Archive for the ‘26 USC 5845’ Category

Read and Comprehend

I have to admit annoyance with the ignorentia at MikeB‘s blog (I just changed that from ignorentia ad mikeB’s reluctantly since that sounded very Latin).

In particular Fatheaded White Moron who did point out something I missed in the DC’s list of guns which cannot be registered: a bayonet lug. They missed that one since I wasn’t there cribbing them on what to put in.

Anyway, since I like the idea of regulating assault weapons as machineguns, his example of an M1 Carbine would be an assault rifle in my opinion because:

In selective fire versions capable of fully-automatic fire, the carbine is designated the M2 carbine.

which places it in the 26 USC 5845 definition of a Machine gun:
Machine guns, defined as any firearm 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 M2 variant is designed to be capable of fully automatic fire, therefore, the M1 is a machinegun using that defintion.

Tough shit, you cretinous asshole.

I strongly suggest that people read the case law 26 USC 5845 in particular the law relating to “designed to shoot” and “readily restored to shoot”:

“There were two welds in the gun which obviously was, when manufactured, ‘designed to shoot.’ The barrel of the gun was welded closed at the breech and was also welded to the receiver on the outside under the handguard. Scroggie testified that there are two possible ways by which the firearm could be made to function as such. The most feasible method would be to cut the barrel off, drill a hole in the forward end of the receiver and then rethread the hole so that the same or another barrel could be inserted. To do so would take about an 8-hour working day in a properly equipped machine shop. Another method which would be more difficult because of the possibility of bending or breaking the barrel would be to drill the weld out of the breech of the barrel. United States v. Smith, 477 F.2d 399(8th Cir.1973)

In the context of the NFA and its use as a modifier describing the manner of firearm restoration, “readily” has been read to encompass several elements of restoration: (1) time, i.e., how long it takes to restore the weapon; (2) ease, i.e., how difficult it is to restore the weapon; (3) expertise, i.e., what knowledge and skills are required to restore the weapon; (4) necessary equipment, i.e., what tools are required to restore the weapon; (5) availability, i.e., where additional parts are required, how easily they can be obtained; (6) expense, i.e., how much it costs to restore the weapon; (7) scope, i.e., the extent to which the weapon has to be changed to allow it to shoot automatically; (8) feasability, i.e., whether the restoration would damage or destroy the weapon or cause it to malfunction. See S.W. Daniel, Inc. v. United States, 831 F.2d 253, 254-55 (11th Cir. 1987) (ease and scope); United States v. Alverson, 666 F.2d 341, 345 (9th Cir.1982) (expertise, ease, and scope); United States v. Smith, 477 F.2d 399, 400 (8th Cir.1973) (time and equipment); United States v. Aguilar-Espinosa, 57 F.Supp.2d 1359, 1362 (M.D.Fla.1999) (time, ease, expertise, and equipment); United States v. Seven Misc. Firearms, 503 F.Supp. 565, 573-75 (D.D.C.1980) (time, ease, expertise, equipment, availability, expense, and feasibility); United States v. Cook, No. 92-1467, 1993 WL 243823, at *3-4 (6th Cir. July 6, 1993) (availability)…

The decisions of several other courts make clear that the Defendant weapon, which would require, according to Alverson’s own expert, a maximum of six hours to convert to fire automatically, “can be readily restored” under the NFA. The Eighth Circuit held that a semiautomatic rifle that would take an eight-hour working day in a properly equipped machine shop to convert to shoot automatically qualified as a “machinegun” under the NFA.10 Smith, 477 F.2d at 400; cf. United States v. Shilling, 826 F.2d 1365, 1367 (4th Cir.1987) (holding that disassembled guns that could be made to shoot automatically were “readily restor[able]”); S.W. Daniel, Inc., 831 F.2d at 254-55 (upholding the use of a jury instruction defining a machinegun as “those weapons which have not previously functioned as machine guns but possess design features which facilitate full automatic fire by simple modification or elimination of existing component parts”); Alverson, 666 F.2d at 345 (concluding that an automatic weapon that was converted to fire semiautomatically prior to its sale to defendant could be “readily restored” where it could be modified to shoot automatically by filing down one of its parts); United States v. Lauchli, 371 F.2d 303, 312-13 (7th Cir.1966) (in a case prior to the addition of the “can be readily restored” language to the NFA, deciding that weapons requiring assembly to shoot automatically were machineguns under the NFA). U.S. v. One TRW, Model M14, 7.62 Caliber Rifle, 441 F.3d 416(2006)

There’s readily restorable for you!

And why I have a job.

Additionally, some people obviously haven’t read the DC v. Heller decision, in particular page 54. They could also do with reading footnotes 23 and 26. Heller did not get rid of firearms regulations. In fact, I have pointed out that Dick Heller was denied a permit for one of his guns. The DC Metropolitan Police notes on its website that: “about 50 applications to register handguns have been denied since the Heller decision”.

Of course, these people don’t read things or footnotes, unless of course, they are Michael Bellesiles footnotes! Then they rip them apart.

