[00:00:00] Speaker 03:
OK, it's 12 o'clock.

[00:00:01] Speaker 03:
And our last argument that we'll be hearing today is Doe versus Biden, appeal number 22-1197.

[00:00:10] Speaker 03:
Mr. Magg?

[00:00:11] Speaker 03:
Thank you, Your Honor.

[00:00:12] Speaker 03:
You've reserved five minutes, correct?

[00:00:14] Speaker 00:
Correct.

[00:00:15] Speaker 03:
OK, please begin.

[00:00:16] Speaker 00:
Thank you.

[00:00:17] Speaker 00:
May it please the court, counsel.

[00:00:19] Speaker 00:
My name is Thomas Magg.

[00:00:20] Speaker 00:
I represent the plaintiff appellant in this case.

[00:00:24] Speaker 00:
This case has to do with the reclassification of bump stocks from an unregulated item into machine guns under the National Firearms Act under the Gun Control Act.

[00:00:37] Speaker 00:
I know this is not the first such case that this court has heard.

[00:00:42] Speaker 00:
I know other such similar types of cases have been heard around the country.

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But this one is different.

[00:00:48] Speaker 00:
I think even the defendant will concede.

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In this case, we're not

[00:00:54] Speaker 00:
challenging the reclassification itself.

[00:00:58] Speaker 00:
For purposes of this case, we can see.

[00:01:01] Speaker 00:
Fine, the bump stocks and machine gun.

[00:01:04] Speaker 00:
Reasonable question whether it is, but for purposes of this case, we can see it.

[00:01:11] Speaker 00:
According to the ATF's defendant's own figures in the rule that is subject to this appeal,

[00:01:18] Speaker 00:
There are about half a million of these bump stocks, i.e.

[00:01:23] Speaker 00:
unregistered machine guns, floating around the country.

[00:01:28] Speaker 00:
According to the ATS-owned figures, a fraction of less than 1% of those have been turned in.

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So they're still floating around the country, half a million unregistered machine guns, according to the defendants in this case.

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We contend that contrary to the requirement that these items be destroyed or surrendered, which apparently has flopped in the real world with the American populace, that the defendants abused their discretion, acted arbitrarily and capriciously in determining that they lacked the authority to implement an amnesty period.

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under the National Firearms Act.

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Under the National Firearms Act, there is a provision.

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It's not codified, but it is contained in there.

[00:02:28] Speaker 00:
The originally Secretary of the Treasury, now the Attorney General, so one of the defendants in this case, has the authority in the interests of the act, the act being the National Firearms Act, which regulates machine guns,

[00:02:45] Speaker 00:
among other things, to implement a period of amnesty not to exceed 90 days in any particular case, and upon publication of his intention to do so in the Federal Register, to have unlimited unfettered amnesties, not longer than 90 days in any individual amnesty, with immunity from liability

[00:03:12] Speaker 00:
to register firearms such as unregistered machine guns.

[00:03:17] Speaker 03:
We're talking about the 1968 act, right?

[00:03:19] Speaker 00:
The 1968 act, yes.

[00:03:21] Speaker 03:
And how do we know that the scope of the amnesty is contemplated in that 68 act?

[00:03:31] Speaker 03:
goes so far as to give the Secretary of Treasury and now AG the discretion to authorize an unlawful firearm into becoming now a lawful one, as opposed to the amnesty scope really being directed to when there has been a failure to timely pay a tax or

[00:03:58] Speaker 03:
apply for a registration or to do the registration.

[00:04:02] Speaker 03:
And so why isn't it more of a registration tax-centric form of amnesty, as opposed to this broader version that you're contemplating, which is something that's already been ruled by Congress to be criminal.

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The AG, the executive branch, can now override that choice and make it legal.

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You have to understand the original mechanism of the original 1934 National Firearms Act that was triggered the amendments in 1968.

[00:04:33] Speaker 00:
Under the original 34 Act, declared unconstitutional in Haney's v. US by the Supreme Court in 1968 under the Fifth Amendment, a possessor of an illegal unregistered firearm, term of art machine gun, was required

[00:04:50] Speaker 00:
to fill out a form and register it with the collector of internal revenue, and thus incriminate himself for possessing an unregistered firearm.

