“I‘ll take a semiautomatic riﬂe any day of the week over a bolt action, and twice on Sunday.” That’s what my husband told me when I confessed my love of the Mauser M98 bolt-action. A discussion ensued, and we were not talking hunting – we were discussing war. Our passion for riﬂes and history often leads to a great deal of research and conversation. Neither of us has served in the military, but the conversation thankfully extends beyond the theoretics of our living room to those who have ﬁrst-hand experience to tell it how it is, or was. Speaking with veterans is an opportunity neither of us will ever turn down. Our veterans, after all, are our heroes.
IT HAS BEEN MY HONOR to personally listen to tales of heroism and horror from World War II vets who have experiences ranging from retrieving the bodies of their fallen comrades on Utah Beach to ﬁghting in the Battle of the Bulge, the ﬁnal Nazi Germany oﬀensive. I have watched one of the Chosin Few, a US Marine Corps division who fought in the Chosin Reservoir, wipe tears from his face as he divulged only a small part of his experience in Korea; a friend and ﬁrearms instructor who is a Vietnam Marine shared with me the day he almost died, and now celebrates annually; Purple Heart recipients from our recent wars in the Middle East have revealed acts of horror impossible to comprehend without experiencing them ﬁrsthand; and in addition to America’s heroes, I have also heard ﬁrsthand from those who served in the Axis military.
In all these conversations, I have never heard how any particular riﬂe was more responsible than another for saving or taking human life, or for winning or losing a battle. These surviving storytellers instead focus their successes on much more important phenomena: battle strategy, bravery and luck. Statistical history suggests that many soldiers never even ﬁred their riﬂes in combat during WWII. Some data suggests as few as 12 percent, with arguments to the contrary, and at least one expert suggests soldiers purposefully missed their human targets. Similar studies suggest that small arms were only responsible for an estimated 10 to 20 percent of the total WWII casualties.
Statistics, however, do not stop the debates. Historians and gun enthusiasts continue to credit or blame particular riﬂes with winning or losing battles. Competitors challenge one another to long-distance matches with antiques, and well-known shooters ﬁlm their time on the range, allegedly staging a direct comparison of era riﬂes to prove one is better than the other.
While these feats are interesting, and provide direct comparisons of a speciﬁc riﬂe feature, a complete analysis of any war riﬂe must take into account much more than test ﬁres of speed and accuracy on a range. Battle riﬂes deserve a comparison that includes details of their intended purpose and the battle strategy for implementing that purpose. After all, isn’t a perfect riﬂe one that reliably performs as it was intended in an eﬀective and eﬃcient manner?
THE GERMAN MAUSER KARABINER 98 KURZ, or K98k, is a true phoenix from the ashes of WWI, and despite the challenges faced by its creators, it fulﬁlled its purpose during WWII, is respected by gun enthusiasts around the world and has served as a stable platform for the development of modern riﬂes for almost 100 years.
After the Great War, nations around the world realized the need to improve standard military riﬂes. American military planners studied the eﬀectiveness of bolt-action repeating riﬂes, and concluded there was a need to develop a semiautomatic infantry riﬂe. The Germans, on the other hand, were saddled with the terms of the Treaty of Versailles. The signing of the treaty on June 28, 1919, not only oﬃcially ended World War I, but restricted the German army to 100,000 men and forbade the country from producing military weaponry.
Those determined to re-arm a German infantry would have to do so secretly while outsmarting the Inter-Allied Military Control Commission inspectors tasked with ensuring the treaty’s terms were followed.
The Germans worked to improve upon their WWI Mauser Gewehr für Deutsche Reichspost, or Gew 98, bolt-action riﬂes by creating the K98k in secret manufacturing plants. The resulting surreptitious riﬂes were fully assembled under two ﬂoors of underwear manufacturing in Switzerland.
