A year ago, I offered the possibility that Biden may end up being the first president in a long time to successfully implement sweeping gun control measures (see “Biden’s Plans for Gun Control Reform,” Small Arms Review, Vol. 25, No. 5.) Such reform can come out of the Congress in the form of new laws (such as enhanced background checks or restricting sales at gun shows), or out of the executive branch with new agency rules or regulations. For the time being, Congress appears to be stalled in passing any kind of gun legislation, and as we get closer to the midterm elections, it is highly unlikely we will see any change on that front.

The power of federal agencies to implement gun control measures is a different story. We’ve already seen proposed rulemaking come out of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) targeting pistol braces and expanding controls over partially made frames and receivers. While ATF has not yet finalized those rules, the agency is in the process of reviewing the public comments and is working toward finalizing the rules sometime in late summer and early fall, respectively.

In the meantime, there is a “zero tolerance policy” that is sneaking up on the industry for which people need to be prepared. President Biden first announced the policy last June as part of a larger gun control strategy (Fact Sheet: Biden-Harris Administration Announces Comprehensive Strategy to Prevent and Respond to Gun Crime and Ensure Public Safety, White House Briefing Room, Jun. 23, 2021, available at whitehouse.gov). That strategy delineated five main goals: stem the flow of firearms used to commit violence, including by holding rogue firearms dealers accountable for violating federal laws; support local law enforcement with federal tools and resources to help address summer violent crime; invest in evidence-based community violence interventions; expanding summer programming employment opportunities, and other services and supports for teenagers and young adults; and help formerly incarcerated individuals successfully reenter their communities.

Under the first goal of stemming the flow of firearms used to commit violence, the president declared a policy of zero tolerance for “rogue gun dealers that willfully violate the law.” Under this policy, Biden stated that ATF will seek to revoke licenses of dealers the first time they willfully violate federal law by doing any of the following: transfer a firearm to a prohibited person, fail to run a required background check,  falsify records, such as a firearms transaction form, fail to respond to an ATF trace request, or refuse to permit ATF to conduct an inspection. And only one instance of any of the above violations is necessary to trigger a license revocation.

These are not empty threats, as evidenced by the large amounts of funding the Biden administration is devoting to reducing gun crime, including prosecution of the referenced rogue dealers. So far, $350 billion has been made available from the American Rescue Plan for enforcement efforts. The president’s fiscal year 2022 budget request sought $9.4 billion for violent crime, gun violence, and police, an 8.9 percent increase over fiscal year 2021. It included an additional $45 million for ATF to support doubling ATF’s capacity to investigate thefts from federally licensed firearms dealers. The president’s fiscal year 2022 budget, if enacted, would increase the number of ATF industry operations investigators assigned to conduct inspections, identify security vulnerabilities, and respond to thefts at federally licensed firearms dealers. Justice Department Fact Sheet on Violent Crime Reduction (available at justice.gov).

We know that ATF is in the process of implementing this zero-tolerance policy. On January 3, 2022, the agency published a revised Federal Firearms Licensee Quick Reference and Best Practices Act (ATF Publication 5300.15). This guide, more than thirty pages long, puts dealers on notice up front with the following proclamation: “To maximize public safety, ATF will, absent extraordinary circumstances, initiate proceedings to revoke the license of any dealer that has committed a willful regulatory violation of the Gun Control Act (GCA) for specified violations. These violations are: Transferring a firearm to a prohibited person; failing to run a required background check: falsifying records, such as a firearms transaction form; failing to respond to an ATF tracing request; or refusing to permit ATF to conduct an inspection in violation of the law.” ATF does not offer what constitutes an extraordinary circumstance, but it is apparent that the dealer would have the burden under this policy to establish a fact that would justify ATF not pursuing license revocation.

Unfortunately, this policy can significantly undermine the important cooperating relationship between industry and the government. Firearms licensees can be a valuable resource to law enforcement because of their direct dealings with the public and their knowledge of the community. If license revocations increase because of this zero-tolerance policy, which they are sure to do, dealers and other licensees may be more reluctant to go to ATF or other law enforcement. Yes, the Justice Department has announced that self-reporting of noncompliance and other proactive behavior will be rewarded, but that may not be enough to allay fears of “ma and pa” dealer becoming the target of enforcement themselves. Indeed, we may see more and more people talking themselves out of voluntarily disclosing violations because, well, what are the odds ATF will find out? Will the reward be worth the risk?

Dealers and other licensees who engage in over-the-counter firearm transfers take note. Now is the time to make sure your house is in order. Review your existing policies and procedures on transfers, recordkeeping, and responding to ATF trace requests, and make sure your employees are educated on the regulatory requirements and restrictions applicable to your business, and then be proactive in ensuring the proper procedures are followed.

This Administration will not let up. Most recently, during his State of the Union address, President Biden made it clear that he has not lost his focus on gun control.

I will do everything in my power to crack down on gun trafficking of ghost guns you can buy online, assemble at home. No serial numbers. Cannot be traced. I asked Congress to pass proven measures to reduce gun violence. Pass universal background checks.

Why should anyone on a terrorist list be able to purchase a weapon? Why? Why?

And folks, ban assault weapons and high-capacity magazines with 100 rounds. You think the deer are wearing Kevlar vests? Repeal the liability shield that makes gun manufacturers the only industry in America that cannot be sued. The only one. Imagine had we done that with the tobacco manufacturers. These laws do not infringe on the Second Amendment. They save lives.

Barely into his second year of his presidency, there can be little doubt that when it comes to gun control, Biden is just getting started.

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.

About the author

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (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 she has served as a member of the Defense Trade Advisory Group (DTAG). From 2011 through 2020, Johanna served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (FAIR) Trade Group and she continues to serve in an advisory role. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.

On January 19, 2022, the Firearms and Ammunition Import/Export Roundtable (FAIR) Trade Group hosted its annual membership meeting in Las Vegas, Nevada. It was a full house, with people coming together to hear legal and policy updates from federal regulators, and to discuss the challenges facing the firearms and ammunition industries domestically and abroad. Present were top officials from the Bureau of Alcohol, Tobacco, Firearms and Explosives, the U.S. Department of Commerce’s Bureau of Industry and Security, and members representing a cross-section of industry, from the collector to the big defense contractor. It was a highly productive meeting and very well received. The following is a rundown of the issues discussed.

ATF Updates

After introductory remarks from FAIR’s new Executive Director, Michael Faucette, and its president, Charles Fowler, ATF took the floor to discuss recent updates and policy clarifications. Alphonso Hughes, the Assistant Director of ATF’s Office of Enforcement Programs and Services, kicked off the session by introducing the top officials present from the following branches and divisions of ATF:

• Firearms and Explosives Industry Division
• Firearms and Ammunition Technology Division
• Firearms and Explosives Services Division
• Firearms and Explosives Imports Branch
• National Firearms Act Division
• Office of Regulatory Affairs
• Office of Legal Counsel

ATF addressed the following questions and topics of interest from F.A.I.R. members:

Clarification of the role between the Department of State and ATF on imports and foreign policy questions. 

A little background is helpful to appreciate the question and understand ATF’s answer. The U.S. government controls firearms and ammunition imports primarily through two statutes, the Gun Control Act of 1968 (GCA) and the Arms Export Control Act (AECA), but the underlying policies and Congress’s motivations in passing these two statutes are quite different. In the years preceding the GCA’s passage, U.S. firearms manufacturers lobbied Congress, primarily Thomas Dodd, Senator from Connecticut, for a legislative remedy to the growing competition the industry was facing from imports of inexpensive foreign surplus military firearms. Thanks in large part to this effort, the GCA has a general prohibition on the importation of any firearm or ammunition. See generally, David T. Hardy, “The Firearms Owners’ Protection Act: A Historical and Legal Perspective,” 17 Cumb. L. Rev. 585-682 (1986). Other than imports by federal, state, or local government agencies, there are only four types of firearm or ammunition imports permitted under the GCA: imports for scientific or research purposes; imports of unserviceable firearms (except machineguns) imported as curios or museum pieces; return of U.S. goods; and finally, imports of firearms and ammunition meeting the sporting purposes test (except NFA firearms and surplus military firearms).

Comparatively, the AECA came about out of the desire for world peace. “[A]n ultimate goal of the United States continues to be a world which is free from the scourge of war and the dangers and burdens of armaments; in which the use of force has been subordinated to the rule of law; and in which international adjustments to a changing world are achieved peacefully. In furtherance of that goal, it remains the policy of the United States to encourage regional arms control and disarmament agreements and to discourage arms races,” from 22 U.S.C. Ch. 39, § 2751. The controls over arms exports and imports is presented in section 2778, which gives the president the authority to control the export and import of defense articles and defense services “in furtherance of world peace and the security and foreign policy of the United States,” as stated in 22 U.S.C. § 2778(a)(1). By way of executive order, the president has delegated the authority to enforce the statute to various agencies. For the permanent import of defense articles, authority is vested with the attorney general, who in turn has delegated these functions to the ATF. The executive order instructs the attorney general to be “guided by the views of the Secretary of State on matters affecting world peace, and the external security and foreign policy of the United States.” Furthermore, any changes to designations of items or categories of items considered defense articles subject to the AECA permanent import controls must also be made with the concurrence of the secretary of state and the secretary of defense and with notice to the secretary of commerce. E.O. 13637, 78 Fed. Reg. 16129 (Mar. 8, 2013).

Since the first days of implementation of the AECA, firearms and ammunition have been classified as “defense articles” and therefore subject to ATF permitting requirements for permanent imports. In addition, the ATF regulations implementing the permanent import provisions of the AECA have always specified that “the administration of the provisions of this part will be subject to the guidance of the Secretaries of State and Defense on matters affecting world peace and the external security and foreign policy of the United States.” 27 C.F.R. § 447.55.