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To alleviate that problem, among others, in 1968 Congress amended the statute, the 1968 act, and took away the ability for mere possessors of unlawful firearms, unregistered machine guns,

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Things brought back from World War II, Korea, Vietnam Wars that were never registered or couldn't have been registered to be registered.

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And to alleviate the practical problem by the Haney's decision saying that the prior act was unconstitutional under the Fifth Amendment, they held a 30-day amnesty.

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much like it is set forth in the statute that the attorney general now has the authority to enact even today.

[00:05:51] Speaker 03:
Are you talking about the buyer under the authority of provision?

[00:05:55] Speaker 00:
No, I'm talking about in 1968, November of 1968, the Internal Revenue Service allowed a 30-day period in 1968 under Express Act of Congress as part of the amendments to register anything and everything, legal, illegal,

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Serial numbers marked off, guns in the possession of felons, guns that were already registered that didn't need no questions asked.

[00:06:22] Speaker 00:
And complete immunity still on the statute was afforded for that 30-day, what on the forum says, special grace period, which really wasn't an amnesty.

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It really was an initial registration period because the original act was declared unconstitutional.

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But it is our contention that,

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Things like that is the purpose of Section 209C, I believe it is, that's still contained in the National Firearms Act, that in the interest of the National Firearms Act, which since 1934, Congress has stated, we want all machine guns registered in a central database, first with the collector of internal revenue, now with the attorney general, so that we, the federal government, can keep track of them.

[00:07:10] Speaker 00:
That's the stated intent of Congress.

[00:07:15] Speaker 00:
That is the purpose of the amnesty provision when something happens, be it a reclassification of something from unregistered to a machine gun, or a war where soldiers bring back war trophies, which happened World War II, Korea, Vietnam, or just the passage of time where things aren't kept up.

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to correct the records and get the registry state correct and to bring into the fold, as it were, that which is technically illegal and that there is no other mechanism to register.

[00:07:54] Speaker 00:
If your honor found an unregistered machine or even a registered machine gun in your front lawn, there is no mechanism absent in amnesty for you to go to the ATF and register that.

[00:08:07] Speaker 00:
No, it doesn't exist.

[00:08:10] Speaker 02:
Is your idea that the AG can create such an amnesty and then the holder of a machine gun, a bump stock machine gun, can then register and then they lawfully possess that machine gun going forward thereafter?

[00:08:25] Speaker 02:
Correct.

[00:08:26] Speaker 02:
With no risk of criminal liability?

[00:08:28] Speaker 00:
Because the statute, the National Firearms Act says the registration is

[00:08:33] Speaker 00:
You have, it's unclear whether it's use immunity or transactional immunity, but yes.

[00:08:38] Speaker 02:
OK.

[00:08:39] Speaker 02:
There's a lot of cases, I think, that say the whole purpose here was to freeze the limit or the number of machine guns at the 1986, I think, level.

[00:08:48] Speaker 00:
Well, first of all, I think it's fair to say that there are no reported cases out there construing the breadth of the amnesty power in this statute.

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It's frankly, other than this case, as near as I can tell, never been adjudicated.

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there are some cases out there where people try to apply to make and transfer new post-86 machine guns under the nineteen thirty-four nineteen sixty-eight regime after nineteen sixty-eight that have held it is your honor it is stated.

[00:09:18] Speaker 03:
Just so I understand your theory as I understand it the district court was focused on section nine twenty two oh yes and looking at that one provision in there that's an exception to making machine guns off unlawfully

[00:09:33] Speaker 03:
There are two exceptions well the one that the relevant the one they were focused on was by or under the authority of the United States or state correct and and then concluded that that exception doesn't apply to you or to your client and their otherwise unlawful machine gun and

[00:09:53] Speaker 03:
Is your amnesty theory, which comes from the 68 Act, a separate theory from the buyer under the authority of provision under 922, or are they somehow two pieces of the same theory?

[00:10:08] Speaker 00:
I think that the court has an obligation to construe the two statutes on the same general topic in harmony.

[00:10:15] Speaker 00:
And therefore, I think that they work together.

