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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.
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.