‘Forced Reset Triggers’:  Are they machineguns?

Have you ever thought it would be cool to own a machinegun if they weren’t so darn expensive? You are not alone. In fact, there is a whole cottage industry trying to develop machinegun substitutes. From short-pull triggers to bump stocks, innovative folks have tried to mimic the fast rate of fire of a machine gun without meeting the definition. 

The Definition.

What exactly is the definition of a machine gun? That is found in 26 U.S.C. § 5845(b):

“The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.”

It’s a bit complicated, but at least Congress didn’t need a half-dozen subparts to describe what they meant. 

The core of the definition is “any weapon which shoots . . . automatically more than one shot . . . by a single function of the trigger.” Also included in the definition is any combination of parts that cause a firearm to fit into that core definition and the frame and receiver of a firearm that fits within that core definition. The latter is why you can’t simply convert a machinegun into semi-automatic functioning.

The FRT: Forced Reset Trigger

Many ideas have been used to mimic automatic fire while avoiding the core definition. The more successful of these ideas, at least in remaining legal, are those that have very distinct functions of the trigger. 

A good example is a binary trigger. A binary trigger fires one round when the trigger is pulled, and a second round when the trigger is released. This allows a shooter to double their rate of fire as they pull the trigger multiple times. 

Less legally acceptable ideas are those that use recoil to push the user’s trigger finger forward allowing the trigger to ‘reset’ while the user continues a rearward pressure upon the trigger. AKA the ‘bumpstock.’ 

This is where a ‘forced reset trigger’ comes into the picture. Said device functions like a regular trigger in that it fires one shot when pulled. But after the shot it functions like a bumpstock in that it uses the mechanical force of the cycling bolt to force the trigger forward against the user’s finger. The trigger is then ready to be pulled again. If the user maintains appropriate rearward pressure, the gun will fire again and again.

Is it a machinegun? 

That is the million-dollar question. Literally. The Gun Owners of America and the ATF are litigating right now whether bumpstocks are machineguns. See Gun Owners of America, Inc. v. Merrick Garland. This case has been through the district court, heard at the circuit court, reheard en banc at the circuit court, and is being appealed to the Supreme Court. The attorney’s are printing money faster than the Federal Reserve. . . almost.  

The argument? Is “a single, continuous pull of the trigger” the same thing as “a single function of the trigger.” The ATF contends these are the same. Therefore a FRT, like a bumpstock, is a machinegun because with the right continuous rearward pressure the gun will continue to fire. 

Gun Owners of America however insists upon applying the definition strictly as written by Congress. That is “a single function of the trigger.” Regardless of the continuous rearward pressure, how many times does the firearm shoot per function of the trigger? 

For the FRT and bumpstocks, the gun only shoots once per function of the trigger. The design however is intended to juxtapose a continuous rearward pressure from the user with the force of recoil to allow multiple functions of the trigger at extreme speeds. Thus mimicking, perhaps too thoroughly, the function of a machinegun.

But is this application too clever by half? Time will tell . . . If the Supreme Court takes up the case. (For those who haven’t been following, this has been a very close battle. ATF took the District Court case, GOA won at the 6th circuit, and then the en banc hearing was a tie which caused the District Court ruling to stand. Appeals are open at this moment.) The ATF released a public letter on March 22 stating their position that “some” FRT devices are machineguns. 

Tell me, do I have an FRT ‘machinegun’?

The ATF was vague in their open letter about what FRTs they consider machine guns. However, previously the ATF has gone after Rare Breed triggers. (Said name is looking more and more descriptive as the weeks go by.) Litigation has begun.   For now, this is the primary offender which the ATF is considering a machinegun. (Remember the combination of parts language in the definition? This is what catches just the trigger as a complete ‘machinegun.’). Other triggers may come under examination as time goes by, and I encourage owners of specialty triggers to stay vigilant.

Oh snap! I have an illegal undocumented machinegun. What do I do?

