Legal Side for volume 1 issue 12 Pre-81 AR-15 Drop-in Auto Sears We have gotten a number of requests for information about the so-called Pre-81 AR-15 drop-in auto sears, that are offered for sale in various gun publications from time to time. In particular people want to know if they are "legal", and if they can be legally used. Prior to November 1, 1981, so called drop-in auto sears for AR-15 type semi-automatic rifles were not considered by ATF to be regulated under the National Firearms Act. Drop-in sears consist of a housing and a spring loaded sear pivoting on an axis pin, that fit into the lower receiver of an AR-15 type semi-automatic rifle, being retained in place by the rear push pin lug of the upper receiver. The drop-in sear simulates the factory full auto sear in function. When other M-16 parts are installed in the AR-15 along with the sear; the bolt carrier, trigger, hammer, disconnector and selector, the rifle will function as a select fire M-16. A fewer number of the M-16 parts combined with the sear can produce full auto only fire. However unlike the factory type full auto sear, these do not require that the receiver be drilled for the sear pin, or have the walls of the semi-automatic receiver relieved, they are a "drop-in" part. On November 1, 1981, by ATF Ruling 81-4, ATF declared that they consider these items to be machine guns in themselves, as they were "a combination of parts designed and intended for use in converting a weapon to shoot automatically more than one shot". In particular ATF claims that "the single addition of this auto sear to certain AR15 type semiautomatic rifles, manufactured with M16 internal components already installed, will convert such rifles into machineguns." If you read that sentence, and think that it means that an AR-15 rifle with M-16 parts installed is a semi- automatic rifle, and not a machine gun also, ATF thinks you are mistaken. That, ATF now claims, is a machine gun also. So the drop-in sear is a part that converts a machine gun into a machine gun. Clever huh; part of the confusion about this area of regulations is due to the fact that ATF's position on this is not consistent or rational, as will be explored more fully below. It is not possible, under the legal definition of "machinegun" for both the drop-in sear to be a machine gun, and an AR-15 rifle with M-16 parts installed in it. ATF also declared that the ruling would be applied prospectively only, meaning that only drop-in sears made after the ruling would be covered by the ruling. Those drop-in sears made before the ruling, mechanically identical to those made after the ruling, would not be considered machine guns in themselves. As a result of this ruling, there are a number of NFA registered drop-in sears. The current language in the definition of "machinegun" (26 U.S.C. section 5845(b)), referring to "any part designed and intended solely and exclusively . . . for use in converting a weapon into a machinegun" was not part of the definition in 1981 when the ruling was made. It was added in 1986, as part of the Firearm Owners Protection Act amendments. However, while the sears made before the ruling are not considered machine guns in themselves, they can be considered machine guns in combination with semi-automatic AR-15 rifles, or in combination with other M-16 parts. Thus it is extremely unwise to possess one of these pre-81 sears together with an AR-15 rifle, or other M-16 parts, even if none of them are assembled together. You might be surprised what ATF can get to fire more than one shot with a single trigger pull. So pre-81 drop-in sears are legal to possess alone, but they are also useless by themselves. In the case United States v. Was, 684 F. Supp. 350 (D.Conn. 1988), affirmed, 869 F.2d 34 (CA2 1989), cert. denied, 490 U.S. 1068, a United States District Court refused to dismiss charges of transferring three drop-in auto sears without complying with the National Firearms Act. While there was no contention the sears at issue were made before November, 1981, the defendants argued that since the sears could not convert the AR-15 by themselves, they were not a combination of parts for converting a gun into a machine gun (under the pre-1986 definition of "machinegun", which applied to their case). The court disagreed, saying the law also covered a set of parts that was not complete enough to convert a firearm into a machine gun, but was meant for converting a gun into a machine gun. Since the drop-in sear physically consists of multiple parts in the assembly, the Court ruled the drop-in sear could fall within the NFA, as it then read, whether or not these particular sears did was left for a trial. The defendants later pled guilty. In the case of United States v. Bradley, 892 F.2d 637 (CA7 1990), the defendant argued that a