Hugh's Amendment legal challenge!

[1096369fred]

I'm not getting my hopes up yet.... But imagine a time machine back to pre May 1986! I would likely spend about half of my meager annual paycheck.... $200 at a time!!!

http://www.thetruthaboutguns.com/201...-machine-guns/

[dsnover]

This actually looks legit, and well-laid out.

Seems the ATF issued the stamp(s), and then tried to revoke.

http://www.scribd.com/doc/245057730/...lder-Complaint

[knight0334]

Nicely written, although a bit more precedence should have been added.

However, I seriously doubt SCOTUS would find in a favorable light.

[JoshIronshaft]

I'm not putting any money on it, but it would be cool if something came of it, but then I bet you would see a lot of changes relating to trusts and how they're looked at it.

[wanneroo]

I don't know that the trust angle is the way to tackle this because you might get back an answer we will not like.

I think the only likely way is to tackle it with changing the law rather than hoping a court will overturn it.

[Nate7667]

I'm not putting any money on it, but it would be cool if something came of it, but then I bet you would see a lot of changes relating to trusts and how they're looked at it.

I see something similar happening with this as what started 41P

"wait....common tax paying citizens can buy this stuff with out prints/photos/sign-offs?!?!"

[bogey1]

Weren't corporations deemed as people? One reason the IRS came after ME, not my corp.

[GunLawyer001]

I wondered when this scam would show up on PAFOA.

This is yet another example of people thinking that they are smarter than they are, and failing to do the work to examine all of the parts of the problem.

The primary basis for this lawsuit is the absence of the word "trust" from one of the definitions of "persons". Because 922(o) only makes it illegal for "persons" to possess post-86 MG's (except for police, military, and special cases like Special Occupational Taxpayers who are authorized to possess them), the theory is that trusts are allowed to make and possess them.

Problem is, the wording of 922(o) is similar to the wording that bars Prohibited Persons from possessing any firearms, and the practical effect is that EVEN IF a non-SOT trust could make and possess a post-86 MG, there are no human beings allowed to possess them.

It's not about whether there's a "transfer" when the agents take custody of property of the principal; there isn't a transfer. That's a red herring. But it's clear that they "possess" the MG's, and it doesn't pass the straight-face test to claim that you don't possess the gun in your hands. If you're prohibited from possession, that means that you can't even go shooting if the owner of the gun is standing right there with you, maintaining "custody and control".

Let's say that you own an FFL/SOT that's authorized by the license to possess a post-86 MG, as well as all other firearms. Can you hire a guy who has a disabling criminal conviction, and allow him to possess the company MG, or any of the company guns?

Nope.

The SOT special status doesn't nullify the statutory prohibition on possession for the individual employee. Nor does any "trust loophole" supersede the clear prohibition on possession by "persons".

If you have a misdemeanor domestic violence conviction, can you set up a trust and then legally possess guns?

Nope. Same principle.

Here are the statutes, which are clear enough for all but the most rabid believers:

===============================

922(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)). . . . .
. . .
. . .
. . .
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

===============================

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.

===============================

It's also worth looking at § 925, which lays out some exemptions, but nothing that helps either the prohibited employee of an FFL to possess firearms, or any natural person (a human being) to posses a post-86 MG through a trust.

As for relying on Heller to strike down all or part of the NFA or the GCA or FOPA, that's not going to fly. Heller helpfully tells us that the 2nd Amendment, like every other Amendment that refers to the People, is an individual liberty. That's great. But they explicitly refused to extend the full protection to unusual and particularly dangerous weapons. Reliance on Heller will achieve nothing except give the courts an opportunity to firm up the exemption for MG's and bombs and such.

It's too early. The groundwork that the adults have been laying is not done for this. It's an embarrassing example of premature bad litigation.

[JoshIronshaft]

When I read your posts I hear classical music in the background, I smell rich mahogany and leather bound books, and I imagine a legal office brimming with the accoutrement of a lifetime of experience and wisdom.

Great stuff.

[Kramer]

I see something similar happening with this as what started 41P

"wait....common tax paying citizens can buy this stuff with out prints/photos/sign-offs?!?!"

I have that bad feeling too.