Year: 2009

I think it’s important for gun owners to understand the National Firearms Act, and how it is applied as law by the federal courts.  Most of us here possess semi-automatic firearms, which can occasionally experience a failure mode that causes multiple shots to be fired with a single action of the trigger.  I think it’s important people know what their rights are, and how the law is applied, in case they ever find themselves in this situation.  This is from a post from Kurt Hofman yesterday:

[…] you can still be sent to prison for having a malfunctioning semi-auto, because “[i]f you pull the trigger once and it fires more than one round, no matter what the cause it’s a machine gun.” In other words, a malfunction is no excuse, according to the government.

Kurt is correct that, unfortunately, the National Firearms Act makes no provision for a firearm that malfunctions.  If it fires more than one shot with a single function of the trigger, it’s a machine gun.  You can thank Congress for poor drafting of a law that never should pass constitutional muster in the first place.  But it’s not really correct to suggest that you will go to jail if your AR doubles on you at the range in earshot of the Five-O.

The reason that’s the case is thanks to a case known as Staples v. United States, which is a case that’s remarkably similar to the Olofson case.  In Staples, The Court ruled that Congress did not eliminate the Mens Rea requirement, and that it had to be considered as applied to gun laws.  Mens Rea, translated from Latin, means ‘guilty mind’, or that the criminal had some knowledge of wrongdoing that constituted a crime.  From Staples:

We concur in the Fifth Circuit’s conclusion on this point: “It is unthinkable to us that Congress intended to subject such law abiding, well intentioned citizens to a possible ten year term of imprisonment if . . . what they genuinely and reasonably believed was a conventional semiautomatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon.” Anderson, supra, at 1254. As we noted in Morissette, the “purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction.” 342 U. S., at 263. We are reluctant to impute that purpose to Congress where, as here, it would mean easing the path to convicting persons whose conduct would not even alert them to the probability of strict regulation in the form of a statute such as § 5861(d).

It’s important to note, however, that Staples demands that the government prove that the defendant understand the characteristics of the firearm they possess as an element of proving the crime.  It does not demand that they prove the defendent knew it was unlawful to possess an unregistered machine gun.

We attempt no definition here, either. We note only that our holding depends critically on our view that if Congress had intended to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons, and to subject them to lengthy prison terms, it would have spoken more clearly to that effect.

So you are not automatically guilty of possessing or transferring a machine gun if your AR doubles up on you at the range one day, provided you did not understand yourself to be in possession of a machine gun.  If such a thing happens to you, however, it would behoove you to fix it as soon as humanly possible, and not fire the weapon until it is fixed.  If you are caught and prosecuted with the firearm in the intervening time, the prosecution will have to prove you believed you were in possession of a machine gun, rather than a malfunctioning semi-auto.  If your firearm is indeed merely malfunctioning, and there’s no evidence of any attempt at conversation, which would establish your understanding of the firearm as an automatic, the government will likely fail to meet its burden.

In the transcripts for the Olofson case, you can see the government went through effort to established Mens Rea.  Here we have the prosecutor in the direct examination of Robert Kiernicki, the kid Olofson was accused of transferring the firearm to:

Q. Okay. And I’m sorry, now what did he tell you about the selector switch? First of all, did he indicate to you whether he knew that that was an automatic function?
A. Yeah, he told me that the three-round burst wouldn’t work and that it would jam up.
Q. Did you know what he meant by “three-round burst”?
A. Yeah.
Q. What did you take him to mean?
A. Three rounds come out of it when you would pull the trigger.
Q. When you pull the trigger once?
A. Yeah.
Q. And when he was telling you this, did he tell you that he had fired it automatically in that three-round burst position and that the gun had jammed on him?
A. Yes.

Kiernicki’s testimony and sworn affidavits were as big a part of the government’s case as the tests the ATF did on the firearm.  In fact, without the Kiernicki’s testimony, the government would have had a much weaker case, and would have had to rely on the M16 trigger group as evidence of a guilty mind.  I think it’s quite likely a talented defense attorney could have gotten an acquittal.

It’s something to keep in mind, because the hazard of possessing a malfunctioning AR is real.  If you go show off to your buddies “Hey look, I can make this three round burst!” even if it’s a worn part causing a hammer follow, you just established a guilty mind.  The ATF is not lenient or forgiving in its enforcement of these laws, and it has a long history of pushing court rulings to their limits, or ignoring them entirely, in attempts to get convictions.  But, in general, if your AR malfunctions and doubles, you shouldn’t be criminally liable for it if you understand that you have a malfunctioning legal semi-auto, and act accordingly.  If you do end up in legal trouble, say nothing until you speak with an attorney.  In addition, we should strive to change or repeal the laws that create this type of hazard for ordinary gun owners.