set of parts he was charged with selling without complying with the NFA, consisting of an M-16 hammer, selector, disconnector, trigger and a pre-81 drop-in AR-15 auto sear, was not a set of parts to convert a gun into a machine gun, because he did not also sell the M-16 bolt carrier, also needed for the conversion, at the same time as he sold the other 5 parts. He sold the carrier two weeks after selling the other parts. The court rejected the argument. Bradley also argued that the sear was grandfathered under ATF Ruling 81-4, and therefore he could not be prosecuted for selling it. In its decision the appeals court said: "Because he [Bradley] transferred an auto sear made before November 1981, Bradley insists that he did not need to register. This argument misunderstands ATF 81-4. The ruling is not a safe harbor. It provides that auto sears made after a certain date must be registered even if transferred in isolation. The prosecution's theory in this case is not that Bradley violated the statute by transferring the auto sear; it is that the six parts together are a 'combination of parts designed and intended for use in converting a weapon into a machinegun'. That Bradley could not have been convicted for an unregistered transfer of the pre-1981 auto sear by itself is neither here nor there." In summary, a drop-in auto sear, if actually made before November 1, 1981, is legal to own. Possessing it in combination with other M-16 parts, or an AR-15 rifle, is asking for trouble; ATF considers those combinations to be machine guns as well, even if the sear is one grandfathered under the ruling. In addition, it may not be prudent to rely on the representations of the seller as to when the sear was made. It seems unlikely that so many sears were really made before the ruling took effect. In some cases it may be possible for ATF to show the sear must have been made after November 1, 1981, by metallurgical analysis, or toolmark analysis, for example. While a prosecution might be unlikely in such a case, no one should put their fate in the hands of a United States Attorney for a piece of metal that cannot be lawfully used in any case. It makes no sense. AR-15 Rifles with M-16 Parts and No Auto Sear The fact that the drop-in auto sear requires the installation of M-16 parts into an AR-15 in order to work does not change ATF's view that an AR-15 with those same parts installed, but no drop-in auto sear, is also a machine gun. An AR-15 with an M-16 trigger, disconnector, selector and either an M-16 bolt carrier or hammer can be rigged to malfunction into firing more than one shot with a single pull of the trigger, by having the hammer "follow" the bolt carrier into battery, and fire a second round, rather than be retained by the disconnector, as normally happens in a semi- automatic AR-15 after one shot is fired, and the trigger remains pulled. This will happen when the M16 selector is placed in the full auto position, thus depressing the "tail" on the M16 disconnector, and removing it from engagement with the hammer. The AR-15 hammer, unlike the M16 hammer, has a notch on the front face, which is supposed to catch the ring or collar on the back of the AR-15 firing pin, if the disconnector is disabled. The collar on the AR-15 firing pin is larger than that on the M-16 firing pin, for this purpose. The hammer notch will only catch the ring on the AR-15 firing pin if an AR-15 style bolt carrier is also used, as they have a ramp milled along the underside of the carrier for this purpose; the M16 carrier, in addition to the sear trip surface, also does not have this ramp milled. So the AR-15 hammer, bolt carrier and firing pin are all required to prevent the hammer follow down malfunction. This hammer follow down malfunction can also be induced by physically removing the disconnector from the firearm, if either an M-16 bolt carrier or M-16 hammer are also used, and ATF has done just that, when the rifle lacked an M-16 disconnector, trigger or selector. Removing the disconnector entirely is the same mechanically as putting the M-16 selector in the full automatic position, when the gun also is assembled in combination with an M-16 disconnector and trigger. This hammer follow down malfunction is much more reliable if handloaded ammunition is used, made with softer pistol primers, rather than rifle primers. ATF has used .223 ammunition loaded with softer than normal primers to make an AR-15 type rifle with no auto sear fire more than one shot, in combination with inducing the hammer follow down malfunction. This hammer follow down phenomenon is really a malfunction, as it is possible for the rifle to fire the cartridge before the action is locked, with potentially disastrous consequences for both the rifle and the person firing it. The auto sear, whether a drop-in