ScreenHunter_09 Aug. 21 18.47A Notice of Appeal was filed Tuesday in the United States District Court for the Northern District of Texas, Dallas Division, by plaintiff Jay Aubrey Isaac Hollis in his complaint against Attorney General Loretta Lynch and ATF Acting Director Thomas E. Brandon. The original Hollis v. Holder/Jones lawsuit, since renamed to reflect top level personnel changes, sought relief against the de facto ban on the transfer or possession of a machine gun manufactured after May 19, 1986. The appeal is necessary to keep the case going forward after the court issued an August 7 opinion and order siding with the government and dismissing the case.

The case, which received a boost when the Heller Foundation announced it would assist with the fundraising, was initially filed after ATF revoked an approved tax stamp, something Hollis argued it had no statutory authority to do. Still, what made him even think he could apply in the first place, what with the Hughes Amendment prohibition in the so-called Firearms Owners Protection Act stating “[I]t shall be unlawful for any person to transfer or possess a machinegun” made after the law took effect?

Hollis applied as trustee of a revocable living trust, and per his complaint, “The term ‘person’ is defined in the Gun Control Act (‘GCA’) to mean ‘any individual, corporation, company, association, firm, partnership, society, or joint stock company. The term person does not include an unincorporated trust.”

That contention is backed up with a supposedly “clarifying” opinion letter from the Chief of ATF’s Firearms Industry Programs Branch to an FFL stating “[u]nlike individuals, corporations, partnerships, and associations; unincorporated trusts do not fall within the definition of ‘person’ in the GCA.”

“Since by the BATFE’s own admission, the term ‘person’ in the GCA does not include an unincorporated trust, such a trust is not subject to the prohibition,” Hollis’ attorneys argued. “The Plaintiff … has had his Second Amendment rights violated and his property interest in a lawfully applied for and approved machinegun destroyed when the BATFE decided to unilaterally, arbitrarily and capriciously revoke his approval.”

“[B]y arbitrarily ‘disapproving’ an already approved Form 1, Defendants’ actions violate Plaintiff’s Fifth Amendment right to due process and is an unjust taking; and violate the Equal Protection clause of the Fourteenth Amendment,” the complaint elaborated. “Plaintiff seeks declaratory and injunctive relief against … unconstitutional provisions … declaring the ban on machine guns unconstitutional … and declaratory and injunctive relief prohibiting Defendants from unjustly taking property without Due Process.

“In the alternative, Plaintiff seeks declaratory and injunctive relief finding that [United States Code] does not prohibit an unincorporated trust from manufacturing or possessing a machinegun manufactured after May 19, 1986 and/or that the Defendants lack the authority and are thus prohibited from revoking or denying the validity of Plaintiff’s approved tax stamp,” the complaint declared.

With the court disagreeing, Hollis will now go to the Fifth Circuit Court.

“We are disappointed in the district court’s ruling,” attorney Stephen Stamboulieh tells The Truth About Guns. “However, we look forward to having the Fifth Circuit review the ruling.”

70 Responses to Dismissal of Post-1986 Machine Gun Ban Challenge Appealed

  1. I think we need to take baby steps on this, start by revoking the pre 86′, after newly manufactured automatic firearms can be proven to be trusted in the hands of meer mortals(yes I know thousands have already proven that) then we can push for complete unrestriction of automatic firearms, and all NFA items as well.

    • I also think it will take some type of relableing to really get any push. Similar to what the firearm industry has done with the “black rifles” marketing them as Modern Sporting Rifles instead of “assault rifles”. All of these restricted items need a face lift, silencers/suppressors need to be called “report mufflers”, SBRs/SBSs can be “compact longarms”? Part of the problem we have is the ones ignorant of firearms get fear struck in them when they hear the terms assault rifle, silencer, machine gun…their first thoughts are action movie stars walking through places mowing people down.

        • You will never change the minds of the antis. We could make all smokeless powder burn in rainbow colors, and shoot marshmallow projectiles into hungry childrens hands and they won’t budge, they’d just turn it around that the gun nuts want to give underprivileged children cavities and diabetes. What we need to do is change the opinions of the ignorant not the stupid(ignorant is not knowing, stupid is not knowing and not wanting to know ie. antis) to that of a less infamous action movie or video game view of firearms.

