National Firearms Act
Opposing the proposed NFA rule
Prince Law Firm proposes September 3 as the NFA Day of Reckoning. That page has form letters (to be personalized and edited) to send to your Congress critters, and to the Small Business Administration, and a link to get the mailing addresses.
Permalink · National Firearms Act · Comments (1)
NFA proposed rule posted
Here's the proposed rule. It results from a petition by the NFA Trade and Collectors Association ... why they petitioned, I cannot explain. Perhaps they counted upon the agency to be reasonable, which is never a good idea. Even if the agency is reasonable, the regs must clear the Office of Management and Budget, which is the President's right arm in regulatory matters.
The proposed rule (as a commenter to an earlier post predicted) would require photos and fingerprints of the operator for trusts and other business entities, but does not delete the requirement that the Chief LEO sign off on the transfer. It does shave that down a little, so that the CLEO certifies that the transfer would not place the recipient in violation of law, tho he wouldn't have to certify that he knows of no reason to believe the recipient would act illegally with the gun. That doesn't solve things for CLEOs who just refuse to sign, period.
It's also interesting that the reason for this (see pp. 14-15) is given as the Brady check being unreliable...50% of arrest records have no disposition report, for example.
Permalink · National Firearms Act · Comments (3)
Texas considering allowing suppressors for hunting
Story here.
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Suppressors now legal in Michigan
An Attorney General's opinion takes a realistic view of the State laws. The Shekel has the historical background.
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A new type of firearm
An interesting debate over at CleanUpATF.org. It's complicated, but I believe concerns what do you have when you have a shotgun with length below the NFA limits, but originally made with a pistol grip instead of a shoulder stock? Is it an ordinary handgun, since it is not designed to be fired from the shoulder? Is it an NFA arm, more regulated, since it is a shotgun with short barrel? Or is it a destructive device, most regulated of all, since it is over .50 caliber and not within any exemption?
Add to that ATF's ability to change its rulings at any time... is the current ruling, that it is an ordinary handgun, an attempt to sucker in the proposed manufacturer (against whom ATF has a serious grudge match) and then, after he has invested in making the firearms, reconsider, seize and forfeit the firearms, and put his production line out of business?
Permalink · National Firearms Act · Comments (2)
Silencer sales booming
With Texas leading the way. I like the quote from Jerry Patterson, Texas Land Commissioner:
""The only use I can think of for a silencer is if you are hunting hogs and have 15 to 20 hogs at a feeder," said Texas Land Commissioner Jerry Patterson, a former state senator who shepherded conceal-carry legislation in 1995. "That's a practical use if you want to shoot one without scaring others off."
"Or maybe if you're getting rid of squirrels in your back yard," said Patterson, who always carries a gun but does not have a silencer."
Permalink · National Firearms Act · Comments (11)
Former president of Blackwater indicted on NFA charges
Story here.
Permalink · National Firearms Act · Comments (14)
More on pistol-gripped shotguns
From James Bardwell's always-useful list, comes a 1996 BATF opinion letter. Its conclusion is that a shotgun that starts out with a pistol grip and a rifled barrel, which is then shortened below 18", becomes a "destructive device" since it is a rifled firearm of over 50 caliber.
(I checked, BTW, and even the 28 gauge is over .50 in bore).
UPDATE: Yep, the NFA's history is interesting and at times weird. Why does it impose a $5 tax on "any other weapon," i.e., a concealable gun that is not a "pistol"? Why would Congress in 1934 be worried about gangsters with pistol canes or 19th century palm guns or smoothbore pistols?
It started out as a high tax on full autos and short barreled guns, with a $5 tax on all pistols, so as to have nationwide registration of those, too. To make sure the pistol proviso couldn't be evaded, the drafters made it pistols and any other firearm capable of being concealed.
Congress didn't buy the pistol registration, and removed it. But they neglected to remove the "any other weapon" provision. So today a pistol is not an NFA weapon, but an obscure 19th century palm gun that fires a cartridge not made in a century is NFA material.
Permalink · National Firearms Act · Comments (16)
Interesting questions re: pistol grip shotguns
From CleanupATF.org comes this interesting question. ATF has consistently taken the position that a shotgun that leaves the factory with a pistol grip and no buttstock, and is kept in that condition, is a pistol rather than a shotgun. I suppose this was in accord with their desire to construe statutes in ways that increased regulation: here, an 18-21 year old couldn't buy it if it was a pistol, but would have been able to if they declared it a shotgun.
But a commenter there raises a question ATF will find difficult: if such a shotgun is actually a pistol, can't he saw the barrel below 18" without it becoming an NFA firearm? The NFA dictates a minimum barrel and overall length for a shotgun, but not for a pistol.
Permalink · National Firearms Act · Comments (31)
More on the NFA database errors
David Codrea goes into it here.
Essentially, it's a federal felony to have an unregistered NFA firearm (machine gun, short barreled rifle or shotgun, etc.). ATF is tasked with maintaining the registry of those. But for decades it's been known that the registry has major omissions. It's been around for 75 years, and thing got lost. The folks actually entering transfers of firearms into it haven't always been the best. Some records were thrown away rather than entered. Wrong serial numbers were entered. Etc..
