The opinion of the court was delivered by: GASCH
This is a forfeiture action filed by the United States pursuant to the provisions of 26 U.S.C. § 5801 et seq. against Seven Miscellaneous Firearms. The Court has jurisdiction under the provisions of 28 U.S.C. §§ 1345, 1395 and 2461, et seq. The National Rifle Association filed a claim for the seven items at issue in this lawsuit and sought dismissal of the complaint or alternatively a more definite statement. Thereafter the United States filed a more definite statement and subsequently the Association withdrew its motion to dismiss or for a more definite statement and filed an answer to the complaint. The action was tried by the Court without jury. Upon consideration of the evidence adduced at trial, including the testimony, stipulations, and documents received in evidence, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The National Rifle Association maintains offices, a museum containing approximately 1500 items both sporting and military, which have been made inoperable, illustrating the development of American firearms, some dating back 350 years, as well as firearms records at 1600 Rhode Island Avenue, N.W., Washington, D.C. The Bureau of Alcohol, Tobacco and Firearms is charged with the responsibility of administering and enforcing the provisions of the National Firearms Act of 1968. 26 U.S.C. § 5801 et seq. On November 7, 1975, January 31, 1977, and November 15, 16, 18 and 21, 1977, the Bureau conducted compliance inspections of firearms records of the Association. On March 9, 1978, the following items
were seized by representatives of the Bureau on the premises of the Association:
1. Colt item, model AR-15, barrel length 211/2 inches, overall length 381/4 inches, caliber 5.56 mm, serial number 039849 (Government Exhibit 1);
2. Heckler and Koch item, model G-3, caliber 7.62 mm, barrel length 201/4 inches, overall length 401/4 inches, no serial number (Government Exhibit 2);
4. Harrington and Richardson item, caliber 7.62 mm, model T-48, barrel length 241/4 inches, overall length 441/2 inches, serial number 4142 (Government Exhibit 4);
5. Lee Enfield item, .303 caliber, barrel length 87/8 inches, overall length 277/8 inches, serial number 7446 (Government Exhibit 5);
6. MB Associates, Gyrojet item, 13 mm, serial number A-0029 (Government Exhibit 6);
7. MB Associates, Gyrojet item, 13 mm, serial number A-048 (Government Exhibit 7).
Government Exhibit 1: This item is a prototype of the Colt AR-15. The ultimate design is described in Government Exhibit 23, prepared by the manufacturer, as follows: The AR-15 (M-16) rifle is gas operated, air cooled, magazine fed (20 or 30 rounds), semiautomatic or fully automatic shoulder weapon. The AR-15 is an earlier experimental version of what is now known as the M-16. The Association's curator described it as a milestone in the history of American firearms and an appropriate museum display piece.
Government Exhibit 1 cannot be fired either automatically or semiautomatically or otherwise because of missing parts and a welded barrel. The pretrial stipulation by and between counsel further shows that this item was deactivated at the factory before being donated by the manufacturer to the Association's Museum and it has no bolt cam pin, firing pin, firing pin retaining pin or automatic sear. The rear of the chamber has been plugged for a distance of approximately two and one quarter inches and the locking recess in the back of the barrel has been completely filled. It is impossible to close and lock the chamber with the bolt in this item.
The government expert, Edward M. Owen, demonstrated how Government's Exhibit No. 1 could be altered so that it would shoot automatically. He accomplished this by installing the upper receiver assembly and barrel of a fully operational Colt AR-15, Government Exhibit No. 8, and by installing the complete bolt and carrier, the automatic sear assembly and its retaining pin in Government Exhibit No. 1. With these parts from an operational Colt AR-15, Government Exhibit No. 8, Mr. Owen testified that following this process, which included replacement of the welded barrel and the upper receiver assembly, and the addition of the automatic sear assembly and the retaining pin from Government Exhibit 8, that the altered item would shoot automatically more than one shot without manually reloading by a single function of the trigger. This addition of parts
took approximately three minutes in open Court.
Government Exhibit 2: This item is a factory deactivated Heckler and Koch G-3, manufactured in West Germany for NATO forces. This particular item was donated to the Association by the manufacturer. Government Exhibit 25, a manual on the Heckler and Koch G-3, describes this generic type as follows: The automatic rifle G-3, caliber 7.62 mm by 5.1 NATO, is a weapon developed in accordance with the most modern production methods. It is used as a semiautomatic or full automatic weapon with or without bipod with fixed or retractable butt stock.