or not, retains the hammer until the action is locked, at which point the sear releases the hammer (assuming the trigger is still pulled) so that the firearm can fire automatically safely. In a March 11, 1986 memorandum, ATF made the following observations on this phenomenon: "The proposed draft ruling would hold that an AR15 type rifle in combination with an M16 hammer, trigger, disconnector, selector and bolt carrier is a combination of parts from which a machine gun can be assembled and is a machine gun if such rifle and parts are in the possession or under control of a person. It would also hold that an AR15 type rifle in combination with any M16 part or parts (whether assembled or unassembled) which, when assembled, shoots automatically by manipulation of the selector or removal of the disconnector is also a machine gun. "The Bureau has determined not to issue the ruling at this time...." Reproduced in footnote 10, U.S. v. Staples, 971 F.2d 608 (CA10 1992), reversed on other grounds, 511 U.S. 600 (1994). Rather than issue a formal ruling to this effect, and endanger the "logic" of ATF Ruling 81-4, by acknowledging that the drop-in auto sear can only really work to convert a firearm ATF also considers to be a machine gun, ATF instead released this "open letter" from Stephen E. Higgins, then director of ATF. The open letter was printed in the fall, 1986, Federal Firearm Licensee News publication. An edited version of this letter can be found in the ATF "Yellow Book", "Federal Firearms Regulations Reference Guide", ATF P 5300.4 (10-95) at page 91: "I want to bring to your attention possible Gun Control Act violations in which you could inadvertently become involved. "ATF has encountered various AR15-type assault rifles such as those manufactured by Colt, E.A. Company, SGW, Sendra and others, which have been assembled with internal components designed for use in M16 machineguns. It has been found that the vast majority of these rifles which have been assembled with an M16 bolt carrier, hammer, trigger, disconnector and selector will fire automatically merely by manipulation of the selector or removal of the disconnector. Many of these rifles using less than the five M16 parts listed above also will shoot automatically by manipulation of the selector or removal of the disconnector. "It must be pointed out that any weapon which shoots automatically, more than one shot, without manual reloading, by a single function of the trigger is a machinegun as defined in 26 U.S.C. Section 5845(b), the National Firearms Act (NFA). In addition, the definition of a machinegun also includes any combination of parts from which a machinegun may be assembled, if such parts are in possession or under the control of a person. Any machinegun is subject to the NFA and the possession of an unregistered machinegun could subject the possessor to criminal prosecution. "Additionally, these rifles could pose a safety hazard in that they may fire automatically without the user being aware that the weapon will fire more than one shot with a single pull of the trigger. "In order to avoid possible violations of the NFA, M16 hammers, triggers, disconnectors, selectors and bolt carriers must not be used in assembly of AR15-type semiautomatic rifles, unless the M16 parts have been modified to AR15 Model SP1 configuration. Any AR15-type rifles which have been assembled with M16 internal components should have those parts removed and replaced with AR15 Model SP1 type parts. These parts are available commercially or the M16 component may be modified to AR15 Model SP1 configuration. "It is important to note that any modification of the M16 parts should only be attempted by fully qualified personnel. "On the following page are illustrations of AR15 Model SP1 component parts and the corresponding M16-type parts. Should you have any questions concerning AR15-type rifles with M16 parts, please contact your nearest ATF law enforcement office. Our telephone numbers are listed in the United States Government section of your telephone directory under the United States Treasury Department." While ATF decided not to made a formal ruling to the effect that an AR-15 type rifle with M-16 parts is a machine gun, they can, almost certainly, get such a firearm to fire more than one shot with a single pull of the trigger, and thus claim it is a machine gun, on a case by case basis. Reaction to this position has been mixed in the courts. In United States v. Staples, 971 F.2d 608 (CA10 1992), reversed on other grounds, 511 U.S. 600 (1994), both the trial court and court of appeals rejected the theory that ATF had already decided that an AR-15 rifle with M-16 parts, but no auto sear of any kind, was not a machine gun, and permitted ATF to claim that the defendant's AR- 15 rifle, which ATF assembled with