ATF to Reclassify Machineguns as Post-86?

[Bartholomew Roberts]

http://www.thetruthaboutguns.com/20...ne-guns-as-post-sample-and-non-transferrable/

This blog claims that ATF is planning to reclassify hundreds of transferable machineguns as Post-86 firearms. Apparently, they are looking at reclassifying every machinegun that was made prior to May 19, 1986; but not actually reported to ATF until after that date - even though these firearms have been in circulation for 30 years as transferable machineguns and the manufacturer has up to 48 hours to report making a firearm.

Apparently, the complete and absolute lack of crime involving these rare firearms demands some kind of crackdown.

 

[Lord Teapot]

i hear something, i think it may be the sound of a lame duck grasping at straws, but i could be mistaken.

 

[barnbwt]

Have fun pissing off a bunch of doctors and lawyers when you confiscate their +20k$ sears and lightning links, ATF

 

[lilguy]

My Senators will be elated. Do we need to react as with the attempted ammo ban recently?

 

[Ryanxia]

My Senators will be elated. Do we need to react as with the attempted ammo ban recently?

I think the bigger story was the 'reclassification' of chalk and flare rounds as Destructive Devices recently by the ATF. Taking a completely non-regulated item and criminalizing anyone who might own them. That will probably affect a lot more people than sears manufactured on one day by two or three companies.

 

[joem1945]

The antis MO is to attack a small group of people because they know the rest of the gun owners will either not care or take no notice and not raise a stink to stop them.

 

[Tirod]

In this case the issue is that they produced the affected parts within the calendar guidelines of the law, and as the tradition was already set, applied for the registration the next day.

It's an interesting technical point. What other issues similar to that will be raised in trial? Since Congress handed off regulation to the ATF it then goes to the court asking what their guidelines were - and pointing to how they originally handled it as the guideline.

Going back retroactively decades to make something illegal isn't usually allowed. It's as if they know they could lose but it's more smoke and mirrors to look like they are enforcing things.

I see stuff like this and wonder if they aren't handing over bad deals to the Administration just to see it go down in flames. Like, the M855 ban.

This administration is gone in calendar terms of months, they have to work with the American people into the unforeseen future. Who are they really setting up for failure?

I would consider the new ITAR regs to be far more important and far reaching. The government proposes to own the copyright to the drawings of the machine guns themselves. It's a taking without compensation.

That's going to be a pretty good court fight.

 

[lilguy]

Death by a 1000 cuts. Eating the animal one nibble at a time. It's been spoken about often. I read of the DD upgrade, now this. It only affects a small group of folk with minimal to no political push back. The ammo ban was too big of bite even for the ATF ,but they will increase their smaller attacks on our freedoms. It's what they are charged with doing, controlling us.

 

[Swing]

Is there any source beyond TTAG on this? All the references I'm see online link to that article and said article only cites "Our sources are telling us ..."

 

[alsaqr]

Is there any source beyond TTAG on this? All the references I'm see online link to that article and said article only cites "Our sources are telling us ..."

i can't find anything either. IMO: It's a blog on a website of questionable credibility.

 

[Bartholomew Roberts]

Yeah, I'm a bit skeptical of the source myself; but given the ongoing suit over possession of a post-86 machinegun by a trust, I can see where ATF might decide it needs to address that in order to present a coherent claim to the district court.

Honestly though, I think that if ATF did go that route, it would just create a worse legal situation for them. When you allow something for 30 years, it is a bit hard to retroactively revoke permission via regulatory action without invoking a strong argument in equity.

 

[Jim K]

They accepted the original registrations in 1986 without any qualms, so to change that now would certainly be an "ex post facto" situation, the passage of a law prohibiting some action that was legal at the time it was taken, then punishing the original violator under the new law. Ex post facto laws are specifically banned under the Constitution. While a BATFE regulation is not technically a law, it has the force of law and regulations are made under the authority of a law so I doubt any court, even one subservient to Obama, would buy that argument.

Jim

 

[Spats McGee]

I don't think this would qualify as ex post facto. Every statute, ordinance or regulation has an effective date. It isn't ex post facto for X to be legal today and illegal tomorrow. Otherwise, nothing could ever go from legal to illegal. Cocaine could not have been outlawed, for example. Ex post facto is: (1) X is legal today, and I do X today; then (2) X becomes illegal tomorrow, but I am charged with having done X today (when it was still legal).

 

[grter]

And the Lawers will continue to babble and babble just watch it unfold and don't say I didn't tell you so.