BY JUNE 21, 1935, the K98k was oﬃcially adopted as the German service riﬂe. Its 24-inch barrel and overall 43-inch length is much shorter than the Gew 98. Without a bayonet, ammunition or a sling the K98k weighs 8.38 pounds. With iron sights it has a 550-yard eﬀective ﬁring range, which is increased to over 1,000 yards when ﬁtted with a telescopic sight. The riﬂe holds ﬁve 7.92x57mm Mauser cartridges (originally 197.5 grain), which can be loaded from a stripper clip or one by one.
Like a Porsche, the K98k is German perfection in design and engineering, and carries this ideal through multiple features, but its heart and soul is its Mauser M98 action. Why is the Mauser action so much better than other bolt-action systems? It exempliﬁes two words: strength and reliability.
One reason for the Mauser’s strength is that the bolt’s two main locking lugs were moved to the front just behind the bolt head, unlike early repeaters with only one lug or their lugs positioned at the back of the bolt. These lugs allow for higher-pressure cartridges to be ﬁred safely, and are the reason that the Mauser system is stronger than that of the Lee-Enﬁeld and Mosin-Nagant actions, which require some strengthening to handle the same pressure. Backing up the two front lugs, the Mauser action also includes a third safety lug at the rear of the bolt.
Not only does the Mauser action deliver the power to handle the higher caliber rounds, it also has the strength via its extractor to eject fully loaded, heavy-dud rounds everytime. Not all bolt-actions are capable of this feat, and can leave duds dancing around in the ejection port, causing jams.
AS FOR RELIABILITY, the Mauser action eliminates operator-caused malfunctions that other bolt-actions cannot, including jams due to double loading, failures to load – due to short-stroking or otherwise – and failure to eject duds and casings. It is the Mauser’s large and nearly indestructible claw extractor, which gives the action its control-feed operation, keeping the round under the control of the bolt from the moment it is stripped from the
magazine. The control feed, as opposed to push-open-feed bolt-actions, ensures that each cartridge is held to the bolt face until achieving a positive insertion into the chamber, regardless of riﬂe position. The Mauser action also prevents double feeds, because it is impossible to have a round in the chamber and grab a second round.
Keeping the cartridge on the bolt face until ejected also allows the shooter to reliably extract a round even if the bolt is never fully closed. If you fail to lock the bolt with a push-feed action, you can leave the round seated in the chamber, and you will have to get it to fall out or even pick it out with your ﬁngers – not a good situation for a soldier or hunter. This task may not even be possible, depending on what is causing the malfunction in the ﬁrst place.
As a primary goal for improvement to their battle riﬂe, the Germans sought to ensure that soldiers always loaded a new round. To enhance this feature, they developed the follower at the magazine into a bolt catch. The bolt on a Mauser action cannot be pushed forward while unloaded because the follower in the magazine pops up and blocks the bolt from going forward until it is actually reloaded (pushed down by another round). Also, due to the ejector’s location, it is impossible to short-stroke a Mauser action and close the bolt without ejecting the casing and without loading another round. By the time the bolt is far enough back to eject the empty shell, it is far enough back to grab another round while cycling it forward.
FOLLOWING THE ORIGINAL German production criteria, it was impossible to cheaply mass-produce K98ks. Each K98k went through an elaborate 25-hour process before it was considered perfect. The barrel was entrusted only to graduates from a special barrel-straightener’s school. It’s no wonder Germany’s unemployment rates dropped substantially after Hitler withdrew from the League of Nations (now known as the United Nations) in 1933.
The painstaking measures required to ensure that every part of each riﬂe was manufactured to perfection also required a special army of inspectors. Each had their own stamp of approval, called an Absnahmestempel (acceptance stamps), aka Waﬀenamt stamp. These stamps appear on multiple K98k parts as either Weimar or Nazi eagles, depending on the manufacturer and year of manufacture. Each riﬂe was test ﬁred, as opposed to just spot checking and testing a single riﬂe per batch. A test round was even pushed backwards through the barrel and then forensically examined for any imperfections. Only after passing this arduous testing did the riﬂe receive the Beschußstempel, and riﬂes that were deemed highly accurate were ﬁtted with telescopic sights and became sniper riﬂes. Despite the elaborate manufacturing and inspection process, over 2 million German soldiers were armed with K98ks by the time German forces invaded Poland on September 1, 1939. The cost of this rearmament was not cheap – over 90 billion Reichsmarks were spent between 1933 and 1937 alone.