But what can be confusing to industry is the extent to which ATF involves the State Department in its implementation of the AECA import controls. At the F.A.I.R. meeting, ATF cited to the regulations and executive order 13637 (above) and confirmed that it consults with the State Department on import cases involving the Russian sanctions and proscribed countries, including the Voluntary Restraint Agreement (VRA) with Russia. More specifically, the following policies were reviewed:

• Russia Sanctions – the U.S. government utilizes economic and trade sanctions against other countries, individuals, or entities to force a change in policies. In August 2021, the State Department and the Treasury Department announced a new round of sanctions against Russia on the one-year anniversary of the poisoning of Russian lawyer and opposition figure Alexei Navalny. These sanctions included a minimum 12-month restriction on the permanent importation of firearms and ammunition manufactured or located in Russia pursuant to new or pending import applications. Subsequently, pursuant to State Department direction, ATF began denying Form 6 applications to permanently import firearms or ammunition manufactured or located in Russia on September 7, 2021. At the F.A.I.R. meeting, ATF stated that the only Russian firearms or ammunition that can be imported are those listed on permits issued prior to September 7, 2021. There is no exception for curios or relics stored in a non-proscribed country or area. The Biden administration will reevaluate these sanctions after one year.

• Proscribed Country Policy for Imports (27 C.F.R. § 447.52) – ATF clarified that State Department modifications to the list of proscribed countries in the International Traffic in Arms (22 C.F.R. § 126.1) does not automatically impact the list of proscribed countries in ATF’s list in section in section 447.52. In fact, ATF will not initiate any changes to country policies unless and until the State Department officially directs it in writing to do so. This includes making changes to the list of approved firearms under the Voluntary Restraint Agreement.

Third Party Transfers of U.S. – Origin firearms – do firearms now controlled for export under the Commerce regulations still require State Department retransfer approval?

ATF explained that the requirement for State Department retransfer approval stems from statutes that compel such prior authorization whenever there is a transfer, change in end-use or destination not previously identified in the original acquisition. This requirement extends to firearms and ammunition originally exported through the Foreign Military Sales (FMS) Program, grants under the Military Assistance Program (MAP), and direct commercial sales. The foreign government wishing to sell such articles to U.S. importers should first obtain the retransfer authorization from the appropriate State Department office in the Bureau of Political-Military Affairs (PM). The Office of Regional Security and Arms Transfers (PM-RSAT) handles retransfers of government-to-government sales and grant-origin defense articles, while exports of direct commercial sales are handled by the Directorate of Defense Trade Controls (DDTC). The appropriate retransfer authorization should be obtained prior to submitting the Form 6 import permit application to ATF.

What firearm operations can occur in a Foreign Trade Zone (FTZ)?

ATF explained that all U.S. laws apply to operations in an FTZ, which means that firearms may not be manufactured in an FTZ pursuant to the GCA and the NFA restrictions. Firearms can be stored in an FTZ (no addition of parts, no manipulation, except repackaging is permissible). ATF would allow destruction and disassembly of firearms, but it is important to point out that pursuant to the Department of Commerce rules on FTZ operations, activities involving destruction of firearms must be approved in advance by the Commerce Department’s FTZ Board (the FTZ Board defines any process that results in a change to Customs import classification as requiring prior clearance from the board).

Firearms may be transferred between FTZs, but approval for the transfer must be obtained from ATF in a letter request.

Is ATF changing the requirements for demonstration letters in support of import applications?

ATF is in the process of preparing a new form that may be used by importers to establish the import is for demonstration to government and law enforcement entities. The date of introduction is not yet determined but is expected to occur in the next few months. The form will include a checklist of requirements along with a penalty of perjury statement to be signed by the licensee and the government entity. The form will be optional, but importers who choose to continue using request letters from law enforcement and government customers are forewarned that ATF will continue to verify the veracity of demonstration letters by contacting the signing officials and superiors.

Information required on the Form 6 Import Permit Application

ATF explained that importers should include the seller and shipper information, if known (blocks 6 and 7 on the application). This information is necessary for ATF to confirm no party to the transaction is subject to sanctions or is otherwise prohibited.

Export Controls Update from the U.S. Department of Commerce, Bureau of Industry and Security (BIS)

After ATF concluded its presentation, BIS officials took the floor and provided attendees with a one-hour update on the firearms and ammunition exports under the Export Administration Regulations (EAR). It has been two years since the new export rules governing firearms and ammunition, but industry can always benefit from tips and observations from the regulators. The following is a list of updates and clarifications the BIS officials provided:

Parts Classifications

• Individual magazine parts are EAR99;
• Sear springs for the 1911 are classified as 0A501.x, NOT EAR99;
• Other EAR99 items: shotgun barrels; scope mounts/rails; speed loaders or moon clips; iron sights; front and rear sights; bipods/tripods; shooting sticks; muzzle brakes; compensators; flash hiders and flash suppressors.

Clarification rule for firearms and ammunition

Attendees were reminded that back in August, BIS published a rule that implemented technical corrections to the controls over firearms, ammunition, and related articles no longer subject to the ITAR. This rule took effect on September 20, 2021, and was published in 86 Fed. Reg. 46590 (Aug. 19, 2021)).

Application Tips and Tricks

BIS reiterated that caliber ranges and multiple firearm models can be provided on the export license application (Form BIS 748-P). The risk in being too specific, they explained, is to limit the scope of the license once approved.

Countries of Concern

The following countries are subject to a policy of denial for exports of firearms and ammunition:

• China (includes Hong Kong)
• Russia
• Paraguay (the Paraguayan government has issued a moratorium on firearm imports)
• Guyana (human rights concerns)
• Commercial sales to Guatemala or El Salvador subject to strict scrutiny and may be approved subject to special conditions.
• Philippines
• Trinidad & Tobago
• Brazil – there are concerns over enforcement related to commercial resale transactions because the Commerce Department does not have anyone in country to conduct end-use checks. However, exports to commercial entities may be approved.

BIS also reminded attendees to carefully monitor any country policy changes the State Department initiates through ITAR section 126.1, as these have an immediate impact on the Commerce Country Group D:5. Applications to export firearms or ammunition to any country listed in 126.1 will be denied, even if recent changes are not immediately reflected in Country Group D:5.

Other News

We were saddened to hear of the recent passing of John Brown, who served as the president for the National Firearms Act Trade and Collectors Association (NFATCA) since its founding in 2003. Having been in the trade for more than 50 years, John fought hard for the firearms industry through diligence, professionalism and collaboration with the regulators and other industry leaders. Over the years he has had many achievements, including working with the ATF to bring about the NFA Handbook and the elimination of the CLEO signature requirement for NFA transfers. We mourn with his family, his colleagues, and his friends. Rest in peace, John. We will miss you.

In other news, at the end of 2020 I stepped down as FAIR’s executive director and turned the reins over to Michael Faucette. Although it was a difficult decision, after having had the privilege of serving this fantastic organization for almost ten years, I know that great things are in store for the organization and its members. FAIR Trade Group provides an invaluable service to the firearms and ammunition industries. By maintaining its strong relationship with the agencies regulating our businesses and keeping its members informed of policy updates and regulatory changes, FAIR will continue to be the regulatory watchdog and voice for its importer and exporter members. I look forward to continuing to work with FAIR in an advisory role.

***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.

About the author

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (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 she has served as a member of the Defense Trade Advisory Group (DTAG). From 2011 through 2020, Johanna served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (FAIR) Trade Group and she continues to serve in an advisory role. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.

Back in 2020 I wrote about the judicial decisions which held the California ban on large capacity magazines to be unconstitutional because the ban violated the Second Amendment. See “Federal Court Rules California Ban Violates Second Amendment,” Small Arms Review, Vol. 24 No. 9 (Nov. 2020). The victory was short lived, and this past November, the Ninth Circuit overturned the previous decisions and ruled the LCM ban to be constitutional, revealing once again its distaste for the Second Amendment.

Background

At issue is California Penal Code section 32310, which bans magazines that can hold more than ten rounds of ammunition (the so-called large-capacity magazines, or “LCMs”). The law, which California voters approved in November 2016, criminalized any person who possesses an LCM, regardless of the date the LCM was acquired. Current owners of LCMs were required to remove the magazines from the state, sell them to a firearms dealer, surrender them to law enforcement for destruction, or permanently modify the magazine to only accept ten or fewer rounds.

In 2017, shortly before Section 32310 was to go into effect, plaintiffs Virginia Duncan, Richard Lewis, Patrick Lovette, David Marguglio, Christopher Waddell, and the California Rifle and Pistol Association, Inc., sued the state’s Attorney General at the time, Xavier Becerra, on the grounds that the law was unconstitutional. The federal district court in San Diego granted a preliminary injunction on the grounds that “hundreds of thousands, if not millions, of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property.” Duncan v. Becerra, 265 F.Supp.3d 1106 at 1139 (S.D. Cal. 2017) (Duncan I).

Attorney General Becerra appealed the lower court’s injunction to the 9^th Circuit. In the meantime, plaintiffs filed a motion for summary judgment with the district court. In 2019, the district court ruled in favor of the plaintiffs and held Section 32310 to be unconstitutional in its entirety. Duncan v. Becerra, 366 F.Supp.3d 1131, 1186 (S.D. Cal. 2019) (“Duncan II”). The court’s order prohibited the attorney general, his officers, agents, employees, and attorneys, as well as state and federal law enforcement from enforcing the possession ban under Section 32310. The prohibition against the sale, purchase, manufacture, importation, or acquisition of LCMs remained in effect during the appellate process.

The California Attorney General Becerra appealed the Duncan II decision to the 9^th Circuit, and on August 14, 2020, a three-judge panel of the Ninth Circuit affirmed the district court’s summary judgment. In a 2-1 decision (Judge Lynn dissenting), the panel struck down Section 32310 as unconstitutional because “it severely burdens the core of the constitutional right of law-abiding citizens to keep and bear arms.” 970 F.3d 1133, 1163 (9^th Cir. 2020). The panel’s majority found that firearm magazines enjoy Second Amendment protection. “Without a magazine, many weapons would be useless, including ‘quintessential’ self-defense weapons like the handgun…. Put simply, a regulation cannot permissibly ban a protected firearm’s components critical to its operation.” 970 F.3d at 1146 (citing to District of Columbia v. Heller 554 U.S. 579, 629 and 630(2008)).

Subsequently, the California Attorney General requested a rehearing before a larger, en banc panel. On February 25, 2021, the circuit court granted the Attorney General’s petition for a rehearing and vacated the three-judge panel’s ruling.

