Legally Armed: ATF’s Interpretation of Machinegun

By Johanna Reeves, Esq.

In my previous article, I introduced an ongoing case in Florida that has garnered considerable attention throughout the firearms industry. Rare Breed Triggers, LLC, and its owner are challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) classification of the model FRT-15 trigger as a machinegun and the subsequent cease-and-desist letter from the Tampa field division. In this article, I will dive deeper into the heart of the matter – how ATF interprets the phrase “single function of the trigger” contained in the statutory definition of “machinegun” and how much deference the courts may (or may not) grant ATF.

I – Machinegun Prohibition

Since 1986, when Congress enacted the Firearm Owners’ Protection Act, transfer and possession of “machineguns” has been strictly prohibited except when such transfer or possession involves the federal, state, or local government, or a machinegun registered as of May 19, 1986. 18 U.S.C. § 922(o). The term “machinegun” is defined in the National Firearms Act (NFA) as:

[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); see also 18 U.S.C. § 921(a)(23) (cross-referencing the definition of machinegun with section 5845(b) of the NFA). As I discussed in my previous article, the statute does not define the terms “automatically” and “single function of the trigger,” although in 2018 ATF revised its regulations to define both. These critical terms and ATF’s interpretation lie at the heart of the Rare Breed Triggers case.

II – ATF’s Interpretation of Single Function of the Trigger

There are two approaches to the phrase “single function of the trigger.” One approach focuses on the actions of the shooter while the other focuses on the mechanical movement of the trigger. Since 2006 with the Akins Accelerator, ATF has followed the former approach, interpreting “single function of the trigger” to mean the shooter’s single act to initiate a firing sequence (a pull, push or other activation of the trigger). ATF codified this interpretation in the bump stock rule in 2018 (83 Fed. Reg. 66517 (Dec. 26, 2018)).

                  1.  The Staples Footnote

To justify its interpretation of “single function of the trigger”, ATF relies heavily on the 1994 Supreme Court opinion in Staples v. U.S., in particular a footnote in the very beginning of the opinion in which the Court explained what is meant by a fully automatic weapon. The footnote reads: “As used here, the terms “automatic” and “fully automatic” refer to a weapon that fires repeatedly with a single pull of the trigger. That is, once the trigger is depressed, the weapon will automatically continue to fire until its trigger is released, or the ammunition is exhausted. Such weapons are “machineguns” within the meaning of the Act.” 511 U.S. at 602, n.1.

                  2.  The Akins Accelerator Case

In 2008, the U.S. District Court for the Middle District of Florida agreed with ATF’s interpretation of “single function of the trigger.” The case, Akins v. U.S., No. 8:08-cv-988-T-26TGW, 2008 WL 11455059 (M.D. FL 2008), arose out of ATF’s reclassification of the Akins Accelerator and the inventor’s subsequent action claiming ATF’s actions were arbitrary and capricious and a violation of due process. Looking to the Supreme Court’s interpretation of “single function of the trigger” in Staples and the legislative history of the NFA, the district court found ATF’s interpretation of the statute and the definition of “machinegun” to “be necessary to protect the public from dangerous firearms.” Id. at 5. The court deferred to ATF and found against the plaintiff, noting “in the face of technological innovation of the Akins Accelerator and similar devices, ATF’s change in position is appropriate.” Id. at 6.

On appeal, the Eleventh Circuit, in a per curiam opinion (by the court; no individual author), affirmed the District Court’s decision that ATF acted within its discretion when it reclassified the Akins Accelerator as a machinegun and that its interpretation of “single function of the trigger” is consistent with the statute and its legislative history. Akins v. U.S., 312 F. App’x 197, 200 (11^th Cir. 2009). The court also held that the NFA’s definition of “machinegun” was not unconstitutionally vague. “The plain language of the statute defines a machinegun as any part or device that allows a gunman to pull the trigger once and thereby discharge the firearm repeatedly. Use of the word “function” instead of “pull” to reference the action taken by a gunman to commence the firing process is not so confusing that a man of common intelligence would have to guess at its meaning.” Id. at 201.

                  3.  The Bump Stock Rule

In the 2018 final rule governing bump-stock devices, 83 Fed. Reg. 66518 (Dec. 26, 2018), ATF once again cited the Staples note as justification for its interpretation “single function of the trigger.”

The Department proposed to interpret the phrase “single function of the trigger” to mean “a single pull of the trigger,” as it considered it the best interpretation of the statute and because it reflected ATF’s position since 2006. The Supreme Court in Staples v. United States, 511 U.S. 600, 602 n.1 (1994), indicated that a machinegun within the NFA “fires repeatedly with a single pull of the trigger.” This interpretation is also consistent with how the phrase “single function of the trigger” was understood at the time of the NFA’s enactment in 1934.