Of course, times change, and towards the end of 1943 the German standards gave way to the greater need for mass production. Production time per riﬂe was reduced to as little as 14 hours. If you compare only the bolt of an early production K98k with one from a 1944 riﬂe, you will see that the Porsche is now compromised for production purposes and oﬀered as a Volkswagen. The earlier bolt is beautiful and polished; the latter, simple but functional.
THE GERMANS TURNED TO alternative manufacturers later in the war – namely, their prisoners. Albert Speer implemented the supposed plenipotentiary Heinrich Himmler’s earlier request to produce arms in concentration camps. It is estimated that the camp at Buchenwald produced over 340,000 K98ks on behalf of the manufacturer Gustloff Werke. Old photographs depict prisoners at the original concentration camp of Dachau, repairing and assembling K98k riﬂes from components. During my visit to Dachau, there were no obvious signs of the manufacture of K98ks that once took place there. In fact, it wasn’t until after our visit that I learned Dachau prisoners had produced the means to empower their enslavers.
Due to the Germans attempting to outsmart the Treaty of Versailles’ Control Commission, deciphering the origins of a K98k can be a puzzle-solving process. Special K98ks, such as those issued to the Waffen-SS, bear unique markings. Among the 14 million K98ks produced, over 100 combinations of manufacturer code and date markings are known to exist, with new variations still being discovered.
To me and many other collectors, this is all part of the challenge of collecting historic riﬂes. I have been able to determine that my ﬁrst K98k has a combination of Weimar Beschußstempel and Nazi eagles. The number coding, the date and the combination of eagle styles tell the riﬂe’s tale, and clearly identiﬁes it as one manufactured by Sauer & Sohn in 1939. Also, part of the fun is telling a riﬂe’s tale post-war. K98ks were reconditioned and put to use all over the world. The Norwegian armed forces continued to use recycled K98k actions in military and civilian sniper and target riﬂes into the 2000s. US soldiers even encountered K98ks in Iraq. Some of them, ironically, were employed by the Israeli army, but only after stamping Israeli markings on top of the Nazi symbols.
BY FAR THE greatest critique of the K98k is its rate of ﬁre. As with any other bolt-action, soldiers could only ﬁre as quickly as they could operate the bolt. Critics of the German’s bolt-action-armed infantry blame Hitler for losing WWII because he refused to arm his infantry with faster, semiautomatic riﬂes.
When WWII began, the German infantry was not unlike other armies – armed with a mix of bolt-action riﬂes and some form of machine gun. Germany’s strategy for implementing these weapons diﬀered.
They emphasized the machine gun, usually an MG-34 or an MG-42 (Maschinengewehr 34/42) as their primary infantry weapon. A German squad early in the war would have four machine guns, and after 1944 six. The K98k was only intended as the backup support to the more ominous weapon and for sniping. German battle strategy did not intend for individual soldiers to engage the enemy.
In contrast, the Allies employed machine guns as support and point defense weapons. The American’s squad-based weapons, usually Browning automatic rifles, were not comparable to the German’s belt-fed or saddle-drum magazine that could fire faster (1,200 rounds per minute) and longer. This opposite strategy left the American soldiers relying on their individual firepower. In that situation the US rifle caliber .30 M1 Garand was the “greatest battle implement ever devised,” according to General Patton, because at a minimum it equalized the American’s firepower with that of the Nazis.
Both military doctrines had advantages and disadvantages. If you arm one squad with K98ks and the other with M1s or submachine guns at less than 500 yards, the soldiers with the M1s or submachine guns have the advantage. But when you add the use of a machine gun to the mix, per the German strategy, that system takes the advantage. Even in urban combat the K98k still had beneﬁts including its powerful ammunition that was better able to penetrate walls and other cover. The Germans recognized the importance of a submachine gun and married its advantages with a higher-caliber round towards the end of the war –creating the Sturmgewehr 44 – but mass production of these new riﬂes was not fully accomplished before the end of the war.
