• Ken Kraushaar

Another Mass Shooting, Another round of misinformation and confusion


"LEGAL DISCLAIMER: Please note that this content is not legal advice and does not constitute as an attorney / client relationship. If you need professional legal advice, please contact an qualified attorney that practices in this field. "

Unfortunately we've all recently born witness yet again to a senseless and seemingly random act of home grown terror, perpetrated by somebody who clearly had mental issues, and who fell through the cracks when it comes to background checks, etc.

unfortunately what also happens is that armchair quarterbacks, news casters, and other people opining on the legality of the firearms in question, the alterations, if any that made them shoot faster in this case and whether or not they were legal come into play, as do calls for more gun control, but much of what the "experts" are saying is false.

the following is an attempt to clear up some of the information that has been erroneously put out there by both sides of the political spectrum, as education is sometimes helpful in understanding the "how".

#1) the shooter reportedly used "bump stock" devices on his AR-15s which allowed them to fire at a rate faster than that of a human pulling the trigger by what is called bump firing. these items were deemed legal to own, sell, and use by the ATF's firearm technology branch.

what is bump firing?

its semi automatic firing done very quickly

note that the practical difference between a semi auto and a machine gun is the guns cyclic rate of fire. that means the number of shots fired per minute. with bump firing, the cyclic rate is the same as a machine gun, but only one shot is being fired per trigger pull.

so how can it be fired so fast?

on a semi auto gun, the cycle of operation occurs in the blink of an eye, so the guns rate of fire is only limited by your ability to move your finger quickly. for a video demonstration, go to slidefire.com

bump firing occurs when a shooter uses their non shooting hand to keep forward pressure on the guns forend during repeated firing. the recoil of each fired shot allows the trigger to re-index while the forward pressure continually moves the trigger against the stationary trigger. this rapid rocking of the gun fore and aft simulates full auto fire. the cyclic rate is the same as a machine gun, but only one shot is being fired per trigger pull.

there are many atf approved devices on the market which assist in bump firing.

ex.

AS_IV trigger device

hellfire trigger device

slide fire solutions shoulder stock

TAC trigger device

AKins accelerator (some versions)

again, the slide fire shoulder stock, which is pictured in some of the photos of the attacker's guns are perfectly legal to own as they technically are still pulling the trigger once per shot, it's just going very, very fast.

#2) Machine guns are not illegal to own. in fact, the law passed by president Regan in 1986 only banned the production of new machine guns. those guns that are still out there but can be bought, sold, and transferred as an NFA item. You need to be eligible to possess firearms in general. You must live in a state where NFA items are permitted and machine guns, specifically, are legal to possess. The machine gun you wish to acquire must have been manufactured on or before May 19, 1986.

What is the NFA?

the NFA refers to the National Firearms Act (NFA). Title 26, United States Code, Chapter 53. The implementing regulations are found in Title 27, Code of Federal Regulations, Part 479, and regulates several classes of firearms including machineguns, SBRs, SBSs, AOWS, destructive devices.

to make an NFA purchase, you must first apply to the ATF using a form 4.

What is a form 4?

this form is used to obtain permission from the ATF to buy an machine gun. it's a 2 page form with an additional two pages of instructions.

if you're buying a machine gun, the forms are submitted with: finger print cards, photos of the applicant, the signature of the chief law enforcement officer in your area, and $5. Then you wait for the background check to clear. this can take anywhere from 6 months to a year, and you're subjected to a more extensive background check than regular firearms are done through the NICS system or their state level intermediaries.

once ATF approved (registered), the legal owner will receive the approved form, which is proof of registration.

it indicates:

1) the firearm's description (manufacturer, caliber, and serial number.)

2)the owner's name and address (or that of the trust and LLC they own.)

3) tax paid stamp

4) the owner's photo (on back) unless the firearm is registered to a trust or corporation

Then the firearm must be registered with the NFRTR.

What is the NFRTR?

