OK, what's the deal with these shotgun news ads?

[FirstFreedom]

Like this one:

"AR 15 to M16

Drop-In Auto-Sear
Pre Nov 1981

**Allows full auto & Semi Auto Operation Safely
**Drops in Without Machining Lower Receiver
**Instructions Included
**Highest Quality
**No FFL Required
Only a limited quantity remains!
$275 each
with Free Shipping

J.A.M.
[phone #]
All orders shipped FAST by Post Office C.O.D.
(cash on delivery - sorry NO checks)

ALL NFA RULES APPLY
WE KEEP NO NAMES OR LISTS
WE SELL NO OTHER AR15 / M16 PARTS"

So I assume this is the firearms wing of D.H.S (formerly batfe) doing stings? If not, wouldn't they be trying to investigate & shut them down? Or is what they are doing legal? Yeah, it says "all NFA rules apply", yet other statements evidence an intent to help facilitate the manuf. of unregistered machine guns by the purchasers of these, no? And would it be illegal to order these, in theory, ASSUMING one had no AR15 in their possession, and thus no constructive possession of a machine gun? Or is possing a full auto fire control group that is unregistered illegal per se? (I assume these are unregistered sears/ FCGs). Sorry such a newbish question, but there it is...

[VUPDblue]

I believe you can own AR15/M16 full-auto fire control parts as long as you do not own any AR15/M16 that is not a registered MG. Owning the two together is a no-no. A Pre-86 DIAS is just a hunk of metal when you do not own the rifle it attaches to.

[smince]

If not, wouldn't they be trying to investigate & shut them down?

I don't know. They have been advertising in SGN for as long as I have been buying the magazine.

[MisterPX]

Depends which BATFE agent you ask on which day. Some have said the DIAS itself is a machinegun. Those ads have been in SGN a long time, and the price keeps going higher. Still wouldn't touch one with a ten foot pole, even if I didn't have an AR.

[James K]

The purchase and ownership of a pre-1981 DIAS is perfectly legal, and everything in that ad is the truth. It is just not the WHOLE truth.

Prior to 1981, a DIAS could be transferred and owned as a gun part AS LONG AS you didn't also own an AR-15 type rifle into which it could fit. Those DIAS's made before that time are still in that category. DIAS's made after that are serial numbered and considered machineguns in and by themselves, regardless of whether the owner has a rifle or whether they are installed. Not many DIAS's were made and registered, but there were some. Further, in 1986, all machinegun registration was closed to individuals, so no new DIAS's can be made for sale to individuals, though currently registered ones can be bought and sold, same as other machineguns.
-----------------
What that company has is some pre-1981 DIAS's. They say:

**Allows full auto & Semi Auto Operation Safely (True. You can't install it legally, but if you could, it would allow full and semi auto operation safely.)

**Drops in Without Machining Lower Receiver (Maybe, depending on the receiver; later Colt AR-15 receivers are made specifically to prevent use of a DIAS.)

**Instructions Included (They might also include the phone number of a good attorney if the owner gets caught with an AR-15 and the DIAS, or tries to install it.)

**Highest Quality (Quite a few DIAS's were churned out in a hurry in the days before the 1981 ruling took effect; they were cheap castings that held up for only a few rounds. Folks who bought them and tried them were, shall we say, unhappy. Some spent time and trouble to register the guns so they would be legal (pre-1986) and then found the DIAS lasted less than a magazine. Aaaaaggghhh!)

**No FFL Required (True.)

they are legal to own (True, but see above.)
------------------
There is something else of interest. If one owns a pre-1981 DIAS, he can't now do anything with it and can't own an AR-15. But if he owns a registered post-1981, pre-1986 DIAS, he can install it on any AR-15 and blast away full auto, since the DIAS itself is the machinegun, not the AR-15.

Jim

[OneInTheChamber]

If you don't have an AR, there is no point in buying it.

If you have an AR, You shouldn't be buying it.

Utterly pointless.

I wouldn't touch the ten foot pole touching it with a 20 foot pole.

[shaggy]

A gray area...at best.