M-16 parts they found at the defendant's house, was a machine gun. On the other hand, in the case United States v. Corcoran, Judge Donald E. Zeigler said, in explaining why he was dismissing 6 counts of possessing or transferring unregistered machine guns: "The AR-15's in this case were transferred by defendant without automatic sears. The essence of due process of law requires that the government make clear that conduct which constitutes a crime. Here, the ATF ruled on November 1, 1981, that an AR-15 with M-16 internal components already installed, will convert to a machine gun with the single addition of an automatic sear. It is inescapable that without the automatic sear, the AR15 with M-16 components parts is not a machine gun and need not be registered. If it did constitute a machine gun, because it may fire more than one round with a single function of the trigger, the agency was required to make that clear in the Federal Firearms Regulations, especially in light of ATF Ruling 81-4 effective November 1, 1981. "In short, once Ruling 81-4 was made and published, the agency was required to supplement that ruling to make clear that conduct which was once legal, or at least arguably legal, was now prohibited. "In addition, the arguments that the agency did change its policy, in letters to interested citizens after November 1, 1981, is without merit. The change must be published in the same manner that the original ruling was published; otherwise citizens who relied on Ruling 81-4 but did not inquire of the government could be prosecuted for a crime while other citizens could not." United States v. Corcoran, Criminal No. 88-11 (W.D. Pa. April 5, 1988), transcript, pages 39-40. The authors would like to thank Mr. Stephen P. Halbrook, PhD., Esq., for providing some of the ATF source material quoted in this article. Legal Side Column For Small Arms Review Volume 2, issue 8 (cover date 5/99) COURT DECISION ON "PRE-81" DROP-IN AR-15 AUTO SEARS The Seventh Circuit Court of Appeals has rendered an important decision on pre-1981 AR-15 drop-in auto sears. In the case United States v. Cash, 149 F.3d 706 (CA7 1998), the court indicated that such sears are not as "grandfathered" as ATF had been representing, and as owners of such items had believed, and in fact it is illegal to transfer or possess these sears, except in compliance with the NFA, even if they were made before November 1, 1981. As extensively discussed in this column in Small Arms Review, volume 1 issue 12, on November 1, 1981, ATF issued ATF Ruling 81-4, announcing that ATF now considered an AR-15 drop-in auto sear to be a machine gun in itself, in that it would convert a semi-automatic AR-15 style rifle, which had been assembled in M-16 components, into a machine gun. The fourth and last paragraph of the Ruling states; "With respect to the machinegun 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. Accordingly, auto sears manufactured on or after November 1, 1981, will be subject to all the provisions of the National Firearms Act, and 27 C.F.R. Part 179." Sears made before the Ruling are often called pre-81 or pre-82 sears, indicating they were made before the Ruling, and thus not covered by it. In the Cash case the defendants were charged with selling AR- 15 drop-in sears and silencers to undercover ATF agents. The defendants pled guilty to the silencer charges, and then contended that their sentence on those charges should not be enhanced for the machine gun sear sales, since the government did not show that the sears were not grandfathered as "pre-82" sears. While the defendants were not convicted of selling the sears, that conduct could be used to give the defendants a greater sentence for their silencer conviction, under the U.S. Sentencing Guidelines, up to the maximum sentence fixed by the statute. The Court noted that it was unlikely the sears the defendants sold were really of the pre- 82 variety, since the defendants offered their sears for less than $65 each, while pre-82 sears cost approximately $150 each through gun magazine advertisements. The defendants did not testify as to when the sears were made, or where they got them; at sentencing their lawyers claimed the sears were grandfathered ones that the defendants installed new springs in. However, the Court stated that whether the sears were made before or after the ATF Ruling didn't matter: Cash and Croyle rely on the first sentence of the ruling's fourth paragraph. They insist that the prosecution did not negate the possibility that the 67 auto sears were manufactured before November 1, 1981, and therefore did not prove that they are "machineguns" under section 5845(b). It is not at all clear that defendants (or, for that matter, the prosecutor) correctly understand the effect of this proviso. Defendants believe that