Farmer v. Higgins, No. 90-8185

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore HATCHETT and CLARK, Circuit Judges, and MORGAN; HATCHETT
Citation907 F.2d 1041
PartiesJ.D. FARMER, Jr., Plaintiff-Appellee, v. Stephen E. HIGGINS, Director, Bureau of Alcohol, Tobacco and Firearms, Defendant-Appellant.
Docket NumberNo. 90-8185
Decision Date11 July 1990

Page 1041

907 F.2d 1041
J.D. FARMER, Jr., Plaintiff-Appellee,
v.
Stephen E. HIGGINS, Director, Bureau of Alcohol, Tobacco and
Firearms, Defendant-Appellant.
No. 90-8185.
United States Court of Appeals,
Eleventh Circuit.
July 11, 1990.
Rehearing and Rehearing En Banc
Denied Aug. 30, 1990.

Page 1042

Mark B. Stern, Michael Singer, Office of Gen. Counsel, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., for defendant-appellant.

Stephen P. Halbrook, Fairfax, Va., John S. D'Orazio, Finch, McCranie, Brown & Thrash, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT and CLARK, Circuit Judges, and MORGAN, Senior Circuit Judge.

HATCHETT, Circuit Judge:

In this case of first impression, we are asked to determine whether the Gun Control Act of 1968, as amended by the Firearms Owners' Protection Act of 1986, prohibits private persons from possessing machine guns. We hold that the Firearms Owners' Protection Act does prohibit the private possession of machine guns not lawfully possessed prior to May 19, 1986. We reverse the district court.

FACTS AND PROCEDURAL HISTORY

By application dated October 24, 1986, J.D. Farmer, Jr., the appellee, filed with the Bureau of Alcohol, Tobacco and Firearms (the Bureau) an application to legally make and register a machine gun for his personal collection. 26 U.S.C. Secs. 5821, 5822, and 5841 (West 1989). On February 7, 1987, the Bureau disapproved Farmer's application on the ground that the Firearms Owners' Protection Act of 1986 (the Act), "prohibits the making and manufacture of new machineguns for possession by private persons." See Pub.L. No. 99-308, Sec. 102(9), 100 Stat. 449, 452-53 (May 19, 1986), codified at 18 U.S.C.A. Sec. 922(o ) (West Supp.1990).

Subsequently, Farmer filed an action for a declaratory judgment and a for writ of mandamus to compel the Bureau to approve his application to make and register a machine gun pursuant to the National Firearms Act. 26 U.S.C. Sec. 5822 (West 1989). On January 6, 1989, the district court ruled that the Act allowed private persons, who comply with the National Firearms Act's application and registration requirements, to make and possess machine guns. The district court denied the petition for a writ of mandamus, however, because the Bureau's approval of an application is a discretionary act.

The district court then allowed Farmer to file an amended complaint alleging that denial of the application was arbitrary, capricious, and an abuse of discretion. On January 2, 1990, the district court reaffirmed its conclusion that the Bureau's interpretation of 18 U.S.C.A. Sec. 922(o ) (West Supp.1990) was unreasonable, and ordered the Bureau to process Farmer's application within 30 days, or issue the requested permit. This court stayed the district court's order pending appeal, and set the case on an expedited schedule.

CONTENTIONS

The Bureau contends that the district court erred when it concluded that the Act's first exemption from the machine gun prohibition, which permits possession of a machine gun "under the authority" of a governmental unit, allows a private person, who complies with the National Firearms Act's application and registration requirements, to manufacture and possess a machine gun. According to the Bureau, its regulations, which prohibit the private possession of machine guns not lawfully possessed prior to May 19, 1986, are consistent with the statutory language, supported by the legislative history, and entitled to deference.

Page 1043

In response, Farmer contends that the district court properly interpreted section 922(o ) when it held (1) that the Act does not prohibit the private manufacture and possession of machine guns possessed "under the authority" of the United States, and (2) that the Bureau's implementing regulations are contrary to the plain meaning of section 922(o ), and are unreasonable.

ISSUE

The sole issue is whether section 922(o ) prohibits the private possession of machine guns not lawfully possessed prior to May 19, 1986.

DISCUSSION

Firearms Owners' Protection Act of 1986

18 U.S.C.A. Sec. 922(o ) (West Supp.1990) states:

(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--

(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 thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

Section 110(c) of the Act provides that the effective date of the "Machinegun Prohibition" is May 19, 1986. Pub.L. No. 99-308, Sec. 110(c), 100 Stat. 449, 461 (May 19, 1986).

After enactment of the Act, the Bureau promulgated implementing regulations proscribing private possession of machine guns, except as provided by the "grandfather" clause found in section 922(o )(2)(B):

(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. Section 922(o), Title 18, U.S.C., makes it unlawful for any person to transfer or possess a machine gun, except a transfer to or buy, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a...

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15 practice notes
  • U.S. v. Bailey, No. 94-2314
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 24, 1997
    ...guns to instances authorized by the government for the benefit of federal, state, or local governmental entities." 15 Farmer v. Higgins, 907 F.2d 1041, 1045 (11th Cir.1990). We also have held that section 922(o) is constitutional under the Commerce Clause. United States v. Wright, 117 F.3d ......
  • U.S. v. Lopez, No. 92-5641
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 15, 1993
    ...its sponsor, Representative Hughes, that "I do not know why anyone would object to the banning of machine guns." See Farmer v. Higgins, 907 F.2d 1041, 1044-45 (11th Cir.1990). While section 922(o ) is a closer parallel than others to section 922(q) presently before us, as both sections deno......
  • U.S. v. Wright, No. 95-8397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 24, 1997
    ...meaning of the Second Amendment, our prior cases have suggested a narrow reading of this provision. For example, in Farmer v. Higgins, 907 F.2d 1041, 1045 (11th Cir.1990), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991), an applicant for a permit to manufacture machinegun......
  • U.S. v. Kenney, No. 95-3937
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 30, 1996
    ...register new weapons because to do so would place the applicant in violation of the law. 27 C.F.R. § 179.105; see also Farmer v. Higgins, 907 F.2d 1041 (11th Cir.1990) (agreeing with this interpretation of § 922(o)), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991). Sectio......
  • Request a trial to view additional results
14 cases
  • U.S. v. Bailey, No. 94-2314
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 24, 1997
    ...guns to instances authorized by the government for the benefit of federal, state, or local governmental entities." 15 Farmer v. Higgins, 907 F.2d 1041, 1045 (11th Cir.1990). We also have held that section 922(o) is constitutional under the Commerce Clause. United States v. Wright, 117 F.3d ......
  • U.S. v. Lopez, No. 92-5641
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 15, 1993
    ...its sponsor, Representative Hughes, that "I do not know why anyone would object to the banning of machine guns." See Farmer v. Higgins, 907 F.2d 1041, 1044-45 (11th Cir.1990). While section 922(o ) is a closer parallel than others to section 922(q) presently before us, as both sections deno......
  • U.S. v. Wright, No. 95-8397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 24, 1997
    ...meaning of the Second Amendment, our prior cases have suggested a narrow reading of this provision. For example, in Farmer v. Higgins, 907 F.2d 1041, 1045 (11th Cir.1990), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991), an applicant for a permit to manufacture machinegun......
  • U.S. v. Kenney, No. 95-3937
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 30, 1996
    ...register new weapons because to do so would place the applicant in violation of the law. 27 C.F.R. § 179.105; see also Farmer v. Higgins, 907 F.2d 1041 (11th Cir.1990) (agreeing with this interpretation of § 922(o)), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991). Sectio......
  • Request a trial to view additional results

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