NRA-ILA | Does the U.S. Attorney for D.C. Know Full-auto Conversion Switches are Illegal?

Another week another news item complaining about the misuse of firearms and firearm parts that are already illegal. This time it was the Washington Post, who on December 6 published a piece titled, “With ‘conversion switch’ devices, machine guns return to U.S. streets.” At this point gun owners don’t expect journalists to have a firm, or even loose, grasp on U.S. firearms law, but they might expect that of their U.S. Attorneys.

The law on this matter is crystal clear. Devices that are designed to convert semi-automatic firearms to fire automatically, so-called “auto switches,” “Glock switches,” etc., are illegal throughout the U.S.

Federal law, 26 USC § 5845(b), defines a “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 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.

Note the language in bold. Firearms that shoot automatically meet the definition of a machinegun. However, even a mere part “designed and intended solely and exclusively… for use in converting a weapon into a machinegun” is itself a machinegun absent any other part of the firearm. Therefore, possession of an auto switch, even without an accompanying receiver, barrel, etc., is the possession of a machinegun.

Those found in mere possession of an auto switch face up to 10 years imprisonment. (18 USC § 924(a)(2), 26 USC § 5871)

Violent criminals who possess or use an auto switch during the commission of a crime face truly staggering penalties.

18 USC § 924(c) provides,

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

…

(B) If the firearm possessed by a person convicted of a violation of this subsection—

…

(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.

…

(C) In the case of a violation of this subsection that occurs after a prior conviction under this subsection has become final, the person shall—

…

(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.

To put these severe sentences in context, a 2016 report from NYU’s Brennan Center for Justice found that the average prison stay for murder was only 11.7 years.

The Washington Post article references U.S. Attorney for the District of Columbia Matthew Graves at length. The prosecutor claimed to be concerned about auto switches, saying they are “incredibly scary.” However, the Post article went on to report,

Graves agreed. “They’re basically being treated the same in our criminal justice system as the firearms that don’t have these devices there,” he said. He noted that D.C. Council member Brooke Pinto (D-Ward 2) proposed legislation “adding a separate penalty for possessing a machine gun and using a machine gun in a crime, which we think is incredibly important. We need to increase the penalties.”

As was just outlined in detail, auto switches and firearms with auto switches are not treated the same as semi-automatic firearms under federal law.

Further, forget D.C. local law for a moment and note that the jurisdiction is a federal enclave. The U.S. Attorney for D.C. is tasked with enforcing both federal and local law in the District. The Justice Department’s website for D.C. explains,

The United States Attorney’s Office for the District of Columbia is unique among U.S. Attorney’s Offices in the size and scope of its work. It serves as both the local and the federal prosecutor for the nation’s capital.

This isn’t some local prosecutor claiming state law doesn’t provide him with the statutes to go after those with auto switches, this is the person tasked with upholding federal law in the District suggesting the law doesn’t adequately address these items. It is literally under Graves’s direct control as to how the federal law’s clear and severe auto switch prohibition is enforced within the federal enclave.

Knowledgeable observers are left puzzled. Is it really the case that a U.S. Attorney doesn’t know the federal law on auto switches and machineguns?

However, there is another potential explanation. Graves has earned a soft-on-crime reputation. In a March 29 article, the Washington Post reported,

Last year, federal prosecutors in the District’s U.S. attorney’s office chose not to prosecute 67 percent of those arrested by police officers in cases that would have been tried in D.C. Superior Court.

That figure, first reported earlier this month on the substack DC Crime Facts, nearly doubled from 2015, when prosecutors in the U.S. attorney’s office declined to prosecute 35 percent of such cases.

Is it possible that Graves’s attitude on criminal justice make him reluctant to employ tough federal laws on those who commit violent crime in the District?

There were a couple instances of sanity in the Post’s report. The Post reporter and an ATF agent cited in the piece did their best to convey the fact that auto switches are currently prohibited under federal law. In discussing the items, the ATF agent made clear, “That would be illegal… The device itself.”

Further, it appears some measure of reality has dawned upon at least one member of the institutional gun control crowd. Professor Daniel Webster of the Michael Bloomberg-funded Johns Hopkins University Bloomberg School of Public Health Center for Gun Violence Solutions appears to understand that proper enforcement, rather than simply piling on ever more gun restrictions, might have a role to play in public safety.

According to the Post,

Webster said legislators should enact higher penalties for possession of the switches, prosecutors should seek those penalties, and judges should impose them.

Slow down Daniel, that type of law and order talk might get you in trouble at the next faculty meeting.