Sent: Mon, Nov 8, 2010 6:08 pm
Subject: ATF refuses to regulate 50,000 submachineguns and protects NRA members who own pistol grip shotgun "destructive devices."
ATTN: Paul Helmke
The Brady Campaign to Prevent Gun Violence
1225 I Street, NW, Suite 1100
Washington, DC 20005
Brady Campaign Phone: (202) 898-0792
Brady Campaign Fax: (202) 371-9615
Since we met at the 19 April 2010 armed Restore the Constitution rally at Gravelly Point Park across from the National Capitol, your organization has fallen on harder times -- membership down, Democrats washed away in state and national races, donations flat. Paul, bubba, y'all need a new gig. And for reasons of my own which make perfect sense to me, let me give you a new washtub to bang -- two washtubs, actually -- which will bring you headlines and it is headlines you crave, no?
Paul, the ATF is falling down on the job you fervently wish they would do -- disarming the American citizenry, or, failing that, making firearm ownership as difficult and onerous as possible. There is a reason for this, as you may know -- the ATF Chief Counsel's Office has embroiled the agency in any number of bad cases and missteps over the last few years that they are desperate to keep quiet. The NFRTR -- the national machine gun registry -- is a shambles, causing prosecutions to be dropped or dismissed (see the Freisen case). The testing procedures (or lack thereof) are neither standardized nor defensible in court. Agency personnel who are honest enough to point out ATF failures are persecuted (see the dissident ATF agent website, CleanUpATF.org). Honest dealers and manufacturers who resist ATF decisions or testify against them in court are subjected to abusive, selective inspections and regulatory harassment in retribution (dubbed "Economic Wacos").
My understanding is that the ATF senior executives have even sought to avoid oversight hearings lest they be asked questions under oath about even one of these festering scandals. For the same reason, the Obama-Daley Chicago Gang's choice for ATF Director, Andrew F. Traver, Special Agent in Charge of the Chicago Field Division, will likely end up as a recess appointment because the Holder Justice Department doesn't want awkward questions asked under oath. Of course none of this has prevented the ATF from stumbling along, pretending to be omniscient and all powerful, complaining about lack of resources while at the same time wasting taxpayer money by giving away goodies at events like the recent IACP convention, including brightly colored ATF flip flip footwear (which I have posted a picture of on my blog) and -- it is also reported -- in the acme of poor taste, ATF official arson investigation matchbooks.
But really, is this any reason for them to be derelict in their duty as you see it?
If I may, let me inform you about two enforcement derelictions that I think will offend your hoplophobe sensibilities and cause you to demand an explanation of this agency which has so disappointed you.
Washtub #1: There are 50,000 unregistered submachine guns on the streets which the ATF refuses to regulate.
Let me draw your attention to the sworn testimony of one Richard Vasquez, ATF Assistant Chief, Firearms Technology Branch, in the case of United States of America v. One Historic Arms Model 54RCCS, etc., from a deposition on 10 September 2009, pp. 73-75.
Q: In Exhibit 1 which are the operating procedures that you wrote, there's a reference to two rulings, 82-8 and 83-5, do you recall that?
A: Do I recall the rulings or the reference?
Q: Well, first of all the reference.
Q: Do you recall the ruling?
Q: 82-8 if I remember had to do with some devices that were determined to be machine guns but that the ones manufactured before a particular date were not I guess treated as machine guns for purposes of transfer and possession, is that right?
A: Let me find it. (Reviews document.) Correct.
Q: What is the proper treatment of one of those firearms under that ruling if it's . . . I mean, I guess ATF considers it to be a machine gun but it's freely transferable without even a Form 4 if I understand it; is that right?
A: If it was manufactured before that date as an open bolt pistol, then ATF said we're not going to apply the machine gun classification to it.
Q: So I guess the conclusion is that means there's a, I don't know about sizes, but there's some bucket of firearms that are machine guns that aren't registered, don't have to be registered and are freely transferable without a Form 4; is that right?
A: Well, it is correct that they are no longer allowed to be manufactured.
Q: I understand. So we're only talking about ones that were manufactured before a particular date?
A: That's correct.
Q: But whatever number of those there are, they're out there?