TODAY, THE MAUSER M98 action remains the precision instrument in the world of bolt-actions. Almost every centerﬁre bolt gun today uses a Mauser M98 action and operating principles with minor diﬀerences. Quite an astounding fact, given that Peter Paul Mauser patented the M98 bolt-action design in 1895. Not only does the action live on as the old faithful and reliable of bolt-actions,it carries on as a top-of-the line luxury action as well. For a mere $12,495, the new Mauser M98 Magnum combines the strength of the ’98 action with modernized features. The Mauser action is also appreciated by elite snipers who value the ﬁrst shot, guaranteed hit over faster repeat ﬁre.
Although German WWII K98ks are highly sought after by collectors, they can still be found as foreign capture riﬂes imported to the US. I found mine a couple of years ago on the shelf at a Big Five Sporting Goods store for a few hundred dollars. These war relics live on as inspiration, history and as platforms for the next leap forward.
And yes, dear husband, I see your points about the semiautomatics. They certainly hold their place in both war and hunting. Finding one that provides the powerful, ﬁrst-shot, reliable tack of a Mauser action is indeed possible. For three to four times the price, I might ﬁnd a one to match the power and precision of a M98. ASJ
After the new ATF rule affecting gun trusts was signed into law on January 4 2016, I quickly turned to my newly published book, Infringed, to see how much of the information would now be out of date. I devoted several chapters to explaining the possession and transfer of National Firearms Act (NFA) firearms and the benefits of gun trusts.
After reviewing all of the chapters with gun-trust specific information, I smirked to myself. Only one paragraph out of the entire book would need to be updated. Like much of the current gun-control measures, the new gun-trust loophole rule doesn’t accomplish much except to cause spontaneous, enthusiastic applause from those who believe the rhetoric.
It was asserted that Rule 41F will prevent gun violence, because it will require background checks “for people trying to buy some of the most dangerous weapons and other items through a trust, corporation, or other legal entity.”
The problem is, every person who uses a trust to purchase a firearm has always – even before this new rule – undergone a background check by completing Form 4473 at the dealer’s office
The problem is, every person who uses a trust to purchase a firearm has always – even before this new rule – undergone a background check by completing Form 4473 at the dealer’s office, just as with every other gun purchase in America. It is also worth noting that criminals do not create gun trusts or submit paperwork to the ATF to purchase a firearm. Even more, in a properly drafted gun trust, the trust terms specifically prohibit the transfer of firearms to anyone who is prohibited under federal, state or local law from possessing a firearm. In fact, one of the primary reasons I draft gun trusts for my clients is to help gun owners and their families obey the gun laws by working within the confines of our government’s parameters.
The “most dangerous weapons” referenced by the current Administration are firearms subject to the NFA – silencers, short-barreled rifles and shotguns and fully automatic firearms, to name a few. These firearms are rarely used by criminals. The mass shootings that have supposedly prompted this new rule did not involve NFA firearms.
Because it targets law-abiding Americans, not criminals. Contrary to the proposed assertion that Rule 41F only succeeds in imposing a new tax burden on working Americans to the tune of at least $5.8 million a year, and imposing more bureaucracy on law-abiding citizens who wish to acquire NFA firearms, lawful purchasers of these items will now need to submit even more paperwork – photographs and fingerprints – to the ATF and yet more to local law-enforcement agencies – a notice that they are attempting to purchase an NFA firearm. All of this is in addition to the special ATF forms requiring personal information and undergoing the regular NICS background check, which has always been standard.
