How tricked-out can I trick my SKS?
Probably everyone who has an SKS rifle has wondered how far they can ''trick it out'' before it becomes a legally sanctioned (ok- illegal) weapon.
The quick answer is not very far.
The law on these firearms is very grey and, at times, somewhat illogical. What may or may not be done with an SKS can actually depend at times on whether it is a Chinese or Russian model.
For that example specifically, it apparently is illegal to have a bayonet (period) on a Chinese version, while a grandfathered pre-Bush ban (pre-October 1989) Russian may have the bayo.
Rather than re-writing and covering the same ground, I am reproducing an excellent in-depth James O. Bardwell article here. I had originally considered linking out to it, but decided to reproduce verbatim and store here for fear that it might (somehow, someday) shut down on the current link.
I felt it Important enough that I wanted it local so as not to be lost.
********
MODIFYING SEMI-AUTOMATIC FIREARMS
or
"What can I do to my SKS rifle?"
11/25/97 Copyright by James O. Bardwell, 1995, 1996, 1997. Permission
is given to reproduce this document or portions thereof with
attribution, for non-commercial, or non-governmental use only. No
claim to U.S. statutes or regulations quoted herein.
DISCLAIMER: What is here is correct to the best of my
knowledge, as of the date listed. If you have a more specific
question I urge you to take it up with BATF-Technology Branch,
and/or an attorney. This is a rather nebulous and gray area of
the law. Be warned.
Many federal rules govern modifications to firearms, it is
quite possible to inadvertently modify a firearm from a legal
configuration to an illegal one. The focus of this faq will be on
modifications to semi-automatic firearms, particularly so called
"assault weapons". You may also modify any firearm into one
regulated by the National Firearms Act (NFA), for info on that see
my faq on class 3 weapons. I will not be covering modifications
that might bring a gun under any of the myriad of state and local
laws regulating or banning semi-auto firearms. For local laws,
check locally.
Two federal laws govern modifications to semi-auto firearms.
18 U.S.C. sec. 922(r), governs "assembly" in the USA of semi-auto
rifles and shotguns out of imported parts. 18 U.S.C. sec. 922(v)
bans the making of various "semiautomatic assault weapons" for
civilian possession, as well as civilian possession of such guns,
after the effective date of the law, (9/13/94). Both are part of
the Gun Control Act (GCA), as amended. The GCA and NFA are where
nearly all federal gun control laws are located.
First, a brief note about the laws. In terms of federal gun
regulation, there are two sources of the rules. One is the laws
(statutes) passed by Congress. Second is regulations made up by
the executive branch agency charged with enforcing the law, given
by Congress the power to fill in the nooks and crannies of the
laws. See 18 U.S.C. sec. 926, for the grant of authority to the
Secretary of the Treasury to make regulations for enforcing the
GCA. The BATF is an arm of the Dept. of the Treasury.
The laws are codified in the United States Code (U.S.C.). The
regulations are published in the Code of Federal Regulations (CFR).
Unless the regulation is overturned by the courts, and the courts
are very lenient in reviewing the validity of regulations, they
have the force of law. The BATF, in particular, has a very bad
habit of not publishing some of their regulations, as they are
supposed to, but having them be essentially a secret, and requiring
you ask them about what they think the law means. This is
particularly true with the rules about what is a "sporting use" for
purposes of import. This sort of policy lets them escape the
public comment requirements of making a formal rule, and allows
them to change the rules without public notice, or having to
justify the change. The best source for what the feds have written
about the laws and their implementation is the publication,
"Federal Firearms Regulations Reference Guide" ATF P 5300.4
(10-95). This replaces the old ATF "Red Book" guide to federal gun
laws and regulations, and includes the text of the Crime Bill and
the interim regulations. As it has a yellow cover, I will call it
the "Yellow Book". It is free for the asking from ATF.
18 U.S.C. sec. 922(r)
This law was enacted after BATF used its power, under the Gun
Control Act to approve weapons for import, to end the import of
some semi-auto long guns that looked like assault rifles, or
machine guns, in 1989. See "Report and Recommendation of the ATF
Working Group on the Importability of Certain Semiautomatic
Rifles", July, 1989. Immediately after, folks discovered they could
legally avoid this by making the receivers here, and import the now
banned guns as parts kits (all parts but the receiver). In
particular B-West began to make AK receivers here and assemble them
with Chinese AK parts kits, in the regular pre-ban configuration.
Thus what had been a new rule from BATF (the import ban) was
enacted into law, to stop the domestic making of evil semi-autos
out of imported parts. In making regulations to implement this law
BATF ignored that aspect of the law's history, and first announced
a regulation that a rifle or shotgun would need to only have more
than one imported part to be covered by this law, rather than be
wholly made out of imported parts. In the face of protest during
the comment period, organized in large part by the NRA, BATF
relented, and rewrote the regulation, (see it below) deciding a
semi-auto rifle or shotgun needed to have 11 or more of the parts
on a list to be subject to sec. 922(r), that is to be considered
"imported".
The law - 18 U.S.C. sec. 922(r)
(r) It shall be unlawful for any person to assemble from
imported parts any semiautomatic rifle or any shotgun which is
identical to any rifle or shotgun prohibited from importation
under section 925(d)(3) of this chapter as not being
particularly suitable for or readily adaptable to sporting
purposes except that this subsection shall not apply to -
(1) the assembly of any such rifle or shotgun for sale or
distribution by a licensed manufacturer to the United States
or any department or agency thereof or to any State or any
department, agency, or political subdivision thereof; or
(2) the assembly of any such rifle or shotgun for the purposes
of testing or experimentation authorized by the Secretary.
