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Fully-Automatic Firearms

Thursday, July 29, 1999

Fully-automatic firearms, first introduced in the late 1800s, are those that, after firing a round of ammunition, automatically reload and fire again, performing this sequence repeatedly as long as their triggers are depressed and their ammunition supplies have not been expended.1 By comparison, other types of firearms -- semi-automatic, bolt-action, lever-action, pump-action, single shot, revolver, double-barrel, etc. -- fire only once each time the trigger is pulled.2

Fully-automatic firearms that, due to their weight and that of their typical ammunition supply are too heavy for a single person to carry and use, are properly referred to as "machine guns." Examples include those that are operated while mounted on tripods or affixed to vehicles, aircraft, or ships, and their ammunition supply is provided on belts containing 200 rounds or more.3 However, the terms "machine gun" and "machinegun" have been adopted under various federal and state laws to refer to any firearm capable of firing fully-automatically, regardless of size, weight, or other considerations.4

The National Firearms Act

By the 1920s lightweight fully-automatic firearms were available for sale to the general public. Private ownership of fully-automatic firearms resulted in no particular crime problem, but became an issue after the prohibition of liquor in 1919 by the 18th Amendment, (repealed in 1933 by the 21st Amendment). Prohibition was followed by an increase in organized crime, which anti-gun politicians over-estimated to involve the use of submachineguns, especially the Thompson .45 caliber, nicknamed the "Tommy Gun." Following passage of restrictions on fully-automatic firearms in several states, the administration of the newly-elected president, Democrat Franklin D. Roosevelt, launched a campaign for a federal restriction. In a style of language copied by President Clinton in his war against semi-automatic firearms, President Roosevelt claimed in 1934 that "Federal men are constantly facing machine-gun fire in the pursuit of gangsters."5 The result of FDR's campaign was the National Firearms Act of 1934, which to this day requires that before a private citizen may take possession of a fully-automatic firearm he must pay a $200 tax to the Internal Revenue Service and be approved by the Treasury Department to own the firearm, which is registered to the owner with the federal government.6

U.S. v. Miller

In 1939, the U.S. Supreme Court overturned a decision of the U.S. District Court for the Western District of Arkansas, which in summary judgment had declared Section 11 of the NFA to be unconstitutional. In the case, two defendants had been accused of possessing an unregistered short-barreled shotgun, like "machineguns," subject to the National Firearms Act.

The Supreme Court made no decision regarding the NFA's constitutionality. However, it suggested that, at the very least, firearms protected under the Second Amendment included those useful for military purposes, which, of course, would include "machineguns" and "short-barreled shotguns." Bearing in mind that the lower court had issued its ruling without having first held a trial in which evidence could have presented, the Court said:

"In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

The Court also recognized that the right to arms is an individually possessed right, stating:

"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

The Gun Control Act

In 1968, Congress approved the Gun Control Act (P.L. 90-618), a provision of which [18 U.S.C. 925(d)(3)] is interpreted by the Bureau of Alcohol, Tobacco and Firearms (BATF) to prohibit the importation of fully-automatic firearms for sale to civilians.

The Hughes Amendment

In 1986, to reaffirm Congress's intent in passing the GCA and prevent improper law enforcement by BATF, Congress approved the Firearms Owners' Protection Act (FOPA).7 Near the end of debate on the measure, late at night with most members of the House of Representatives absent, Rep. William Hughes (D-N.J.) introduced an amendment related to fully-automatic firearms. Despite an apparent defeat of the amendment by voice vote, Rep. Charles Rangel (D-N.Y.), at the time presiding over the proceedings, declared the amendment approved. Hughes and Rangel were longtime "gun control" supporters.

BATF interpreted the amendment as a prohibition on the civilian possession of any fully-automatic firearm manufactured after May 19, 1986. The effect of the interpretation has been to "freeze" the number of privately owned fully-automatic firearms at roughly 150,000, an exact figure being unavailable due to privacy protection requirements that apply to tax-based laws such as the National Firearms Act. The crime-fighting utility of the 1986 "freeze" was questionable, since no legal, civilian-owned fully-automatic firearm had been used to commit a violent crime. BATF's director at the time, Stephen Higgins, had testified before Congress in 1986 that the misuse of legally-owned fully-automatic firearms was "so minimal as not to be considered a law enforcement problem." Farmer v. Higgins

After passage of the FOPA, a law-abiding Georgian named Farmer applied for the registration of a fully-automatic firearm manufactured after May 19, 1986, but his application was rejected by BATF. Farmer contended that BATF's interpretation of the measure as a prohibition on possession of fully-automatic firearms manufactured after May 19, 1986 was incorrect, since the law exempted fully-automatic firearms newly-manufactured under the authority of the United States, thus it would exempt firearms approved for registration by BATF. Farmer also questioned whether Congress had the power, under the Constitution, to ban the mere possession of a type of firearm and whether the exercise of any such power would violate the Second Amendment to the Constitution. The U.S. District Court of the Northern District of Georgia ruled in Farmer's favor. On appeal by the federal government, the Court of Appeals for the Eleventh Circuit reversed the decision with respect to BATF's interpretation, but did not rule on the constitutional issues raised. The NRA's Firearms Civil Rights Legal Defense Fund asked the Supreme Court of the United States to review the case. The Court declined, as it does the vast majority of cases. Thus the decision stands in the Eleventh Circuit, which encompasses Alabama, Florida and Georgia.

