A 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.”