The Ninth Circuit En Banc Hearing and Decision

The case was argued on June 22, 2021 before 11 judges, seven of whom were Clinton and Obama appointees and four were Trump and G.W. Bush appointees. The California Attorney General, who by this time was Rob Bonta (Xavier Becerra had moved on to serve as the Secretary of Health and Human Services in the Biden administration), argued that Section 32310’s ban on LCMs does not run afoul of the Second Amendment. According to Bonta, Section 32310 did not prevent law-abiding Californians from possessing all sorts of authorized firearms and magazines that would provide them with ample ammunition to defend themselves. Citing a correlation between mass shootings and LCMs, the California Attorney General argued there was a reasonable fit between California’s interest in reducing the number of mass shootings and the resulting casualties and Section 32310.

In a 7-4 decision, the en banc court sided with the California Attorney General and upheld the magazine ban (see Duncan v. Bonta, 19 F.4th 1087 (9^th. Cir. 2021). Addressing the Second Amendment challenge, the court applied a two-step analysis, addressing first whether Section 32310 affects conduct protected by the Second Amendment and if so, what level scrutiny to apply.

Step One: Does the Second Amendment Protect Possession of Large Capacity Magazines?

Recall that one of the key findings of the previous three-judge panel was that magazines enjoy Second Amendment protection. That panel did not find LCMs to be “unusual” arms and had a long history of use and availability in the United States, dating back more than 200 years. That court also cited to statistics showing criminal use of LCMs to be relatively low in comparison to their market saturation.

Before the en banc court, the California Attorney General argued that Section 32310’s ban on LCMs does not implicate the Second Amendment for two reasons: LCMs are most useful in a military setting; and California has a long history of governing magazine capacity and such accepted control does not implicate the Second Amendment.

Rather than addressing head on Attorney General Bonta’s arguments against Second Amendment protection, the majority opinion of the en banc court side steps the issue and assumes without deciding that Section 32310 implicates the Second Amendment.  

Step Two: What Level Scrutiny Should be Applied?

When determining whether a law is constitutional, courts will usually apply one of three levels of scrutiny: strict scrutiny, intermediate scrutiny, or a rational basis review. Strict scrutiny, as the name implies, is the highest level of scrutiny a court can apply and requires the government to prove a compelling state interest behind the law and that the law or regulation is narrowly tailored to achieve the result. Courts apply strict scrutiny when a “fundamental right” is threatened by a law.

Intermediate scrutiny requires the government show the law serves an important government objective and is substantially related to achieving the objective. Under both the strict and intermediate scrutiny approaches, the government bears the burden of satisfying the test.

Rational basis review is the lowest level of scrutiny and requires the person challenging the law (as opposed to the government) to show that the government has no legitimate interest in the law or that there is no reasonable link between the government interest and the challenged law. Under this approach, a court can determine a law to have a rational basis as long as any conceivable, rational basis exists, even if the government does not provide one.

The three-judge panel in Duncan held Section 32310 to be subject to strict scrutiny because Section 32310 threatened the core right of law-abiding citizens to defend hearth and home, and the burden imposed on the core right is substantial. The panel rejected the lesser standard of intermediate scrutiny as a contradiction to the Supreme Court decision in Heller. “[T]he Second Amendment is not a second-class right….Nor is self-defense a dispensation granted at the state’s mercy.” 970 F.3d at 1155 (citing the 2010 Supreme Court decision in McDonald v. City of Chicago).

The en banc court, however, rejected application of strict scrutiny on the grounds that such an approach is applicable only to laws that implicate a core Second Amendment right and place a substantial burden on that right. Here, the court determined that even if Section 32310 implicates the core Second Amendment right of self-defense in the home, the ban on LCMs is only a small burden on that right because the law has no effect on which or how many firearms may be owned, and owners of firearms can possess as many firearms, bullets, and magazines as they choose and may also fire as many bullets as they would like for whatever lawful purpose they choose. “The ban on large-capacity magazines has the sole practical effect of requiring shooters to pause for a few seconds after firing ten bullets, to reload or to replace the spent magazine.” 19 F.4th at 1104.

The court rejected Plaintiffs argument for strict scrutiny, citing experts who report that the use of more than ten bullets in defense of the home is rare or non-existent. “Plaintiffs have not pointed to a single instance in this record (or elsewhere) of a homeowner who was unable to defense himself or herself because of a lack of a large-capacity magazine.” 19 F.4th at 1105.

The en banc court also rejected Plaintiffs’ contention that the Section 32310 ban on LCMs fails under any standards of scrutiny much like the D.C. handgun ban at issue in the Heller case. “The law at issue here does not ban any firearm at all. It bans merely a subset (large-capacity) of a part (a magazine) that some (but not all) firearms use.” 19 F.4th at 1107.

The Ban on LCMs Survives Intermediate Scrutiny

The en banc court determined that California enacted the LCM ban to prevent and mitigate gun violence. “Although mass shootings may be an irregular occurrence, the harm that flows from them is extensive. We readily conclude that reducing the harm caused by mass shootings is an important government objective.” 19F.4th at 1109. The court found that large-capacity magazines allow a shooter to fire more bullets from a single firearm uninterrupted. When the shooter must reload or switch weapons, this pause allows victims to flee and law enforcement to confront the shooter. The en banc court also found that most mass shooters have possessed their weapons and their large-capacity magazines lawfully. Consequently, removing the ability to possess such magazines reasonably supports California’s aim to reduce the harm caused by mass shootings.

The court rejected Plaintiffs’ argument that LCMs are important for self-defense. “Plaintiffs and their experts speculate about hypothetical situations in which a person might want to use a large-capacity magazine for self-defense. But Plaintiffs’ speculation, not backed by any real-world examples, comes nowhere near overcoming the deference that we must give to the reasonable legislative judgment, supported by both data and common sense, that large-capacity magazines significantly increase the devastating harm caused by mass shootings and that removing those magazines from circulation will likely reduce deaths and serious injuries.”

Based on these findings, the en banc court concluded that the ban on LCMs is a reasonable fit for the compelling goal of reducing gun violence and thus is not in violation of the Second Amendment. The court also rejected Plaintiffs’ Fifth Amendment takings argument under the reasoning that because Section 32310 allows a person to sell or modify their property, there is no unlawful government taking.

Conclusion

The en banc decision was a severe disappointment to Second Amendment advocates, but it was not surprising given the history of the Ninth Circuit’s approach to Second Amendment cases. As Judge VanDyke points out in his dissent, the Ninth Circuit has a long history of undermining the Second Amendment:

“We are a monstrosity of a court exercising jurisdiction over 20% of the U.S. population and almost one-fifth of the states—including states pushing the most aggressive gun-control restrictions in the nation. By my count, we have had at least 50 Second Amendment challenges since Heller—significantly more than any other circuit—all of which we have ultimately denied. In those few instances where a panel of our court has granted Second Amendment relief, we have without fail taken the case en banc to reverse that ruling. This is true regardless of the diverse regulations that have come before us—from storage restrictions to waiting periods to ammunition restrictions to conceal carry bans to open carry bans to magazine capacity prohibitions—the common thread is our court’s ready willingness to bless any restriction related to guns.”

19F.4th at 1165-1166 (emphasis in original).

Plaintiffs have stated they will file a writ of certiorari with the Supreme Court to appeal the en banc decision. On December 20, 2021, the Ninth Circuit granted plaintiffs’ motion to stay the mandate, which keeps the status quo while a writ of certiorari is filed. So, for the time being, individuals who lawfully own or possess LCMs can keep them while the case is appealed.

Let’s hope the Supreme Court accepts the case and puts a stop to courts treating the Second Amendment as a second-class right. As Judge VanDyke observed in his dissent (19F.4th at 1161):

“So the majority’s rarity balancing isn’t just lopsided—it starts from the wrong premise. We would never treat fundamental rights we care about this way, particularly those expressly enumerated in the Constitution. We don’t protect the free speech of the taciturn less than the loquacious. We don’t protect the free exercise of religion in proportion to how often people go to church. We wouldn’t even allow soldiers to be quartered only in those parts of your house you don’t use much. Express constitutional rights by their nature draw brighter and more prophylactic lines—precisely because those who recognized them were concerned that people like California’s government and the judges on our court will attempt to pare back a right they no longer find useful.”

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.

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 she has served as a member of the 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 and she continues to serve in an advisory role. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.

On November 3, 2021, the Supreme Court heard oral arguments in New York State Rifle & Pistol Assoc. v. Bruen. All eyes are on the Court, as this is the first time in more than 10 years that the justices are examining the Second Amendment protections over self-defense. This case asks the question of whether the state’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

I. Background – New York Law and the Kachalsky Case

New York law makes it a crime to possess any firearm without a license, loaded or unloaded, inside or outside the home. To obtain a license, an individual must be 21 years old or older, of good moral character, without a history of crime or mental illness, and “concerning whom no good cause exists for the denial of the license.”

In addition to the above prerequisites, licenses are limited by place or profession. Licenses to possess a registered handgun in the home or in a place of business by a merchant or storekeeper are granted on a “shall issue” standard. This is also the case for a license for a messenger employed by a banking institution or express company to carry concealed, as well as for certain state and city judges and those employed by a prison or jail.

For anyone else who wishes to carry a firearm, he or she must show “proper cause” for a license to be issued. As New York bans carrying handguns openly, individuals who desire to carry a handgun outside the home but do not fit within one of the employment categories above must demonstrate proper cause.

The New York penal code does not define what constitutes “proper cause,” but state courts have interpreted the term to include carrying a handgun for target practice, hunting, or self-defense. Proper cause for target practice or hunting can be satisfied if the applicant demonstrates “a sincere desire to participate in target shooting and hunting.” This standard is lower than proper cause for self-defense, which requires the applicant to show a “special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” If an applicant demonstrates only proper cause to carry a handgun for target practice or hunting, the licensing officer will restrict the carry license to the purposes justifying the issuance.

All conceal carry permit applications are reviewed by licensing officers who have a considerable amount of discretion in deciding whether to grant a license application. i.e., whether the applicant has established proper cause to justify issuance of the conceal carry license. To obtain a conceal carry license without restrictions (not restricted to hunting or target shooting purposes), the standard is very high. According to cases decided over the years, a generalized desire to carry a concealed weapon to protect oneself and property is not sufficient for obtaining an unrestricted carry license, nor is good moral character plus a simple desire to carry a weapon or living or being employed in a high crime area.

“A generalized desireto carry a concealed weapon to protect oneself and property is not sufficient for obtaining an unrestricted carry license.”