      • What’s wrong with SBR/SBS? The public doesn’t care about the length of the gun. To the clueless a “sawed off shotgun” is the ultimate in home defense.

      • The term “assault weapon” was delicately crafted to instill fear to get people to vote for a ban on guns mechanically identical to non “assault weapons”.
        It’s entire purpose was to make guns harder to get for non-prohibited persons; an infringement on the second amendment.

        The term silencer, suppressor, SBR, etc were not crafted for fear. Honestly they’re too technical for anti gun people anyway so I think it would be ridiculous to create a marketing campaign for them.

        • SBR/SBS maybe. But many anti-gun nut have fear struck in them when they hear suppressor/silencer, thier immediate thought is a rouge spy shooting people with no sound but a puff.

      • Remember that the renewal of the assault weapons ban is one of the top democratic platform priorities. Until we get them to listen to reason and let go of the evil black gun mystique we’ll never make any progress getting our rights restored.

        • “. . . renewal of the assault weapons ban is one of the top democratic platform priorities. Until we get them to listen to reason and let go of the evil black gun mystique we’ll never make any progress getting our rights restored.”

          I perceive UBC a higher priority. Nevertheless, I wonder if the AWB might be the soft-underbelly of the Anti agenda. That is, it may be an easier task to ridicule the AWB vs. UBC. E.g., pairs of images of an AR-15 alongside another rifle with a wood stock. A .223 cartridge next to each. A legend: “Why is this a sporting rifle while that is an “assault weapon”.

          Lots of opportunities to call out the cosmetic differences between AR-15s vs. others. E.g., the bayonet lug on an AR-15 vs. a Garand; “Why does this bayonet lug make this rifle an “Assault Weapon” but that rifle is not?

          I think our objective is to ridicule the veracity of the Anti message. If the public can begin to doubt that one thing the Antis are saying then perhaps other messages are also doubtful.

    • I wonder if the best approach would be to show Congress, and the voting public, what they are missing out on. E.g.:
      The Auto Burst Trigger System; yours for only $35
      http://www.firequest.com/AB225.html

      This, BumpFire and a few others provide giggle-switch rates of fire without ATF registration, without passing go and without paying $200.

      So, Congress, just how many $200 stamps are you NOT selling because of Mr. Hughes? So, ATF, just how many giggle-switches are you NOT regulating because you just don’t know that they are out there? General public, how many of your friends and neighbors have, or will soon acquire, a giggle-switch of their own? All without paying $200 to be spent on your Congressmen’s favorite boondoggles and without registering with the ATF?

      Well, never mind. When ISIS comes over the Mexican border bearing full-auto AK-47s, your friends and neighbors will be ready for them. No thanks to Congress; thanks only to Yankee ingenuity.

      The Antis will go foaming-at-the-mouth and introduce all sorts of gun-control regulation on giggle-switches that represent “loopholes” through the NFA ’34. We can’t anticipate exactly what they will be; however, we can expect to counter-attack.

      Likely the basis will be an attach on all semi-autos. That will be a threat to at least a majority of gun-owners. Every kid with a .22; every semi-auto handgun owner will be writing his Congressman.

      Another likely attack will be on attachments to semi-autos. These we can ridicule with the shoe-string semi- to full-auto converters. (Tie the trigger to the bolt on a semi-auto and the bolt will pull the trigger after each discharge.)

      • That “auto burst” thing is just another Hellfire, 20 years later. Won’t work if you hold the gun properly, and thus, you cannot shoot it accurately. Fun for about five minutes. Will not satiate the desire for real full-auto.

        • I wasn’t much interested in the efficacy of the device for marksmanship practice. Rather, as a means of demonstrating that the Hughes Amendment has been evaded to the detriment of the public Treasury.

    • Baby steps.

      First: Have the court certify that the initial prohibition is not a violation of the Constitution, if it is not a unanimous decision, then IT IS.

      Second: If the court certifies the 1986 act ban, then work to directly impeach the judges, and the replacement judges.

      Third: if the court refuses to certify the 1986 act, attack the severability, and demand reparations.

