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Thread: AG Opinion: Possession and transfer of a machine gun

  1. #1

    Post AG Opinion: Possession and transfer of a machine gun

    STATE OF MICHIGAN

    MIKE COX, ATTORNEY GENERAL

    FIREARMS:

    MICHIGAN PENAL CODE:

    Possession and transfer of a machine gun


    A person in Michigan may only possess a machine gun if it was lawfully possessed before May 19, 1986, and is properly registered under federal law. A person in Michigan may only transfer possession of a machine gun if authorized to do so by the federal Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

    Opinion No. 7183

    December 27, 2005

    Honorable Leon Drolet
    State Representative
    The Capitol
    Lansing, Michigan 48909

    You have asked whether a person[1] in Michigan may transfer possession of a federally registered machine gun.

    Possession of a machine gun by a person in Michigan is controlled by section 224 of the Michigan Penal Code, MCL 750.224:

    (1) A person shall not manufacture, sell, offer for sale, or possess any of the following:

    (a) A machine gun or firearm that shoots or is designed to shoot automatically more than 1 shot without manual reloading, by a single function of the trigger.

    * * *

    (3) Subsection (1) does not apply to any of the following:

    (a) A self-defense spray device as defined in section 224d.

    (b) A person manufacturing firearms, explosives, or munitions of war by virtue of a contract with a department of the government of the United States.

    (c) A person licensed by the secretary of the treasury of the United States or the secretary's delegate[[2]] to manufacture, sell, or possess a machine gun, or a device, weapon, cartridge, container, or contrivance described in subsection (1). [Emphasis added.]

    Of greatest relevance to your question is the exception stated in subsection 3(c) above. Michigan law, therefore, prohibits the possession of a machine gun by a person unless that person has been "licensed" by the United States Government to manufacture, sell, or possess the weapon.

    To determine how one becomes "licensed" by the federal government, the governing provision is subsection (o) of section 922 of the federal Firearms Owners' Protection Act of 1986 (FOPA), 18 USC 922(o). That subsection states in relevant part:

    (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--

    * * *

    (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect [effective May 19, 1986]. [18 USC 922(o)(1) and (2)(B).]

    After enactment of the FOPA, the Bureau of Alcohol, Tobacco, Firearms and Explosives promulgated implementing regulations permitting private ownership of a machine gun under specified circumstances. One of those regulations, 27 CFR 479.105, provides:

    (a) General. As provided by 26 U.S.C. 5812 and 26 U.S.C. 5822, an application to make or transfer a firearm shall be denied if the making, transfer, receipt, or possession of the firearm would place the maker or transferee in violation of
    law. . . .

    (b) Machine guns lawfully possessed prior to May 19, 1986. A machine gun possessed in compliance with the provisions of this part prior to May 19, 1986, may continue to be lawfully possessed by the person to whom the machine gun is registered and may, upon compliance with the provisions of this part, be lawfully transferred to and possessed by the transferee.

    Thus, under federal law, a person may possess a machine gun if that person lawfully possessed it before May 19, 1986, or if the person is one to whom a person in lawful possession lawfully transferred possession after that date. Another regulation, 27 CFR 479.84, generally prohibits the transfer of a firearm "unless an application, Form 4 (Firearms), Application for Transfer and Registration of Firearm, in duplicate, executed under the penalties of perjury to transfer the firearm and register it to the transferee has been filed with and approved by the Director [of the Bureau of Alcohol, Tobacco, Firearms and Explosives]." The regulation further requires that the application provide a complete description of the firearm and detailed identification of both parties to the transfer. Under the current Form 4 (copy attached), the transferee is required to certify whether the transferee has been convicted of or is facing criminal felony charges, whether the transferee is a fugitive, illegal alien, addicted to controlled substances, subject to a domestic relations restraining order, has received a military dishonorable discharge, has been adjudicated mentally defective, or has been convicted of domestic violence. An affirmative answer to any of these questions results in a denial of the application. Another regulation, 27 CFR 479.85, requires that the application include the transferee's photograph and set of fingerprints. The application must also be certified by the appropriate state or local law enforcement official as to whether the official has any information indicating that the machine gun will be used for other than a lawful purpose or that possession of the gun by the transferee would be in violation of state or federal law. 27 CFR 479.85. The Form 4 application is then reviewed by the Director and, if approved, is returned to the transferor who may then transfer the weapon. The transferee is required to retain the approved Form 4 application as proof that the firearm is properly registered. 27 CFR 479.86.