In 2012, several individuals and a civil rights association challenged the New York proper cause requirement in the case Kachalsky v. County of Westchester. In that case, multiple individual plaintiffs were denied full-carry concealed handgun licenses for failing to establish proper cause (none of the plaintiffs were able to demonstrate a need for self-protection distinguishable from that of the general public). The plaintiffs sued, challenging the constitutionality of the New York proper cause requirement. The District Court ruled against the plaintiffs, concluding that the concealed carrying of handguns in public is outside the core Second Amendment concern articulated in District of Columbia v. Heller (self-defense in the home).

On appeal, the Second Circuit upheld the lower court’s decision, finding the Second Amendment protections identified in Heller to be applicable only to the home. When it comes to carrying handguns in public, however, the court found the state to have a compelling interest in public safety and crime prevention. Consequently, the Second Circuit upheld the law on the grounds that it is substantially related to New York’s public safety interests.

II. The NYSRPA Case

In 2018, the NYSRPA, a firearms advocacy organization, and two individuals, Robert Nash and Brandon Koch, joined together and filed suit challenging once again the constitutionality of New York’s proper cause standard.

Petitioner Nash, who possessed a license restricted to hunting and target shooting, requested removal of the restrictions so that he may carry a firearm for self-defense. In support of his request, Nash cited to a string of recent robberies in his neighborhood and the fact that he had completed an advanced firearm safety training course. The licensing officer denied Nash’s request in November 2016 for failure to show proper cause because he did not demonstrate a special need for self-defense that distinguished him from the general public.

Petitioner Koch obtained his carry license in 2008 and like Nash, his license was restricted to hunting and target shooting. In November 2017, Koch requested removal of the restrictions from his license, citing his extensive experience in the safe handling and operation of firearms and completion of many safety training courses. Koch’s request was denied in January 2018 for failure to show proper cause because he did not demonstrate a special need for self-defense that distinguished him from the general public.

The parties filed suit in federal district court requesting the court compel defendants (New York licensing authorities) to issue unrestricted carry licenses to Nash and Koch, or otherwise allow them to exercise their right to carry firearms outside the home. The district court dismissed the case on the grounds that Kachalsky foreclosed plaintiff’s claims, and the Second Circuit Court affirmed the dismissal. The petitioners then appealed the case to the Supreme Court (also known as filing a writ of certiorari) presenting the following question: whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.

On April 26, 2021, the Supreme Court agreed to review the case, but narrowed the question to whether New York state’s denial of Nash and Koch’s applications for concealed-carry licenses for self-defense violated the Second Amendment. Citing to history and the text of the Second Amendment, petitioners argue the Second Amendment protects the right of the individual to carry arms outside the home for self-defense. Because New York’s restrictive carry regime means that the default is to prohibit law-abiding citizens from carrying handguns for self-defense, the state law violates the Second Amendment.

New York’s regime is all the more troubling because the threshold ‘proper cause’ determination is left to the broad discretion of a licensing officer. The Second Amendment, like the rest of the Bill of Rights, protects individuals against government actors. Requiring law-abiding individuals to secure the permission of a government official under a highly discretionary standard impermissibly converts a right into a privilege. – Brief for Petitioners at 42.

Respondents, arguing that the Second Amendment does not enshrine an unqualified right to carry concealed firearms in virtually any public place, contend New York has a valid interest in protecting the public and the licensing scheme is consistent with the Constitution.

“New York’s ‘proper cause’ requirement…does not seek to inhibit handgun carrying for lawful self-defense…but rather aims to limit the violence attending handgun misuse.” – Brief for Respondents at 40.

Oral argument took place on November 3, 2021. The attorney for petitioners, Paul Clement, centered on the argument that carrying a gun outside the home for self-defense purposes is a fundamental right enjoyed by citizens in 43 other states. Because it is a constitutional right, it must not be dependent on satisfying a government official that there is a “really good” need to exercise that right, or that there is a need that distinguishes the applicant from the rest of the community. Such a requirement transforms the right into a privilege.

“When it comes to carrying handguns in public, however, the court found the state to have a compelling interest in public safety and crime prevention.”

Distinguishing New York’s law from a government’s legitimate interest in restricting weapons in sensitive places, Clement argued “[i]t is the difference between regulating constitutionally protected activity and attempting to convert a fundamental constitutional right into a privilege that can only be enjoyed by those who can demonstrate to the satisfaction of a government official that they have an atypical need for the exercise of that right. That is not how constitutional rights work.”

Justice Alito asked Clement whether the Court could perhaps approach the sensitive place question in the context of self-defense so that places where the state has taken steps to put security measures in place and obviate the need for self-defense could be viewed as sensitive places. To this, Clement responded, “I worry that if you went in that direction, then the state would say: well, you know, this part of the city, we have a lot of police officers, and so you really don’t need to exercise your own individual self-defense right there because we – we have your back.”

One of the most intriguing parts of oral argument was concerning the role of population density and the Solicitor General of New York’s admission that unrestricted licenses are much more readily available in less densely populated upstate counties than in dense metropolitan areas. Chief Justice Roberts, explaining that the Court in Heller relied on the right to defense as a basis of its reading of the Second Amendment, pointed out the paradox of New York’s policy of issuing permits in less densely populated areas.

CHIEF JUSTICE ROBERTS: “Now I would think that [the need for self-defense] arises in more populated areas. If you’re out in the woods, presumably, it’s pretty unlikely that you’re going to run into someone who’s going to rob you on the street. On the other hand, there are places in a — in a densely populated city where it’s more likely that that’s where you’re going to need a gun for self-defense and, you know, however many policemen are assigned, that, you know, there are high-crime areas. And it seems to me that what you’re saying is that’s probably the last place that someone’s going to get a permit to carry a gun. How is that –regardless of what we think of the policy of that, how is that consistent with Heller’s reasoning that the reason the Second Amendment applies a –a direct personal right is for self-defense?”

In response, General Underwood pointed to a tradition of governments to regulate “most strenuously” in densely populated places. General Underwood explained the rationale for such history, “which is that where there is dense population, there is also the deterrent of lots of people and there is the availability of law enforcement.”

Justice Alito also asked a series of questions on what an ordinary, law-abiding citizen must do to show a need to carry a firearm for self-defense.

JUSTICE ALITO: “So I want you to think about people like this, people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes. None of these people has a criminal record. They’re all law-abiding citizens. They get off work around midnight, maybe even after midnight. They have to commute home by subway, maybe by bus. When they arrive at the subway station or the bus stop, they have to walk some distance through a high-crime area, and they apply for a license, and they say: Look, nobody has told –has said I am going to mug you next Thursday. However, there have been a lot of muggings in this area, and I am scared to death. They do not get licenses, is that right?”

In response, General Underwood acknowledged this is generally correct if there is nothing “particular” to them, to which Justice Alito asked how this is consistent with the core right to self-defense, which is protected by the Second Amendment?

MS. UNDERWOOD: “Because the core right to self-defense doesn’t –as –as this court said, doesn’t allow for all to –to be armed for all possible confrontations in all places.”

JUSTICE ALITO: “No, it doesn’t, but does it mean that there is the right to self-defense for celebrities and state judges and retired police officers but pretty much not for the kind of ordinary people who have a real, felt need to carry a gun to protect themselves?”

The majority of the justices appeared skeptical of the New York law in their questioning during oral argument. Although a decision in favor of petitioners could help chip away against the several states who have similar “may issue” licensing schemes for conceal carry, the Court’s ruling will likely be narrowly focused and may not address the broader question of whether the Constitution guarantees an individual the right to carry a firearm outside the home.

The Court will likely issue its decision by summer 2022.

***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.

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 law 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 and she continues to serve in an advisory role. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.

Estate transfers of firearms controlled under the National Firearms Act can be a maddening process, especially if the decedent’s family is unfamiliar with the federal controls over the transfer and possession of NFA firearms. In 2016, the Bureau of Alcohol, Tobacco, Firearms and Explosives attempted to clarify this process by amending its regulations in Part 479 of Title 27 of the Code of Federal Regulations. In Final Rule 41F, ATF added a new section specifying what executors or administrators of a decedent’s estate must do to lawfully dispose of an NFA-registered firearm. In this month’s column I’ll review the regulations governing estate transfers and common pitfalls to avoid when filing an application to transfer NFA firearms from an estate.

At this point I must highlight the importance of state law in estate transfers of NFA weapons. Central issues, such as whether a person has authority to act on behalf of an estate, or who are the beneficiaries entitled to a decedent’s property, are dependent on the laws of the state where the decedent resided. The laws vary among jurisdictions, so it’s well advised to consult with legal counsel who specializes in estate law in the state governing the estate.

Further, a person authorized under state law to dispose of property on behalf of an estate may have different titles, depending on the applicable law. Such a person may be referred to as “executor,” “administrator,” “representative,” or another title. For ease, this article uses the term “executor” but remember, the actual title of the authorized representative may be different, depending on the governing state law.

I. Background

         A.      NFA Controls

The NFA, Title 26 of the U.S. Code, Chapter 53, regulates machineguns, short barrel rifles, short barrel shotguns, silencers, destructive devices, and certain other concealable firearms known as “any other weapon.” The NFA requires such firearms to be registered by their respective manufacturer, maker, or importer within a specified time frame (e.g., non-licensees must obtain ATF approval in advance of making an NFA firearm on a Form 1 application; qualified manufacturers must register NFA firearms manufactured by submitting a Form 2 notification to ATF by the close of the next business day following the date of manufacture; and qualified importers must register NFA firearms imported by submitting a Form 2 notification to ATF within 15 days of the date of import). Only registered NFA firearms may be transferred, and ATF will not approve late registrations.

         B.      ATF Rulemaking Governing Estate Transfers

As evidenced by long-standing public guidance, ATF historically has treated estate transfers of NFA firearms registered to a decedent differently from other transfers. Because of the temporary legal nature of estates and the fact that state probate laws govern the distribution of estate property, ATF has allowed executors to temporarily possess NFA firearms to effectuate lawful transfers on behalf of the estate. ATF does not register the firearm to the executor and allows the executor to sign the transfer applications as the Transferor on behalf of the decedent’s estate. Examples of ATF’s guidance on estate transfers include “Transfers of National Firearms Act Firearms in Decedents’ Estates” (Sept. 5, 1999, revised Feb. 23, 2006) and the National Firearms Act Handbook, ATF E-Publication 5320.8 (April 2009). Both are available at atf.gov.

