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Bob Ferguson

AGO 1991 No. 26 -
Attorney General Ken Eikenberry

FIREARMS ‑- MILITARY ‑- Application of machine gun prohibition to members of the armed forces.

RCW 9.41.190 prohibits the ownership or possession of a machine gun.  This prohibition does not apply to any officer or member of the armed forces.  The exception to the machine gun prohibition for officers or members of the armed forces is not related to the discharge of the officer's or member's official duties.

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                                                                    July 24, 1991

Honorable Gary A. Nelson
State Senator, District 21
9710 Wharf Street
Edmonds, Washington 98020
                                                                                                                 Cite as:  AGO 1991 No. 26

Dear Senator Nelson:

            By letter previously acknowledged you asked for our opinion on a question which we paraphrase as follows:

            Do the prohibitions relating to the transportation or possession of machine guns set out in RCW 9.41.190 apply to members of the armed forces of the United States or the state of Washington during times when they are not engaged in the performance of their official duties?

We conclude that the answer to your question is "no" for the reasons set forth in the following analysis.


            Your question focuses upon RCW 9.41.190 which reads:

                        It is unlawful for any person to manufacture, own, buy, sell, loan, furnish, transport, or have in possession or under control, any machine gun or any part thereof capable of use or assembling or repairing  [[Orig. Op. Page 2]] any machine gun: Provided, however, That such limitation shall not apply to any peace officer in the discharge of official duty, or to any officer or member of the armed forces of the United States or the state of Washington:  Provided,further, That this section does not apply to a person, including an employee of such person, who or which is exempt form or licensed under the National Firearms Act (26 U.S.C. section 5801 et seq.), and engaged in the production, manufacture or testing of weapons or equipment to be used or purchased by the armed forces of the United States, and having a United States government industrial security clearance.

This statute, as originally enacted into law, was virtually identical to the present form of the first proviso which excepted from the machine gun prohibition "any peace officer in the discharge of official duty" and any members "of the armed forces of the United States or the State of Washington."  Laws of 1933, ch. 64, § 1, p. 335.  In addition to certain other minor grammatical changes to RCW 9.41.190, its second proviso (exempting federally licensed persons engaged in the manufacture or testing of machine guns for use by the armed forces of the United States from its ban) was added in 1982.  Laws of 1982, 1st Ex. Sess., ch. 47, § 2, p. 1322.  The legislative history of the act, as originally adopted, and the 1982 amendment do not provide background or insight into its meaning.1/

             Our task, as always, is to ascertain legislative intent.  As phrased by the Court of Appeals in Labor & Indus. v. Baker, 57 Wn. App. 57, 59-60, 786 P.2d 821 (1990):

             [[Orig. Op. Page 3]]

                        First in the analysis, as always, is the language of the statute itself.  Two familiar principles apply to this case:  (1) where the Legislature used different language in different sections, it can be assumed that legislative intent was different (United Parcel Serv., Inc. v. Department of Rev., 102 Wn.2d 355, 362, 687 P.2d 186 (1984)); and (2) plain words are to given their plain meanings.  Northwest Steel Rolling Mills, Inc. v. Department of Rev., 40 Wn. App. 237, 698 P.2d 100,review denied, 104 Wn. 2d 1006 (1985).

            The statutory language of RCW 9.41.190 is plain and unambiguous.  The Legislative made it unlawful for any person to be involved with machine guns and further provided that "such limitation shall not apply . . . to any officer or member of the armed forces of the United States or the state of Washington . . . ."  Neither is the "official duty" requirement of "peace officers" applicable to "members of the armed forces of the United States or the state of Washington."  Where a statute is unambiguous, it is not to construction or interpretation.  Crown Cascade, Inc. v. O'Neal, 100 Wn.2d 256, 262, 668 P.2d 585 (1983).  The rules of statutory construction can only be used to ascertain the meaning of the statute and may not be used to modify it.  State ex rel. Thigpen v. Kent, 64 Wn. 2d 823, 826, 394 P.2d 686 (1964).  Moreover, a court may not read into a statute language which it might conceive that the Legislature has unintentionally omitted.  Id. at 827.

            In addition, the last antecedent rule supports this interpretation.  This rule of statutory construction states:  "Where no contrary intention appears in a statute, relative and qualifying words and phrases, both grammatically and legally, refer to the last antecedent."  Davis v. Gibbs, 39 Wn.2d 481, 483, 236 P.2d 545 (1951).  The last antecedent rule, as applied to RCW 9.41.190, means that the qualifying phrase "in the discharge of official duty" refers to the last antecedent "peace officer."  It does not refer to the subsequent phrase "any officer or member of the armed forces of the United States or the state of Washington".

            A recent decision identifies the separation of powers doctrine as the basis for application of this rule by explaining that the Legislature possesses the exclusive power to create laws and define standards of conduct.  A court may to usurp the Legislature's function.  The drafting of a statute is the  [[Orig. Op. Page 4]] function of the Legislature and not of a court.2/

            A court may not read an exception into a statutory prohibition in any way other than to give meaning to the plain words used by the Legislature.

            The courts may not read into a statute things which it conceives the Legislature has left out unintentionally.  Enloe, 47 Wn. App. at 170.  Therefore, if conduct such as Danforth's is to be prohibited, such a prohibition must be created by the Legislature.  We may not do so.

State v. Danforth, 56 Wn. App. 133, 137, 782 P.2d 1091 (1989).

            It is, therefore, our opinion that the Legislature has exempted members of the armed forces of the United States or the state of Washington from the prohibitions found in RCW 9.41.190.  There is no indication in the statutory language that the exemption was to be conditioned upon the performance of official duties of such military personnel.  Therefore, your question must be answered in the negative.

            We hope this opinion will be of assistance to you.

Very truly yours,

Attorney General

Senior Counsel
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/In 1989 there were additional laws enacted relating to machine guns.  The House Bill Report on Senate Bill 58.53, which amends RCW 9.41.200 and added a new section codified as RCW 9.41.225, provided the following background information to the House Committee on Judiciary:

            Current law prohibits any person from manufacturing, owning, buying, selling, loaning, furnishing, transporting, possessing or controlling machine guns.  Persons violating this prohibition are guilty of an unranked felony.  Specified law enforcement personnel and related persons are exempt from this prohibition.

(Emphasis added.)  House Bill Report, SB 5853 (1989) at 1.  The emphasized sentence is supportive or our conclusion but does not indicate that there was any analysis of your question or legislative awareness of the issue.  In any event, RCW 9.41.190 was not amended.

2/It is clearly within the prerogatives of the Legislature to modify the exemption language and limit it to military personnel engaged in the performance of their official duties, should it choose to do so.