Schuyler Barbeau Motion To Dismiss (Denied)

Case 2:15-cr-00391-RAJ Document 84 Filed 05/05/17 Page 1 of 47
1 ~
2
-l'ILU
-LIJ&ED
-RECEIVED
MAIL
3 M.AY 05-2017
AT SEATTLE
4 CLERK U.S. DISTRICTCOURT
WEST.ERN DISTRICT OF WASHINGTBN
BY DEPUTY
5 UNITED STATES DISTRICT COURT .
WESTERN DISTRICT OF WASHINGTON
6 AT SEATTLE
7 UNITED STATES OF AMERICA, ) Case No: CR15-391RAJ
)
8 Plaintiff, ) MOTION TO DISMISS INDICTMENT
) ..
9 vs. )
)
10 SCHUYLER. P. :BARBEAU, pro .se, ) ... ;:; .
)
11 Defendant. )
)
12
13 COMES NOW, Defendant, Schuyler Barbeau, prose, to move this.
14 Court to dismiss the Indicment with prejudic.e ..: C~ngress lacks
15 consiitutional authoruty to prohibit machineguns made at home for
16 personal use . . Congress also lacks constitutional authority to
17 require registration of a short-barreled rifle built at home for
18 personal use. The statutes Mr. Barbeau is charged under are
19 facially and as~applied unconstitutional, and violate Due Process
20 for ambiguity and lack of fair notice.
21
22 BACKGROUND
23 Around January of 2014, Mr. Barbeau machine and assembled his
24 own AR~15 type of rifle. Around October, 2015, Mr. Barbeau, at
25 the suggestion of his friend, asked that friend t~ find someone
26 buy his rifle, a second complete upper receiver with longer

27 barrel, and other accesseries as a package deal for $5,000.
2 That friend turned out to have been working (and was paid over
MOTION TO DISMISS INDICTMENT - 1 FDC SeaTac #46153-086
P.O~ BOX 13900
Seattle, WA 98198
1 $3,500, Complaint at 3) as a Confidential Human Source ("CHS")

2 for the Federal Bureau of Inves tiga ti on ("FBI") for around eight
3 months prior to this, generally reporting all of Mr. Barbeau's
4 activities. The CHS informed the FBI of the firearms Mr.
5 Barbeau owned. When he asked his friend to find a buyer, the
6 FBI created a ruse with the CHS to provide a fictional buyer.
7 Mr. Barbeau gave his rifle, second upper, and accesseries to his
8 friend, the CHS at his house. The CHS reported the drop-off and
9 the FBI seized the rifle shortly thereafter. When Mr. Barbeau
10 went to meet his friend, the CHS, to get the money from the
11 supposed sale fourteen days later, the FBI surprise arrested
12 him.
13 During the investigation, the CHS told the FBI that Mr.
14 Barbeau also had made his own Drop-In-Auto-Sear ("DIAS") for his
15 rifle, which would enable it to shoot automatically. A Firearms
16 Specialist with the ATF verified the rifle's barrel length to be
17 less than 16 inches, that it had not been registered in the
1'8 National Firearms Registration and Transfer Record ("NFRTR"),
19 and that the rifle can fire automatically. The ATF Firearms
20 Specialist examined the rifle on November 24th, 2015, and filed
21 her report of the examination and testing results and that the
22 NFRTR produced no registration record for Mr. Barbeau's rifle on
23 November 25th, 2015. The Complaint for Violation was filed
24 December 2nd, 2015. The Warrant for arrest was signed Dec. 5th.
25 The Indictment was filed Dec. 16th.
26
27 SUMMARY
28 In the fall of 2013, Mr Barbeau decided he wanted to build
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1. his own AR-15 style rifle with a short barrel and select-fire
2 capability. After a few months of research in the National
3 Firearms Act ("NFA"), the Gun Control Act ("GCA"), the U.S.
4 Constitution, and in various internet forums, Mr. Barbeau
5 determined that those regulatory schemes only applied to people
6 and businesses - licensed - and engaging in commercial
7 activities revolving around firearms. Mr. Barbeau knew of the
8 Second Amendment's instruction to the Federal Government to not
9 infringe on the People's right to keep arrd bear arms. To
10 exercise his rights, he chose not to participate in commerce of
11 firearms. There was zero intent to commit crime.
12 He purchased all the individual parts that comprise an AR-15
13 style rifle. It should be particularly noted that what is
14 commonly known as an "80% Lower Receiver" was purchased for the
15 reasons that it is not a "firearm" under the definitions in the
16 GCA and NFA. These 80%Lowers are therefore not required to be
17 serialized, and among other things, do not need a background
18 check performed to be purchased.
19 Mr. Barbeau bought the necessary drill jigs and milling bits
20 and completed the machining process for the 80% Lower to make it
21 100%. Once done, the rifle was assembled piece by piece at
22 home. At first though, not all the full-auto parts were
23 purchased and assembled. One part was ordered several months
24 later and Mr. Barbeau didn't carve the DIAS out of plastic until
25 winter of 2014.
26 Mr. Barbeau chose this route, to machine and build his own
27 rifle, because he wanted to exercise his Second Amendment and
28 avoid commerce jurisdiction over a rifle made by some licensed
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1 manufacturer. Rifles, including stripped and assembled lower

2 recievers, are "firearms" under the laws when they are made by a
3 licensed manufacturer. Congress, through the license and
4 commerce clause, can regulate those "firearms." For "firearms"
5 defined in the NFA, Congres~ chose to require several taxes and
6 reg is tra ti on.
7 The all important issue here is that Mr. Barbeau did not buy
8 a complete AR-15 to modify into a short-barreled machinegun, nor
9 did he buy a finished serialized lower reciever to build a
10 short-barreled machinegun. No "firearm" ever traveled in or was
11 purchased from the commercial firearms market so there is no
12 Federal Commerce Clause jurisdiction.
13 The registration requirement starts with the licensed
14 manufacturer. Before making the NFA "firearm", a serial number
15 must be entered into the NFRTR and a $200 making tax must be
16 paid. When the NFA "firearm" ships to a licensed dealer, the
17 NFRTR must be updated with new registration to show the dealer
18 as the new possessor. If the shipment of articles crossess
19 state lines, it constitutes interstate commerce. Now the dealer
20 sells the NFA "firearm" to a consumer. The dealer must register
21 the "firearm" to the consumer and pay a $200 transfer tax. The
22 consumer must also first be approved for the registration to
23 receive the Tax Stamp. Once the NFA "firearm" is initially
24 registered, every subsequent transfer requires a tax and new
25 registration showing who and where the current possessor/owner
26 is. All of this is through license and commerce, of which,
27 Congress has Commerce Clause jurisdiction to impose these and
28 many more regulations. Congress can also tell Federally
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1_ licensed manufacturers and dealers they can no longer make and

2 deal machineguns for the Civilian Market, which is what Congress
3 did when amending the GCA in 1986 with 922(0).
4 Congress can tell Federal Firearms Licensees what to do with
5 the "firearms" they handle and require private citizens to
6 register those same "firearms" when they recieve them, or can
7 prohibit private citizens from possessing certain "firearms"
8 made by licensed manufacturers, but Congress cannot use the
9 Commerce Clause to reach their hand all the way into the home of
10 a private citezen and tell him he cannot make his own firearm or
11 require him to register and pay taxes on his private property.
12 To do so is a gross infringement on his personal right to arms.
13 There is only one direct tax, the Federal Income Tax, and it has
14 an Amendment to substantiate its existance.
15 Mr. Barbeau alleges the courts, U.S. Attorneys, and Federal
16 Law Enforcement Agencies are and have been reading GCA and NFA
17 statutes in isolation, missing the mark on the intent and
18 purpose of those regulatory schemes in their entirety. Congress
19 intended to regulate business under their Commerce Power with
20 the GCA and NFA schemes, not deprive the People of their Second
21 Amendment rights. Mr. Barbeau also alleges that; the Government
22 has no evidence to prove a "firearm" traveled in an interstate.
23 firearms market with attached jurisdiction; there is a question
24 of why a "minimal nexus" to interstate commerce is the standard
25 to convict for 922(g) possession, but there is none to convict
26 for 922(0); and Congress may not have properly ratified the
27 922(0) amendment.
28
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1. ARGUMENTS
2 I. THE GUN CONTROL ACT.
3 a} CHAPTER 44 DID NOT/DOES NOT ELIMINATE PRIVATE OWNERSHIP
OF MACHINEGUNS.
4
5 The Gun Control Act of 1968, Public Law 90-618 - "An. Act
6 to amend title 18, United States Code, to provide for better
7 control of the interstate traffic in firearms. Be it enacted
8 by the Senate and House of Representatives of the United States
9 of America in Congress assembled, that this Act may be cited as
10 the "Gun Cintrol Act of 1968". Title I - State Firearms Control
11 Assistance. Purpose - Section 101:
12 The Congress hereby declares that the purpose of this
title is to provide support to Federal, State, and local
13 law enforcement officials in their fight against crime
and violence, and it is not the purpose of this title
14 to place any undue or unnecessary Federal restrictions
or burdens on law-abiding citizens with respect to the
15 acquisition, possession, or use of firearms appropriate
to the purpose of hunting, trapshooting, target shooting,
16 personal protection, or any other lawful activity, and
that this title is not intended to discourage or
17 eliminate the private ownership or use of firearms by
law-abiding citizens for lawful purposes, or provide for
rs the imposition by Federal regulations of any procedures
or requirements other than those reasonably necessary
19 to implement and effectuate the provisions of this title.''
(emphasis added)
20
21 Clearly there is something amiss here. By Congress' own
22 declaration, 922(o)'s criminalization of possession and
23 transfer of machineguns made after 1986 couldn't. possibly reach
24 machineguns that a citizen makes for himself and are under
25 "private ownership". The Supreme Court ruled that it does not
26 violate the Second Amendment because Congress was exercising its
27 Commerce Clause Power, even though that subsection has nothing
28 to do with interstate commerce. If 922(0) reaches even private
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1. ownership of machineguns when there is no interstate commerce

