Watson v. Holder: Second NFA Lawsuit Filed Challenging 922(o)
Following on the heels of the Hollis v Holder lawsuit filed in late October, Mississippi attorney Stephen Stamboulieh – along with additional counsel David Scott – have brought a second suit alleging that, through 18 U.S.C. §922(o), 26 U.S.C. § 5801 et seq. and the implementing regulations 27 C.F.R. § 479.105(a), the US government has overstepped their powers as provided for under Article I of the US Constitution and violate the Ninth and Tenth amendments by creating a de facto machine gun ban. Additionally, the suit claims, the regulations violate the plaintiff’s (and others’) Second Amendment rights. This is part of the case made in the Watson v. Holder complaint filed last week.
A twist on this case compared to the previously filed Hollis v Holder complaint is that the defendant, Ryan Watson, as a trustee of the Watson Family Gun Trust, had already made the 10.5″ barreled Palmetto State Armory (serial number LW001804) into a machine gun as per the Form 1 as approved by ATF official, Shannon Siviero. It was sometime after this that the ATF “changed their minds,” whited out the relevant portions of the approved From 1, and demanded that Watson “abandon or otherwise surrender” the machine gun and stamp. Following subsequent communications between Watson and the ATF (including a promise of no further criminal prosecution), Watson surrendered, under protest, the new machine gun to the ATF – although maintaining his ownership interest.
This demand for not only the plaintiff’s approved Form 1 and tax stamp (bought, paid for, and issued), but also the machine gun manufactured pursuant to that approval, is the basis for the charge of violating Watson’s Fifth Amendment rights
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. – Amendment V of the United States Constitution
In both cases, declaratory and injunctive relief is sought in the form of either declaring the laws and regulations noted above to be unconstitutional or, alternatively, to find that unincorporated trusts are not prohibited by 922(o) from manufacturing or possessing post-May 19, 1986 machine guns as individuals would be under the Hughes Amendment to the Firearms Owner Protection Act.
NFA Lawsuit Filed – Holder, Jones Summonsed
UDATE 11/24/2014: The DOJ has filed an Entry of Appearance naming Eric J. Soskin as counsel for the defendants.
UPDATE 11/5/2014: Holder and Jones have both been officially served with their summons as of 5 November, 2014 at 5:22AM. The 60-day clock is ticking.
We recently posted about the Mississippi attorney who was seeking crowd funding for a lawsuit or lawsuits to challenge certain aspects of the gun control regulations laid out in the National Firearms Act, Gun Control Act and associated legislation, ATF rulings, etc.
The complaint for declaratory and injunctive relief in Hollis v Holder et al. was filed yesterday with the goal of either declaring the de facto ban on machine guns to be unconstitutional or finding that 922(0) does not prohibit unincorporated trusts from manufacturing or posessing a machine gun manufactured after the 1986 date created by the Hughes Amendment to FOPA. From the introductory section of the Hollis v Holder complaint:
1. This is an action seeking declaratory and injunctive relief from 18 U.S.C. §922(o), 26 U.S.C. § 5801 et seq. and the implementing regulations 27 C.F.R. § 479.105(a). These statutory and regulatory provisions generally act as an unlawful de facto ban on the transfer or possession of a machine gun manufactured after May 19, 1986. By imposing such a ban on an entire class of weapons, the statutes and regulations exceed the power of the United States under Article I of the United States Constitution; violate the Second Amendment rights of the Plaintiff and all similarly situated individuals; violate the Ninth and Tenth Amendments and the United States Constitution’s principles of federalism and dual sovereignty; by 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.
2. Plaintiff seeks declaratory and injunctive relief against the unconstitutional provisions contained in 18 U.S.C. § 922(o), 26 U.S.C. § 5801 et seq. and 27 C.F.R. § 479.105(a); declaring the ban on machine guns unconstitutional under the Second, Ninth and Tenth Amendments and in violation of Article I of the United States Constitution and declaratory and injunctive relief prohibiting Defendants from unjustly taking property without Due Process.
3. In the alternative, Plaintiff seeks declaratory and injunctive relief finding that 18 U.S.C. § 922(o) 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 #RM34755.
The summons notifying recently-resigned Attorney General Eric Holder and BATFE directory B. Todd Jones of the lawsuit, has been issued and is available online specifying that if the defendants fail to respond within the 60 day deadline, judgment by default will be entered against them for the relief described above.
Mississippi Lawyer Accepting Crowd Funding Donations to Fight NFA
You may remember a while back when we shared some information about how the BATFE may have “accidentally” opened the machine gun registry.