On September 9, 2013, ATF proposed a rulemaking (ATF 41P) to codify its public guidance on the possession and transfer of firearms registered to a decedent. Specifically, ATF proposed adding a new section to the NFA implementing regulations at 27 CFR Part 479 to clarify that an executor may lawfully possess a firearm registered to a decedent during probate without ATF treating such possession as a “transfer” under the NFA. Further, the proposed rulemaking also specified that an estate transfer of a firearm to a beneficiary, such as an heir (named in the decedent’s will) or, absent a will, anyone entitled under state law to inherit the firearm would qualify for tax exempt status.

ATF finalized this rule on January 4, 2016 with no notable changes from the 2013 proposal. Interestingly, ATF declined to accept a comment requesting the rule governing estate transfers be extended to other involuntary transfers, such as with dissolution of a corporation, liquidation in bankruptcy, or forced transfers during divorce proceedings. The stated reason for rejecting the comment was purely discretion. “The Department has exercised its discretion to decline to expand the scope of the rulemaking to encompass involuntary transfers not addressed in the proposed rule. Should the Department determine that its position with regard to estates should be extended to other involuntary transfers, it will do so in a separate rulemaking.” 81 Fed. Reg. 2665 (Jan. 15, 2016). To date there have been no further efforts to expand the scope of the rulemaking.

The new rules, codified at 27 CFR § 479.90a, took effect on July 13, 2016. Even though they codify ATF’s policies toward estate transfers and clarify an executor’s ability to possess and transfer NFA firearms on behalf of a decedent’s estate, these dispositions can still be challenging.

II. The Transfer Application

There is never a guaranty ATF will approve an application to transfer an NFA weapon. But estate transfer applications can be even more complicated because of the myriad state law issues present in these transactions. To increase the likelihood ATF will approve an estate transfer application for an NFA firearm, it’s important to know the elements of the prospective transfer, namely the who, the what, and the where. Then, when it comes time to prepare the transfer application and assemble the submission package, care must be taken to include the necessary support documents.

         A.     Confirming the Elements of the Transfer

1.      The Who – Is the Person Authorized to Act on Behalf of the Estate?

Whether ATF will approve an application to transfer an NFA firearm from an estate depends on the state law governing the estate. The burden is on the person signing the transfer application on behalf of the decedent to establish that he or she is legally authorized to dispose of the estate property.

The regulations specify the executor must identify the estate as the transferor and sign the application form on behalf of the decedent. The application packet must include documentation of the person’s appointment as executor, administrator, personal representative, or another authorized person.

In addition, the transfer application must be timely; the person signing the form must be authorized to represent an estate at the time the application is submitted. The regulations at section 479.09a(a) specify the executor must submit the transfer application “no later than the close of probate.” Estates are temporary legal entities created to dispose of a decedent’s property. The term during which an estate exists typically is defined by the laws of the state in which the decedent resided. But what if the NFA firearm is not discovered until after probate has closed? Such a scenario is not out of the realm of possibility, but then it’s incumbent on the executor to produce evidence, such as a court document, confirming the executor still has legal authority to dispose of property on behalf of the estate.

2.      The What – Is the Firearm Transferrable?

The first challenge the executor faces is determining whether the subject firearm is registered to the decedent. If an NFA firearm is not registered to the decedent, the executor cannot register or transfer that firearm. Consequently, it is important at the outset to confirm the status of each NFA firearm belonging to a decedent. Sometimes, however, the executor may not be able to locate the decedent’s registration documents. Luckily, this does not mean that all hope is lost, but certain steps must be followed to confirm whether a firearm is registered to a decedent.

The NFA is part of the Internal Revenue Code. As such, a firearm’s registration information is considered tax information which the government is generally prohibited from disclosing except to the registrant or someone with legal authority to represent the registrant. In cases of an estate, ATF is permitted to confirm registration status to the executor. However, the request must include documents showing the executor’s authority under state law to represent the decedent’s estate and dispose of the decedent’s property (see below for more information).

Be forewarned, ATF will consider any unregistered NFA firearm as contraband. If an NFA firearm is not registered to the decedent, this status cannot be cured, and ATF will require such unregistered firearms to be abandoned to ATF.

In addition to the registration status, it is also important to know whether the subject firearm is unserviceable. ATF defines an unserviceable firearm in 479.11 as “[a] firearm which is incapable of discharging a shot by means of an explosive and incapable of being readily restored to a firing condition.” This is an important question because ATF regulations allow an unserviceable firearm to be transferred as a curio or ornament without payment of the transfer tax. This may affect the appropriate transfer application form to use. More on this shortly.

3.      The Who – Who is the Transferee?

Recall that the NFA is part of the Internal Revenue Code and controls possession and transfer of the subject firearms through registration and tax requirements. Certain transfers qualify as tax exempt and are completed on the Form 5 application. If, however, the transfer is subject to the tax, the Form 4 application must be used. Using the wrong form will result in a return without action, so it is important to know whether the transfer is tax exempt or if it triggers the tax.

Beneficiaries of an estate qualify for a tax-exempt transfer and should be documented on the Form 5 application. Examples of a beneficiary include an “heir” (named in the decedent’s will), or someone entitled to inherit the property under the governing state laws. NFA firearms may be transferred interstate directly to a beneficiary of an estate. The beneficiary’s fingerprints must accompany the application form. If federal, state, or local law prohibits the beneficiary from receiving or possessing the firearm, ATF will not approve the application.

Transfers to unlicensed individuals outside the estate (i.e., not beneficiaries) are considered voluntary transfers and will require tax be paid on the Form 4 application ($5 for AOWs, $200 for all other NFA firearms). However, if the firearm is unserviceable, the Form 5 should be used and include an explanation of how the firearm was made unserviceable.

In addition, if the transfer is to be to a person outside the estate, the executor must show either that there are no beneficiaries of the estate or that the beneficiaries relinquish their rights to the firearm. This can be in the form of a signed and dated statement from each beneficiary.

D.     The Where – Does the Transferee’s Jurisdiction Allow Receipt and Possession of the Firearm?

The location of the transferee is important because if state or local law prohibits the receipt or possession of the firearm in question, ATF will not approve the transfer. This rule applies to both beneficiaries and non-beneficiaries alike. For example, if the NFA firearm in question is a machinegun, it would behoove the executor to confirm whether the transferee is a resident of a locale that prohibits receipt or possession of machineguns.

In addition, when the transferee is a non-licensed individual outside the estate, ATF will not approve a Form 4 for interstate transfers, so the transferee must reside in the same state as the estate.

         B.      Checklist for Preparing the Transfer Application

• Identify the firearms subject to NFA controls. Are the firearms registered to the decedent?
• Are the subject firearms unserviceable? If so, gather documentation explaining how the firearm was rendered unserviceable.
• Is the person who will be signing the transfer form on behalf of the estate duly authorized to act in this capacity? Gather the documentation showing the person’s appointment as executor, administrator, personal representative, etc.
• Is probate still open? If not, obtain documentation showing the transfer is permissible under state law governing estates.
• Identify the transferee and determine whether the transferee is a beneficiary or is outside the estate:
  • If the transferee is a beneficiary (the transferee is identified in the decedent’s will or entitled to inherit under state laws), obtain a copy of the will or other documentation showing the beneficiary status.
  • If the transferee is outside the estate (i.e., not a beneficiary), obtain documentation showing either no beneficiaries or that the beneficiaries relinquish rights to the firearms.
• Prepare the transfer application form applicable for the type of transfer:
  • Form 5 tax exempt (to beneficiaries, or of an unserviceable firearm). Interstate transfers permitted. Transferee’s fingerprints required.
  • Form 4 tax paid (to non-licensed individuals outside the estate). Interstate transfers not permitted; transfer must go through FFL in transferee’s state. Transferee’s fingerprints and law enforcement certification required.
• Include the support documentation required under 27 CFR § 479.90a:
  • Documentation of the person’s appointment as executor, administrator, personal representative, or as an authorized person;
  • Copy of the decedent’s death certificate;
  • Copy of the will (if any);
  • Other evidence of the person’s authority to dispose of property in the estate (especially important if probate is closed); and
  • Documentation relating to or affecting the disposition of firearms from the estate (e.g., a beneficiary’s relinquishment of rights).

***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.

ABOUT THE AUTHOR

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC. For more than 17 years she has dedicated her law 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. From 2011 through 2020, Johanna served as executive director for the Firearms and Ammunition Import/Export Roundtable Trade Group and she continues to serve in an advisory role. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.

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.

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):

1. Cease and desist all manufacture and transfer of the Rare Breed Trigger FRT-15.
2. 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.”

ATF’s Proposed Rulemaking Will Expand Scope of Federal Firearm Controls—Part II

As promised in Part I of this series (published in Small Arms Review Vol. 25, No. 6), we now take a look at the proposed revisions to the firearm marking requirements and the impact on privately made firearms. As you may recall, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) drafted the Notice of Proposed Rulemaking (NPRM) with two primary objectives. One is to update the term “frame or receiver” into a living definition capable of capturing modern firearms technology and changes in terminology. In Part I, we reviewed ATF’s proposed changes to the term “frame or receiver” that would move away from the rigid definition of specifying three specific fire control components (the hammer, bolt or breechblock, and firing mechanism) and replace it with language general enough to capture changes in technology.

In this article we will focus on ATF’s other objective, which is to revise the regulations to specify at what point an unregulated article becomes a “firearm” subject to the Gun Control Act of 1968 (“GCA”). As drafted, the NPRM would expand GCA controls to partially machined bodies and parts kits that have reached a certain stage they may “readily” be completed, assembled, converted, or restored to a functional state. The proposed rule adds that “partially complete” will mean a forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it is clearly identifiable as an unfinished component part of a weapon.

As a quick refresher, the GCA defines “firearm” to mean (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. 18 U.S.C. § 922(a)(3) (emphasis added).

Pursuant to this statutory definition, a device is a controlled firearm if it is either designed to or can readily be converted into a device that expels a projectile by the action of an explosive, or it is a frame or receiver of such a device. However, neither the GCA nor the current regulations identify at what point an article becomes subject to the GCA controls. With this NPRM, ATF is attempting to remedy this, but a key question may be whether the proposed fixes exceed the scope of the statute.

“Readily”

The term “readily” is used in the GCA in several contexts, including interstate transportation of firearms at 18 U.S.C. 926A (allowing interstate transport of a firearm if it is unloaded and not readily accessible) and importability of firearms generally recognized as particularly suitable for or readily adaptable to sporting purposes (18 U.S.C. 925(d)(3)).