What Jim Keenan says may be true, but that was prior to US v. Cash. Cash may have significantly changed things and made that rule of dubious validity. As Judge Kozinski pointed out in Cash, there is nothing in the National Firearms Act that gives BATFE the authority to grant exceptions to the registration and transfer requirements of the NFA for a machinegun based solely on the date of manufacture as they did with ruling 81-4. IOW, once BATFE declared the DIAS devices to be a machinegun, they didn't have the legal authority to grandfather those made before 1981 and grant an exception to the registration and transfer requirements. They could have authorized an amnesty and required registration without paying the tax (as they later did with certain shotguns which were reclassified as destructive devices), but that would only have been effective until the May-86 cutoff date of 922(o) for machineguns. I'd fully expect a prosecutor to use this to their advantage for the next guy who challenges his conviction for possession of an unregistered DIAS.

And even accepting the validity of the "pre-81" rule, it still falls on the defendant to prove the date of manufacture of the DIAS in question. since its not serialized and no records were kept as to the date of manufacture for each specific "pre-81" DIAS, how can you do that? By resorting to a small xeroxed piece of paper that can't be linked to the DIAS in your possession?

[44 AMP]

This is some of the most convoluted of firearms law. I will make no comment on the current interpretation of the law (or regulations). Only an FYI that a "drop in auto sear" will only work in guns that have the other "auto" parts. trigger, disconnector, hammer, selector, and bolt carrier. And it will only "drop in" to the early guns. At one time, early "civilian" Ar-15s did contain the full auto parts, except for the auto sear. This was soon changed, but since the GI parts (auto) are easily installed, and were for many years easily available, only the auto sear was needed to complete the setup. Later, civilian lower recievers were made without the machined area for the auto sear to fit in.

Just an opinion, but if you have a pre-81 autosear (not legally a machine gun), and you have an AR, without the auto configured parts (so the sear wouldn't make it fire auto, even if it was put in), why is that a crime?

[Hkmp5sd]

without the auto configured parts (so the sear wouldn't make it fire auto, even if it was put in), why is that a crime?

Because ATF ruled that the DIAS is "a combination of parts" to make a machinegun by itself. Apparently it doesn't matter that is some cases, it isn't all of the parts needed to go full auto.

Based on the above, the Bureau ruled in 1981, that the auto-sear,
which is also known by various trade names, which consists of a
rear mounting body sear, return spring, and pivot pin, constituted
a "combination of parts" designed and intended for use in
converting a weapon to shoot automatically. ATF Rul. 81-4, ATFB
1981-3, 78.

http://www.titleii.com/BardwellOLD/atf_letter35.txt


Why tempt fate? If you have an AR-15 type firearm, stay away from the unregistered DIAS, regardless of date.

[shaggy]

Just an opinion, but if you have a pre-81 autosear (not legally a machine gun), and you have an AR, without the auto configured parts (so the sear wouldn't make it fire auto, even if it was put in), why is that a crime?

HKMP5SD basically hit the nail on the head, but to put it more bluntly, the autosear itself even without an AR15 or any AR15 parts is a machinegun in and of itself. Possession of that part alone can get you convicted of a felony. As I said in my post above, it has been noted in a federal Court of Appeals case that BATFE never really had the power to exempt DIASs from the registration and transfer requirements of the NFA based upon the date of manufacture or the date of the BATFE ruling. Thus, when BATFE declared post-81 DIASs to be machineguns, they also had to accept that fact that pre-81's were also machineguns requiring registration and transfer.

As to your question of "Why?" simply read the statutory definition found in Title 26 of the US Code:

26 USC 5845(b)
Machinegun
The term ?machinegun? means 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.

[Csspecs]

In other words DON'T TOUCH IT!

You can NOT use it anyway. It is not worth a dime as it is, as you can not install it.

[James K]

No, Shaggy, not quite. The only DIAS's that are machineguns in and by themselves are those made after the 1981 ruling and serial numbered. The ones made prior to that retained their status, which is that they are legal unless the owner also has a rifle in which they can be installed.

I don't understand the intent of that court case. If the intent of the plaintiff was to have all DIAS's removed from the "combination of parts" status (and thus legal to own without restriction), BATFE would still have the authority to arrest anyone making or attempting to make a machinegun by installing one. If the intent was to force BATFE into declaring all DIAS's to be machineguns, I fail to see the point, since currently owned ones made prior to 1981 would become illegal; they couldn't have an amnesty and registration without a change to the law, since registration is closed, so they would have to be surrendered.

One-in-the-chamber is correct. Either way, a DIAS is useless and its purchase would be pointless, which is why buying one makes about as much sense as that court case.

