Understanding the status of forced reset triggers in Virginia

Posted on May 22, 2025 by John Pierce

UPDATE:  I have been receiving questions and comments from concerned gun owners, and I have added additional analysis below based upon their questions and feedback.

In an agreement between the government and Rare Breed Triggers, announced Friday May 16th, 2025, the Department of Justice agreed that the Bureau of Alcohol, Tobacco, Firearms and Explosives overstepped its authority in reclassifying forced reset triggers (FRTs) as machine guns and will return any such items seized or surrendered to them.

While this is great news for gun owners at the federal level, it doesn’t necessarily solve the issue for those in Virginia.  In fact, it potentially sets a legal trap for the unwary.

Please note that I am NOT making a definitive statement that FRTs are covered under Virginia’s ‘trigger activator’ statute but rather pointing out that the statute is vague enough, and inadequately describes complex mechanical processes, such that it could subject owners to legal issues.

In the 2020 session, the General Assembly added section 18.2-308.5:1 to the Code of Virginia, which made it unlawful for any person to ‘manufacture, import, sell, offer for sale, possess, transfer, or transport an auto sear or a trigger activator in the Commonwealth.‘

In this code section, “trigger activator” is defined as “a device designed to allow a semi-automatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of any semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.”  This definition can be interpreted broadly and presents significant potential legal threats to those who might own FRTs.

The most common question I have received is whether FRTs are even covered by this statute since they do not operate via ‘recoil energy’.   Let’s look at that question:

  1. Is there a definition of ‘recoil energy’ in this code section?  No
  2. Is there a definition of ‘recoil energy’ in the Code of Virginia? No.
  3. Is there a definition of ‘recoil energy’ in the VA Administrative Code? No
  4. Is there a definition of ‘recoil energy’ in Virginia case law? No
  5. Is there a definition of ‘recoil energy’ in Federal case law? No
  6. Is there a definition of ‘recoil energy’ in Black’s Law Dictionary? No

Therefore, under the rules of statutory construction, we will look to the standard definition of the term which is the backward force generated when a firearm is fired, equal to the force generated by the powder charge that propels the bullet forward.

So do FRTs use this ‘backward force’?  In a 2022 Open Letter to All Federal Firearms Licensees, the BATFE stated this about how FRTs function:

“Unlike traditional triggers and binary triggers … FRTs do not require shooters to pull and then subsequently release the trigger to fire a second shot. Instead, these FRTs utilize the firing cycle to eliminate the need for the shooter to release the trigger before a second shot is fired. By contrast, some after-market triggers have similar components but also incorporate a disconnector or similar feature to ensure that the trigger must be released before a second shot may be fired.”

The key question then is whether a prosecutor, judge, or jury, many of whom might not be familiar with firearms, would find that the ‘firing cycle’ is a part of, or analogous to, the ‘recoil energy’ of the shot.

THIS is the legal risk that I am warning my clients about with this article.

And while those who own registered pre-ban auto sears are protected by a clause in the new law that exempts those items owned “in compliance with the National Firearms Act”, I believe that there are statutory construction issues where FRTs are concerned since they are not regulated under the NFA, as recognized in the aforementioned settlement.

The second most common question I have been asked is whether subsection D of the law, exempting those items owned in compliance with the National Firearms Act (NFA) would apply, since FRTs are no longer considered machineguns in violation of the NFA and are therefore not subject to any requirements of the NFA.

My answer is that it opens yet another door where a prosecutor could argue that being ‘in compliance’ with [X] means the item must be subject to AND compliant with [X].

See this video for a discussion of this specific issue and the competing arguments a prosecutor and defense attorney might make when facing such language in a state law.

This then sets the stage for law-abiding Virginia residents, hearing of the settlement with the DOJ, who attempt to have their seized or surrendered items returned to them, or who purchase such items from out of state vendors and bring them into the Commonwealth, being potentially prosecuted under the new law.

And the penalty for violation of this statute is prosecuted as a Class 6 Felony.

If you are a Virginia resident who had your forced reset trigger seized or voluntarily surrendered a forced reset trigger to the BATFE, and they contact you about returning said item, you should seek counsel before taking any action.

