Posted: 8/22/2011 5:26:20 AM EDT
|
Unlike silencers (941.298) and SBRs / SBSs (941.28) Wisconsin law does NOT require that legal ownership of machine guns comply with the federal licensing and registration requirements.
Wisconsin law only remarks that an MG "cannot be adapted to use pistol cartridges for a purpose manifestly not aggressive or offensive" (941.27) and that no restrictions apply to "any person duly authorized by any sheriff of police chief" (941.26). This is because unlike silencers and SBRs / SBSs, the MG law was instituted prior to the NFA - it's that old. Unlike most other states, there is no Wisconsin law that prohibits anyone from building or possessing a machine gun within state borders, provided they meet the requirements of 941.26 and 941.27. Montana recently affirmed state sovereignty in their new silencer legislation: "A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce..." I'll let you make the final connection here... The WI MG law really isn't that bad. 
The problems come when the Feds try to interpret / twist it to conform to their expectations and control. They'd much rather it say, "just follow Federal law". If folks want the Wisconsin MG law trued up right quick, just lay out this logic to J.B. VanHollen. http://legis.wisconsin.gov/statutes/Stat0941.pdf http://www.ar15.com/forums/t_8_21/460633_Which_CLEO_to_sign_off_on_a_machine_gun_transfer_.html http://www.ar15.com/forums/t_8_21/442534_For_all_WI_machine_gun_buyers__new_ATF_decision___.html http://www.ar15.com/forums/t_8_21/229149_.html |
The absence of a State Statute prohibiting something does not infer immunity from a Federal Code... While Montana may attempt to invalidate a Federal Code, WI makes no such attempt..
WI Law is more stringent when it comes to a specific NFA item. This is no different than WI law being more stringent when it comes to a handgun transfer waiting period (there is no Federal waiting period) or restricting the the purchase of long guns by residents from FFLs to only contiguous states (Federal law allows you to purchase from an FFL in any state). Quoted:
Wisconsin law only remarks that an MG "cannot be adapted to use pistol cartridges for a purpose manifestly not aggressive or offensive" (941.27) and that no restrictions apply to "any person duly authorized by any sheriff of police chief" (941.26). There is nothing in the Statute number you cited which prohibits adapting a machine gun "to use pistol cartridges" for any purpose. There is severe reading comprehension and some serious wishful thinking. I am convinced that those who write WI Statutes are nearly illiterate. They lack the ability to use basic punctuation and to form a sentence which the average person will be able to comprehend easily. This is what the Statute is actually saying... (2) EXCEPTIONS. Sections 941.25 and 941.26 shall not prohibit
or interfere with the manufacture for, and sale of, machine guns... or the possession of a machine gun ... for a purpose manifestly not aggressive or offensive....other than one adapted to use pistol cartridges. In other words, you do not explicitly need special permission from the Chief LEO unless the MG has been adapted to use pistol cartridges or if you are going to use it for a purpose which is manifestly aggressive or offensive. Nothing here negates the NFA. It simply requires you to get a LEO "authorization" (permission letter according to the other thread) even if you registered it in the NFA with a trust. This is more stringent than Federal Code and not the State carving out an exception to it. |
|
Quoted:
The absence of a State Statute prohibiting something does not infer immunity from a Federal Code... While Montana may attempt to invalidate a Federal Code, WI makes no such attempt..
WI Law is more stringent when it comes to a specific NFA item. This is no different than WI law being more stringent when it comes to a handgun transfer waiting period (there is no Federal waiting period) or restricting the the purchase of long guns by residents from FFLs to only contiguous states (Federal law allows you to purchase from an FFL in any state). According to the Tenth Amendment, the government of the United States has the power to regulate only matters delegated to it by the Constitution. Other powers are reserved to the states. The Firearms Freedom Acts passed by Montana and other states simply acknowledge the limitations of Federal power that are already in place by our constitution. Portions of the Brady Act were ruled unconstitutional by the SCOTUS for this reason. However, congress does have the power to tax the states. That's why the NFA tax structure was used originally to discourage ownership of NFA items. Charlie Wrangel and his cronies could have drastically raised the MG transfer tax in 1986, but they had no authority to ban manufacture and possession within states borders - provided there is no interstate commerce. If state law doesn't prohibit an MG, you try to pay your $200 tax, you remain within the state borders, and your chonies are big - well... Quoted:
Wisconsin law only remarks that an MG "cannot be adapted to use pistol cartridges for a purpose manifestly not aggressive or offensive" (941.27) and that no restrictions apply to "any person duly authorized by any sheriff of police chief" (941.26). There is nothing in the Statute number you cited which prohibits adapting a machine gun "to use pistol cartridges" for any purpose. There is severe reading comprehension and some serious wishful thinking. I am convinced that those who write WI Statutes are nearly illiterate. They lack the ability to use basic punctuation and to form a sentence which the average person will be able to comprehend easily. This is what the Statute is actually saying... (2) EXCEPTIONS. Sections 941.25 and 941.26 shall not prohibit
or interfere with the manufacture for, and sale of, machine guns... or the possession of a machine gun ... for a purpose manifestly not aggressive or offensive....other than one adapted to use pistol cartridges. In other words, you do not explicitly need special permission from the Chief LEO unless the MG has been adapted to use pistol cartridges or if you are going to use it for a purpose which is manifestly aggressive or offensive. Nothing here negates the NFA. It simply requires you to get a LEO "authorization" (permission letter according to the other thread) even if you registered it in the NFA with a trust. This is more stringent than Federal Code and not the State carving out an exception to it. The wording is copied from the Uniform Machine Gun Act of 1933. http://legis.wisconsin.gov/statutes/1973/73stat0164.pdf |
|
That 1973 version of the Uniform Machine Gun Act of 1933 is interesting in that it defines "aggressive or offensive" which the current law doesn't.