[00:10:17] Speaker 03:
And I think if you look at the language of the question I have is what if we agree with the district court about

[00:10:23] Speaker 03:
the interpretation of the exception in section 922 or both exceptions.

[00:10:30] Speaker 03:
So does that end the case?

[00:10:32] Speaker 00:
No, because there are alternative arguments such as my client being a police officer and authorized under state law as a police officer to have a machine gun.

[00:10:42] Speaker 00:
Therefore, he should be able to register it.

[00:10:45] Speaker 00:
We're also claiming that 18 USC 922-0 is itself unconstitutional because

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I mean, for instance, contrary to the Wicked Filbert, Reich, Ashcroft type case law, where Congress ought to regulate an entire field of fungible items.

[00:11:02] Speaker 03:
OK.

[00:11:03] Speaker 03:
I understand we're talking about commerce clause right now, but getting back to my question.

[00:11:06] Speaker 03:
Sure.

[00:11:07] Speaker 03:
And interpreting 922 and the two exceptions, if we were to hypothetically agree with the district court's interpretation of 922, does that end the argument you have on the amnesty question?

[00:11:22] Speaker 00:
No, because if 922-0 is unconstitutional, then we're right back to the amnesty question.

[00:11:28] Speaker 03:
OK, let's say the Commerce Clause thing we also affirm the district court on, and also affirm that it's not a tax, and also follow McCutcheon.

[00:11:41] Speaker 03:
Yeah, if you don't overrule yourself.

[00:11:42] Speaker 03:
Which we're bound to.

[00:11:45] Speaker 03:
To what extent is there anything lurking still with regards to your amnesty theory?

[00:11:50] Speaker 00:
If you find against me on every argument I have related to 922-0 and you fail to overrule McCutcheon as I understand the panel is bound to, then that's the end of my case.

[00:12:06] Speaker 03:
But then my argument is... So your amnesty hook is through the exception set forth in section 922.

[00:12:12] Speaker 00:
Is the amnesty hook in the exception to 922-0 or that 922-0 is annulled?

[00:12:18] Speaker 03:
Why does Dale being an officer mean he can register a machine gun that he owns as a private individual?

[00:12:25] Speaker 00:
Because that's what the statute says.

[00:12:27] Speaker 00:
It says merely under the authority.

[00:12:30] Speaker 00:
It doesn't say if a machine gun registered to the Jefferson County Sheriff's Department or a machine gun registered to the US Marshal Service.

[00:12:41] Speaker 00:
Selene, my follow-up is how do you interpret the phrase under the authority?

[00:12:44] Speaker 00:
Under the authority, as near as I can tell, it was first used by Marbury versus Madison by the Supreme Court back 200 and something years ago to essentially mean the basis of an authority to act.

[00:12:58] Speaker 00:
The Supreme Court more recently construed authority to act when New Jersey repealed its gambling law, horse race law, said that repealing a prohibition or a statute allowing something is authority to act.

[00:13:15] Speaker 00:
Therefore, it is our contention that if there is a statute either authorizing it or a statute that previously repealed it or previously prohibited it has been repealed, that is authority to act.

[00:13:29] Speaker 00:
Since there is a provision in the National Firearms Act allowing the amnesty, it is our provision that is authority to act and therefore authority under 18 U.S.C.

[00:13:39] Speaker 00:
922-0.

[00:13:39] Speaker 03:
You're into your rebuttal.

[00:13:42] Speaker 03:
Do you want to save it?

[00:13:44] Speaker 00:
I would like to.

[00:13:44] Speaker 00:
Yes, thank you.

[00:13:45] Speaker 00:
OK.

[00:13:48] Speaker 03:
Thank you.

[00:13:48] Speaker 03:
Let's hear from the government.

[00:13:50] Speaker 03:
OK.

[00:13:50] Speaker 03:
Mr. Hinchelwood?

[00:13:52] Speaker 01:
Yes.

[00:13:52] Speaker 01:
Good afternoon, Your Honors.

[00:13:53] Speaker 01:
May it please the Court?

[00:13:54] Speaker 01:
It sounds like the Court has a sound handle on the issues here.

