BATF and The Graying of the Law

by Walter Lee

On June 19, 2000 agents of the Bureau of Alcohol, Tobacco and Firearms raided the home/business of Robert Steward in Mesa, Arizona. They were led to Mr. Steward by his website, Maadi-Griffin, which offered internet sales of "gun kits." As sold, the kits were not guns. However, instructions were provided which would allow a skilled machinist to convert the kit into a unique single shot rifle unlike anything which might be found in your local sporting goods shop.

The only caliber offered was the .50 BMG-- the round used in the U.S. military's 50 caliber machine gun. Developed in the early part of the century, this round has been used as the standard heavy machine gun round since World War II. The gun is used on jeeps, tanks, aircraft, and as infantry support. During Vietnam, some marine snipers mounted scopes on these machine guns and used them like rifles to achieve confirmed kills at more than a mile. It is a highly accurate round. It is also the most powerful commercially available cartridge allowed to be publically possessed under the 1968 Gun Control Act. Anything larger is considered a "destructive device" under U.S. law.

In the past decade, a great deal of interest has been created in these specialized rifles. They probably came to public attention at Waco where the Davidians were accused of using them to hold government helicopters at bay. Since that time, a number of people have acquired them as the ultimate long range shooter. Most are single shots, like the Maadi-Griffins, distributed by Mr. Steward. There are also some semi-automatic models.

Almost all people believe that these rifles are monstrous. For some, such description come from their potential-- to be able to hit a small target at ranges up to two miles with a bullet that crashes through almost all armor short of a battle tank. Surplus bullets are available in armor piercing, incendiary and tracer configurations.

Others would consider see the characteristics of the weapons themselves as "monstrous." Many are almost five feet long. They weigh up to 30 pounds and are best fired from a tripod. The muzzle blast and recoil scare many away. And then there's the price: even in kit form they cost almost two thousand dollars, plus another thousand for machine work and a heavy duty scope. The cost of shooting them is almost as bad. You can expect to pay a couple of dollars per shot even with cheap surplus ammunition. These guns are not for the weak of heart or the weak of resources. And they certainly aren't the gun of choice for the internecine drug wars. To the best of my knowledge they have never been used in any murder or assault apart from the accusations which flow from the Waco affair.

There are two groups that seems to gravitate to them: serious hobbyists who use them in specialized competitions, and those who believe that they will be needed for defense of home and or community in the "coming unpleasantness"-- however defined or envisioned. The second group is generally "anti-government" and often extremely vocal in their "don't tread on me" pronouncements. It is the potential of these weapons in the hands of the second group that is the concern of BATF. Some have speculated that the raid on Mr. Steward's home/business was focused on his customer list. To know who would go to the trouble and expense to acquire such weaponry might be of considerable interest to some in government.

While there is serious debate as to the usefulness and appropriateness of these "long range rifles," (a debate which I will not enter at this time), there is no debate that they are legal to possess and use under federal law. The fact that their power is at the upper limit of applicable law annoys some. If the law were changed to outlaw .50 caliber rifles, creating instead a .49 or .40 caliber legal maximum, there would be enterprising souls pushing those limits as well. As long as laws are written in terms of prohibited items and substances, things are either legal or illegal. There was a time when marijuana, heroin, and LSD were all legal in this nation. There was a time when transporting alcohol was illegal. Laws dealing with prohibited substances are always arbitrary. Lines are drawn between legal and illegal do not define good v. bad, healthy v. unhealthy, etc.

Prior to 1968, it was perfectly legal to own bazookas, anti-tank weapons, and even tanks with their cannon installed in these United States. Nor was their prohibition on their ammunition. Prior to 1934, any person in the United States could order a Thompson Submachine Gun by mail if they had the money. (Since 1934, a $200 tax has been mandated on machine guns, but they are still legal in much of the country!) Regardless of what people think of as right and wrong, good or bad, .50 caliber weapons are legal to own and use in the United States.

Back to Mr. Steward's case: Mr. Steward made his living at the inside edge of the law. Most of Mr. Steward's living came from selling "kits" for these high powered rifles. The "kits" Mr. Steward sold were not firearms. Firearms, by definition (legal definition) are capable of propelling a projectile down a barrel. What Mr. Steward sold would not do that. They were inert hunks of metal which were not useful for anything, as sold. However, by following the instructions provided, a skilled machinist with the right tools could convert "the inert hunks of metal" into the firearms described in a short time.

It is not illegal to make a firearm in the United States. Before one does, a person needs the approval of the United States Government. The Bureau of Alcohol, Tobacco and Firearms provides application forms requiring the payment of a tax, a picture, fingerprints, etc. But it is not illegal.

Firearms can be build of many materials. When I was a child, I remember visiting the Witte Museum in San Antonio, Texas. They had a large display of homemade guns used by the resistance in the Philippines. They were made of pipe and wire and flat springs and in one case, bamboo was used for the barrel of a crude shotgun. There was a time when everyone knew what a "zip gun" was-- guns made of pens and rubber bands by the gang members of the "Jets" and "Sharks" era. There have been numerous articles on the gun making skills of the Afghan resistance during their war with the late Soviet Union: native craftsmen with files and crude foot powered lathes turning out functioning copies of Colt pistols and AK 47s. There is no telling what they could do with the tools available at Sears. We Americans have always been a nation of tinkers and craftsmen. Many is the homework shop. Certainly, American ingenuity can be applied to building firearms. The only reason that it is generally not is that complete firearms are readily available. Still, there are thousands of "smiths," large and small, make custom modifications and accessories. Few build firearms from scratch, although it is not in itself "illegal."