2 . involved, then Congress is contradicting itself or the Judicial
3 Branch is extending the reach of the Legislative Branch in
4 violation of their purpose for the law.
5
6 b) THERE MUST BE A LIMIT TO CONGRESS' REACH, THOUGH THE
HIGHER COURTS HAVE OVEREXTENDED IT.
7
8 At some level, everything we own is composed of something
9 that once traveled in commerce. This cannot mean that every
10 thing is subject to Federal regulation under the Commerce
11 Clause, else that constitutional limitation would be entirely
12 meaningless. As Lopez, 514 US 549, reminds us, Congress' power
13 has limits, and we must be mindful of those limits so as not to
14 "'obliterate the distinction between what is national and what

15 is local and create a completely centralized government.'"
16 Lopez, 514 U.S. at 557 (quoting NLRB v. Jones & Laughlin Steel
17 Corp., 301 U.S. 1, 37; 81 L. Ed. 893, 57 S. Ct. 615 (1937)).
18 Section 922(0) must have certain implicit limits, noting
19 that, "because 922(0) has no jurisdictional element, it has
20 the potential to criminalize the possession of such guns that
21 have never traveled in interstate commerce." United States v.
22 Wright, 117 F.3d 1265, 1270, (11th Cir. 1997), vacated in
23. irrelevant part by 133 F.3d 1412 (11th Cir. 1998). Under the
24 reasoning of Gonzales v. Raich, 545 US 1, 125 S. Ct. 2195, the
25 Supreme Court has done just that. The Raich Court has rendered
26 the "constitutional limitation" of the Interstate Commerce

27 Clause meaningless. The Supreme Court has interpreted Raich as
28 standing for the proposition that Congress can prohibit
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1 possession of an object because "that object might bl'eed into

2. the interstate market and affect supply and demand." See United
3 States v. Stewart, 451 F.3d 1071, 1076-77 (9th Cir. 2006). The
4 Stewart Court applied the "might bleed into the interstate
5 market" reasoning to private ownership of a home fabricated
6 machine gun. That was clearly an unconstitutional extension of
7 Congress' Commerce Power, clearly a new step in the wrong
8 direction concerning the line of modern era precedents for
9 Commerce power interpretation. The distinction between a
10 central government and separate state governments has
11 essentially been obliterated by the Raich decision for objects
12 that might end up in an interstate market.
13
14 c) AS APPLIED, 922(0) IS UNCONSTITUTIONAL.

15
16 Mr. Barbeau's activity of mere possession is not within the

17 reach of Federal power because it is not commercial or economic
18 in nature and mere possession is an activity the Second
19 Amendment says shall not be infringed. Federal power to
20 regulate interstate commerce only extends by the "substantial
21 effectsn test of Lopez and the four prong test of Morrison, 529
22 u.s. 598 2 146 L. Ed. 2d 658 2 120 s. Ct. 1740 (20002. "In
23 passing on the validity of a congressional regulation of an
24 activity declared to affect interstate commerce, the only
25 function of the Court is to determine whether such activity is
26 within the reach of the Federal power." Darby, 85 LED 609, 312
27 US 100. An "object that might bleed into the interstate market"
28 is not a substantial effect.
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1 The purpose of the GCA is to regulate businesses 'and the
2 interstate traffic of firearms. Mr. Barbeau's mere possession
3 and even the attempted private sale of his private property had
4 nothing to do with interstate commerce. 922(o)'s
5 criminalization of transfer~ of machineguns to other than the
6 government couldn't mean to reach private "transfers" because
7 private transfers are not commerce by definition. In the Fifth
8 Circuit, the Court said in United States v. Shipley, 546 Fed.
9 Appx. 450, "Under federal law, individuals may not deal in

10 firearms without first receiving a license. Individuals without
11 licenses may make periodic sales of firearms from their personal
12 collections, although they may not engage in the regular
13 business of dealing firearms for profit." Mr. Barbeau tried to
14 sell a firearm from his personal collection and if Congress
15 believed that making periodic sales from personal collections
16 affected the interstate market, or even in the aggregate, had
17 a substantial affect on the interstate market, they would have

18 criminalized it and required a license. In the GCA, 921(a)(11)
19 defines a "dealer" as "engaged in the business of selling

20 firearms at wholesale or retail." 921(a)(21) defines "engaged
21 in the business" as applied to dealers means" ... a regular

22 course of trade or business ... '' Obviously, that is the
23 commercial activities that Congress intended to regulate and
24 is the only activities that Congress has the power to regulate
25 or prohibit. A one-time sale, not as a regular course, does not
26 give Congress jurisdiction. Reading 922(0) in isolation will
27 lead one to misinterpret to who and how that subsection applies.
28 Congress can protect interstate commerce by criminalizing

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1 actions taken against the commerce that have a negative impact.

2 . Mere possession is not an action taken against interstate
3 commerce. "Construing the Commerce Clause to permit Congress to
4 regulate individuals precisely because they are doing nothing
5 would open a new and potent~ally vast domain to congressional
6 authority." National Federation of Independent Businesses v.
7 Sebelius, 132 S. Ct. 2566, 183 L. Ed. 2d 450.
8 The Supreme Court did just that - opened a vast new domain -
9 with its decision in Raich and with Stewart II when it remanded
10 the case back to the Ninth Circuit. The Lopez Court said even
11 the "modern era precedents which have expanded congressional
12 power under the Commerce Clause confirm that this power is
13 subject to outer limits." Where are the outer limits if
14 Congress can regulate or prohibit possession of an object before
15 it might bleed into an interstate market, or an activity that
16 has no commercial or economic nature? The reasoning of the
17 Supreme Court in Raich and Stewart is unsettling.
rs
19 d) 922(0) IS FACIALLY UNCONSTITUTIONAL AS 922(q) WAS.
20
21 When "A general regulatory statute bears a substantial
22 relation to commerce, the de minimus character of individual
23 instances arising under that statute is of no consequence,"
24 Lopez at 558 (quoting in Stewart, 451 F.3d at 1074) except that
25 922(0) bears zero relation to commerce. Regulations of
26 commerce which do not infringe some constitutional prohibition
27 are within the plenary power confered on Congress by the
28 Commerce Clause, without regard to the motive or purpose of

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1 Congress in enacting such regulations. The Second Amendment is

2 . a constitutional prohibition that the National Governement
3 cannot infringe on the right of The People to keep and bear
4 their private arms. 922(0) has nothing to do with commerce as
5 it has no jurisdictional element or commerce nexus to make it a
6 regulation of interstate commerce. 922(0) is facially
7 unconstitutional because it does infringe on a constitutional
8 prohibition. See United States v. Darby, 85 LED 609, 312 US 100.
9 Because 922(0) has no nexus to interstate commerce or a
10 jurisdictional element, it is the same as 922(q) which the
11 Supreme Court ruled was unconstitutional in Lopez. 922(0) is
12 vague on its relation to interstate commerce. It cannot,
13 therefore, be sustained under the Supreme Court's cases
14 upholding regulations of activities that arise out of or are
15 connected with a commercial transaction, which viewed in the
16 aggregate, substantially affects interstate commerce.
17 Let's compare 922(g). It has three jurisdictional elements
l8 relating it to interstate commerce. When someone is charged for
19 violating 922(g), and if they choose to go to trial, the
20 Government will have an ATF Agent testify as an Interstate
21 Nexus Expert to prove the "minimal nexus i of US v. Scarborough,
22 431 US 563 (1977) and US v. Rothacher, 442 F. Supp. 2d 999 (9th
23 Cir. Dist. Ct. Montana, 2006) in order to prove jurisdiction.
24 But yet, 922(0) has nothing. All it requires is proof of mere