[00:13:59] Speaker 01:
I would start by just focusing briefly on the text of the amnesty provision.

[00:14:02] Speaker 01:
And I think my colleague at the very end of his presentation sort of explained his theory, at least as we've understood it, which is that the amnesty

[00:14:09] Speaker 01:
enacting an amnesty provision or creating an amnesty under Section 207D of the Gun Control Act would somehow automatically also confer the authority of the United States under 922.01.

[00:14:25] Speaker 01:
But we know that can't be true for several reasons.

[00:14:28] Speaker 01:
One is that, of course, as a textual matter, we know that registration does not confer the authority of the United States because the other exception in 922 is people who lawfully have registered, possessed lawfully registered and transferred weapons.

[00:14:41] Speaker 01:
And those people don't have the authority of the United States.

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They possess their weapons under the authority of the grandfather provision within 922.

[00:14:49] Speaker 03:
My understanding from the other side is that they understand the scope of the amnesty provision to be something broader than just forgiveness over failure to register.

[00:14:59] Speaker 03:
It's like granting someone the authority

[00:15:06] Speaker 03:
to hold and possess an otherwise unlawful firearm.

[00:15:10] Speaker 01:
Your Honor, I don't see how they get that out of the text of Section 207D itself, out of the amnesty provision, especially given the history that my colleague was reciting.

[00:15:18] Speaker 01:
I mean, at the time, of course, in 1968, it was lawful to possess a lawfully registered machine gun.

[00:15:25] Speaker 01:
And the whole purpose of the amendments of the National Firearms Act was to address registration and, as you pointed out, taxation.

[00:15:32] Speaker 03:
Did your brief do a discussion of Section 207D and what 207D encompasses and does not encompass with the amnesty provision?

[00:15:42] Speaker 01:
I believe we said that Section 207D

[00:15:46] Speaker 01:
allows for the lawful registration of weapons that could lawfully be possessed.

[00:15:51] Speaker 01:
But of course, machine guns no longer fall into that category.

[00:15:54] Speaker 01:
They did in 1968, but that's not true after 1986.

[00:15:58] Speaker 01:
You cannot lawfully possess a machine gun if it wasn't already lawfully possessed as of May 19th, 1986.

[00:16:05] Speaker 03:
And I guess what I'm trying to figure out is how do we know that 207D is limited to granting immunostamnesty for

[00:16:11] Speaker 03:
registering only lawful weapons as opposed to any firearm.

[00:16:18] Speaker 01:
Well, Your Honor, a couple of things.

[00:16:19] Speaker 01:
One is that, of course, Section 207 talks about the purposes of this title, meaning Title II of the Gun Control Act, which, of course, addresses only registration of lawfully possessable weapons and the associated taxes.

[00:16:32] Speaker 01:
It's a reenactment of the National Firearms Act with amendments designed to address not only the Fifth Amendment concerns that the Supreme Court identified, but some other issues as well.

[00:16:40] Speaker 01:
So you're already talking about,

[00:16:42] Speaker 01:
a registration and taxation scheme, you're not talking about, oh, here's a provision that allows you to sort of exempt you from all gun laws, past, present, and future.

[00:16:53] Speaker 01:
I mean, it's tied to the statutory context in which it's enacted.

[00:16:57] Speaker 01:
And then when Congress comes along 18 years later and says specifically, look, there's going to be no more public possession of new machine guns.

[00:17:05] Speaker 01:
We're going to outlaw that.

[00:17:06] Speaker 01:
And we're going to create these exceptions.

[00:17:08] Speaker 01:
We're going to allow grandfathering

[00:17:10] Speaker 01:
existing registered weapons and permit those to continue to be lawfully possessed, that's quite different from saying, oh, and by the way, we can simply eliminate all of those restrictions by the simple act of registration, which is essentially what

[00:17:28] Speaker 01:
Mr. Doe's argument here.

[00:17:29] Speaker 03:
Well, I guess they're also heavily leaning into this buyer under the authority of language in 922.

[00:17:36] Speaker 03:
And assuming that I didn't know anything about this case and I was just looking at the statute, it does feel a bit ambiguous because there are two different exceptions within this provision.