  2. The whole GCA 68/NFA/Hughes amendment group is unconstitutional

    I hope this case is won for the side of freedom…but I’m trying not to get my hopes up too high

    • I don’t understand why the pro-Machine Gun crowd doesn’t use the 1934 U.S. Attorney General’s own words against MGB`86:

      From the National Firearms Act: Hearings on H.R. 9066, Before the House Committee on Ways and Means, 73d Cong., 2d Sess. 6 (1934) [hereinafter 1934 House Firearms Hearings] comes:

      MR. LEWIS: “Lawyer though I am, I have never quite understood how the laws of the various States have been reconciled with the provision in our Constitution denying the privilege to the legislature to take away the right to carry arms. Concealed-weapon laws, of course, are familiar in the various States; there is a legal theory upon which we prohibit the carrying of weapons – the smaller weapons.”

      USAG CUMMINGS: “Do you have any doubt as to the power of the Government to deal with machine guns as they are transported in interstate commerce?”

      MR. LEWIS: “I hope the courts will find no doubt on a subject like this, General; but I was curious to know how we escaped that provision in the Constitution.”

      USAG CUMMINGS: “Oh, we do not attempt to escape it. We are dealing with another power, namely, the power of taxation, and of regulation under the interstate commerce clause. You see, if we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say, ‘We will tax the machine gun,’ and when you say that ‘the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated,’ you are easily within the law.”

      MR. LEWIS: “In other words, it does not amount to prohibition, but allows of regulation.”

      USAG CUMMINGS: “That is the idea. We have studied that very carefully.”

      [FYI:
      [“Lewis” was Congressman David John Lewis (D-MD-6)
      [“Cummings” was U.S. Attorney General Homer Stille Cummings

      You see: Cummings outwardly admitted that a ban on machine guns was UNconstitutional back in 1934; ergo: it was still UNconstitutional when that corrupt New Jersey congressman William John ‘Bill’ Hughes (D-NJ-2) got it into the ‘Firearms Owners Protection Act of 1986’ via Amendment 777 to H.R. 4332.

  3. Based on the rule of law, we will win. However, the government does not follow laws, nor its own rules and has influence over the courts. There is no other explanation for several of the recent decisions of the Supreme Court.

  4. The original NFA didn’t “ban” anything, just taxed it out of existence. Even then they knew they were pushing the constutional limits. But that’s the real danger with any law like this, not just firearm law, is what was highly questionable, becomes the new normal.

    • This is true and, additionally, one should never rely on how the ATF does or doesn’t interpret a rule to win a court case.

      Given that the testimony of the original NFA in ’34 showed that the authors had carefully looked at the possibility of an outright ban on NFA weapons and had decided that they didn’t have the constitutional authority to ban weapons, as it was believed that would infringe on the police powers of the several states. This is confirmed by the fact that, under the NFA, even if a citizen had paid the tax, if the state he lived in him prohibited the weapon then it was illegal for him to own.

      It is my decidedly layman’s opinion that the correct way to attack the Hughes amendment would be through the police powers question – the basis of such a case has legislative and judicial precedent.

      • Eh? Have you looked lately? It’s $20k for a crap condition lower, $12k for an RDIAS.

        Try $35k-$50k for a decent M-16.

        5280 Armory here has one they’ll let go for $75,000.

        • You may want to look up what the actual costs are right now. I remember a one-of-a-kind M16 going for $70k-$80k a few years ago, but you can get registered lowers or DIAS kits for less than $15k and complete, transferable M16s for under $20k. Don’t get me wrong, I’m ready to build my own legal full-auto rifles, but M16s are nowhere near as expensive as you claim. If you search “M16” on gunbroker right now, then click on “Machine Guns” on the left, you’ll see there are currently 11 listed for sale. The most expensive is $29k and there are six under $20k. Not that $20k is remotely close to being acceptable…

  5. While we’re all on the same side, you can bet that those with a fortune in full auto toys already are quietly hoping this case would just go away.

    • I don’t think that is as common as you might believe. I’d gladly give up my “investment” of what I paid for old examples to have modern MGs, and many collectors are the same. There are very few people who jealously guard their investment, and they tend to have very little interest in shooting sports.

      • You are correct sir. The savings on new FA toys would more than off-set any loss on the “rich man’s” current collection.

        Unless of course he’s finished “collecting.” Shuh! Like that ever happens.

      • There are plenty of MG owners who feel like you do, but the “stamp collector” crowd who is steaming mad at this even happening isn’t that small or quiet.