As we discussed above, the term is also in the definition of “firearm” and is the key qualifier by which the statute controls not just those weapons that function as firearms, or are designed to function as firearms, (expel a projectile by the action of an explosive) but also weapons which may be readily converted into a firearm. The statute, however, does not define “readily.”

As a result of the statute’s silence on the term, ATF’s current regulations also do not define “readily.” And this is becoming increasingly important. Determining when something becomes a firearm is at the heart of the GCA, it is the foundation upon which most controls are based. Because the concept of something being readily convertible into a firearm affects partially machined bodies and parts kits, just how ATF interprets “readily” is of critical importance and has been for some time.

For example, ATF is often asked whether a partially machined block of metal or plastic is a “blank” or a “firearm.” This is important because as soon as a that blank is a “firearm” it is subject to the GCA and that statute’s interstate controls over transfer and possession, the qualifications to engage in the business, and marking and recordkeeping requirements.

For manufacturers, identifying when something becomes a firearm impacts supply chains and how business is conducted with vendors. Important operational questions must be considered, such as whether the vendor needs a license from ATF to manufacture firearms, or whether a marking variance is needed. For importers, if that blank coming in is in fact a “firearm,” the GCA restrictions on firearm imports will apply.  

Also impacted by the concept of “readily” and ATF’s interpretation of the term is the market for so-called “80% receivers.” The term “80% receiver” (and similar language such as “80% finished,” “80% complete,” and “unfinished receiver”) is often used to identify an item some believe is not a controlled “firearm” under the GCA because it is only partially machined. However, none of these phrases are used in the statute or in ATF regulations, and ATF has not endorsed any of these terms. So, how ATF will interpret and apply “readily” will have a significant impact on this market that has exploded in recent years.

This brings us to the new definition of the term “readily,” which ATF proposes to add to its regulations at 27 C.F.R. § 478.11 and § 479.11. As proposed in the NPRM at 27747, the definition is as follows:

Readily: A process that is fairly or reasonably efficient, quick, and easy, but not necessarily the most efficient, speedy, or easy process. Factors relevant in making this determination, with no single one controlling, include the following:

• (a) Time, i.e., how long it takes to finish the process;
• (b) Ease, i.e., how difficult it is to do so;
• (c) Expertise, i.e., what knowledge and skills are required;
• (d) Equipment, i.e., what tools are required;
• (e) Availability, i.e., whether additional parts are required, and how easily they can be obtained;
• (f) Expense, i.e., how much it costs;
• (g) Scope, i.e., the extent to which the subject of the process must be changed to finish it; and
• (h) Feasibility, i.e., whether the process would damage or destroy the subject of the process, or cause it to malfunction.* * * * *

In addition to defining the term “readily,” ATF proposes to revise the existing definitions of “frame or receiver” and “firearm” by using “readily” to capture partially made, disassembled, or inoperable frames or receivers as well as parts kits that may be readily assembled, completed, converted or restored to expel a projectile by the action of an explosive.

Partially Complete, Disassembled, or Inoperable Frame or Receiver

As we’ve discussed, under the current regulations, there is little to no guidance on when an unregulated piece of metal or plastic becomes a controlled “firearm” under the GCA. According to ATF, “[c]larifying this issue is needed to deter the increased sale or distribution of unlicensed and unregulated partially complete or unassembled frames or receivers often sold within parts kits that can readily be completed or assembled to a functional state.” NPRM at 27729.

In the NPRM, ATF explains that its longstanding approach is to examine the degree of completeness in determining whether the item is a firearm subject to the GCA controls. Of course, this will vary depending on the model of the firearm, but the rule, ATF explains, is that an unregulated piece of metal, plastic, or other material becomes a regulated frame or receiver when it has “reached a critical stage of manufacture.” NPRM at 27729.

Understandably, there has been a lot of confusion and uncertainty in industry and elsewhere about where this critical line is drawn, and until now ATF has not published a standard to aid industry and the public, other than private classification rulings. So, with this NPRM, ATF aims to clarify when the “critical stage of manufacture” occurs making the article a regulated “frame or receiver.”

Recall from Part I of this series, ATF’s proposed revisions to the definition of “frame or receiver” include four “supplements” (labeled as paragraphs (a), (b), (c), and (d) within the definition). Each of these “supplements” is intended to further explain the meaning of the term for certain firearm designs and configurations. Supplement (c) was drafted for “partially complete, disassembled, or inoperable frame or receiver,” and explains that a controlled “frame or receiver” includes one that “has reached a stage in manufacture where it may readily be completed, assembled, converted, or restored to a functional state.”

To determine this status, “the Director may consider any available instructions, guides, templates, jigs, equipment, tools, or marketing materials.” The draft regulation goes on to state that the phrase “partially complete” as it modifies “frame or receiver” means “a forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it is clearly identifiable as an unfinished component part of a weapon.” NPRM at 27746.

But this is not the only definition to contain “readily.” ATF also proposes revising the regulatory definition of “firearm” and broadening the scope of that term to include certain parts kits.

“Firearm”

Currently, the regulatory definition of “firearm” at 27 C.F.R. § 478.11 mirrors the statutory definition:

“Firearm. 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; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; or any destructive device; but the term shall not include an antique firearm. In the case of a licensed collector, the term shall mean only curios and relics.”

In the NPRM, ATF proposes adding the following language at the end of the definition: “The term shall include a weapon parts kit that is designed to or may readily be assembled, completed, converted, or restored to expel a projectile by the action of an explosive. The term shall not include a weapon, including a weapon parts kit, in which each part defined as a frame or receiver of such weapon is destroyed.” NPRM at 27741 (emphasis added). Note that ATF’s fourth proposed supplement (supplement (d)) to the definition “frame or receiver” addresses what constitutes a “destroyed frame or receiver,” and this also incorporates “readily” (“the term ‘destroyed’ means permanently altered and “may not readily be assembled, completed, converted, or restored to a functional state.”). NPRM at 27746.

Readily and the NFA

In addition to all the impacts “readily” will bring under the GCA, the term will also be incorporated into the National Firearms Act (NFA) implementing regulations at 27 CFR Part 479. The term “frame or receiver” will also be updated in Part 479 to mirror that of Part 478. Under the NFA, the definition of “machinegun” includes 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, as well as any “frame or receiver” of any such weapon.

As with the GCA, because of the concept of something being readily restored to be a machinegun under the NFA, how ATF interprets “readily” is of critical importance.

As the statutory definition of “firearm” necessarily remains unchanged without congressional action, ATF’s justification and reasoning for expanding the regulatory definition hinges on “readily” and the case law interpreting the terms “may readily be converted to expel a projectile” in 18 U.S.C. 921(a)(3)(A) and “can be readily restored to shoot” in 26 U.S.C. 5845(b). NPRM at 27730 and n. 58.

The Problem of Ghost Guns

The term “ghost guns,” or privately made firearms (‘‘PMFs’’) as the NPRM calls them, refers to the firearms unlicensed individuals make that are not serialized or marked with any identifying information, either from kits, 3D printers or other standalone parts. The NPRM addresses these firearms by revising the definition of “frame or receiver” (see above, primarily the supplement for partially complete, disassembled, or inoperable frame or receiver) and revising the regulatory definition of “firearm” to include a weapon parts kit that is designed to or may readily be assembled, completed, converted, or restored to expel a projectile by the action of an explosive.

A key part of the NPRM in addition to the definition changes is the prosed new marking requirements that would revise 27 C.F.R. § 478.92. Specifically, this rule proposes to amend § 478.92 to require FFLs acquiring PMFs to mark, or supervise the marking of, the same serial number on each frame or receiver (as defined in the proposed rule) of a weapon that begins with the FFL’s abbreviated license number (first three and last five digits) as a prefix followed by a hyphen on any ‘‘privately made firearm’’ (as defined) that the licensee acquired (e.g., ‘‘12345678–[number]’’).

The NPRM explains that “PMFs acquired by licensees on or after the effective date of the rule would need to be marked in this manner within seven days of receipt or other acquisition (including from a personal collection), or before the date of disposition (including to a personal collection), whichever is sooner. For PMFs acquired by licensees before the effective date of the rule, licensees would be required to mark or cause them to be marked by another licensee either within 60 days from that date, or before the date of final disposition (including to a personal collection), whichever is sooner. With respect to polymer firearms, including those that are produced using additive manufacturing (also known as ‘‘3D printing’’), the method of marking would typically require the licensee to embed (or use pre-existing) metal serial number plates within the plastic to ensure they cannot be worn away during normal use.” NPRM at 27732.

ATF argues that this is necessary to allow ATF to trace all firearms acquired and disposed of by licensees, prevent illicit firearms trafficking, and provide guidance to FFLs and the public with respect to PMF transactions with the licensed community. ATF goes on to cite as support for the need to mark PMFs the advances in technology that allow unlicensed persons easily to produce firearms at home from parts ordered online, or by using 3D printers or personally owned or leased equipment.

ATF does note that nothing in this rule would restrict persons not otherwise prohibited from possessing firearms from making their own firearms at home—without markings—solely for personal use (not for sale or distribution) in accordance with Federal, State, and local law. The new proposed marking requirements would only be triggered if the firearm was transferred to an FFL, for whatever reason. So, there will still remain a subset of PMFs that will go unmarked.

It is important to remember that this is a proposed rulemaking, and ATF will accept public comments through August 19, 2021. By the time the comment period closes, it is quite likely more than 100,000 will be submitted (as of the date of this writing (June 18, 2021), more than 61,000 comments have been submitted). In addition, ATF has another NPRM that was recently released addressing the factoring criteria for classifying pistols with stabilizing arm braces. I will address this other NPRM in my next article. While an agency is not required to finalize a proposed rulemaking, given the current administration and the prevailing political winds in Washington, I expect ATF will finalize both NPRMs in short order. As always, I will keep you posted.

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, D.C. (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 (http://fairtradegroup.org). Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.

This article first appeared in Small Arms Review V25N7 (August-September 2021)

By Johanna Reeves, Esq.

