The opinion of the court was delivered by: Mihm, District Judge.
After oral argument on the above motions, but before entry of
a final order, the United States filed a motion to reconsider
the Court's decision to dismiss the above counts. After careful
consideration, the Court hereby denies the motion to
The superseding indictment alleges that Defendants committed
acts in respect to the making and registration of "firearms,"
i.e., machineguns,*fn1 in the years 1987 and 1988 which
violated parts of the National Firearms Act, Chapter 53 of the
Internal Revenue Code, 26 U.S.C. § 5801 et seq. Specifically,
Count I alleges in part that Defendants conspired "(a) to
manufacture firearms in violation of Title 26, United States
Code, Sections 5822*fn2 and 5861(f)*fn3 [and] (b) to
knowingly deliver into interstate commerce firearms in
violation of Title 26, United States Code, Sections 5822 and
5861(j). . . ."*fn4 Count 2 alleges that in 1988, Defendants
made machineguns "in violation of the registration provisions
of Title 26, United States Code, Section 5822," which is
alleged to have violated 26 U.S.C. § 5861(f). Count 3 alleges
that Defendants delivered into interstate commerce the same
machineguns as in Count 2, and that these machineguns "had not
been registered as required by the provisions of Title 26,
United States Code, Section 5822," in violation of 26 U.S.C. § 5861(j).
Since its passage in 1934, the registration, taxation, and
other requirements of the National Firearms Act ("NFA") have
been upheld by the courts under the power of Congress to raise
revenue.*fn5 However, 18 U.S.C. § 922(o), which became
effective on May 19, 1986, prohibits possession of machineguns,
and thereby repealed or rendered unconstitutional the portions
of the National Firearms Act which provided for the raising of
revenue from the making, possession, and transfer of
machineguns made after such date. As the government conceded at
oral argument, the United States refuses to register or accept
tax payments for the making or transfer of machineguns made
after 1986.*fn6 Thus,
§ 922(o), as applied to machineguns made after May 19, 1986,
left the registration and other requirements of the National
Firearms Act without any constitutional basis.
P.L. 99-308, 100 Stat. 449 (May 19, 1986), codified as
18 U.S.C. § 922(o), provides:
(1) Except as provided in paragraph (2), it shall
be unlawful for any person to transfer or possess
(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
(B) any lawful transfer or lawful possession of
a machinegun that was lawfully possessed before
the date this subsection takes effect.
As interpreted and administered by the Bureau of Alcohol,
Tobacco and Firearms ("BATF"), U.S. Department of the Treasury,
§ 922(o) prohibits the private possession of any machinegun not
made and registered before May 19, 1986. Thus, since May 19,
1986, BATF has refused to approve any application to make,
transfer, register, and pay the $200 tax on any machinegun made
after that date.*fn7 Before that date, BATF approved such
applications pursuant to 26 U.S.C. § 5812 and 5822. Farmer v.
Higgins, 907 F.2d 1041, 1042-44 (11th Cir. 1990), cert. denied,
___ U.S. ___, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991) (upholding
BATF's denial of an application to make and register a
machinegun by a private collector under § 5822).
As applied to machineguns alleged to be possessed after May
19, 1986, prosecutions may no longer proceed under 26 U.S.C. § 5861.
This is because the National Firearms Act is part of
the Internal Revenue Code, and its provisions — including
registration of machineguns possessed after May 19, 1986 — are
valid only to the extent they aid in the collection of tax
revenue. Since BATF would not register and accept tax payments
for any machinegun after May 19, 1986, registration of
machineguns made and possessed after that date no longer serves
any revenue purpose, and such registration requirements are
invalid. Since 18 U.S.C. § 922(o) is interpreted to ban
registration and taxation of machineguns under the National
Firearms Act, § 922(o) effectively repeals such registration
and taxation provisions. Congress has no enumerated power to
require registration of firearms. However, since registration
of firearms may assist in the collection of revenue, Congress
passed the National Firearms Act in 1934 pursuant to its power
to tax. Section 922(o) destroys the constitutional basis of
When Congressman Harold Knutson asked "why should we permit
the manufacture, that is, permit the sale of the machine guns
to any one outside of the several branches of the Government,"
Congressman Sumners suggested "that this is a revenue measure
and you have to make it possible at least in theory for these
things to move in order to get internal revenue?" Id. at 13-14.
Cummings agreed: "That is the answer exactly." Id. at 14. The
following dialogue ensued:
Attorney General CUMMINGS. . . . If we made a
statute absolutely forbidding any human being to
have a machine gun, you might say there is some
constitutional question involved. But when you
say, "we will tax the machine gun," . . . you are
easily within the law.
Mr. LEWIS. In other words, it does not amount to
prohibition, but allows of regulation.
Attorney General CUMMINGS. That is the idea. We
have studied that very carefully.
The National Firearms Act was originally passed as a taxing
statute under the authority of Nigro v. United States,
276 U.S. 332, 48 S.Ct. 388, 72 L.Ed. 600 (1928). See National Firearms
Act: Hearings Before the Committee on Ways and Means, supra, at
101-02, 162. Upholding the Harrison Anti-Narcotic Act, Nigro
"In interpreting the act, we must assume that it
is a taxing measure, for otherwise it would be no
law at all. If it is a mere act for the purpose of
regulating and restraining the purchase of the
opiate and other drugs, it is beyond ...