However, just when you think that means what it says, BATF has
also decided, in making the regulation implementing sec. 922(r),
that "identical" means similar, and not identical. Put another
way, read the law to say; it is illegal for anyone to assemble a
semi-auto rifle or shotgun domestically that would be prohibited
from import were import attempted, out of imported parts. The law
(P.L. 101-647) took effect Nov. 30, 1990. Repair to rifles so
"assembled" before that date are OK, assembly on or after that date
is not, regardless of when the rifle was imported. Thus in order
to legally modify your SKS rifle in a way that would make it
prohibited from import, you need to have done that before the law
took effect. Regardless of when it was imported, you may not
modify it, legally, anymore, unless you add enough US made parts to
have it be considered US made under the regulation.
Sec. 922(r) applies to guns not covered by the Crime Bill's
ban on "semiautomatic assault weapons", for example an SKS rifle
that uses a fixed magazine. And it does not apply to pistols,
while the Crime Bill does. Sec. 922(r) does not cover weapons
subject to the National Firearms Act, if you register a weapon as
a short barreled rifle, for example, you may assemble it out of all
imported parts, into a bad configuration, and ignore sec. 922(r).
This is because sec. 922(r) does not cover weapons that are
imported under a different provision of law than sec. 925(d)(3).
NFA weapon import is regulated not in the GCA, but in the NFA, 26
U.S.C. sec. 5844. Also military Curio and Relic semi-auto long
guns, like the Russian SKS, are not imported pursuant to sec.
925(d)(3), but rather pursuant to sec. 925(e)(1). Thus they can
have a bayonet, while the non C&R Chinese SKS cannot. Likewise,
Russian SVT-40 rifles came in, even though they took a detachable
mag and had a bayonet lug and flash hider. In fact BATF has ruled
that if the gun is not in its original military configuration (like
a stripped receiver, or sporterized) it is no longer a C&R gun, and
cannot be imported as such, but would have to meet the "sporting"
test required for import under 18 USC sec. 925(d)(3). See ATF
Ruling 85-10.
Also be aware that you are not allowed one bad feature on an
imported gun, under sec. 922(r); while it may not become a
"semiautomatic assault weapon" (and violate sec. 922(v), below) if
you put a pistol grip stock set on your MAK-90 rifle, it will have
been assembled in violation of sec. 922(r); unless its parts
content is less than 11 of the listed parts being imported, all
the rest being USA made.
Note also that sec. 922(r) only bans "assembly", it is not a
crime to possess a weapon "assembled" in violation of this section.
However it may be subject to seizure and forfeiture, under some
circumstances, if ATF can show it was assembled in knowing or
willful violation of the Gun Control Act, under 18 U.S.C. sec.
924(d)(1), by clear and convincing evidence.
To see which imported parts are naughty on a domestic firearm
(11 or more) take a look at the regulations BATF created to
implement 18 U.S.C. sec. 922(r). They can be found at 27 CFR sec.
178.39, or at 58 Fed. Reg. 40587 (July 29, 1993). The regulation is
as follows:
27 CFR sec. 178.39
(a) No person shall assemble a semiautomatic rifle, or any
shotgun, using more than 10 of the imported parts listed in
paragraph (c) of this section if the assembled firearm is
prohibited from importation under section 925(d)(3) as not
being particularly suitable for or readily adaptable to
sporting purposes.
(b) The provisions of this section shall not apply to:
(1) The assembly of such rifle or shotgun for sale or
distribution by a licensed manufacturer to the United
States or any department or agency thereof, or to any
State or any department, agency, or political subdivision
thereof; or
(2) The assembly of such rifle or shotgun for the
purposes of testing or experimentation authorized by the
Director under the provisions of section 178.151; or
(3) The repair of any rifle or shotgun which had been
imported into or assembled in the United States prior to
November 30, 1990, or the replacement of any part of such
firearm.
(c) For purposes of this section, the term imported parts are:
(1) Frames, receivers, receiver castings, forgings or
stampings
(2) Barrels
(3) Barrel extensions
(4) Mounting blocks (trunions)
(5) Muzzle attachments
(6) Bolts
(7) Bolt carriers
(8) Operating rods
(9) Gas pistons
(10) Trigger housings
(11) Triggers
(12) Hammers
(13) Sears
(14) Disconnectors
(15) Buttstocks
(16) Pistol grips
(17) Forearm handguards
(18) Magazine bodies
(19) Followers
(20) Floorplates
Thus you can put an imported flash hider on your Colt AR-15 A2
HBAR Sporter, even though that is a configuration that would be
banned from import, as the gun is otherwise domestically made.
The regulation was re-written to allow exactly this, after a first
draft was put in the Federal Register (the initial proposed
rulemaking can be found at 56 Fed. Reg. 41105, August 19, 1991).
You could also use an imported magazine in your Colt gun, even
though that has three parts, according to the list.
But, if you want to build using all imported parts except the
receiver, or including the receiver (by altering a whole imported
rifle), you will have to make it in a configuration that BATF would
allow for import. You can ask the Technology Branch of BATF what
would be allowed. This question is not answered by sec. 922(r) or
the regulations, BATF seems to be perpetually changing what is OK
on an imported semi-auto and what is not. They haven't made rules
about it, it seems to be pretty fluid.
