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ATF's latest confiscation program
Posted By Jeff Knox On 07/25/2013 @ 7:40 pm In Commentary,Opinion | No Comments
Agents from the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF, have begun confiscating gun parts known as drop-in auto sears, or DIAS. A DIAS is a simple toggle device which, when installed in an AR-type rifle, along with several other critical fire-control parts, can convert a semi-auto AR into a full-auto assault rifle. The devices were originally unregulated, but in 1981 ATF declared them to be machine guns if possessed in conjunction with the other parts needed to make a conversion, but the agency made their new determination apply only to DIASes manufactured after Nov. 1, 1981. Now ATF is apparently using the records of a man who openly sold the devices for decades to track down purchasers and take their property as contraband – with the real possibility of then prosecuting those people.
One of the reasons gun owners tend to be completely opposed to the passage of any new gun laws – no matter how innocuous or reasonable seeming – is the erratic history of interpretation and enforcement of the current gun laws. This is also why I cringe every time I hear someone who supposedly supports gun rights – from politicians to the head of the NRA – calling for the feds to “enforce the laws already on the books.” The fact is, the gun laws that are already on the books are a labyrinth of confusion and booby-traps full of open-ended mandates, ambiguous definitions and unbridled bureaucratic discretion. Many innocent people have had their lives and livelihoods completely destroyed when federal agencies have decided to “enforce the laws already on the books.”
The law that was on the books up until 1981 said that a DIAS was just a chunk of metal unless it, along with at least three other “full-auto” parts, was actually installed in a gun without prior ATF approval. Then in 1981, ATF bureaucrats, at their own discretion and under their own authority, redefined them as machine guns, but in their decree, they included the following exception:
“With respect to the machine gun classification of the auto sear under the National Firearms Act, pursuant to 26 U.S.C. 7805(b), this ruling will not be applied to auto sears manufactured before November 1, 1981. Accordingly, auto sears manufactured on or after November 1, 1981, will be subject to all the provisions of the National Firearms Act, and 27 C.F.R. Part 179.”
For the following 30-plus years, it was widely understood that any DIAS manufactured prior to Nov. 1, 1981, was “grandfathered” and not subject to the rules regulating machine guns, and that it could be legally possessed so long as the possessor did not also possess either an AR15 rifle into which the auto sear could be installed or the other necessary M16 conversion parts. The belief in the legality of DIAS possession was so prevalent that a variety of sources continued publicly selling drop-in auto sears that they claimed were manufactured before ATF’s arbitrary cutoff date. Such DIASes were widely known as “Pre-81 Drop-In Auto Sears” and were routinely advertised in various firearms publications and online auction sites.
In 1986, the Firearm Owners’ Protection Act was passed with an amendment forbidding the future civilian transfer of any machine gun manufactured after May 19, 1986. There was also a provision strengthening the definition of machine gun to include any part designed or intended exclusively for the purpose of converting a gun into a machine gun. These two provisions meant that possession of a DIAS – even without a gun to put it in or the other needed parts – was a felony, and that a DIAS could only be legally registered by someone specially licensed to manufacture machine guns for the military and law enforcement – and then could only be possessed by a military or law enforcement agency.
The belief that pre-81 DIASes were exempt continued in spite of a ruling in 1998 from the U.S. Court of Appeals for the 7th Circuit, which declared that the ATF did not have the authority to “grandfather” or exempt pre-81 DIASes. That determination was not widely reported, nor was there any apparent effort on the part of ATF to enforce the ruling. In May of this year, the determination of the 7th Circuit was echoed, and expanded upon by judges in the Court of Appeals for the 6th Circuit. I wrote a column at the time warning that not only DIASes but a variety of other firearms and devices that have long been understood to be fully legal are actually completely illegal (at least in those Circuits) and that the owners of these devices everywhere are in jeopardy.
The fact that the same conclusion has been reached in two different Circuits means that it is very likely that the other Circuit Courts will follow the same line of reasoning and reject any claims of exemptions based on prior ATF determinations. It appears that ATF might be endeavoring to expedite that process, as I am aware of attempts by the agency to locate and confiscate pre-81 DIAS devices in the jurisdictions of both the 1st Circuit and the 3rd Circuit. Thousands of people are now at extreme risk for possessing items ATF has explicitly told them it is legal for them to have. Confiscations of drop-in auto sears could be just the tip of the iceberg, as ATF could start going after other “grandfathered” items such as open-bolt MAC and KG type pistols, Browning “G Series” Light Rifles, and certain other guns and devices. Anyone who owns one of these devices should seek qualified legal counsel immediately. Anyone who is contacted by ATF inquiring about such devices should refer them to counsel and also contact the Firearms Coalition to let us know about it.
As I have said before, while the rhetoric surrounding gun control always talks about targeting criminals and public safety, the reality is that enforcement of these laws is always aimed at regular gun owners whose only crime is believing that they are committing no crime.
The target of gun control isn’t criminals, it’s us. The objective of these laws is to make us criminals and make lawful gun ownership too difficult and dangerous to attempt.
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