Transfer or Possession of a Machine Gun - 18 U.S. Code § 922(o)
Each state has its own statutes regarding the lawful possession of firearms. Still, it's crucial to understand that possessing or transferring a firearm that meets the definition of a machine gun becomes a federal crime, subject to potentially severe penalties. The law is strict, and compliance is essential.
Under 18 U.S. Code 922(o), it is a violation of federal law to transfer or possess a machine gun. This statute was enacted as part of the Firearm Owners' Protection Act, which took effect in 1986 and seeks to restrict civilian ownership of fully automatic weapons. If you're convicted of this offense, you could face up to 10 years in prison.
18 U.S.C. 922(o) says, "(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."
Related 26 U.S. Code 5845(b) says, "The term 'machine gun' means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.
The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person."
What Does the Law Say?
18 U.S. Code 922(o) is fairly straightforward, broadly prohibiting any person from transferring or possessing a machine gun. However, the statute provides two narrow exceptions:
- The Machine Gun was lawfully possessed before May 19, 1986 (the effective date of the Firearm Owners' Protection Act).
- The Machine Gun is possessed or transferred under lawful government authority (e.g., law enforcement or military use).
What Constitutes a Machine Gun?
The definition of machine gun in the National Firearms Act and the Gun Control Act includes a part or parts that are designed and intended for use in converting a weapon into a machine gun.
This language includes a device that, when activated by a single pull of the trigger, initiates an automatic firing cycle that continues until the finger is released or the ammunition supply is exhausted.
Simply put, federal law defines a machine gun under 26 U.S.C. § 5845(b) as any firearm that:
- You can fire more than one round with a single pull of the trigger.
- Has parts designed or intended to convert a firearm into a machine gun (e.g., drop-in auto sears, lightning links, etc.).
- Includes any frame or receiver of a machine gun.
- It consists of a combination of parts intended to assemble a fully automatic weapon.
If a firearm has been modified to function as a fully automatic weapon, even if originally manufactured as a semi-automatic, it qualifies as a machine gun under federal law.
The National Firearms Act (NFA), 26 U.S.C. Chapter 53, defines the term "firearm" to include a machine gun. The Gun Control Act of 1968 (GCA), 18 U.S.C. Chapter 44, defines machine gun identically to the NFA.
As noted, pursuant to 18 U.S.C. 922(o), machine guns manufactured on or after May 19, 1986, may only be transferred to or possessed by Federal, State, and local government agencies for official use.
Elements of the Crime
To secure a conviction under 18 U.S.C. 922(o), federal prosecutors must prove the following elements beyond a reasonable doubt:
- You knowingly possessed or transferred a firearm.
- The firearm met the legal definition of a machine gun; and
- The possession or transfer was not legally exempt (i.e., pre-1986 ownership or official law enforcement/military use).
The "knowingly" requirement means the accused must be aware they possessed the firearm, but not necessarily that it met the legal definition of a machine gun. Courts have ruled that ignorance of the law is not a valid defense.
It is worth noting that "possession" can be either actual (i.e., physically holding the item) or constructive (i.e., having access to or control over it). Even if the machine gun is not found on your person, evidence suggesting that you had control or knowledge of its location may still lead to charges.
Penalties for Machine Gun Possessing
Violations of this statute are not taken lightly. The penalties are addressed in 18 U.S.C 924(a)(2), which states that anyone knowingly violating this statute:
- May face a fine of up to $250,000.
- Can be sentenced to up to 10 years in federal prison or
- May face both imprisonment and fines.
The severity of the federal sentence often depends on the circumstances, such as the quantity of weapons involved, prior criminal history, or additional charges related to other unlawful activity.
What are Related Federal Laws?
18 U.S. Code Chapter 44 Part I, Firearms, has several related federal statutes, including the following:
- 18 U.S.C. 921 - Definitions.
- 18 U.S.C. 922 - Unlawful acts.
- 18 U.S.C. 923 - Licensing.
- 18 U.S.C. 924 - Penalties.
- 18 U.S.C. 925 - Exceptions: Relief from disabilities.
- 18 U.S.C. 925A - Remedy for erroneous denial of firearm.
- 18 U.S.C. 925B - Reporting of background check denials to State authorities.
- 18 U.S.C. 925C - Annual report to Congress.
- 18 U.S.C. 925D - Special assistant U.S. attorneys and cross-deputized attorneys.
- 18 U.S.C. 926 - Rules and regulations.
- 18 U.S.C. 926A - Interstate transportation of firearms.
- 18 U.S.C. 926B - Carrying of concealed firearms by qualified law enforcement officers.
- 18 U.S.C. 926C - Carrying of concealed firearms by qualified retired law enforcement officers.
- 18 U.S.C. 927 - Effect on State law.
- 18 U.S.C. 928 - Separability.
- 18 U.S.C. 929 - Use of restricted ammunition.
- 18 U.S.C. 930 - Possession of firearms and dangerous weapons in Federal facilities.
- 18 U.S.C. 931 - Prohibition on purchase, ownership, or possession of body armor by violent felons.
- 18 U.S.C. 932 - Straw purchasing of firearms.
- 18 U.S.C. 933 - Trafficking in firearms.
- 18 U.S.C. 934 - Forfeiture and fines.
Common Defenses Against These Charges
While these charges carry significant consequences, a skilled federal criminal defense lawyer can employ various defenses tailored to the specific facts of the case. Some defenses commonly raised:
- Lack of knowledge: If you were unaware of the presence of the firearm in your possession, your attorney may argue that you did not act "knowingly," as required by the statute.
- Lawful pre-1986 possession: If the firearm in question was lawfully owned before May 19, 1986, this exception to the law may be used as a defense. Supporting documentation or evidence would be crucial in this argument.
- Unauthorized search and seizure: The Fourth Amendment protects individuals from unlawful searches and seizures. If the machine gun was discovered during an illegal search or seizure by law enforcement, the evidence could potentially be excluded, weakening the prosecution's case.
- Possession by others: Constructive possession cases often rely on circumstantial evidence, such as proximity to the weapon. Your defense attorney may argue that the machine gun was controlled or owned by someone else and tied you to the firearm only through speculation.
- Lack of intent to assemble parts: If you are charged based on possession of parts that could be assembled into a machine gun, your attorney may focus on proving you did not have the intent required to violate the law.
For additional information, contact our federal criminal defense law firm, Eisner Gorin LLP, based in Los Angeles, California.
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