25 possession and knowledge that the firearm is a machinegun,
26 nothing relating to interstate commerce. How is the one easily
27 constitutional and the other not? After the Supreme Court
28 struck down 922(q) in Lopez, Congress added a jurisdictional
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1 element to the s ta tu te. They added the words "moved in or that

2 .otherwise affects interstate or foreign commerce ... " Congress
3 needs to add a jurisdictional element to 922(0) and the CourtB
4 need to strike down the statute. There is some evidence that
5 Congress did not properly ratify the amendment as explained in
6 attached Exhibit A, that 922(0) was added last minute.
7
8 II. CONGRESS LACKS AUTHORITY TO REQUIRE REGISTRATION AND TAXES,
UNDER THE NATIONAL FIREARMS ACT (26 USC 5801 et seq.),
9 FOR HOMEMADE SHORT-BARRELED RIFLES.
10
11 a) THE PURPOSE OF THE NATIONAL FIREARMS ACT (''NFA").
12
13 In enacting the NFA, Congress "Sought to regulate the sale,
14 transfer, and license of machineguns, sawed-off shot guns,
15 sawed-off rifle, and other firearms, other than pistols and
16 revolvers, which may be concealed on the persons, and silencers.
17 H.R. Rep NO. 75-2457, at 1 (1938). "As I understand, the
rs primary purpose of the bill is to stop gangsters from getting
19 hold of machine guns." Statement of Rep. William P. Connery, Jr.
20 78 Cong. Rec. 11,400 (1934). "when Congress passed the National
21 Firearms Act [in June 1934] imposing a tax on dealers in
22 fi~earms and on the traffic of firearms, the purpose and intent

23 of Congress was without question directed at the Dillengers, Ma
24 Barkers, and gangsters who were plaguing the country with crimes
25 of violence." MCKee & CO. v. First National Bank of San Diego,
26 265 F. Supp. 1 (C.D. Cal. 1967). "The National Firearms Act
27 arose from a motive to prevent rackateers, bank robbers, and
28 desperados from obtaining sawed-off shot guns and machine guns
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1 to run wild with crime and to enable the government to trace

2 . ownership. ti United States v. Adams, 11 F. Supp . 216, 218 (C.D.
3 Fla. 1935). Mr. Barbeau certainly was no rackateer, bank robber,
4 gangster, or desperado running wild in crime. To the contrary,
5 in fact, he made his rifle with its capabilities to defend his
6 Nation and fellow countrymen and women more effectively.
7 At the time, in the 30's and earlier, only blacksmiths and
8 manufacturing companies were able to make guns because of the
9 limited technology of the time and knowledge. The average
10 citizens didn't have the means and eaze to make advanced
11 weaponry at home like we do today. The Act as a whole is a
12 regulatory scheme providing requirements for businesses and
13 their "firearms". When you begin reading the Act at the
14 begining in sec ti on 5801, it says: "On ls t engaging in
15 business ... every importer, manufacturer, and dealer in firearms
16 shall pay a special (occupational) tax for each place of
17 business ... " Then you move to the next section, 5802, and it
rs says: "On first engaging in business ... each importer,
19 manufacturer, and dealer in firearms shall register ... in which
20 such business is to be carried on ... each location ... where he
21 will conduct his business." When a person registers his
22 business, he shall receive ."the appropriate license which,
23 subject to the provisions of this chapter and other applicable
24 provisions of law, shall entitle the Licensee to ... " (18 USC
25 923(a)) manufacture, import, and deal "firearms." The
26 appropriate license being a class 1, 2, or 3 under C.F.R 479.
27 32(b). Then after 5802, the proceeding sections are what a
28 person engaging in business and licensed to do so must obey.

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1 All the who-what-when-where-how much details comprise the rest

2 of the sections of the Act. This is the context the Act must
3 be read in. At the time the NFA was written, there were only
4 business manufacturing machineguns and other "firearms" so it is
5 pretty obvious who Congress.was trying to regulate. The law
6 addressed only them, requiring serial numbers for registration
7 and tracing purposes, and to aid in the collection of taxes on
8 the "taxable article", and to regulate the manufacturing and
9 dealing transactions that constitute the commercial activities
10 Congress has juridiction to tax and regulate. What people do
11 privately and non-commercially does not give Congress Commerce
12 Clause jurisdiction, or police power, or the so-called
13 "neccessary and proper" clause jurisdiction.
14 "[I]n expounding a statute, we are not ... guided by a single

15 sentence or member of a sentence, but look to the provision of
16 the whole law, and its object and policy." Pilot Life Ins. Co.
17 v. Dedeaux, 481 US 41, 51, 95 L Ed 39 1 107 S. Ct. 1549 (1987)(
1'8 emphasis added). 5861(d) is a "single sentence" but we must
19 look to the "object and policy" of the "whole law". Context
20 and "object and policy" of the "whole law" applies to how the
21 Gun Control Act and its 922(0) subsection is read too.
22 "In so concluding we do nothing more of course, than
follow the cardinal rule that a statute is to be read
23 as a whole, see Massachusetts v. Morash 49? US 107,
115 104 L Ed 98 109 S. Ct. 1668 1989 , since
24 meaning o statutory language, plain or not, depends
on context. See, e.g., Shell Oil Co. v. Iowa Dept. of
25 Revenue, 488 US 19, 26 102 L Ed 2d 186, 109 S. Ct. 278
(1988). 'words are not pebbles in alien juxtaposition;
26 they have only a communal existence; and not only does
the meaning of each interpenetrate the other, but all
27 in their aggregate take their purport from the setting
in which they are used .... ' NLRB v. Federbush Co., 121
28 F.2d 954, 957,(CA2 1941)(L. Hand. J)(Quoted in Shell
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1 Oil, supra at 25, n6)." Kin~ v. St. Vincent's Hospital,

502 US 215, (emphasis added .
2
3 The language of 922 ( o) and 5861 ( d) - it shall be unlawful to
4 possess a machinegun, or unregistered firearm - is plain and
5 when read in isolation caused Mr. Barbeau some confusion. The
6 "depends on context" concept was realized and understood by Mr.
7 Barbeau when researching the law before he made his rifle.
8 When he read most of the rest of the NFA and the GCA, Mr.
9 Barbeau saw that "in their aggregate take their purport from the
10 setting in which they are used," settings in which Congress used
11 its commerce power to regulate the commercial firearms industry.
12 Mr. Barbeau was trying to avoid violating any laws.
13
14 b) 5861(d) IS UNCONSTITUTIONAL AS APPLIED AND FACIALLY.
15
16 Under the reasoning of United States v. Kirk, 70 F.3d 791,
17 796, (5th Cir. 1995) and United States v. Rambo, 74 F.3d 948(9th
18 Cir. 1996), 5861(d) criminalizes possession of an unregistered
19 "firearm" because the unlawful possession would be preceeded by
20 an unlawful transfer. When a licensed manufacturer makes an
21 SBR or other "firearm", they are required to register it first,
22 before making it. Then, when transfered to a dealer to sell,
23 the dealer gets registered as the new possessor. When the
24 dealer sells the registered SBR to a customer, that person is
25 required to get registered as th~new possessor before it
26 transfers. At any time during the flow in commerce or after
27 private possession commences, the SBR or other "firearm" is
28 possessed by someone not registered to possess, that possession
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1 is illegal. Congress can regulate and criminalize th'is because

2 there is a direct nexus to interstate commerce between the
3 businesses manufacturing and dealing, and the "firearms"
4 traveling down the commerce stream. Once an SBR or other
5 "firearm" is initially registered by the manufacturer, every
6 single subsequent transfer of possession must be accompanied by
7 a registration and tax paid.
8 Mr. Barbeau made his own SBR and was neither a licensed
9 manufacturer or engaging in business unlawfully without a
10 license when he made his own gun. Therefore, interstate
11 commerce does not exist to give Congress jurisdiction.
12 Additionally, no unlawful transfer preceeded Mr. Barbeau's
13 possession. S861(d) is without a jurisdictional element to
14 limit its reach and is thus unconstitutional on its face. Mr.
15 Barbeau's mere possession of his private property has no
16 commerce nexus like the "minimal nexus" required for a 922(g)
17 conviction under Scarborough, 431 US 563 (1977).
f8 5861(d) is unconstitutional as applied to Mr~ Barbeau's
19 activity of mere possession because there is no interstate
20 commerce. The Supreme Court ruled in Sonzinski v. United :
21 States, 300 US 506, 81 LED 772, that the NFA is constitutional
22 as an excise tax on the doing of business. It is
23 unconstitutional to apply an excise tax scheme on
24 not-the-doing-of-business or to take an excise tax and apply it
25 as a direct tax. In Mr. Barbeau's as-applied challenge, this
26 Court should run the "substantial effects" test of Lopez and the
27 four prong test of United States v. Morrison, 529 US 598, 146
28 L. Ed. 2d 658, 120 S. Ct. 1740 (2000), to Mr. Barbeau's
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1 possession of an unregistered SBR to determine if there is