Some guidance as to SKS's can be gleaned from this letter to
the NRA from BATF Technology Branch, from an old rec.guns post,
this letter is also printed in the NRA magazine, American Rifleman
May, 1994, p.44:
--------
From:
Newsgroups: rec.guns
Subject: Text of ATF letter RE: SKS parts.
Date: 24 Mar 1994 20:12:18 -0500
Lines: 60
Quite frustrated with the discussions of the modifications
allowed on an SKS in the wake of Title 18 U.S.C. sec 922 (r) I
called the local (KCMO) office of the BATF and talked to an
inspector (that's what they called themselves, NOT agents). In a
previous post I told you all about their insistence that 922 (r)
covered modification of ANY imported firearm. Well I called
NRA/ILA and they faxed me the following letter they received on 2
MARCH 1994. This should clear up some of the misconceptions
rampant here and at local BATF offices.
--------
QUOTE FOLLOWS:
From: Dept. Of Treasury
BATF
Wash. DC
To: [name deleted]
NRA
11250 Waples Mill Road
Fairfax, VA.
Dear Sir:
[Snip snip] In answer to your specific questions, the following
modifications of an SKS type rifle WOULD _NOT_ BE A VIOLATION of
Section 922 (r):
1. Replace the existing stock and handguard with a non-folding
wooden or synthetic stock having either a Monte Carlo or thumbhole
design.
2. Attach a muzzle mounted recoil compensator, provided that the
device is not also designed as a flash suppressor.
3. Replace the standard configuration stock with a Monte Carlo or
thumbhole style stock and replace the fixed magazine with a
detachable magazine. THIS MODIFICATION MAY BE DONE PROVIDED THAT
THE BAYONET MOUNT IS COMPLETELY REMOVED FROM THE RIFLE.
4. Replace the existing 10 round magazine with a fixed magazine
of a larger capacity.
5. Replace the existing 10 round magazine with a fixed 5 round
magazine or install a block in the well of the 10 round fixed
magazine to limit its capacity to 5 rounds.
6. Replace the existing receiver cover with a cover having a
telescopic sight based and\or rings.
7. Replace the front and\or rear sight or install an ambidextrous
safety.
With respect to attaching a bipod to a standard configuration SKS
rifle; standard configuration SKS rifles are not approved for
importation with bipods. Therefore, the attachment of a bipod
would be a violation of Section 922(r).
END QUOTE
--------
Additionally, here is a letter received from BATF Technology
Branch, Jan. 1995.
_______________________________________________
DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
Washington, D.C. 20226
JAN 31, 1995
E:CE:F:TE:CHB
3310.0
Address
City, State
Dear xxxxxxxx
This refers to your letter of December 27, 1994, in which you ask
about modifications to a Russian SKS rifle.
Title 18, United States Code, section 922(r) provides that it shall
be unlawful for anyone to assemble from imported parts any
semiautomatic rifle or shotgun which is identical to any rifle or
shotgun prohibited from importation under section 925(d)(3) of this
chapter as not being particularly suitable or readily adaptable to
sporting purposes ....
A Russian SKS rifle in original military configuration, having a
bayonet lug and bayonet, fixed stock, and non-detachable 10 round
magazine, which was modified by threading the barrel for a firearm
silencer, would not be in violation of section 922(r). Assembly of
certain other components such as a folding stock or detachable
magazine, which would prohibit the firearm from importation, would
be in violation of section 922(r).
SKS rifles which do not have an ability to accept a detachable
magazine are not semiautomatic assault weapons as defined in 18
U.S.C. section 921(a)(30) and they are not subject to the
provisions of 18 U.S.C. section 922(v).
We trust that the foregoing has been responsive to your inquiry.
If you have any further questions concerning this matter, please
contact us.
Sincerely yours,
[signed]
Edward M. Owen, Jr.
Chief, Firearms Technology Branch
---------------------------------------
The July, 1989 ATF Report, which explains why ATF decided that
military style semi-auto rifles were "unsporting" and thus
prohibited from importation (for sale to civilians, anyway), lists
the criteria they considered important:
1. "Military configuration", which consists of: accepting a
detachable magazine, having a folding or telescoping stock, having
a pistol grip that protrudes conspicuously beneath the stock,
ability to accept a bayonet, having a flash suppressor, having a
bipod, having a grenade launcher, and having night sights.
2. Whether the gun is a semiautomatic version of a machine gun.
3. Whether the rifle is chambered for a cartridge shorter than 2.25
inches.
The fact that it has or doesn't have a particular feature will
not determine its suitability for import. The report says the
rifle must be judged in its totality to see if it is more like a
sporting rifle type, or a semiautomatic assault weapon type.
While the report does not include threaded muzzles as a feature of
the semiautomatic assault weapon type (which is what they were
banning, a type, not just particular rifles, that individually
might have a sporting use) that is clearly a no-no as of this
instant, at least on rifles using a detachable magazine. Likewise
the report indicates that the semiautomatic assault weapon type
uses a detachable magazine, however ATF has issued decrees related
to the SKS with fixed magazine, as well as with a detachable
magazine.