    In light of this federal regulatory background, it must next be determined whether this federal approval process culminates in the issuance of a "license" for purposes of the exception to the prohibition on the possession of a machine gun found in MCL 750.224.

    The foremost rule in construing a statute is to discern and give effect to the intent of the Legislature. Nastal v Henderson & Associates Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). The first step in ascertaining that intent is to review the language of the statute. The plain meaning of the critical word itself as well as its placement and purpose in the statutory scheme must be considered. Sun Valley Foods Co v Ward, 460 Mich 230, 236-237; 596 NW2d 119 (1999).

    The concept of licensure was discussed in Bostrom v Jennings, 326 Mich 146, 167; 40 NW2d 97 (1949) (Boyles, J. concurring):

    [A] license means "to confer on a person the right to do something which otherwise he would not have the right to do." 33 Am Jur, "Licenses," § 2, p 325.

    "The object of a license is to confer a right that does not exist without a license." Chilvers v. People, 11 Mich 43, 49.

    "The popular understanding of the word license undoubtedly is, a permission to do something which without the license would not be allowable. . . ." Youngblood v. Sexton, 32 Mich 406, 419 (20 Am Rep 654).

    The general understanding of a license is stated in Webster's New International Dictionary (2d ed), p 1425, as follows:

    "License, license, n * * * Authority or liberty given to do or forebear any act; permission to do something.

    Although the application and registration scheme provided for under the federal laws and regulations discussed above do not result in the issuance of a document labeled "license,"[3] the Form 4 application and resulting approval process bears all the hallmarks of licensure. The permission granted by the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives to transfer and possess a machine gun is the official authority required in order to avoid the federal proscription. Absent such approval, a person possessing a machine gun would be subject to serious sanctions, including prosecution and incarceration under both federal and state law. See 18 USC 924 and MCL 750.224(2).

    Moreover, there is no indication in the plain text of MCL 750.224 that the Legislature intended the word "license" to have a meaning other than its ordinary meaning as described by the Court in Bostrom. Its purpose in the statutory scheme appears to be to assure that only those persons receiving the proper authorization from the appropriate federal officials are allowed to manufacture, sell, or possess a machine gun. The statute does not focus on the particular title or name given to that authorizing instrument. Accordingly, the authorization provided under the federal regulatory scheme embodied in 18 USC 922(o) and related regulations constitutes a "license" within the meaning of MCL 750.224.[4]

    It is my opinion, therefore, that a person in Michigan may only possess a machine gun if it was lawfully possessed before May 19, 1986, and is properly registered under federal law. A person in Michigan may only transfer possession of a machine gun if authorized to do so by the federal Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

    MIKE COX
    Attorney General

    [1] Because your request only concerns private individuals, this opinion does not address any other classes of persons, such as law enforcement officers and military personnel.

    [2] The historical responsibility of the Secretary of Treasury of the United States to regulate firearms through the Bureau of Alcohol, Tobacco, Firearms and Explosives was transferred by Congress to the United States Attorney General by Public Law No 107-296, Title XI, Subtitle B, § 1112(f)(4), (6), 116 Stat 2276 (2002).

    [3] Compare 18 USC 923 (providing for the licensure of manufacturers, importers, dealers, and collectors).