2 as-applied constitutionali~y for 5861(d).
3 5861(d) is unconstitutional facially because it lacks a
I
4 jurisdictional element and criminalizes mere possession, an

5 activity that has nothing t~ do with interstate commerce, just
6 like the Supreme Court foupd in Lopez for 922(q), and because
7 mere possession is an activity protected by the Second
8 Amendment. 922(0) and 5~61(d) both are "a criminal statute
9 that by its terms has nothing to do with 'commerce' or any sort
10 of economic enterprise, however broadly one might define those

11 terms." Lopez, 514 US at 5p1, (ephasis added).
12
. '
13 III. 922(0) AND 5861(d) ARE UNCONSTITUTIONAL ON VOID FOR

VAGNESS AND VIOLATE DUE PROCESS ON LACK OF FAIR NOTICE.
14
15 Mr. Barbeau did not understand the statute's criminalization
I
I
16 of mere possession of a ma~hinegun or unregistered "firearm"

17 when read against the U.S .. Constitution and Bill Of Rights. See
18 United States v. Lanier, 137 LED2D 432, 520 US 259; Bouie v.
19 Columbia, 378 US 347, 12 L Ed 2d 894. "The constitutional
20 requirement of definitness !is violated by a criminal statute
21 which fails to give a person of ordinary intelligence fair
!
22 notice that his contemplat~d conduct is forbidden by the

23 statute; the underlying principle is that no man shall be held
24 criminally responsible for .conduct which he could reasonably
25 understand to be proscribeq." United States v. Harris, 347 US
'
26 612, 98 Led 989, (quoted irl Bouie v. Columbia) emphasis added).

27 The Statutes are void for vagness. "If the Fourteenth
28 Amendment (or the Fifth Amendment) is violated when a person
MOTION TO DISMISS INDICTME~T - 17 FDC SeaTac #46153-086
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1 is required 'to speculate as to the meaning of penal statutes,'

2 as in Lanzetta, or to 'guess at [the statute's] meaning and
3 differ as to its application,' as in Connally, the violation is
4 that much greater when, because the uncertainty as to the
5 statute's meaning is itself not revealed until the court's
6 decision, a person is not even afforded an oppurtunity to engage
7 in such speculation before commiting the act in question."
8 Harris, (emphasis added).
9 "There can be no doubt that a deprivation of the right to
10 fair warning can result not only from vague statutory language,
11 as the Court recognized in Pierce v. United States, 314 US 306,
12 86 Led 222, 'judicial_ enlargement of a criminal act by

13 interpretation is at war with a fundamental concept of the
14 common law that crimes must be defined with appropriate
15 definiteness. '" Bouie v. Columbia, (emphasis added). When the
16 Supreme Court decided Gonzales v. Raich and applied it to the
17 9th Circuit's Stewart case, there was "judicial enlargement" of
1'8 922(0),and its already vague language. When the 9th Circuit
19 heard Stewart's appeal in 348 F.3d 1132 (2003), the Court
20 decided the case properly, finding Stewart's making of his own
21 machineguns had nothing to do with commerce and Congress had no
22 jurisdiction. However, after Raich, 922(0) was judicially
23 expanded, and Mr. Barbeau recieved no fair notice of this
24 precedent, which ''is at war with the fundamental concept of the
25 common law that crimes must be defined with appropriate
26 definiteness." Maybe 922(0) should be amended to include the
27 Supreme Court's Raich opinion and the 9th Circuit's Stewart
28 opinion from 451 F.3d 1071, so that "a person of ordinary
MOTION TO DISMISS INDICTMENT - 18 FDC SeaTac #46153086
P.O. BOX 13900
Seattle, WA 98198
1 intelligence" can receive fair notice and learn the statute' s
2 "judicial expansion."
3 "To be consistent with the constitutional requirement of Due
4 Process, the terms of a penal statute creating a new offense
5 should not forbid or requir~ the doing of an act in terms so

6 vague that men of common intelligence must necessarily guess at
7 its meaning and differ as to its application, but must be

8 sufficiently explicit to inform those who are subject to it what
9 conduct on their part will render them liable to its penalties."
10 Lanzetta v. New Jersey, 83 LED 888, 306 US 451,(ernphasis added).

11 On their face, 922(0) and 5861(d) are repugnant to the Due
12 Process Clause of the Fifth Amendment. See Lanzetta.

13 When Mr. Barbeau first read the statutes, 922(0) and 5861(d)
14 he had to guess at their meanings and he differed on their "any
15 person'' application. At the time, in 2013, he knew the Second
16 Amendment says "shall not be infringed" and that Congress only
17 had one way around that instruction with its interstate commerce
18 power. When He has read 922(0) and 5861(d), Mr. Barbeau saw no
19 language tying them to interstate commerce or affecting
20 interstate commerce, like, say, 922(g) does. Mr. Barbeau had

21 to guess that the statutes when read in isolation must some how
22 be tied to interstate commerce throught Congress' regulation of
23 Federally licensed manufacturers and dealers, and those firearms
24 commercially produced and having traveled in interstate commerce
25 in order to prohibit or tax possession. Clausulae inconsuentae
26 semper inducunt suspicionem.

27 Due Process doctrine requires a process of law to deprive
28 .individuals of their rights and liberty. That process can only

P.O. BOX 13900
Seattle, WA 98198
1 take place during judicial proceedings. Placing responsibility

2 of fair notice on an object to give, as the Supreme Court said
3 in Staples v~ United States, 511 U.S. 600, 114 S. Ct. 1793, 128
4 L. Ed. 2d 608 (1994), saying that dangerousness alone should
5 alert one that an object is likely regulated and puts the owner
6 on notice, is repugnant to due process. An object cannot give
7 notice and satisfy due process. Possession of a supposed
8 "dangerous or deletrious device" - a short-barreled machinegun -
9 does not place the owner in responsible relation to public
10 safety because the gun by itself does not harm the public, it is
11 the human being who goes out and harms people. What if Mr.
12 Barbeau was not alerted to an object's supposed given notice?
13 It is the Government's responsibility to give notice . The
14 Legislature cannot deprive all Peoples' liberty by legislative
15 enactments. Due process requires notice and a hearing to state
16 objections before a person's life, liberty, and property be
17 deprived. How are people who haven't been born yet supposed to
rs state their objections and have representation before the
19 Legislature enacts a law? That is why due process takes place
20 on an individual basis in a judicial proceeding to deprive The
21 People of their liberty and property, and that is why 922(0)
22 and 5861(d) couldn't apply to people making, keeping, or even
23 on occasion privately selling their personal property(arms). If
24 922(0) and 5861(d) apply in all cases of firearms possession,
25 no matter what, even homemade ones outside of interstate
26 commerce, then Mr. Barbeau's right to due process has been
27 violated.
28 Fair notice is given to all the Federally licensed firearms

P.O. BOX 13900
Seattle, WA 98198
1 Businesses. Mr. Barbeau sees that it is required by law for

2 Licensees to receive notice of new faws and regulations. Act
3 May 19, 1986, P.L. 99-308, 110, 100 Stat. 460, provides:
4 "(a) In general. The amendments made by this Act shall
become effective one hundred and eighty days after the
5 date of the enactment of this Act. Upon their
becoming effective, the Secretary shall publish and
6 provide to all licensees a compilation of the State
laws and published ordinances of which licensees are
7 presumed to have knowledge pursuant to chapter 44 of
title 18 United States Code, as amended by this Act.
8 All amendments to such State laws and published
ordinances as contained in the afforementioned
9 compilation shall be published in the Federal Register,
revised annually, and furnished to each person licensed
10 under chapter 44 of title 18, United States Code, as
amended by this Act."
11 Basically, the ATF is required to give notice to every Federally
12 licensed importer, manufacturer, and dealer all the laws and
13 regulations they are required to obey, but not to all the
14 citizens of this Union. Either this means fair notice is given
15 to whom the laws apply - the FFL holders - or millions and
16 millions of citizens are negligent to read everything in the
17 Federal Register, the entire U.S. Code, the entire Code of
18 Federal Regulations, and the entire Federal case law. Mr.
19 Barbeau had never even heard of the Federal Register until after
20 he built his rifle.
21 The U.S. Constitution delegates only to the Legislative
22 Branch to write law. Article VI says "laws of the United States
23 which shall be made in pusuance thereof ... " and that references
24 Congress delegated power. The Judicial Branch is not delegated
25 this power to write laws. Citizens of the United States and
26 Citizens of the Several States are only obligated to obey the
27 laws of the United States which have been made in pursuance
28 thereof, not to obey case precedents. If they do, then where is
MOTION TO DISMISS INDICTMENT - 21 FDC SeaTac # 46153-086
P.O. BOX 13900
Seattle, WA 98198
1 the required notice of due process for Raich, Stewart, and U.S.
2 v. Henry to Mr. Barbeau and the rest of the public?
3
4 IV. THE RULE OF LENITY APPLIES.

