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View Full Version : "home made" full auto machine guns legal in the 9th Circuit?


submaniac
10-08-2011, 10:03 PM
Home made fully automatic machine guns apparently are legal in the 9th circuit.

I just found this case, which sez it al. the FOPA which criminalizes possession of a machine gun is beyond the authoruty of congress to enact.

would be cool, but cali bans it.

http://caselaw.findlaw.com/us-9th-circuit/1173761.html

gunsmith
10-08-2011, 10:13 PM
!? IDK, machine guns are legal to own with the right paperwork here in NV & there are plenty of machinist here that have the know how-you would think there would be more machine guns if legal.

bohoki
10-08-2011, 10:19 PM
well the feds seem to have authority over marijuana made in and for use only in CA

Wolverine
10-08-2011, 10:30 PM
Home made fully automatic machine guns apparently are legal in the 9th circuit.

I just found this case, which sez it al. the FOPA which criminalizes possession of a machine gun is beyond the authoruty of congress to enact.

would be cool, but cali bans it.

http://caselaw.findlaw.com/us-9th-circuit/1173761.html

Thanks for the link. Very interesting read. I wonder why the US didn't appeal this to SCOTUS?

Updated: Thanks to Kharn below we found that the US did appeal this decision to SCOTUS and won on remand in light of Raich. So "no homebrew machine guns for you, peasant"

cmaynes
10-08-2011, 10:31 PM
This seems similar to the bill that Montana was working on that would allow Montana manufactured guns to be exempt from ATF reporting- It will be interesting to see where it goes, but one would think simply becoming a Class III manufacturer would have made the guys life a whole lot less anxious.

Librarian
10-09-2011, 12:06 AM
Thanks for the link. Very interesting read. I wonder why the US didn't appeal this to SCOTUS?

Because We reverse Stewart's conviction for machinegun possession under section 922(o) as an unlawful extension of Congress's commerce power and affirm his conviction for possession of firearms by a felon.they got to keep the conviction, and an appeal to SCOTUS might have drawn some attention to machine guns.

Similarly, United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.Ill. 1991) (http://www.constitution.org/2ll/court/fed/us_v_rock_island.htm) will never be appealed (well, cannot be any more, but was not) because the opinion was As interpreted and administered by the Bureau of Alcohol, Tobacco and Firearms ("BATF"), U.S. Department of the Treasury, 922(o) prohibits the private possession of any machinegun not made and registered before May 19, 1986. Thus, since May 19, 1986, BATF has refused to approve any application to make, transfer, register, and pay the $200 tax on any machinegun made after that date.[7] Before that date, BATF approved such applications pursuant to 26 U.S.C. 5812 and 5822. Farmer v. Higgins, 907 F.2d 1041, 1042-44 (11th Cir.1990), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991) (upholding BATF's denial of an application to make and register a machinegun by a private collector under 5822).

As applied to machineguns alleged to be possessed after May 19, 1986, prosecutions may no longer proceed under 26 U.S.C. 5861. This is because the National Firearms Act is part of the Internal Revenue Code, and its provisions including registration of machineguns possessed after May 19, 1986 are valid only to the extent they aid in the collection of tax revenue. Since BATF would not register and accept tax payments for any machinegun after May 19, 1986, registration of machineguns made and possessed after that date no longer serves any revenue purpose, and such registration requirements are invalid. Since 18 U.S.C. 922(o) is interpreted to ban registration and taxation of machineguns under the National Firearms Act, 922(o) effectively repeals such registration and taxation provisions. Congress has no enumerated power to require registration of firearms. However, since registration of firearms may assist in the collection of revenue, Congress passed the National Firearms Act in 1934 pursuant to its power to tax. Section 922(o) destroys the constitutional basis of registration.
...
In sum, since enactment of 18 U.S.C. 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts 1(a) and (b), 2, and 3 of the superseding indictment are

DISMISSED.In United States District Court, Central District of Illinois, it's legal to manufacture machine guns and one need not register them.

safewaysecurity
10-09-2011, 12:26 AM
Lol. So we should all move to Illinois and start building full auto AKs.

Mr_Monkeywrench
10-09-2011, 12:58 AM
:eek:

gunsandrockets
10-09-2011, 2:04 AM
Holy crap!

