Legal Side: V1N1

By James Bardwell and Basil St. Claire

A December 24, 1996, decision of the District of Columbia Court of Appeals may finally represent the end of ATF’s “once a machine gun, always a machine gun” policy. Said the court;

“According to the agency, for weapons other than machineguns, removal of the features that led to the weapon’s classification as a firearm suffices to remove the weapon from the Act’s coverage. Firearms Enforcement Program, ATF Order 3310.4B paragraph 83(e)(2). For machinegun receivers, however, removal of the features causing their classification as machineguns does not remove them from Firearms Act coverage, and thus the Gun Control Act’s prohibition. Under the agency’s once-a-machinegun-always-a-machinegun policy, only complete destruction can remove machinegun receivers from the Firearms Act’s coverage. We can find nothing in the text of the Firearms Act to support this difference in treatment.“ Having examined the Bureau’s arguments from text, structure, legislative history, and underlying policy, we find no reasonable basis for its once-a-machinegun-always-a-machinegun interpretation of the Firearms Act.”

The Facts

In 1988, F.J. Vollmer & Co., a licensed manufacturer of NFA weapons, acting upon advice from regional ATF officials, modified 175 Heckler & Koch model 94 (HK94) 9mm semi-automatic rifles by removing the welded on block at the rear of the magazine well, and by drilling a hole there to accept a swing-down type trigger frame, as opposed to the clip-on type that came on the rifles. This modification rendered the receiver identical in all relevant respects to that of the fully automatic MP5 machine gun. The idea was to then sell these rifles with a registered auto sear installed in the trigger pack, as transferrable machine guns. The rifle could not be legally used with a stock MP5 trigger group in the swing down type trigger frame. However, having a modified semi-auto trigger group in an unmodified MP5 style trigger frame, operating as the MP5 trigger frame does, as opposed to the semi-auto clip on type, enhanced the value of the converted guns. The receiver modification made the guns closer copies to the factory MP5 model.

The ATF office in Washington overruled the advice from the regional office, and decided that the modified guns were machine guns in themselves, with or without the registered sear. Further, ATF informed Vollmer that even if Vollmer welded the hole back up, and welded a block back on, so as to re-make the rifles in exactly their state before Vollmer modified them, ATF would still consider them to be machine guns. This was an application of ATF’s “once a machine gun, always a machine gun” policy mantra.

Vollmer was left sitting on a large number of rifles that should have had a lot of value as HK94 semi-automatic rifles, and were instead being treated by ATF as machine guns registered after May 19, 1986, which cannot not be transferred to individuals. As post-May machine guns, the rifles were worth considerably less than a semi-automatic HK94 rifle.

Vollmer then submitted two transfer applications to ATF. One was for one of the HK94 rifles, as modified, with a registered sear installed. The second was for one of the modified HK94 rifles, which had been restored to semi-automatic configuration, with a registered sear installed. ATF rejected both transfers.

The Lawsuit

Looking at a significant loss of money, Vollmer sued ATF. In 1992, in Vollmer v. Higgins, 1992 U.S. Dist. LEXIS 9450 (D.D.Cir. 1992), Judge Norma H. Johnson upheld ATF’s denial of both transfers. Vollmer appealed and the District of Columbia Court of Appeals, in Vollmer v. Higgins, 23 F.3d 448 (D.C.Cir. 1994) reversed the trial court as to the transfer application for the re-made rifle, and upheld the denial of the transfer of the HK94 modified to machine gun receiver configuration.

The court decided that the modification to the HK94 rifles did convert them into machine guns themselves, with or without a registered sear. As the modification was done after 1986, the court decided the resulting guns were not transferrable to individuals. The court refused to consider ATF bound by the advice of the regional officials, as it directly contradicted the laws passed by Congress. While the court acknowledged that ATF had permitted individual owners of similar conversions to keep the guns as transferrable guns, particularly conversion sears for AK style guns that required a hole be drilled in the receiver of the host semi-automatic rifle, ATF had never permitted the manufacturers of such guns to keep them as transferrable guns. Further, the court considered the law surrounding the making ban (18 U.S.C. section 922(o)) to be clear, and no machine guns made after that date could be transferred to individuals. There was no argument as to the modified HK94 receiver being identical to the MP5 receiver, in all relevant respects.

However, the court rejected ATF’s argument as to the HK94 modified back into semi-automatic configuration. ATF contended that somehow the re-modified gun was readily restored back into a machine gun, because it had been one in the past. ATF had no explanation as to how it was any more restorable, or modifiable than a HK94 that had never been altered. The court could not understand how, if the restoration was into a condition identical to a HK94 imported as a semi-automatic rifle, there was any difference between the modified machine gun and a semi-automatic rifle. The court could find no basis for such a distinction in the statute itself. The court characterized the policy as both “incredible” and unreasonable.