Court decisions invalidating parts of the National Firearms Act

Rock Island Armory was charged with manufacturing "machineguns" in 1987 and 1988 in violation of the registration requirements of the National Firearms Act. In U. S. v. Rock Island Armory, Inc. (773 F. Supp. 117, C.D. Ill. 1991), the chief judge of the U.S. District Court for the Central District of Illinois dismissed those charges because the NFA sections upon which they were based were "without any constitutional basis." The judge noted that the Supreme Court had previously ruled that the NFA's registration requirement was constitutional only because it was enacted for the purpose of facilitating the collection of tax revenue. Thus, he concluded, because the Hughes Amendment had been interpreted as prohibiting the possession of fully-automatic firearms manufactured after May 19, 1986, the NFA's registration requirement no longer served its tax collection purpose. The judge said that since "Congress has no enumerated power to require registration of firearms," the constitutional basis for the NFA registration provision no longer existed. The government initiated an appeal of the decision, but later requested that the appeal be dismissed, thus the Rock Island decision stands. In U.S. v. Dalton (960 F.2d 121, 10th Cir. 1992), the U.S. Court of Appeals for the 10th Circuit adopted the Rock Island precedent.

A word about semi-automatic firearms

Since 1989, "gun control" supporters have tried to trick the public into believing that semi-automatic firearms are fully-automatic, and that their sales were unregulated.8 In his State of the Union address on Jan. 24, 1995, President Clinton copied the style of exaggeration used by President Roosevelt 60 years earlier against fully-automatic firearms, claiming the "assault weapon" law was needed to protect people from a "hail of assault-weapon attack."9 Campaigning in New Hampshire in February 1996, Clinton said the law was necessary so "people can't be sprayed innocently while they're walking up and down the block."10 Network television news groups have shown video footage of machine guns being fired while reporting on semi-automatic firearms issues. Anti-gun activists have said, preposterously, that it is easier to buy an "assault weapon" than a gallon of milk. For the facts about semi-automatic firearms, including statistics from state and local law enforcement agencies showing that so-called "assault weapons" are used in a very small percentage of violent crimes, see the NRA's "Semi-Automatic Firearms" fact sheet, available by phone request (1-800-392-8683) or on the "World Wide Web" ().

Endnotes:

1. Energy produced by firing a round of ammunition is used to cycle the firearm's internal mechanism, ejecting the case of the fired round and inserting an unfired round of ammunition into the chamber of the barrel.

2. Semi-automatic firearms reload themselves after firing. Bolt-, lever-, and pump-action firearms, and single shots, require manual operation of the firearm's loading mechanism after each shot. Double-barrels allow one shot to be fired from each barrel, each with a separate operation of the trigger. With a revolver, pulling the trigger and/or retracting the hammer rotates a cylinder holding the ammunition (usually 5-6 rounds).

3. Hand-held fully-automatic firearms include rifle-caliber rifles, submachineguns (rifles that use pistol-caliber ammunition), and machine pistols. Ammunition is usually carried in magazines containing 20-30 rounds.

4. Under federal law [26 U.S.C. 5845(b)], "The term machinegun' means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended solely and exclusively, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person." The frame or receiver is the part bearing the manufacturer and model name, and serial number, and in or to which most of the firearm's other parts are attached.

5. Carol Skalnick Leff and Mark H. Leff, "The Politics of Ineffectiveness: Federal Firearms Legislation 1919-1938," The Annals of the American Academy of Political and Social Science, May 1981.

6. The registration provision especially delighted FDR's Attorney General, Homer Cummings, who had led the New Deal Justice Department's vigorous, but unsuccessful, campaign for registration of handguns and other firearms. In 1937, Cummings said "Show me the man who does not want his gun registered and I will show you a man who should not have a gun." Early in his administration, President Clinton floated the idea of firearm registration and firearm owner licensing, only to see the idea rejected by law enforcement groups.

7. P. L. 90-618, 18 U.S.C. 921-929. In enacting the law, Congress found that the rights of citizens to keep and bear arms under the Second Amendment; to security against illegal and unreasonable searches and seizures under the Fourth Amendment; against uncompensated taking of property, double jeopardy, and assurance of due process of law under the Fifth Amendment; and against unconstitutional exercise of authority under the Ninth and Tenth Amendments; require additional legislation to correct existing firearm statutes and enforcement policies; additional legislation also was required to reaffirm the intent of the Congress, as expressed in section 101 of the Gun Control Act of 1968, that "it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes, or provide for the imposition of Federal regulations or any procedures or requirements other than those reasonably necessary to implement and effectuate the provisions of this title."

8. Anti-gun activist Josh Sugarmann had laid out the strategy behind this sort of rhetoric, saying "The public's confusion over fully-automatic machine guns versus semi-automatic assault weapons -- anything that looks like a machine gun is presumed to be a machine gun -- can only increase the chance of public support for restrictions on these weapons." ("Assault Weapons In America," The New Right Watch, 1988)

9. The term "assault weapon" is a slang derivative of the formal term "assault rifle" (from the German, "sturmgewehr") which identifies a compact, intermediate-power, selective-fire rifle. Selective- or select-fire means that a firearm is capable of firing fully- or semi-automatically, with the mode of fire selected usually by the position of a lever on the side of the firearm.

10. Notwithstanding the president's claims, the law doesn't eliminate any firearms, but rather only requires modifications to the appearance of various newly-manufactured semi-automatic firearms.

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