By Johanna Reeves, Esq.
Note: The U.S. Code spelling for “machinegun” is atypical and is different from the spelling used in the regulations, which is “machine gun.” For consistency, this article uses the spelling as it appears in the U.S. Code, unless quoting a source that uses the spelling “machine gun.”
On July 26, 2021, the Tampa Field Division of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued a cease-and-desist letter to Rare Breed Triggers, LLC (RBT), a Florida limited liability company, in reference to the model FRT-15 trigger. According to ATF, the RBT model FRT-15 is a machinegun subject to the registration, transfer, taxation, and possession restrictions of the National Firearms Act (NFA) and the Gun Control Act (GCA) restrictions governing machineguns.
The parties are in the very early stages of court filings, but this could shape up to be an interesting case, especially considering the ongoing cases challenging ATF’s rulemaking outlawing bump stocks, which took effect on March 26, 2019. What is likely to be a central issue in this case is whether the court should accord deference to ATF’s interpretation of the statute and the meaning of the phrase “single function of the trigger.”
Machinegun Controls
A. Congress – Statutory Controls
Since 1934, when Congress passed the NFA, the U.S. government has controlled machineguns as “uniquely dangerous” weapons. Targeting the criminal use of concealable and high-powered firearms, the NFA imposed a then-hefty tax on the manufacture, making and transfer of machineguns and other weapons thought to significantly contribute to the crime problem manifesting in the gangland crimes of that period. See generally, David T. Hardy, The Firearms Owners’ Protection Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585, 589-592 (1986).
Since it first defined “machinegun” in 1934, Congress has expanded the term two times, first in 1968 as part of the Gun Control Act, and again in 1986 as part of the Firearms Owners’ Protection Act. The current definition reads as follows:
[A]ny 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.
26 U.S.C. § 5845(b) (emphasis added).
Noteworthy, the statute does not define the terms “automatically” and “single function of the trigger.” Although Congress has enacted other gun-related legislation since 1986, it has not amended the definition of “machinegun.”
The GCA defines “machinegun” by referencing the NFA definition. 18 U.S.C. § 921(a)(23). In addition, the GCA defines “semiautomatic rifle” as “any repeating rifle which utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge.” 18 U.S.C. § 921(a)(28).
B. ATF – Regulatory Controls
Congress charged the Attorney General with enforcing the GCA and the NFA.[i] The Attorney General in turn has delegated the authority to ATF, whose implementing regulations are found in Title 27 of the Code of Federal Regulations, Part 478 (Commerce in Firearms and Ammunition) and Part 479 (Machine Guns, Destructive Devices, and Certain other Firearms).
Prior to 2018, ATF’s definition of “machine gun” in its regulations implementing the GCA and the NFA was identical to the statutory definition. As with the statute, ATF did not define the terms “automatically” and “single function of the trigger.”
In 2018, ATF revised the definitions of “machine gun” in its regulations in Parts 478 (27 C.F.R. § 478.11) and 479 (27 C.F.R. § 479.11) to “clarify that ‘bump fire” stocks, slide-fire devices, and devices with certain similar characteristics (bump-stock-type devices) are “machine guns” as defined by [the NFA and the GCA], because such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.” 83 Fed. Reg. 13442 (Mar. 29, 2018). Not only did the new rules specifically add “bump-stock-type” devices to the definition of machine gun, but ATF also defined “automatically” to mean “functioning as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single function of the trigger; ….” In addition, ATF made clear that “single function of the trigger” means a single pull of the trigger. Id. At 13457. See also Johanna Reeves, ATF Issues Final Rule on Bump Stocks, Small Arms Review, Vol. 23 No. 7 (Aug./Sept. 2019).
There can be little doubt that the 2018 changes to the definition of machinegun factors heavily in the current RBT enforcement case.