In the days leading up to the holidays, the ATF published a public notice of proposed guidance detailing the objective features it considers when classifying firearms with stabilizing braces. Objective Factors for Classifying Weapons with Stabilizing Braces, Docket No. 2020R-10, 85 Fed. Reg. 82516 (Dec. 18, 2020) (the “Notice”). The stated reason for the publication was “to inform and invite comment from the industry and public on the proposed guidance,” a rare move for the ATF. The comment period was not set to close until January 4, 2021, but several days ahead of this date the ATF unexpectedly withdrew the guidance without explanation.[1] Despite the early withdrawal, the Notice generated a lot of public interest with more than 73,000 comments flooding the agency (over 7,000 of these comments are available for public viewing at www.regulations.gov/docket?D=ATF-2020-0001). So why did the ATF withdraw the Notice, and what does the withdrawal mean for industry? We’ll examine those questions, but first let’s review the proposed guidance.

ATF Classification Process

The Notice begins with background information on the firearm classification process of the Firearms and Ammunition Technology Division (FATD) of the Office of Enforcement Programs & Services. FATD is made up of two branches: an industry services branch and a criminal branch. The Firearms Technology Industry Services Branch (FTISB) supports the firearms industry and the public by responding to technical inquiries and by testing and evaluating firearms submitted for classification as to their regulation under the Gun Control Act of 1968 (GCA) and the National Firearms Act (NFA). The Firearms Technology Criminal Branch issues firearm classifications in response to requests from law enforcement or pursuant to an investigation.

The Notice explains that when evaluating a firearm, FATD “examines its overall configuration, physical characteristics, objective design features that are relevant under the statutory definitions of the GCA and NFA, and any other information that directly affects the classification of a particular firearm sample” (Notice at 82517). However, each classification determination pertains only to the specific firearm evaluated “because variations in submissions, applicable statutes, judicial interpretations of these statutes, the manufacturer’s or maker’s intent, and the objective design features supporting that intent, make the general applicability of any particular classification exceedingly rare.” Ibid. The ATF holds to this rule even though firearms may appear to have similar features.

The Notice acknowledges that the law does not require either industry or the public to submit firearms to the ATF for classification. However, the GCA and the NFA define firearm differently, so determining whether a particular weapon is subject to the GCA or the NFA depends on the ATF’s classification, and courts will often defer to the ATF’s technical expertise and statutory interpretation. Consequently, “FATD’s classifications of a particular firearm allow industry members to plan, develop, and distribute products in compliance with the law, thereby reducing their risk of incurring criminal or civil penalties, or the potential for costly corrective actions, including a possible recall by the manufacturer” (Notice at 82517).

According to the Notice, the procedures FATD follows with voluntary submissions to the FTISB (industry and public submissions, not law enforcement) “ensure accuracy in classifying firearms.” First, classification is assigned to a Firearms Enforcement Officer (FEO). The FEO’s evaluation may include disassembly, test-firing or other processes necessary to determine whether the firearm falls under the NFA, GCA or is a “defense article” subject to the permanent import provisions of the Arms Export Control Act.

The FEO produces a draft report which describes the steps taken in the evaluation, the FEO’s analysis and conclusions. Because the draft report is subject to “peer review” by another qualified FEO, the Notice explains that “[n]o classification will depend upon the physical attributes of a particular FEO … as all FEOs apply the evaluation factors objectively, not subjectively, based on the objective features of the submission that demonstrate … the design of the weapon and the intent of the maker or manufacturer” (Notice at 82519).

After the FEO review, the classification is reviewed by the FTISB Chief to further ensure consistency. Presumably the Chief’s review is a paper review of the report itself rather than a physical examination of the firearm.

The Objective Design Features

The Notice lists several features the ATF may take into consideration when evaluating a firearm. These are as follows:

• The type of firearm and caliber – According to the ATF, a large-caliber firearm that is impractical to operate with one hand because of recoil or other factors, even with an arm brace, is likely to be considered a rifle or shotgun.

• The weight and length of the firearm – Like the type and caliber factors above, the ATF will likely consider a firearm that is so heavy to be impractical to fire or aim with one hand to be a rifle or shotgun.

• Length of pull – The ATF interprets the ‘‘length of pull’’ to mean the distance from the trigger to the point at which a stock meets the shoulder. The ATF explains in the Notice that because an arm brace need only reach the forearm, the distance between the trigger and the back of the brace is generally expected to be shorter than the distance between the trigger and the back of a stock on a weapon designed and intended to be fired from the shoulder. “If a brace is of a length that makes it impractical to attach to the shooter’s wrist or forearm, then that may demonstrate that it is not designed as brace but rather for shoulder fire” (Notice at 82518).

• Objective design features – The Notice lists design features of the brace itself: (i) comparative function of the attachment when used as a brace compared to its alternate use as a shouldering device; (ii) design of the brace compared to known shoulder stock designs; (iii) the rear contact surface area that can be used in shouldering the firearm compared to surface area necessary of use as a brace; (iv) material of the brace—whether the brace is designed and intended to be pressed against the shoulder for support or used on the arm; (v) whether there are any shared or interchangeable parts with known shoulder stocks; (vi) any feature of the brace that improves the firearm’s effectiveness from the shoulder-firing position without providing a corresponding benefit to the effectiveness of stability and support provided by the brace’s use on the arm.
• Aim point – When using the brace, if the aim point results in an upward or downward trajectory affecting accuracy, the ATF believes this could indicate the attachment was not designed as a stabilizing brace.

• Presence of a secondary grip, scopes and other accessories – Any attachments that indicate to the ATF that the firearm is not a “pistol,” because it is not designed to be held and fired by one hand. For example, scopes that provide eye relief incompatible with one-handed firing may indicate to the ATF that the firearm is not a pistol because the sights or scopes are designed to be used from a shoulder-fire position.

The Notice explains that the listed factors are based on known stabilizing braces and similar attachments, but no single factor or combination of factors is necessarily dispositive because “FATD examines each weapon holistically on a case-by-case basis” (Notice at 82518). Further, the list is not exhaustive because the ATF reserves the option of identifying other factors if relevant to a weapon’s classification, with the ATF having the sole authority to determine what factors are relevant.

The Impact of ATF’s Withdrawal of Guidance

The ATF’s stated purpose behind publishing the Notice is to ensure the public is informed of the “objective features” when considering the making or purchasing of a firearm. “FATD’s classifications allow industry members to plan, develop and distribute products that comply with the law and thereby reduce their risk of incurring criminal or civil penalties, or potentially costly corrective actions, including a possible recall by the manufacturer” (Notice at 82517). Then why did the ATF withdraw this Notice less than a week after publishing it? More importantly, what effect, if any, does the withdrawal have on industry?

The “Withdrawal of Guidance” publication offers no insight into why the ATF did this about-face, other than to cite to its consultation with the Department of Justice and the Office of the Deputy Attorney General. See 85 Fed. Reg. 86948 (Dec. 31, 2020). Regardless, there can be little doubt that the methods and procedures described in the Notice remain in effect regardless of the withdrawal. As an ATF official stated during a recent virtual webinar, the Notice “describes what actually happens.” To that end, it would be a mistake to ignore the Notice even though the ATF technically withdrew it.

However, what may be impacted is how the ATF will deal with current possessors of firearms with stabilizing braces that the ATF determines are subject to the NFA. In the Notice, the ATF explained that there has been widespread “misunderstanding” among industry that a pistol with a stabilizing brace would always be a treated as a pistol. As this is not always the case, because the ATF may classify a braced firearm as being an NFA-controlled rifle or shotgun, the Notice announces the ATF’s plan for persons who acquired affected stabilizer-equipped firearms believing in good faith that those firearms were not subject to the NFA.

As described, the plan would allow affected persons to either: (i) register the firearms, including expedited processing of registration applications and retroactive exemption from the NFA tax, as long as the firearms were made or acquired prior to the publication of the Notice; (ii) permanently remove and dispose of the stabilizing brace; (iii) replace the barrel with one that is at least 16 inches or greater for a rifle, or at least 18 inches for a shotgun; (iv) surrender the firearm to the ATF; or (v) destroy the firearm.

Now that the ATF has withdrawn the Notice, the greatest impact may very well be on the compliance plan and remedial steps described in the Notice. Under a Biden Department of Justice, how likely is it that the ATF will allow affected persons to retroactively register a stabilizer-equipped firearm that the ATF determines is subject to the NFA?

As of the date of this writing (end of January 2021), the ATF has not released anything official since the withdrawal of its guidance relating to the stabilizing brace issue. This brings no comfort to those in industry who bear the scars of ATF discretion. The issue is open and unsettled. We shall see what tomorrow brings.

***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 (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 (fairtradegroup.org). Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.

[1] ATF first posted the withdrawal Notice on its website on December 23, 2020 (sb-criteria-withdrawal-notice-12-23-20.pdf | Bureau of Alcohol, Tobacco, Firearms and Explosives (atf.gov)), but the official withdrawal date is December 31, 2020, as this is when it appeared in the Federal Register (available at www.federalregister.gov/documents/2020/12/31/2020-28930/objective-factors-for-classifying-weapons-with-stabilizing-braces-withdrawal-of-guidance).

H.R. 1 gave them the roadmap … COVID-19 gave them the excuse.

BY JOHANNA REEVES, ESQ.

Did you know that the first bill introduced on the House floor for the 116^th Congress (2019–2021) addressed voter access, election integrity and election security? The bill, “to expand Americans’ access to the ballot box, reduce the influence of big money in politics and strengthen ethics rules for public servants … ” sounds commendable, as most bills do; however, as citizens it is our duty to look beneath the covers and stay informed on what our government is really doing. Unfortunately, we did not pay enough attention to H.R. 1. If we had, we might have foreseen what was going to happen in the weeks and months leading up to November 3, 2020.

John Sarbanes, a Democrat representative for Maryland’s Third Congressional District, introduced the bill titled, “For the People Act of 2019” on January 3, 2019. The bill had a total of 236 co-sponsors, all Democrats. A mere 57 days later, the bill passed easily in the House straight down party lines with 234 Democrats voting Yea and 193 Republicans voting Nay. Five representatives did not vote, four of whom were Republicans: Mike Rogers, AL 3^rd; Eric Crawfod, AR 1^st; Neal Dunn, FL 2^nd; and Steve Stivers, OH 15^th.