        Have a look around at subguns.com and see how long it takes to spot the crowd that really wants this case to go away.

        The usual refrain is “well you weren’t smart enough to jump on it pre-86″… Correct. I was 7 years old.

        When I first decided on the goal of a pre 86 M16, they were $8000. Once I got to the position in my life where I could manage $8000, they were (are) north of $25,000. And once / if I get to that point, they’ll likely be into 6 figures.

        The cost is outpacing inflation and any normal humans career advancement combined… I’m no trust fund kiddie, so my only hope in getting a $35,000 M16 is lotto at this point.

        There’s no way many collectors would ever give up this madness in appreciation of value.

        So the Hughes amendment is having exactly the effect that was intended. And while I know there are some NFA item folks like you out there, many seem to become very pro gun law suddenly when it comes up, or say it’s just good ol capitalism, but it’s as artificial as it gets.

        That said, I don’t think MG owners have to worry. I’m in my 30s and I’m damn sure I won’t see a Hughes repeal in my lifetime.

        • Yeah, there is no doubt that there are haters out there. Your comment about subguns.com is spot on. Any posts in favor of this lawsuit are whacked almost immediately, or after the haters have a chance to ridicule the poster first. The mods, owners and regular posters on subguns are no friend of NFA ownership by the common folk, they are a bunch of elitists who will throw anyone under the bus in order to protect their own investment.

    • These are the same kind of people that form HOAs, so that they can go around telling others how often they have to mow their lawn (or else). Don’t deal with them unless you have to, and spit on them every time you get a chance – they deserve nothing but ridicule and scorn.

    • Having shot full auto suppressed .300blk, I can assure you that, in fact, you do NEED one! Damn the costs to run, everyone should be able to experience that joy.

  6. Making a fully auto firearm in many cases is not so difficult. I’m certain acquiring one on the underground is not so difficult. As we see over and over, firearm laws which go against lawful citizens. My Gov’t tells me if I were to own one I would likely become a raging maniac, probably running booze in an old antique black car.

    • Making an AR full auto is easy. Heck, Brownells sells all the FCG parts needed for it. You can buy them for yourself and store them away if you want. But if you so much as begin to drill in that third hole in your lower then you have made an automatic weapon according to the ATF… and they will want to put you in PMITA prison.

  7. I personally have no desire to own a full auto firearm as I’m pretty sure I would be unable to afford to feed one. However, OUR Constitution reads ” … Shall not be infringed.” Note the (.) period that immediately follows the word, “INFRINGED”.
    [W3]

  8. When anti-gunners lose a court case, do they quit or do they keep appealing in infinitum?

    When anti-gunners lose in public opinion polls, do they stop pushing their agenda?

    When the anti-gunners fail to pass another gun control law, do they stop trying?

    When anti-gun groups show no appreciable wins do they close up shop and go away?

    We need to take a page from their playbook. They NEVER stop and they NEVER sleep… we must do the same. We fight on, appeal on, lobby on no matter how futile we see the fight.

    • It’s a generational fight. Better be teaching the next generation to pick it up, cuz we’re gonna need ’em.

      This NFA thing can be beat, but we are going to have to take it apart a piece at a time.

      1. Suppressors (I like “gun mufflers”) out of NFA
      2. SBR/SBS out of NFA
      3.New full auto production under NFA

      This is of course assuming that the whole ball of wax (civilization) doesn’t just come apart and then it won’t matter. FA for ALL!!!

  9. I don’t see any need for the Hughes at all. We’re talking about a system that already has a hassle on obtaining these products to begin with, without worrying about date of manufacture. The NFA would see so much more revenue, they’d be able to hire all of those “employees” that they need so desperately.

    On the positive note, I would love to have a P90 with a giggle switch.

    • Hughes amendment was a procedural screw job snuck in at the last minute with none other than Charles Rangel with the gavel in his hand. There’s a video on youtube where the theft of your rights is documented for all to see.

  10. I would love to see this go through if only to eliminate headaches on things like building historical guns. I want a suomi dammit!

  11. I often wonder: if the government has to stay out of “what you do in the privacy of your own home”, shouldn’t that principle apply to more than sex?