Kharn
10-09-2011, 4:20 AM
The Government appealed Stewart the same term as Raich. Supreme Court held Stewart, granted Raich cert, went through the motions and found that growing pot in your backyard does affect interstate commerce. Stewart was GVR'ed with "reconsider in light of Raich", the Circuit Court reexamined the issue and home-built MGs were found to affect interstate commerce as you could have bought an out-of-state MG, thus 922(o) was legit.

dantodd
10-09-2011, 5:20 AM
The Government appealed Stewart the same term as Raich. Supreme Court held Stewart, granted Raich cert, went through the motions and found that growing pot in your backyard does affect interstate commerce. Stewart was GVR'ed with "reconsider in light of Raich", the Circuit Court reexamined the issue and home-built MGs were found to affect interstate commerce as you could have bought an out-of-state MG, thus 922(o) was legit.

My google-fu must be weak. Can you post the opinion? thanks.

Write Winger
10-09-2011, 7:03 AM
Who knew Illinois of all places you could build a FA gun... talk about enemy territory.

Kharn
10-09-2011, 9:18 AM
My google-fu must be weak. Can you post the opinion? thanks.

The summary was from memory, but I bet the case has a Wikipedia page.

ChuangTzu
10-09-2011, 9:18 AM
Who knew Illinois of all places you could build a FA gun... talk about enemy territory.

Except doing so is against IL state law. Can't even have a SBR in IL...

Wolverine
10-09-2011, 9:52 AM
The Government appealed Stewart the same term as Raich. Supreme Court held Stewart, granted Raich cert, went through the motions and found that growing pot in your backyard does affect interstate commerce. Stewart was GVR'ed with "reconsider in light of Raich", the Circuit Court reexamined the issue and home-built MGs were found to affect interstate commerce as you could have bought an out-of-state MG, thus 922(o) was legit.

Thanks Kharn. I found the docket on the SCOTUS website. Case Number is 04-617. The subsequent 9th Circuit opinion upholding 922(o) can be found at http://www.ca9.uscourts.gov/datastore/opinions/2006/06/30/0210318.pdf?openelement

dantodd
10-09-2011, 10:00 AM
Thanks Kharm. I found the docket on the SCOTUS website. Case Number is 04-617. The subsequent 9th Circuit opinion upholding 922(o) can be found at http://www.ca9.uscourts.gov/datastore/opinions/2006/06/30/0210318.pdf?openelement

Tnx for posting that.

submaniac
10-09-2011, 10:00 AM
There is also the case of U.S. v. Dalton in which the 10th circuit invalidated FOPA.

http://www.constitution.org/2ll/court/fed/us_v_dalton.htm

Quiet
10-09-2011, 10:39 AM
Who knew Illinois of all places you could build a FA gun... talk about enemy territory.

Under IL state laws, AOWs are the only NFA firearms a non-exempt person can own/possess in IL.
DD, MG, NS, SBR & SBS are illegal for all non-exempt persons in IL.

Bhobbs
10-09-2011, 12:34 PM
The Government appealed Stewart the same term as Raich. Supreme Court held Stewart, granted Raich cert, went through the motions and found that growing pot in your backyard does affect interstate commerce. Stewart was GVR'ed with "reconsider in light of Raich", the Circuit Court reexamined the issue and home-built MGs were found to affect interstate commerce as you could have bought an out-of-state MG, thus 922(o) was legit.

Well in CA 922(o) can't be legit because, without impossible to get licenses, we cannot buy MGs.

6172crew
10-09-2011, 1:41 PM
This comes up every year or so.

Some guy built a Sten in garage and cops busted him. The DA went after him under the commerce act and the 9th said the Sten wasn't going to sold so it shouldn't fall under commerce act but then the whole 9th reviewed and said the commerce act does apply. So for a few months you could have been in limbo if you made your own Sten.

I might have missed some details but I'm pretty sure this sums up what the OP was talking about.

Nothing to see here folks/These are not the Droids your looking for.

m03
10-09-2011, 2:46 PM
This comes up every year or so.

Some guy built a Sten in garage and cops busted him. The DA went after him under the commerce act and the 9th said the Sten wasn't going to sold so it shouldn't fall under commerce act but then the whole 9th reviewed and said the commerce act does apply. So for a few months you could have been in limbo if you made your own Sten.

I might have missed some details but I'm pretty sure this sums up what the OP was talking about.

Nothing to see here folks/These are not the Droids your looking for.

Yup, the case was discussed extensively on SubGuns.com back when it was still on-going.