    [4] OAG, 1977-1978, No 5210, p 189 (August 10, 1977), reached the opposite conclusion on this question. However, at the time that opinion was issued, MCL 750.224 allowed a person to possess a machine gun if the person was "duly licensed to manufacture, sell, or possess any machine gun." As that opinion noted, when MCL 750.224 was amended in 1959, the Legislature considered a companion bill to license the possession of machine guns. The opinion concluded that the failure to enact the bill was evidence that no law existed to allow for the possession of a machine gun. The opinion further noted that then existing federal law only provided for the registration and not the licensing of machine guns. As discussed above, Congress subsequently enacted legislation authorizing the Director of Alcohol, Tobacco, Firearms and Explosives to formally approve the possession of certain machine guns. Moreover, soon after the issuance of OAG No 5210, the Legislature amended MCL 750.224 by 1978 PA 564 to specifically recognize an exception for a license issued by the United States Government. The Attorney General was also quick to recognize that with the amendment, the machine gun prohibition in MCL 750.224 did not apply to a person duly licensed by the Secretary of Treasury of the United States or the Secretary's delegate to possess a machine gun. Letter opinion of the Attorney General to Phillip Price, Chief, National Firearms Act Branch, United States Department of Treasury, dated April 25, 1979. Accordingly, OAG No 5210 is superseded by this opinion.

    Link to opinion

  2. #2
    AG Opinion #7183 refers to MCL 250.224:

    750.224 Weapons; manufacture, sale, or possession as felony; exceptions; "muffler" or "silencer" defined.

    Sec. 224.

    (1) A person shall not manufacture, sell, offer for sale, or possess any of the following:

    (a) A machine gun or firearm that shoots or is designed to shoot automatically more than 1 shot without manual reloading, by a single function of the trigger.

    (b) A muffler or silencer.

    (c) A bomb or bombshell.

    (d) A blackjack, slungshot, billy, metallic knuckles, sand club, sand bag, or bludgeon.

    (e) A device, weapon, cartridge, container, or contrivance designed to render a person temporarily or permanently disabled by the ejection, release, or emission of a gas or other substance.

    (2) A person who violates subsection (1) is guilty of a felony, punishable by imprisonment for not more than 5 years, or a fine of not more than $2,500.00, or both.

    (3) Subsection (1) does not apply to any of the following:

    (a) A self-defense spray device as defined in section 224d.

    (b) A person manufacturing firearms, explosives, or munitions of war by virtue of a contract with a department of the government of the United States.

    (c) A person licensed by the secretary of the treasury of the United States or the secretary's delegate to manufacture, sell, or possess a machine gun, or a device, weapon, cartridge, container, or contrivance described in subsection (1).

    (4) As used in this chapter, "muffler" or "silencer" means 1 or more of the following:

    (a) A device for muffling, silencing, or deadening the report of a firearm.

    (b) A combination of parts, designed or redesigned, and intended for use in assembling or fabricating a muffler or silencer.

    (c) A part, designed or redesigned, and intended only for use in assembling or fabricating a muffler or silencer.


    History: 1931, Act 328, Eff. Sept. 18, 1931 ;-- CL 1948, 750.224 ;-- Am. 1959, Act 175, Eff. Mar. 19, 1960 ;-- Am. 1978, Act 564, Imd. Eff. Dec. 29, 1978 ;-- Am. 1980, Act 346, Eff. Mar. 31, 1981 ;-- Am. 1990, Act 321, Eff. Mar. 28, 1991 ;-- Am. 1991, Act 33, Imd. Eff. June 10, 1991
    Constitutionality: The Michigan supreme court held that the statute was not unconstitutionally vague as applied to the defendant in People v. Lynch, 410 Mich. 343, 301 N.W.2d 796 (1981).
    Link

    As I read it, silencers fall under the exact same law as machine guns. If the AG's opinion purports that machine guns can be possessed by anyone with an approved BATF form 4 application, then silencers can be legally possessed also.

