August 2016

Court: Some Guns Not 2A Eligible

Todd Woodard

The 3rd Circuit Court of Appeals has issued a decision that upholds the exclusion of certain firearms from the protection of the 2nd Amendment. In 2014, Pennsylvania resident Ryan Watson filled out an application on behalf of a trust to make and register an M-16/style machine gun with the ATF. Despite a federal law prohibiting any individual from manufacturing or possessing a machine gun after 1986, the ATF inadvertently approved his application. Afterward, Watson had his machine gun manufactured. A month after that, he received a call from the ATF saying that his application had been “disapproved.”

Watson sued the ATF, claiming that the ATF had violated his 2nd Amendment rights. He argued that the federal law prohibiting the possession of a machine gun is unconstitutional under the 2nd Amendment, both by itself and as applied to him specifically, and that even if the law is constitutional, it doesn’t apply to a trust because a trust isn’t a person.

How did the court rule? That the law is constitutional because the 2nd Amendment does not protect the possession of machine guns. The court also ruled that trustees (and their trusts) are not exempt from this law.

In its decision, the 3rd Circuit court relied heavily on Heller, in which the Supreme Court ruled that the 2nd Amendment extends only to certain kinds of weapons such as those “in common use.” This is a concept that started in United States v. Miller, which was the first case to challenge the constitutionality of the NFA. The 3rd Circuit, Heller Court, and Miller Court all held that the 2nd Amendment excludes machine guns because “those weapons [are] not typically possessed by law-abiding citizens for lawful purposes.” The 3rd Circuit isn’t alone in this approach. The 6th Circuit, 7th Circuit, 8th Circuit, and D.C. Circuit have all come to similar conclusions.

Also, many folks who own or want to own National Firearms Act devices thought that executing their purchases through a trust might keep some provisions of the law from applying to them.

A trust can’t take legal action on its own, so a trustee must take legal action on behalf of the trust. The court held that because a trustee must always take action on behalf of a trust, the same rules that apply to persons apply to trusts.

The Court said that this rule is consistent with the intent of the law. If you didn’t count a trustee acting through a trust as a “person,” then people traditionally prohibited from possessing firearms (like convicted felons) could set up trusts and possess all the firearms they wanted.

I know — many of us are seeing red about this decision because it has been widely said in the gun-owning community that the 2nd Amendment exists to protect ownership of exactly these kinds of guns. If you’re not current on the writings of Franz Kafka, now would be a good time to brush up on what “Kafkaesque” means.

Comments (4)

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Posted by: Brooks3554 | February 15, 2017 9:19 PM    Report this comment

The Constitution does not limit citizens' ownership of weapons to those "in common use" -- even if it did, the only reason that there aren't millions of people with sub-machineguns, select-fire carbines, etc., is that government has made it impossible for most of us to own them by burdensome regulation and choking off the supply.

Most of our courts are staffed by leftist political hacks who read the Constitution to say what it would have, had they written it, rather than judges who take it for what says (and doesn't say). There was originally no restriction on the sort of arms and artillery anyone might own, and no reason for it now -- other than government trying to increase its power over us. Changes to the Constitution are made by amendment, not legislation, regulation and court rulings.

Posted by: Bisley | January 29, 2017 2:44 AM    Report this comment

I agree with NM Patriot almost completely. For me the issue is that the Congress must stop all pretenses and understand that the law surrounding firearms ownership must be totally reformed. If we all expect the Federal Courts to carry the ball for us we will continue to see irrational decisions emanating there from. We agree with Heller--good. We do not always agree with other decisions like this one-bad. Courts are always doing their best based on statute and precedence. The culprits here are the elected politicians who are smarmy, reticent, often corrupt, always open to special interest bribery, only interested in the voters for a few weeks each election cycle, will say anything to get (re)elected, etc. We all are to blame for sending these people back to "the swamp" and expecting them to act differently. I believe only organized recall campaigns can put the fear of God and the voters back into these clowns. It ain't easy to do. That's why the problems continue. That's also why a guy like the Trumpster got elected--to kick some ass and knock over the ant hill of indifference in Washington. In my home state of Michigan we recalled a couple of State legislators who listened to their party Chairperson more that the citizens they represented. Sound familiar? Their being recalled sent a shiver through the whole political structure that lasted for many years and resulted in a bunch of pro-citizen laws passed in opposition from the big shots in Lansing and elsewhere. So put aside all the nonsense name calling, roll up your sleeves, charge your cell batteries and get moving to recall the worst offenders in your part of the country.

Posted by: GreyFox 73 | December 6, 2016 3:35 PM    Report this comment

The founders made it perfectly clear that the citizenry is to equally armed to the military, which by today's standard is a select fire, magazine fed, intermediate cartridge carbine. If the government (the servant) does not want the people (the masters) to possess these weapons, they need only abandon them for the military and police. (Yeah,right.) It's time the traitors in the District of Criminals be held to the oath that they (and those of us with military experience) are sworn to uphold.

"when any form of government becomes destructive to these ends it is the right, it is the duty, of the people to alter or abolish it and institute new government..."

Posted by: NM Patriot | October 1, 2016 5:45 PM    Report this comment

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