 

[Lord Teapot]

Death by a 1000 cuts. Eating the animal one nibble at a time. It's been spoken about often. I read of the DD upgrade, now this. It only affects a small group of folk with minimal to no political push back. The ammo ban was too big of bite even for the ATF ,but they will increase their smaller attacks on our freedoms. It's what they are charged with doing, controlling us.

the founders warned us about it, they even worded the 2nd amendment to prevent the 1000 cuts, by including 'infringed'. yet the word has been conveniently ignored. what a shame, cw 2.0 inbound.

 

[tyeo098]

This sounds like a response to the Hollis v Holder case, part of their argument was:

WELL HOW CAN YOU EXPLAIN ALL THESE POST-86 GUNS IN THE REGISTRY HMMM?!

If they reclassify them, they won't have to.

 

[DaisyCutter]

Hopefully a transgender owns one of the firearms in question, and which point it'll become untouchable in the current political climate.

 

[Jim K]

Hi, Spats,

Probably a bad idea to discuss law with a lawyer, but the illegal action here is possession of an unregistered NFA "firearm". If I understand correctly, the registration was done "yesterday" (1986) and accepted by BATFE, with the items entered into the NFRTR. Today, 2015, BATFE says that registration was not valid and the items are illegal.

My point is that the owner is being punished for not registering the item when he in fact did register and BATFE accepted that registration. BATFE now arbitrarily says the registration was not valid. The action - possession of the item - was legal at the time because the item was registered so its possession was not a crime. But now it is is not legal, and its possession from 1986 to the present was illegal and a crime. That appears to be ex post facto.

Jim

 

[Spats McGee]

Hi, Spats,

Probably a bad idea to discuss law with a lawyer, . . . .

Oh, come on now! Who could be more fun to discuss the law with than a lawyer?

but the illegal action here is possession of an unregistered NFA "firearm". If I understand correctly, the registration was done "yesterday" (1986) and accepted by BATFE, with the items entered into the NFRTR. Today, 2015, BATFE says that registration was not valid and the items are illegal.

My point is that the owner is being punished for not registering the item when he in fact did register and BATFE accepted that registration. BATFE now arbitrarily says the registration was not valid. The action - possession of the item - was legal at the time because the item was registered so its possession was not a crime. But now it is is not legal, and its possession from 1986 to the present was illegal and a crime. That appears to be ex post facto.

I understand your point, and it's certainly not a bad one. However, the question will be whether the folks who owned the registered NFA firearms are, in fact, being punished. Let's say I go out today and buy 35 lbs of some legal substance which is, in essence, synthetic cocaine. If the powers that be make it illegal to possess tomorrow, that's not ex post facto, unless they try to punish me for having it today. Whether or not the owners of these NFA firearms are being "punished" will be a question for a court to decide, if an when someone mounts a challenge.

 

[Midwest]

Hi, Spats,


My point is that the owner is being punished for not registering the item when he in fact did register and BATFE accepted that registration.

Isn't that what is called an estoppel ?
.

 

[Arizona_Mike]

I think the bigger story was the 'reclassification' of chalk and flare rounds as Destructive Devices recently by the ATF. Taking a completely non-regulated item and criminalizing anyone who might own them. That will probably affect a lot more people than sears manufactured on one day by two or three companies.

But it was Congress that did that. It just took the ATF 9 years to issue the regs. This would be much different.

 

[Arizona_Mike]

Isn't that what is called an estoppel ?
.

Considering how valuable transferables are this could be a taking.

Mike

PS. Back to the original question, I was recently told by a manufacturer that he mails all his within the deadline, not faxes them.

 

[Spats McGee]

Isn't that what is called an estoppel ?

Considering how valuable transferables are this could be a taking.

Both of the above are possible challenges to the reclassification.

Estoppel is the doctrine by which one party is "estopped" from raising an argument because of something they said or did earlier. In this case, "our side" would argue that the ATF is estopped from reclassifying the NFA firearms because they've already accepted them as valid for so long.

 

[lemaymiami]

After trying to read through the last few posts on this topic it came to me that my determination to do my best to stay out of courtrooms and away from lawyers (as much as possible....) when I left police work almost 20 years ago was a pretty good idea...

It's not that they're not good company but lawyers will lawyer.... but it's your fanny that will be on the front line in any legal dispute. Once or twice in 22 years as a cop I saw justice in some courtroom - but it was purely incidental to everything else going on at the time. Some of my best customers as a fishing guide are lawyers but they're kind enough not to talk shop when we're on the water.

 

[Colonel]

This sounds like a convenient way to provoke gun owners, and the organizations that represent them, to raise a ruckus to fight this, and for Obama and the rest to say, "OMIGAWD these people want to make MACHINE GUNS legal!!!" – while they also try to ban semi-autos, and thereby further confuse full-autos with semi-autos in the public's mind.

Divide and conquer.

Registration leads to confiscation.