This Prince Law Blog post provides most of the background, but the gist is this: Since 1986, thanks to the Hughes Amendment to the Firearm Owners Protection Act, “persons” have been disallowed from making new machine guns (922(o) reads, in part: “it shall be unlawful for any person to transfer or possess a machinegun [except] a machinegun that was lawfully possessed before the date this subsection takes effect“). In response to a request for clarification about a NICS check question, an ATF official noted that “Unlike individuals, corporations, partnerships, and associations; unincorporated trusts do not fall within the definition of “person” in the GCA.”
This caused Prince to reach the conclusion that “[P]ursuant to 26 U.S.C. 5812 and 5822, an unincorporated trust may lawfully transfer and make machineguns, as it is not a “person” for purposes of the GCA and Section 922 only applies to “persons” as defined by the GCA“. Word spread and some Form 1s were submitted on trusts to make new machine guns. For better or worse, the BATFE approved a number of them and, rumor has it, some of those approvals were acted on and new machine guns were made. And here we are today… with new Form 1s being categorically rejected, approved Form 1s (and, potentially, new machine guns) out in the wild with the BATFE saying “Oops! Our bad, can you send those back and not make machine guns with them?”
Now, Stephen D. Stamboulieh of Stamboulieh Law, PLLC has taken up the banner and is preparing to take the case(s) to court. Stamboulieh is seeking crowd funding donations through his GoFundMe effort titled Help Overturn 18 USC 922(o) & NFA. The effort has already raised nearly $29k of the $50k goal.
From the GoFundMe page: Continue reading
Pennsylvania Lawyer Claims ATF Determination Allows for New Machine Guns
Pennsylvania attorney Joshua Prince, Esq. is making a bold claim in his blog entry Did ATF’s Determination on NICS Checks Open the Door for Manufacture of New Machineguns for Trusts? that may be music to NFA enthusiasts’ ears.
In his post, Prince points out that, although the NFA regulations include language to include trusts under their purview, the 1968 Gun Control Act (GCA), codified in Title 18 of the United States Code, includes no such language. A 2013 inquiry by Dakota Silencer received an ATF response reading: “Unlike individuals, corporations, partnerships, and associations; unincorporated trusts do not fall within the definition of ‘person’ in the GCA.” As many already know, transfer by a person of a machine gun that was not registered before May 19, 1986 is forbidden by the Hughes Amendment to the Firearms Owners Protection ACT FOPA, which added subsection 922(0) to the law.
Prince’s conclusion is that:
[P]ursuant to 26 U.S.C. 5812 and 5822, an unincorporated trust may lawfully transfer and make machineguns, as it is not a “person” for purposes of the GCA and Section 922 only applies to “persons” as defined by the GCA.
This conclusion is Continue reading
Spring 2014 Knob Creek Machine Gun Shoot and Gun Show
The bi-annual Machine Gun Shoot at Knob Creek Gun Range in West Point, Kentucky is coming up in just a couple of weeks. The three-day event, held this year on April 11, 12 and 13, draws attendees from all over the globe to the gun range outside of Louisville. Attendees can witness the spectacle of several day and night shoots as dozens of full-auto weapons sling tons (literally) of lead down range. In addition to spectating at the reserved main firing line of NFA collectors and enthusiasts, attendees can rent machine guns to shoot, compete in a number of shooting competitions and find great deals at the gun show which features hundreds of dealers and individuals from all over.
General admission for the event is $15/day for adults and $5/day for children under 12. On-site camping is also available starting at $20 per person. Unlike in past years where attendees would have to worry about the weather causing issues with vehicular access to the range, the new bridge makes it virtually impossible to get flooded out. Please note that Saturday April 12 coincides with the the Kentucky Derby Festival kick-off celebration in Downtown Louisville, so plan for traffic and accommodations accordingly.
Find the full schedule for the spring 2014 KCR Machine Gun Shoot here. View Spring 2013 KCR Machine Gun Shoot photos here and watch the videos below. Continue reading
SWR, SilencerCo, Others Pull Ads from Recoil Magazine Over Comments
The latest “sporting purpose” comments over tactical weapons have sparked renewed new backlash against one firearms publication.
SWR/SilencerCo, in a recent blog posting, announced that they are pulling their ads from Recoil Magazine, stating that the have written to the editor to request that they “discontinue all scheduled advertising for both Silencerco and SWR products.”
The backlash comes after editorial comments by Recoil magazine that SWR/SilencerCo describes as “concerning the illegitimacy of a certain firearm ( and by extension, an entire class of firearms).” The text in question is as follows: Continue reading