This particular item lacks a serial number and proof marks, which, according to the testimony, indicates that the item was not test fired and not sold for use as a firearm. The evidence was also undisputed that in its present condition, Government Exhibit 2, the Heckler and Koch G-3, cannot be fired either automatically or semiautomatically or otherwise because it has a plugged barrel and missing parts. Expert testimony was to the effect that if the plugged barrel were replaced with an operational barrel from another Heckler and Koch G-3, or an HK 91 sporter,
it would be operational. It was brought out on cross-examination that Heckler and Koch G-3 barrels are not available in this country. However, a Heckler and Koch G-3 automatic rifle of similar type might be imported and its barrel and parts missing from Government Exhibit 2 installed in Government Exhibit 2. If this were done, the item would be operational. In short, if an operational Heckler and Koch G-3 automatic rifle were imported and its operational parts transferred to Government Exhibit 2, one would have a single operational Heckler and Koch G-3. Testimony of the experts varied considerably as to difficulties one might encounter in replacing the barrel of a Heckler and Koch G-3. Specialized equipment not available in this country would be required, particularly to effectuate conversion to automatic fire.
Government Exhibit 3: This is a Springfield Armory item, T-44-E4. It was donated by the U.S. Army's Springfield Armory to the Association's Museum following correspondence with the Office of Chief of Ordnance, Department of Army. It is an experimental model only about 500 of which were produced and was a developmental step in the production of the M-14 rifle, now the standard U.S. Army rifle. It is a very rare and much sought after item by museums. Neither the Smithsonian Firearms collection nor the Bureau's own collection contains such an item. The testimony indicated that after extensive field testing by the Army under combat conditions, most of these 500 T-44-E4 models were shot out, destroyed or cut apart for experimental metallurgical testing. Since this factory demilitarized item is one of the few remaining T-44-E4's from which the current Army M-14 was developed, it is a particularly important item from a technological point of view. It was developed and tested by the United States Army following World War II as a replacement for the M-1 Garand rifle. The T-44 series and the T-44-E4 are similar in basic design of the type fire.
The basic manual for the M-14 FM 23-8, Government Exhibit 30, reads as follows: "The M-14 rifle is a 7.62 mm magazine fed, gas operated, air cooled, semiautomatic shoulder-type weapon. The M-14 is designed primarily for semiautomatic fire but can be converted to automatic fire by installing a selector." An article appearing in the American Rifleman, June 1957, entitled "New Service Rifle," Government Exhibit 29, contains the following: "The new U.S. Army rifle M-14 was known as T44 during development. It fires a 7.62 mm NATO cartridge and weighs 8.7 pounds unloaded against 9.6 pounds for the M-1 (Garand) ... magazine capacity is 20 rounds instead of 8 in the M-1, a change lever "A" gives choice between semi and full automatic fire." Expert testimony revealed that the M-14 and its predecessors, the T-44 and the T-44-E4, may be equipped with a change lever which allows the weapon to be fired semi or full automatic. They also may be equipped in such a manner as to prevent it from firing full automatic.
Government Exhibit 4: This item is a Harrington and Richardson Model T-48, the Americanized version of the Belgian FN/FAL selective fire rifle, the original of which was manufactured by Fabrique Nationale of Belgium. Expert testimony revealed that the Harrington and Richardson T-48 series was in competition with the T-44 rifle series to replace the U.S. Army M-1 Garand in the 1950's. The Association's American Riflemen, Government Exhibit 29, contained an article entitled "New Service Rifle" in the June 1957 issue. This article described the design of the T-48 as follows: "The T-48 final form of the contending rifles submitted by Fabrique Nationale of Belgium and adopted by several nations ... provision for semiautomatic and full automatic fire and flash hider are like those of the M-14 rifle." Mr. Owen, the Government's expert, testified that he had installed FN/FAL parts in a T-48 and then fired that T-48 fully automatic. His testimony further indicated that this operation could be accomplished probably in less than four hours.* A defense exhibit, NN, contains the following: The ...