REQUESTED BY: Donald L. Knowles, Douglas County Attorney
Is a person who complies with federal requirements prohibited from possession of a machine gun by Nebraska law?
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. Ad. 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 G. Roderic Anderson Assistant Attorney General APPROVED:Paul L. Douglas
Attorney General