Now You See It – Now You Still See It…For Now

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– Article: Now You See It – Now You Still See It…For Now

– Orchid Alert: Fraud Alert Issued by the ATF

– Download: Three best-practice whitepapers

– Advisories: Our Most Recent Advisories

Now You See It – Now You Still See It…For Now

Rewind your memories to 1988.  Radio Shack commercials featured a cell phone the size of a brick and the Compaq SLT 286 personal computer had a starting price of $5,399.  A 1-gigabyte hard drive was the size of an LP.  Cameras and contact lenses were becoming plastic disposables.  Music played for the few through Walkmen, winding the wheels of cassettes.

So how was it that Congress passed the “Undetectable Firearms Act of 1988?”

Call it a fear of plastics or maybe just call it politics.  Although plastics inspired visions of the modern age during the 1950s, the launch of the Glock 17 line didn’t have the same impact – at least in Washington, D.C.  In 1982, the polymer-framed Glock met  and won the bid tender of the Austrian army to replace the World War II era Walther P38 handgun.  Although the US DOD reportedly invited the review of the Glock to replace the M1911, Glock declined. (Fore more information, see Peter Alan Kasler’s book on Amazon here.)

Even as American consumers shifted from 5.25” floppy disks to 3.5” versions, the “undetectable firearm” didn’t get further than fanciful imaginings of design engineers and the infamous “Q.”  The 1988 Undetectable Firearm Act contained a 10-year sunset clause.  It was renewed in 1998 for another five years as a single sentence in a 920-page appropriations bill.  In 2003, it was renewed for another ten years.  And then on December 9, 2013, it was again renewed for yet another ten years.

The statute, itself, is only three pages long, and reflects an interesting, if very precise, definition of the point at which a firearm would become “undetectable”.  Under 18 U.S.C. §922(p)(2)(C) the minimum threshold construction, referred to as a “Security Exemplar” contains “…3.7 ounces of material type 17-4 PH stainless steel in a shape resembling a handgun,” allowing for “…such lesser amount as is detectable in view of advances in state-of-the-art developments in weapons detection technology.”

Manufacturers, importers, and dealers are prohibited from the manufacture, import, sale, shipment, delivery, possession, transfer, or receipt of any firearm that is not as detectable by walk-through metal detection as the defined “security exemplar.”  This prohibition additionally applies to “any firearm with major components that do not generate an accurate image before standard airport imaging technology.”

There is an exemption for an FFL to examine and test a firearm to determine whether it is prohibited under the statute and associated regulations.  There is also an additional exception for such firearms as will be imported by a licensed importer or licensed manufacturer for examination and testing where the firearm would be exclusively sold to the US military or intelligence agencies and has appropriate certification from the Secretary of Defense or the Director of the CIA.

During the most recent round of Congressional debate over renewal of the Undetectable Firearms Act, there was discussion specifically around the permanent or removable nature of the metal requirement.  H.R. 1474 seeks to “get ahead” of undetectable firearms, citing “digital manufacturing technologies, including but not limited to computer numerical control mills (“CNC mills”), 3-dimensional printers (“3D printers”), and laser cutting machines are quickly advancing to a point where it will soon be possible to fabricate fully operational firearm components…”  The 8-page bill also speaks to potential restrictions on magazine design.

In 2013, the first 3D-printable gun file reportedly joined the ranks of the “Wiki” world on a platform of the “liberation of information” by a self-admittedly non-FFL.  But, when you go through the video and website contents, you see and hear the words “if possible,” including that neither costs, equipment, nor full design team are all readily available.  Until even more recently, an Internet blueprint appeared for making a 3D-printed AR-15 lower receiver.

Even though we’ve progressed from dial-up modems, when one goes back into now-on-line newspaper archives, the 1986 coverage of the first version of the Undetectable Firearms Act included an interview with a man who said he was already working on an all-plastic gun prototype.  A Congressional Office of Technology Assessment report that same year concluded it was possible to produce an all-plastic pistol.  (The OTA was dismantled in 1995.)

It’s interesting to contemplate this rare instance of Congress working ahead of an actual product in the marketplace.  The power of the idea of the “undetectable firearm” has now driven and we might say “haunted” both legislators and design engineers for more than 30 years.  And still the question remains unanswered whether such a firearm could be invented and how it would perform, even so.

Orchid Advisors provides electronic newsletter (“Advisory and Alert”) and blogs for general informational purposes only. It should not be considered a formal or informal interpretation of law. It is not intended as professional counsel, should not be considered legal advice and should not be used as such.