I once represented a major NFA licensed dealer, Curtis Earl, who was raided on nonexistent grounds. ATF checked his (very large) inventory against their records, and began piling supposedly unregistered guns on the floor. There were dozens of guns in the pile before Curtis pulled out his own records, and showed the agents that he had the registration papers sent by their agency. All the guns were back onto his shelves.
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More on the NFA database
Interesting results, here.
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Friesen NFA case settles
Data here, with links.
Basically, it was an NFA prosecution, where the defense launched a HARD attack on the messed up nature of the government's NFA firearm files, including calling a very well qualified expert to testify to the unreliability of files with such flaws.
In the end, he accepted a plea -- anytime the government drops multiple felony counts, each carrying up to 10 years in prison, in exchange for a plea to a misdemeanor and a $25 fine, you take it.
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Government drops charges against Kwan
David Codrea has the story, here.
Short version: Albert Kwan is a legit machine gun collector. FBI or ATF (reports are unclear) raided his house and found two combination holster/shoulder stocks for certain H&K pistols. Kwan owned a registered, full auto H&K of that type; since it was already registered as a full auto, owning or attaching a shoulder stock would be no legal problem (you don't have to register a gun twice because it is full auto and has a short barrel with shoulder stock; one registration per gun is enough). He also had a semi-auto H&K that could take the stocks, and so the gov't charged that *that* gun plus the stocks meant it was an unregistered short-barreled rifle.
Gov't also charged a semi auto M-14 copy was a full auto, but jury acquitted Kwan of that. It did convict him on the short barrel charge. Then the court granted a new trial, finding that it should have given a jury instruction requested by Kwan ... which instruction, I might add, would kill the government's case. So the government finally dropped charges.
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Case with NFA list implications
Melendez-Diaz v. Massachusetts, handed down today. Defendant charged with cocaine possession. To prove it was coke, State introduced a sworn lab report to that effect. Defendant's objections that this violated his right to be confronted with the witnesses against him was rejected. Supreme Court holds for defendant. The key evidence against him is a claim that the substance he had was cocaine: government must produce testimony from the lab that "accuses" him of that, not just put in a written report.
Might have some relevance as to the often-impeached ATF certification that an NFA gun is not on their list of registrations (although there might be an issue as to whether that list is treated as business records, and thus the certificate allowable).
Permalink · National Firearms Act · Comments (8)
Olofson conviction affirmed
Snowflakes in Hell has a solid analysis. Once the government got testimony (true or false) from the fellow he lent the rifle to, that Olofson knew it would fire a full auto burst before jamming, he was in deep trouble, and if convicted, odds of reversal on appeal would be very low.
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David Codrea on the NFA database
Right here.
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Len Savage's gun arrested
David Codrea has the story. Background: Savage designs NFA-related items. This one enables the owner of a lawful NFA firearm to convert it to a different caliber. BATFE originally ruled that the item was not a firearm, let alone an NFA one; it was a conversion kit. After Len gave some expert testimony in several cases against the agency, it reversed its ruling and held that the kit was an NFA firearm. Now it's pursuing forfeiture of it.
Permalink · National Firearms Act · Comments (15)
Staples case and malfunctioning semiautos
Snowflakes in Hell has a post on the issue of whether a malfunctioning semiauto can leave the owner guilty of an NFA violation if it doubles.
I'd agree with his assessment that the Staples case largely settles the issue. The National Firearms Act defines "firearm" to be an NFA arm, not any firearm (Congress can define things any way it wants). The question in Staples was a split in lower courts. They agreed that the defendant must be proven to know that he had a firearm, but split on whether that meant the NFA definition or just anything that went bang. Supreme Court said the NFA definition applies.
UPDATE: it was, I think, a core issue at Olofson's trial. Problem from defense side was that the prosecution could call the guy he loaned the gun to (to test before buying), and that guy (true or false) claimed that Olofson told him not to put the selector switch in a certain position (in which the gun began firing full auto). From this the government could argue that he knew the gun was malfunctioning and had so for sufficient time without getting it repaired. That's why I say, if it happens, go straight to a gunsmith.
So if a semi doubles by surprise, the possessor didn't have the required knowledge. Now, this might leave open the question of whether he violates the law by continuing to possess after he knows it will do so. So it's clearly time for a quick rush to the gunsmith for repair.
Permalink · National Firearms Act · Comments (18)
Testimony on NFA database
Here's the testimony of on the reliability of the NFA database; the critical part being testimony of Fritz Scheuren in part 6 of the transcript, starting at 1016. Dr. Scheuren's credentials were hard to beat -- among other things, he's Vice President for Statistics at the National Opinion Research Center. I haven't had time to read the transcript, but am told he testified that the NFA database might be reliable enough to start an investigation, but was nowhere near accurate enough to justify a conviction. The result was a hung jury, and there will be a retrial.
Friesen got a good pro-gun lawyer, Mack Martin of Oklahoma City, who set out to nail the prosecution's case.
