Interview: Meet the Man Suing Eric Holder and the ATF
Before getting to the interview, we'd like to give you some background facts on what led to the lawsuits.
First, it is legal in the United States for a private citizen to own machineguns. Some individual states prohibit the ownership but it is permissible on a Federal level per the National Firearms Act of 1934 (NFA), so long as the Federal government approves the purchase (currently regulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives or BATFE, formerly “ATF”) and the citizen pays a $200 tax. Once the purchase is approved (a process that can take several months), the citizen receives a document called a tax stamp and can then go about their business with the firearm. Since this is approval for a purchase, not a permit for continued possession, there is no legal mechanism for the stamp to be “revoked” or for the approval to be reversed.
Next, in 1986, the Firearm Owner Protection Act was passed but included a provision (called the Hughes Amendment) stating that “persons,” as defined by the Gun Control Act of 1968, could still own machineguns as before but only if they were manufactured prior to that date. This created a rapid and artificial inflation of machinegun prices, putting them out of the financial reach of most citizens.
Finally, in 2014, the ATF was asked – via legal document – whether a firearm transferred to a trust required a NICS background check. In an effort to require background checks without involving Congress, the ATF declared that unincorporated trusts do not fit the legal definition of “persons” per GCA ‘68.
Through this declaration, the ATF essentially stated that trusts, not being “persons,” were not bound by the Hughes Amendment. Based on this, several individuals applied for a tax stamp to manufacture new machineguns and were approved. Their checks were cashed, the stamps were issued and, in at least one case, such a gun was manufactured.
Then... the ATF simply changed its mind. The recipients were told their stamps were “revoked.” Any machineguns manufactured were now possessed illegally and must be surrendered immediately. The recipients of the stamps received phone calls, letters and eventually personal visits to confiscate any modified firearms.
The reason? “Because we said so.”
Regulatory agencies such as the ATF (and the IRS and the EPA and the BLM and…) have the power to change the rules by which we live, without any approval or intervention by our elected officials. These agencies are simply empowered by Congress to “regulate” a particular activity or industry and are given near-free reign to do so at their own discretion, often ensnaring law-abiding citizens in a web of red tape. Running afoul of them has cost many citizens their time, money, and reputations; many have also lost their personal property (including homes and family-owned land), their freedom and, in some cases, their lives.
But an interesting thing is happening to this particular agency, this particular time. It’s being held accountable for its overreach.
Mississippi Attorney Stephen Stamboulieh has filed two lawsuits so far, naming Attorney General Eric Holder and ATF Director B. Todd Jones as defendants, and demanding simply that their agencies obey the laws they are charged with upholding – or that the prohibition on the manufacture of new machineguns be lifted entirely.
Stephen took time out of his schedule to answer a few questions for us and we’re pleased to post his responses.
DoLP: First off, Stephen, thanks for taking the time to chat with us. I suspect you’re a pretty busy man these days.
SS: It’s been a pretty busy couple of months for sure.
DoLP: You’re suing the Federal government. Why? And what can you tell us about the case?
SS: As of now, we are suing in two federal districts. The Northern District of Texas, in Dallas, and the Eastern District of Pennsylvania, in Philadelphia. The why is fairly simple. Since May 19, 1986 Congress has banned the possession and transfer of an entire class of weapons, machineguns, that are protected by the second amendment. Machineguns are no less protected by the 2nd Amendment than any other firearm. With the ban as it exists now, if the machinegun was manufactured after May 19, 1986, an individual cannot own that weapon.
But it goes beyond that. Since 1934, certain firearms (and non-firearms) are registered and taxed by the government. When you go to purchase a suppressor, which by itself is only defined as a “firearm” because our government says it is, you must pay a $200 tax, file paperwork with the government, and then wait 6 to 9 months for the BATFE to “approve” the paperwork and register that device in your name. The same thing occurs with a machinegun. But why, you probably want to ask, if the 2nd Amendment protects, as Justice Scalia said in Heller, “all instruments that constitute bearable arms,” how can the government mandate a tax on a right like this? Why not a tax to vote? Why not a tax to send an email? Why not a tax to go to church?
Let me get back to your question. Here is what happened. My clients – Jay Hollis and Ryan Watson – each filed applications to manufacture a machinegun on a trust. A trust is not prohibited from possessing or transferring a machinegun per the statute. The BATFE granted my clients approval to manufacture. One of my clients did manufacture a machinegun. The BATFE then “revoked” or “disapproved” their approved applications and demanded that if they made a machinegun, that they immediately surrender it. But there is no authority for the BATFE to revoke a stamp in the fashion they did. Zip. Nada. None. So, we sued on a various number of grounds.
DoLP: Is this a class action suit? How many folks are you representing or have been affected by this?
SS: It’s not a class action, but I do currently represent two individuals and the trusts that filed for, and were approved, to manufacture a machinegun.