The Rare Breed Triggers Case
RBT sells the FRT-15, a patented AR-15 drop-in trigger mechanism that includes a hammer, a trigger member, and a locking bar. The patent describes the trigger mechanism as follows:
The present invention provides a semiautomatic trigger mechanism for increasing the rate of fire that can be retrofitted into popular existing firearm platforms. In particular, this invention provides a trigger mechanism that can be used in AR-pattern firearms with an otherwise standard M16-pattern bolt carrier assembly. The present invention is particularly adaptable for construction as a “drop in” replacement trigger module that only requires insertion of two assembly pins and the safety selector. In the disclosed embodiments, the normal resetting of the hammer, as the bolt or bolt carrier is cycled, causes the trigger to be forcibly reset by contact between the hammer and a surface of the trigger member. Once reset, movement of the trigger is blocked by a locking bar and cannot be pulled until the bolt has returned to battery, thus preventing “hammer follow” behind the bolt or bolt carrier.
U.S. Patent No. 10,514,223 (filed Dec. 24, 2019). According to the owner of RBT (who also serves as the company’s legal counsel), the FRT-15 allows for a more rapid subsequent firing of rounds, but “does not allow more than one round of ammunition to be expelled per function of the trigger.” Maxwell Aff. p. 4. “In the FRT-15’s patented design, as the bolt carrier cocks the hammer, the cocking hammer also forces a reset on the trigger, which pushes the shooters [sic] finger forward. This FORCED RESET is what make [sic] the FRT-15 legal under the NFA, because it requires the shooter to pull or function the trigger again in order to fire another round.” Id. at 3. “Only after the bolt locks into place inside the chamber is the locking bar disengaged which allows the shooter to pull the trigger again.” Id. (Punctuation as in original).
ATF, however, determined the FRT-15 to be a combination of parts, designed and intended for use in converting a weapon (AR-15-type) into a machinegun and therefore a machinegun as defined in the GCA and NFA. According to a July 15, 2021, report from the Firearms Technology Criminal Branch Division (the “FTCB Report”),[ii] the FRT-15’s unique parts (hammer, trigger and locking bar) “are specifically designed to incorporate the standard rearward and forward movement of the AR-type bolt carrier in its cycle of operations allowing the weapon to function as a self-acting, or self-regulating, mechanism.” FTCB Report at 5. The Firearms Enforcement Officer who conducted the examination explained in his findings that “the FRT-15 utilizes the forward movement [of the bolt carrier] to automatically release the trigger and hammer, allowing the weapon to expel a second projectile without a separate pull of the trigger. In this way, one continuous pull of the trigger allows a semiautomatic firearm to shoot more than one shot.” Id.
Subsequent to the FTCB Report, on July 26, 2021, the Tampa Field Division issued RBT a Cease-and-Desist Letter stating that ATF examined the FRT-15 trigger and determined it to be a machinegun because it is a combination of parts designed and intended for use in converting a weapon into a machinegun because it “allows a firearm to expel more than one shot, without manual reloading, with a single, continuous pull of the trigger.” A copy of the examination report was not included with the Cease-and-Desist Letter.
The letter demanded RBT immediately take the following actions (the bolded language is original in the text):
- Cease and desist all manufacture and transfer of the Rare Breed Trigger FRT-15.
- Contact ATF within 5 days of receipt of this letter to develop a plan for addressing those machineguns already distributed.
The letter closed with a threat of law enforcement action by ATF, including a referral to the U.S. Attorney’s Office for criminal prosecution, tax assessment and collection, and/or seizure and forfeiture of the firearms and property involved in violations of Federal law should RBT fail to take the above actions.
On August 2, 2021, RBT and its owner/counsel, Kevin Maxwell, filed a complaint for declaratory and injunctive relief in the U.S. District Court for the Middle District of Florida. Arguing the ATF’s interpretation of the term “machinegun” is arbitrary and capricious, the plaintiffs are seeking to enjoin ATF from enforcing the Cease-and-Desist Letter, and also a declarative judgment that the FRT-15 does not constitute a “machinegun” under federal law. The plaintiffs also filed for a temporary restraining order, which the court denied on August 5.