The NFRTR is the national firearm registration and transfer record. it is the database maintained by the ATF. it serves as the official record of manufactured NFA firearms.

note: the NFRTR only tracks NFA firearms. the national registration of GCA firearms is illegal under the GCA.

there is a difference between a firearm being under the purview of the NFA and it being registered with the NFRTR.

for example, installing a smooth bore barrel into a pistol causes it to fall under the purview of the NFA, but a firearm is not in the NFRTR until an applicant applies for ATF registration and that registration is granted. at that point the firearm is registered with the NFRTR.

#3.) one of the erroneously reported things you need to get a machinegun in the country is a "class III" license. the reality is that there is no such thing as a class III license.

Class III NFA Weapons / Title 2 firearms are not as commonly known nor as straight forward as the Title 1 firearms. All class III / title 2 weapons fall into 1 of 6 different categories.

1) Machineguns,

2) Short Barreled Rifles (SBRs),

3) Short Barreled Shotguns (SBSs),

4) Suppressors,

5) Any Other Weapon (AOWs) and

6) Destructive Devices.

All title 2 firearms are regulated the National Firearm Act. Some of the misconceptions of NFA firearms that the general public and even law enforcement have about this class of firearms.

in reality NFA firearms are:

1) legal in almost every state. Most all 6 categories above are allowed in just about all states within the Continental United States. A few states restrict machine gun ownership, others may restrict short barreled shotguns (SBSs) or suppressors, etc.

2) One does not need to obtain a “Class III” weapons license to own. In fact there really is no such thing as a class III NFA weapons license. When a Title 1 FFL dealer pays what is known as a Special Occupation Tax, he/she then becomes a SOT that can then deal in NFA/Title 2 weapons. SOTs have several classes too and they are based on the type of FFL license you currently hold. The term Class 3 comes from when a normal Type 1 (standard dealer) FFL holder pays his SOT tax. He becomes a Type 3 SOT hence the term Class 3.

3) Transferring ownership of an NFA weapon – All NFA weapons regardless of category (machineguns, silencers, etc.) are controlled during their transfer from one person/entity to another. These weapons transfer to another entity on what is called ATF tax forms. Each ownership transfer MUST be approved by the ATF before the transfer takes place. This approval takes sometimes many months. Generally individual transfer is approved in 3-4 months, dealer to dealer in 3-4 weeks. When the ATF approves the transfer, they cancel a tax stamp and this is why you sometimes hear some say class 3 stamp. Transfers from/to individuals require a one time $200 tax stamp to be paid for EACH transfer (AOWs require just a $5 stamp). These are considered tax paid transfers and usually are on an ATF form 4. Dealers can transfer to other dealers using a tax free Form 3.

If a person buys NFA weapon(s) or item from someone outside his/her domicile (home) state, the weapon must be transferred 1st to a SOT holder within the buyer’s state, similar to a Title 1 firearm transaction. It must go to a FFL/SOT dealer in the buyer’s state before going to the buyer.

4) Making of NFA weapons. In 1986 President Ronald Reagan signed a bill that basically stopped the making of any new machineguns. The Firearm Owners Protection Act, which would loosen restrictions on gun ownership with the reopening of interstate sales of long guns on a limited basis, legalization of ammunition shipments through the U.S. Postal Service (a partial repeal of the Gun Control Act), removal of the requirement for record keeping on sales of non-armor-piercing ammunition, and federal protection of transportation of firearms through states where possession of those firearms would otherwise be illegal, also contained an amendment, The Hughes Amendment, (William J. Hughes D- N.J.) which prohibited civilians from owning any machine gun manufactured after 1986.

All the other 5 categories (SBRs, SBSs, Silencers, AOWs and Destructive Devices) however can still be made, even by an individual, if he/she first applies for and receives permission to do so.

They will file an ATF Form 1 (maker form) and pay a $200 make tax fee. A civilian can still legally own any machinegun that was created PRIOR to May, 1986 as long as they get approval on the ATF form 4 discussed above. Remember that no civilian can possess a machinegun manufactured AFTER May 1986 except for law enforcement and military so there is a finite quantity available.

clandestine conversions such as lightning links, drop in auto sears, and the like, are also considered machine guns on their own and are regulated by the NFA as well. they cannot be manufactured any longer and must be registered to own. most of these items cost upwards of $10,000 or more, so they are not easily accessible and in limited quantities.

