INDUSTRY NEWS: JANUARY 2005

By Robert M. Hausman

ATF Classifies Miniguns as Machineguns

The 7.62mm Aircraft Machinegun, commonly referred to as a “minigun,” has been classified by the Bureau of Alcohol, Tobacco, Firearms & Explosives as a “machinegun” making it subject to the registration and tax provisions of the National Firearms Act by way of ATF Rul. 2004-5 signed Aug. 18, 2004. Additionally, the housing that surrounds the rotor on the minigun is found by ATF to be the frame or receiver of the minigun, and thus this housing is also classified as a machinegun.

The National Firearms Act defines “machinegun” as “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 (26 U.S.C. 5845(b). The term also includes “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 the person.” (See 18 U.S.C. 921(a)(23); 27 C.F.R. 478.11, 479.11).

ATF and its predecessor agency, the Internal Revenue Service (IRS), have historically held that the original, crank-operated Gatling guns, and replicas thereof, are not automatic firearms or machineguns as defined (see Rev. Rul. 55-528, 1955-2 C.B. 482). The original Gatling gun is a rapid-firing, hand-operated weapon. The rate of fire is regulated by the rapidity of the hand cranking movement, manually controlled by the operator. It is not a “machinegun” as that term is defined in 26 U.S.C. 5845(b) since it is not a weapon that fires automatically, ATF says.

ATF has determined, after examination, that the minigun is not a Gatling gun. It was not produced under the 1862 – 1893 patents of the original Gatling gun. While using a basic design concept of the Gatling gun, the minigun does not incorporate any of Gatling’s original components and its feed mechanisms are entirely different. Critically, ATF has determined that the minigun shoots more than one shot, without manual reloading, by a single function of the trigger as prescribed by 26 U.S.C. 5845(b).

The minigun has six barrels and bolts, which are mounted on a rotor. The firing sequence begins with the manual operation of a trigger. On an aircraft, the trigger is commonly found on the control column, or joystick. Operation of the trigger causes an electric motor to turn the rotor. As the rotor turns, a stud on each bolt travels along an elliptical groove on the inside of the housing, which causes the bolts to move forward and rearward on tracks on the rotor. A triggering cam, or sear shoulder, trips the firing pin when the bolt has traveled forward through the full length of the bolt track. One complete revolution of the rotor discharges cartridges in all six barrels. ATF has ruled the housing that surrounds the rotor, bolts and firing mechanism constitutes the frame or receiver of the firearm.

The minigun, which weighs 36 pounds, is in the U.S. military inventory and identified as the “M134” (Army), “GAU 2B/A” (Air Force), and “GAU 17/A” by the U.S. Navy. Its firing rate is up to 6,000 rounds-per-minute.

Regs Changes Due to Expiration of Gun Ban Detailed

The changes that have come about in U.S. federal law as a result of the expiration of the ban on so-called “semi-automatic assault weapons” (SAWs) and large capacity ammunition feeding devices (LCAFDs) have been detailed in an announcement by the industry’s regulator, the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF).

As of Sept. 13, 2004, the provisions of Public Law 103-322, the “Violent Crime Control and Law Enforcement Act of 1994,” covering SAWs and LCAFDs were no longer in effect.

Specifically, there is no longer a federal prohibition on the manufacture, transfer, and possession of SAWs and LCAFDs. There are also no longer any marking requirements for SAWs and LCAFDs. Existing markings on firearms and magazines relating to law enforcement or government use may be disregarded.

In addition, there is no longer any federal requirement for federal firearms licensees to obtain certain documentation before transferring SAWs and LCAFDs to government agencies or law enforcement officers. However, any records obtained prior to September 13, 1994, pertaining to the sale or transfer of SAWs must still be retained for a period of 5 years. See 27 CFR Section 478.129(f). Moreover, records of importation and manufacture must be maintained permanently and licensees must maintain all other acquisition and disposition records for 20 years.

Licensees who provided letters of future intent to sell SAWs and LCAFDs to law enforcement agencies and other qualified customers are no longer obligated to comply with such letters. Anyone who illegally possessed, manufactured, or transferred SAWs or LCAFDs before the ban’s sunset has still violated the law since their possession, manufacture, or transfer was illegal at the time.

Importation

The prohibition on the importation of non-sporting firearms under 18 U.S.C. section 922(I) and 925(d)(3) still applies. Importation of LCAFDs is still covered under the Arms Export Control Act. Therefore, an approved permit is still required to import large capacity magazines. Temporary importation of SAWs and LCAFDs is now lawful under the provisions of 27 CFR Section 478.115(d) since temporary importations are not subject to the sporting purpose test.

Non-Sporting Long Gun Assembly from Imported Parts

The prohibition on assembly of non-sporting shotguns and semi-automatic rifles from imported parts as provided under 18 U.S.C. Section 922(r) and 27 CFR Section 478.39 still applies.

Law Enforcement Officers & Police Dept.’s

Law enforcement officers and police departments who obtained SAWs are no longer required to use such firearms only for official use. Law enforcement officers and police departments may now sell or transfer SAWs to persons who are not prohibited from receiving firearms.

Law enforcement officers and police departments may now sell or transfer LCAFDs to anyone. Signed statements that SAWs and LCAFDs will be used for official use are no longer required to be provided to federal firearms licensees.

Retired Law Enforcement Officers

Federal law does not prohibit retiring law enforcement officers from keeping SAWs or LCAFDs. Former law enforcement officers who received SAWs on retirement may now transfer those firearms to persons who are not prohibited from receiving firearms. Transfer of LCAFDs is no longer restricted.

National Firearms Act

All provisions of the National Firearms Act relating to registration and transfer of machineguns, short barreled rifles, weapons made from rifles, short barreled shotguns, weapons made from shotguns, “any other weapons” as defined in Title 26 U.S.C. section 5845(e), silencers, and destructive devices still apply.

Registered silencers can now be attached to semi-automatic rifles and pistols without creating a prohibited semi-automatic assault weapon. USAS-12 and Striker 12/Streetsweeper shotguns are still classified as “destructive devices” under ATF Rulings 94-1 and 94-2 and must be possessed and transferred in accordance with the NFA.

Effect on State Law

Expiration of the federal law will not change any provisions of state law or local ordinances. Questions concerning state “assault weapons” restrictions should be referred to state and local authorities.

“Assault Weapon” Ban Q & A

In an effort to help members of industry understand all of the ramifications of the changes in federal firearms law that have come about with the end of the Clinton Administration’s ban on so-called “assault weapons” and full-capacity magazines, the following question and answer essay is presented. Answers have been provided by the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF).

Q: What was the “semi-automatic assault weapon” (SAW) ban?

A: The SAW ban was enacted on September 13, 1994, by Public Law 103-322, Title IX, Subtitle A, section 110105. The ban made it unlawful to manufacture, transfer, or possess SAWs. The law defined SAWs as 19 named firearms, as well as semi-automatic rifles, pistols, and shotguns that have certain named features. The ban was codified at 18 U.S.C. section 922(v). SAWs lawfully possessed on Sept. 13, 1994 were not covered by the ban. There also were certain exceptions, such as possession by law enforcement.

Q: What was the “Large Capacity Ammunition Feeding Device” (LCAFD) ban?

A: The LCAFD ban was enacted along with the SAW ban on Sept. 13, 1994. The ban made it unlawful to transfer or possess LCAFDs. The law generally defined a LCAFD as a magazine, belt, drum, feed strip, or similar device manufactured after Sept. 13, 1994 that has the capacity of, or can be readily restored or converted to accept, more than 10 rounds of ammunition. The ban was codified at 18 U.S.C. section 922(w). As with SAWs, there were certain exceptions to the ban, such as possession by law enforcement. Both the SAW ban and the LCAFD ban were enacted by the same law which provided the bans would expire ten years from the date of enactment unless renewed by Congress.