From the above, and from what semiautomatic rifles allowed for
import actually look like, the following general rules can be
gleaned:
If the gun is a rifle of the sort subject to sec. 922(r)
(imported, semi-auto) that accepts a detachable magazine it may not
have:
* pistol grip (it may have a thumbhole stock)
* flash hider or threaded muzzle (a sporting muzzle brake is OK)
* bipod (a sporting bipod is probably OK, one that clamps on, or
attaches by a swivel stud, not permanently attached to the gun)
* bayonet lug
* folding or collapsing stock
* night sights (luminescent sights)
* grenade launcher
* threaded muzzle (except permanently covered by a nut, or
something similar)
If the rifle does not accept a detachable magazine (for
instance an SKS) it is subject to the above restrictions, except
that it can have the bayonet lug intact on the gun, but not the
bayonet. It is also OK for it to have a threaded muzzle.
Of course the above does not help to explain the variation in
what ATF has allowed. Yugoslav made M70 AK style rifles caught in
Customs by the 1989 ban were allowed in (renamed M90) with threaded
muzzles with flash hiders, with the flash hider retaining pin fixed
in place. The bayonet lug was removed, and the gun was supplied
with a rather unusable thumbhole stock. Norinco AK74 style rifles
in .223 caliber also apparently caught in Customs were allowed in
with an AK74 muzzle brake on a threaded muzzle, with the spring
loaded retaining pin fully functional. Galil AR rifles, in .223
caliber, apparently trapped in Customs, were allowed in with a
heinous thumbhole stock, and a thread protector covering the muzzle
threads, not welded, soldered, glued or mechanically attached to
the gun in any way. On the other hand, some Norinco MAK-90 rifles
had part of the rear of the receiver cut away, so as to make it
hard for the (stamped) receiver to support a conventional shoulder
stock, should the thumbhole stock be removed, to be replaced with
a regular AKM stock set. Hungarian AKM rifles were not so altered,
nor were other Norinco rifles.
Thus, if the gun came with a thumbhole stock it is unlikely it
is legal to remove that and replace it with a pistol grip and
shoulder stock set you bought at a gun show or through Shotgun
News. If the rifle were importable in that configuraiton, the
importer would have brought the gun in that way. This law only
prohibits assembly, nothing prohibits you from buying that stock
set for your thumbhole MAK-90 and squirreling it away for a rainy
day, or when saner heads prevail and this sort of BS is repealed.
Additionally, in November, 1997, the Clinton administration
decided to suspend, for 120 days, the import of even "sporterized"
semi-auto rifles, altered to meet the criteria ATF developed after
its 1989 study. The suspension is supposed to give ATF time to
come with new definitions of sport, and will likely result in a
total prohibition on the import of semi-automatic rifles.
The Crime Bill.
In terms of weapon modification there are three important
amendments to the GCA in the Crime Bill; 18 U.S.C. sec. 922(v),
creating the new crime of possessing or making a semiautomatic
assault weapon, 18 U.S.C. sec. 921(a)(30), defining semiautomatic
assault weapon, and 18 U.S.C. sec. 923(i) adding a requirement that
semiautomatic assault weapons be marked with the date of making.
The laws and temporary regulations are reproduced below. The
regulations were proposed by ATF in the April 6, 1995 Federal
Register, pages 17446-17456. The regs implement all of the changes
in the Crime Bill; only those related to "semiautomatic assault
weapons" are reproduced below.
First, the law and regs on the crime itself.
18 U.S.C. sec 922(v)
(1) It shall be unlawful for a person to manufacture,
transfer, or possess a semiautomatic assault weapon.
(2) Paragraph (1) shall not apply to the possession or
transfer of any semiautomatic assault weapon otherwise
lawfully possessed under Federal law on the date of the
enactment of this subsection.
(3) Paragraph (1) shall not apply to-
(A) any of the firearms, or replicas or duplicates of the
firearms, specified in Appendix A to this section, as
such firearms were manufactured on October 1, 1993;
(B) any firearm that-
(i) is manually operated by bolt, pump, lever, or
slide action;
(ii) has been rendered permanently inoperable; or
(iii) is an antique firearm;
(C) any semiautomatic rifle that cannot accept a
detachable magazine that holds more than 5 rounds of
ammunition; or
(D) any semiautomatic shotgun that cannot hold more than
5 rounds of ammunition in a fixed or detachable magazine.
The fact that a firearm is not listed in Appendix A
shall not be construed to mean that paragraph (1) applies
to such firearm. No firearm exempted by this subsection
may be deleted from Appendix A so long as this subsection
is in effect.
(4) Paragraph (1) shall not apply to-
(A) the manufacture for, transfer to, or possession by
the United States or a department or agency of the United
States or a State or a department, agency, or political
subdivision of a State, or a transfer to or possession by
a law enforcement officer employed by such an entity for
purposes of law enforcement (whether on or off duty);
(B) the transfer to a licensee under title I of the
Atomic Energy Act of 1954 for purposes of establishing
and maintaining an on-site physical protection system and
security organization required by Federal law, or
possession by an employee or contractor of such licensee
on-site for such purposes or off-site for purposes of
licensee-authorized training or transportation of nuclear
materials;
(C) the possession, by an individual who is retired from
service with a law enforcement agency and is not
otherwise prohibited from receiving a firearm, of a
semiautomatic assault weapon transferred to the
individual by the agency upon such retirement; or
(D) the manufacture, transfer, or possession of a
semiautomatic assault weapon by a licensed manufacturer
or licensed importer for the purposes of testing or
experimentation authorized by the Secretary.