Whether BATFE had the power to set a cutoff date will be resolved, presumably, in court. But BATFE's rule-making authority is pretty broad, as is the authority of similar regulatory agencies, so no matter what a "web-site lawyer" says, I would not want to engage in activity they say is illegal, then challenge them to arrest me. Even if Shaggy agrees to represent me in court.

There are plenty of precedents for setting ban dates or controlling production and sale while leaving existing items alone. As an example, the FDA quite often bans drugs as of a certain date, but doesn't demand that people surrender the pills in their medicine cabinets.

Jim

[shaggy]

I fail to see the point, since currently owned ones made prior to 1981 would become illegal; they couldn't have an amnesty and registration without a change to the law, since registration is closed, so they would have to be surrendered.

Jim, that is precisely the point. If you think I was saying post-81 DIAS are OK to possess or use, you have completely missed the point. I was pointing out that theoretically the mere possession of ANY unregistered DIAS alone (whether pre-81 or post-81) can be enough to land a conviction.

BATFE won in Cash on the facts, but they could have won based upon the invalidity of ruling 81-4 as a defense. From Easterbrook's opinion:

Read in conjunction with section 7805(b)(8), the proviso
in the fourth paragraph of ATF Ruling 81-4 means only that the
Secretary will not collect any tax under 26 U.S.C. section section
5801, 5811, or 5821 on account of auto sears manufactured or
transferred before November 1, 1981. The ruling does not--and
cannot-- excuse compliance with criminal laws applicable at the
time of post-1981 transfers.

IOW, BATFE couldn't have created an exception to the registration requirements for those DIASs made pre-81 - they could only chose to make them all machineguns (and thus requiring registration) or all just unregulated parts. Since BATFE views newly made DIAS as MGs, then they must all be MGs. There is nothing to stop BATFE and the US Attorney from arguing in the next DIAS case that ruling 81-4 meant exactly what Easterbrook said it did - that the ruling only provided a tax-free amnesty period during which all unregistered "pre-81" DIASs had to be registered. Of course its a completely moot point. Since no one really thought of this until well after 1986, they now don't have to accept new regitrations as 922(o) cut off registration of new machineguns. Now where's my Wayback machine...

The key point here is that there is no need for a change in the law to grant a tax amnesty as was done with certain shotguns reclassified as destructive devices back in the mid-1990's. It can, and has, been done administratively. As I'm sure you recall, an amnesty on the tax was declared but they were still required to be registered (IOW if you had one, you registered it on a F1 but with no tax due). Judge Easterbrook saw nothing in the NFA that empowers BATFE to make an arbitrary decision based solely upon the date of BATFE's decision as to what machineguns are exempt from the purview of the NFA and what machineguns must be possessed and transfer in accordance with the NFA. I have to say I don't see it either. Maybe you can show me where you do?

That certain drug laws may provide for exemptions from the statute is like comparing apples to orangutangs here. Its an entirely differrent statute and there may very well be such an exemption based in that statute. Personally I don't know the law surrounding controlled substances well enough to say. Additionally it may be that since drugs are not of a permanent and reusable nature such an exemption was not thought terribly necessary (you take it once and its gone, and if you keep them long enough they will deteriorate and spoil over relatively short time).

[James K]

I would like to know the outcome of that case and whether Easterbrook was giving a court ruling or only his own opinion. What was the outcome of the case? In fact, what was it about in the first place?

18 USC 44 926 says, "The Attorney General may prescribe only such rules and
regulations as are necessary to carry out the provisions of this chapter..."

That is pretty broad regulatory authority. Frankly, I think Easterbrook is full of it (he is routinely overturned). More to the point, I don't see what the benefit would be in declaring all DIAS's machineguns; after 1986, an amnesty period could not be declared without opening up MG registration, something Congress is not likely to do. And without an amnesty, pre-1981 DIAS's would become illegal. What does that gain anyone?

Even if the rule were retracted, and DIAS's became legal to own in themselves, it would still be illegal to install one or to also have an AR-15 that could accept it.

As to that statement about criminal law, that does not include the NFA, which is a revenue measure, not a criminal law. The crime is not paying the tax. By saying the tax will not be collected, they are saying it is not a crime to own a pre-1981 DIAS.

So what is your point? You have done a lot of typing, but have not said anything that matters; you could have DIAS's by the ton and still couldn't install one legally. Obviously you want to own a machinegun. You can, but it will cost you; buying one of those advertised DIAS's is not a legal way to do it.

