A brief filed yesterday by the plaintiff in Hollis v. Holder revealed an approval letter that demonstrates that the ATF allowed the registration of a machine gun manufactured after May 19, 1986, in apparent violation of federal law. The Hughes Amendment, passed in 1986 as part of the Firearm Owners Protection Act and codified into the Gun Control Act of 1968 as 922(o), stipulates:

(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.

The ATF has long held publicly that any transfer of a post-ban machine gun to a civilian is illegal, although a plain reading of 922(o)(1)(A) would presumably allow the agency to authorize such transactions. But the ATF letter filed in the Hollis brief states:

Dear Mr.[REDACTED]

This concerns the Stemple M60 machinegun, serial number [REDACTED,] which was registered to you on an ATF Form 4 application, dated [REDACTED]. This is to advise you that the restrictions on the possession of machineguns manufactured on or after May 19, 1986, as contained in Title 18, United States Code, section 922(o), apply to your firearm. This section generally prohibits the possession of machineguns manufactured after that date except for weapons transferred to government agencies for official use.

We have determined that your firearm was actually manufactured after May 19, 1986. The actual date of manufacture did not come to our attention until after we approved its transfer to you. Since we approved the transfer, you may continue to possess the firearm. However, pursuant to section 922(o), we will not approve any future transfers except to government entities for official use.

Sincerely,

Wayne Miller

Chief, National Firearms Act Branch

Hollis is one of two cases (the other being Watson v. Holder in Pennsylvania) regarding the ATF’s approvals and then reversals last year for trusts to build new machine guns. The National Firearms Act of 1934 includes trusts in its restrictions, but the GCA does not. After the ATF revealed that it did not consider a trust to be a person, a number of trusts submitted forms to build new machine guns, since 922(o) prohibits only persons, not trusts.

The cases pending in Texas and Pennsylvania allege that the NFA and 922(o) violate the Second Amendment, as Heller made clear that the government did not have the authority to ban an entire class of weapons. The cases further allege that the ATF violated the law by rescinding the approvals, since the ATF insisted that trusts were persons, a position contrary to the wording of 922(o). Also at issue are the plaintiffs’ equal protection under the law, as the Stemple M60 letter demonstrates. Hollis is seeking discovery to determine what other machine guns falling under 922(o) have been approved by the ATF.

More information, including all the briefs in both cases, can be found in this thread on AR15.com.