The regulations; ATF has divided the regs for this section into
several separate sections, and mixed this in with the regulation of
mags and other things that hold 10+ rounds, and were made after the
law took effect.
27 CFR Sec. 178.40 Manufacture, transfer, and possession of
semiautomatic assault weapons.
(a) Prohibition. No person shall manufacture, transfer, or
possess a semiautomatic assault weapon.
(b) Exceptions. The provisions of paragraph (a) of this
section shall not apply to:
(1) The possession or transfer of any semiautomatic
assault weapon otherwise lawfully possessed in the United
States under Federal law on September 13, 1994;
(2) Any of the firearms, or replicas or duplicates of the
firearms, specified in 18 U.S.C. 922, Appendix A, as such
firearms existed on October 1, 1993;
(3) Any firearm that--
(i) Is manually operated by bolt, pump, lever, or
slide action;
(ii) Has been rendered permanently inoperable; or
(iii) Is an antique firearm;
(4) Any semiautomatic rifle that cannot accept a
detachable magazine that holds more than 5 rounds of
ammunition;
(5) Any semiautomatic shotgun that cannot hold more than
5 rounds of ammunition in a fixed or detachable magazine;
(6) The manufacture for, transfer to, or possession by
the United States or a department or agency of the United
States or a State or a department, agency, or political
subdivision of a State, or a transfer to or possession by
a law enforcement officer employed by such an entity for
purposes of law enforcement;
(7) The transfer to a licensee under title I of the
Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) for
purposes of establishing and maintaining an on-site
physical protection system and security organization
required by Federal law, or possession by an employee or
contractor of such licensee on-site for such purposes or
off-site for purposes of licensee-authorized training or
transportation of nuclear materials;
(8) The possession, by an individual who is retired from
service with a law enforcement agency and is not
otherwise prohibited from receiving a firearm, of a
semiautomatic assault weapon transferred to the
individual by the agency upon such retirement;
(9) The manufacture, transfer, or possession of a
semiautomatic assault weapon by a licensed manufacturer
or licensed importer for the purposes of testing or
experimentation as authorized by the Director under the
provisions of Sec. 178.153; or
(10) The manufacture, transfer, or possession of a
semiautomatic assault weapon by a licensed manufacturer,
licensed importer, or licensed dealer for the purpose of
exportation in compliance with the Arms Export Control
Act (22 U.S.C. 2778).
(c) Manufacture and dealing in semiautomatic assault weapons.
Subject to compliance with the provisions of this part,
licensed manufacturers and licensed dealers in semiautomatic
assault weapons may manufacture and deal in such weapons
manufactured after September 13, 1994: Provided, The licensee
obtains evidence that the weapons will be disposed of in
accordance with paragraph (b) of this section. Examples of
acceptable evidence include the following:
(1) Contracts between the manufacturer and dealers
stating that the weapons may only be sold to law
enforcement agencies, law enforcement officers, or other
purchasers specified in paragraph (b) of this section;
(2) Copies of purchase orders submitted to the
manufacturer or dealer by law enforcement agencies or
other purchasers specified in paragraph (b) of this
section;
(3) Copies of letters submitted to the manufacturer or
dealer by government agencies, law enforcement officers,
or other purchasers specified in paragraph (b) of this
section expressing an interest in purchasing the
semiautomatic assault weapons;
(4) Letters from dealers to the manufacturer stating that
sales will only be made to law enforcement agencies, law
enforcement officers, or other purchasers specified in
paragraph (b) of this section; and
(5) Letters from law enforcement officers purchasing in
accordance with paragraph (b)(6) of this section and Sec.
178.132.
Sec. 178.132 Dispositions of semiautomatic assault weapons and
large capacity ammunition feeding devices to law enforcement
officers for official use.
Licensed manufacturers, licensed importers, and licensed
dealers in semiautomatic assault weapons, as well as persons who
manufacture, import, or deal in large capacity ammunition feeding
devices, may transfer such weapons and devices manufactured after
September 13, 1994, to law enforcement officers with the following
documentation:
(a) A written statement from the purchasing officer, under
penalty of perjury, stating that the weapon is being purchased for
use in performing official duties and that the weapon is not being
acquired for personal use or for purposes of transfer or resale;
and
(b) A written statement from a supervisor of the purchasing
officer, under penalty of perjury, stating that the purchasing
officer is acquiring the weapon for use in official duties, that
the firearm is suitable for use in performing official duties, and
that the weapon is not being acquired for personal use or for
purposes of transfer or resale.
Sec. 178.133 Records of transactions in semiautomatic assault
weapons.
The evidence specified in Sec. 178.40(c), relating to
transactions in semiautomatic assault weapons, shall be retained in
the permanent records of the manufacturer or dealer and in the
records of the licensee to whom the weapons are transferred.
Sec. 178.153 Semiautomatic assault weapons and large capacity
ammunition feeding devices manufactured or imported for the
purposes of testing or experimentation.
The provisions of Sec. 178.40 with respect to the manufacture,
transfer, or possession of a semiautomatic assault weapon, and
Sec. 178.40a with respect to large capacity ammunition feeding
devices, shall not apply to the manufacture, transfer, or
possession of such weapons or devices by a manufacturer or importer
for the purposes of testing or experimentation as authorized by the
Director. A person desiring such authorization shall submit a
letter application, in duplicate, to the Director. Such application
shall contain the name and addresses of the persons directing or
controlling, directly or indirectly, the policies and management of
the applicant, the nature or purpose of the testing or
experimentation, a description of the weapons or devices to be
manufactured or imported, and the source of the weapons or devices.