5
6 In a number of cases, the Supreme Court has held or
7 recognized that the rule of lenity does not apply unless there
8 is a genuine ambiguity in a criminal statute that cannot be
9 resolved by consideration of the statutory language and
10 legislative history. Mr. Barbeau has already addressed the
11 issues of the statutory language of 922(0) and 5861(d), their
12 context, and the legislative history, or rather, a lack of
13 legislative history for 922(0). Congress declared it wasn't
14 intending to eliminate private ownership of firearms, yet
15 922(0) eliminates private ownership of firearms. 5861(d)
16 criminalizes possession of unregistered "firearms", but how does
17 commerce power reach private making and owning of a firearm for
f8 personal use by a private citizen when no commerce is involved?
19 Do these statutes apply to people's homemade personal arms or
20 only to commercially produced arms?
21 "Application of the rule of lenity ensures that criminal
22 statutes will provide fair warning concerning conduct rendered
23 illegal and strikes the appropriate balance between Legislature,
24 the prosecutor, and the court in defining criminal liability."
25 Yates v. United States, 135 S. Ct. 1074, 191 Led 2d at LEdHR20,
26 (2015).
27 "Even if the statute were wrongly thought to be ambiguous
28 at this point, the rule of lenity would defeat the government's

P.O. BOX 13900
Seattle, WA 98198
1 construction. It is a 'familiar principle' that 'ambiguity

2 concerning the ambit of criminal statutes should be resolved in
3 favor of lenity.' That principle prevents us from giving words
4 of a criminal statute 'a meaning that is different from their
5 ordinary, accepted meaning, and that disfavors the defendant."
6 Abramski v. United States, 134 S. Ct. at 2280, 189 L. Ed. 2d at
7 292, (J Scalia dissenting, 2014).
8 Mr. Barbeau invokes the rule of lenity because of the
9 ambiguity of the two statutes and their lack of connection to
10 interstate commerce under United States v. Bass, 404 US 336, 30
11 L Ed 2d 488, and Scarborough v. United States, 431 US 563, 52
12 L Ed 2d 582.
13
14 V. CONCLUSION.
15
16 In the end, it all comes down to this: "Legislative

17 enactments providing for taxation, regulation, or prohibition
1'8 of any activity are not presumed to be constitutional when
19 applied to exercise of fundamental personal rights, because the
20 legislative declarations are not supreme when confronted with,
21 the Bill of Rights." Shuttlesworth v. Birmingham, AI, 373 US
22 262.
23 '"[N]o convention or Legislature has the right, under our
24 form of government, to prohibit any citizen from manufacturing
25 for his own use, or for export, or storage, any article of food
26 or drink," or likewise, a firearm, "not endangering or affecting
27 the rights of others ... ' in the implied compact between the
28 State and the citizen," or the United States and the citizen,
P.O. BOX 13900
Seattle, WA 98198
1 "certain rights are reserved by the latter, which are guaranteed
2 by~the constitutional provision protecting person against being
3 deprived of life, liberty, or property, without due process of
4 law ... our system of government, based upon the individuality

5 and intelligence of the citizen, does not claim to control him,
6 except as to his conduct to others, leaving him the sole judge
7 as to all that only affects himself ... while power does not
8 exist with the whole people to control rights that are purely
9 and exclusively private, government may require 'each citizen to
10 so conduct himself, and use his own property, as not to

11 unneccessarily to injure another.'" Mugler v. Kansas, 123 US at
12 659~60, 31 LED 205, (emphasis added).
13 Mr. Barbeau's rights are reserved. Never has he yielded

14 them to anyone. Mr. Barbeau has never harmed anyone while
15 exercising his rights. Mr. Barbeau's right to keep and bear
16 arms, to be secure in his property, and to not be deprive of his
17 liberty and property without due process of law are rights that
1'8 are purely and exclusively private. This case should be
19 dismissed with prejudice, for the reasons stated in this Motion,
20 and Mr. Barbeau requests an order barring the Government from
21 bringing any new charges under the Gun Control Act and the
22 National Firearms Act.

23
24 VI. QUESTIONS FOR THE COURT.

25
26 1) 18 USC 923(c) says: "Upon the filing of a proper
27 application and payment of the prescribed fee, the Attorney

28 General shall issue to a qualified applicant the appropriate

P.O. BOX 13900
Seattle, WA 98198
1 license which, subject to the provisions of this chapter
2 and other applicable provisions of law, shall entitle the
3 licensee to transport, ship, and receive firearms and

4 ammunition covered by such licen~e in interstate or foreign
5 commerce ... " What "firearms" are "covered" by the license
6 and which ones are not?

7
8 2) How could it be fair to prosecute and sentence someone up
9 to ten years in prison for making something out of plastic
10 and metal (the Drop-In-Auto-Sear, which is a machinegun by
11 definition in GCA, and the rifle) for their own personal

12 use?
13
14 3) How is justice served by punishing someone for an innocent

15 act and for exercising rights they believe they had?
16
17 4) Who is the injured party of Mr. Barbeau's supposed crime
f8 and how are they to be restored from him having made
19 something for himself - a victimless crime?

20
21 5) How can Mr. Barbeau, or any citizen, exercise his right to

22 keep and bear arms if he can't make those arms for himself
23 in the first place?

24
25 6) If the rifle and DIAS are not registered, how can they be
26 regulated?
27
28 7) How does any such laws, and how does any such .government
P.O. BOX 13900
Seattle, WA 98198
1 promote and "secure the blessings of liberty" with so much

2 regulation?
3
4 8) The ATF says on their website that it's perfectly legal to
5 machine an 80% lower receiver and build an AR-15 with no
6 serial number or registrations. Could that be because they
7 don't have jurisdiction over homemade guns? But if one
8 adds one extra feature, installs a short barrel or the
9 select-fire parts, suddenly, out of nowhere, the Federal
10 government has jurisdiction to require a serial number,
11 registration, and taxes, or to prosecute for violation of
12 922(o)'s prohibition. How does that make sense?
13
14 9) According to the Gun Control Act (18 USC 921 et seq.)
15 and 922(0), it is only unlawful to possess and transfer
16 machineguns but there are not statutes that prohibit
17 making machineguns. How does it make sense that Mr. Barbeau
18 could make machineguns but not possess them? Mr. Barbeau
19 believes, based on studying the GCA and case law on it,
20 the 922(0) only tells manufacturers they can no longer
21 make machineguns for the civilian market, only for the
22 government, and tells dealers that they can no longer sell
23 or '~transfer" machineguns to civilians, only to the
24 government. It makes logical sense that if someone is
25 found with a machinegun, and the serial number traces to
26 a manufacture date after 1986, then it would mean that
27 person is in possession of government property. Mr.
28 Barbeau has not found any court to have addressed this
P.O. BOX 13900
Seattle, WA 98198
1 issue. Mr. Barbeau's rifle was handmade and wouldn't be

2 government property under that logic. Would it make more
3 sense that 922(0) addresses licensed manufacturers and
4 dealers telling them only to make and deal machineguns for
5 the government and that possession of their machineguns
6 made after 1986 would be government property and thus that
7 possession is what is illegal?
8
9 10) Supposedly the Second Amendment does not protect SBR's and
10 machineguns because they are "dangerous and unusual"
11 because they are "not typically used for lawful purposes
12 by law-abiding citizens." While that may have been true
13 in the 1930's when rackateers, bank robbers, and mafia
14 were running wild in crime, that is not true today. There
15 are approximately 186,000 legally owned and registered
16 machinguns that were made prior to 1986. They are not
17 being used in crimes of violence. Mr. Barbeau contends
rs that he was using his rifle for lawful purpose~ of target
19 shooting, and self defense, and hunting; that an SBR is
20 much better for self defense inside a home, especially
21 inside the trailors he was living in most recently. Does
22 having the old machineguns or new SBR's registered suddenly
23 make the gun no longer "dangerous and unusual" where it's
24 safe to own and not a danger to the public?
25
26 11) Exhibit B shows a "blade stabilizer." Exhibit C shows a
27 utube cover" or "tube cover saddle." If you build an AR-15
28 SBR and instead of installing a typical adjustable
P.O. BOX 13900
Seattle, WA 98198
1 buttstock, you install a blade stabilizer as depicted in

2 Exhibit D, or install a tube cover saddle as depicted in
3 Exhibit E and F, the rifle becomes a pistol, but only
4 technically. The AR-15 pistol and the SBR AR-15 are the
5 same thing except one single piece of plastic on the buffer
6 tube. According to the Supreme Court in Heller, 554 U.S.
7 570, the Second Amendment protects pistols, but not SBR's.
8 Why are the AR pistols in Exhibits E and F perfectly legal
9 and protected, requiring no registrations or taxes, but
10 Mr. Barbeau's rifle in question, Exhibit G, does require
11 registration, is not protected by the Second Amendment, and
12 can land him in prison for up to ten years if he doesn't

13 register it?
14
15 Dated this 28th day of April, 2017.