Jim

[shaggy]

Jim -

FWIW, I already own several registered DIASs and a RLL in addition to a number of other registered MGs so yes, I've already paid the price and know how to do it legally. If you read what I wrote you'd see that I'm not advocating doing anything even arguably illegal like possession of ANY unregistered DIAS.

The "broad regulatory authority" you speak of in 18 USC 44 926 includes the authority to promulgate regulations, but not to contravene or override statute. The NFA requires the payment of the tax and registration for making, transfer or possession of an NFA weapon. Abatement of the tax (such as in an amnesty) is within their regulatory authority, but not the exemption of the registration requirement for making, transfer or possession.

True, the NFA in title 26 is a taxing measure, but there are criminal penalties for violation of those statutes. Thats what Easterbrook was speaking of. When BATFE reclassifies a weapon (as they did with the shotguns to DDs) they must offer an amnesty on the tax. If not, the reclassification is likely to be struck down as unconstitutional.

You state: "

I don't see what the benefit would be in declaring all DIAS's machineguns; after 1986, an amnesty period could not be declared without opening up MG registration, something Congress is not likely to do. And without an amnesty, pre-1981 DIAS's would become illegal. What does that gain anyone?"

In some ways, thats exactly the point - it doesn't do anything for anyone. Its a somewhat convenient way of maintaining the status quo. IOW what Easterbroook was saying was if you had a pre-81 you could have registered it tax free in the period from the ruling until 1986, but oops... its too late for you now since 922(o) cutoff new registrations of MGs.

[James K]

I guess the question of whether BATFE has exceeded their rule-making authority is up to the courts and, ultimately, Congress. As you know, Congress decided that ATTD had done that with the DEWAT program, and changed the law to prevent them from ever doing it in that area again without a change in the law (the origin of OAMGAAMG).

I don't know what Easterbrook actually said, but if you had a pre-1981 DIAS prior to 1986, you couldn't register the DIAS, as it was just a part. You could apply to make a MG on a Form 1 and paid $200. When you got approval, you installed the DIAS and registered the AR-15 as a machinegun. The AR-15 then became a machinegun, perfectly legally. Now, with the DIAS itself being an MG, you could (at least in theory) swap it around from one host rifle to another. I have not determined if BATFE would permit this considering the other parts involved; I know they do for the carbine M2 kit, which is also a machinegun in and by itself.

In fact, when MGs could be legally made and registered, it was easier to just drill the hole and install the regular auto sear, which is what was usually done.

BTW and FWIW [I love those initials], you don't just "install" a DIAS. I have been saying that for simplicity, but you also need to install the M16 hammer, bolt carrier, and selector. The DIAS simply takes the place of the normal auto sear in the FA AR-15 or M16; it won't give FA fire by itself, nor will the Lightning Link, which requires at least the M16 bolt carrier.

Jim

Edited to add:

As I read over the above, I find I did not really explain the WHY of the DIAS. If you were legally converting a semi-auto AR-15 to a selective fire rifle, you simply drilled the hole and installed the M16 auto sear. But if you wanted to make a machinegun illegally (either because you wanted to evade the tax and registration, or because you could not own an MG legally), you could install a DIAS and have a selective fire rifle WITHOUT altering the rifle. You could then remove the DIAS and be back to a legal semi-auto with no extra hole in the receiver and one the wiser.

Jim

[UniversalFrost]

A friend of mine who bought an m2 carbine (originally a full auto) from CMP that had been converted to an M1 configuration (semi auto only) had his gun confiscated by BATF, just because it still said m2 carbine on it even though he had the paper work from CMP (gov't). They said that it could still be readily converted back into a full auto config (yeah they are right, but so can every mil spec m1carbine). The friend sued for unlawfull search and seizure and it is in litigation right now.

I have an m1carbine and anybody who knows about these guns can tell you that they were designed to have the ability to be easily converted in the field by a company level armorer to the full auto config (m2). I have seen the trigger groups and selector switches for sale very cheap just about everywhere, but if you don't have a set that has the number from BATF and you don't fill out the forms and pay the stupid tax for each part then it is illegal.

Also if you do have the sear and the selector switch (unregistered) and install them on your AR-15 and get caught, say Hi to bubba because yo will spend a while behind bars.

[44 AMP]

Let me see if I got this straight. Currently, pre 81 Drop In Auto Sear is NOT considered by BATF as a machinegun. Post 81 IS a machine gun. Current court case, MAY be decided that ALL DIAS are machine guns? Or HAS been decided that ALL DIAS are machineguns?

