01-2703 U.S. v. Fleischli

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“Fleischli argues that a gun does not fire automatically unless it uses a portion of the energy of a firing cartridge to extract the fired cartridge and chamber the next round without a separate pull of the trigger. He derives this meaning from the United States Code’s definition of ‘semiautomatic.’ He also claims the minigun is akin to a Gatling gun, which is not considered a machine gun under an IRS ruling. Relying on firearms reference manuals, he also contends that his minigun lacked a trigger as that term is defined in the firearms field because the minigun operates by virtue of an electrical on-off switch. In interpreting the National Firearms Act (‘NFA’), the Supreme Court offered commonsense explanations of the terms ‘automatic’ and ‘semiautomatic’ that give us all the ammunition we need to dispose of Fleischli’s disingenuous argument: ‘As used here, the terms “automatic” and “fully automatic” refer to a weapon that fires repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted. Such weapons are ‘machineguns’ within the meaning of the Act. We use the term ‘semiautomatic’ to designate a weapon that fires only one shot with each pull of the trigger, and which requires no manual manipulation by the operator to place another round in the chamber after each round is fired.’ Staples v. United States, 511 U.S. 600, 602 n.1 (1994). Fleischli dismisses this passage as not binding, arguing that the Court did not define ‘automatically’ but rather defined ‘automatic.’ We think the Court’s meaning is plain enough. If Fleischli’s minigun, with one application of the trigger, continued to fire until the trigger was released or the ammunition exhausted, it was a machine gun within the meaning of the Act.”

Fleischli maintains that the use of the word “similar” causes a reasonable person to speculate as to how nearly a device must resemble a bomb, grenade, rocket, missile or mine in determining whether the device is encompassed by the statute. Fleischli thus contends the statute is unconstitutionally vague.

“The three circuits to consider this issue have all found that the statute is not unconstitutionally vague. See United States v. Markley, 567 F.2d 523, 527-28 (1st Cir. 1977), cert. denied, 435 U.S. 951 (1978); United States v. Ross, 458 F.2d 1144, 1145 (5th Cir. 1972), cert. denied, 409 U.S. 868 (1972); United States v. Morningstar, 456 F.2d 278, 281 (4th Cir. 1972), cert. denied, 409 U.S. 896 (1972). All three courts agreed that a person of ordinary intelligence would understand the statute to include any combination of parts intended to be used as a bomb or weapon or from which a bomb or weapon could be readily assembled. Fleischli’s device comes well within the purview of the statute.”

Affirmed.

Appeal from the United States District Court for the Central District of Illinois, Mills, J., Rovner, J.