NFA/Hughes Amendment Challenge

[zdc1775]

So I ran across this interesting news story while browsing through Reddit today at lunch.

Here's the headline and some quotes from the article.

"Wyoming Man Sues For Right To Make His Own M16 Machine Gun"​

"Jake Stanley DeWilde filed a federal complaint in the U.S. District Court for Wyoming last week, asking for the court to issue a declaration against U.S. Attorney General Merrick Garland and the director of the Bureau of Alcohol, Tobacco, Firearms and Explosives."​

"DeWilde’s complaint says that on Dec. 8, 2022, he submitted an ATF form asking to make and register an M16 machine gun. But 12 days later, the ATF denied his application, citing federal law that forbids both the transfer and possession of machine guns."​

"These cases (referring to Heller and Bruen) together indicate that guns cannot be considered “dangerous and unusual,” and therefore legitimately unlawful if the guns are in “common use,” DeWilde says in his complaint."​

"DeWilde argues that because the M16 is in “common use” by the U.S. military, it should be made legal for the nation’s citizenry. He also argues that his Second Amendment right has been violated." ​

“Plaintiff desires to own an M16 machine gun for all lawful purposes, including defense of hearth and home and militia functions”​

I wonder if this might actually have a chance post-Bruen? I think his argument is as valid as any I have heard.

Personally I hope that the court rules in his favor but I am not holding my breath, and even if the lower court does I have a hard time seeing the circuit court agreeing.

Do any of you actually see this going anywhere?

To read the full complaint, here is a like to Court Listener

 

[JeffG]

In my mind, a firearm is a firearm. Yes, the argument is reasonable. Hobbling or banning possession of a firearm based on its rate of fire, caliber, magazine capacity is silly. The intent of the operator's use is the nexus of the problem. Criminals using a firearm will not in any way, be hampered by laws. The Knob Creek machine gun shoot is a perfect example. These collectors have paid not only huge purchase prices, but the appropriate taxes just to legally own and possess the gun. Legal gun owners by and large, do not commit crimes with their firearms, no matter what the configuration, caliber, magazine capacity or rate of fire. CRIMINALS DO!
The firefight scenes that Hollywood portrays are largely criminal! John Wick, Rambo, Assassins all of that stuff, is based on criminals using guns. How might a non gun person view gun use through the eye of Hollywood?

I know I am preaching to the choir here, but new shooters, and casual gun owners need to clearly understand these points.

I am sure there are many more points to be made here.

 

[beeenbag]

It seems this is the right time to attempt such lawsuits. We have been winning a good bit, especially with the bump stock ban being overturned, hopefully setting the precedent for the upcoming brace bans. I hope this case makes it to the supreme court before something happens and we dont have as 2A friendly justices.

 

[AlexanderA]

Personally I hope that the court rules in his favor but I am not holding my breath

This pretty much sums up the situation. It would be surprising indeed if the Court takes up a machine gun case.

In addition, the case seems to encompass two distinct issues: (a) the constitutionality of the NFA itself, and (b) the validity of the Hughes Amendment freeze on new machine guns. The problem is that in arguing against Hughes, you are tacitly admitting that the underlying NFA is OK. The plaintiff will have to choose one or the other.

 

[Spats McGee]

Well, this certainly caught my attention.

 

[General Geoff]

The plaintiff will have to choose one or the other.

By attempting to register a new machine gun build and suing based on ATF's rejection of his application, it certainly appears they are going after the Hughes Amendment only.


Baby steps, at least. Even just overturning that, would be a huge win. Not the ultimate prize, but probably far more politically defensible than striking down the entire NFA.

 

[12Bravo20]

We have been winning a good bit, especially with the bump stock ban being overturned

It was only a partial win for bump stocks. Only one district Court of Appeals ruled to overturn the bump stock ban. While three other district court of appeals have ruled to uphold the ban. Yes the decision by the 5th was a win, it was only a partial win. And at this point only the US Supreme Court can make a final decision on the bump stock ban since Appeals Courts have rule both for and against the ban.

 

[Aim1]

I just don't see SCOTUS being willing to cross that bridge.

 

[AlexanderA]

By attempting to register a new machine gun build and suing based on ATF's rejection of his application, it certainly appears they are going after the Hughes Amendment only.

