the Act. A newer model gyrojet pistol with a slightly smaller rifled bore was not covered by the definitions of "destructive device" and "any other weapon," thus clearly removing the newer pistols from inclusion within the provisions of the Act. No showing was made respecting the interchangeability of parts. Evidence was received from the Association that subsequent to the passage of the 1968 Act, one Timothy Dale Bixler attempted to register a gyrojet pistol identical to Government Exhibits 6 and 7, and was advised by the Bureau representative that registration was not required. See Defendants' Exhibit Q.
The Statutory Scheme.
The National Firearms Act of 1968, 26 U.S.C. § 5801 et seq., is concerned primarily with the taxation, manufacture, dealing in, transfer, and registration of firearms. Registration provisions were redrawn in the 1968 Act to avoid the result reached by the Supreme Court in Haynes v. United States, 390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968). This required revision of prior registration procedures to avoid Fifth Amendment violations. Accordingly, the transferor of a firearm was given primary responsibility to register the firearm and to get authority from the Bureau to transfer it to the transferee. A generally inclusive definition of firearms is established. Sporting rifles and shotguns are exempted. (26 U.S.C. § 5845(f)). Congress focused on sawed-off shotguns and sawed-off rifles, machine guns and destructive devices. Antique firearms are also excluded. In addition, the Secretary is given authority to exclude certain devices which are not likely to be used as weapons or which the owner intends to use solely for sporting purposes.
26 U.S.C. § 5845 provides eight definitions of "firearm", each of which contains specific coverage criteria. Moreover, in order for a device to constitute a "firearm" under § 5845, it must be designed as a weapon. This is a common thread running throughout each of the definitions contained in § 5845. A device that otherwise appears to fall within one of the eight definitions of "firearm" may, in some cases, simply not be designed as a weapon. It may, for instance, be specifically designed by the manufacturer to serve as a museum display piece or military demonstration item.
Of particular relevance to this forfeiture action are the following definitions: "Firearm" means "(1) a shotgun having a barrel or barrels less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) a muffler or a silencer for any firearm ...; and (8) a destructive device." 26 U.S.C. § 5845(a). Antique weapons are excluded from coverage and the Secretary may also exclude collector's items not likely to be used as a weapon. Id.
Subsection (b) defines "machinegun" as follows: "... 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 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." 26 U.S.C. § 5845(b) (emphasis added). Subsection (b) is of particular importance in this case since the Government contends that four of the seized items are machineguns. None of these four items shoots. Each of these four items was designed and manufactured not to shoot.
What the Government sought to show was that its experts believe that Government Exhibit 1, the Colt item, Exhibit 2, the Heckler and Koch item, Exhibit 3, the Springfield item, and Exhibit 4, the Harrington and Richardson item, can readily be restored to shoot automatically more than one shot by a single pull of the trigger. There was considerable difference of opinion among the experts as to whether these four items could be readily restored to shoot. That issue will be further discussed in a subsequent section. Each of the four items had either a welded barrel or a plugged barrel and there were essential parts missing. None of the experts concluded that the weld or plug could readily be removed from the barrel in question. The Government's experts testified that replacement barrels were available. Only in the case of Government Exhibit 3, the Springfield item, did the Government make a somewhat plausible demonstration of its position. Both the Colt item, Government Exhibit 1, and the Harrington and Richardson item, Government Exhibit 4, are rare experimental items. Replacement parts and barrels are not readily available and no satisfactory evidence of availability was offered. If one had a completely operational Colt AR-15, why would he wish to substitute its parts into such an item as Government 1. A suitable barrel and replacement parts for the Heckler and Koch item, Government Exhibit 2, are not available in this country. Also of significance is the absence of any testimony that any conversion or replacement parts were found in the Association's museum.
The definition section, § 5845, also contains subsection (e) "Any other weapon," and subsection (f), "Destructive device." The government contends that these sections cover the gyrojet pistols, Government Exhibits 6 and 7. Subsection (e) reads as follows:
The term "any other weapon" means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or revolver having a rifled bore, or rifled bores, or weapons designed, made or intended to be fired from the shoulder and not capable of firing fixed ammunition.
26 U.S.C. § 5845(e). Essential to the applicability of this subsection to the gyrojet pistols is a showing that these pistols can discharge a shot or that they can be readily restored to fire a shot. The evidence is undisputed that in their present condition neither gyrojet can discharge a shot. Whether either can be readily restored to fire will be discussed in a subsequent section.
Subsection (f) reads in pertinent part as follows:
The term "destructive device" means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant
charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant,4 the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled.