather sawed-off shotguns and other hybrid weapons. A sawed off shotgun may be concealed like a pistol, but would have the smooth bore of a shotgun. The Government's witness stated that the Calico Liberty III had a rifled bore, and thus, cannot be considered "any other weapon."

Accordingly, the conviction on Count V must be reversed for insufficiency of the evidence."
All I have been able to find is a cut-paste of the decisiion, U.S. V. Fix , 4 Fed. appx. 324 (9th Cir. 2001) docket 99-30235 , can't find the actual decision.

That was in 2001 that ATF lost in the 9th Circuit, so at the least, VFG'ed pistols should be legal for us in CA (fixed-mag of course) but in the years since, ATF has continued to claim that VFG'ed pistols are AOWs.






http://www.calguns.net/calgunforum/showpost.php?p=5685064&postcount=19

CHS
04-12-2011, 10:16 AM
25. Title 26, United States Code Section 5845(e) defines
"any other weapon" as:

... any weapon or device capable of being concealed from which
a shot can be discharged through the energy of an explosion
... Such term shall not include a pistol or revolver having a
rifled bore, or rifled bores, or weapons designed, made or
intended to be fired from the shoulder and not capable of
firing fixed ammunition.

Wow.. That seems pretty clear to me.

The law is explicitly written to exclude pistols with rifled bores. That would seem like a slam dunk case to me to allow AR pistols with VFG's. You could still fire them with one hand like a pistol, and they have a rifled bore.

CA would allow a VFG in a fixed-magazine configuration, but otherwise says nothing about VFG's being prohibited on handguns.

Fate
04-14-2011, 2:12 PM
Wow.. That seems pretty clear to me.

The law is explicitly written to exclude pistols with rifled bores. That would seem like a slam dunk case to me to allow AR pistols with VFG's. You could still fire them with one hand like a pistol, and they have a rifled bore.

CA would allow a VFG in a fixed-magazine configuration, but otherwise says nothing about VFG's being prohibited on handguns.

I pointed these things out in the "So you want a SBR/AOW in CA" thread about a year ago maybe? Pity the BATFE still is using the "because we say so" threat to scare people from putting untaxed pistol grips on AR pistols even when there's case law on the books.

dantodd
04-14-2011, 2:21 PM
So, the right way to attack this would be to pay the tax as an AOW then request the weapon be stricken from the registry and file suit when they deny? I assume this would keep it out of tax court.

ke6guj
04-14-2011, 2:53 PM
sounds right to me. That was how T/C did it for the Contender kit.

bussda
04-15-2011, 2:08 PM
I was looking for something else and came across this http://www.examiner.com/gun-rights-in-national/atf-testimony-admits-many-unregistered-machine-guns-allowed-by-ruling . It appears if they call it a machine gun, then it is a machine gun.