‘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. 

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.’

Short Barreled Rifles and Multiple Configurations

If you own a SBR based on the AR platform chances are you have, or are tempted to buy, multiple uppers for the firearm. This is just fine if you follow a few technicalities.

First: The Firearm

A short barreled rifle (SBR) is defined as a rifle with a barrel less than 16” in length. When such rifle is made, the ATF records the maker, model, barrel length, caliber, and overall length of the firearm.

For the AR platform, the firearm is the lower receiver. This means you can physically change the upper, thereby changing the barrel length, caliber, and overall length, without making a new NFA firearm.

But the Paper Says . . .

However, you’ll notice that your Form 4 (or Form 1) has the SBR registered with a particular barrel length, caliber, and overall length. When you change the upper, you change these measurements.

It is ok to change these, but you must notify the ATF of the changes. This requirement is found on the Form 1 and Form 4 under the “Change of Description” heading in the Important Information for Currently Registered Firearms section.

Notification Procedure

So you are making a change and need to notify the ATF. What to do?
Put together a letter.
You’ll be sending it to the ATF at:

NFA Division Bureau of Alcohol, Tobacco, Firearms and Explosives
244 Needy Road
Martinsburg, WV 25405

Next, draw their attention to the firearm in question:

The XXX NFA Revocable Trust is the owner of registered SBR 123456 manufactured by GunMaker Inc.

Now, assuming this is an additional configuration and not a replacement, provide the information regarding the additional configurations.

In addition to the current configuration(s) of SBR 123456, the firearm may also be found in the following configurations:

Barrel Length Overall Length Caliber
10″ 22″ 5.56 mm
8.5″ 20.5″ .300

Last, provide a request for amending the record and a kind closing:

Please amend the registry entry for this firearm with the provided additional configurations. If you have any questions, do not hesitate to contact me at [phone number] or [email].

Sincerely,
XXX, Trustee

With the letter

Once you have your drafted letter, create two copies. One is for your records; the other will be sent to the ATF. To make your request clearer, include a copy of the Form 1 or Form 4 with the letter. This way the ATF knows exactly which firearm you intend to change.

Record Keeping

The ATF does not always respond, hence the need to save a copy of the letter. However, once you have notified the ATF, you have satisfied the requirement on the Form 4 or Form 1.

Changes you can’t make

It is worth noting that there are some changes you cannot make. You cannot change firearm type. If you have a SBR, you cannot change to a shotgun barrel and make a SBS. You also cannot change either the SBS or SBR to a Destructive Device. Thus you must remain within the class of firearm that is registered.

Notifying the ATF about additional configurations is quite easy. Sometimes the hardest part is getting around to it. If I can ever be of assistance with this, or another matter, please do not hesitate to reach out.

NFA Amnesty?

In 1968 Congress opened a thirty (30) day amnesty period where any person possessing an unregistered NFA firearm could register said NFA firearm for free and without liability for any previous violations of the law. During this time hundreds of firearms were registered including many war trophies.

The actual law allowed for up to ninety days and three amnesty periods, but the Treasury Department (then managing the NFA) did not see fit to use the last two periods and sixty days. Since then many collectors have pondered whether the ATF would take advantage of the law and offer another amnesty period.

Unfortunately the ATF has taken the position that 18 USC § 922(O) would prevent the registration of new machine guns under the current amnesty law, and that any amnesty would obstruct ongoing investigations. Therefore no amnesty periods have been enacted by the ATF since the original amnesty in 1968.

Congressional Action

Congress, however, does not have to wait on the ATF. On June 26th, a pair of Senators and a pair of Representatives introduced bi-partisan legislation to allow for the amnesty registration of war trophies acquired outside of the Continental United States prior to 1968. The bills can be found at S. 1435 in the Senate and H.R. 3054 in the House.

Currently, each bill has been introduced by a Republican and is cosponsored by an Independent in the Senate and a Democrat in the House: Thus garnering the coveted ‘bi-partisan’ description.

What will the bill allow?

While the full text is not yet available, the bill reportedly allows veterans, or their families, to register, for free, NFA Firearms that were acquired outside of the Continental United States by a veteran prior to 1968. I will provide a full analysis at a later time when the text is available.

So what are the chances at passing?

I am inclined to say ‘not likely.’ However, this is not the first time such legislation has been introduced. During the 2011 congressional session a similar pair of bills were introduced. In the House 230 members cosponsored the bill: thus more than half of the house were sponsors. In the Senate 21 Senators joined in cosponsoring the bill, and many Democrats joined as sponsors of the bills.

With this much historic support, even under an administration openly hostile to firearms and firearm collectors, it seems possible that these bills just might garner enough support to pass. However, with all that Congress is handling, it is unlikely that something of this nature will be top priority. Ultimately, we will need to see how many members join as cosponsors after the July 4th recess is over.

Concluding

Right now we have too little information to comment on the mechanics of the bill, and it is too early to get a good gauge on the possibility of success. Fortunately previous bills had large bipartisan support, but unfortunately the same bills were not voted upon in either chamber of Congress. I’ll keep a watch on these bills, and if you have a veteran’s firearm in the family then you too should keep an eye on these bills.

As an aside, I have helped clients check on the registration status of NFA firearms, and in many instances the guns are registered and transferrable. If you are wondering about a firearm, do not hesitate to reach out to me in confidence to discuss your situation.

Continued Review of ATF White Paper by Ronald Turk

This post is the second part of a two part series reviewing Mr. Ronald Turk’s ATF White Paper. To learn about the first 7 subjects of the White paper see the previous review.

