Over at Subguns.com, an accusation that politicians are registering machine guns and selling them to finance their campaigns. The whole theory seems to hinge on this:
The Hughes Amendment had an interesting side effect. If you read Chapter 18, 922 (o) it is not a ban per say but demands Government approval for the manufacture and sale of a machine gun after May 19,1986, the date of enactment. There have been rumors floating around for years that certain politicians have been registering machineguns and selling them.Â
922(o) is pretty short and sweet:
(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.
But you can’t really just read 922(o), which is part of the United States Code, and represents an Act of Congress. You also have to look at Code of Federal Regulations Title 27, particularly 479 Subpart G, which are all the regulations promulgated by ATF under its authority granted by Congress for the purpose of registration of machineguns. There is no Congress Critter exception to the ban. It has been completely unlawful to register a fully transferrable firearm since May 19, 1986. If this is going on, it’s illegal, and people could go to jail. Color me skeptical, though.
That’s true, but any regulations made by the ATF can be unmade by the ATF. (I am not saying that it is happening, just that the ATF can always change the regulations.)
They can, but there’s a rule making process that has to be gone through to change CFR. That includes a public comment period, and various other things. We’ll be seeing this process happen in April with the National Park gun ban when the process takes place for that. Federal agencies can’t change their regulations on the sly.
Actually, it is not unlawful. The ATF has discretinary authority; and they have used that discretinary authority to promulgate what is technically speaking an executive administrative procedure.
Administrative procedures are not technically laws; they are the instruments of policy, of the executive branch of government; so although they often have the effective force of law, they have a different legal status.
IN this case, the ATFs authority is clear; they have chosen to deny all new registrations of machine guns; which is lawful under the FOPA ’86. They could chose to allow it if they wanted to; which would also be lawful. You can still file the paperwork to register a newly manufactured machine gun as transferable; it will just automatically be denied.
This is complicated somewhat however by several rulings over the past few years that make it clear that ATF administrative rulings do NOT have the force of law, unless backed by a court order.
That’s a very important distinction. For one thing, you can’t have your property seized without a court order. For another, court orders can be appealed and overturned (executive rulings cannot).