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Michigan Goes Class 3

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#1 Hawkeye_Joe


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Posted 11 February 2006 - 09:21 AM

Here is the Attorney General's opinion on ownership of class 3 weapons. If it's OK with the Feds, you can have 'em in Michigan.

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.

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

© 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© 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--
* * *

(cool.gif 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)(cool.gif.]

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. . . .
(cool.gif 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," ยง 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.
Attorney General
NOTE: OAG No. 5210 has been superseded by this opinion.

State of Michigan, Department of Attorney General
Last Updated 02/10/2006 16:58:32
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#2 OldFalGuy


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Posted 11 February 2006 - 03:56 PM

well here is one lawyer who has done a great service to the people of Michigan. Wonder what little bird chirped in his ear to get the ball rolling? I understand ATF hasn't acted yet on any non C&R nfa. Didn't see that aspect mention as an exception to MI law but wasn't probative of the point he was making with regard to the licensure issue-
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