Permalink · National Firearms Act · Comments (4)
More thought on the Akins Accelerator
Reader Unix Jedi (here's his blog) has this thought:
"As much as I hate to...
ATF's got a damn good case here.
Let me point you to Mike Williamson who detailed why, it changed my mind:
http://mzmadmike.livejournal.com/42839.html
http://mzmadmike.livejournal.com/43279.html
"This evaluation is valid provided that when the stock is assembled with an otherwise unmodified SKS semiautomatic rifle, the rifle does not discharge more than one shot by a single function of the trigger." (emphasis ATF)"
It occurs to me that the difference may lie in the definition of the undefined "single function of the trigger." Does that mean (a) its literal meaning, that the trigger itself must move once for each shot or (b) that the trigger finger must press the trigger for each shot or (c) the trigger finger MUST MOVE and press the trigger for each shot?
Under (a) and (b) the Akins is not a full auto; with it the trigger cycles once per shot and is pressed by the trigger finger once per shot. Under (c), it is a full auto; the trigger finger moves once and multiple shots are fired.
Permalink · National Firearms Act
Akins Accelerator district court ruling
Pdf of ruling here. As I understand it, the Akins involves letting the action slide in the stock so that the trigger essentially pushes itself against the finger, firing as fast as the device can cycle. ATF initially ruled that an Akins-equipped firearm was not a Title II since the trigger is pulled once for every shot. Then, after Akins began production, ATF reconsidered and ruled that it was a Title II since once the trigger is first pulled, it will continue firing until it runs out of ammo or you consciously "release" the trigger by moving your finger away. The court rules with ATF's last position.
Permalink · National Firearms Act
Jury deadlock in case involving NFA records
Posting here. The defense challenged the government's NFA records, brought in a top-notch statistical expert who testified they were not something you could use as anything but an investigatory lead. The jury deadlocked 7-5 (no word on who had the seven and who the five). Odds are that it's effectively an acquittal. Even if it was 7-5 for the prosecution, if you're losing five votes, what are the odds of turning that into 12-0 at a second trial?
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But is it NFA registered?
Video here. I've heard that ATF has opined that a shoelace, properly tied, can be an NFA weapon, but I don't know about catgut...
Permalink · National Firearms Act · Comments (5)
NFA: NFRTR challenged
News release here.
Background: the National Firearms Act of 1934 requires tax payment, and thus registration, of full autos, short barreled firearms, etc. In any NFA prosecution, the government must prove the gun is unregistered and that the tax wasn't paid on the transfer to the current possessor. To do that, it produces a certificate or testimony from the people who keep the National Firearms Registration and Transfer Record.
It's pretty clear that the NFRTR has big problems, the only question is how big. For its first half century, it was simply a gigantic collection of paper files, rising to a hundred thousand or so, with great opportunity for someone checking out a file, or a document, and losing it. Even after they automated it, there was opportunity for typing in the wrong serial number, etc.. A few years ago a video of a HQ ATF fellow got loose, with him saying they'd always testify that the record was 100% accurate, tho they knew that wasn't the case. Think he said older entries had a 50% error rate and newer ones had gotten than down to 10%.
UPDATE: here's the video. As I recall, YouTube wasn't around back then, or at least not popular.
This was known to be a big problem as early as the 1980s, when there were internal studies and internal memos documenting it as a serious problem.
Hat tip to Say Uncle.
Permalink · National Firearms Act · Comments (1)
Legal thoughts on the Palm Pistol
The inventor of the Palm Pistol has added, not only the ATF approval letter, but Steve Halbrook's letter to ATF, which goes into much more legal detail. (It's all one pdf file, Steve's letter follows that of the ATF). The key argument appears to be that a "pistol" has a "grip" (whereas 19th century palm pistols did not) that is at an angle to the bore (which cane guns, etc. do not satisfy). It's all pretty arbitrary, of course -- but then the pistol vs. "any other weapon" distinction has always been. And AOW only got into NFA because of a quirk in how the statute was drafted and then amended ... it's not like the gangsters of 1934 were running around shooting at each other with palm guns from the 1890s, or guns built into a gentleman's walking cane.
Permalink · National Firearms Act · Comments (5)
Not a product I'd care to own
Snowflakes in Hell has a posting (via Ry Jones) about a converter kit to turn a Ruger 10-22 rifle into a pistol.
I'm not utterly sure of the benefit (why not just buy a Ruger pistol?) but I'd agree that the legal risks are considerable. ATF's position is that the receiver is the gun, and a rifle receiver is thus a rifle, so one turned into a pistol becomes a short-barreled rifle. The Thompson Center case suggests this may not be right, but I wouldn't consider it 100% on point, and when a violation is a felony, I'd like more assurance than that.
UPDATE: Tom Gunn notes, in a comment the spam blocker didn't like:
"can someone explain how the ATF could consider this a SBR
http://www.sportsmansguide.com/zoom/zoompop.asp?i=146307_ts.JPG&h=&w=&bgc=&ui=&mc=&cf=&nv=&c=&adid=465886
And this is not?
http://www.ruger-firearms.com/Firearms/FAProdView?model=4901&return=Y
That makes no sense what-so-ever but then . . ."