The final rule revised the regulations governing machineguns to add definitions for “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,” and “single function of the trigger,” defined as “a single pull of the trigger and analogous motions.” 83 Fed. Reg. at 66,553-66,554 (codified at 27 C.F.R. §§ 447.11, 478.11 and 479.11). The rule also specified that “machine gun” “includes a bump-stock-type device, i.e., a device that allows a semi-automatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.”

The bump stock rule has since been the target of three notable cases in the Tenth Circuit (Aposhian v. Wilkinson), the District of Columbia Circuit (Guedes v. BATFE), and the Sixth Circuit (Gun Owners of America v. Garland). In each of these cases, the respective courts examined whether ATF’s interpretation of the statutory definition of “machinegun” should be accorded deference. These cases are important because at least one will likely reach the Supreme Court. I will examine in greater detail in my next article. For now, I will return to the Rare Breed Triggers case percolating in the U.S. District Court for the Middle District of Florida (Case No. 6:21-cv-01245-CEM-GJK) and the recent excitement caused by a decision coming out of the U.S. Navy-Marine Corps Court of Criminal Appeals.

III- The Rare Breed Triggers’ Amended Complaint and Notice of Supplemental Authority

On August 27, 2021, the plaintiffs in the Rare Breed Triggers case filed with the court an amended complaint adding two additional defendants, Earl Griffith, chief of the ATF Firearms and Ammunition Technology Division (FATD), and David Smith, a firearms enforcement officer in FATD who examined the FRT-15 trigger and authored the technical examination report. The amended complaint alleges the ATF, before examining the FRT-15 in person, nevertheless expected the FRT-15 to be classified as a machinegun based on internet videos of persons using the FRT-15 trigger. When ATF did obtain an FRT-15, the plaintiffs allege the tests that FEO Smith conducted “were faulty and intentionally misleading for the purpose of conforming the tests to the predetermined outcome of the ATF.” Am. Complaint ¶¶ 63-66. Further, the plaintiffs contend FEO Smith’s use of a zip-tie constituted adding a part and thereby manufacturing a machinegun. “The zip-tie acts as a spring that repeatedly causes the pulling of the trigger, i.e., SMITH is adding an additional part to the gun, that does not exist on the FRT-15 to try and make the FRT-15 meet the definition of machinegun.” Am. Complaint ¶ 68.

In their opposition to the plaintiff’s motion, the defendants argue that the use of a zip-tie did not create a machinegun because a zip-tie does not meet the statutory definition of “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun.” The defendants also explain that “a zip-tie illustrates that once the trigger is depressed, the firearm continues to fire, without the need to pull and release and pull again,” as stated in Defendants’ Opposition to Plaintiff’s Emergency Motion for a Preliminary Injunction, 16 (filed Sept. 10, 2021).

The defendants argue the court should deny the plaintiffs’ request for a preliminary injunction because they are unlikely to succeed on the merits of any of their claims. Arguing that the FRT-15 is a machinegun, the defendants state that all the opinion letters in support of the plaintiffs’ argument “are based on the erroneous premise that the phrase “single pull of the trigger” refers to the mechanical movement of the trigger, rather than the pull of the trigger by the human shooter.” Opp. 10-11. The defendants cite to the Staples note as well as common interpretations of the phrase “single pull of the trigger” at the time of the NFA’s enactment in 1934. The defendants also cite the Akins case (see above), which was decided in the same jurisdiction as the present case. The fact that the lower district court and the Court of Appeals in Akins found the ATF’s interpretation of “single function of the trigger” as encompassing any “single pull of the trigger,” reasonable has not deterred the plaintiffs. On September 10, 2021, just hours before the defendants filed their Opposition to the Emergency Motion for a Preliminary Injunction, plaintiffs put forth a supplemental filing noting a recent decision of the U.S. Navy-Marine Corps Court of Criminal Appeals, U.S. v. Alkazahg, No. 202000087, 2021 WL 4058360 (N-M. Ct. Crim. App. Sept. 7, 2021). In that case, the court found that although the statute is ambiguous on what constitutes a machinegun

and the meaning of “single pull of the trigger,” a bump stock was not a machine gun because the phrase “single pull of the trigger” depends on the mechanical actions, makeup, design, and attributes of the firearm itself.

It is incorrect to equate the holding of the trigger in an automatic weapon with the holding of the trigger and the forward motion in a semi-automatic weapon equipped with a bump stock. That is because the former is shooting automatically by a single function of the trigger, while the latter is relying on an additional human action beyond the mechanical self-acting and impersonal trigger function.

Alkazahg at 15.

We will revisit the Alkazahg in the next “Legally Armed” column when we examine the arguments swirling about in the several bump stock cases. For now, though, we must acknowledge the fact that the Alkazahg case is at odds with precedent set forth in the Eleventh Circuit, namely the Akins case, in which the courts have found reasonable ATF’s interpretation of “single function of the trigger” as encompassing any “single pull of the trigger.” Exactly how the plaintiffs will overcome this high hurdle remains to be seen.

***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.