It seems that way. By filing a Form 1 ("applying for permission"), they are acknowledging that the NFA exists and is valid. And even though they knew that the ATF would reject the application, no crime has been committed and the plaintiff is not in legal jeopardy. On the other hand, to challenge the NFA itself, someone would have to violate it and then appeal his conviction. If he loses, he may go to prison. So this plaintiff is following the safer course.

If the case makes it to the Supreme Court, the issue presented to the court would involve the Hughes Amendment. But in deciding that issue, the court could base its reasoning on the validity or invalidity of the NFA. Stranger things have happened. But I agree that the court is unlikely to take the case at all.

The more important thing right now to get them to rule on "assault weapon" bans. That's somewhat related, because if "assault weapon" bans are invalidated, that could be step toward examining the NFA as well.

 

[denton]

I wonder how the government can validate their position by claiming that machine guns are not in common use. The big reason they are not in common use is government regulation:

We forbid machine guns, because they are not in common use, and they are not in common use because we forbid them.

 

[PapaG]

In today’s progressively dominated climate, he doesn’t have a prayer. Hell, in my red state, (99/102 counties) we are dominated by three counties, all five governmental agencies(governor, senate, house, courts, and media) and have just been handed a bill that his obeseness will sign on arrival that makes most semi auto guns and magazines immediately illegal. Pizzing up a rope these days.

 

[Gun4Fun90]

I just don't see SCOTUS being willing to cross that bridge.

yeah I tend to agree with this. If it did get in front of scotus and they did ultimately rule on it I could see it having a fighting chance but I predict they will desperately try to avoid having to address it at all.

 

[TTv2]

I just don't see SCOTUS being willing to cross that bridge.

The case that overturned Roe v Wade says otherwise.

Now, if Scotus did take a 2A case dealing with a specific regulation of a class of firearms, that would be unprecedented since the Miller case in the 30s.

Hughes being struck down has a much higher chance of happening than the NFA being thrown out because between the NFA and Hughes machine guns were purchased and registered and there wasn't a mass crime wave, they were clearly arms in common use, and Hughes was intended to at some point 100 or more yrs after its passage under FOPA to effectively ban machine guns due to firearm wear and tear.

It was a clear violation of the 2nd Amendment and has so far never been heard by Scotus.

I think there's a good chance it does post Bruen.

 

[Phaedrus/69]

Stare decisis has gone out the window with this brazenly politicized court, so even something that was unthinkable for nearly a century might well come to pass now. We're in a post-Constitutional era now and all bets are off.

 

[Gun4Fun90]

The case that overturned Roe v Wade says otherwise.

Now, if Scotus did take a 2A case dealing with a specific regulation of a class of firearms, that would be unprecedented since the Miller case in the 30s.

Hughes being struck down has a much higher chance of happening than the NFA being thrown out because between the NFA and Hughes machine guns were purchased and registered and there wasn't a mass crime wave, they were clearly arms in common use, and Hughes was intended to at some point 100 or more yrs after its passage under FOPA to effectively ban machine guns due to firearm wear and tear.

It was a clear violation of the 2nd Amendment and has so far never been heard by Scotus.

I think there's a good chance it does post Bruen.

idk I mean I don’t think the Dobbs v. Jackson (roe v wade 2022 edition) is exactly analogous here. There was a very different background and reasoning there and while I won’t go into detail about why I think that because it would be off topic I do understand what you are getting at.

as for whether the Huges amendment or the NFA is more likely to be overturned by this court I will say that is a interesting question.

While I don’t think Bruin really helps all that much in either case (other than indicating this court is willing to hear 2a cases) Heller dose bode well for overturning the Huges amendment. Specifically the part about banning firearms in common use. But my worry there is they may be reluctant to hear that case specifically because “machine guns scary”

As for the NFA while I am skeptical about them willing to go after it whole sale (at least not right away) I do think they may be willing to go after the $200 tax specifically. There is lots of president for not being able to tax a right and I don’t actually think it would be all that controversial even in a ultra liberal city like I live in to get rid of the $200 fee.

I honestly think everything else that goes along with the fee like the fingerprints, and the background check and the (license/tax stamp/registration/paper work) they care about way more and they may even be able the rationalize it away while maintaining their anti gun stance by saying this isn’t about guns it’s about getting rid of inequality or racism or something.

That’s why I think if they want to start chipping away at the NFA starting with the $200 tax might be a safe place to start.

also the $200 tax is a good place to start because if you get rid of the tax it removes a lot of the justification for the rest of it and might set off a cascading set of dominos falling over.

That being said this is all just my opinion.