The approved application shall be retained as part of the records
required by Subpart H of this part.
Sec. 178.171 Exportation.
* * * Licensed manufacturers and licensed importers exporting
armor piercing ammunition and semiautomatic assault weapons
manufactured after September 13, 1994, shall maintain records
showing the name and address of the foreign consignee and the date
the armor piercing ammunition or semiautomatic assault weapons were
exported.
--------------------------------------------------------
This law establishes the crime of possessing a semiautomatic
assault weapon, and importantly exempts from that any such weapons
made and lawfully possessed before the law took effect. Thus any
such weapon made before hand is grandfathered. The primary point
of the regulations is to make concrete rules for the application of
the exceptions to the law. "Manufacture" is not currently defined
in the GCA or in the regulations; ATF regulations purporting to
define the word were struck down as inconsistent with the statute.
See National Rifle Ass'n v. Brady, 914 F.2d 475, note 2 (4th Cir.
1990).
Note that sec. 922(v) does not prohibit the import of
semiautomatic assault weapons. However all such weapons are
illegal to have, unless they were lawfully possessed under federal
law on 9/13/94. Was a weapon overseas on that date lawfully
possessed under federal law? This is sort of a toughie, as federal
law doesn't allow or prohibit anything outside the territory of the
USA, with very few exceptions. This is not a totally moot
question, as there are some guns which meet the definition of
semiautomatic assault weapon, which are imported under a different
part of the GCA than sec. 925(d)(3), the vehicle used by BATF to
end the import of most of those guns in 1989, and which would
continue to block such import today, without regard to the Crime
Bill. In the regulations ATF is taking the position that the
weapon had to have been in the USA to be grandfathered, as well as
have been made before the law took effect.
Also note the only other way for a civilian to have a
semiautomatic assault weapon, besides a grandfathered one, is one
presented to a retired law enforcement officer by his agency.
This could be a post-ban one, marked with a date of manufacture,
one that would otherwise be illegal for a civilian to have. Can
such a person treat it as his personal property, and sell it, or
leave it to his heirs when he dies? If not, as the law seems to
suggest, is such a restriction on personal property a
constitutional "taking"? One solution is if the gun is de-
activated anyone may own it at that point; if it is welded up.
Another solution is to remove from the guns enough of the evil
features, so that it is no longer an assault weapon.
Next, the definition of the banned object.
------------------------------------------------------------------
18 U.S.C. sec. 921(a)
(30) The term "semiautomatic assault weapon" means-
(A) any of the firearms, or copies or duplicates of the
firearms in any caliber, known as-
(i) Norinco, Mitchell, and Poly Technologies Avtomat
Kalashnikovs (all models);
(ii) Action Arms Israeli Military Industries UZI and
Galil;
(iii) Beretta Ar70 (SC-70);
(iv) Colt AR-15;
(v) Fabrique National FN/FAL, FN/LAR, and FNC;
(vi) SWD M-10, M-11, M-11/9, and M-12;
(vii) Steyr AUG;
(viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and
(ix) revolving cylinder shotguns, such as (or similar to)
the Street Sweeper and Striker 12;
(B) a semiautomatic rifle that has an ability to accept a
detachable magazine and has at least 2 of-
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath
the action of the weapon;
(iii) a bayonet mount;
(iv) a flash suppressor or threaded barrel designed to
accommodate a flash suppressor; and
(v) a grenade launcher;
(C) a semiautomatic pistol that has an ability to accept a
detachable magazine and has at least 2 of-
(i) an ammunition magazine that attaches to the pistol
outside of the pistol grip;
(ii) a threaded barrel capable of accepting a barrel
extender, flash suppressor, forward handgrip, or
silencer;
(iii) a shroud that is attached to, or partially or
completely encircles, the barrel and that permits the
shooter to hold the firearm with the nontrigger hand
without being burned;
(iv) a manufactured weight of 50 ounces or more when the
pistol is unloaded; and
(v) a semiautomatic version of an automatic firearm; and
(D) a semiautomatic shotgun that has at least 2 of-
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath
the action of the weapon;
(iii) a fixed magazine capacity in excess of 5 rounds;
and
(iv) an ability to accept a detachable magazine.
And the regulation:
27 CFR sec. 178.11
Semiautomatic assault weapon. (a) Any of the firearms, or
copies or duplicates of the firearms in any caliber, known as:
(1) Norinco, Mitchell, and Poly Technologies Avtomat
Kalashnikovs (all models),
(2) Action Arms Israeli Military Industries UZI and Galil,
(3) Beretta Ar70 (SC-70),
(4) Colt AR-15,
(5) Fabrique National FN/FAL, FN/LAR, and FNC,
(6) SWD M-10, M-11, M-11/9, and M-12,
(7) Steyr AUG,
(8) INTRATEC TEC-9, TEC-DC9 and TEC-22, and
(9) Revolving cylinder shotguns, such as (or similar to) the
Street Sweeper and Striker 12;
(b) A semiautomatic rifle that has an ability to accept a
detachable magazine and has at least 2 of--
(1) A folding or telescoping stock,
(2) A pistol grip that protrudes conspicuously beneath the
action of the weapon,
(3) A bayonet mount,
(4) A flash suppressor or threaded barrel designed to
accommodate a flash suppressor, and
(5) A grenade launcher;
(c) A semiautomatic pistol that has an ability to accept a
detachable magazine and has at least 2 of--
(1) An ammunition magazine that attaches to the pistol outside
of the pistol grip,
(2) A threaded barrel capable of accepting a barrel extender,
flash suppressor, forward handgrip, or silencer,
(3) A shroud that is attached to, or partially or completely
encircles, the barrel and that permits the shooter to hold the
firearm with the nontrigger hand without being burned,
(4) A manufactured weight of 50 ounces or more when the pistol
is unloaded, and
(5) A semiautomatic version of an automatic firearm; and
(d) A semiautomatic shotgun that has at least 2 of--
(1) A folding or telescoping stock,
(2) A pistol grip that protrudes conspicuously beneath the
action of the weapon,
(3) A fixed magazine capacity in excess of 5 rounds, and
(4) An ability to accept a detachable magazine.
