• Section 922(o)(1) generally makes it “unlawful for any person to transfer or possess a machinegun.”
• However, Section 922(o)(2) contains three exceptions under which “[t]his subsection does not apply.” This means that, if any one of these three exceptions is met, the general prohibition on “transfer or possess[ion]” of a machinegun is lifted.^[1]
  • The most well-known exception is the “lawful transfer or lawful possession of a machinegun that was lawfully possessed before” 1986 – these are “post-86 transferable” machineguns not at issue here. 18 U.S.C. § 922(o)(2)(B).

• • The law also exempts any “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.” 18 U.S.C. § 922(o)(2)(A).  The key word is “or” – this means Section 922(o)(2)(A) provides two further exemptions to the machinegun ban.
• • • The first exemption is “possession by or under the authority of … a State.” ATF has interpreted this provision to involve a State authorizing a person to possess a machinegun for government purposes as part of their “official duties.”^[2]
• • • The second exemption – the one at issue in SB 1071 – is for “transfer[s] to or by … a State.” If a State is receiving a machinegun (transfer to) or disposing of a machinegun (transfer by), Section 922(o)’s ban on post-86 machinegun possession simply “does not apply.”
• Importantly, the U.S. Department of Justice recently endorsed the legal theory on which SB 1071 rests. In a Maryland case, DOJ argued that it could return items known as “forced reset triggers” to their original owners, over Maryland’s objection that such items are machineguns.  As DOJ explained, “[e]ven if [forced-reset triggers (‘FRTs’)] were, in fact, machineguns … § 922(o) expressly does not apply to ‘a transfer to or by … the United States or any department or agency thereof.’ … [T]he § 922(o) prohibition has no application to ATF….”^[3]
• Aside from DOJ’s position in the Maryland case, there does not appear to be any reported legal opinion involving the “transfer … by … a State” language. Rather, all other cases in this context deal with the entirely distinct exemption – “possession by or under the authority of … a State,” and none of those cases involves a State seeking to transfer machineguns to its residents.
• Moreover, the Eleventh Circuit has expressly left open the possibility of States doing precisely what SB 1071 does. That court explained that, in both Section 922(o)(2)(A) exemptions, “Congress intended to limit lawful transfer and possession of machine guns to instances authorized by the government….” Farmer v. Higgins, 907 F.2d 1041, 1045 (11th Cir. 1990).  See also United States v. Kittson, 161 F.4th 619, 635 (9th Cir. 2025) (VanDyke, J., dissenting) (explaining that, “while lawful ‘possession’ must be ‘under the authority of’ the government, the text applies no such requirement to the transfer exception”).
• Some have raised a question as to whether the initial “transfer … by … a State” would be lawful, but the recipient’s subsequent “possession” might be unlawful. The answer is that both transfer and possession must be lawful in order for either to be lawful.  Otherwise, the statute would both authorize and criminalize the same event – a legal impossibility whereby the government would be the entity creating criminal liability.  Thus, there could be no lawful “transfer” – “to pass or hand over from one to another”^[4] – if the receipt of that transfer were a felony.  Indeed, DOJ would never have made the argument that ATF could transfer machineguns to persons whose possession would immediately be a felony.

^[1] Of course, even if Section 922(o)’s general prohibition on post-86 machineguns is lifted, the transfer and possession of machineguns still must comply with the National Firearms Act.  For example, the machinegun still must be registered with ATF, registration paperwork still must be completed, and a background check still must be conducted by ATF.

^[2] See 27 C.F.R. § 479.105(c).  Some cases likewise have narrowed the scope of “under the authority of” to law enforcement use, but only when governments have opposed the possession of a machinegun.  See Farmer v. Higgins, 907 F.2d 1041, 1045 (11th Cir. 1990) (“[P]ossession or transfer of those weapons would cease to enjoy the authorization of the State agency or subdivision when the officer was no longer on the police force.”).  However, other courts have left open the possibility for a different result if a State wanted people to possess machineguns “under the authority of” the State.  See United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001) (“Section 922(o)(2)(A) sets forth a specific exemption for possession of a machinegun ‘under the authority of’ a state; therefore, that section cannot impair the state’s ability to maintain a well-regulated militia.”).  But again, SB 1071 does not involve “possession by or under the authority of … a State,” but instead a different exemption entirely – a “transfer to or by … a State.”

^[3] Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Preliminary Injunction at 19, New Jersey v. Bondi, No. 1:25-cv-01807-PX (D. Md. June 27, 2025), ECF No. 64.

^[4] Transfer, Black’s Law Dictionary 1536 (8th ed. 1999).