The images are of two virtually identical 10-22s. I suppose the answer would be that one left the factory configured as a rifle and the other as a pistol. It does illustrate the problems with maintaining that there are "rifle receivers" and "pistol receivers." In actually, there are "receivers," and what is attached to it -- barrel and stock -- should be the sole determinant of what it is at a given moment.
You can't make sense of most gun laws, and the NFA is probably the worst. Gangsters were misusing Thompsons and sawed off shotguns, yet they threw in rifles and "any other weapons." The last is a remnant of the original plan to require registration of handguns (with a small transfer tax), with "any other weapon" capable of concealment put in for good measure. Then Congress took the handguns out, leaving just "any other weapon." So you wind up having to register some strange palm pistol made a century ago for ammunition not made in nearly a century.
They actually had to change the rifle barrel length. Originally, the minimum was 18" for rifles and shotguns. Then after WWII the government realized it had sold as surplus a ton of M-1 carbines with barrels just a bit over 16". So it lowered the barrel requirement for rifles to 16"
Permalink · National Firearms Act · Comments (15)
Ruling on shoulder stocks
District Court ruling, in pdf, here. Defendant, a reservist, has two handguns (one a semiauto, one a registered full auto) and two shoulder stocks that would fit either. The shoulder stocks double as holsters, and he has one handgun in each when ATF raids him (on other grounds, which turn out to be a legal mistake). Government argument is that the semiauto plus the stock in which it was holstered equal an unregistered short-barreled rifle. The District Court says no -- using the Thompson Arms test, the two stocks had a purpose other than an illicit one, namely being fitted legally to the full auto.
The government has appealed, but it looks like a sound ruling to me. What saved him was having a registered full auto that took the stocks. What might put him in danger is having the semi-auto holstered in one of them (even tho under Thompson Arms, that should make no difference).
Permalink · National Firearms Act · Comments (8)
Two handed grip = any other weapon?
Say Uncle posts on a court ruling that a pistol with a vertical forend grip is not "any other weapon" under the NFA.
"Any other weapon" requires application and registration, as with a machine gun, altho the transfer tax is only $5 as I recall. It's a legal quirk that originates in the history of the NFA. NFA as introduced in Congress would not only have covered MGs and short barrels, but also handguns (at the $5 rate). To prevent quibbling over what was a handgun, it added and any other gun capable of concealment on the person. Congress stripped the handgun part out, but forgot to take out and any other weapon. So all the obscure palm guns and cane guns and anything that isn't really rifle, shotgun or pistol, has to be registered. ATF's position. ATF takes by regulation the position that a pistol is a gun intended to be fired from one hand, and so putting a vertical forend on a pistol makes it a two handed gun, and AOW rather than a pistol. From his report, a court has ruled this isn't so.
Congress sometimes does nobody (gun owner, ATF, or anyone else) any favors when it writes law. Esp. laws that wind up governing very obscure firearms. A .44 mag is just a gun. A .32 rimfire palm gun that uses ammo not made in near a century, and which its owner wouldn't dare fire for fear of breaking a part and reducing its value, winds up with federal registration, send in your fingerprints for a full FBI check, etc.
Hat tip to Sebastian...
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NFA scam
SayUncle has the story.
Basically, a guy has a registered, relatively cheap, NFA firearm. Say it's a MAC-10, serial no. 1000. He cuts the serial no. section out, makes a receiver for a high cost NRA, say a BAR, and welds the serial number in. Then he sells it with the assurance it's perfectly legal. BATF will process the Form 4. Serial number and mfr match a registered gun, and so the transfer goes thru. I suspect the processing is by people who know little about firearms, and thus don't wonder why a MAC-10 is in .30-06 with a 24" barrel.
Eventually, of course, the matter comes to light and the gun is contraband.
Permalink · National Firearms Act · Comments (10)
ATF ruling on autosears and receivers
ATF Ruling 2008-1 is here, in pdf. On its face, it changes the definition of which receiver half is legally the "firearm" for an FNC rifle.
What is of concern is part of its reasoning. There are autosears for the FNC; if installed these allow it to fire full-auto. Autosears have been held to require NFA registration, as a device designed to allow automatic fire; each one is serial numbered, registered, and traditionally treated as the registered machine gun. To the best of my knowledge, it was never argued that putting one into a semiauto made the remainder of the semiauto a machinegun with a separate registration requirement. But this Ruling's reasoning is that since you would have to drill and mill a semiauto FNC receiver to accomodate the autosear, doing so would make the receiver a full-auto receiver, and violate the 86 ban.
Permalink · National Firearms Act · Comments (7)
Akins Accelerator folks file second suit
Complaint here, in pdf. I tend to agree with their legal theory, but wouldn't give high odds of winning.
[UPDATE: Bill Akins sends a comment, blocked for some reason by the spam filter, but added in extended remarks below. Context is comment about wanting a .22 gatling gun:
Continue reading "Akins Accelerator folks file second suit"
Permalink · National Firearms Act
Blood baths in Kanas
The (anti)"gunguys" worry about the prospect that Kanasa might allow private sake of licensed Title II firearms. I.e., firearms that cost $5000 and up, require FBI fingerprint clearance, and in 70 years have been involved in, depending upon which report you want to believe, either zero or one violent crimes. I'm tembling in my boots...
