"Unlimited Potential for Insidious Mischief"

Perusing Clayton Cramer's blog this evening, I stumbled across this statement:

The M249 was so light and cute that I could see having one, if the 1986 ban on new manufacture of machine guns for civilians ever gets struck down by the Supreme Court. If that seems improbable--see U.S. v. Rock Island Armory (C.D.Ill.1991)--where the government lost such a case, and decided not to appeal, for fear that they would lose on appeal, too.

Well, I've made a (masochistic) hobby out of reading court cases, so I clicked on through (it's a .txt file) and read that very well annotated and referenced 1991 District Court decision by Judge Michael M. Mihm, Chief Judge of the Central District of Illinois at that time. I don't know how I missed this one. It's all over the web. A somewhat more readable HTML version is available here.

The long and short of it is that Rock Island Armory and one David R. Reese were charged with illegally manufacturing machineguns for non-government use in 1987 and 1988 after passage the 1986 ban on all new machineguns for private possession that was tacked onto the Firearm Owner Protection Act (FOPA). Judge Mihm dismissed the charges, saying after a long exposition on the precedents:

In sum, since enactment of 18 U.S.C. sec. 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional.

In other words, the $200 transfer tax was constitutional only so long as the government was actually collecting revenue. When the law changed banning any trade in new machineguns, that transfer tax on new machineguns became moot, and the law no longer was constitutional. His argument is quite logical and convincing, and contains many citations from the original congressional debates over the 1934 National Firearms Act before its passage.

Now the interesting thing, as Clayton pointed out, is that the .gov didn't appeal. However, several other post-'86 machine gun cases have gone to the appeals courts where Rock Island has been brought up as precedent. Of course, in none of them did the courts do or even refer to the research performed by Judge Mihm, and they, almost uniformly, found for the State rather than the defendant.

The best dissent I've read concerning this comes from U.S. v. Ardoin and Judge Jacques Loeb Wiener, Jr. He wrote in part:

Until the enactment of section 922(o) of the FOPA, a citizen could legally make, transfer, or possess a machine gun, as long as he complied with the relevant registration and tax provisions of the NFA. Simply put, since 1934 the NFA has said to such a citizen, "You may manufacture, transfer, or possess a machine gun if (but only if) you register and pay taxes on it." Then along came section 922(o) of the FOPA (some fifty-two years later) and declared to that same citizen, "You may not manufacture, possess, or transfer machine guns - period." What sense does the NFA make now? The BATF operates as though Congress has passed two separate laws each criminalizing the mere possession of machine guns, leaving the BATF with the discretion to prosecute citizens' possession under either statute (or both). But that is not - and cannot be - the case.

There is no evidence that Congress ever adverted to the effect that the enactment of section 922(o) would have on related provisions of the NFA. But undeniably the enactment of section 922(o) did affect the NFA - enormously. Because the NFA forbids the BATF to register and accept taxes for illegal firearms,18 the enactment of section 922(o) - which basically made the mere possession of machine guns by private citizens illegal - rendered the extensive registration and tax provisions of the NFA essentially meaningless. Indeed, the NFA's regulation of machine gun-ownership by private citizens was made instantly obsolete by the advent of the FOPA. There is no longer any place for those provisions in the present legislative scheme for regulation of most prospective machine gun-owners. Their vestigial existence on the statute books analogizes perfectly to the human appendix: no useful function whatsoever, but unlimited potential for insidious mischief.

Moreover, section 922(o) reflects Congress' judgment concerning the correct statutory formulation and the appropriate level of punishment for mere possession of a machine gun. Thus, if we uphold the continued application of the NFA to citizens who transfer, make, and possess machine guns))even though the NFA no longer serves any revenue-raising purpose))we are altering that congressional judgment. Why then does the BATF continue to prosecute citizens under NFA solely for the possession of machine guns, rather than resorting to section 922(o), which Congress expressly designed for that purpose? Perhaps because the statutory maximum fines for violating the NFA are greater than those provided under the FOPA. More likely, BATF agents and prosecutors find it easier to get convictions under the NFA, both because it appears to have an easier mens rea requirement, and because the laundry list of possible statutory violations is so very long. But Congress clearly did not intend for its passage of the FOPA to transform the preexisting NFA into a more severe ban against the simple possession of machine guns, for such a mutation of the NFA makes section 922(o) of the FOPA superfluous: what the BATF is supposed to do under the FOPA can be done more easily (and with the majority's blessing) under the "new," transmuted NFA, which has been administratively (and now jurisprudentially) shorn of the registration and taxation provisions that once were its whole raison d'etre.

The obsolescence of the NFA provisions at issue here is also exposed by the fact that - although expressly enacted to raise revenues from private citizens - those provisions no longer raise any revenue from the possession, transfer, and making of machine guns by private citizens. The suggestion that a tax measure can somehow have continued vitality when it no longer taxes certainly tests one's imagination. Although implied repeals are disfavored, I firmly believe that the sections of the NFA at issue here are so utterly irreconcilable with section 922(o) of the FOPA as a means of regulating private ownership of machine guns that they were impliedly repealed by FOPA's passage: with respect to the regulation of machine guns, the latter has superseded and supplanted the former.

I recommend you read the whole thing, as Judge Wiener illustrates very well how the other members of the Court, as 9^th Circuit Court Judge Alex Kozinski put it, "constitutionalize their personal preferences."

And Dave Kopel has a related piece from 2005 at The Volokh Conspiracy.

And bear in mind: This is the same law that put Hollis Wayne Fincher in jail.