it places auto sears manufactured before November 1, 1981, outside all obligations laid by statute on the ownership and transfer of firearms. But nothing in the firearms statutes gives the Secretary of the Treasury (or the Bureau of Alcohol, Tobacco and Firearms) the power to make exemptions to section 5845(b) and associated legal obligations. The statute to which ATF Ruling 81-4 refers, 26 U.S.C. section 7805(b), provides that the Secretary cannot give retroactive application to tax regulations and adds in section 7805(b)(8) that the "Secretary may prescribe the extent, if any, to which any ruling (including any judicial decision or any administrative determination other than by regulation) relating to the internal revenue laws shall be applied without retroactive effect." 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. sections 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. Cash and Croyle transferred the auto sears in 1994 and 1995, when section 5845(b) and ATF Ruling 81-4 alike defined auto sears as machine guns; they therefore had to comply with the laws regulating transfers, such as 26 U.S.C. section 5841(b) ("Each firearm transferred shall be registered to the transferee by the transferor"). See also 26 U.S.C. section 5861(e) (making a violation of section 5841(b) criminal). Nonetheless, the prosecutor appears to be content with defendants' reading of ATF Ruling 81-4 and argues only that the evidence does not show that these auto sears predate 1982. Perhaps the prosecutor was misled by language in United States v. Bradley, 892 F.2d 634, 636 (7th Cir. 1990), which stated that under ATF Ruling 81-4 "auto sears made after a certain date must be registered even if transferred in isolation." This may be thought to imply that auto sears made earlier may be transferred today without registration. Like Cash and Croyle, Bradley contended that auto sears manufactured before November 1981 need not be registered even if transferred after the Ruling's date; we did not evaluate that possibility in Bradley in light of other facts but added that Bradley's "argument misunderstands ATF 81-4." 892 F.2d at 636. As in Bradley we move on without final resolution--for the prosecutor's acquiescence in defendants' legal position has deprived them of any reason to offer arguments supporting it. Perhaps their reading has some basis that we do not now perceive. Firearms dealers would do well to assume, however, that all current transfers of auto sears must comply with the statutes, no matter when the devices were manufactured. The Court says that while ATF can waive the application of the Ruling to any making, possession and transfer of sears that occurred before the Ruling date, November 1, 1981, any making, transfer or possession that happens after that date, regardless of when the sear itself was made, is subject to the NFA. Of course, it is not now possible for owners of such sears to register them in compliance with the NFA, and thus to possess or transfer them in compliance with the NFA, as the enactment of 18 U.S.C. section 922(o) on May 19, 1986 ended registration of machine guns by ordinary persons. The effect of the Court's opinion is to make supposedly grandfathered drop-in sears into contraband. It is not yet clear whether ATF intends to rescind its previous construction of the Ruling, and declare all unregistered AR-15 sears, regardless of when they were made, to be contraband. This decision only has direct application in the states covered by the Seventh Circuit, Wisconsin, Illinois and Indiana. What will happen in other circuits, should this issue come up, is not certain. This decision also raises a question about the similar grandfathering that ATF gave to some open-bolt firing semi-auto firearms. In ATF Rulings 82-3 and 82-8, ATF decided that the Interdynamic KG-9 pistol, and the RPB SM10 and SM11A1 pistols and SAC rifles were machine guns, and in essentially identical language to that used in Ruling 81-4, also indicated that the Rulings would not be applied to the firearms made before the dates of the Rulings. In fact RPB had made and marketed their firearms pursuant to an April 11, 1979 letter from ATF determining that the SM10 pistol was not a machine gun. These grandfathered open-bolt firearms have been sold on the regular firearms market since these Rulings, and in fact draw a premium because of their grandfathered status, and the prohibition on further making of that style of firearm (except as a registered machine gun). The logic of the Cash decision would suggest that any possession or transfer of these open-bolt semi-auto firearms after the dates of the respective Rulings would also be subject to the NFA, regardless of when the guns were made. Thanks to Steve P. Halbrook for bringing this important decision to my attention.