Originally published on Forbes.com.
If you want to know what a machinegun really is, consult your tax adviser.
I pride myself on being something of an Internal Revenue Code geek. Shortly after our large regional firm was acquired by a not quite Big 4 (more nimble, you know) we had a general get together in the Boston office. My crowd from the provinces matched me up against a young kid for a Code smackdown. I bet I could have stumped him with what is a new one to me Section 5845(b).
(b) Machinegun.
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, 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.
Memories Of Prohibition Gangsters
So as I trolled through tax decisions looking for something interesting, I could not resist USA v Scott Ray Bishop.
Bishop was appealing his conviction on two related charges. They explain the odd history of how automatic weapons have been regulated accounting for the key definition having its seemingly unlikely home in the Internal Revenue Code.
In 1934 probably in reaction to organized crime mayhem associated with Prohibition, an excise tax was put on the transfer of machineguns. Two hundred bucks, which would be around $3,800 today.
Back in the day, they hadn’t thought of inflation indexing so it is still $200. There is also a pretty strong registration requirement.
But that’s not all. In 1986 a law was passed barring the registration of new machineguns. (There are exceptions of course for the military and law enforcement). So as far as the general public is concerned there are fewer than 200,000 machine guns available for legal ownership. That makes them pretty expensive pushing $30,000 for a classic Thompson. Apparently, they are now an investment asset class.
At any rate, that rule refers to the Internal Revenue Code for the definition of machinegun, which includes parts designed to convert a weapon into a machinegun.
“Improving” Your AR-15
Bishop was marketing a conversion kit that allowed the popular semi-automatic AR-15 to be converted to fully automatic fire.
A TCGTR is a small piece of metal that, when properly bent according to Defendant’s instructions, fits inside an AR-15.
he “TCGTR” (trigger control group travel reducer) was a custom-made metal device, approximately 2.4 inches in length, and approximately 1/2 inch at its major width. As sold by , the . . . device required one[] final bend for the device to become operational as a machinegun. The purchaser could . . . go back to website . . . and obtain the instructions on how to complete the device. The device is premarked at the bend location with a stencil. . . . gave his customers very detailed written instructions, including photos, for making the final bend to their . also sold a “raw materials” variation of his kit, which was the same kit, but a flat piece of metal that required a total of four bends.
As part of its investigation, ATF ordered multiple TCGTRs from Defendant and, after following Defendant’s instructions for bending and installing a TCGTR, tested the effect on an AR-15.
Bishop was appealing his conviction because he had not been allowed to testify on how it is that he was not really converting AR-15s to machineguns. The testimony had been disallowed on the grounds that it was expert testimony not properly disclosed.
The Tenth Circuit was not impressed by the argument. The conviction and nearly three-year sentence were upheld.
What Are Machineguns Good For?
I might have passed on writing about this, were it not for the interesting feedback I got when I reached out for expertise on the technical part of the case. One of my classmates, a retired Army officer who is fascinated by history and weapons (So am I for that matter. Combination of watching too much WWII stuff as a kid and our kind of peculiar high school) The question stumped him so he reached out for someone with even more expertise.
My friend got back with me. In addition to being an amateur gunsmith, he is a retired Army Colonel of Engineers.
We agree that automatics are highly overrated. A good way to miss with a lot of bullets unless you are shooting from a tripod or a very stable bipod mount/hold. Automatics are used to suppress but your chances of hitting are far less than if you shot single shot. Unless your target is a football field sized area or ten feet away.
He confirmed that the modification is highly illegal. Unlike most ATF regulations, the machine gun parts are quite unambiguous. Even a conservative would have found him guilty.
The Irony
It was the second paragraph that really caught my interest. Converting an AR-15 to be fully automatic is a serious crime, but the question would be whether it should be any sort of priority for law enforcement.
Put aside for a moment whatever your view is on whether weapons like the AR-15 should be available to civilians and follow along a bit more in the discussion of what automatic weapons are good for.
Automatic fire is useful when the other guys are shooting back. It helps keep their heads down so you can maneuver or get a shot in without them shooting back. Usually, one team is firing the suppression and someone else is doing the marksmanship.
If you are attacking unarmed people, a self-loader or even some skill with a bolt/pump action is what is required. What you don’t want is something that will cause your gun to fail and adding aftermarket gadgets, using oversized magazines or exceeding heat limits on auto all could cause your gun to jam. They never give much info on the shooters but I think in a couple of cases, the shooter had gun and magazine problems.
So maybe Scott Ray Bishop could have put on a stronger defense by claiming that his intent was to get the people with AR-15s who shouldn’t oughta have them make stupid modifications that will make them less effective when they finally go postal.
There are other ironies like this in the Code. The IRS does not really do much with the bank currency reports that inundate it. Yet people are prosecuted for structuring transactions to avoid the reports. When it comes to guns, emotions tend to outstrip thinking on both sides of the debate.
Other Coverage
There seems to be quite a bit of local (Utah) coverage of the decision like this by Mark Shenefelt and this by Dennis Romboy. Romboy’s story mentions how at sentencing prosecutors emphasized how much more dangerous full auto AR-15s would be.
In the last several years, this country has seen an increase in the number of mass shootings,” prosecutors wrote in court documents. “The risk that a (converted machine gun) will be used to harm others at a future date remains unabated. Defendant’s sentence should reflect this dreadful reality.
Tom Knighton of Bearing Arms, who sounds like a pretty strong 2nd Amendment guy, does not have much sympathy for Bishop.
Don’t be like Bishop. Know what you’re doing. If in doubt, ask the ATF. You’re not doing anyone any favors by playing the “better to ask forgiveness than permission” card when it comes to firearms.
For better or worse, that’s just how it is.
Apparently Reilly’s First Law of Tax Planning – It is what it is. Deal with it – has application in the firearms regulation area.