Don’t panic. The Stormtroopers aren’t going door to door. Here in South Carolina the local field offices of the ATF are actually very understanding. They’ll happily let you surrender your hard earned property without criminal charges. (Exciting! Right?)

Seriously, there are very few options without risk. You can surrender the FRT and be done with it. Alternatively, you can surrender ‘under protest’ in case the ATF loses their legal battle and the FRT is decided not to be a machinegun. In the latter case you will have a chance at having your property returned. (I make no promises about the ATF’s ability to catalog, store, protect, retrieve, and return thousands of FRTs without losing or damaging many.) 

And if I do nothing?

Litigation between Rare Breed and the ATF is underway. We can safely assume that the ATF will shortly have a list of all Rare Breed customers and their addresses. With that, I expect that letters will be mailed (eventually) telling customers what actions they can take. (Said actions will basically be those noted above.) 

If you bought your FRT off of Gunbroker or another online source, then you may get a letter much later. (i.e. after the guy who sold it to you provides your information to the ATF to get out of the hot seat.) And if you bought your FRT for cash at the Jockey lot? . . . We all know why you did that and reading this is purely an academic exercise for you. 

Wrapping it Up

The ATF in South Carolina has little interest in making Federal cases out of every FRT owner who acquired these items in good faith. They’ll work with you to surrender these, under protest or not, and give you a receipt to document that surrender. Uncomfortable with the mechanics of that process? Call me: I have a good relationship with the local office and can help make this a smooth process. 

However, if you insist on keeping your FRT, the ATF may take more interest in prosecution as time goes by. You lose that ‘good faith’ assumption that is being extended right now. You take that action at the risk of prosecution, conviction, and the permanent loss of your firearm rights. Only you can decide if a $400 toy is worth that risk. 

Open Carry in SC: Police and Citizen Interactions

Open carry of a handgun, with a proper permit, will become legal in this state on August 15, 2021. This is a significant change in the visibility of legally carried firearms, and that change is raising a lot of questions. One of the most significant ‘where the rubber meets the road’ questions is what to expect when open carrying and interacting with police.

Let’s look into these concerns, establish some expectations, and examine the applicable law.

The Practical in Brief

For those who want a refresher or won’t read the entire article and need to know the practical side quickly: DON’T BE AN ASSHOLE.

Any officer stopping a person open carrying (or concealed carrying for that matter) is initially as nervous as you. Your first actions and words will do much to set the tone and either relax the situation or increase intensity. Go for the former and not the latter.

Be polite. You can be firm. You can deny permission to search. You can refuse to answer questions. Do it politely, without anger, and without an attitude. (I know, it is much easier said than done, especially if you were not expecting an encounter with law enforcement.)

You still have the duty to tell the officer you are carrying a firearm and producing your permit. Even if it should be obvious, tell the officer. Minor failures like this can make your attorney’s life difficult should it go that far.

And finally, remember, the ‘side of the road’ is not the place to win an argument. Preserve your rights and offer, kindly, to take the matter into court if need be.

Can an Officer Stop Me for Open Carrying?

Practically speaking, there will be two types of stops: i) those because you are open carrying, and ii) those for another reason. For the latter, little changes. You will need to respond the same as you do now. Produce your CWP permit and alert the officer that you are carrying. Make no move for your firearm. And if your wallet is near your firearm, let the officer know this and ask his preference for how you retrieve it. (Even better, if you are being pulled over in your car, retrieve your wallet before coming to a complete stop and have it handy. Remember not to unbuckle.)

The real questions I hear concern whether you can be stopped for open carrying and what to do if you are stopped merely for open carrying. This could be if you are walking, out shopping, or otherwise not participating in another activity that could justify a stop. (The latter would include driving, trespassing, or other violations of the law.)

To answer the question, we must first understand that there are different levels of ‘stops’. Lay persons immediately envision the ‘Terry Stop.’ That is an involuntary encounter where the police can detain you until they have satisfied their job. This would include a traffic stop. Most ‘walking encounters’ however do not start as Terry Stops. That is, the casual encounter on foot starts as a ‘voluntary stop.’