Targeting law-abiding citizens to effect gun control is not new. When Congress passed the NFA in 1934, it did so with the intent to tax certain firearms so they would be unaffordable. The authorities knew the criminals would not register their firearms. Instead, they intended to make the purchase of certain firearms so expensive, due to the new tax, that the average American could not afford to purchase them. In 1986, another law affecting citizens was passed – the Firearm Owners Protection Act (FOPA) completely banned civilians from possessing or transferring machine guns manufactured after 1986. This law was passed even though approximately 175,000 machine guns were in circulation at the time, and not a single one was linked to criminal activity. The new law, however, made the limited machine guns that could still be possessed and transferred unaffordable for most. Despite the inconvenient effects of Rule 41F, rest assured that the rule does not affect the heart and soul of gun trusts. It does not change the primary reasons for creating a trust to hold your firearms. The rule only creates an inconvenience that should prompt you to create a gun trust and purchase NFA firearms prior to the rule’s effective date of July 13, 2016.
A gun trust is a special type of trust that is designed to hold all of your firearms and firearms-related accessories. Gun trusts make it much easier for your loved ones to handle your firearms should you become incapacitated or die, boosts your ability to share and transfer NFA firearms and helps ensure all state and federal laws are followed.
Gun trusts have become the planning tool for gun owners whose collections include NFA firearms. One of the primary reasons is the ability to share possession of the NFA firearms with other trustees. Unlike other firearms, unless restricted by your state’s laws, NFA firearms can only be possessed by the person to whom the firearm is registered. There is no exception for family members or other people with whom you live. If you leave your NFA firearm at home where it is accessible to other people, you and the other people in your home are violating federal law.
Most NFA gun owners are aware of this gun-trust benefit. But many gun owners are not aware that gun trusts are important tools for all gun owners, whether or not a collection includes NFA firearms.
Gun trusts are important for all gun owners, because they prepare you and your loved ones for your death and incapacity by responsibly addressing your firearms and keeping your affairs out of the court system. Planning for the possibility that you will be incapacitated (whether from age or accident), even if temporarily, is important for everyone. It is even more important for gun owners, because if you don’t plan, then government has a plan for you. The government’s plan is a public, expensive, judge-controlled system that will take away your right to own a firearm.
All gun owners should try to avoid the court system if they are incapacitated or die by creating general estate planning documents and a gun trust.
When properly written, gun trusts are powerful asset protection and estate planning tools. A well-drafted gun trust will achieve the following for the gun owner who creates the trust:
Rule 41F only affects gun trusts that will hold NFA firearms. If your trust holds or will acquire NFA firearms, know that anyone who is listed as a responsible party of the trust will need to provide additional information for the government registry.
All questions about the new rule cannot yet be answered. This is because the ATF will be issuing further guidelines in the future. These guidelines will explain the ATF’s interpretation of Rule 41F. Until these guidelines are issued, some questions about how Rule 41F will affect trusts remain unknown. For now, we know the following:
If your gun trust was prepared by my office, we may suggest a few revisions, but your gun trust is still a great tool and will not be invalidated by the new rule. Under Rule 41F, the only responsible parties in our trusts are the trust’s current trustees and the grantor (creator) of the trust. We are creating a method (and waiting for the ATF guidelines) to make the future acquisition of NFA firearms as seamless as possible for our clients. We will be updating you with more direction as soon as we believe the advice to be solid and unchanged by the new ATF guidelines.
♠ If you do not have a gun trust, now is the time to get it done and submit paperwork to the ATF for any NFA firearms you have been hoping to acquire. If you submit the paperwork prior to July 13, 2016, you will not need to submit an extra set of fingerprints or a photograph, or send a notice to your chief law enforcement officer (CLEO);
♠ If you acquire NFA firearms after July 13, 2016, you will need to submit a photograph, fingerprints and a CLEO notice, but you do not need to update the ATF when adding more trustees to your trust (responsible parties) after you receive your tax stamp. So, if you create a trust and submit an application to acquire these “most dangerous weapons” prior to the rule taking effect on July 13, then you will not need to provide additional information unless you make another purchase after adding responsible parties to your trust. There is no need to update the ATF when adding responsible persons (more trustees) between applications.
♠ My colleagues and I are actively working on materials to update trusts, advise if your trust needs to be updated, and provide future guidance on utilizing a gun trust.