 

[zdc1775]

In addition, the case seems to encompass two distinct issues: (a) the constitutionality of the NFA itself, and (b) the validity of the Hughes Amendment freeze on new machine guns. The problem is that in arguing against Hughes, you are tacitly admitting that the underlying NFA is OK. The plaintiff will have to choose one or the other.

I agree but depending on the way it's argued in court it could go either way.

Well, this certainly caught my attention.

Mine too, and I hadn't seen it anywhere but on an MHI reddit group at that time so thought I should share to a wider audience.

It seems that way. By filing a Form 1 ("applying for permission"), they are acknowledging that the NFA exists and is valid. And even though they knew that the ATF would reject the application, no crime has been committed and the plaintiff is not in legal jeopardy. On the other hand, to challenge the NFA itself, someone would have to violate it and then appeal his conviction. If he loses, he may go to prison. So this plaintiff is following the safer course.

If the case makes it to the Supreme Court, the issue presented to the court would involve the Hughes Amendment. But in deciding that issue, the court could base its reasoning on the validity or invalidity of the NFA. Stranger things have happened. But I agree that the court is unlikely to take the case at all.

The more important thing right now to get them to rule on "assault weapon" bans. That's somewhat related, because if "assault weapon" bans are invalidated, that could be step toward examining the NFA as well.

I have to agree that he took the least aggressive path to challenge this, but that is probably the best decision as it gives him stronger footing in front of the court as he is in their eyes a "law abiding citizen" and not a law breaker trying to get off on a technicality or worse convicted criminal trying to get his sentence overturned.

And I believe that this case, if it can make it through higher level courts and be settled in the plaintiff's favor, would have an even greater impact than if the courts ruled assault weapons bans unconstitutional as it would all but guts the logic that the anti's use to try and justify the AWB's.

I wonder how the government can validate their position by claiming that machine guns are not in common use. The big reason they are not in common use is government regulation:

We forbid machine guns, because they are not in common use, and they are not in common use because we forbid them.

This is the most interesting part of the argument to me. I think he at least has a chance since he also uses the Miller ruling to show that SCOTUS has already said that weapons used by the military in war are protected by the Constitution and Heller to show that weapons "in common use" cannot be banned even if they didn't exist at the time the Constitution was ratified. And who is going to be willing to stand in front of a court and argue that machine guns are not "in common use" by militaries fighting wars.

While I don’t think Bruin really helps all that much in either case (other than indicating this court is willing to hear 2a cases) Heller dose bode well for overturning the Huges amendment. Specifically the part about banning firearms in common use. But my worry there is they may be reluctant to hear that case specifically because “machine guns scary”

I think that the biggest impact Bruen has on this case is SCOTUS new guidance to lower courts to rely only on "text and tradition" rather than the previous two step approach. It's hard to argue that an amendment to a law that has been in place for less time that the average American has been alive meets that standard.

As for the NFA while I am skeptical about them willing to go after it whole sale (at least not right away) I do think they may be willing to go after the $200 tax specifically. There is lots of president for not being able to tax a right and I don’t actually think it would be all that controversial even in a ultra liberal city like I live in to get rid of the $200 fee.

I honestly think everything else that goes along with the fee like the fingerprints, and the background check and the (license/tax stamp/registration/paper work) they care about way more and they may even be able the rationalize it away while maintaining their anti gun stance by saying this isn’t about guns it’s about getting rid of inequality or racism or something.

That’s why I think if they want to start chipping away at the NFA starting with the $200 tax might be a safe place to start.

also the $200 tax is a good place to start because if you get rid of the tax it removes a lot of the justification for the rest of it and might set off a cascading set of dominos falling over.

That being said this is all just my opinion.

I have to agree that using the Harper v. Virginia decision would be the best starting point to challenge the overall constitutionality of the NFA and that even if just the tax was ruled unconstitutional it would cause the entire system to fail on it's own.

 

[jmorris]

Baby steps, at least.

Every journey is one step after another. Be in it for the long game, they are.

 

[AlexanderA]

Heller does bode well for overturning the Hughes amendment. Specifically the part about banning firearms in common use. But my worry there is they may be reluctant to hear that case specifically because “machine guns scary”

Justice Scalia wrote the Heller opinion the way he did (negating the Militia Clause) precisely because he didn't want to legalize machine guns. (It says so right in the opinion.) Now, It's unclear whether he personally felt that way or whether he inserted that language to mollify Justice Kennedy, but the fact remains that it's in there.