Attorney’s Fees

As a prevailing party, Vollmer went back to the trial court seeking attorney’s fees from the government, under the Equal Access to Justice Act, which provides for an award of attorney’s fees to parties suing the U.S. government, if they “prevail” and if the government’s position in the litigation is found to be “lacking substantial justification”. In an unpublished decision, the trial judge, Judge Johnson, decided Vollmer was entitled to no fees, as it lost on the first issue, and the government’s position on the re-modified HK94 rifle, the second issue, was “substantially justified” based upon the then current case law, and understanding of the statute. Since the trial judge had agreed with the ATF position to begin with, this was not too surprising.

In perhaps the most important ruling of this case, in Vollmer v. Magaw, 102 F.3d 591 (D.C.Cir 1996) (The director of ATF had changed over the course of the case, so the current director was substituted for the former director, as defendant) the D.C. Court of Appeals reversed the trial court for the second time. The appeals court decided that while Vollmer had lost on the issue of the modified HK94, it had prevailed on the second issue, and further, the government’s position lacked justification. The appeals court criticized the trial court for merely parroting the ATF argument’s for the policy, and failing to look at those arguments in light of the rejection of them by the court of appeals.

In the context of the attorney’s fee application, the court looked again at the ATF once a machine gun policy, and decided it lacked justification under current law, in that it expanded the definition of machine gun in a way not required or contemplated by the National Firearms Act. The court concluded that defining some semi-automatic rifles as machine guns was contrary to Congressional intent, as well as the letter of the law - the court pointed to the 1994 regulation of some semi-automatic rifles as evidence Congress never intended the NFA to cover semi-automatic rifles as machine guns. ATF argued “machinegun” was supposed to be defined expansively by the NFA; the court reached the opposite conclusion.

The Court of Appeals did reduce the requested fees by an amount they decided was the equitable value of the first claim Vollmer lost on, 30%. The court rejected ATF’s suggested formula, of 19% of the requested fees, based on ATF’s claims about the relative market value of the guns had Vollmer prevailed on the first claim, versus the market value of the guns in the semi-automatic configuration. The court also refused to award Vollmer’s attorney, Stephen P. Halbrook, enhanced fees for being a specialist in firearms law, finding that that sort of specialization was not what Congress had in mind when providing for enhancement of the base fee for certain special lawyer skills. The base rate, $75, plus a cost of living adjustment since the statute was enacted, is not shabby, however.

The Ramifications?

This decision is only binding on cases brought within the D.C. Circuit, which only covers Washington, D.C. Anyone aggrieved by a decision of an administrative agency, such as ATF, can bring suit there, if they wish. Alternatively, one could also sue in the federal district court for their area of residence, or business, as the case may be. However, the fact that the D.C. Circuit not only found the once a machine gun policy inconsistent with the statute, but found the position lacked substantial justification based upon the law, means the court didn’t consider the issue a close call, and bodes well for other circuits to follow suit, should a similar case be brought elsewhere. Further, if ATF chooses to stick to the policy, and thumb their noses at the D.C. Circuit, ATF risks further awards of attorney’s fees, especially if suit is brought in the D.C. Circuit, which is always an option.

Application of the Doctrine?

The court was very careful to limit their discussion of the once a machine gun policy to the context at hand, a semi-automatic rifle receiver converted into a machine gun receiver, then converted back.

However one issue that comes up regularly is that of M14 rifles being disposed of by the US Department of Defense. An M14 machine gun receiver is functionally identical to that of the Springfield Armory, Inc., M1A semi-automatic receiver, in all significant ways, except for the lug at the bottom rear of the M14 receiver that holds the selector. An M14 receiver without the lug is substantially identical to an M1A receiver; however the “once a machine gun always” policy has prevented M14 rifles from being removed from the purview of the NFA by removing the lug. While this is a slightly different scenario than that in Vollmer, as the starting point is a machine gun, not a semi-auto, the end result is the same, taking something that was a machine gun and turning it into a semi-auto. The source of the machine gun, conversion from a semi-auto in the Vollmer case, from the factory as a machine gun in the case of the M14, was not a determining issue in the Vollmer case. What mattered was a comparison between the modified machine gun receiver, and the approved semi-auto receiver.

A complication is the 1994 Crime Bill ban on further making of semi-automatic assault weapons. Since the M14 would be converted into a semi-automatic after September 13, 1994, the effective date of that law, the rifle would, in all likelihood, have to comply with 18 U.S.C. section 922(v), and be configured like current production Springfield, Inc., M1A rifles, and lack a bayonet lug.

One source of such modified M14 rifles could be the Civilian Marksmanship Program (CMP), the privatized DCM program, which currently is authorized to sell unneeded .30 caliber rifles from the U.S. Department of Defense. Currently that consists only of M1 Garand and a very few 1903A3 rifles. While DCM had expressed an interest in selling modified M14 rifles in the past, ATF policy about it being a machine gun even after removal of the selector lug stood in the way. It shouldn’t be an issue any more.

This article first appeared in Small Arms Review V1N1 (October 1997)
and was posted online on February 2, 2018


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