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AGO Opinion 81084

Machine Guns
Opinion 81084

SUBJECT:
Machine Guns

REQUESTED BY:
Donald L. Knowles, Douglas County Attorney

OPINION BY:
Paul L. Douglas, Attorney General,
G. Roderic Anderson, Ass't Attorney General

QUESTION:

Is a person who complies with federal requirements prohibited from possession of a machine gun by Nebraska law?

CONCLUSION: No.

Neb. Rev. Stat. § 28-1203(1) (Reissue 1979) makes it a Class IV felony to transport or possess any machine gun. However, that statute at subparagraph (2) further reads: "The provisions of this section shall not be held to prohibit . . . persons qualified under the provisions of federal law relating to the . . . machine gun."

Federal regulation of machine guns is quite comprehensive. It provides a system of regulation for the manufacture, possession, and transfer of machine guns. 26 U.S.C. § 5801 et seq. It is a federal crime to manufacture, possess or transfer such a weapon without compliance with the federal act. 18 U.S.C. § 922(b). However, the federal law also permits the states to more strictly control manufacture, possession and transfer of a machine gun if they desire. 18 U.S.C. § 922(b) (2). In enacting 18 U.S.C. § 922 (b) (2), Congress was attempting to give the states power to regulate the transfer and possession of machine guns beyond the regulatory measures of the federal government if it so desired. 3 U.S. Cong. & Ado News (1968), pp. 4419-4420. This interpretation was sustained in Mayesh v. Schultz, 58 F.R.D. 537 (D.C. Ill. 1973). The State of Nebraska has not enacted any statute further restricting the possession of a machine gun.

In fact, by its express language in Neb. Rev. Stat. § 28-1203(2) (Reissue 1979), it specifically excepted any person qualified to possess the machine gun under federal law.

It is, therefore, our conclusion that Neb. Rev. Stat. § 28-1203 (Reissue 1979) does not prohibit a person who qualifies pursuant to federal law 26 U.S.C. § 5801 et seq. from possession and transfer of a machine gun. Compliance with the federal law will satisfy the requirements of the Nebraska statute.

Very truly yours,

PAUL L. DOUGLAS
Attorney General