What is a Voluntary Stop? This is where an officer engages you in conversation and you respond. You do not have to respond. You may walk away. You may, politely, decline to engage. (“Thank you for your concern officer, but I don’t feel like having a conversation today.”) However, you may choose to respond. Why? To be polite. Because you are caught off guard and answer before thinking. Because you do not realize you have a right not to respond. Whatever the reason, police know that many times citizens will engage with them when they don’t have to, and this is a common technique among officers to determine what is going on with a ‘suspicious person.’

Should you engage voluntarily? Engaging voluntarily may be a simple way to allay fears and allow an officer to close an investigation before it starts. It may also be a way to talk yourself into a charge. Be careful. Common questions of “where are you going?” or “where are you coming from?” may reveal an inadvertent carrying of a firearm in a prohibited location. Answers could also be used to construct an intent charge. Whatever you do, think carefully before you answer.

Outside of cameras, talking yourself into a charge is one of the most common causes of convictions I encounter.

I’m not volunteering. Can I be forcefully stopped?

Here is the $64,000 question. “Am I being detained officer?” What causes a voluntary stop to rise to the level of a Terry Stop? Several things can do the trick. The officer taking and holding onto your property; including a license or permit. The officer telling you that you cannot leave. The officer continuing to engage you after you have made clear that you do not willingly engage. And of course, handcuffing you.

For a Terry Stop, the officer must have a “reasonable suspicion” of “specific and articulable facts” of illegal activity. Terry v. Ohio 392 U.S. 1, 21, 27 (1968). Is carrying a firearm an articulable fact sufficient to support a reasonable suspicion? “There is no ‘automatic firearm exception’ to the Terry rule.” Northrup v. City of Toledo Police Dep’t, et al. 785 F.3d 1128, 1132 (6th. Cir. 2015).

“Where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.” United States v. Black, 707 F.3d 531, 539 (4th Cir. 2013).

So far so good. But there are conflicting cases. We should focus on the 4th Circuit because this is the Federal Circuit for SC. Unless the Supreme Court speaks, which they may soon, the 4th Circuit interpretation of the U.S. Constitution sets an outer bound of allowable police conduct.

In Black the Court did not consider jurisprudence on stops of individuals suspected of being “armed and dangerous.” The Court did cite favorably U.S. vs. King from the 10th circuit which discussed “armed and dangerous” concluding that too equate armed with dangerous “would effectively eliminate Fourth Amendment protections for lawfully armed persons.” United States v. King, 990 F. 2d 1552, 1559 (10th Cir. Ct. App.1993).

The 4th Circuit finally turned to this issue in U.S. vs. Robinson. Initially the Court sided with the 10th Circuit in requiring that an officer must be able to articulate facts supporting a belief that a suspect is both “armed and dangerous.” However, the Government appealed this ruling, and the Court, en banc, reversed course. In the majority opinion Justice Niemeyer equated “armed and dangerous” to “armed and therefore dangerous.”  U.S. vs. Robinson (4th Cir. Ct. App. 2017) (joined by Judge Wilkinson, Judge Traxler, Judge King, Judge Shedd, Judge Duncan, Judge Agee, Judge Keenan, Judge Diaz, Judge Floyd, and Judge Thacker.)

In essence, the 4th Circuit believes that wherever there is a forced (i.e. involuntary) police encounter “the carrying of a firearm poses a categorical danger to others–in this case, law enforcement officers.” U.S. vs. Robinson (4th Cir. Ct. App. 2017) (Judge Wynn concurring). But it gets worse. The encounter was created by the police admittedly because they had a creditable report that the suspect was armed. This creates a dangerous circular logic: “[T]he law enforcement officers lawfully frisked Defendant, after lawfully detaining him, based on information that he carried a firearm.” U.S. vs. Robinson (4th Cir. Ct. App. 2017) (Judge Wynn concurring).

