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Grandfathered ownership of banned machine gun part debated at Seventh Circuit

An Illinois man claims he should be allowed to legally own the parts, known as auto sears, because he bought them in 1979, two years before the federal government began regulating them.

CHICAGO (CN) — A federal appeals court on Thursday heard arguments in the case of a man who owns banned automatic weapons parts and claims the court should either rule he is allowed to own them because he bought them before they were regulated or that he should be given a grace period to register them and make his ownership legit.

The firearm components in question are known as drop-in auto sears, or just auto sears, which according to court documents were invented in the mid-1970s. Part of a gun’s trigger mechanism, they essentially convert a semiautomatic rifle into a fully automatic machine gun by allowing it to fire more than one bullet with a single pull of the trigger.

The federal government began requiring machine guns to be registered and taxed starting with the National Firearms Act in 1934. In 1968, the Gun Control Act expanded the NFA’s reach, at which point auto sears technically fell under the definition of a machine gun.

In 1981, the Bureau of Alcohol, Tobacco and Firearms specifically classified auto sears as machine guns and codified their regulation as such for registration and taxation purposes, but the ruling did not apply to those manufactured before November of 1981.

Then, in 1986, Congress passed the Firearm Owners Protection Act, which added to federal gun laws that it is illegal to transfer or possess a machine gun with two exceptions, one being that the prohibition does not apply to machine guns legally owned before the law took effect in May of that year.

An Illinois man, known in court documents only as John Roe, bought an unregistered auto sear in 1979. He made no attempt to register the part until 2021, when he sued then-acting ATF Director Marvin Richardson and U.S. Attorney General Merrick Garland on the basis that his auto sear should be grandfathered as legally owned because he bought it before 1981, or that he should be given an amnesty period under ATF rules to legally register it.

In a brief filed with the Seventh Circuit in Chicago, his lawyer, Thomas Maag, says that then-President Donald Trump’s 2018 move to ban bump stocks—another firearm component that effectively converts a semiautomatic rifle into a fully automatic machine gun—triggered Roe to investigate the legality of his auto sear.

The Trump administration banned bump stocks in response to the October 2017 mass shooting in Las Vegas, in which the 64-year-old shooter used rifles outfitted with bump stocks to fire on crowds at a country music festival from a nearby hotel window. The shooting—which resulted in 58 civilian deaths, the death of the shooter by suicide, and two more civilian deaths in 2019 and 2020—stands as the deadliest mass shooting event in U.S. history.

U.S. District Judge J. Phil Gilbert tossed Roe’s lawsuit in January for failure to state a claim, essentially finding that there is “no legal way to remedy plaintiff’s inability to sell or legally possess” the auto sear under relevant authorities, prompting Roe's appeal.

Maag reasserted to the Seventh Circuit panel on Thursday that Roe’s ownership of his auto sear should be grandfathered as legal, or the court should make the attorney general and ATF hold a limited amnesty period to allow him to make it legal.

U.S. Circuit Judge Diane Wood was skeptical that the court could create any kind of amnesty period or change the ATF’s decision about machine gun regulation. As for the attorney general, she told Maag that he may be out of luck there as well, because “we don’t tell the Department of Justice who they can prosecute.”

Maag also argued that the regulatory scheme could be unconstitutional, as federal agencies cannot say one day that owners do not have to register auto sears, then the next day change the rules and not give owners an opportunity to legally register them.

If you’re going to criminalize possession of auto sears, Maag said, “somebody at some point must give him some chance to register.”

“Why?” asked Wood, a Bill Clinton appointee. “Maybe what the law is saying is ‘it’s a contraband item,’" and that’s that.

DOJ attorney Steven Hazel said it is an “extraordinary” argument to claim that a single sentence from an editor’s note to the 1981 ATF ruling undoes the fact that it has been illegal to possess an auto sear since 1968.

U.S. Circuit Judge David Hamilton, also a Clinton appointee, pushed back, saying, “I understand you’re saying it was illegal when he got it…but that didn’t seem to be the government’s view in 1979.”

Wood, who called the ATF’s 1981 ruling “cryptic,” put forth that it seemed a bit roundabout to interpret the ruling as saying all auto sears are now machine guns and they all are now illegal.

“Don’t you think that’s indirect at best?” she said.

U.S. Circuit Judge Amy St. Eve flatly asked Hazel what Roe’s options are at this point. Hazel responded that he can either destroy the auto sear or abandon it to the ATF.

When the George W. Bush appointee asked Hazel if Roe risks prosecution if he turns over the auto sear to the ATF, Hazel said it’s possible he would not be, given ATF’s interest in getting people to abandon them.

The government’s attorney added that, if Roe is worried about prosecution, he can always just destroy the device.

Maag said at the top of arguments Thursday that Roe is proceeding anonymously to avoid possible self-incrimination under the Fifth Amendment, but Wood and Hamilton questioned whether he is entitled to do so, with Hamilton calling it a "heads I win, tails you can't catch me" approach.

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