Semiautomatic pistol. Any repeating pistol which utilizes a
portion of the energy of a firing cartridge to extract the fired
cartridge case and chamber the next round, and which requires a
separate pull of the trigger to fire each cartridge.
Semiautomatic shotgun. Any repeating shotgun which utilizes a
portion of the energy of a firing cartridge to extract the fired
cartridge case and chamber the next round, and which requires a
separate pull of the trigger to fire each cartridge.
--------------------------------------------------
The definition of "semiautomatic assault weapon" is the heart
of the law. It is also sure to be in court, as it has language
that has already been voided in previous challenges to other
assault weapon ban laws. In the 6th circuit court of appeals
decision in Springfield Armory v. Columbus, 29 F.3d 250 (6th Cir.
1994), that court struck down a ban on listed guns very similar to
this, as well as a ban on "copies" as being vague. That court
suggested a criteria test, also in this law, would pass muster
under the standards they were applying. The Colorado Supreme court
decision in Robertson v. Denver, 874 P.2d 325 (Colo. 1994), a
challenge to the city of Denver assault weapon ordinance, also
struck down one of the "assault pistol" criteria here, guns derived
from automatic weapons, as being too vague. The court said it was
unreasonable to expect gun owners to know or research the design
history of their guns. The court in the Columbus case agreed with
that logic, and also struck down a similar clause of the Columbus
ordinance. Both this law, and the Denver and first Columbus
ordinances are based, more or less, on the California Roberti-Roos
assault weapons law.
Additionally, some of the "listed" guns either aren't semi-
autos (e.g., the "Steyr AUG" is a machine gun, the semi-auto is the
AUG-SA), or aren't the names of guns sufficient to identify them.
For example, the "Colt AR-15"; no such gun was ever made by Colt,
the only gun ever made whose name was "AR-15" that I have been able
to track down was the first prototype M-16 machine guns made by the
ArmaLite division of Fairchild. Some M-16 machine guns were marked
"AR-15 Model 614"; early Colt made semi-auto rifles are marked" AR-
15 Model SP1". No Colt gun was ever called just "AR-15", to my
knowledge. The "Norinco, Mitchell, and Poly Technologies Avtomat
Kalashnikovs (all models)" clause is gibberish. All of these
either don't ban anything, or are too vague to be enforceable.
BATF apparently agrees, they have approved the sale of, as non
"semiautomatic assault weapons", AR type rifles, including ones
made by Colt, that have only one bad feature, a pistol grip. They
have approved the sale of a SWD M11/9 gun, called the PM11/9, which
is the same as the banned gun except it has an unthreaded barrel,
and a 10 round magazine. It also has a different way of latching
the mag than the M11/9. Likewise Intratec has gotten approval for
a version of the TEC-22 called the "Sport 22", that doesn't have a
threaded barrel, and comes with a 10 round magazine. Intratec has
also gotten approval for the AB10, a pistol that is essentially the
TEC-DC9M, except that it has no threads. The DC9 type, with its
barrel shroud, is apparently successfully banned. I am unsure why
the slide on most pistols (except perhaps the Beretta 84, 85 and 92
and similar copies) is not a "shroud". But what do I know. AK and
AKM copies, mutilated so as to not appear to be of the
semiautomatic assault weapon type (see the discussion of 922(r),
above) are also being imported. As are sporterized copies of the
HK91, from Greece and Portugal. Inclusion on the list, even when
the model actually exists, is meaningless, as banning "copies" is
unconstitutionally vague, according to the 6th circuit in the
Columbus case, and one need only change it a bit, and change the
actual name, and it is off the list.
The key part of this definition is the generic criteria part;
banning pistols, shotguns and rifles by features. For instance, in
order for a semi-auto rifle to be banned, if it is not on the list,
it must be fed by a detachable magazine (and apparently not a belt,
for instance) and it must have two or more of the listed features.
This is the part of the law to be careful of.
Thus an AR-15 type rifle with only one feature is OK. And an
AR-15 stripped receiver only, although defined as a "firearm" by
the Gun Control Act (18 U.S.C. sec. 921(a)(3)(B)), is not a
"semiautomatic assault weapon" until it has two or more of the
listed features. Having the gun be complete as to parts, but
unassembled will also meet the criteria to be a "semiautomatic
assault weapon" and either grandfather the gun, if done before the
law took effect, or if after, get the owner in trouble. And if it
is made into such an item, after the effective date of the law, by
adding the two or more of the listed features to it, it must be
marked in accordance with sec. 923(i), and it is illegal for a
civilian to possess it, or to make it. As a practical matter, if
the stripped receiver was made before the law took effect it will
be hard for BATF to prove when it was assembled, before or after
the ban. However BATF did their annual compliance inspections at
a number of AR rifle and receiver makers right after the ban became
law, to record the serial numbers of ungrandfathered stripped
receivers they had in inventory, even though they were made before
the law took effect.
