More states are weighing programs to distribute post-1986 machine guns to their citizens, and the legal argument turns on one overlooked fact: the post-1986 civilian freeze was never written by Congress. It was invented by the ATF during the George H.W. Bush era, stuffed into a regulation, and kept alive for decades only because courts deferred to the agency under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron is now dead. That changes everything.
What the Hughes Amendment Actually Says
The Hughes Amendment — codified at 18 U.S.C. § 922(o) — prohibits any person from transferring or possessing a machine gun. But § 922(o)(2)(A) carves out an explicit exception: the prohibition does not apply to “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.”
My read of that language is simple: if a state issues you permission — the same way it issues a driver’s license, a concealed carry permit, or a marriage certificate — you are possessing “under the authority of” the state. That is all the language requires. So how did we end up in a world where no civilian can own a machine gun built after 1986?
The ATF Rewrote the Statute in 1989
The culprit is 27 C.F.R. § 479.105(e), promulgated by the ATF in 1989 when it still sat under the Department of the Treasury. That regulation says that applications to make and register machine guns on or after May 19, 1986 will only be approved if the machine gun is “particularly suitable for use by federal, state or local governmental entities” and the making is “at the request of and on behalf of such an entity.”
None of that language appears anywhere in 18 U.S.C. § 922(o). Not one word about “for the benefit of” or “at the request of” a government entity. The ATF grabbed it out of thin air during a law-enforcement-first era — the late Reagan years bleeding into the Bush years — that had little patience for civilian ownership of full-auto firearms.
Courts that examined the regulation simply deferred to the ATF under Chevron. The Eleventh Circuit’s 1990 decision in Farmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990), is the clearest example. The court held:
“Further, we defer to the ATF’s interpretation of section 922 embodied in its implementing regulations at 27 C.F.R. § 179.105 because it is consistent with the statutory language and congressional intent.”
The court also invoked Gun South, Inc. v. Brady, 877 F.2d 858 (11th Cir. 1989), for the rule that courts “must defer to the bureau’s interpretation of the Gun Control Act and its regulations absent plain error.” Textbook Chevron. Every subsequent court that blessed the regulation simply stacked citations on Farmer v. Higgins without independently reading the statute.
Loper Bright Pulled the Rug
In Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), Chief Justice Roberts, writing for a 6-2 majority joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, overruled Chevron outright. Courts must now exercise independent judgment on statutory interpretation. No more automatic deference to agency readings of ambiguous text.
That ruling lands like a wrecking ball on 27 C.F.R. § 479.105(e). The entire edifice supporting that regulation was built on Chevron. Strip away the deference and a court must read § 922(o)(2)(A) for itself — and that text says nothing resembling what the ATF wrote in 1989.
The parallel is on point. The Supreme Court recently declined to read the word “tariff” into IEEPA just because an agency wanted it there. How is this same Court going to accept paragraphs of invented restriction in an ATF regulation when Congress actually wrote “under the authority of” a state — language that is far simpler and far broader?
The Backup Argument: 18 U.S.C. § 925 Exposes the Absurdity
The ATF’s 1989 regulation was also legally unnecessary from day one. 18 U.S.C. § 925(a)(1) — predating the Hughes Amendment — already provides that the Gun Control Act “shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.”
Congress already covered government possession of machine guns through § 925(a)(1). The ATF importing identical government-use language into its reading of § 922(o)(2)(A) was redundant at best and a fabricated rewrite at worst — and it gives away the game that the regulation was never about statutory fidelity.
The Road Ahead
Here is how I see this playing out. A state establishes a program to distribute post-1986 fully automatic firearms to its residents. A citizen applies to register that firearm with the ATF under the National Firearms Act. The ATF either approves — and the freeze cracks — or refuses, triggering litigation that puts two dangerous arguments before a federal court.
First: the plain text of § 922(o)(2)(A) means what it says, the 1989 regulation is ultra vires, and Loper Bright requires a court to say so. Second — and this is where it gets truly dangerous for gun controllers — if a court somehow still upholds the regulation, the fallback is Justice Alito’s dissent in United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), written when he was a Third Circuit judge: 18 U.S.C. § 922(o) itself lacks any jurisdictional hook to Congress’s Article I powers. The statute cites neither the taxing power nor the Commerce Clause, and without that, the Hughes Amendment is constitutionally infirm on its face.
Either path runs through a Supreme Court that has Heller, Bruen, and Loper Bright on the books and no Chevron to hide behind. I like those odds.
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.