Permalink · National Firearms Act · Comments (7)
Article on silencer prosecutions
In the Western Criminology Review. Basically, the conclusion is that most silencer prosecutions are for simple possession; when charges involve possession in connection with crime, it's usually a drug offense. Prosecutions for use in a violent offense are almost zero.
The point he ultimately makes is that sentencing should reflect this Instead, the Federal sentencing guidelines call for two year's minimum imprisonment for first-offense possession, and if possessed in connection with crime, a separate provision mandates a 30 year, consecutive, minimum, without parole -- a sentence exceeding many jurisdiction's punishment for 2nd degree murder, and far exceeding their punishments for forcible rape.
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In line for the Heller case
Clayton has some pics he took of the determined folks standing in line to get in for the Heller argument. These were taken around 9 PM the night before and yes, they were camped out in sleeping bags. Most of those who got in, I'm told, camped out TWO nights, beginning in line Sunday.
I've seen some other blog entries from people standing in line, but now can't find them; if anyone has some, please add to comments. (Note: due to spam, I think the filter is set to allow one or maybe two htmls per comment; if you have multiples, I'd suggest a separate comment for each).
UPDATE: Yup, if we win in Heller, the 2nd Amendment doctrine recognizing in the 6th Circuit (and in fact in nine of the twelve circuits, I think -- not counting Federal CIrcuit, which handles only certain cases -- will no longer be good law.
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Interesting statute
SayUncle notes an interesting TN statute that requires an LEO to sign off on an NFA transfer application, if the recipient is legit.
Background: the ATF form for acquiring a National Firearm Act firearm (full auto, suppressor, etc.) must be signed by a chief LEO or prosecutor for your area. But absent a law like this, there is no duty to sign, no matter how good your character might be, and many won't.
Via Instapundit....
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NFA weapons registry and studies of its flaws
The NFA Owners Assn has put up small pdf of studies of the NFA database, and how many errors were found. It's pretty impressive...
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Rather fair article -- on machineguns!
From the not-exactly pro-gun Atlanta Journal-Constitution:
"Randy Powell has a .50-caliber machine gun he would like to sell you —but he can't afford to.
The monster, sitting in a cage in back of his gun store and shooting range in Lawrenceville, can cut down a tree — and could easily fetch $30,000 in a perfectly legal sale. But for Powell, the sale would be the equivalent of hawking a Picasso or vintage wine.
The gun increases in value exponentially each year....."
Hat tip to reader Justin Martin.
Permalink · National Firearms Act · Comments (3)
New trial granted in NFA case
Here's the ruling, as a small pdf file.
One gets the impression the court was a bit put off by ATF. (1) The raid was without any basis. Defendant had been an NFA dealer, and when he went out of that business, transferred an NFA gun to himself. At trial, the US Attorney conceded that was entirely legal. ATF either didn't notice the transfer, or claimed it was illegal in some other way. (2) The court cites an ATF advisory letter which clearly suggests that the count upon which defendant was convicted was without basis.
Basically, he had two shoulder stocks for pistols, and two pistols that would take them. One was a registered full auto pistol, for which the stocks were perfectly legal, and one was an ordinary semiauto pistol -- which, if a stock were attached to it, would be an NFA short barreled rifle. The court cites Thompson-Center for the proposition that possession of a set of components that could be made into a short barrelled rifle is not improper if it has "obvious utility" for also making non-NFA handguns or rifles. This is rather the flip side of that: the components had obvious utility for making a registered NFA firearm.
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New TItle II prosecution
David Codrea has a full report.
Permalink · National Firearms Act · Comments (1)
Calif court supresses result of search based on NFA inspection
Story here. Sounds as if the ATF inspectors checked his title II inventory, noticed he had non-NFA guns banned under the CA ban on "assault weapons," and alerted State authorities.
The court noted that there are statutory immunities regarding NFA information (put in place to prevent an argument that the amended NFA requires self-incrimination, as the Supremes had held the original NFA did require), and that (I think, the article is unclear) that includes information uncovered during inspection of an NFA dealer's inventory and records.
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922(o) -- or NFA -- held void for vagueness as applied to LEO
A district court has ruled in US v. Vest, dismissing the indictment (pdf file). The charge was possession of a machinegun in violation of 18 USC 922(o) and without proper registration under NFA, and the defendant was a police officer.
Apparently, he got the MG for use in official duty, certifying it as such (getting around 922(o)'s ban), and registering it as such. The prosecution argument was that 922(o) makes an exception for possession by a police dept or under authority of such a dept, and that that didn't cover personal ownership by an officer, but only by the PD.
Court found the requirement void for vagueness as applied (that is, under these particular circumstances, not under any possible circumstances).
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922(o) -- or NFA -- held void for vagueness as applied to LEO
St. Louis papers are reporting that a Federal judge threw out a machinegun case against a police rifle instructor. He bought it privately, and used it only for police purposes. The court held the statute void for vagueness as applied to him.