DoLP: So these folks asked for permission to make something, they were told that permission was granted, they made this presumed-legal gun and then were told, “Oops, we changed our minds. Turn them over or we’ll arrest you,” simply… because? That’s terrifying.
SS: One of them manufactured. One didn’t. But yes. Turn them in “or else.”
DoLP: Keeping in mind that I am not a lawyer but have seen a few episodes of “Law & Order,” this sounds like entrapment to me. Have any of your clients been arrested or penalized? Have they complied with the surrender order?
SS: No arrests. And yes, the machinegun was surrendered under protest. Penalized is an interesting word. What is the value on one of the ONLY post-May 19, 1986 civilian legal transferrables? I don’t know, but I bet it is a lot. So yeah, penalized as he essentially had his property taken from him.
DoLP: Alright, I know I’m leading a little on this but it’s an important point to make. A lot of people reading this will see “gun,” think, “Well, I’m not a ‘gun guy.’,” and go click on something else. Why should they care about this?
SS: Look, the Constitution says what it says. The Second Amendment protects our rights to “keep and bear arms.” If Congress can rewrite the Second Amendment through legislation - and I mean, the Second Amendment is as cut and dried as it gets - why not rewrite the Fourth Amendment? Why not require that every person register with the Government for an email address and you can only use that one? What about a government issued Twitter ID? Facebook account? Heck, why even have a Constitution in the first place?
DoLP: Taking it a step further, someone skims the story and thinks, “Well, why do these people want to make machine guns, anyway? Are they terrorists or something? If he wins, are people going to be walking around with Uzis and AK47s? Buying them at Walmart or something?” There’s a connotation there. What’s your response to that line of thought?
SS: I love those arguments. So, yeah, let’s go down that path. Why not allow them for sale at gun stores? I can buy a gun at a gun store, right? What’s the difference? The Government already regulates FFLs (federal firearm licensees) why not allow them to sell machineguns if they want to? And the emotional argument regarding terrorists is a strawman.
DoLP: What do you hope to achieve with this if you win? What do you see as the downstream effect, not only for second amendment rights but for other personal freedoms?
SS: I hope that our freedoms are restored. Nothing more, nothing less.
DoLP: Are there more suits pending or can you talk about that?
DoLP: Ha. Okay, I’ll assume that brevity means, ‘We’re not talking about that further.’ Now, these are in different Federal districts. Was that dumb luck, strategic planning…?
SS: The BATFE approved a bunch of these applications. I dance with the one that brought me.
DoLP: Do you have other attorneys working with you? Anyone of note?
SS: Yes. Hollis’ brother is an attorney. Watson is an attorney, and I associated one of his partners.
DoLP: Do you have anyone not working with you that you were expecting to take up the cause? Any notable refuseniks?
SS: No. I don’t expect anything from anyone.
DoLP: What about detractors? You’ve gotten some pretty nasty comments and snarky accusations from members of the shooting community, of all places. What’s your response?
SS: They are afraid of a bad ruling that ends up somehow restricting things further. But what better time than now? Our government already denies us our rights. Are they going to deny them more? Like, machineguns now are double extra illegal? My response is this: lead, follow or get out of the way.
DoLP: Are there legitimate arguments against pursuing these cases?
SS: The arguments against us are all based out of fear. I don’t buy into the fear. I believe we are on solid ground. The courts will decide, and the chips will fall where they may, but we are going to try.
DoLP: Any concerns about retaliation from the U.S. government? That used to be a paranoid question but with Operation Chokepoint, Lois Lerner’s IRS targeting, Fast & Furious setting up legitimate gun sellers, domestic spying by the NSA…. It’s not so far-fetched anymore.
SS: What difference, at this point, does it make? Seriously. If we won’t take our own government to Court… due to fear of them doing something? Are we all really that afraid?
DoLP: How long do you anticipate that this will drag on and how expensive do you think this will get?
SS: Time frame - I don’t know. A couple different things could happen to shorten or lengthen the process. As to expense, depending on the length, how many attorneys, and the appellate process, I could see it getting fairly expensive. Especially if we get to the Supreme Court.
DoLP: Any chance this won’t go to the Supreme Court?
SS: Sure. The Supreme Court takes cases it wants to. If they refuse to hear the case, then we don’t get there.
DoLP: You mentioned what you hope to get out of a victory. What about ramifications of a loss? Again – for gun rights but also for civil liberties in general?
SS: What if we do lose? Like I said earlier, are machineguns going to be extra illegal?
DoLP: Okay, elevator pitch time. If you could sum up why someone – say, one of those “not-a-gun” people – should care about this action, keep an eye on your progress and most importantly donate, what would you say?
SS: It’s about the government’s ability to legislate our rights away. Period. It’s about our rights.
DoLP: Excellent. Stephen, thank you once again for your time and, very sincerely, thank you for standing up like this. Good luck with the cases.
SS: Thank you.
[Editor's note: PDFs of the complaints and other documentation can be found on Stephen’s website.]