To make progress on this issue, the Court would have to at least partially overrule Heller.

 

[N555]

Let them open the registry for a day I'll start with about two dozen full auto tax stamps.
When you can't get a revenuer to take your money, that system is broken.

 

[AlexanderA]

Let them open the registry for a day I'll start with about two dozen full auto tax stamps.
When you can't get a revenuer to take your money, that system is broken.

ATF would be swamped, that's for sure. Accordingly, you probably wouldn't get your approval back for a couple of years, at least.

The Hughes Amendment has had unforeseen consequences. One is that it created a pent-up demand, with an accompanying rise in prices. Prior to Hughes, you could have converted your AR-15 to full automatic, but few people did so. (The downside for doing so was that it didn't make the gun that much more effective, while subjecting it to registration, restrictions, and bureaucratic entanglements.)

The pre-Hughes MG world was a tiny slice of the broader gun community. That probably would not be true if Hughes was repealed or invalidated.

 

[CapnMac]

if you get rid of the tax it removes a lot of the justification for the rest of it and might set off a cascading set of dominos falling over.

That we are seeing any number of cases basically questioning if ATFE has the legal basis to simply type up definitions as if they are laws (a key element in the bumpstock decision) is a major change.

Originalists (esp. Thomas) will be irked by the notion that agents of the Executive branch (e.g. AFTE) get to create 'laws' in repudiation of the Legislative branch (and thus the structure of the Constitution itself). The Branches are meant to remain separate, and in contention (ref the Federalist Papers).

The other good thing, to my thinking, is the sheer number of these cases coming to court. Which means the status quo ante is forced into whak-a-mole contesting all these cases. (Which is, to my mind, aided and abetted, unwittingly, by all the random blue governors and state legislatures cobbling up all these absurd new rules, very few of them very well crafted, and often with blatant absurdities in them, near inviting dismissal.)

If, one of these cases successfully severs ATFE's ability to "legislate" via CFR, then that basically pulls the underpinning out from under near a century of ATFE rule-writing. We start these dominoes falling, and it's like to pull down many sacred cows and "resumed good" notions.

 

[Phaedrus/69]

It would be cool if the Hughe's Amendment was tossed, but it would suck to be the last guy to spend $25k on a Fleming sear!

 

[Will Munny]

Zero chance this goes anywhere. The powers that be do not want people to have any firearms, let alone modern fully automatic weapons.

 

[TTv2]

ATF would be swamped, that's for sure. Accordingly, you probably wouldn't get your approval back for a couple of years, at least.

The Hughes Amendment has had unforeseen consequences. One is that it created a pent-up demand, with an accompanying rise in prices. Prior to Hughes, you could have converted your AR-15 to full automatic, but few people did so. (The downside for doing so was that it didn't make the gun that much more effective, while subjecting it to registration, restrictions, and bureaucratic entanglements.)

The pre-Hughes MG world was a tiny slice of the broader gun community. That probably would not be true if Hughes was repealed or invalidated.

In the pre-Hughes world, how many Americans who were non Fudd gun owners who even knew that MG's were legal to purchase and register?

As a 90s kid, when I watched the first Terminator movie and Arnold is in the gun shop asking for an Uzi that is later seen firing in full auto, I thought that the Terminator had modified the Uzi to shoot full auto. It wasn't until about 10 years ago I learned that machine guns were still available in stores to buy until Hughes, I had thought that the NFA in the 30s banned them.

The advent of the internet has changed a lot of things and the days of gun shop hearsay no longer holds sway.

 

[AlexanderA]

In the pre-Hughes world, how many Americans who were non Fudd gun owners who even knew that MG's were legal to purchase and register?

I think quite a few were aware of the NFA. I remember the discussions around the gun shops, in 1968, about whether to take advantage of the MG amnesty. A lot of the WW2 veterans, who had brought MG's home in their duffel bags, didn't trust the government not to take the guns after they were registered.

Beginning in the 1930's, the $200 NFA tax was seen as prohibitive. So that alone made MG ownership a moot point for most people, so they tuned out. That mentality persisted even as inflation gradually eroded the role of the tax as a prohibition. It wasn't until the 1970's that MG ownership was seen as feasible by many people.

I bought my first MG (a Thompson) in 1975, and I had about a decade of collecting before the door was slammed shut by the Hughes Amendment. At least I got to keep what I had.