If you have questions or would like assistance with the forced reset trigger issue, then feel free to contact me for a consultation.

Posted in 2A, Administrative Law, ATF, ATF Ruling, BATFE, Court Rulings, Forced Reset Triggers, Machine Guns, Regulatory Rulemaking, Virginia Law | Comments Off on Understanding the status of forced reset triggers in Virginia

Buying a firearm while in the Virginia Address Confidentiality Program

Posted on November 2, 2024 by John Pierce

Recently, a dealer I represent contacted me with a question regarding an identification document that a customer was attempting to use to purchase a firearm.

In this case, the customer was presenting a driver’s license with a PO Box as the address coupled with a Commonwealth of Virginia Address Confidentiality Program (ACP) card.

The customer was under the belief that the FFL was required to accept the PO Box as their residential address based upon their participation in this program.  The FFL, understanding that failing to comply with both Virginia State Police and ATF identification and residency requirements could impact their license, was understandably concerned and reached out for advice.

Let’s break the issue down.

First, this is a valid program in Virginia (many other states have their own version as well).  Virginia’s version allows victims of domestic violence, stalking, and other crimes to protect their actual address from most forms of public disclosure.

The sample card pictured above represents what the actual cards look like when issued. Attorney General Miyares has a video introduction to the program available on YouTube.

In the video commentary, AG Miyares states the following (with the relevant sections bolded):

In recognition of Domestic Violence Awareness Month, Attorney General Jason Miyares is encouraging Virginians impacted by domestic violence, stalking, sexual violence, human trafficking, and child abduction to apply for the Address Confidentiality Program (ACP) offered by the Office of the Attorney General’s Victim Services Unit.

The ACP provides a legal substitute address, ensuring a survivor’s actual physical location is shielded from public records and inaccessible to their abuser. Participants in the ACP are assigned a confidential mailing address to use for all first-class mail, legal matters, and government interactions.

The Office of the Attorney General securely forwards mail to the participant’s actual address, preventing any direct connection to their new location. This protection extends to both adults and minors whose parent or guardian is enrolled in the program. Once enrolled, participants are responsible for notifying state and local agencies of their ACP status.

Government agencies are legally required to accept the ACP address as the participant’s official residential address. The certification lasts for three years, with the option to renew.

These assertions form the basis of the customer’s belief that the FFL should be required to accept the PO Box as their residential address.

But that alone does not mean the ACP address is valid for firearms purchases.  We need to look deeper.

Next let’s look at the Form 4473 requirements under federal law.  The Form 4473 require a non-PO Box address when purchasing a firearm.  There are certain exceptions, and a variance may be requested under those circumstances.  However, for reasons I will discuss later in the article, I do not believe those apply here.

Turning to the AG’s website for the program, we see even more relevant detail.

In the description on that site, they note that “Currently private businesses and federal agencies are not required to accept a participant’s substitute address.”

Perhaps most importantly, the code section that governs the ACP is § 2.2-515.2 which states in subsection F that:

F. A program participant may request that any state or local agency use the address designated by the Office of the Attorney General as the program participant’s address, except when the program participant is purchasing a firearm from a dealer in firearms.

Since state law does not authorize the use of the ACP address for the purchase of firearms, the variance opinion linked above would not authorize a variance.

Therefore, a person in the ACP program with a PO Box on their Virginia ID document is currently prohibited from purchasing from a dealer unless they have a separate qualifying identification document containing their actual physical address.

Those impacted by this issue should reach out to their state and local representatives and ask that legislation correcting this issue be introduced.

Posted in 2A, ATF, ATF Guidance Letters, Federal Law, FFL Issues, Purchasing Firearms, Virginia Law | Comments Off on Buying a firearm while in the Virginia Address Confidentiality Program

Trust approval times continue to impress

Posted on July 11, 2024 by John Pierce

I have written twice over the last several weeks about how the new ATF approval process is benefitting trust applicants as well as individuals, but I still have clients who want to see concrete examples.

This is an approval one of my clients received today (with all identifying information redacted of course).  It took two days for a trust approval.