The article doesn't say which statute the prosecution relied upon. 922(o) bans post-ban MGs with an exception for "a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof." There might be ambiguity with regard to possession "under authority of ... a State, or department, agency..." The article reports that, whichever statute it was, ATFE takes the position that it excepts only a police dept itself, and not an individual officer who owns one.
It might be NFA, but that exempts "A firearm may be transferred without the payment of the transfer tax imposed by section 5811 to any State, possession of the United States, any political subdivision thereof, or any official police organization of such a government entity engaged in criminal investigations," 26 USC §5853, which sounds much clearer in saying only the PD itself can register the gun tax-free.
[Hat tip to reader Michael Gale of Shall Not Be Infringed,
Permalink · National Firearms Act
WWI machinegun seized, turned over to museum
An interesting story. Des Moines police found a water-cooled German MG from WWI in a drug raid, and made arrangements to turn it over to a military museum.
Thought: back in the 70s, police generally auctioned off seized firearms. I used to go to the auctions here. One of the judges sent his bailiff over to bid on the ones he liked. (I guess he thought it'd be improper to bid against attorneys). Then in later years that changed, here and almost everywhere else, to where seized guns were destroyed. I wonder if it might not be useful to try to get exceptions. For example, guns on the ATFE curio and relic list can be donated to museums, and those not accepted can be sold. That way collectibles wouldn't be melted down, at least.
[UPDATE: I think there is a museum exception (not dead sure). The only police exception is, as I remember, that they don't have to pay the $200 tax -- but guns on which no tax is paid become "law enforcement only," I think even if a person offers to buy and pay the tax on that transaction.]
Permalink · National Firearms Act
Title II ideas
An interesting discussion on getting NFA permits issued to a trust, corporation or limited liability company, instead of to an individual.
One problem with an NFA permit is that it's issued to one person or entity, and only that one can possess the firearm. If the permit is to you, your spouse cannot use it without you being present, even tho the spouse is co-owner. I don't do trusts, but it does sound like an interesting idea.
Permalink · National Firearms Act · Comments (4)
State troopers charged with illegal full auto possession
From the Belleville News-Democrat: three Illinois state troops and a physican have been charged with possession of illegal full autos, and ten police chiefs have written to ask that charges be dropped.
[Update: Brady Campaign was asked for comments, and gave a diplomatic "If that's what happened, it's a lapse in judgment." (BTW, this latter news article has more factual and legal errors than I can easily count).
UPDATE: Here's the letter in support, with signatures.
UPDATE: yep, the second article linked has quite a few errors. The M-4 is described as a subgun. The article implies that ANY full auto can be owned with payment of a $200 tax (ignoring that it takes more than that, and post-bans are out). It says subguns "often" fire pistol ammo, when firing such is the very definition of a submachinegun. It implies that full-auto breaks down into two classes: tripod mounted MGs and subguns.
Strange part is that it says the M4 was registered, to the law enforcement agency. Sounds as if the charges against one trooper are purely that he took it home contrary to regulations, which is a pretty tenuous basis for an NFA charge. Of course, the reporter may have missed some other details, or got that wrong.
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NFA record fiasco update
It's been known since the 1970s that BATFE's registrations of NFA firearms (chiefly full-auto and short barrelled rifles and shotguns, taxed and thus registered under the National Firearms Act of 1934) were seriously flawed -- missing files, wrong serial numbers, the accumulation of (today) seventy years of paperwork and file cabinet mistakes. As noted earlier, there's a push on to get the records cleaned up -- which is vital, since "no registration found" means search warrants and indictments.
Over at Subguns, Eric Larson has posted a note that ATF has apparently stopped auditing NFA firearms records during its periodic audits of dealers' records, which he interpets as "stop finding errors!" He notes a report of a Senate Judiciary Committee subpoena served on ATFE regarding its records, and suggests contacting your legislators to press for a full investigation. Click on additional data below for his full posting.
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Mich. a full auto state
From Eric Larson, on subguns.com:
"Michigan Attorney General Cox issued Opinion No. 7183, dated December 27, 2005, which supercedes former Michigan Attorney General Frank Kelly's Opinion No. 5210, dated August 10, 1977.
Boiled down, it means that Michigan residents are legally entitled to lawfully possess NFA firearms and devices, as long as they are legally registered with ATF and ATF approves the transfer application (i.e., that the Michigan resident has no convictions that would prohibit possessing a firearm, and gets his/her paperwork signed by a CLEO or done through a corporation). Anybody who wants it should be able to obtain a copy of the foregoing Opinion by contacting the Michigan Attorney General's office.
Opinion No. 7183 clarifies that an approved application to transfer an NFA firearm or device meets the requirement under Michigan law as a "license" required to lawfully possess a machine gun. If you get the Opinion, and read it, it will answer all of your legal questions. I understand some folks are in the process of sending the Opinion to ATF to get it implemented in the National Firearms Act Branch so applications by Michigan residents will be approved. This covers all NFA firearms and devices, in addition to those classified as curios or relics."