Paul, that number is in excess of FIFTY THOUSAND. Does that bother you at all? Think you might want to investigate that?
Now, for the second washtub you might want to thump.
Washtub #2: The ATF has ruled pistol grip shotguns to be destructive devices but has refused to enforce that ruling, allowing thousands, perhaps tens of thousands, of people, including NRA members and hunters, to possess these without registration.
The November 2009 FFL Newsletter (found at http://www.nfaoa.org/documents/ffl-newsletter-2009-11.pdf) states that a "Pistol Grip Firearm" (generically, a pump action shotgun with a pistol grip) is not a "shotgun." An October 27, 2010, letter from the Firearms Technology Branch ruled that such a firearm, with a 17" barrel and 26-1/4" overall length, was not subject to the National Firearms Act.
As you are probably aware, a "destructive device" is defined as:
The term "destructive device" means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) or (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term "destructive device" shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of title 10 of the United States Code; or any other device which the Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes.
Now I'm not trying to make your eyes glaze over, Paul, but it appears that ATF's recent decisions have rendered a "Pistol Grip Firearm" a Destructive Device, since it has been ruled not to be a "shotgun." This action has apparently created millions of unregistered Destructive Devices, currently possessed by millions of law-abiding gun owners who do not realize they now illegally possess unregistered NFA firearms.
With your help and the proper motivation, Paul, the ATF can make yet another set of rulings to clarify the legal status of the "Pistol Grip Firearm" in view of the massive scale of nonconformity with federal law. It appears there are only two solutions: (1) change the law to revert things as they were before ATF made the foregoing rulings, or (2) establish an amnesty period so millions of "Pistol Grip Firearms" can be lawfully registered in the National Firearms Registration and Transfer Record (NFRTR) system.
The ATF documentation and legal issues are available on the Internet as noted below.
So, Paul, bubba, are you just going to let the ATF get away with not doing their job?
Of course you may ask, why is this Vanderboegh character serving up these issues? Is it a trap? Well, it is certainly not a lie, Paul. Everything is as I have laid it out for you. And, as it is the truth, according to your lights the ATF is failing to do their job as you see it. Of course I believe that the entire federal firearm control regime since the National Firearms Act of 1934 is unconstitutional, that the ATF ought to be abolished and that their rules are deliberately arcane and clouded in obfuscation so they interpret them however they want. As it happens, these two examples prove both our points, depending upon which you believe to be true.
The question is, now that I have teed up these two balls for you, can you knock them out of the park for your own short-term gain to prove my long-term point?
Think of all the NRA members you could discomfit by doing so.
Can you really resist that urge?
The alleged leader of a merry band of Three Percenters
PO Box 926
Pinson, AL 35126
Then click on this tab: National Firearms Act (NFA) of 1934, as amended
ATF Letter Ruling means that a "pistol grip firearm" is a Destructive Device
In a section entitled "Pistol Grips and Shotguns" on pages 2-3 of its November 2009 FFL Newsletter (click here to read it, ATF stated that "A firearm with a pistol grip in lieu of the shoulder stock is not designed to be fired from the shoulder and, therefore, is not a shotgun." This statement arose from ATF's clarification that "Certain commercially produced firearms do not fall within the definition of shotgun under the GCA even though they utilize a shotgun shell for ammunition. For example, firearms that come with a pistol grip in place of the buttstock are not shotguns as defined by the GCA." The procedures for recording transfers of such firearms were published by ATF (click here to read them), and ATF advises they be described as a "pistol grip firearm."
Regulations involving pistol-gripped shotguns were included in the first regulations implementing the NFA, published in the INTERNAL REVENUE BULLETIN, Cumulative Bulletin XIII-2, July-December 1934, pages 433-440 (click here to read them). In particular, S.T. 772 states: "A so-called shotgun with a pistol grip, which fires a shot shell, falls within the class of 'any other weapon' . . . [i]f such a gun is capable of being concealed on the person." S.T. 779 addresses classification of a firearm that is "a single shot, single trigger, and single hammer gun with a pistol grip, and is chambered for shot loads. It is so compact that it may be strapped over the shoulder, either over or under the coat." S.T. 779 further states that "The test described by the [National Firearms] for determining whether a particular weapon comes within the classification of 'any other weapon' . . . is not the length of the barrel, but whether the weapon is capable of being concealed on the person," and that the foregoing gun met the definition of "any other weapon" under the NFA.