#4) when it comes to going after guns that can be modified to shoot full-auto, this is a slippery slope because you would have to go after all semi-automatic rifles, shotguns, and handguns. in reality- all semi-automatic firearms can be modified to fire fully automatic. sometimes, this can even accidentally happen when the sear of the firearm becomes worn down. this unfortunately would go after a whole class of firearm, which would be nearly impossible to do at this point.

#5) As of the most recent reporting, the shooter in the Las Vegas shooting passed all background checks. what this means is that there is nothing that would have prohibited him from passing them.

-one area that may or may not have helped is with regard to mental health information not being available from every state and given to the FBI for their background check system (NICS). the national shooting sports foundation, which is the industry representing foundation, actually has a campeign called fixnics.org, which has attempted to convince state legislatures to pass bills that mandate this information be made available. the state I live in, California, is one of the top states in the union in so far as providing information. a list of the best to worst states can be found on the fixnics.org website. This has been going on since the prior administration so it's not an issue created by the cost cutting measures of the new one.

-another area that has affected things in the past is the fact that the ATF is horribly understaffed, and FBI agents even missed the clear "NO" on Dylan Roof, who was the charleston church shooter, because of this. so another area we need to push is to actually have the FBI and the ATF staffed in such a way that they have the personell to conduct background checks. again, this issue has been one that's been going on for the past 8 years, and needs to be addressed by our congressional representatives in order to give the ATF and FBI the funding for the manpower they need for this crucial task.

-universal background checks wouldn't have solved the problem because the individual in this case had no prior history, and nothing so far that would have indicated that he would have done this. between that, missing info from mental health department records of the states, etc. can cause big holes in background checks to form.

#6 the founding fathers did know of and have access to weapons which we would call assault weapons, or capable of more than one shot. Such guns include the Puckle gun, which is similar to a Gatling gun in function, but featured a rotating cylinder and a fixed barrel and was crank operated but was around during the revolutionary war; another such firearm was the Belton flintlock, which is a multi shot musket. to say that they couldn't envision the kind of firearms we have now is erroneous at best, and naive at worst, because throughout our history with firearms, we've seen various makers try to make guns shoot faster, farther, and with more shots. this is why we went from flintlocks to cap and ball to cartridge in a relatively short period of time, with some of these developments occurring during the lifetime of our youngest founders. we sometimes erroneously believe that the founders couldn't envision the advances of today's firearms, but they already were advancing in the late 1700's when the founders were living, and we are somewhat guilty of our arrogance in assuming them to be technological neanderthals.

#7 The second amendment was not about states rights to form a militia to protect against the government,. it was and is about the people's right to protect themselves from the government.

This has been hotly debated for some time, with Keith Olbermann recently going off about the topic after the Las Vegas shooting, but the amendment specifically says that the "people's right to keep and bear arms shall not be infringed", as the people could be called to serve in the militia at any time, or could serve as volunteers in the army and have done so throughout our nations combat history from the late 1700s to the early 1900s.

The Militia Act of 1903 , also known as the Dick Act. This law repealed the Militia Acts of 1792 and designated the militia (per Title 10, Section 311) as two groups: the Unorganized Militia, which included all able-bodied men between ages 17 and 45, and the Organized Militia, which included state militia (National Guard) units receiving federal support. we as citizens, knowingly or not, are part of the unorganized militia, and as such are covered by the second amendment as the "militia". various court rulings have also upheld the right to keep and bear arms as an individual right.

It is somewhat a moot point to argue that the second amendment has somehow been bastardized by the "gun lobby" because the founders worded it very specifically, and the courts affirmed this right, just as we have the other rights in the bill of rights as individual rights, which are guaranteed to individuals under the constitution of the united states, and were the only rights at the time specifically guaranteed to individual citizens. prior to this, individuals had no specific enumerated rights.

I will write more on the topic in the days and weeks to come I'm sure. stay safe, and sane, and tell your loved ones you love them.

Ken Kraushaar is a gunsmith, Certified Firearms Specialist, Firearms history enthusiast, History buff and sportsman with over 30 years of shooting experience. He operates out of his shop in beautiful Sonoma County, CA.

#Technicalinfo #Education

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