Thus, under the logic in Robinson, even if carrying a firearm is legal, an officer can use this information to forcibly detain a person, and then because armed is equated to dangerous during a forcible encounter, the officer can therefore disarm the person. This misguided view of the Fourth Amendment eviscerates the Second Amendment and invites officers to harass citizens for what is lawful activity.

Is This All? (Ain’t it enough?)

The stop in Robinson was predicated on ‘other’ causes (related to minor traffic violations). It is doubtful that stops for nothing more than legally carrying a firearm would survive many court challenges without a significant alteration to Robinson. However, those legal battles will be lengthy and expensive. (And they likely won’t happen in cases with good facts, but rather in cases where the defendant is guilty of some crime.)

There is however the South Carolina Constitution and the protections it provides. Since most encounters will be with SC officers, these protections are very real and important. Further, the General Assembly can also step in and clarify the protections for those carrying lawfully.  Hopefully these protections will make up for the 4th Circuit’s poor circular logic.

Your take away:

Be polite and courteous. Be firm and protect your rights. This should keep you out of trouble, but if it does not, reach out to me and we can work to resolve the situation.

SC CWP: Shall Issue or May Issue?

At first blush, you would expect that South Carolina has friendly gun laws. If you can own it Federally, you can own it here. You can carry in your car’s glove box without a permit. There are no state requirements to buy firearms and ammunition. We are a “shall issue” CWP state.

Or are we?

Shall Issue

“Shall issue” refers to states where the laws requires the issuance of a concealed weapons permit when the applicant qualifies. The hallmark of “shall issue” is the removal of discretion in the issuance process. An applicant cannot be denied a permit ‘just because’. If the applicant meets an objective standard, the administering agency must issue a CWP.

To fully appreciate the “shall issue” concept one should compare it to the “may issue” standard.

May Issue

“May issue” laws allow the agency responsible for issuing CWPs discretion to allow or deny an application. These laws are common in the Democrat strongholds of the north eastern and west coast states. In these states an applicant must have ‘good cause’ or a ‘justifiable reason’ to carry a gun.  In typical instances, whether an applicant meets this standard is left to the discretion of the local issuing authority such as the chief of police or sheriff.

Such ‘good cause’ standard is subjective at best, and California, as example, is rife with counties that issue very few CWPs while others issue them freely.

South Carolina

So we have a “shall issue” state, right? Well . . .  sort of.

S.C. Code Ann. § 23-31-215 (B) states clearly “If the fingerprint review and background check are favorable, SLED must issue the permit.” (emphasis added.) So far, so good.

But what is the “background check”? Well, it is in part a fingerprint background check. But it is also a sheriff recommendation. (“The sheriff within ten working days after notification by SLED may submit a recommendation on an application.” S.C. Code Ann. § 23-31-215(B).) And what is done with the Sheriff’s recommendation?

SLED must consider this recommendation. (“Before making a determination whether or not to issue a permit under this article, SLED must consider the recommendation provided pursuant to this subsection.” S.C. Code Ann. § 23-31-215(B).)

What does consideration mean in practice? SLED typically follows the sheriff’s recommendation. If the sheriff says an applicant is unfit, SLED doesn’t issue a CWP.

The Sheriff Recommendation

So what does the sheriff rely upon for his recommendation? That varies from sheriff to sheriff. Some take no position while others will give a negative recommendation for merely an arrest. The variation is wide, and many times applicants are caught off guard with a rejection. In reality, because of the latitude of review and lack of objective standards, the sheriff’s recommendation is subjective.

In my experience I have seen rejections for arrests, investigations, incident reports, convictions that have been expunged, and convictions pardoned. Sheriffs take the responsibility of issuing a CWP seriously, and they are not afraid to recommend against issuance when an applicant has a speckled past.

Because SLED follows sheriffs’ recommendations, and sheriffs set their own standards for who passes a background review, South Carolina has in effect a “may issue” standard.

What can be done if your application is rejected?