[00:17:50] Speaker 03:
any machine gun possessed by the United States or any machine gun possessed under the authority of the United States?

[00:18:00] Speaker 03:
So we absolutely know that under the authority of has to mean something different than possession by the United States.

[00:18:09] Speaker 03:
So what is that alternate context besides

[00:18:14] Speaker 03:
the United States possessed machine guns that this provision provides an exception to?

[00:18:20] Speaker 01:
Well, Your Honor, I think by the United States or under the authority of the United States, that provision may encompass, for example, when a member of the military has the weapon, they are possessing the weapon, but they're doing so under the authority of the United States.

[00:18:34] Speaker 01:
But whatever the scope of

[00:18:36] Speaker 03:
Could that be by the United States then, if it's by someone, a member of the military in his or her official capacity?

[00:18:47] Speaker 01:
Whether you sort of read

[00:18:48] Speaker 01:
Which sort of prong you read that to fall under, I don't think really makes a difference here, where the relevant question is whether registration alone, which is what the amnesty would permit, would in fact permit you to somehow confer the authority of the United States.

[00:19:03] Speaker 01:
And we know textually, just from 922-0, that that's not true.

[00:19:07] Speaker 01:
And it also just follows from thinking about the basic premises of what Congress was doing in 922-0, as the Seventh Circuit pointed out in Kenny, the whole purpose here.

[00:19:14] Speaker 03:
saying that maybe if we were to write an opinion we shouldn't try to delve into the intricacies of what is the scope under the authority of all we need to say is just well just based on the overall

[00:19:30] Speaker 03:
purpose and context and history of this statute, it couldn't possibly be something that encompasses what Mr. Doe wants.

[00:19:39] Speaker 03:
That's a little bit of an unsatisfactory statutory interpretation.

[00:19:43] Speaker 01:
I don't think it's just the purpose, context, and history.

[00:19:46] Speaker 01:
Just looking at the relationship between the two exceptions themselves is a

[00:19:50] Speaker 01:
itself demonstrates textually that registration alone is not enough.

[00:19:54] Speaker 01:
And that's why, for example, the Seventh Circuit was presented with a similar question in Ross.

[00:19:58] Speaker 01:
We had an individual who said, hey, Congress can't create two separate offenses, one for possession of an unregistered weapon and also then ban me from possessing the weapon full stop in 922-0.

[00:20:11] Speaker 01:
And the Seventh Circuit said, no, those are two separate offenses.

[00:20:13] Speaker 01:
Those are two separate problems, separate types of conduct.

[00:20:17] Speaker 01:
And Congress can, of course, have both limitations in place.

[00:20:22] Speaker 01:
But what that means, necessarily, is that when you have this later enacted statute that specifies, look, we're no longer going to permit lawful commerce in machine guns that aren't already in the marketplace, that Congress is telling you that that's exactly what it wants to do, that it wants to freeze the number of those weapons in private hands at that time.

[00:20:44] Speaker 03:
So what's the single sentence definition for by or under the authority of?

[00:20:49] Speaker 01:
Your Honor, an individual who, when a weapon is possessed by or in the authority of the United States, state or local law enforcement, for official use as part of their official duties, that is, I think, generally how that term has been understood.

[00:21:06] Speaker 01:
That's how it's been consistently interpreted by the courts that have looked at it, the 10th Circuit, the 11th Circuit, the cases we cited.

[00:21:13] Speaker 01:
Those cases basically defer to the ATF regulation, right?

[00:21:17] Speaker 01:
I'm not sure that they.

[00:21:19] Speaker 01:
I think they discussed the fact that ATF had an existing regulation at that time, but I'm not sure that any deference is necessarily required.

[00:21:27] Speaker 01:
And again, the exact contours of what would count as the authority of the United States by or under, nothing in this case, I think, turns on the finer points of what that would or would not encompass.

[00:21:41] Speaker 02:
But Helen's counsel says there are no circuit cases, at least, that interpret the breadth of this amnesty and actually address his particular argument.

[00:21:50] Speaker 01:
Does the government agree with that?