164.04 Possession when presumed for aggressive purpose. Possession or use of a machine gun shall be presumed to be for offensive or, aggressive purpose : (1) When the machine gun is on premises not owned or rented, for bona fide permanent residence or business occupancy, by the person in whose possession the machine gun may be found ; or (2) When in the possession of', or used by, an unnaturalized foreign-born person, or a person, who has been convicted of 'a crime of violence in any court of record, state or federal, of the United States of America, its territories or insular possessions ; or (3) When the machine gun is of the kind described in section 164.08 and has not been registered as in said section required ; or (4) When empty or loaded pistol shells of 30 (30 in or 7,63 mm .) or larger caliber which have been used or are susceptible of use in the machine gun are found in the immediate vicinity thereof'. It seems to me like (1) means on other's property (I'm assuming without their permission) such as in a bank. (2) A prohibited person just like it is today. (3) Essentially a submachine gun as it is described in 164.08. that has not been registered in accordance with 164.08 164.08 makes no mention of permission from anybody. It's just a simple form that must submitted annually. (4) That's contradictory. Even if registered, it sounds as though in this section you could be presumed to possess for an aggressive purpose. If the Attorney General does not define what " manifestly not aggressive or offensive" means, where would you look? It would seem logical to look at a prior Law dealing with the same subject. If you aren't trespassing while in possession of an MG, if you aren't a convicted felon, and if you've registered it with the State, then your purpose is not "manifestly not aggressive or offensive". Since we don't currently have State registration, it seems like all that's left is trespassing and being a felon. So I think that kind of knocks out the "manifestly not aggressive or offensive" section of 941.27(2). If that's the case, then it appears that it negates the police authorization section in 941.26(3). I'm still not sure how to look at the pistol cartridges thing since we currently don't have any State registration. No matter how you look at it, from current Law or past Law, and leaving the "pistol caliber" element out of the equation, ATF requiring a Law Letter for rifle caliber MG's and belt-feds is utter bullshit. And this is how the ATF lawyers decide to interpret Wisconsin Law? I wouldn't let those correspondence course educated lawyers represent me for a parking ticket defense. A high school debate team could run circles around these idiots. I know that I've done a poor job of presenting this, but in the hands of a sharp lawyer, I really believe he could make some headway. The optimal solution would be for the Legislature to clean up this mess. In the meantime AG Van Hollen really needs to revisit his opinion and hopefully interpret it to create a more favorable environment for WI MG owners. On another topic, in section 941.27 another exception to the police chief authorization is the "possession of a machine gun for scientific purpose". Nowhere in the Statute does it define what a scientific purpose is. If I'm a reloader, possess a chronograph and ballistic gel and want to test various ballistic properties of different bullets and loads, is that a "scientific purpose."? How about if I also possess a suppressor for the MG and a sound meter and I want to calculate if the dB's rise as the suppressor heats up from rapid sustained fire? Does it have to be a commissioned research study from some recognized organization or can I do it for personal reasons such as writing an article which I'll submit and hopefully have published by some magazine? Or will the ATF again interpret the State's definition of "scientific purpose" to that of their choosing and effectively close that option in all but the strictest of circumstances? |
|
Quoted:
How do you interpret "adapted" as it relates to machine guns chambered in a pistol caliber? Does adapted mean manufactured by the original company? Or does this refer to an aftermarket type of gunsmithing? IANAL. However, in 1933, it seems that "adapting" may have held a different meaning than today. Strictly speaking: a·daptVerb/əˈdapt/ 1. Make (something) suitable for a new use or purpose; modify. 2. Become adjusted to new conditions Nothing in the dictionary definition would imply the creation or manufacture of a device as "adapting". Modifications on the other hand..... would most certainly be adapting. Either way, I agree that the existing law is arcane, and barely understandable in it's current form. At one time, it had many supporting definitions and statutes. I would fully support making MGs legal provided they comply with NFA licensing requirements, similar to the SBR law. Another note: We can write the AG all we want, but it will do no good. The AG has no ability to make or change laws. I guess he may be able to decide personally that certain laws are un-enforceable, but that does us no good. |
