(May 30, 2013) The Federal Appeals Court for the 6th Circuit has rejected the appeals of George Dodson and left standing his conviction and enhanced sentence for a variety of firearms violations under the National Firearms Act. In doing so, the court has placed a number of firearm owners and their guns at serious risk by, in effect, nullifying policies of the BATF “grandfathering” certain firearms when it established that the design constituted a machinegun. The court case dealt primarily with Drop-In Auto Sears (DIAS) for AR rifles, but the conclusions are much more far-reaching.
The court’s ruling clearly defines all DIAS’s, regardless of when they were manufactured, as machineguns which, if not registered as such, are illegal to possess. The court ruling also reminds us that any de-milled machinegun that was not de-milled to BATF’s current specifications, is still a machinegun under NFA, and if not properly registered, is illegal to possess. But the most troublesome aspect of the court’s ruling is how their interpretation of laws to reach their conclusions about DIAS’s might affect other, long-standing BATF rules.
In the case of DIAS’s, BATF decided to reclassify them as machineguns back in 1981. In their ruling, BATF declared that, “[w]ith respect to the machine gun classification of the auto sear under the National Firearms Act, pursuant to 26 U.S.C. 7805(b), this ruling will not be applied to auto sears manufactured before November 1, 1981.” This was understood to mean that any DIAS made prior to November 1, 1981 was legal to sell and possess, though it was pretty well understood that it would be illegal to install one that was not registered into a gun. But according to the courts, BATF only has legal authority to exempt existing owners from tax liability, not statutory provisions of law. In other words, BATF has regulatory authority to waive excise and transfer taxes for existing owners, but has no authority to waive the law requiring that these items, which are now defined as machineguns, from statutory requirements to be registered and handled as NFA firearms.
The court raised “public safety” concerns and stated; “Automatic weapons are just as dangerous whether they were manufactured in 1981 or 2011,” then concluded, speaking of the 1986 ban, that, “The ATF does not have the ability to redefine or create exceptions to Congressional statutes, and surely cannot do so before those statutes were passed.”
This conclusion of the court is most troubling because Drop-In Auto Sears are not the only items that BATF has declared to be machineguns, but granted a “grandfather” exemption for existing units. Open-bolt, semi-auto pistols like the KG-9 and some MAC10’s were redefined by BATF to be machineguns, but declared that the ruling would not apply to guns manufactured prior to a specific date. Similarly, in the late 1950s and early 1960s, Browning, under an agreement with Fabrique Nationale, began importing FN FAL rifles as Browning Light Rifles after a determination by BATF’s predecessor agency, the Alcohol and Tobacco Tax Division, that the guns would not be classified as machineguns. But in 1963 the ATT reversed themselves and declared that the FAL/Browning Light Rifle was too easily convertible to a machinegun and was therefore a machinegun subject to the rules of the NFA. When Browning expressed concern about their customers who had already purchased these rifles, ATT promised an exemption, not only for rifles already sold, but for all of the rifles Browning had already imported into the country. Today those rifles, which originally sold for less than $200, are prized collector items and fetch prices in the range of $7000 or more.
All of these guns – and their owners – are now at risk based on this court decision. If BATF didn’t have the authority to exempt Drop-In Auto Sears, how could they have the authority to exempt FAL’s or MAC-10s? And with the freeze on the NFA Registry from the ’86 machinegun ban, it is highly unlikely that any of these guns could be registered now, so they would have to be destroyed.
I am not an attorney or an expert on NFA laws and regulations, so there is a possibility that some of my interpretations of this ruling could be incorrect. It is also possible that there are more damaging provisions hidden in the text of this relatively short decision. Since the ruling only came down yesterday, we, and several attorney’s and experts, are still digging and analyzing, but what I’ve outlined here seems pretty clear, and if I’m right, this could be a very damaging decision.
We’ll keep digging and we’ll keep you informed. You can always find the latest updates on our web site at www.FirearmsCoalition.org, where you can also sign up for our irregular email Updates and Alerts. We also have the entire decision from the 6th Circuit posted here if you'd like to read it yourself and see if you find something that I’ve missed.