A Word to the Wise
By Dan Shea
Twenty some years ago, when I had been out of the US Army for several years, my interests in machine guns was re-kindled by the discovery that civilians in the United States could own them. I was amazed, intrigued, and finally focused on the idea that “I” could have my own personal M16 rifle. I didn’t even have to join the Army again, I could just “own” it, and shoot when I wanted to. Not for any serious reason either. Like most red-blooded American boys, I didn’t want to hurt anyone, I just liked things that went “Boom”. It’s one of our national sports. Kids with bottle rockets, cherry bombs, Hell, even cherry bomb mufflers on the cars. Loud. Lots of flame. Concussions you can feel in your belly. Combine that with our other national sport of trying to hit targets at extreme ranges, and you have a cross-bred, dyed in the wool, fifty caliber machine gun shooter.
I went through a period of discovering everything class 3, obsessing at various times on silenced weapons, Thompsons, Maxim Guns, pen guns, short shotguns, machine pistols, etc. During the course of those early years of playing around, something became horrifyingly clear. The laws about Class 3 were misleading. Time after time I watched small dealers or friends who were “playing” with Class 3 items get raided, prosecuted, and have their lives in turmoil because of an MP-40 they bought, or a suppressor they made.
There were minefields of regulations to contend with, and the consequences of violating them were severe. I have supplied private detectives, federal agencies, foreign governments, small police departments, big police departments, and thousands of American citizens with class 3 type firearms and ammunition. In that period of time, I have seen some of my contemporaries go to jail, or just go through long painful periods of government intrusion on their lives. Most of this could have been avoided by a good, solid adherence to the law. The problem is that many times those laws and regulations are so obscure and hard to determine the reality of, that it is virtually impossible to stay in compliance. You can “think” you are in compliance, only to find that the government “thinks” you are not! I can name three prominent Class 3s who had years of problems with the federal government because they got a determination IN WRITING, from the local Bureau of Alcohol, Tobacco, and Firearms region. They then acted on the letter, and Washington later over-ruled the regional office which left the dealers in violation.
While this may sound insane on the face of it, Orwellian at the very least, it is nonetheless the world we Americans live in. I understood this. I tried as hard as I could to understand the rules and regulations that are in place, and how to work with them. For many years it has been my personal goal to try to foster a system of communication between the firearms owning public, and the agency that regulates them. This is not a megalomania or messiah complex- I have been trying to cover my own butt as much as anyone else. This led to the Machine Gun Dealer’s Bible.
I wanted to take a moment to speak with the readers of SAR about “Why” we have the problems that we do with regulations. These are my opinions, and you can take that for what it is worth. Here they are:
Number One: This is the big enchilada. The gun laws in the United States do not make any sense because they are NOT the laws that the writers intended to write. Sound strange? It’s not really. The people who wrote the firearms laws in 1934, 1968, etc, intended to ban certain classes of firearms. Since they were not allowed to (I’ll get into that in a moment), they wrote prohibitive regulations.
What the hell does that mean? Well, here are several examples that might explain it:
Example A. In 1934, our representative government in Washington DC decided to BAN machine gun ownership by civilians. The lawyers stepped in (In this case an Attorney General and a Supreme Court judge) and advised that, “No, you can’t ban a firearm under the Second Amendment of the Constitution, but you CAN tax it, and in the process, collect a “registry notation”. That is the root of the National Firearms Act Registry that we have today. No one wanted to “Tax” a firearm, they wanted to ban them and not being able to, they opted for making the ownership very expensive and difficult. Maybe now the insanity of that process is a little clearer in your mind. It’s not about taxes, it’s about banning ownership by circumventing the Constitution. Harsh words? Not really. The truth is, no matter how odd, still the truth. This is why NFA ownership is a “tax issue”- citizens were persecuted for not paying the “making tax” on NFA firearms that are not in the Registry.
