In 1986, Congress enacted the Firearm Owners Protection Act (“FOPA”), which includes a ban on the transfer or possession of a machinegun not lawfully possessed and registered by May 19, 1986. 18 U.S.C. § 922(o). But before § 992(o) came 26 U.S.C § 5861(d), which makes it unlawful “to receive or possess a firearm which is not registered” (emphasis added). After FOPA, the Bureau of Alcohol,
Tobacco and Firearms (“ATF”) no longer accepted the registration of and payment of taxes on new machineguns. In stripping § 5861(d) of all revenue-raising potential, § 922(o) mooted § 5861(d)’s constitutional warrant under Congress’s Taxing Power.
In addition, § 922(o) renders § 5861(d)’s application a violation of appellant’s right to due process. Because ATF will not accept the registration of new machineguns, compliance with § 5861(d) is impossible. Section 5861(d) is thus in irreconcilable conflict with § 922(o), and since Congress enacted the latter after the former, it controls.
Amici also caution against what we perceive to be a concerning departure from fundamental rights jurisprudence. By refusing to present an analysis of why the regulation of machineguns is beyond the scope of the Second Amendment, the courts are glazing over an important constitutional question. If a class of arms can be regulated nearly to the point of a categorical ban—which machineguns may well be—the American people deserve to at least know the constitutional justification.
Ilya Shapiro and Matthew Larosiere
June 20, 2019
BRIEF OF THE CATO INSTITUTE AND FIREARMS POLICY COALITION AS AMICI CURIAE IN SUPPORT OF DEFENDANT-APPELLANT’S PETITION FOR REHEARING AND REHEARING EN BANC
[My translation is as follows:
The original constitutional justification for the regulation of machine guns was that it was a transfer tax ($200) each time the gun changed ownership. Since congress had the constitutional power to tax they could require the registration of machine guns to enable them to collect the taxes.
In 1986 congress declared the ATF shall no longer accept registration and taxation of new machine guns. This removed the possibility of collecting taxes on new machine guns. This means that the original constitutional justification for the regulation of machine guns no longer exists.
Hence, we, the people, are entitled to either the ability to purchase new machine guns or a constitutional justification as to why not.
I did not expect a challenge to machine gun law for at least several more years. I hope it’s not too soon. I would have preferred it wait until Trump has appointed another SCOTUS justice or two and we had a ruling that said semiautomatic rifles were protected.
We live in interesting times.—Joe]
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