When the Congress amended the NFA under the National Firearms Act of 1968 (also known as Title II of the Gun Control Act of 1968), it defined a "destructive device," in part, as "Any weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes." Source: 26 U.S.C, Section 5845(f). "Secretary" refers to the Secretary of the Treasury; however, the Attorney General began performing all functions of the Secretary of the Treasury with respect to firearms after ATF was transferred to the Department of Justice on January 24, 2003.
Until the November 2009 article, and a subsequent ATF Letter Ruling, so-called "pistol-grip shotguns" may have occupied a "gray" area under the GCA and the NFA. In 1960, the Congress amended the NFA to establish a 26" overall length requirement for a rifle or shotgun; a 16" barrel length standard for a rifle; and a $5 transfer tax for all "any other weapon" NFA firearms (click here to read it). Before the 1960 Act, both rifles and shotguns were required to have barrel lengths of 18" (there was no overall length requirement), and AOW transfers were $200. ATF adopted the 26" overall length requirement as a criteria for "concealibility" to uniformly implement the AOW standard. Consequently, since 1968, ATF viewed so-called "pistol-grip shotguns" under the 26" overall length requirement and manufacturers apparently presumed that an 18" barrel length was also required.
In response to a request for clarification of the law, ATF advised a firearms manfacturer in a letter dated July 20, 2010 (click here to read it): " . . . in an effort to achieve consistent application of the law, ATF utilizes 26 inches as the presumptive standard to determine whether a firearm is 'capable of being concealed on the person' [and] "barrel length is considered only to the extent that it constitutes a portion of the overall-length measurement of a firearm." ATF also stated "because the statute does not expressly indicate any overall length, a firearm measuring greater than 26 inches in length may properly be classified as an . . . AOW . . . if it otherwise satisfies the definiton of an AOW and there is evidence that the firearm in question was actually concealed on a person [italics in original."
In a letter dated October 27, 2010, ATF advised the manufacturer that installing a barrel approximately 17" in length in a firearm that was originally manufactured with a pistol grip in place of a shoulder stock, whose overall length is approximately 26-1/4", "is not a 'firearm' as defined by the NFA." (Click here to read it). The letter also states that if the submitted firearm "is concealed on a person, the . . . classification may change."
The foregoing discussion, played out in Federal District Court in a criminal case, might well cause millions of what ATF now terms a "pistol grip firearm" to be reclassified as an "Any Other Weapon" if any such firearms are concealed on a person. Such a reclassification could occur, for example, in a criminal case if a defendant is found guilty of concealing a "pistol grip firearm" on his or her person.
If one takes ATF's most recent correspondence on the issue at face value, it means that concealing a "pistol grip firearm" (regardless of its barrel length) on a person, could legally render it an "Any Other Weapon" subject to the NFA.
There are millions of such "pistol grip firearms" that have been lawfully owned by millions of law-abiding citizens for many years, and they are manufactured by a variety of firearms manufacturers. If these firearms were ruled to be NFA firearms, they would be instantly and involuntarily converted into illegal contraband. Moreover, under current law, there is no legal mechanism to enable their continued legal possession except by (1) registering them as NFA firearms during an amnesty established by the Attorney General, or (2) a change in the NFA law, which must be enacted by the Congress and signed by the President.
ATF has created a potential legal conundrum by clarifying that that certain "pistol grip firearms" are not shotguns, because apart from the "Any Other Weapon" issue just discussed, ATF has not acknowledge the fact that these firearms are most probably classifiable as "Destructive Devices." Again, taken at face value, a "pistol grip firearm" with a bore diameter larger than 1/2" in diameter is a "Destructive Device" under the NFA, unless the Attorney General determines that it is "a shotgun . . . generally recognized as particularly suitable for sporting purposes." By determining that a "pistol grip firearm" is not a shotgun, it is difficult to understand how current law would not classify such as firearm as a Destructive Device."