West Virginia is moving forward with Senate Bill 1071, a Gun Owners of America-drafted measure that would allow the state to transfer post-1986 machine guns directly to private citizens through the West Virginia State Police. On its face, it looks like a state gun bill. Look closer, and it’s a legal trap — one that could end with the entire Hughes Amendment, 18 U.S.C. § 922(o), declared unconstitutional and tossed into the dustbin of history.
I don’t think this has been fully appreciated yet. Let me break it down.
What the Hughes Amendment Actually Says — and Where It’s Vulnerable
The Hughes Amendment, enacted as part of the Firearms Owners’ Protection Act of 1986 and codified at 18 U.S.C. § 922(o), prohibits civilian transfer and possession of any machine gun manufactured after May 19, 1986. That freeze on the registry has stood for nearly four decades.
But the statute contains a critical carve-out: the prohibition does not apply to transfers “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.” That exception is the statutory foothold West Virginia is standing on with SB 1071 — the state becomes the transfer mechanism, routing post-1986 machine guns to qualified residents through the State Police superintendent’s new Office of Public Defense.
The primary argument is straightforward: West Virginia, as a state entity, falls squarely within § 922(o)(2)(A)‘s exemption. I think they have a strong argument to win on that point alone. But here is where the strategy turns genuinely dangerous for the federal government.
Justice Alito’s 1996 Dissent: The Time Bomb Inside Rybar
In 1996, then-Judge Samuel Alito was on the United States Court of Appeals for the Third Circuit when a divided panel decided United States v. Rybar, 103 F.3d 273 (3d Cir. 1996). Chief Judge Dolores K. Sloviter, joined by Judge Marjorie O. Rendell, upheld a machine gun possession conviction under § 922(o). Alito dissented alone — and his dissent is a blueprint for invalidating the entire statute.
Justice Alito wrote:
The statutory provision challenged in this case — that portion of 18 U.S.C. § 922(o) that generally prohibits the purely intrastate possession of a machine gun — is the closest extant relative of the statute struck down in United States v. Lopez [514 U.S. 549 (1995)]. Both are criminal statutes that regulate the purely intrastate possession of firearms. Both statutes, departing from the mold of prior federal criminal statutes governing firearms possession, lack a jurisdictional element. That is, they do not require federal prosecutors to prove that the firearms were possessed in or affecting interstate commerce. And in passing these statutes, Congress made no findings regarding the link between intrastate activity regulated by these laws and interstate commerce. … [T]hat responsibility, it seems to me, requires us … to invalidate the statutory provision at issue here in its present form.
That analysis is exactly right. The Hughes Amendment has no jurisdictional hook — no findings connecting intrastate machine gun possession to interstate commerce, no requirement that prosecutors prove one. Under Lopez, that deficiency is fatal. Congress’s authority under Article I is not unlimited, and regulating purely intrastate possession of a firearm with no commerce nexus is not among its enumerated powers.
Judge Alito said the Hughes Amendment cannot stand on its face. He is now Justice Alito, and everyone across the ideological spectrum takes his reasoning seriously.
The Two-Step Trap
Here is the scenario no one else seems to be mapping out. Assume West Virginia enacts SB 1071 and the State Police begin selling post-1986 machine guns to residents. The DOJ — under any administration — then decides to challenge the program, arguing it violates § 922(o).
West Virginia’s lawyers respond with two arguments in sequence.
First: West Virginia is a state entity within the § 922(o)(2)(A) exception. The program is fully compliant with the Hughes Amendment. Go pound sand, DOJ.
Second — and this is the trap — if the court rejects argument one and finds the program falls outside the exception: the Hughes Amendment is unconstitutional in its entirety, void ab initio, and has been since 1986. Congress had no Article I authority to enact it. There are no congressional findings, no jurisdictional element, no commerce nexus. Under Lopez and Alito’s Rybar dissent, the statute cannot survive. If it falls, there is nothing for West Virginia to have violated in the first place.
The DOJ’s dilemma is stark. If it stays out of the fight, the West Virginia program proceeds and post-1986 machine guns flow to civilians. If it sues, it risks a court ruling that § 922(o) is unconstitutional — wiping out the Hughes Amendment entirely, not just as applied to West Virginia but across the board.
What This Means for the Second Amendment Community
I have been hammering the Commerce Clause vulnerability of § 922(o) for some time. The fact that Gun Owners of America has now architected a bill that forces that constitutional question into a live litigation posture — with Justice Alito’s own dissent waiting in the briefing library — is genuinely significant.
My read is that West Virginia has the better of the argument on both prongs. The statutory compliance argument is strong. And if the fallback constitutional challenge ever reaches a court willing to apply Lopez faithfully, the Hughes Amendment does not survive. That is not a fringe position — it is the position Justice Alito articulated in 1996.
The DOJ’s smartest play is probably to stay out of it entirely — to accept, at least implicitly, that state-entity transfers are compliant and avoid a constitutional ruling that unravels forty years of machine gun prohibition. But if they roll those dice, the entire Hughes Amendment is on the table. That is a risk the gun-rights community should understand, and one the federal government should think very carefully about before picking a fight in West Virginia.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.