For more information on the new process and how it is helping trust applicants, see the previous articles below:

SilencerShop confirms that approvals for trusts the ATF sees frequently are as fast as individual approvals

Why the new eForms processing rules are actually good news for trust applicants

 

 

 

Posted in ATF, BATFE, eForms, Form 1, Form 23, Form 4, NFA Transfers, NFA Trusts | Comments Off on Trust approval times continue to impress

Supreme Court strikes down ATF bump stock reinterpretation

Posted on June 14, 2024 by John Pierce

In a 6 to 3 decision, the Supreme Court has dealt yet another blow to the ATF’s rampant administrative overreach.

In the case of Garland v. Cargill, embedded below, the court ruled that, despite the emotional pleas underlying the push to reinterpret the statute, the statutory text is clear in its meaning.

A “semiautomatic rifle equipped with a bump stock is not a ‘machinegun’ because it does not fire more than one shot ‘by a single function of the trigger.’”

They went on to note that the ATF and the judiciary are bound by the clear text of the statutes Congress enacts.  If Congress writes those statutes poorly, “it is never our job to rewrite . . . statutory text under the banner of speculation about what Congress might have done.”

And speaking of ‘rewriting’ or ‘reinterpreting’ statutes, we can only hope that there will soon be a ruling that reduces the amount of deference the courts grant to administrative agencies such as the ATF when they use their regulatory rulemaking authority to do that very thing.

Download (PDF, 480KB)

Posted in Administrative Deference, Administrative Law, ATF, ATF Ruling, Bump Fire Stocks, Court Rulings, Machine Guns, US Supreme Court | Comments Off on Supreme Court strikes down ATF bump stock reinterpretation

District Court grants summary judgment in case challenging ATF arm-brace rulemaking

Posted on June 13, 2024 by John Pierce

Today the United States District Court for the Northern District of Texas granted summary judgement in favor of the plaintiffs (gun owners) in the case of Mock v. Garland.

As you may remember, this was a suit challenging the ATF regulatory rulemaking that turned tens of thousands of arm-brace equipped pistols into NFA items virtually overnight.

In its ruling, the court pulled no punches when discussing the significant deficiencies in the ATF rulemaking process.

For close to a decade, the ATF concluded that “attaching the brace to a firearm does not alter the classification of the firearm or subject the firearm to NFA control.”  The ATF changed course on this position for the first time in 2023, when it issued the Final Rule reversing the agency’s otherwise long-standing policy. “When an agency changes course, as [the ATF] did here, it must ‘be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.’”

“It would be arbitrary and capricious to ignore such matters” But this is exactly what Defendants did when they inexplicably and fundamentally switched their position on stabilizing braces without providing sufficient explanations and notice.

Under the Final Rule, the ATF estimated about 99% of pistols with stabilizing braces would be reclassified as NFA rifles. The ATF contemporaneously issued approximately sixty adjudications pursuant to the Final Rule that reclassified different configurations of firearms with stabilizing braces as NFA rifles. The ATF provided no explanations for how the agency came to these classifications and there is no “meaningful clarity about what constitutes an impermissible stabilizing brace.”

In fact, the Fifth Circuit “[could not] find a single given example of a pistol with a stabilizing brace that would constitute an NFA-exempt braced pistol.” Such “‘unexplained’ and ‘inconsistent’ positions” are arbitrary and capricious.

The Defendants’ disregard for the principles of fair notice and consideration of reliance interests is further exacerbated by its failure to follow the APA’s procedural requirements for public notice and comment. As discussed above, Defendants failed to follow proper notice-and-comment procedures because the Proposed Rule and the Final Rule differed in immense ways.

The entire ruling, which is embedded below, makes for quite enjoyable reading.  And while the ATF will almost certainly appeal this ruling, they will be fighting an uphill battle given the glaring issues the District Court identified.

PS.  I would encourage those who applied for, and subsequently received, one of the free tax stamps issued pursuant to this rule to read this previous article I had written about possible legal pitfalls.

Download (PDF, 274KB)

Posted in 2021R-08F, 2A, Administrative Deference, Administrative Law, AR Pistols, Arm Brace, ATF, ATF Ruling, BATFE, Court Rulings, Federal Court, Fifth Circuit, Regulatory Rulemaking, Stabilizing Brace, Tax Stamp | Comments Off on District Court grants summary judgment in case challenging ATF arm-brace rulemaking