16
17
l8
19 Respectfully submitted,
~r~
20
21
22 Defendant, pro se
23
24
25
26
27
28

P.O. BOX 13900
Seattle, WA 98198
1 CERTIFICATE OF SERVICE
2 I hereby certify that on April 30th, 2017, I caused this
3 Motion to be mailed t~ the Court and one copy to be mailed to
4 the United States Attorney on this casef which is considered
5 filed/served at the moment it was delivered to prison.autho.rities
6 for mailing as provided for in Houston v.Lack, 487 U.~. 266,
7 101 L. Ed. 2d. 245 (1988), by placing a complete copy. of this
8 Motion in a sealed envelope, affixed with the appropriate
9 .postage, and deposited with prison officials at the Federal
10 Detention Center in Seattle, Washington.
11 Pursuant to 28 U.S.C. 1746, I declare under penalty of
12 purjury that the foregoing is true and correct to the best o.f my
13 knowledge.
14
15
16'
17
~~
~RB.EAU. .
Defendant, pro se
Reg: #46153-086 Unit: DB
18 FDC SeaTac
P.O. BOX 13900
1.9 Seattle, WA 98198-1090
20
21
22
23
24
25
26
27
28
MOTION TO DISMISS INDICTMENT - 29 FDC Seatac #46153-086
P.O. BOX 13900 _
Seattle, WA 98198-1090
Machine Guns Are Legal: A Practical Guide to Full Auto
Posted May 21, 2014 in Other Gear & Gadgets by Alex C. with 45 Comments
Tags: machine guns, nfa, Full-auto
1960
73155
341
mgstamps
I love machine guns. They don't call the selectors on automatic firearms "fun switches" for nothing, and
I have yet to hand off a machine gun to someone and have it not bring a smile to their face (it brings me
joy exposing people to full auto for the first time). For the sake of this article, the word "machine gun"
will meet the ATF's definition: 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 machine gun was invented here in the USA by Hiram Maxim, and interestingly enough, the USA is
one of the few countries on the planet where regular folks can in fact own a ful~y automatic firearm. In
fact, machine guns have never been illegal in the USA on a federal level. They are heavily regulated, but
not illegal at all.
The timeline of machine gun legislation is as follows:
Prior to 1934, machine guns were not regulated any differently than any other firearm. You could quite
literally order a machine gun from a mail order catalog ... and people did. Thompsons for example
initially did not interest the military too terribly much, but the guns found a niche with individuals
seeking personal protection, police agencies, and unfortunately, gangsters. Ads like this were not
uncommon:
COWBOY AD
A p~ 2
Prompted by prohibition era gangsters and the rise of organized crime (law enforcement was seriously
outgunned by the likes of bad guy like Dillinger), the United States drafted the National Firearms Act
which passed in 1934. The National Firearms Act did not ban machine guns, but it made them
impossible to afford for most people. To buy a machine gun under the 1934 NFA, an individual needs to
submit the following (the procedure remains unchanged even today):
Pay a tax of $200, which in 1934 was worth over $3,500
Fill out a lengthy application to register your gun with the federal government
Submit photographs
Submit passport photos
Get your chief law enforcement official to sign your application
Wait for the results of your background check to come back
A violation of the national firearms act results in a felony punishable by up to 10 years in federal prison,
a $100,000 fine, and forfeiture of the individual's right to own or possess firearms in the future.
The next big piece of legislation pertinent to machine guns occurred in 1968 with the Gun Control Act.
The Gun Control Act established that imported firearms that had "no sporting purpose" were not able to
be sold to civilians. Machine guns as a whole were determined to have no sporting purpose, and thus
any MG imported after '68 are able to be owned only by dealers, military, and police agencies. One bit ,
of good this act did was allowed for a registration amnesty. It became apparent that there were so many
unregistered machine guns in the US that had been brought back by veterans, that they should be able
to register them tax free. Luckily many of them did, but the amnesty ended after just one month (the
feds owe us another few months, this humble author believes).
The last piece of machine gun legislation is to many the coup de grace. In 1986 the Firearm Owner-s-
Protection Act was intended to prevent the federal government from creating a registry of gun owners.
At the last minute, William Hughes added an amendment that called for the banning of machine guns.
Charlie Rangel said that the "amendment in the nature of a substitute, as amended, was agreed to."
However, after the voice vote on the Hughes.Amendment, Rangel ignored a plea to take a recorded vote
and moved on to Recorded Vote 74 where the Hughes Amendment failed. The bill passed on a motion
to recommit. Despite the controversial amendment, the Senate adopted H.R. 4332 as an amendment to
the final bill. The bill was subsequently passed and signed on May 19, 1986 by President Ronald Reagan.
Thus, Reagan's signature banned the registration of new machine guns in the USA.
So what does this mean? This is where it gets complicated:

A
Machine guns are not illegal, but it is illegal to make and register new ones on a form 1 (as you would
do for an SBR)
T~ay around the May 19th, 1986 date. if the machine gun in question was made after that
-------
date, you may not own it (unless you are a dealer)
Also, there are three types of machine guns ~hat determine the gun's legal status:
Transferable: Guns registered prior to May 19th, 1986 that are able to be owned by everyone. There
are only 182,619 transferable machine guns according to the ATF.
Pre-Samples: Machine guns imported after 1968 but before May 19th, 1986. The 1968 GCA established
that machine guns with no sporting purposes could not be sold to civilians. Dealers can however buy
them and keep them after they give up their licenses. As a general rule, pre-samples cost about half that
of a transferable.
Post-Samples: Machine guns made after the May 19th, 1986 cutoff date. These are only for dealers,
manufacturers, military, and police. A manufacturer who pays $500 a year is permitted by the federal
government to manufacture these. A dealer (who is not a manufacturer) may acquire these if a police
agency provides a "demo letter". A demo letter is simply a letter from a PD asking you to acquire a
sample gun for them to test and evaluate for potential purchase. Unfortunately dealers must sell or
destroy post samples when they give up their license.
So that is that. I have looked and looked to try and find out NFA facts and a window into the registry, but
most of it is internet lore and information from manufacturers records. I have seen the following as per
estimates of how many of what exist:
a. 7,200 Hk sears
b. 6,000 FNC sears
c. 20,000 Mll/9s
d. 500 SWD Lightning Links
e. 500 RIA M60s
f. 3300ish Group Industry (aka Vector) Uzi's

A
g. At least 20,000 M 16s
h. The NFA records are completely messed up, the ATF says the error rate on pre-68 records is 50%.
i. You have to assume that probably 10 to 20% of the 183K registered guns are easily gone now since
1943 (lost, stolen, damaged beyond repair). You have to remember that prior to 86 there wasnt a whole
lot of value in a damaged M16 when the transfer or making tax was 1/3 the cost of the gun itself. Similar
to suppressors today, who buys a used or damaged can when 25% of the value is in the transfer tax and
you could just buy a new one from a dealer.
As a result of the closed registry, we cannot get new machine guns. We simply trade the ones that have
been out there for years. This has resulted in very high prices. For example, one can get an AR15 for
$600-700 in the USA, but I have seen converted automatic AR15s sell for $17,000. Factory Colt guns can
go for $25,000+. Uzis which were a few hundred dollars back in the day are now bringing $12,000! This
has created a small fiat driven marketplace for an extremely low amount of goods with an insanely high
demand. For example, this here is a rather unremarkable piece of steel:
IMG_5402
The bit of hardened steel is a registered Fleming HK sear. I have seen one sell for $27,000 so at roughly
0.25 ounce~, that makes this steel worth $108,000 an ounce which makes it perhaps the most
expensive metal on the planet (barring some obscure lanthanide or actinide) and 83 times more
expensive than gold!
However, as the value on machine guns very seldom goes down, you could probably get your wife to
.. understand your desire to buy one with the old "it's an investment honey''. It sure is an investment too.
I bought my first MG in January of 2010 for $3,000, and it is now worth $5,500. That is a 54% return on
my purchase in just four years! I wish that all of my investments were like that one, and this even
encouraged my father to get into the game (he even bought himself a machine gun not too long ago as
an investment he can enjoy). That said, I would gladly take the monetary hit on my collection if others
and myself could acquire post samples fre.ely like they can suppressors.
A few frequently asked questions:

A
How does this guy on youtube have all these cool post-86 machineguns? He is either a dealer, a friend
of a dealer, or a manufacturer. We were able to perform our series on the KRISS Vector because
representatives from KRISS were the.re.
What are you and everyone else going to do when they repeal the machine gun ban? I don't see this
happening, but I would rejoice. I would love for sub-gun matches to become more common, rather than
meetings of dealers and people who are very well off.
What about trusts, is that loophole going away? First of all, the trust method of acquiring NFA items is
not a loophole. It is written into the text of the 1934 National Firearms Act that trusts and corporations
meet the act's definition of a person. Even the proposed rule changes will not eliminate trusts, just make
each trustee apply for the transfer. This will make buying NFA guns much more of a headache to obtain.
I have a machine gun my grandpa left in the attic. What do I do? For the love of God, look for
paperwork. If you find it, you are now much richer if you apply for a tax free form 5 (estate transfer). If
you cannot find paperwork, torch cut the gun's receiver and sell the parts, give it to a PD, or put the gun
on a form 10 and give it to a museum (write an agreement that you can get the gun back if laws change).
So that is about it for machine guns in the USA. If you have any questions, please either post them below
of feel free to email me. I will try my best to answer anything I can!
- See more at: http://www.thefirearmblog.com/blog/2014/05/21/machine-guns-legal-practical-guide-

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U.S. Department ofJustice
Bureau of .Alcohol~ Tobacco,

Firearms and Expl()sives
M<111insb11rg, WV 15405
\\'WWiltf.gov
9070lO:WJS
33111302787
DEC 182014
Mr. Alan Thordsen

Thordsen Customs, LLC
214RyanWay
South SM FrMcisco~ CA 94080
Dear Mr. Thordsen,
This is .in response to your letter, with accompMying samples; inwhich you asked for
clarification of an ATF letter rulingin which Firearms Technology Industry Services
Bl"Mch {FTISB),. fonna1ly Firearms Technology Branch(FTB) (FTB letter 2011-281-
MRC) in which our Branch answered a question regarding the 1egalityofattachinga
cheek "saddle" to anAR-type pistol. Further, as a part of this inquiry, you asked for a
formal evaluation o(the accompMying cheek "saddles" apd scenarios in wliichth,ese
items maybe used in the asseinbly ofAR-type pistols.
As background to youdnquiry, thefollowing review of definitions provided in Federal

statutes and implementing regulations should be useful:
The Gun Control Act of1968 (GQA), 18 U.S'.C. 92l(a)(29), defines llhandgun," in
part, as ... afireann which has a short stock and is designed to be held and fired by the
use ofa single hand.... ~
A regulatiop. implementing the GCA, 27 CFR 479JJ, defines "pistol" to mean-

.
... a weapon originally designed,. made; and intended to fire a projectile (bullet) from one
or more barrels whenheldin one hand, and having (a) a chamber(s) a$ an integral
part(s)of,or permanently alignedwith, the bore(s),; and (b) a shortstockdesigned to be
gripped by one handan4at an angle to and extending below th.e line ofthe bore(s).
The GCA, 18 U.S.C. 92l(a)(7) defines the term "riflei as-
... a weapon designed of redesfgned, made or remade, and intended to befired from the
shoulder t;l11;d desigtied or redesigned and made or remade to use the energy of an
Mr. Alan Thordsen Page2
explosive to fire only a singleprojectile through a rtfled fore foreachsingle pull of the
trigger.
The National Firearms Act(NFA), 26 U;S.C ~ 5845(a), defines ifirearm" toinclude ... a
rifle having a.barrel or barrels ofless than 16 inches in length ... and, .qweppon ;nade
from a rifl.e ifsuch weapon as modifie4 has an overall length ofl~s than 26 inches or a
barrel or barrels ofless than 16 inches..,.
Please be aware the focus of FTISB is to determine whether an item is -Or is not a
''fireann" as defined in the OCA or NFA.
Th,e following is a description of your submitted items:
Sample#l:
A Command Arms, Model SS'F-1, stock saddle; fhat is tan in col()r and is attached to a
buffer tube cover, containing an AR.;.type buffer tube.
Sample#2:
A Command Arms, Model SST-], stm;k saddle that is tan in color and is attached to a
buffer tube cover; containing an AR-type buffer tube.
Sample#3:
A Mission First Tactical (MFT) Evolv Battle Stock attachinent (E2BSA), blackin color;
attached to buffer tube cover, containing an AR-type buffer tube.
As you know, shoulder stocks normally attach to the receiver ofa shoulder-fired firearm.
However, in the case of an AR- type, it attaches to the receiver extension, commonly
referred to as the buffer tube. A sl1oulder stock provides a means for the shooter to
.. support the firearm and easily aim it. With respect to a saddletcheek piece~ the submitted
devices is an accessory attadunent designed to enhance the "cheek weld" of an AR-ty.pe
rifle shoulder stock or ARtype pistol buffer tube by widening the prqfile of its outer
dimensions. As received, the submitted (3) three ite.rns are not ''firel,\rms'' as defined in
the Gun Control Act of 1968; 18U~S.C. 921 (a)(3).
Saddle devices designed for "cheek enhancement" generally would not change I.\ pistol's
classification to a "short-barreled rifle." F'fISBfirtdi:> that the submitted Sl.\ddle qevices
ar~not designedtosl.,lppo:rt the ARtype pistol in the shoulder of the shooter during firing
bu~ rather, to rest against the shooter's cheek.
Mr. Alan Thordsen Page3
FTJSB 's evaluation ofthe sbrnittc;:d items consequently finds the attachment ofthe .stock
"saddle" to an AR-type pistol would not change the classification of the pistolto an SBR.
Our Branch further notes thalas long as the saddle device as evaluated and insta1Ied to an
AR"type pistol, is not designed or redesigned and intended to contact the sb<nilder and is
not used as a shoulder stock its possession and use would not be prohibited.
Our Branch also fi11ds that the use of extension tubes or spacers inthe "saddle"
attachi:nent to an J\R:..type pist9l could change the classification of the. subject ''pistol''.
If the subject extensions or spacel'S were installc;:d in a manner to allow an AR..type
~'pistol"to achieve an overalllengthgreater than 26 inches and not actua1lyconcea,led()Ii
a.person; the;: subject weapon wol1ldnot be classified asa''anyotherweapon''. Aweapon
of this type wold be properly classified as a "fireann" as defined in 18 U.S.C. 921
(a)(3).
Thereceiver extensjon/buffer tube on an AR type pist9l seryes a legitipiate, vital function

in the operation 9fthe weapon system; and if utilized as 9pginallydesigned is not
considered to be a shoulder stock. Further, a pistol thathas anAR-type buffer tube or
similar component assembled to it, which consequently allows for the installation of a
saddle/cheek enhancementaccessory, is n.ot classified as a SBR; nor unlawful to possess.
However, if a pistol assembled with an AR-type buffer tube or similar component; which
in turn. redesigns the subject :AR"type pistol to be designed or redesigned and
consequently intended to be fired from the shoulder; an NFA weapon as defined in 26
u.s.c. 5845{a)(3); has been made.
An individual mayniakea $l3Rfo:un a pistol byasseinbling a shoulderstock to the

subject piste>l; thus creating a rifle having a barrel length oflessthan 16 inches. This
n makingis lawful provided all individual has an approved A1F Form l, A1?J?lication to
Make and Register a Firearm, and has paid the applicable $200 waking tax prior to such
assembJy.
. Regarding tJ.:ie FRS-15 stockassembly depicted in the accompanying photos; to render a

proper determination our Branch would have to physically examine this item. FtISB~
does render fonnal .classificatforts based on photos; diagrams or line drawi,ngs .
.In closing, we should rell14ld<you tb,at the information found in correspondence from
FTISB is intended only for use bythe addressed individual or company with regard to a
specific scenario described within that correspondence. We advise you to confinn that
assembly of a firearm utilizing the af'oi:ementionedaccessories does.11otviolate any State
laws or local ordinances where ypu resick
Mr; Alan Thordsen Page4
We thank you for your ipquiry and trust the foregoing h~s been responsive. Feel free to
write directly fo FTISBif you have any additio11al firearms.;related inquiries of a
technical nature.
/f/111. Sincerely,
/}/J j
7:.~ ,.e ~
. A/)
.. MichaelR. Curtis
Acting Chief, Fireanns J'echnology Industry S~icesBranch
\\1
x
>
--
THORDSEN CUSTOMS LLC