♠ If you have a trust provided by a gun shop or an online form, we can assist you in reviewing your trust to determine if any changes need to be made. For people who purchased an NFA trust from a gun shop or someone who isn’t a lawyer, you are likely in need of a lot of assistance.
In summary, the undesirable affect on most individual gun owners of the proposed rule is that anyone considered a responsible person on a gun trust must submit a photograph, fingerprints and send notice to law enforcement to receive or make an NFA firearm.
Sharing the possession of NFA firearms through a gun trust remains a wonderful benefit of a properly drafted trust. However, our gun trusts are designed to provide this benefit and so much more: They are legal gun safes that will alert unknowledgeable citizens and attorneys to the restrictions on the transfer and possession of firearms, they outline a plan for the gun owner’s death and also for the gun owner’s incapacity, and they create a dynasty trust for the gun owner’s children. ASJ
Despite the failings and negative media exploitation of the ATF as a whole (Waco, Ruby Ridge, Operation Fast & Furious, ammo bans, new gun-trust rules and the enforcement of numerous executive orders come to mind), the individual agents who process our National Firearms Act (NFA) and Federal Firearms License (FFL) paperwork are usually kind, helpful and often sympathetic human beings. Many of them are not anti-gun. I know ATF agents who have served our country through military service, or have operated their own gun-related businesses.
The enlightened gun owner must remember that it was not the ATF that passed the tax act in 1789, or the NFA in 1934, or even the GCA in 1968; Congress did.
The truth is, many gun owners loathe the ATF. Gun business owners fear they will fail to dot an “i” or cross a “t,” and lose their livelihood. Gun owners unabashedly abhor the unrelenting infringement on our constitutional protections by our own government, and many fear they will accidentally commit a felony and face prosecution for their ignorance. One of the ATF’s assistant directors suggested that no matter what side you are on, we can all agree that we do not want the bad guy to have a gun. If we can agree on that, then we’re working together.
The problem, of course, is the law’s ever-expanding deﬁnition of bad guy, and what, exactly, constitutes public safety. In the 1920s, public safety meant not allowing hardworking Americans to enjoy a beer at ﬁve o’clock. A tax on alcohol in 1789, rather than any criminal activity, gave birth to the agency and it was nestled under the Department of Treasury. While prohibition ended in 1933, the NFA passed Congress in 1934, implementing America’s ﬁrst tax on ﬁrearms and giving this tax-enforcement agency another reason to exist. At that time the NFA imposed an outrageous $200 tax – the equivalent of over $3,526 in today’s value – on gangsters’ favorite ﬁrearms: machine guns, shortbarreled shotguns and suppressors (silencers).
Rather than expect the criminals to obey the law and register ﬁrearms – which no one actually expected would happen – Congress intended to remove these weapons from circulation amongst the citizenry by taxing them into inﬁnity. If citizens could not aﬀord them, they could not buy them; if they could not buy them, they could not get into criminal hands. By passing the NFA, our government oﬃcially allowed criminals to dictate the interpretation of the 2nd Amendment, and concurrently targeted the ﬁrearms possessed by responsible gun owners in a severely misguided eﬀort at crime control.
Today, nothing sends chills down the backs of law abiding gun owners quite like a federal law-enforcement agency speciﬁcally trained to spot and apprehend people for violating ﬁrearms laws. This chill is not because these gun owners intend to commit crimes – it is because they do not.
Firearms laws are not like speed limits where there are clear signs posted along the highway to tell you what the limitations are and when you might be facing a violation. Instead, gun owners are left to their own devices to sort through the many levels of federal, state and local laws, as well as the ever-expanding interpretations of those laws by the ATF and judges who do not always agree.
The American gun owner suﬀers from the aﬄiction of so many laws, and most have little, if any, comprehension of all the ways they can run afoul of the imbroglio comprising America’s gun law system. There is no cure for criminal conduct. Once you have violated the law, accidentally or not, you cannot simply undo the criminal behavior. In other words, you cannot give a gun back to the person who sold it to you in another state without using an FFL, and make things OK. I have posed this question to ATF agents, who conﬁrmed that there is no way to undo criminal behavior and make it right. While ﬁrearms prohibitionists cannot understand how a person could accidentally commit a crime, it is actually pretty easy to transgress in the world of gun laws and face imprisonment or a hefty ﬁne.
