This article breaks down a discussion between Second Amendment attorneys Mark W. Smith and Stephen P. Halbrook on the legal gaps in the post-1986 machine gun ban. They show how 18 U.S.C. § 922(o) allows possession “under the authority of” a state, while the ATF’s regulation adds a narrower “for the benefit of government” rule. A clean state-authorized test case could finally force courts to decide which interpretation actually matches Congress’s law.
In a new “breaking news” sit-down on The Four Boxes Diner, constitutional litigator and Second Amendment historian Stephen P. Halbrook joins host Mark W. Smith to walk viewers through a question gun owners have debated for decades: does federal law actually forbid the registration of post-May 19, 1986 machine guns for ordinary Americans—or did ATF “fill in the blanks” with regulation and judicial deference that no longer holds up?
This is a lawyer-to-lawyer conversation about statutory text, agency overreach, and the post-Chevron legal landscape—plus a developing strategy in places like West Virginia and Kentucky that could force a clean test of ATF’s long-standing interpretation.
The core fight: what 18 U.S.C. § 922(o) says vs. what ATF does
The so-called Hughes Amendment lives at 18 U.S.C. § 922(o). The key structure is simple:
(o)(1): “Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.”
(o)(2)(A) then carves out an exception for “a transfer to or by, or possession by or under the authority of, the United States… or a State… or political subdivision thereof.”
(o)(2)(B) preserves lawful possession of machine guns lawfully possessed before the effective date.
Smith’s argument, echoed by Halbrook’s earlier litigation history, is that the statutory phrase “under the authority of” reads like permission/authorization, not “for the benefit of government” or “government use only.”
By Ammoland Editors & Staff
