Just wondering if this would work or if not, why not?

922(o)

(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to—
(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

You could apply for a "machinegun carry permit" the same way you would apply for a concealed carry permit. Once approved, the state would then issue a permit/certificate that you are hereby allowed to "transfer and possess" machineguns under the authority of (input your state). You would then provide this permit/certificate when you apply for your Form 1 or Form 4.

Now that NOLO's lawsuits are stalled, this seems like a logical next step to pursue. (I'd love to have NOLO weigh in on this idea if he's around).

Obviously the main hurdle would be getting legislation like this passed in a state. I'm thinking that if you could get this passed in a hand full of states, you could eventually snowball this into getting passed nationwide over a period of time. Thirty years ago, hardly any states allowed concealed carry permits. Not look at where it is today.

thoughts?

Yes, the states could.

I'm no legal expert but wouldn't federal law, i.e. The NFA supersede state or local laws?

If you could you still have the issue of convincing legislature to pass said law which is basically career suicide in every state aside from like Texas.

Yep, Florida could form a government division called the deplorables and authorize you as a part of the gov to carry a full auto P90. However the Feds will bully them by withholding highway funds, etc...so it would never happen.

Why would it be necessary to form another division within the state government?

It seems to me, as long as the "machinegun carry permit" has language associated with it that you are "authorized to transfer and possess machineguns under the authority of the state" then you would be good to go. What am I missing?

Like with most states concealed carry permitting process, I'd assume you would, in addition to the application, also have to go through a background check and possibly do a certain number of training hours.

You really think the feds would try to withhold highway funds because someone passed a background check and did x number of hours of training and then got a "machinegun carry permit"?

Federal law is silent on that; do you think it's disallowed? I believe in MA ( yes MA ) if you have a license to carry you can carry an MG.

Probably wouldn't be necessary, just an off the cuff example.

Do you think the Feds would withhold highway funds because someone passed a drivers license test and did x number of hours of drivers ed training and got a "drivers license"?

Because they did

I'm betting there's a whole lot more to that story if fed.gov did threaten that.

Maybe calling it a "machinegun carry permit" is confusing the issue. Perhaps a better name for it would be "state authorized machinegun possession and tranfer" permit.

Seems to me that IT IS directly addressed in Federal law in 18 U.S. Code § 922(o) that I quoted above. Again, what am I missing? I'm not a lawyer so someone with more legal knowledge than me is welcome to clarify.

OK, I misunderstood the question.  "Under authority of the United States" means whatever the United States wants it to mean. The federal courts will follow its lead.

That's still not what I'm referring to. Its the part right after that:

a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof;

Federal law permits state governments the authority to allow the possession and transfer of machineguns. Thats how local and state police are allowed to have them.

So why can't a state government grant an individual the authority to possess and transfer a machinegun (via a permitting process similar to concealed carry)?

Individual citizens are neither a "department, agency, or political subdivision" of a state. States don't have the "authority" to exempt people from Federal law.

The key word is "or" - the state does have the authority under 922(o) to issue a machinegun to whomever they want.  Generally that's just the national guard, but the state is not limited to who it can give a machinegun.  It would simply take a piece of legislation that states holders of the "machinegun license" are authorized to buy and sell new machineguns under the authority of the state.  

 

No state is going to make that legislation, so unless your a billionaire who can heavily influence a whole state's set of legislators, it's pretty well moot.

Of course states don't have the authority to exempt people from Federal Law. Thats not at all what I'm saying.

Federal law allows "a transfer to or by, or possession by or under the authority of"..."a State". I don't see anything in the law that says you have to be an employee of the state or an employee of a State agency or department. You just have to have been granted the authority by the State.

It was against LA, because they wouldn't raise the drinking age to 21. A state letting us peons carry full auto would cause Washingtons heads to explode and they would bring out the steel toe boot in a big way IMHO.

States pass/ignore federal laws regarding marijuana. Why can they just do the same for machine guns?

Progressives in the federal government are looking the other way when it comes to state marijuana laws. They won't look the other way when it comes to marijuana.  They are picking and choosing which laws to enforce.  That's a big problem with our system of government.

I disagree with your interpretation of that case.  That was in regards to ATF form 1's/4's.  I believe the states could authorize an individual if they wrote their law correctly.

 

I'm not sure I'd be that fatalistic about it.

The way I see it, you have three different avenues, all of which are going to be difficult. The question is, which one is going to be the least difficult?

Option #1: Try to get 922(o) overturned through the Federal courts. Well, we've already seen how that has gone. Unless several miracles occur in the upcoming election and the appointment of several new gun friendly SCOTUS judges, I don't see this happening.

Option #2: Try to get 922(o) repealed via new Federal legislation. Similar to above, even with multiple miracles occurring in the upcoming election, it would still be next to impossible for this to ever happen.

Option #3: Try to pass legislation in a hand full of gun friendly states to allow for the State authorization of the transfer and possession of machineguns. This could build momentum that, over time, could allow for further legislation to spread to other states. The same way concealed carry laws have progressed over the last 30 years. I'm by no means downplaying how difficult this would be but I still think it has more chance for success than the other two options.

Seems something like this would mean "state approval" is already in place. No additioal laws needed.

Go file a state permit for a new HK 416 (or a new M16, or whatever). When it is approved, file the Form 4 and include the state form.