Do you think you own an ordinary pistol?
Take your ordinary pistol (less than 26 inches in length) and add an angled foregrip. You still legally own a pistol. Add a bipod, and you still legally own a pistol.
Add a vertical foregrip, and you have suddenly manufactured a ﬁrearm subject to the NFA – which is subject to enforcement by the ATF – that exposes the accidental transgressor to federal felony punishments.
You now own a ﬁrearm known as an AOW, or any other weapon. Because the ﬁrearm is now subject to the NFA, the gun’s lower receiver must ﬁrst be registered, or serial stamped and recorded, as an AOW. Registration requires payment of a $5 tax and ATF approval.
Possession of an unregistered AOW is a felony punishable by 10 years in federal prison and up to $250,000 in ﬁnes.
If you take the same pistol, but add a full stock to it so it is hen designed to shoot from the shoulder, you have unlawfully manufactured a short-barreled riﬂe, or SBR. SBRs are NFA ﬁrearms as well. The SBR’s receiver must be registered as an SBR, a $200 tax must be paid and ATF approval must be issued before the riﬂe is manufactured. Possession of an unregistered SBR is also a felony punishable by 10 years in federal prison and up to $250,000 in ﬁnes.
Another hot topic is the Sig Arms brace, a device that looks similar to a buttstock, but operates solely as an arm brace, based on the design. Wrap it around your forearm for stability, and you have an ordinary pistol; use it to shoot from your shoulder, and you may have an SBR, according to the ATF.
Did you inherit a collection from your grandfather?
If grandpa brought something back from the war, such as a fully automatic riﬂe, and never registered that riﬂe with the ATF, you are in unlawful possession of an NFA ﬁrearm.
Do you think you know whether you possess a machine gun? Did you know that Congress changed the deﬁnition of machine gun when it passed the Firearm Owners Protection Act (FOPA) in 1986? Since then, you own a machine gun if you simply own a part “designed and intended solely and exclusively” to convert a weapon into a machine gun. This has come as a shock to some of my clients who have been greeted by ATF agents asking to collect their machine guns. You see, until the 1980s, it was fairly common to purchase a part known as a drop-in auto sear (DIAS), which, when installed into certain AR-style riﬂes with M16 internal components, would convert the riﬂe into a fully automatic ﬁrearm. Up until 1998, the ATF’s position was that any DIAS manufactured before 1981 was not subject to the NFA. In 1998, however, a federal judge decided that the ATF does not have the authority to make such an exception to the law, and that all ﬁrearms dealers “would do well to assume” that any transfers of DIASs are subject to the NFA, regardless of when they were manufactured (United States versus Cash, 149 F.3d 706, CA7 1998).
The problem does not stop with simply having too many laws. It is one task to decipher thousands and thousands of laws that regulate ﬁrearms, many of which defy common sense, but it is a completely diﬀerent task to have to battle the amorphous beast that is the ever-changing American gun-law system. The ATF may make a decision one day and change it the next. This is the same with federal court. A federal court on one side of the country may decide a case one way, and a federal judge in another district may decide diﬀerently with a very similar set of facts.
It is no wonder that when most people think about the ATF, they think about rules, restrictions, enforcement of rules against people who didn’t mean to break the law and iron-ﬁsted enforcement of rules that make no sense. If you have the sense that the gun laws that apply to individual gun owners are daunting, think about all the rules, regulations and penalties that apply to gun businesses.
After the assassination of President John F. Kennedy, Attorney General Robert Kennedy and Dr. Martin Luther King, Jr., Congress passed another federal law that I frequently see folks unintentionally violate: the Gun Control Act, or GCA. This law imposed stricter licensing and regulations on the ﬁrearms industry, established new categories of ﬁrearms oﬀenses and prohibited the sale of ﬁrearms and ammunition to felons and certain other persons. This law prevents young soldiers who may sacriﬁce their lives for our country from purchasing a handgun from a gun shop to defend their own families until they reach the age of 21. It also prevents a gun owner from transferring ﬁrearms across state lines without using a dealer. There is no exception for family. If you want to give a ﬁrearm to your brother who lives in another state, you must send it to an FFL in his state instead of handing it to him at the Christmas family dinner. If you don’t, you have committed a felony, and so has he.