According to the complaint, “the FRT-15 requires a separate and independent pull/function of each round fired. Thus, by definition, the FRT-15 does not make a semiautomatic rifle into a “machinegun”. Rather, the only thing the FRT-15 does is enable a shooter to accomplish a faster follow-up shot because of the speed at which the trigger resets.” Comp. ¶¶ 29-30. The operation is described as a “forced reset” in that “as the bolt carrier cocks the hammer, the force of the cocking hammer also forces a reset on the trigger by pushing the shooter’s finger forward and making the trigger ready to function again upon a subsequent pulling of the trigger.” Comp. ¶¶ 37-38.
The Complaint details the expert opinions the company obtained from three retired ATF special agents: Daniel O’Kelly, Director of the International Firearm Specialist Academy in Dallas, Texas; Rick Vasquez, proprietor of Rick Vasquez Firearms, LLC, in Hubert, North Carolina; and Brian Luettke, Owner of the Firearms Training and Interstate Nexus Consulting, LLC, in Grand Rapids, Michigan. The company also obtained a legal opinion from Kevin McCann, an attorney who also served as a special agent with ATF. All four found the FRT-15 to not be a machinegun.
The first opinions were obtained from McCann and O’Kelly before RBT began manufacturing. Comp. ¶ 44. In McCann’s opinion, dated July 31, 2020, he concludes that “a rifle equipped with the FTM is not a “machinegun” as it does not fire more than one shot by a single function of the trigger. I further conclude that a rifle equipped with the FTM utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, and fires only one shot with each separate pull of the trigger, and is thus a “semiautomatic rifle.” Comp. Ex. B.
The report from Dan O’Kelly, dated August 6, 2020, states the FRT trigger “is designed such that upon firing a shot, as the bolt-carrier moves to the rear it cocks the hammer as normal. However, the hammer in turn forces the reset of the trigger to its original position. Upon doing so, a locking bar locks the trigger into the reset position, making it physically impossible to move the trigger rearward during the remainder of the cycle of operation.” Comp. Ex. C.
After starting manufacturing, RBT obtained two additional expert opinion reports from Vasquez and Luettke “to ensure that any developmental changes to aid in the manufacturing of the FRT-15 had not changed its function in any way that would cause it to fall under the definition of a “machinegun.” Comp. ¶ 52. According to Vasquez in his report, dated Feb. 17, 2021, “[t] he FRT trigger system does not have an automatic sear nor does it operate by electronics, springs, or hydraulics, therefore is not a “machinegun.” Comp. Ex. D.
Luettke also found the FRT-15 to not be a machinegun in his report, dated May 4, 2021. “Due to the design of the FRT-15, the locking bar does not allow it to function as a “hammer follow” machinegun. Rather, during the cycle of operation the bolt carrier cocks the hammer and resets the trigger. The locking bar pivots forward locking the trigger in place until the bolt carrier comes back forward to the locking position and the.” locking bar is unlocked. The FRT-15 trigger can now be pulled. The FRT-15 allows for very fast semiautomatic trigger pulls due to the quick resetting trigger.” Comp. Ex. E.
This likely will not be the last article on this issue. If the case gets to trial, we may see a battle of the experts as to whether the FRT-15 constitutes a machinegun. There will be procedural hurdles to even get to that point, however, and the central issue will likely be whether the court will give deference to ATF’s interpretation of what constitutes a machinegun and their findings related to the FRT-15. In my next article I will examine this core legal question, which is also prevalent in the cases challenging ATF’s bump stock rule. Stay tuned!
***The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.
About the author
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (www.reevesdola.com). For more than 17 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2016, Johanna has served as a member of the U.S. Department of State’s Defense Trade Advisory Group (DTAG). From 2011 through 2020, Johanna served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.
[i] Originally, ATF was part of the Treasury Department but was transferred to the Department of Justice pursuant to the Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2135). See 26 U.S.C. § 7801 (a)(2); 28 U.S.C. § 599A(c)(1).
[ii] The FTCB Report references an examination the Firearms Technology Industry Services Branch (FTISB) conducted in August 2018. “FTISB previously examined a similar “forced reset trigger” from [redacted] (holder of U.S. Patent 10514223) and determined it to be a combination of parts, designed and intended for use in converting a weapon into a machinegun; and therefore, a machinegun as defined in the GCA and NFA.”