Example “B”. In 1994, our representative government in Washington DC decided to BAN the newly defined class called “high capacity magazines”. The ramifications of this were staggering to the legal minds on both sides of the issue. Don’t think for a moment that the so-called champions of the First and Fifth Amendments weren’t carefully watching this assault on private property. The end result? Strong language was passed that restricted newly manufactured High Capacity Magazines from private ownership. If a magazine was manufactured before September 1994, it could be legally owned. Now the INTENT of the anti-firearms people who wrote this was to stop the ownership- but the LANGUAGE they used clearly said, Manufactured after. This meant that magazines outside of the United States that were manufactured Before the date were legal for US citizens to own- so the importation battle started. The agency in charge received it’s marching orders from the Clinton administration- stop all importation of these High Capacity magazines, but the agency’s mandate comes from the law, and they eventually had to allow the importation. This doesn’t make sense, unless you realize the intent of the writers was to “ban” the magazines. The hodge podge of nonsensical regulations we have to deal with today are the result.
Example “C”. Assault Rifles - This one really makes people’s blood boil. Here’s the truth. Our representative government in Washington DC wanted to ban the things that they perceive as “Assault Rifles”. I say it that way, because the thing that they are afraid of is any semi-automatic firearm that looks military. They want to ban scary looking guns. We who know firearms know how ridiculous this is, but no one asked us. They just said: “We have to end this danger”. These people do not understand the firearms they are talking about, and they defined the assault rifles by certain secondary characteristics. Kind of like defining a man by whether he grows a beard, or wears blue jeans and flannel shirts. Shave him and put him in a Tuxedo. Now what is he? Just a clean shaven man in a Tux. The distinctions here are lost on the virulent anti- Second Amendment fanatics. They want to BAN firearms, and since they CAN’T do it without opening massive holes in the Constitution, they use regulations. As soon as the ban was passed, we looked at it and said “Hmmm, the thing that is being banned is a combination of threaded barrels, pistol grip stocks, bayonet lugs, flash hiders, and high capacity magazines. So if we remove those, we can still have our semi-automatic rifles”. And- we proceeded to do so… MAK-90’s, FAL’s, AR’s, you name it, and it’s still legal. We are accused of Going around the law. I heard the figurehead of the anti-Second Amendment fanatics, our beloved President, make that point “The manufacturers are just going AROUND the law”. Hell, no, we’re just trying to COMPLY with the law. You people wrote it. We try and comply, and because you don’t understand the subject- it’s OUR fault? I don’t think so..
There are countless examples of the above, and not just about firearms either. That subject is the one that is at hand, so we will stay on it. Remember this: the Constitution will not allow them to write the laws they wanted to, so the laws that are written are circuitous and lacking in common sense.
NUMBER TWO: Here’s where the trouble really gets serious. The agency that is given the job of enforcing these laws must interpret them over the entire country, covering the actions of 300 million people who live in diverse and mutually exclusive cultures. They must do so while trying to enforce the will of the people who write their budgets, and while adhering to the letter of the law as it is written. Interpretation goes absolutely wild when the people at the top (Presently the Clinton Administration) are violently anti-Second Amendment. Clinton and his people want to “ban” firearms. It’s an obsession. The directives that are sent down to the BATF usually take little account of what is Constitutional and what is not.
This leaves the ATF in an uncomfortable position. How do you rectify the law with the desires of the higher ups who have a conflicting agenda? It usually involves alot of smokescreen behavior. Some true believers will try to do anything that will get rid of firearms and firearms dealers, but the majority of the BATF employees are just trying to do a job that has unfortunately been politicized.