Gun owners frequently ask if ATF agents actually pursue such cases. The answer is: it depends. Many times, either no one is the wiser or ATF has more important things to do. However, I have been told by ATF agents that they will pursue cases against people who ignorantly violate the law. History also tells us that the ATF has been known to go after the unsuspecting gun owner or gun business owner. After the passage of GCA in 1968, a Senate subcommittee in 1982 concluded that 75 percent of ATF prosecutions “were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations.” The subcommittee’s report supported the passage of the Firearm Owner’s Protection Act in 1986. Compromises to the proposed new law led to some harsh outcomes for gun owners, such as the ban on post-1986-made civilian machine gun sales. This ban was passed despite the fact that over 175,000 machine guns were registered with the ATF at the time, and not a single one had been used in a crime.
Under federal law, the federal government is not supposed to maintain a registry of gun owners. In fact, the FBI is required to destroy background check records for gun purchasers before the start of the next business day. The truth is, the federal government still has several hundred million records of gun owners, including multiple sales reports, trace records and the records of dealers who have gone out of business.
When I asked a former director of industry operations about her opinion of the ATF’s reputation, she explained that the ATF has a diﬃcult job. People are trying to do the right thing, but too often, there are misunderstandings about the laws.
This former director conﬁrmed that people are “on their own” to ﬁgure out how to correct gun-law violations. Having sat through my own FFL licensing inspection meeting, I can conﬁrm that it is impossible, in a few hours, for an agent to thoroughly review and educate new gun dealers on the laws. They hit the highlights, ask if you have any questions – questions which most people won’t even know to ask – and check the boxes that they went over a particular law with you and that you had no questions about it.
She also recognized that based on her prior experience working for the ATF, very few people actually intend to break the laws, but there are too many rules and regulations, especially for dealers and manufacturers, to do things perfectly on a daily basis.
I entirely agree with this point. It has been my experience as both a prosecutor and a civil-law attorney that most lawabiding gun owners who have run afoul of the law did so not because they were attacked and had to defend their lives, but because they violated a law they didn’t know existed. The gun laws aﬀecting most gun owners every day are those that pertain to how a person can carry (open, concealed, loaded, unloaded), where they can carry (illegal in a guided federal park cave tour but legal in the open park area), who can
possess a ﬁrearm (age restrictions, state law restrictions, permitting restrictions), and how they can transfer a ﬁrearm (in state, across states, sale, inheritance) without committing an accidental felony.
At the end of the day, the ATF is charged with public safety and helping gun owners and gun businesses comply with the laws. Many of the agents who work for the ATF try to do just that. The Department of Justice’s direction to the agency, à la Operation Choke Point, an initiative that investigated US banks and the businesses believed to be a high risk for fraud and money laundering, or Operation Fast & Furious, where the ATF purposely allowed licensed ﬁrearms dealers to sell weapons to illegal straw buyers, hoping to track the guns to Mexican drug cartel, has recently left a growing section of the public who are disquieted by the motives, character and actions of ATF. The recent proposals for more gun control and the country’s great divide on the protection to be aﬀorded by the 2nd Amendment further enhances this distrust, and keeps the pro-gun community on the defensive.
The enlightened gun owner must remember that it was not the ATF that passed the tax act in 1789, or the NFA in 1934, or even the GCA in 1968; Congress did. If we could just agree on one more thing – what that little word “infringed” really means – we might gain an agency that could focus entirely on its intended purpose, and protect the law-abiding citizens from the true criminals. ASJ
Alex Kincaid is not only a nationally renowned gun-law attorney, she is also the author of Infringed, where her years of expertise and working with our nation’s laws come together.