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Congressional Research Service lights fire under NFA registry
The Congressional Research Service has issued a lengthy study (pdf) of the NFA registration system, and it's a scorcher. Understand that search warrants, raids, and convictions are based upon negative reports from this system, which are used to establish that an NFA weapon (full auto, or short barrelled shotgun or rifle) is not registered, so the sytem should be perfect or very near perfect. According to the report, it's far from that.
Questions about its accuracy have been raised since the 1970s. (pp. 1-2). Treasury's Inspector General found significant problems in 1998, including improper destruction of records, inaccuracies, and failure to follow procedure. But the IG did not examine legal issue of whether problems were sufficient to call into question certifications that guns were not registered. (p. 2).
The GCA 68 provided an amnesty period for registrations, and they flooded in, overwhelming the staff. As a result records were fouled up, wrong serial numbers recorded, records misfiled (no computers then, so a paper in the wrong file might go missing forever). (p. 4)
A 1975 internal ATF document refers to "continuously" finding errors in the system, and raises the worry that an innocent person might be convicted as a result, if he had lost his own copy of the registration. (p.6).
In 1996, John LeaSure was convicted of six counts of possessing unlicensed machineguns. His attorney, Jim Jeffiries, obtained a copy of an ATF training tape in which the fellow in charge of NFA registrations told agents that the database was flawed, but that his people would always testify that it was perfect. Informed of a partial transcript of the tape, the judge set aside five of the six counts. (p. 7) [Here's a previous posting that includes video of the training tape.
Actual accuracy is unknown. It was claimed to be 1.5%, but a 1998 Treasury Inspector General study found it was higher, based on samplings -- strangely, the report does not give the actual number, and the IG declined to study larger samples. (p.9)
The accuracy may be esp. problematic for DEWATS, deactivated war trophies. (p. 10)
A MAJOR set of criticisms of Treasury Inspector General responses to inquiries about accuracy. (pp. 11-15).
An examination of how an amnesty could be used to try to make the system accurate, and how it could be structured. (pp. 16-18)
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NRA on Veterans' Heritage Firearms Act
From Eric Larson:
NRA supports H.R. 2088/amnesty legislation
Posted By: Eric M. Larson
Date: 12/20/05 18:01
The NRA is doing something for the Class III community. An article entitled "NRA Supports House Legislation To Protect Gun-Owing Veterans," on page 75 of the January 2006 issue of AMERICAN RIFLEMAN gets this legislative word out to, what...some 3.5 million or so people? That's impressive.
The article discusses H.R. 2088, the Veterans' Heritage Firearms Act of 2005, which would provide a 90-day amnesty period during which veterans and their family members could register firearms acquired overseas between June 26, 1934 and October 31, 1968. The bill provides that "in the absence of clear and convincing evidence to the contrary the attorney general shall accept as true and accurate any affidavit, document, or other evidence submitted by an individual to establish that such firearm meets the requirements" under H.R. 2088.
Read that: " . . . shall accept . . . " language. In other words, no arbitrary victimization by ATF or anybody else in the Government, and an opportunity to preserve valuable historical artifacts that are, to many families, irreplaceable heirlooms symbolizing service to the United States in time of war or conflict.
It isn't just a blurb of an article, either---it is 5" of text on the ILA Report pages, or roughly 1/3 of a page.
The article, which is based largely on an earlier press release this year by the bill's Congressional sponsor, Rep. Jim Gibbons (R-Nevada), concludes:
"NRA members are encouraged to contact their representatives and ask them to support N.R. 2088."
I'd say the NRA has just done quite a bit for the NFA community.
Permalink · National Firearms Act
Reports of audit of NFA database
By way of background, under the NFA the BATFE is charged with keeping records of the several hundred thousand licensed NFA firearms (chiefly full-autos, but also short barreled guns and some others). Going back to 1978, there have been complaints that the database is seriously flawed, there are licensed guns, probably MANY licensed guns out there that don't show up in the present database, and there have been intermittant reports of persons being raided, etc. who turned out to have complied with the law. (Back in 78 or 79, I dealt with dealer and collector Curtis Earl, who during a raid had agents stack up a pile of his inventory that their records showed had no proper registration. He went into his files, produced his copies, and every one of the firearms went back onto his racks).
From Eric Larson, who has keep pushing the issue these ten or twenty years:
In a letter dated October 21, 2005, the Department of Justice Office of the Inspector General (OIG) stated that the OIG will begin an audit of the NFRTR in late 2005.
Specifically, Deputy Inspector General Paul K. Martin wrote: "In response to correspondence we have received expressing concerns over the accuracy and completeness of the NFRTR, the OIG plans to initiate a review of the ATF's management of the NFRTR in late 2005." The letter repeats many of ATF's recent responses to questions about the NFRTR (and attributes them to ATF). But the letter also notably states that the OIG is "also aware of extensive correspondence, beginning in 1998 and continuing through the present, [alleging inaccuracies in the NFRTR] between the concerned individuals and the ATF, United States Attorneys' Offices, and the Department of the Treasury OIG, as well as several Members of Congress."