A CWP denial can be appealed. Sheriff rejections are tricky. Typically, the issue has to be addressed with the rejecting sheriff and the sheriff convinced to change his recommendation. Each sheriff has different requirements for an applicant to prove his qualifications. Of course the underlying concern will also affect how to address the rejection with both SLED and the sheriff. I have helped clients with very messy histories, and I understand the emotional impact of addressing past mistakes. I also understand the emotional impact of being denied. If you or someone you know needs help, let me assist in overturning a denial and acquiring a CWP.

What Part of the AR-15 is the Receiver?

If you read the subject line and thought: “Duh, the lower, we’ve known that since the 60s.” you want to read on.

Yes, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has held for years that the lower ‘receiver’ is just that, the receiver of the AR-15 rifle. However, in a recent criminal defense, Joseph Roh challenged this common understanding.

The Statute

Congress defined firearm in statute as part of the Gun Control Act. Roh and the ATF agree the definition of “firearm” includes a “frame or receiver.” 18 U.S.C. § 921(a)(2):

“The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.”

Congress however did not define “frame or receiver.” Rather, this language was left for the implementing agency, the ATF, to define.

The Code of Federal Regulations

Many years ago the ATF went through the administrative rule making process to define a “frame or receiver.” The definition was published in the Federal Register and thereby became an enforceable part of the law. 27 C.F.R. § 478.11:

“Firearm frame or receiver. That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.”

The Question

Applying the CFR definition of frame or receiver to an AR-15 lower, Roh challenged the classification of the part as a receiver. In essence, he argued that the AR-15 lower did not have all of the characteristics of a receiver.

The ATF first countered that it had notified Roh privately, in writing, that the AR-15 lower was considered a receiver. However, the Judge was inclined to dismiss that argument. After examining the ATF’s private manner of classifying frames or receivers without resorting to the rule making process, the Court offered that such classifications, due to failure to follow the rule making process, did not constitute law. Further, Roh’s knowledge of the same was immaterial. “[Roh] certainly knew through correspondence with the AFT (sic) and visits that it was the ATF’s position that the lower receiver were “receivers.” But his knowledge of the AFT’s (sic) position does not give ATF’s unsupported position the force of law.”

The Judge then limited his examination of an AR-15 lower to the CFR definition of receiver. Applying the definition, the Judge found there to be four characteristics of a receiver: 1) hammer, 2) bolt or breechblock, 3) firing mechanism, and 4) usually threaded at its forward portion to receive the barrel. It is worth noting that the threading for a barrel is only usual, and a good argument could be made that such is not strictly required.

At trial, it was uncontroverted that an AR-15 lower does not contain a bolt or breechblock and is not threaded to receive a barrel. The ATF had to concede this point, and the Judge determined “the plain conclusion is that the finished receiver is not a firearm.”

Ruh – Roh Scooby!

Discretion is the Better part of Valor

Give the ATF credit. They know when to hold ‘em, when to fold ‘em, when to walk away, and when to run. The case, U.S. v. Roh, was brought in front of the Judge on a bench trial. After trial, and before a decision would be rendered, Roh motioned for summary judgment on the charges of making firearms and illegally selling firearms.

The Court, in more detail than above, analyzed the claim of manufacturing AR-15 lowers as receivers and concluded as shown. However, the Court also upheld a vanilla charge of selling firearms without a license. With the possibility of conviction on one charge, but a very unfavorable ruling on the other, the Court gave the parties a Tentative Order.

With the Tentative Order in hand, ATF and Roh quickly worked out a non-prosecution agreement and the case was dismissed without a decision. Thus nothing within carries any legal weight. But the reasoning remains and has been resorted to in other cases.

A frame or receiver must house four parts (arguably three), and the AR-15 lower only houses two of those parts. Strictly speaking, it does not meet the CFR definition of a frame or receiver. How will future Courts interpret such an argument? We may never know if the ATF embarks on a rule making exercise to fix the CFR, but if they don’t, expect this question to arise again. Especially if the ATF, under the Biden administration, attempts to further regulate ‘80% lowers.’