Note also that this law bans some NFA weapons, for example the
fact that the Street Sweeper and Striker 12 were re-classified as
"destructive devices" doesn't exempt them from being banned
entirely for future manufacture for civilian sale. Likewise making
an NFA weapon (like a short barreled rifle) out of all imported
parts, to avoid sec. 922(r), doesn't avoid sec. 922(v), and that
former loophole is closed, at least to guns that would be both
banned from import, and are in such a configuration as banned under
sec. 922(v). However one could still turn their imported MAK-90
into a short barreled rifle, and have the pistol grip type
furniture on it; as long as it still didn't have a bayonet lug,
threaded muzzle and so on. Only one bad feature would be OK in
that case.
Magazine capacity is irrelevant. It is perfectly OK to put a
30 round AR magazine in a post-ban made AR with only one bad
feature, and which is thus not a semiautomatic assault weapon.
Doing so does not make it a semiautomatic assault weapon, if it
wasn't one before. The only time mag capacity matters is to remove
guns from the purview of the law. If a gun is a semi-auto that
takes a detachable mag, but for which there are no mags holding
more than 5 rounds, (or which has somehow been modified to not
accept mags holding more than 5 rounds), it is not an assault
weapon, just as a gun with a fixed mag is not an assault weapon.
FFL dealers may still buy assault weapons, for sale to law
enforcement officers, or entities. They have to give the seller a
statement that the weapon is being acquired for that purpose. They
may not keep it when they give up their FFL; it is illegal for
civilians to possess these guns. ATF also takes the position that
it is illegal for FFL dealers to acquire assault weapons for any
other purpose than sale to approved entities; for example they may
not acquire them for the purpose of selling off the parts as spares
for other guns. Nor may they acquire the guns for the purpose of
stripping them of their evil features and re-selling them as non
assault weapons. However, the purpose for acquisition is one
thing, and what happens later is another. I see nothing
prohibiting a dealer who acquired assault weapons for law
enforcement sale, who is later going out of business, from removing
the bad features from the gun and keeping it, or selling it. Or
stripping the parts and selling them. Assuming the gun is banned
by features (as 99% of assault weapons are) once the features are
gone, so is the assault weapon. Just because the receiver will
have a date, and a "Law enforcement government entities only"
marking, does not make it an assault weapon. And the absence of
such markings does not insure it is a non-assault weapon.
And finally, the marking requirement.
-------------------------------------------------------
18 U.S.C. sec. 923(i)
. . . The serial number of any semiautomatic assault weapon
manufactured after the date of the enactment of this sentence
shall clearly show the date on which the weapon was
manufactured.
And the regulation:
Sec. 178.92 Identification of firearms, armor piercing ammunition,
and large capacity ammunition feeding devices.
* * *
(a)(2) Special markings for semiautomatic assault weapons,
effective July 5, 1995. In the case of any semiautomatic assault
weapon manufactured after September 13, 1994, the frame or receiver
shall be marked ``RESTRICTED LAW ENFORCEMENT/GOVERNMENT USE ONLY''
or, in the case of weapons manufactured for export, ``FOR EXPORT
ONLY,'' in the manner prescribed in paragraph (a)(1) of this
section.
(3) Exceptions.
(i) Alternate means of identification. The Director may
authorize other means of identification of the licensed
manufacturer or licensed importer upon receipt of a letter
application, in duplicate, showing that such other identification
is reasonable and will not hinder the effective administration of
this part.
---------------------------------------------------------------
Note: The date of enactment of the Crime Bill is September 13,
1994, any semiautomatic assault weapon made after that date needs
to have the date of making marked on it. This does not apply to
firearms that are not semiautomatic assault weapons, for instance
a stripped AR receiver, or a post-ban AR with only one bad feature.
Those need not be marked with a date. However several makers of AR
type guns have changed the receiver markings to denote ones made
after the ban.
What about replacing parts on a grandfathered weapon?
This is a subject of interest, and as usual ATF has come through
with an answer, even if they made it up...
Although not in the regulations (yet, it may well be whenever ATF
publishes final regs for the Crime Bill), in the Q&A section of
the new ATF "Yellow book", the following exchange occurs (p. 112):
"(O7) - Are replacement parts for grandfathered semiautomatic
assault weapons and large capacity ammunition feeding devices
subject to regulation under the law?
No. Parts may be replaced in grandfathered semiautomatic
assault weapons and grandfathered feeding devices without
violating the law. However, if the frame or a receiver for a
semiautomatic assault weapon is defective, the replacement
must be made by the weapons manufacturer or importer. The
replacement must be marked with the same serial number as the
original receiver, and the original receiver must be
destroyed. However, a manufacturer or importer who is unable
to mark the replacement receiver with the same serial number
as the original receiver may seek a marking variance in
accordance with 27 CFR 178.92. In addition, the permanent
records of the manufacturer or importer should indicate that
the receiver for the weapon has been replaced."
What do you do if the maker of your weapon is overseas, and the
importer is defunct? Ask ATF. I am sure they can come up with
something.
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