The lesson to be drawn here is the importance of involving your Congressional representatives in expressing your concerns about the NFRTR. It is obvious from this letter that the sustained objections to how ATF is conducting the public business have been heard, and will now be acted upon.
A copy of the letter is at the web site of the National Firearms Act Owners Association (NFAOA).
A huge "thank-you" is due to Mr. Cott Lang, who took the time to express his concerns to his Congressional representatives, as well as to the many other people I know who have worked hard on these issues, and involved their Congressional representatives as well.
Finally---I've said this before, and will say it again---the ATF is not immune to Congressional pressures and concerns, and at the end of the day the Congress can go a long way towards reforming ATF if it wants to. The "if it wants to" requires people who are willing to be part of the solution and not part of the problem. Be part of the solution by continuing to express your concerns to your Congressinal representatives.
The Department of Justice Inspector General has recently done some audit work involving ATF. Take a look at the NFAOA web site, under "Resources," for an example of that work---and imagine that kind of attention and diligence being paid to ATF's mismanagement of the NFRTR. It is likely going to be a whole new day for the NFAOA community.
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Video of ATFE expert examination
JPFO has released a video of a BATFE expert's examinaton of an alleged machinegun, and of the defense expert doing the same. The website doesn't give many details, but a viewer tells me that the ATFE showed how the rifle would fire (every now and then) in full auto, and identifies a ground-off piece of the bolt which he says converts it to full auto.
The defense expert shows then shows that the intermittent full auto fire is due to malfunction. The firing pin spring is worn and too short, and the firing pin defective, with result that the rifle occasionally slam-fires -- the firing pin is floating loose and can slam forward under inertia when the bolt closes. He points out that, in the FN-FAL rifle mechanism, the ground-off part that the ATFE expert singled out has no effect upon firing.
UPDATE: Publicola has viewed the video -- for some reason the spam filter blocked his comment, but I'll add it in the extended remarks below.
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Bill to allow WWII trophy title IIs
HR 2088 is a bill which would allow WWII vets and their heirs to possess certain war trophies and DEWATs (deactivated war trophies).
What prompts the legislation is that during WWII, commanders were authorizing soldiers to own and take home war trophy guns, including machineguns. Many of the vets didn't realize that such a written authorization doesn't get them around the National Firearms Act; they weren't lawyers, were in war, and had a letter from their commander authorizing them to take the gun home, and figured that covered it. As a result, there are a considerable but unknown number of MGs out there where the owner thinks everything is legal, and it isn't.
In a September 22, 2005, letter, Representative John Boozman (R-Ark.) requested DOJ Inspector General Glenn Fine to investigate and tell him "which documents ATF currently recognizes as entitling World War II veterans, and/or their lawful heirs, to legally possess War Trophy Firearms, and to legally possess DEWATs." Rep. Boozman made this request as Chairman, Subcommittee on Economic Opportunity, House Committee on Veterans Affairs.
[UPDATE: I'm told that a number of these vets or their heirs have the written documentation showing that their commanders authorized them to bring the firearms home.]
Permalink · National Firearms Act
Practice tip on NFA cases
I just remembered an interesting practice tip, give to me by Jim Jeffries. The general federal statute of limitations is five years. However, the NFA is part of the tax codes, and has a three year statute of limitations (with some exceptions for willful failure to pay, filing of false documents, etc). See 26 USC §6531.
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Interesting data from NFA Owners' Association
The NFA Owners' Ass'n webpage has interesting data on BATFE NFA registration problems. Among the other interesting cases:
1. A case in which a widow wished to transfer her late husband's NFA firearm to a collector, BATFE ruled that it was unregistered and thus illegal, she came up with the registration papers, and the agency (at least for a time) refused to recognize them!
2. Use of the Busey videotape as Brady material to reverse a conviction under NFA (Brady material refers to the duty of the prosecution to disclose evidence that may suggest a defendant is innocent; you can't prosecute while hiding evidence suggesting innocence);
3. Another case, US v. LeaSure, where the judge dismissed a case, based on evidence that BATFE clerks may have thrown away the registration papers. More details here in an affidavit by attorney Jim Jeffries.
4. Several other cases in which a firearm was seized as unregistered, only to have the owner come up with the registration papers.
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NFA Record Problems
An interesting compendium of studies on the National Firearm Act registry and its problems.
The National Firearms Act of 1934 requires a tax payment, and thus registration, for each making or transfer of certain firearms (chiefly full-automatic, or short barreled guns). Possession of such a firearm without registration is a felony, and in any prosecution for that offense an element is certification by ATFE that the firearm is not registered to the defendant. ATFE is in charge of maintaining the NFA database, which has several hundred thousand firearms listed.
As far back as 1980, it was known that the database had serious flaws and omissions (an ATF internal memo of the period expressed fears that innocent persons might be convicted due to a certification that a firearm had not been registered, when in fact it had been).
Eric Larson has over many years done yeoman work in further investigating the problems and in pushing for Inspector General investigation of the problem (the IG in turn told ATFE to look into it -- although the entire reason for having an IG is to deal with problems where the agency itself might have a temptation to cover up.