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Argued February 19, 2002

Regulations of the Department of the Treasury, implementing the National Firearms Act of 1934, govern the manufacture, possession and transfer of certain types of firearms. The issues in this appeal center on the regulatory requirement that those seeking permission from the Treasury Department to make or transfer these firearms must obtain a certification from a law enforcement official in the jurisdiction of their residence. There are nine plaintiffs. Five are individuals who claim that although they are eligible for a certification, they are unable to obtain one; two are persons whose ability to sell or transfer these firearms allegedly has been impaired by the inability of prospective purchasers to obtain certifications; two are local chief law enforcement officers.

The emergence of organized crime as a major national problem led to the enactment of the National Firearms Act of 1934. See David T. Hardy, The Firearms Owners’ Protection Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585, 590 (1987). Representing the first major federal attempt to regulate firearms, the Act concentrated on particularly dangerous weapons and devices such as machine guns, sawedoff shotguns and silencers. See United States v. Kenney, 91 F.3d 884, 890 (7th Cir. 1996); Sonzinsky v. United States, 300 U.S. 506, 511-12 (1937); Hardy, 17 Cumb. L. Rev. at 592-93. (When we speak of firearms in this opinion we mean to include only those currently covered by the Act.)*fn1 The Act sheriff of the county, United States attorney, United States marshal, or other such person whose certificate may in a particular case be acceptable to the Commissioner [of the Internal Revenue], that he is satisfied that the fingerprints and photograph appearing on the application are those of the applicant and that the firearm is intended by the applicant for lawful purposes.” U.S. Treasury Department, Bureau of Internal Revenue, Regulations 88 Relating to Taxes on Certain Firearms and Machine Guns Under the National Firearms Act, Chap. 4, Art. 65 (1934).*fn2 For reasons described by Justice Jackson, see Robert H. Jackson, The Struggle for Judicial Supremacy 87-91 (1941), Congress passed the Federal Register Act in 1935. See Federal Register Act, ch. 417, 49 Stat. 500 (1935). Treasury’s regulations dealing with the transfer of firearms first appeared in the Code of Federal Regulations in 1938. See 26 C.F.R. s 307.65 (1938). The regulations remained with minor changes until 1985, when the Bureau of Alcohol, Tobacco and Firearms (“ATF”)–to which the Secretary had delegated his authority under 26 U.S.C. ss 5812 and 5822–deleted the certification authority of United States Attorneys and United States Marshals because this “required them to perform services outside their normal operations.” See 50 Fed. Reg. 41,680-81 (Oct. 15, 1985). According to the government, a benefit of giving state and local officials (rather than federal officials) certification powers is that local officials “are in a better position to know about the particular status of an individual who seeks to make or receive” a firearm and whether that transfer would be consistent with state and local law. Brief for Appellees at 12.

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