I sat down with Stephen Halbrook — author of the Firearms Law Deskbook (Thomson Reuters/Westlaw) and one of the most consequential Second Amendment litigators in American history — to address a question I have been pressing for months: is 18 U.S.C. § 922(o), the so-called Hughes Amendment, as ironclad as the government has always claimed? His answer, backed by decades of firsthand litigation, is emphatically no.
West Virginia SB 1071 and Kentucky HB 749 are forcing that question back into the open. Both bills would create a state-run office to acquire and transfer post-1986 machine guns to qualified residents under the § 922(o)(2)(A) carve-out exempting transfers “to or by” a state. If ATF refuses to register those firearms, we get the lawsuit that may finally put this before the Supreme Court.
ATF Invented the “Benefit of Government” Requirement
Read § 922(o)(2)(A) straight. It says the prohibition does not apply to a transfer “to or by” a state or to “possession by or under the authority of” a state. There is no phrase “for the benefit of government.” Those words do not exist in the statute.
ATF put them there anyway. The agency’s regulation, 27 C.F.R. § 479.105(e), requires that any post-1986 machine gun registration be tied to “the benefit of a federal, state, or local government entity” — language Halbrook says has no basis in the text Congress actually passed.
Halbrook litigated this point in Farmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990). His client J.D. Farmer, Jr. submitted an NFA application to make and register a machine gun. ATF denied it. U.S. District Judge J. Owen Forrester in Atlanta ruled for Halbrook: approval by ATF itself satisfies “under the authority of” in § 922(o)(2)(A). The Eleventh Circuit reversed — on Chevron deference alone. The constitutional questions went untouched.
That matters now because Chevron is dead. In Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the Supreme Court overruled Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Courts must exercise independent statutory judgment. The entire foundation of Farmer v. Higgins — and every court that leapfrogged off it — has been knocked away.
The Leapfrog Problem
Halbrook described a pattern anyone who practices in this area recognizes immediately. One circuit issues a ruling. A second cites it without independent analysis. A third cites both. Before long you have a “firmly established” wall of precedent built entirely on Chevron deference, not on statutory text. That is exactly what happened with § 922(o). Loper Bright breaks the pattern.
Section 922(o) Has an Article I Problem
There is a second, deeper vulnerability. If a court rejects the textual reading and insists the state-authority exception requires government benefit, it walks directly into the Commerce Clause argument that then-Judge Samuel Alito developed in United States v. Rybar, 103 F.3d 273 (3d Cir. 1996).
Alito dissented from the Third Circuit’s decision upholding § 922(o), arguing that the provision was unconstitutional under United States v. Lopez, 514 U.S. 549 (1995) — the case where the Supreme Court struck down the Gun-Free School Zones Act for lacking any connection to interstate commerce. Section 922(o) bans mere transfer and possession. It contains no jurisdictional element tying the offense to interstate commerce, unlike 18 U.S.C. § 922(g), the felon-in-possession statute, which expressly requires a firearm that has traveled “in or affecting commerce.”
The Fifth Circuit hit the same wall in United States v. Kirk, 105 F.3d 997 (5th Cir. 1997), where the en banc court split and the panel decision stood by an equally divided vote. The district court in United States v. Rock Island Armory, Inc., 773 F. Supp. 117 (C.D. Ill. 1991), came at it from the taxing-power angle: the NFA rests on Sonzinsky v. United States, 300 U.S. 506 (1937), and the tax power is not exercised when the government refuses to collect the tax. The government dismissed that appeal rather than face an adverse circuit ruling.
There is also a redundancy problem. Section 925(a)(1) of the Gun Control Act already exempts government-use transfers from the entire Chapter 44 regime, including § 922(o). If the Hughes Amendment’s carve-out only covers government-benefit transfers, it adds nothing § 925(a)(1) doesn’t already provide — a result no sensible textualist reading permits.
What the West Virginia and Kentucky Approach Could Accomplish
The WV and KY bills are clever because they generate a clean civil plaintiff. If ATF refuses to approve a registration application from a West Virginia resident who went through the state’s Office of Public Defense, that denial is a concrete, reviewable injury — no standing problems, no bad-facts criminal defendant to muddy the record.
A Fourth Circuit challenge will face an uphill climb — that court has been one of the most reliably anti-gun jurisdictions in the country. But an adverse ruling that ignores the Commerce Clause defect Alito identified in Rybar, or that reconstructs Chevron deference the Supreme Court just buried, would crystallize the circuit split needed to force the issue to One First Street.
Whether the current DOJ embraces the textual reading of § 922(o) or defends ATF’s invented gloss is the open question. The Chevron prop is gone. ATF Director Stephen Higgins’s own congressional testimony acknowledged that NFA-registered machine guns had never posed a meaningful criminal problem — cutting against any public-safety justification for the post-1986 ban.
The Hughes Amendment arrived on the House floor as a poison pill, passed on a disputed voice vote with no hearings and no Commerce Clause analysis. Courts have been deferring to an agency gloss on it ever since. That era is over.
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.