    Or to put it another way, if the government has no say in whether or not I may engage in “making babies”, shouldn’t it also have no say in whether or not I’m making guns?

      • Sure they haven’t, but the act of simply possessing an auto sear alone gets you a 10 year federal YMCA membership.

        I know some people have done it but also many have been caught.

        If there were any legal way, I’d be first in line but it’s not worth the risk.

        To date (and forseeably by my own predictive analysis team, persisting into the future) I haven’t murdered anyone with my semi autos, so I’m not sure what logic follows that if I got my hands on an MG that the rat ta tat tat would just be so intoxicating that I’d be compelled to take it public.

        I suppose the idea is that if someone stripped their shear bolt they could cause less carnage by jerking the trigger vs fingering an enthusiastic woodpecker, but Im not sure that that’s even the case. N aimed shots vs the same N number of sprayed shots actually seems to me to be less likely to result in mass death in the case of full auto.

        But these days, “people wouldn’t feel safe” is the only rationale needed by the court, so I have pretty much no hope for this case, even though I think it’s great that they’re trying, and commend their spunk.

        • >> Sure they haven’t, but the act of simply possessing an auto sear alone gets you a 10 year federal YMCA membership.

          Correct me if I’m wrong, but isn’t it possession of a drop-in auto sear that makes you subject to NFA immediately? I thought that you could possess regular mi-spec full-auto FCG, including a sear, with no issue, because it requires a different receiver to work – and it would be that different receiver that would have to be registered as an NFA item, not the sear.

        • int19h wrote:

          “I thought that you could possess regular mi-spec full-auto FCG, including a sear, with no issue, because it requires a different receiver to work”

          The possession of a “regular mi-spec full-auto FCG, including a sear” is considered as possession of a machine gun (see “M2 Kit” as a long-established legal principle).

  12. The worst thing about FOPA: Ronald Reagan was the one who signed it into law. As such, the balance of power shifted from the people, to the Fedgov military and the police. Curiously, Wasn’t this around the same time that our nations police started to armor-up? We the people get disarmed, and the police get stocked-up on automatic weapons?

  13. 5th Circuit is probably the best federal appellate court to argue that a gun law is unconstitutional because its much more conservative than the others….with that said I’m still crossing my fingers like hell.

  14. Here’ my prediction : this is actually about NFA trusts. The internet has educated the gun culture about class 2’s where that used to be a taboo thing. Sales have exploded as people find themselves able to click “add to cart” next to a Gemtech HALO(or whatever) and then e-file the paperwork. As it stands it’s just a matter of time before silencers/mufflers are downgraded to class 1 or deregulated alltogether.

    If NFA-trusts are allowed to begin purchasing new manufacture machine guns it will lead to a class 3 explosion that will drop the prices across the board, get reproduction guns on popular historical pieces, and see mundanes toting better fire-power than most world militarys, and there is no way in hell the feds are gonna allow that.

    So here’s what’s gonna happen- his appeal will lose. Then he’ll lose the next one. Then the Supreme Nine[men in black dresses] will refuse to hear the case. Case closed, federal supremacy must be absolute.

    • I suspect that if we lost NFA, maybe just Hughes, select-fire on an AR would be a $20-30 option. It wouldn’t surprise me, if it was NFA that fell, if semi-auto would be discontinued.

    • The way the law is structured and the ATF have been interpreting it is that Trusts are not people. If this lawsuit goes the way it should and I think probably will you wouldnt be able to buy a new MG for your trust. Your trust would have to Form 1 it just like you can with a short barrel rifle now.

  15. No matter which way a person looks at this machine gun prohibition, no matter what angle,,,it’s a clear, unconstitutional infringement of the second amendment. With our intentionally porous border, unregistered machine guns can walk into this country by the dozens. The prohibition does nothing except infringe on the rights of those who would never break the law in the first place.

    This is nothing but proof that the government fears the people.

  16. Don’t worry, this is clearly just another case of “inartful wording,” and the court will simply rewrite the ban like they did Ocare.

  17. How is the ATF even ruling on these cases? They responded to a recent FOIA request by claiming they are not an “agency.”

  18. The person commenting isn t kissing anyone s backside he s stating facts as he sees them which is something we are all entitled to do.The comment you made has nothing to do with the law being discussed rather it s whining because Alex has the means to buy this type of gun.

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