    I would love to see Jim Simmons comment on this.... <nudge>

  3. #3
    The plain language of 750.224(3)(c) seems to allow anyone who goes through the Form 4 process to possess any of the items listed in 750.224(1), including a silencer. However, a court might interpret it to mean that a person can possess only whichever of the items comes under the federal license, to-wit: the full auto firearm.
    Last edited by Jim Simmons; 01-04-2006 at 10:16 AM.

  4. #4
    Can someone clarify the May 19, 1986 date. This appears to be the date that prior possession of a full auto firearm is grandfathered.

    Does this mean that no one today (short of law enforcement or manufacturers) can legally purchase a full auto firearm REGARDLESS of character or funds?

    So the only way any of us mortals can access said firearm is to have a one of these that is currently owned, transferred?

    That's definitely going to cause a short supply.

    I believe that this the law as it applies to Michigan. I understand that in other states, full auto possession is legal (Nevada?).
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  5. #5
    I am a Forum User
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    My understanding is that it is Federal Law that restricts private ownership of full-auto firearms made after 1986. Only governmental agencies are allowed post 1986 manufactured full-auto firearms.

  6. #6
    Quote Originally Posted by keyjockey
    Can someone clarify the May 19, 1986 date. This appears to be the date that prior possession of a full auto firearm is grandfathered.

    Does this mean that no one today (short of law enforcement or manufacturers) can legally purchase a full auto firearm REGARDLESS of character or funds?

    So the only way any of us mortals can access said firearm is to have a one of these that is currently owned, transferred?

    That's definitely going to cause a short supply.

    I believe that this the law as it applies to Michigan. I understand that in other states, full auto possession is legal (Nevada?).
    The restrictions on full-auto firearms are a result of the Hughes Amendment (99th Congress, H.AMDT.777). The amendment prohibited the general public from possessing fully-auto firearms manufactured after May 19, 1986. Rep. William Hughes (D-N.J.) proposed the amendment late in debate and at night when most of the members of the House were gone. Rep. Charles Rangel (D-N.Y.), a long proponent of gun control, was presiding over the House at that time and a voice vote was taken. Despite the fact that the bill appeared to fail, Rep. Rangel declared the amendment approved and it was incorporated into House Bill 4332. Once passing the House, H.R.4332 was incorporated in its entirety into S.49. The Senate passed the final S.49 on April 10, 1986 by voice vote and it was signed by the President on May 19, 1986.

    Thus was born the "Firearm Owners' Protection Act of 1986". Machine guns built prior to the ban are known as "transferables," and can still be bought, sold and owned by individuals. Machine guns manufactured AFTER the '86 ban are known as "post-86 dealer samples" and can only be possessed by Class III dealers or government agencies.
    Last edited by Knimrod; 01-04-2006 at 08:11 PM.

  7. #7
    Hmm,

    I'll try my LEOness and call the local ATF, and see what this means to them.

  8. #8
    Quote Originally Posted by Toxie
    Hmm,

    I'll try my LEOness and call the local ATF, and see what this means to them.
    Why bother the BATF?
    Their stance on full auto firearms is already known.
    This is a MICHIGAN issue. If you want to call someone, call the MSP in Lansing.
    Best selection of quality knives in Michigan!
    Centennial Co.
    centennialknife.com

  9. #9
    So Kurt, are you a Class 3 FFL? If not do you think you will know try to become one? I was browsing yesterday and came across Gem-tech when looking for "cans." Might be interested in something like that. No need to bother the neighbors when target shooting.

  10. #10
    No, I am not a class 3 dealer.
    I don't know if I will upgrade my license.
    I have read the opinion, but I don't see how suppressors fit into this?

    I predict MG prices will go up by 30-50% in the next 6-12 months.
    I also predict that most ranges/clubs won't let MG owners shoot at their ranges.
    Best selection of quality knives in Michigan!
    Centennial Co.
    centennialknife.com

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