I know, don't get one. I don't want one, ain't gonna get one, don't even currently OWN an AR, so no worries there, just curious, and trying to understand how things are being interpreted. I was a Small Arms repairman, and am intimately familiar with the function of the GI parts.

So, IF the DIAS (pre 81) is NOT a machinegun, then having one, and a AR (without the GI parts) should not be a crime. BUT, IF the DIAS(pre 81) IS a machinegun, then having one (unregistered), with or without the rifle, would be illegal? And we are waiting on a court to say if it is a machine gun? or has it already been decided?

[James K]

Hi, UniversalFrost,

Yes, a carbine marked M2 is considered a machinegun even if it has no M2 parts and cannot fire full automatic. But either there was a misunderstanding or BATFE gave the wrong reason. It is not because it can be converted to a machinegun (any M1 carbine can be with the proper parts) but because it was "designed as" a machinegun. The proof that it was "designed as" a machinegun is the M2 marking, as all carbines marked "M2" were originally designed and made as machineguns.

If BATFE said in the charging documents or in an official statement that the carbine could be "readily converted" the owner might have a way of wriggling out of any charges, but the chances of getting the gun back are nil.

Prior to 1968, the law basically said that a machinegun was a gun that fired full auto. But Congress got upset about the DEWAT program (which ATTD instituted without a change in the law) and changed the definition of a machinegun to one "DESIGNED" to fire full auto, whether it could or not. This was the law that some folks express briefly as "once a machinegun always a machinegun."

So the M2 is a machinegun. Your friend can't argue with BATFE - his argument is with Congress.

Jim

[UniversalFrost]

but CMP (gov't) is selling these mil surp rifles (old korea -nam rifles) that were loan lease types to Greece, Italy, etc.. and are now returned back to the gov't. Any gun club, (i think FFL as well) can get one for dirt cheap that has been convrted to an M1 config. The problem is that they don't rebrand al of them as m1 carbines. His lawyer is seeking punitive damages for the replacement cost of the rifle (gov't agency sold him the weapon through legal means, another gov't agency confiscates the weapon saying he can't own it legally) . Also the BATF pukes tried to confiscate his bushmaster m4a2 with 14.5/1.5 barrel (shroud perm. attached) saying that it was illegal length.

The whole problem started when he called them asking what he had to do to knock on his door ask him to step outside and next thing he knows he is in cuffs and they are going through his house and hauling uot all his guns (even antiques that had been in mint conditon and now are all dinged up and even some have rust pitting from improper storage by the feds). Long story short he is going after them for damages to his weapons, improper search and seizure, unlawfull arrest, etc.... , his lawyer says it looks like he might at least get some $$ out of it.

Also, this is not the first time something like this happened. I read about an almost identical situation on another forum a few years back with another CMP M2 converted to M1 and not rebranded. and the BATF did the same thing to that guy. Treated him like a criminal for legally buying a weapon from the gov't CMP program.

[James K]

Too bad they go in for that kind of law enforcement. He may have a good case, not on the violation, but on how they handled it, especially if he called them. But he will NOT get the carbine back; that is guaranteed. Even if someone charged with possessing contraband is let off or acquitted, the contraband is destroyed, since returning it would itself be illegal. (Think being found with 200 kilos of heroin; even if you convince the cops or a court that you thought it was grass seed, they won't give it back to you to sell.)

Are you sure about the carbine having come from CMP? Frankly, the story sounds a bit thin, and it seems odd that they wouldn't check the receiver marking. BTW, you can't "rebrand" an M2 as an M1. If it was ever an M2, even if it was marked that after manufacture, it becomes a machinegun forever, whether it has any FA parts or not.

Jim

[UniversalFrost]

he's got the bill of sale and transfer along with the normal CMP paperwork.

I agree that he won't get the gun back, but they should be forced to replace it (long shot chance) or pay him back what he put into buying it.

[James K]

Has he contacted CMP? If he can show that the gun (by serial number) came from CMP that alone should get him off the hook and out of any trouble on possession. As to his lawsuit, I can only wish him good luck, but the government has a lot more money to spend on court cases than most of us do. He might get a settlement, but if he wants any real result, he better keep a close eye on his lawyer.

I know one lawyer who plea bargained his client right into jail, even though the U.S. Attorney later told his colleagues that he was about to drop all charges.

Jim