H.R. 1 is a monstrous bill. At 706 pages, the bill is organized into three divisions addressing election access, campaign finance and ethics. Just the list of contents (including 10 titles, each divided into subtitles and numerous parts) is comprised of more than 3,600 words, which far exceeds the word limit for this article. The bill is further complicated because much of the text amends existing statutes, such as the National Voter Registration Act of 1993 (52 U.S.C. 20501 et seq.) and the Help America Vote Act of 2002 (52 U.S.C. 21081 et seq.). With bills like this, no wonder most Americans have become apathetic to our democratic processes and our government operations.

According to the Congressional Research Service (CRS), the For the People Act of 2019 “expands voter registration and voting access and limits removing voters from voter rolls.” But it is incumbent on us, the citizenry, to ask how this bill would achieve these ends if it were passed. In short, H.R. 1 would expand the federal government’s authority to dictate the way states conduct elections, including voter registration, early voting and voting by mail, regardless of current state law or the intent of the respective legislatures.

The bill is divided into three main parts, or “Divisions:” Division A, Election Access; Division B, Campaign Finance; and Division C, Ethics. For this article, I will focus on Division A, Election Access.

Division A, Election Access

I. Voter Registration Modernization

H.R. 1, Division A opens with a powerful policy statement, which states in part, “It is the policy of the United States that all eligible citizens of the United States should access and exercise their constitutional right to vote in a free, fair and timely manner.” To expand election access, H.R. 1 focuses primarily on “modernizing” voter registration by requiring states do the following: (1) accept online registrations through the internet; (2) establish and operate an automatic registration system; (3) permit same-day registrations; and (4) accept registration applications from individuals as young as 16 years old. H.R. 1 also offers financial incentives to states that increase involvement of individuals under 18 in public election activities and restricted the ability of states to remove voters from the official list of eligible voters.

[ADAM–ITAL SUBHEADINGS A & B]

         A. Online Voter Registration

H.R. 1 would amend the National Voter Registration Act of 1993 by adding a new section devoted to internet registration. Under this section, each state would have to make available the option to complete and submit voter registration applications through the internet. The individual registrant must meet the same voter registration requirements applicable to mail-in registrants, including age and signature requirements. However, if an online registrant is unable to meet the signature requirements, H.R. 1 requires the state to permit the online registration and allow the individual provide a signature at the time he or she requests a ballot. The bill also requires states to treat those who register online in the same manner as those who register by mail.

         B. Automatic Voter Registration

H.R. 1 would establish the “Automatic Voter Registration Act of 2019.” Finding that the right to vote is a fundamental right of citizens and that it is the responsibility of the state and federal governments to ensure every eligible citizen is registered to vote, the bill would require states to establish and operate automatic registration systems. Such automatic registration would be accomplished by a “contributing agency,” electronically transferring information necessary for registration to state election officials. As the title implies, the process would ensure automatic registration, unless the individual affirmatively opts out from such automatic registration.

The “contributing agencies” would include state agencies that control licensing or registration functions, such as the motor vehicle authority, administrator of social security or the Affordable Care Act, regulators of private possession of firearms and the agency responsible for maintaining enrollment information for the public secondary schools (see below regarding the bill’s lowered registration age to 16). Federal agencies may also be contributing agencies, including the Social Security Administration, the Department of Veterans Affairs, the Center for Medicare and Medicaid Services and the Bureau of Citizenship and Immigration Services (only with respect to individuals who have completed the naturalization process).

H.R. 1 prescribes a process whereby each contributing agency would transmit to the chief state election official the information for each individual registered in the contributing agency’s records. The chief state election official would then identify all eligible individuals who are not already registered to vote and then “promptly” send each identified person a notification along with an explanation that the registration is voluntary but will be automatic unless the individual declines the registration. The notification would also instruct the individual to decline registration if he or she is not qualified to vote.

The bureaucratic safeguards may look good on paper, but how effectively can they be implemented? The automatic registration process outlined in H.R. 1 reminds me of the penultimate scene in “Finding Nemo” when Dori is scooped up in a huge fishing net designed to capture everything in its path. The automatic registration requirement set forth in H.R. 1 is in fact a catch-and-release process that could open the door for widespread fraud.

II. Voting Opportunities

In addition to expanding voter registration, H.R. 1 seeks to increase voting opportunities by mandating early voting (to begin at least 15 days prior to and continue to the date of election) and voting by mail. I will focus on the latter, as we saw most states implemented some form of this blueprint due to the COVID-19 pandemic (five states required voters to provide a reason other than COVID-19 to vote by mail: Indiana, Louisiana, Mississippi, Tennessee and Texas).

H.R. 1 requires all states to allow eligible individuals to vote by mail upon request, as long as the state can verify the identification of the voter by comparing the signature on the ballot with the signature on the official list of voters in the state. Although H.R. 1 permits the state to adopt its own procedures for validating signatures, it prohibits any election official from determining that a discrepancy exists between signatures unless: (i) at least two election officials make the determination; and (ii) each official who makes the determination has received training in procedures used to verify signatures. If an election official does determine that a discrepancy exists between the signature on the mail-in ballot and the state list of registered voters, then the election official must make a “good faith effort” to immediately notify the individual and give that individual an opportunity to cure the discrepancy.

H.R. 1 also requires each chief state election official to file a report with Congress providing: (i) the number of ballots invalidated due to a discrepancy; (ii) a description of the attempts to contact voters to provide notice of the discrepancy; and (iii) a description of the cure process developed by the state, including the number of ballots validated as a result of the cure process.

It is interesting to see how the liberal-leaning news outlets presented the H.R. 1 bill back in 2019. NPR’s headline on January 5, 2019, read, “House Democrats Introduce Anti-Corruption Bill as Symbolic 1^st Act” (npr.org/2019/01/05/682286587/house-democrats-introduce-anti-corruption-bill-as-symbolic-first-act). When the House Democrats passed H.R. 1, Brian Pascus of CBS News characterized it as “a sweeping anti-corruption and voting rights bill” (cbsnews.com/news/house-passes-hr-1-sweeping-anti-corruption-and-voting-rights-legislation-today-2019-03-08, Mar. 8, 2019). Vox proclaimed in its March 8, 2019, post, “House Democrats just passed a slate of significant reforms to get money out of politics” (vox.com/2019/3/8/18253609/hr-1-pelosi-house-democrats-anti-corruption-mcconnell).

Conversely, The Heritage Foundation focused on H.R. 1’s proposed changes to the election process. In a February 1, 2019, report (“Factsheet No. 182,” available at heritage.org/election-integrity/report/the-facts-about-hr-1-the-the-people-act-2019), Heritage issued this warning:

H.R. 1 federalizes and micromanages the election process administered by the states, imposing unnecessary, unwise and unconstitutional mandates on the states and reversing the decentralization of the American election process—which is necessary for protecting our liberty and freedom. The bill interferes with the ability of states and their citizens to determine qualifications for voters, to ensure the accuracy of voter registration rolls, to secure the integrity of elections, to participate in the political process, and to determine the district boundary lines for electing their representative

The report identified three key takeaways:

• 1) H.R. 1 federalizes and micromanages the election process administered by the states, imposing unnecessary, unwise and unconstitutional mandates on the states.
• 2) The bill interferes with the ability of states and their citizens to determine qualifications for voters and to ensure the accuracy of voter registration rolls.
• 3) H.R. 1 reverses the decentralization of the American election process—which is necessary for protecting our liberty and freedom.

III. Roadmap for 2020 Election?

There are striking similarities between some H.R. 1 provisions and the last-minute changes made in certain states to their respective election processes because of the COVID-19 pandemic. Four states in particular, Pennsylvania, Georgia, Michigan and Wisconsin, were subject to much debate and legal challenges after the election because of alleged voting irregularities and concerns surrounding the validity of the outcome, in which Joe Biden was named the victor in all four states. Most recently, the Supreme Court rejected a complaint brought by the Attorney General of Texas against these four states. Unfortunately, the Court rejected the case based on standing (the Texas Attorney General failed to show an actionable injury) and so did not review the substance of the complaint. Nevertheless, in reviewing the facts alleged in the complaint, it is interesting to see the similarities.

In Pennsylvania, for example, Secretary of State Kathy Boockvar issued guidance on September 11, 2020, that the election code does not authorize the county board of elections to set aside mail-in ballots based solely on signature analysis. This guidance, which was contrary to law, was part of a settlement agreement with the League of Women Voters of Pennsylvania and others, who sued Secretary Boockvar and other local election officials seeking a declaratory judgment that Pennsylvania’s existing signature verification procedures for mail-in voting were unlawful.

In Georgia, the Democratic Party of Georgia filed suit against the Secretary of State Raffensperger, which also resulted in a settlement agreement. The agreement materially changed the requirements under the Georgia Code for verifying signatures on mail-in ballots and made it much more difficult to challenge a defective signature. The process mandated by the settlement agreement required that before a ballot could be rejected, the election official who discovered a defective signature would have to seek a review by two other officials, and only if a majority of the officials agreed that the signature was defective could the ballot be rejected. Sound familiar?

In Michigan, Secretary of State Jocelyn Benson launched a program in June 2020 that allowed absentee ballots to be requested online without signature verification.

We have all heard the emotional outcries condemning the 2020 election. What we have not heard about is how H.R. 1 may have foreshadowed what developed under the COVID-19 excuse umbrella.

After the election, Kimberley Strassel wrote an opinion piece for the Wall Street Journal, titled, “Harvesting the 2020 Election” and the tagline, “Pelosi’s top priority was remaking the electoral system. The virus gave her a boost.” Wall Street Journal, November 12, 2020. In her opinion piece, Ms. Strassel points out that H.R. 1 highlighted the majority party’s top priority for the 2019–2020 legislative session. “When Mrs. Pelosi retook the speaker’s gavel in 2019, her party had just campaigned on a slew of urgent Democratic priorities: health care, climate change, immigration, student debt. None of these rose to the honor of H.R. 1.” Ms. Strassel’s piece is available at wsj.com/articles/harvesting-the-2020-election-11605221974?mod=article_inline.

As I write this, the Senate Homeland Security and Governmental Affairs Committee is holding a hearing on 2020 voting irregularities. It will be interesting to see what, if anything, comes out of this inquiry. We are at the tail end of the 116^th legislative session, and the allegations of voter fraud and irregularities made possible under the mail-in voting structure are not dying down, much to the chagrin of the Democrats and most of the media (including Fox News). But regardless of what happens with these claims, do not think we have seen the last of the For the People Act. No doubt it will be resurrected in the 117^th Congress and may very well become law.

***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 (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 (fairtradegroup.org). Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.