Or at least that's my opinion. Read both of them, if you wish, to see if you disagree.
For sake of brevity, here's just a snippet of what Judge Owens says:
"Without citing a single case, Kittson demands that we
sweep away decades of case law and logic and hold that there
is nothing illegal about transferring machineguns to
undercover agents posing as the most odious criminals. . . . If Congress had intended to disrupt the history and
tradition of law enforcement using undercover agents to stop
arms traffickers from peddling exceedingly dangerous, military grade automatic weapons, it could have easily done
so by inserting such language into § 922(o). It never did,
and we are not in the business of doing so, especially when
it would lead to the absurd result of trying to catch arms
traffickers after they have transferred the weapon to a mass
killer, rather than stopping them before the carnage ensues. . . .
The dissent’s many arguments, ranging from speed limit
hypotheticals to unwell uncles, branch from the same
thought tree—that Congress would care deeply about
someone possessing a machinegun, but couldn’t care less
about someone who wanted to transfer that same
machinegun to the vilest of criminals.
The dissent’s explanation for this logical disconnect?
That “[i]n the vast majority of cases involving an undercover
sting, that distinction doesn’t matter much because the
defendant will inevitably have both transferred the
machinegun and necessarily possessed it when he personally
handled it before transferring it.” In other words, the transfer
language of 922(o) vanishes from the statute when
undercover agents are involved.
The dissent never explains why we should erase transfer
liability from section 922(o). It presents no support for its
claim that the “vast majority” of undercover sting cases will involve a defendant who both transfers and personally
possesses a machinegun. One can easily conjure up
countless examples of when someone would be guilty of
transferring firearms even if they did not possess them—a
sophisticated arms dealer who uses a third party to transfer
the machinegun to a terrorist organization who will attack a
Veterans Day Parade, the cartel leader who orders his foot
soldiers to transfer a machinegun to the sicario, a white
supremacist who commands his new recruit to trade the
machinegun for fentanyl, and so on. Or a simpler case, like
this one, where Kittson caused the transfer of a machinegun
to someone he thought was a drug dealer.
But what the dissent cannot conjure up is why Congress
would ever intend for this Legion of Doom to avoid
prosecution. Much like Kittson, the dissent cannot cite a
single case, law review article, or even scrap of legislative
history to prop up its reading of Section 922. Instead, it
speculates that “[b]y granting immunity to individuals who
transfer machineguns to the federal government, Congress
encourages the central goal of § 922(o): limiting
machineguns in private ownership and stopping the
interstate transfer of those weapons.” But it is hard to see
how immunizing defendants like Kittson could help stem the
interstate transfer of machineguns. A defendant in Kittson’s
position, looking to transfer a machinegun to someone he
believes to be an arms trafficker, should reasonably feel
emboldened under the dissent’s interpretation of Section
922. If the buyer is in fact an arms trafficker, then he has
avoided capture in a government sting operation. If the
buyer is an undercover officer, he is home free under the
dissent’s reading of § 922(o)(2)(A). On the other hand, the
dissent’s interpretation does nothing to promote lawful
transfers to government. Merely excluding defendants caught in sting operations from the razor-thin ambit of
§ 922(o)(2)(A) immunity, as the majority does here, has no
effect on individuals intending to make lawful machinegun
transfers to the government."