ATF would likely deny it, and it would take a few year's worth of lawsuits, but it appears the requirements of 922(o) would have been met, as this would be "under the authority" of the state.

An interesting theory. It all hinges on the meaning of the "under the authority of" clause in 922(o).

An approved ATF Form 1 or Form 4 would be just as much "authority" as a state MG permit. But, as tony_k has pointed out, there is already case law that nixes this approach.

At its root, the problem is political. There seems to be a demonization of machine guns among the general public. Even the NRA's Wayne LaPierre, in congressional testimony, approvingly said that "machine guns are already illegal." (I about fell out of my chair when I heard that.) To tell the truth, though, the demonization of machine guns by even the pro-gun side serves a larger purpose by enabling a contrast to be drawn with semiautomatics, which then appear to be less dangerous. (All of us here know that that's not actually true.)

A friendly federal administration could take the position that this theory is correct, order the ATF to approve Form 1's and Form 4's for individuals, and then rely on that as "authority" for purposes of 922(o) -- thus turning 922(o) into a nullity. The courts couldn't do anything about it because no one would have standing to sue to get it overturned. (No plaintiff could show that they had been injured by this interpretation.)

I don't think this would happen, even if Trump is elected. It is more likely that a straight repealer of the Hughes Amendment would be added as a rider to some other "must-pass" piece of legislation. Of course, the Republicans would have to control both houses of Congress as well as the White House, plus the NRA would have to lobby them strongly to accomplish this.

Even if you could get such a law passed, the state would own the weapon.

Just as in the case for law enforcement, the state owns the weapon and allows the LEO to have possession.

The better implementation would be to go after it like the states that allow weed.

The ATF is only involved due to the federal .gov stance that they have control due to federal commerce laws.

So go to a very gun friendly state, hopefully one of the ones that outlaws local and state agencies from helping the feds, and first get a law passed that doesn't make owning/possessing/creating title 2 weapons illegal.

Then get a law passed that allows owning/possessing/creating title 2 weapons within the state.

If it starts and ends within the state borders, the feds would be hard pressed to fight back (just like with weed) as if they lost that battle in court, they would loose a huge foothold of their control in all manner of things.

It is a very slippery slope for the feds to challenge a case like this, as they have used federal commerce laws to reign in control of way more than drugs and guns

I don't see this happening over machine guns though, too many people see them as evil, but if you could get it started with silencers while at the same time not adding any machine gun specific exclusions would be a huge start

Alabama has no state laws that restrict the possession of Full Auto/Machine Guns.  They actually have no laws that mention MGs.  Up until about 2010 they did have a state law that completely prohibited SBR and SBS for citizens.  There were several attempts to completely repeal the statute of the law, but in the end it was cleverly amended to allow SBR and SBS.


Also here is how I interpret the following:

(A)   a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

Basically it says (Any Department or Agency) of the USA may transfer or posses OR  (department, agency, or political subdivision) of a State may transfer or posses

Not sure how a State would pass a law that would include every citizen to be part of a Department, Agency, or Political Subdivision?

The best bet is to have a congress critter offer up a poison pill amendment that either repeals 922(o) or cleverly amends 022(o) to basically make it non applicable.

Guys it has been 30 years. Every possible parsing of those sentences has been tried, like 20+ years ago. The most obvious was "a transfer to or by" and "department or agency thereof or a State". In other words, your local PD transfers a post-86 gun TO you. Logically based on how it is worded, that is legal. Courts decided that was not Congress intent.

Which case(s) decided that?




What if a current LEO and sole proprietor SOT received a post-86 MG, then stopped paying the SOT. Would ATF seize the postie? Would it make any difference if it was his personally-owned duty weapon, approved by his agency?




 
 
 

I'm not aware of any case where Bardwell argued before the SCOTUS; maybe you can enlighten us.  He's a great asset to the RKBA community but I don't think he's ever done anything in federal court before the SCOTUS.

We just need to get a friendly senator to slip that poison pill amendment stating that the ATF issuing a approval for a form 1 or 4 is gov approval. Preferably into a bill with about 10000 pages.

Getting a state to do it would likely be difficult, but I could envision a "political subdivision" like a township trying to authorize it for their citizens.  That would be pretty hilarious.  I am sure you would have to flight the feds the whole way.

Massachusetts requires an additional license, in addition to an LTC, to possess a machine gun. Just like the rest of the country, they live with pre-86 transferables. Possessing such a license is not 922(o) work around.

It would take very specific wording to become a 922(o) workaround.  It's not happening, no state has a machinegun loving house, senate and governor.



 

A couple of states have loosened mg laws in recent years. I think SC had a complete ban and now has legalized them. So, some states do.

He is premising his idea under the guise of an individual qualifying for the exemption via the authority of provision (i.e. under the authority of a state government/agency, under the authority of the government of a political subdivision/agency).

Obviously that would cover the individuals who possess a firearm registered to an agency when they are an authorized possessor (e.g. a police officer carrying an issued weapon registered to the PD, a property tech maintaining firearms on a department inventory, a curator employed by a government agency acting in his official capacity) though there are purported to be very rare instances in which an individual has received approval when individually acquiring a firearm based on certain documentation from their employing agency. (Only God knows if those stories are true, some don't sound true, others sound more plausible)