214 Ryan Way
South San Francisco, CA 94080
Alan Thordsen, President

PH: 650-588-3700
FX: 650-588~3707
thordsencustoms@gmail.com
10/6/2014
\fl CLARIFICATION REGARDING THE INTEGRATION OF A "SADDLE" AND THORDSEN CUSTOMS BUFFER
_
}.....
0-
_.,..
TUBE COVER FOR USE ON AR PISTOL AND OTHER PISTOL VARIANTS
In a previous submittal for opinion, we asked if our buffer tube cover with cheek rise, when installed on the buffer
tube of an AR pistol, would be considered a "shoulder stock" thereby changing the classification from "pistol" to
-+- "short barreled rifle" (Exhibit A, page 3, QS). The answer provided was that it would not.
On September 5, 2011, BATFE Technology Branch responded to a question regarding the use of a "saddle" installed
on the buffer tube of arr AR pistol and whether its use would be considered a "shoulder stock" thereby changing
the clas~ification from "pistol" to "short barreled rifle" (Exhibit B). The answer provided was that it would not, but
with th'e civ~at quoted below, ';. .
on
"'Our findings are based the design depicted In the photo as 'submJtted,'ljthe appfoved-confiO_uratJ9n would
be changed, these findings would be subject to review. 0 }~ ' v
For review and opi_nion as prescribed in (Exhibit B),I would like.to submit three sample Buffer Tube Cover- saddle
combinations. Each sample is described in detail below.
We have examined the configuration in the sample picture provided to BATFE in (Exhibit B) and it has proven to be
unreliable. The substrate (a bare tube) under the saddle does not provide the necessary support or attachment
points necessary for the saddle to be secured solidly. It can rotate and/or slide under the user's cheek which may
create a safety hazard.
We have developed an assembly that incorporates both of the previously approved configurations. Small ~da.pter
parts are utilized to make a mechanical connection between them. The new configuration adds a stable substrate
beneath the saddle making handling safer and more reliable (FIG 1). We believe that the provided configurations
do not alter the original manufactures intent of the saddle types as cheek weld enhancements, nor does it alter
the use of a saddle as a cheek weld enhancement on an AR pistol variant as described in (Exhibit B).
1
. . .. . . .1. . . .~. . . . . ..~
1
s. 1
..s
sf~bitiier7;yal~o,,te~~t,J;i ~s~ for a
''T..:.
....h.
. . e.
...:....... ..h... .: ...o
...'".'c: A..;... ..'.a......,
. ....;.... '
. ..........,
. ....e.
.:........... . .a...
......... .... ........"... . .. .............'. ...". ..... . ..1.
.:.e' .....'..s..
.. ...... . :....o
.. ..... . ..
cheek weld. Just don't use it as a

shoulder stock. Always keep some

. distance between the Blade and
~Q.t...IE,i~hou Ider.
x~;1:,;+ b t'j' 1
U.S. Department of Justice
Bureau of Alcohol, Tobacco,

Firearms and Explosives
Afartinsburg. WV 25405
W\vw.atf.gov
DEC 1 5 2014 907010:EAG

3311/302672
Mr. Martin Ewer

2491 East 2860 S
Salt Lake City, Utah 84109
Dear Mr. Ewer:
This refers to your correspondence and accompanying sample sent to the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF), Firearms Technology Industry Services Branch (FTISB),
for evaluation. You are asking if the addition of this sample, a pistol stabilizer forearm brace, would
convert a firearm in a manner that would cause it to be classified as a "rifle" and thus a "firearm"
regulated by the National Firearms Act (NFA), specifically, 26 U.S.C. 5845(a).
The FTISB evaluation revealed that the submitted device is constructed of plastic. Based upon your
correspondence, the Blade AR Pistol Stabilizer incorporates a flexible stabilizing "fin", which the
... user rests against the inside of their forearm when in the firing position. Doing so stabilizes the
firearm in the horizontal plane. The friction created between the user's forerum and the fin then
stabilizes the firearm in the vertical plane. If a user so desires, they can wrap a standard sling around
the Blade AR and their forearm and secure it with the thumb of their firing hand to further stabilize
their firearm in both the horizontal and vertical planes.
Martin Ewer Page2
You explain further, that the shooter gains additional support of a firearm while it is still held and
operated with one band-without the discomfort of the SIG SB15. The SIG SB15 Stabilizing Brace
was originally designed and intended to aid handicapped individuals when firing with the support of
the forearm. The Blade AR Pistol Stabilizer as stated in the literature, is neither designed nor
intended to enable a user to fire a weapon from the shoulder.
Based on our evaluation, FTISB finds that the submitted forearm brace, when attached to a pistol is a
"firearm'' subject to the GCA provisions; however, it is not a ''fireann" as defined by the NFA
provided the Blade AR Pistol Stabilizer is used as originally designed and NOT used as a shoulder
stock.
We thank you for )'our inquiry and trust the foregoing has been responsive to your request. The item
. be returned utilizilig your USPS'Priority'shippinglabel. ..
will . . .
pll
Sincerely yours,
)1~/!-.~
. . . Mich~~ R. Curtis
. . ... .
Acting Qhief, Firearms Technology Industry Services Branch
-u
.
Ul
--

Schuyler Barbeau Motion To Dismiss (Denied)

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Case 2:15-cr-00391-RAJ Document 84 Filed 05/05/17 Page 1 of 47

26 buy his rifle, a second complete upper receiver with longer

1 $3,500, Complaint at 3) as a Confidential Human Source ("CHS")

1 manufacturer. Rifles, including stripped and assembled lower

1_ licensed manufacturers and dealers they can no longer make and

1. ownership of machineguns when there is no interstate commerce

14 "'obliterate the distinction between what is national and what

26 the "constitutional limitation" of the Interstate Commerce

1 possession of an object because "that object might bl'eed into

14 c) AS APPLIED, 922(0) IS UNCONSTITUTIONAL.

16 Mr. Barbeau's activity of mere possession is not within the

1 The purpose of the GCA is to regulate businesses 'and the

2 interstate traffic of firearms. Mr. Barbeau's mere possession

4 nothing to do with interstate commerce. 922(o)'s

5 criminalization of transfer~ of machineguns to other than the

6 government couldn't mean to reach private "transfers" because

7 private transfers are not commerce by definition. In the Fifth

8 Circuit, the Court said in United States v. Shipley, 546 Fed.

9 Appx. 450, "Under federal law, individuals may not deal in

12 collections, although they may not engage in the regular

13 business of dealing firearms for profit." Mr. Barbeau tried to

14 sell a firearm from his personal collection and if Congress

15 believed that making periodic sales from personal collections

16 affected the interstate market, or even in the aggregate, had

17 a substantial affect on the interstate market, they would have

19 defines a "dealer" as "engaged in the business of selling

21 in the business" as applied to dealers means" ... a regular

23 commercial activities that Congress intended to regulate and

24 is the only activities that Congress has the power to regulate

25 or prohibit. A one-time sale, not as a regular course, does not

26 give Congress jurisdiction. Reading 922(0) in isolation will

27 lead one to misinterpret to who and how that subsection applies.

28 Congress can protect interstate commerce by criminalizing

1 actions taken against the commerce that have a negative impact.

28 Commerce Clause, without regard to the motive or purpose of

1 Congress in enacting such regulations. The Second Amendment is

24 But yet, 922(0) has nothing. All it requires is proof of mere

1 element to the s ta tu te. They added the words "moved in or that

22 fi~earms and on the traffic of firearms, the purpose and intent

1 to run wild with crime and to enable the government to trace

28 person engaging in business and licensed to do so must obey.

1 All the who-what-when-where-how much details comprise the rest

14 "[I]n expounding a statute, we are not ... guided by a single

1 Oil, supra at 25, n6)." Kin~ v. St. Vincent's Hospital,

1 is illegal. Congress can regulate and criminalize th'is because

1 possession of an unregistered SBR to determine if there is

4 jurisdictional element and criminalizes mere possession, an

10 of economic enterprise, however broadly one might define those

13 III. 922(0) AND 5861(d) ARE UNCONSTITUTIONAL ON VOID FOR

16 of mere possession of a ma~hinegun or unregistered "firearm"

22 notice that his contemplat~d conduct is forbidden by the

26 612, 98 Led 989, (quoted irl Bouie v. Columbia) emphasis added).

1 is required 'to speculate as to the meaning of penal statutes,'

12 86 Led 222, 'judicial_ enlargement of a criminal act by

1 intelligence" can receive fair notice and learn the statute' s

3 "To be consistent with the constitutional requirement of Due

4 Process, the terms of a penal statute creating a new offense

5 should not forbid or requir~ the doing of an act in terms so

7 its meaning and differ as to its application, but must be

9 conduct on their part will render them liable to its penalties."

10 Lanzetta v. New Jersey, 83 LED 888, 306 US 451,(ernphasis added).

12 Process Clause of the Fifth Amendment. See Lanzetta.

14 he had to guess at their meanings and he differed on their "any