A series of rulings by the BATF, and the efforts of people to either comply or circumvent these rulings has led to a Labyrinth of regulation that puts most gun owners (and dealers in particular) in peril. Each court case or regulation sets precedents. Further interpretations by the agency can seem totally disconnected from the Constitution or even the law as written. This is because they have to keep a consistency with the regulations or court cases start coming apart at the seams. If one district rules that a machine gun receiver is complete at a certain point, and that it must be taxed and registered, then the BATF must try to keep the same policy in each case it works on. Since the government will no longer accept the making tax on a new machine gun, this becomes a VERY important issue. Now there are people who sell “Less than 80% complete machine gun receivers” and are considered In compliance, because the receivers are not yet machine guns by law. To a law enforcement person, (who is sworn & charged with stopping the spread of unregistered machine guns) this is blatantly “thumbing the nose”. If you could take the emotions out of the issue, there would be little problem. However, there are always people who push the envelope - if it’s legal, they do it. The borderline area is where most clashes occur.
NUMBER THREE: There was never any effort on the part of the American public to create a system of “car trunk” and “kitchen table” Federal Firearms Licensees. This system was entirely created by the United States government, through the 1968 Gun Control Act and the ensuing years of enforcement by the BATF. The idea was to stop the interstate flow of firearms (mail order guns) by making every person who wanted to accept firearms interstate be registered with the federal government. This was rooted in the Commerce Clause, - the power of the federal government to regulate interstate commerce. In 1968 there was a public outcry to ban certain firearms, and since it could not be done (Constitutionally), the interstate delivery of firearms was heavily regulated. This created a new regulatory and enforcing agency, the new incarnation of the BATF. Most American firearms owners did not take this seriously- they had always had firearms, traded and sold firearms, and some obscure agency was not going to mess with them.
Enter a new era… raids started to happen against citizens who were doing what they had always done. Some of these were very high profile, with people getting shot. Some were actually killed during these midnight raids. At gun shows, ATF agents walked from table to table, and handed out Federal Firearms License applications to anyone who was selling a firearm. If you sold even ONE firearm, people were told, you had to have a license. The fee was only ten bucks a year. This went on throughout the 1970s. Many incidents occurred, and the conventional wisdom became - It’s easy to get a license, so you might as well- just to cover your own liability. As a by-product, you got to order firearms from other states and have them shipped in. Many hobby dealers started this way, and grew into major gun businesses.
The industry that had sold firearms through the mail prior to 1968 adapted and changed to the distributor system that was in evidence by looking at FFL related publications. Shotgun News and Gun List are two prime examples. Now it became an asset to have an FFL- and ATF still pushed licensing on anyone who wanted to sell a firearm. If you called the agency, they would tell you that and send you a form. They had to maintain a consistency with everyone they spoke to, and we ended up with 280,000 FFL holders!
The point of this third item is only that the regulations and licensing were imposed to stop interstate commerce, or at least slow it down. The BATF and its regulations were in fact instrumental in creating the massive system that the media and some politicians have demonized over the last few years.
I bring these three informational bytes to light for one reason. It is critical to emphasize the importance of staying in full compliance at all times. We must keep ourselves aware at all times of what the changes in regulations mean to us as firearms owners, and as citizens of the United States.
Let us hope that we can continue to expand this forum for spreading information. The Small Arms Review is dedicated to all aspects of the study of small arms, but we have a particular mandate to keep people informed of the laws. If you are not involved in the military or law enforcement use of NFA firearms, and are a civilian “tinker”, “enthusiast”, or just a plain, old vanilla ice cream kind of shooter who is interested in these types of things; we want you to be aware of two things. First, in many places in the United States, you can legally own the firearms of your choice. Second, if you do so without complying with the pertinent regulations, you are placing yourself in jeopardy. Take the time to read SAR and other pertinent publications. We have some of the best legal minds in the firearms world writing in this forum. Ownership and licensing are easy, if you follow the rules.
We also have to be more global in our thinking. The anti-firearms people are meeting all over the world, designing and implementing firearms confiscation measures in many countries. I can not emphasize enough that we who are interested in collecting, designing and shooting firearms are under assault. Many times it is not the regulatory agency that is at fault. It is the politicians who pass the laws and send the directives of policy.
Remember that as the election time nears.
This article first appeared in Small Arms Review V1N2 (November 1997) |
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