The building of a firearm is not particularly difficult. What is difficult is creating an efficient design and determining and acquiring the correct materials for high pressure loads. Determining through calculation and/or experimentation just how thick a chamber wall needs to be may be a bit more "exciting" than some want to stand. However, assembling a "kit" is a challenge and an accomplishment. Many people have build their own muzzle loaders from such kits. Hunting or competing with a home built gun is a matter of pride.

While the pride of doing it yourself may be the reason for muzzle loaders and/or some benchrest sportsman, most "modern" gun kits are sold for other reasons. Under federal law, the "receiver" (the frame to which the barrel, stock and other parts are attached) is the firearm. Whether it is assembled or not makes no legal difference. All other parts (with the exception of some pieces that can convert semi-autos to fully automatic) can be bought, sold, possessed, and traded like scrap metal. When a common gun is prohibited from import, companies spring up to manufacture receivers domestically. When firearms are banned for receiver production, "kits" have been used to skirt the law. This happened several years ago when semi-automatic versions of the Ingram (MAC) submachine gun was banned. The receiver for that weapon was formed and welded from sheet steel. For a while, they were available as "flats"-- pieces of metal that were cut and properly punched. A machinist could "brake" (fold) them in three places, TIG weld a couple of seams, and presto, a receiver to which legal parts could be added. Don't be misled-- a machinist could easily lay out the whole receiver and cut it out in a couple of hours time. Buying a stamped "flat" was a convenience more than a necessity.

But the point is that by government definition, the "flats" were not receivers and therefore not guns. Likewise, by government definition, Mr. Steward's Maadi products are NOT firearms. By law, what was done with flats or Mr. Steward's NON rifles is not necessarily illegal. Any citizen has the option to make a gun and BATF provides forms for so doing. I'm sure that Mr. Steward includes paperwork with his product explaining exactly what NOT to do without BATF approval. Whether the individual follows such advice is a secondary point. If they don't, they are violating serious laws.

A reality check: I suspect that few of Mr. Steward's kits are assembled legally. A customer who assembles the "kit" from Steward is supposed to add a serial number and register the self made firearm with the government. Likewise, I assume that very few of General Motors vehicles are ever driven entirely within the speed limit. In terms of Corvettes, I would assume none of them are ever used in an entirely lawful fashion. Does this create liability for GM?

The BATF spokesman on this case calls Mr. Steward's actions "a gray area of the law." Several years ago, the BATF asked him to stop. He refused. Shortly after that (according to published reports) two men entered his gun shop with an AR-15 rifle, requesting that he adjust the scope mount. He put it on his bench and began to work on the scope. As soon as he put a screwdriver to the gun, the men produced BATF badges and arrested him for working on an illegal machine gun. The AR-15 had been illegally converted without changing the exterior appearance. Without resources for a court fight and facing the confiscation of his home, shop and inventory, Steward entered into a "plea bargain" which left a felony conviction on his record. As a convicted felon, Mr. Steward is banned for life from possessing firearms of any sort. The suspicion of a "felon in possession of a firearm" was the reason for the warrant for this week's search. That search produced a number of firearms, including several machine guns. (Published reports have suggested that the illegal guns were planted.) It is the BATF's position that Mr. Steward's conviction means that his wife is also banned from owning firearms if they are kept in the home.

I have no personal knowledge of any of these events. Criminals can be creative. Whether Mr. Steward's sole felony happened as described, I do not know. Given the record of BATF and some of their documented entrapment schemes, such an incident is not beyond the scope of credibility.

My chief concern deals with "the gray areas of the law" and those people who are prosecuted and persecuted for doing things that the government does not like. Mr. Clinton repeatedly declares as a justification for government action that "It's the right thing to do." I was always taught that the issue involved in governmental action was legality v. illegality, not right v. wrong.

A tax attorney once told me, "There are no ‘loopholes' in the law. A deduction is either legal or illegal. Laws are always written as compromises and the so-called ‘loopholes' are left in place so the law can be passed." The same can be said of all law. The "Assault Weapons" bill and the "Brady Bill" would not have passed when they did if they banned private sales at gun shows or other locations. The votes simply were not available for such legislation. The fact that the President and his minions wish the law banned .50 caliber rifles and private sales is immaterial to the law.

This "graying of the law" is a threat to our entire legal process. What it amounts to is that citizens/subjects had best comply with the desires of bureaucrats or the forces of government will be amassed to destroy them. If you agree with the goals of the current administration, then perhaps you are willing to turn a blind eye to their tactics. Unfortunately, history demonstrates that administrations change and the worst of tactics remain. When you find an administration that believes that abortion is the "wrong thing to do," and uses the tactics of this administration to find any fault with abortionists, look at the results. Questionable deductions in filing taxes or prescribing pain killers which the government thinks are "unnecessary" can quickly result in felony charges and the revocation of a medical license. Think about it. Is this the kind of government you want? Is a "graying of the law" the "right thing to do."

An update: Mr. Steward was arraigned on June 22nd. Over the objections of the prosecution, the judge released him on his own recognizance. (The prosecution claimed that Mr. Steward must be deemed a threat to his community because of his strong "second amendment views.") Federal Judge Lawrence Anderson also granted Mr. Steward permission to engage in his business while awaiting further action. That does him little good because the BATF have confiscated his inventory, his machinery and all his business records including customer lists. The government has sought an injunction against Mr. Steward's continuance of the business. A hearing has been scheduled in about two weeks time.

It is a strange world where a federal prosecutor demands a high bail because the accused assumes the United States Constitution means what it says.