8. Silencers

Silencers are regulated under the complicated NFA, and all sells must be pre-approved by the ATF. This process, due to the volume in silencer sells, has become quite lengthy. Turk acknowledges that the eight plus month weight time is a problem that the ATF cannot fix without reducing the volume of silencer sells being processed. This he views as an impossible goal because silencers are now becoming popular. As an alternative, Turk offers support for the Hearing Protection Act and suggests that Congress should remove silencers from the purview of the NFA.

As an accompanying act, Turk encourages to revise the definition of silencer to exclude mere component parts. This would make repairs of silencers and shipping replacement parts much easier.

All in all, this is a positive development for the Hearing Protection act, however the odds for this bill in the Senate remain low.

9. Interstate Sale of Firearms at Gun Shows.

Current regulations prevent FFLs from conducting business out of the state in which they are licensed. This effectively prevents dealers in one state from traveling to a gun show in another state. With many large cities barely outside of SC borders (Augusta, Charlotte, and Savannah to name a few), this prohibition affects many businesses in our state.

Turk acknowledges this situation, and proposes a regulation change that allows licensees to attend out of state gun shows as long as they comply with state law. If done, sells will still occur at a licensed dealer, and buyers will still undergo background checks.

Such a change should be healthy for competition and will bring a new dynamic to gun shows. But It will open up our local businesses to competition from out of state companies, which will come with it’s own headaches.

10. Destructive Devices.

Destructive devices generally fall into two categories. Reusable equipment, such as guns larger than a half inch in diameter, and single use explosives. Current requirements on marking Destructive Devices are not very practical for single use explosives, and the ATF commonly issues variances for these marking requirements.

Due to the limited size of this market, and with such explosives also being controlled under the Safe Explosives Act, Turk believes there is room to re-evaluate how these items are marked. He proposes continuing conversations with the industry to determine more efficient ways to mark these items.

11. Demand Letter, Guns found in Crime.

If a FFL receives more than 9 trace requests for guns used in crime, and the time from the gun being sold to use is less than 3 years, the ATF requires the FFL to submit a letter the next year documenting all of the used firearms purchased by the FFL. Earlier requirements were more than 24 trace requests.

Turk recognizes that more than 9 trace requests is over inclusive and creating a regulatory burden excessive for the perceived safety benefit. The ATF is in the process of re-evaluating the number of requests to use as a triggering mechanism, and Turk encourages increasing that number to somewhere in the vicinity of 15.

This change will only affect industry, and anything that relieves regulatory burden should be appreciated. Unfortunately, this change will be reversible under future administrations.

12. Demand Letter, Border States.

FFLs in several southwest border states are required to submit information on any purchaser who purchases more than one semi-automatic firearm with a detachable magazine. This controversial program has been criticized by the NRA, but is supported as a means to fight firearm smuggling. There has been a push to eliminate this demand letter with much focus on the fact that no statute justifies the ATF’s stance.

Turk acknowledges the push to eliminate the letter requirement, but defends it as beneficial to the “ATF’s criminal enforcement mission.” His suggestion is only one of further discussion. Here the administration will be forced to choose between continuing a controversial, and not statutorily grounded, program, or eliminating it as overreaching by the former Executive branch. Turk’s stance indicates the ATF will not be very supportive of eliminating this demand letter.

13. FFL Record Retention Time.

FFLs must retain 4473s and other records for 20 years. The ATF was in the process of expanding the time to indefinite and requiring FFLs to retain firearm records forever. However, this proposed rule should be abandoned according to the new President’s wishes and directives.

Turk observes that the number of traces failed on a yearly basis due to records destroyed for age is less than 0.5% of all records performed. With such a minuscule impact, Turk proposes abandoning the proposed rule. To support his suggestion, he notes that the firearm industry, the persons burden with the regulation, are opposed to the change.

Leaving the law as-is is a stable move that will not upset current expectations and practices.

14. Permissive Use of NICS on Employees.

NICS is the background check system that every FFL uses on every firearm purchaser. However, FFLs cannot use the system for any other background checks. Turk proposes allowing a very limited exception for FFLs to use NICS to perform a background check on potential employees. Such use would make a convenient and official system available to FFL employers to ensure new employees are not prohibited persons. Turk emphasizes the use of the system would be voluntary only.

This is another solid, but minor, proposal.

15. ATF Confirmed Director.

As noted earlier, the ATF has had only one confirmed director since 2003. Turk observes this and laments the lack of a leader for the agency. He emphasizes that a confirmed leader is necessary to “maximize the agency’s potential.”

Some say Turk is vying for this job. Others believe his statement regarding the need is just a fact or shows he doesn’t want the job. Either way, it is true that the ATF is dysfunctional and not able to move forward without a confirmed leader. However, a dysfunctional ATF was unable to implement President Obama’s anti-gun goals, and a weakened, leaderless ATF is not necessarily a negative for those who champion gun rights.

16. Regulations to Remove or Amend.

Turk ends by listing 26 regulations that need to be removed or amended from the Code of Federal Regulations. Most of these sections relate to the now expired Assault Weapons Ban. A move to clean the expired parts out of the Code of Federal Regulations would be an admission that the Assault Weapons Ban is not coming back anytime soon. This would be a positive development, and any reduction of regulations should be welcomed by the new administration.

Conclusion

There are many good proposals within the White Paper. There are many more minor changes that will help industry without affecting the average firearm owner. However, a few of the proposed changes can be seen as implementing failed Obama policies by trying to remove the “sting” against gun owners. Ultimately those changes will prove problematic to gun owners.

Whether or not any of these suggestions will become law, or even just the official stance of the ATF, remains to be seen.