[00:21:51] Speaker 01:
I'm not aware of any cases that address the amnesty provision other than this one.

[00:21:56] Speaker 01:
I mean, certainly cases have addressed the scope of 922-0, Farmer from the 11th Circuit and Warner from the 10th, and have rejected the kinds of arguments that he's pressing here.

[00:22:05] Speaker 01:
But as to the amnesty provision itself, I'm not aware of cases interpreting that.

[00:22:11] Speaker 02:
And he made reference to Mr. Doe evidently was or is some sort of law enforcement officer.

[00:22:18] Speaker 02:
Do we have anything in the record on that?

[00:22:21] Speaker 02:
Is that an issue that we need to confront?

[00:22:23] Speaker 01:
I don't think it's an issue you need to confront, because if he is authorized by a law enforcement agency to use a machine gun in connection with his official duties, then there's nothing in the rule or regulation that would

[00:22:38] Speaker 01:
affect his ability to do that.

[00:22:40] Speaker 01:
And the government's not here to argue that he can't do that, right?

[00:22:44] Speaker 01:
Right.

[00:22:44] Speaker 01:
I mean, I think the reason, so it doesn't really matter one way or the other.

[00:22:49] Speaker 01:
I will say just as a factual matter, it's not at all clear from the record that Mr. Doe actually is a police officer.

[00:22:54] Speaker 01:
At summary judgment, he submitted an affidavit that does not say he's a police officer.

[00:22:58] Speaker 01:
It says he was at the time the case was filed and that he hoped to again or hoped to soon have the authority to possess a machine gun pursuant to

[00:23:07] Speaker 01:
sort of official duties.

[00:23:09] Speaker 01:
But at least at the time of summary judgment, his affidavit is at pages 686 and 87 of the appendix, doesn't actually say that he is currently a police officer.

[00:23:20] Speaker 01:
But again, it doesn't matter for purposes of this case.

[00:23:26] Speaker 01:
And if there are no further questions, we're happy to rest on our brief.

[00:23:30] Speaker 03:
OK, thank you.

[00:23:31] Speaker 03:
Thank you.

[00:23:33] Speaker 03:
Mr. Mag, you still have a little time left?

[00:23:35] Speaker 03:
Thank you.

[00:23:36] Speaker 03:
Is Mr. Doe a police officer today?

[00:23:41] Speaker 00:
Today, yes.

[00:23:42] Speaker 00:
At the time the case was filed, yes.

[00:23:44] Speaker 00:
There was a period in between where he was between departments.

[00:23:49] Speaker 00:
Hence the phrasing of the affidavit.

[00:23:52] Speaker ?:
OK.

[00:23:53] Speaker 00:
Do we have the affidavit?

[00:23:54] Speaker 00:
Is that in the appendix?

[00:23:55] Speaker 00:
The affidavit is in the record.

[00:23:57] Speaker 00:
The affidavit will say that at the time the case was filed, he was a high-ranking officer.

[00:24:03] Speaker 00:
It doesn't reference the fact that he's since been re-employed.

[00:24:09] Speaker 00:
Like I said, he was changing jobs at that exact moment.

[00:24:14] Speaker 00:
But I think the relevant time period is the date it was filed.

[00:24:18] Speaker 00:
The case was filed because we're concerned about what

[00:24:22] Speaker 00:
ATF, the defendants, did in their ruling in 2018, 2019, not at some intervening time period after the fact.

[00:24:33] Speaker 03:
So he could then ostensibly go to his department, his new department, and see if they would authorize his possession of this machine gun.

[00:24:45] Speaker 00:
And if they don't, and if he had registered it, then he could have sold it on the open commercial market to a person qualified to take it, such as another department, a licensed dealer, or whoever is allowed to possess such items, if it were registered.

[00:25:03] Speaker 00:
being unregistered is contraband.

[00:25:07] Speaker 03:
Any final thoughts?

[00:25:08] Speaker 00:
I appear to be out of time.

[00:25:10] Speaker 00:
Thank you very much for your time.

[00:25:11] Speaker 03:
Thank you.

[00:25:12] Speaker 03:
The case is submitted.

[00:25:13] Speaker 03:
And that concludes today's arguments.