|
Quoted:
Some advice: If you're not a lawyer, don't interpret the law yourself. It almost always ends poorly. The same could be said for lawyers also. Look what happened when a Federal agency (ATF) took it upon themselves to interpret a State law. That sure ended poorly. I don't think anyone here has suggested that they would walk into a courtroom or AG Van Hollen' office and argued their interpretation of the law. This forum , and the internet in general, is full of internet lawyers (of which I plead guilty) who like to brainstorm about the law. So long as one is not counseling or offering legal advice to others, there is nothing wrong about discussing their opinions and interpretations of the law. If we always took everything at face value and never questioned anything, we'd live in a very boring world. There would be a lot less traffic on the WIHTF without all the internet lawyering going on here. It makes for some lively (and sometimes heated) discussion. |
|
Quoted:
The wording is copied from the Uniform Machine Gun Act of 1933. http://legis.wisconsin.gov/statutes/1973/73stat0164.pdf The wording may be copied but they forgot the comma changing the meaning for the casual observer...
|
|
Quoted:
The wording may be copied but they forgot the comma changing the meaning for the casual observer...
"casual observer"? Absent any evidence to the contrary, it is what it is. Which is a statement with no comma. Which thusly has a completely different meaning. That is, of course, in my non-esquire humble opinion.
|
|
Quoted:
Quoted:
"casual observer"? Absent any evidence to the contrary, it is what it is. Which is a statement with no comma. Which thusly has a completely different meaning. ... Lucky for us, there is evidence to the contrary.... 
"us"? And what might that evidence to the contrary be? There is more than just a comma different between the old statue and the new one. What evidence is there that this was not intentional? Clearly portions of the old law were removed. Old law: 164.06 Exceptions. Nothing contained in this chapter shall prohibit or- interfere with the manufacture for, and sale of', machine guns to the military forces or the peace officers of the United States of of' any political subdivision thereof, or the transportation required for that purpose ; the possession of' a machine gun for scientific purpose, or the possession of a machine gun not usable as a weapon and possessed as a curiosity, ornament, or keepsake ; the possession of 'a machine gun other than one adapted to use pistol cartridges of 30 ( .30 in or 7 .63 mm.) of larger caliber, for a purpose manifestly not aggressive or, offensive New Law (2) EXCEPTIONS. Sections 941.25 and 941.26 shall not prohibit or interfere with the manufacture for, and sale of, machine guns to the military forces or the peace officers of the United States or of any political subdivision thereof, or the transportation required for that purpose; the possession of a machine gun for scientific purpose, or the possession of a machine gun not usable as a weapon and possessed as a curiosity, ornament or keepsake; or the possession of a machine gun other than one adapted to use pistol cartridges for a purpose manifestly not aggressive or offensive. |
|
Quoted:
There is more than just a comma different between the old statue and the new one. What evidence is there that this was not intentional? You may be right... The intention may have been to only require authorization if you were going to use it for a purpose manifestly not aggressive or, offensive. Those who penned the language may have been realists and as such recognized that anyone who intended to use it for a manifestly aggressive or offensive purpose would never seek authorization anyway so requiring it would be futile.... 
Of course I am not in the camp which believes this to be the case... 
I believe it is a case of hastily written language which those who penned it understood but because of the lack of punctuation is being too easily misread. |
|
Quoted:
You may be right... The intention may have been to only require authorization if you were going to use it for a purpose manifestly not aggressive or, offensive. Those who penned the language may have been realists and as such recognized that anyone who intended to use it for a manifestly aggressive or offensive purpose would never seek authorization anyway so requiring it would be futile....
Sarcasm duly noted. 
Another point, the old law specifical declared what was, and what not, deemed to be "agressive or offensive". That language was also removed (but was located in a different statute, not the one noted above). |
|
Quoted:
Sarcasm duly noted.
Another point, the old law specifical declared what was, and what not, deemed to be "agressive or offensive". That language was also removed (but was located in a different statute, not the one noted above). WI would have been far better off simply deferring to the Federal language with NFA. |