Q: How does expiration of the ban affect records maintained by licensed manufacturers, importers, and dealers?

A: Federal firearms licensees are no longer required to collect special records regarding the sales or transfer of SAWs and LCAFDs for law enforcement or government sales. However, existing records on SAWs and LCAFDs must still be maintained for a period of five years. Moreover, records of importation and manufacture must be maintained permanently and licensees must maintain all other acquisition and disposition records for 20 years.

Q: Are SAWs and LCAFDs marked “restricted law enforcement/government use only” or “For export only” legal to sell to civilians in the United States?

A: Yes. SAWs and LCAFDs are no longer prohibited. Therefore, firearms with the restrictive markings are legal to transfer to civilians in the U.S. and it is legal for non-prohibited civilians to possess them. All civilians may possess LCAFDs.

Q: How does the expiration of the SAW ban and the LCAFD ban affect importation?

A: LCAFDs are no longer prohibited from importation but they are still subject to the provisions of the Arms Export Control Act. An approved Form 6 import permit is still required. Non-sporting firearms are still prohibited from importation under sections 922(I) and 925(d)(3) of the Gun Control Act of 1968. Because the vast majority of SAWs are nonsporting, they generally cannot be imported. If an importer has an approved Form 6 import permit for LCAFDs with a restriction stamp on it related to the ban, the importer may import LCAFDs using the permit and disregard the restriction stamp. Importers may apply for a new permit if they prefer. Temporary importation of SAWs and LCAFDs is now lawful under the provisions of Title 27, CFR, section 478.115(d) because firearms that are temporarily imported are not required to meet sporting purpose requirements.

Q: Does the expiration of the SAW ban change laws regarding assembly of nonsporting shotguns and semi-automatic rifles from imported parts?

A: No. The provisions of section 922(r) of the GCA and the regulations in 27 CFR 478.39 regarding assembly of non-sporting shotguns and semi-automatic rifles from imported parts still apply.

Q: Can tribal law enforcement entities now possess SAWs and LCAFDs?

A: Yes.

ATF Advisory on Sales to L.E. Officers

The Bureau of Alcohol, Tobacco, Firearms & Explosives has issued a special announcement to industry in regard to the so-called “Law Enforcement Officers Safety Act of 2004,” which was signed into law on July 22nd.

The Act, which became effective with the President’s signature, amends the Gun Control Act of 1968 to exempt qualified active and retired law enforcement officers from state and local laws prohibiting the carrying of concealed firearms.

The officers/retired officers eligible for the exemption are those meeting the Act’s definition of “qualified law enforcement officer” and “qualified retired law enforcement officer.” Among other things, the Act’s definition requires retired law enforcement officers to meet, at their own expense, their state’s training and qualification standards for active law enforcement officers.

Eligible active and retired officers must also possess certain identification. Active officers may use the identification issued by the government agency by which they are employed. Retired law enforcement officers must have identification indicating that they have been tested or otherwise found to meet firearms standards established for active law enforcement officers.

Qualified active and retired officers eligible for the exemption are still subject to certain provisions of the 1968 Gun Control Act. The new law also specifically states that persons who are prohibited by federal law from receiving a firearm are not eligible for the exemption. In addition, qualified current and retired officers must undergo a National Instant Criminal Background Check System (NICS) check if they are purchasing a firearm for their own use and federal firearms licensees must still complete and retain required records under the Gun Control Act.

Robert M. Hausman is the publisher of the industry’s two most widely read trade publications, The New Firearms Business and The International Firearms Trade. A new service offered by the publications is the offering of a continuously updated list of current Federal Firearms License holders, which is of interest to manufacturers and retailers desiring to market products to the industry. He may be reached at: FirearmsB@aol.com