Another point, the “civic right” interpretation of the Second Amendment is not dead as Justice Steven’s dissent provides hope for its revival. The Heller decision is “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”. Stevens also stated that the amendment was notable for the “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense” which was present in such documents as the Declarations of Rights of Pennsylvania and Vermont.

So, there is still hope.

Just curious

I was curious about how one registers a firearm in Washington, DC post-Heller. The Metropolitan Police has an online brochure and a website.

How Do I Register a Firearm in the District?
To register a fiream, residents must report to the Firearms Registration Section of the Metropolitan Police Department, located at 300 Indiana Avenue, NW. The application process may take up to 14 days. The cost for registering each firearm is $13, plus $35 to process fingerprints and $12 for test-firing the weapon.
Applicants must:
–Be 21 years of age
–Complete a firearms application
–Bring proof of residency (e.g., D.C. Driver’s License)
–Bring two (2) passport-sized front facing photos
–Be fingerprinted
–Pass a 20-question multiple choice test
–Complete a notarized firearms eligibility statement

And

WHAT TYPES OF FIREARMS CAN I REGISTER?
Shotguns, rifles, and handguns — which includes revolvers and semi-automatic handguns with a maximum capacity of 10 rounds. However, a shotgun barrel cannot be less than 20 inches in length, and a rifle barrel cannot be less than 16 inches in length and must have a total overall length of 26 inches or more.
WHAT TYPES OF THINGS WOULD CAUSE ME TO BE DISQUALIFIED FROM BEING ABLE TO REGISTER A FIREARM?
To qualify for registration of a firearm in the District of Columbia, you must meet all of the following criteria. You:
1. Must not stand convicted of a crime of violence, or have any prior weapons offenses.
2. Must not be under indictment for a crime of violence or weapons offense.
3. Must not stand convicted within the past five years for a narcotics or dangerous drug offense, threats to do bodily harm or for assault.
4. Must not have been acquitted of any criminal charge by reason of insanity or adjudicated as a chronic alcoholic by any court within the past five years.
5. Must not have been voluntarily or involuntarily committed to any mental hospital or institution within the past five years.
6. Must not suffer from a physical defect which would make it unsafe for you to possess and use a firearm safely and responsibly.
7. Must not be found negligent in any firearm mishap causing death or injury to another human being.
8. Must not be convicted of any felony, or prostitution-related offense.

BTW, DC uses the 26 USC 5845 definition of a Machine gun:
Machine guns, defined as any firearm 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.
(D.C. Official Code § 7-2501.01(10))

then they cover their asses with this cannot be registered:

(IV) A semiautomatic, rifle that has the capacity to accept a detachable magazine and any one of the following:
(aa) A pistol grip that protrudes conspicuously beneath the action of the weapon;
(bb) A thumbhole stock;
(cc) A folding or telescoping stock;
(dd) A grenade launcher or flare launcher;
(ee) A flash suppressor; or
(ff) A forward pistol grip;

Somehow they missed bayonet lug in this list.

Well,someone agrees with me!

Yet another assault weapon ban comment

Quick, quick: who was responsible for the Assault Weapon Ban and how did it happen? Yeah, it’s a trick questions,

My standard comment about the best way to ban or regulate “assault rifles” was to consider them machineguns citing the Federal Definition of a machinegun (26 USC 5845(b)):

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. 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.

The designed to shoot, or can be readily restored to shoot language makes pretty much every semi-automatic firearm on the market a machinegun! This is because “designed to shoot” can include weapons such as the British L1A1-SLR, which was never made with fully automatic capability, but because it is an FN-FAL varient (whichwas designed to fire in full-auto mode) is considered a machinegun by BATF! Likewise, this would include things such as the H&K 94, the semiauto civvy version of the MP5.

DC’s law uses the fact that a firearm can use a magazine with a capacity of over 11 shots to make it a prohibited weapon.

The other fun bit is the “can be readily restored to shoot” language. U.S. v. Oakes, 564 F.2d 384 (10th Cir 1977) is a case where a machinegun with a welded barrel was considered “readily restorable to shoot”. There is another case out there where “readily restorable to shoot” was taken to mean required 48 hours of labour with a special tool! I can’t find the case, but I am sure someone with a law library and time could do that research.

Likewise, you can find full auto-conversion manuals out there for various semi-auto firearms. While you would be a fool to want a full auto-version and I am not sure I would recomend these conversions, the manuals do exist. Such manuals are proof that these weapons are “readily restorable to shoot”.

I forgot to add that it is impossible to deactivate firearms (render inoperable) under federal law because of the arcane definition of readily restorable. The US requires that 1/4″ cuts are made in the receiver: making them useless to the collector. British law is getting tighter on this since the Jill Dando slaying.

So, taking my question at the beginning: President George HW Bush created the “Assault Weapons Importation Ban” with an executive order in March 1989 as a reaction to the Cleveland Elementary School mass shooting in Stockton, California, United States.

Future post in this series: why are US gun laws becoming laxer?